Look up to the Sky ...

Well, well, well ...

A notice arrived in our email inbox this week.

Firstly, we would like to congratulate with a standing ovation to the 'New' Board of Directors for their efforts to communicate with and include the unit owners on the issues affecting 'OUR' Condominium Association! Thank you for all your hard work and efforts to make 'OUR' Association an inclusive place!

Apparently, we have a problem ...

 "ECMCA declaration regarding classification of skylights and skylight frames as windows or roof is not clear. Unit boundaries encompass windows, doors, and respective frames, to be maintained and replaced at owner expense. Roofs are common property owned and maintained by the association. There is no reference to skylights. 

To clarify ownership and responsibility for maintenance and replacement of skylights and frames, your directors are soliciting your vote on the following action." 

Let's look at this very carefully ... 10 Good Reasons this should not be up for a vote!

1. According to our Declaration, Page 4:

(ii} Unit Boundaries. The boundaries of each Unit are as follows:

a.   Horizontal Boundaries

i. Floor: The unfinished interior surface of the lowermost floor.

ii. Ceiling: The unfinished interior surface of the uppermost ceiling.

2. The Skylights are located in a well above the finished ceiling.

3. According to our Declaration, page 5:

The Skylights are Common Area ...

(e) Description of Common Area and Limited Common Area

(i) Common Area consists of the entire Land other than the Units that may appear on the Plan includes, but not by way of limitation:roads within the boundaries of the Condominium, parking spaces not assigned as Limited Common Area, sidewalks, lawns, gardens, shrubbery and other plantings, walkways and other land and interest in land included in the description in Appendix A;the water supply, sewerage, electrical and telephone systems serving the Condominium to the extent said systems are located within the Land and are not owned by the supplier of the utility service (but not including any portions thereof contained within and servicing a single Unit);the roofs, foundations, columns and supports of the building, the perimeter walls, ceilings and floors bordering each Unit to the unfinished interior surfaces thereof;

4. According to our Declaration, page 6:

(f) Subsequent Assignment of  Common Area as Limited Common Area. No Common Area may be subsequently assigned as Limited Common Area.

5. According to our Declaration, page 5:

The Owner of a Unit shall be deemed not to own any pipes, wires, cables, chutes, flues, conduits, public utility lines, ventilation, or other ducts, bearing walls, bearing columns or structural portions of the building running through said Unit which are utilized for or serve more than one Unit or serve any portion of the Common Area, which items are by these presents hereby made a part of the Common Area. (See also paragraph 3(e)(i) hereof). Nor shall such boundaries include any decks or patios, if any, serving the Units, which decks or patios shall be Limited Common Area. (See also paragraph 3(e)(ii) hereof).

6. Unit Owner owns the glass. But only on skylights which are actual vents (opens).

According to our Declaration, page 5:

The Owner of the Unit shall be deemed to own such finished interior surfaces, the interior walls and partitions which are contained in such Owner's Unit, and shall also be deemed to own the window glass and glass vents of his Unit, the entrance doors, window frames (to the unfinished interior surface thereof), and doors connecting his Unit with the Limited Common Area reserved for his Unit, if any, and the sinks and other plumbing facilities, and any appliances that may be located in his Unit and serving solely his Unit.

7. Skylights are installed from the exterior. The Frame of the skylight sits within the joists above the 'unfinished interior surface'. The joists being a structural portion of the unit, part of the roof system and therefore a Common Area Element. The Condominium Plans will confirm this.

8. According to The International Residential Code definition:

• Unit Skylights (which we have): A factory assembled, glazed fenestration unit, containing one panel of glazing material that allows for natural daylighting through an opening in the roof assembly while preserving the weather-resistant barrier of the roof.
• Fenestration: Products classified as either vertical fenestration or skylights and sloped glazing, installed in such a manner as to preserve the weather resistant barrier of the wall or roof in which they are installed. Fenestration includes products with glass or other transparent or translucent materials.

9.The Skylight units were installed during initial construction of the Framing for the condominium complex. 

10. The Condominium Association has set precedence of the skylights being owned and responsible for, by replacing and repairing several skylights as shown in the Association's records.

So, having explained the above, there is no reason to hold a vote by ballot to AMEND THE DECLARATION!

Furthermore, the ballot states:

"Ballots returned by two-thirds of owners will constitute a quorum. Ratification will be effective upon a simple majority of owners voting ‘for’ the action."

1. 2/3rds of the Unit Owners equals 16 unit owners. HMMM ... If 5 unit owners are delinquent and 6 unit owners are on a payment plan and have not fully paid the assessments against their units than only 13 unit owners are eligible to vote.

Article II, Unit Owners Association, Section 7, page 4 of the ECMCA Bylaws state:

Voting Requirements. An owner shall be deemed to be in good standing and entitled to vote at any annual meeting or at any special meeting of the Unit Owners' Association if, and only if, he shall have fully paid all assessments made or levied and due against him and his Condominium Unit by the Board of Direc­ tors as hereinafter provided, together with all interest, costs, attorney's fees, penalities and other expenses, if any, properly chargeable to him and against his Condominium Unit, at least three (3) days prior to the date fixed for such annual or special meeting.

2. The vote is for the Amendment to the Declaration which requires a 2/3 vote of the Association not a majority of those voting (as described in this notice). This would be 16 unit owners ... hmmm ... how many can vote?

NH RSA 356B:19 states:

 III. A common area not previously assigned as a limited common area shall be so assigned only pursuant to RSA 356-B:16, I(f), except that limited common areas may be created or expanded pursuant to an amendment to the condominium instruments consented to by 2/3 of the votes in the unit owners association, or such higher percentage as the condominium instruments may provide, and then thereafter assigned as therein provided. The amendment to the declaration making such an assignment shall be prepared and executed by the principal officer of the unit owners' association, or by such other officer or officers as the condominium instruments may specify. Such amendment shall be delivered to the unit owner or owners of the unit or units concerned upon payment by them of all reasonable costs for the preparation and acknowledgment thereof. Said amendment shall become effective when the aforesaid unit owner or owners have executed and recorded it, and the recordation thereof shall be conclusive evidence that the method prescribed pursuant to RSA 356-B:16, I(f) was adhered to. The creation or expansion of limited common areas pursuant to this paragraph shall not alter the amount of undivided interest in the common areas allocated to any unit.Source. 1977, 468:1. 2001, 68:1, eff. Aug. 18, 2001.
Note: reference is made to what the condominium instruments provide ... the declaration expressly prohibits Common Area elements to be subsequently assigned to Limited Common Area.

At the end of the day ...

This Association has NO or VERY LITTLE reserves of any kind, never mind the reserves they are supposed to be collecting and saving for replacements and working capital. The requirements for any repairs, replacements, fixes, improvements, upgrades, or whatever you want to call the needs of our common areas, burden our current generation of owners. Take the roofs for example ... should we have asked the Board of Directors make an amendment to the Declaration changing the roofs from a common area element to a limited common element before they assessed us for it? WTF? Why put this up for a vote? ... We have to pay for it anyway ... because they cannot put the monies where they are supposed to go ... case in point: Budget $8,000 for Legal and spent almost $17,000.00(2015) ... How many skylights can be bought and installed for $9,000.00? Since 2003, the BOD have budgeted and charged the members over of $122,000.00 for items to add value to the units that owners never received. How many skylights would that $122,000.00 have purchased and installed for that amount?

This should have been a topic for a Special Meeting of the Unit Owners Association not a Board of Directors Meeting. Does NH 356B:40 not suggest that "a properly called" meeting be necessary?

NH RSA 356B:40

 II. The board of directors shall not:
       (a) Amend the declaration except as otherwise provided in this chapter. 
       (b) Amend the bylaws.
       (c) Terminate the unit owners' association.
       (d) Elect members of the board of directors but may fill vacancies in its membership for the unexpired portion of any term or, if earlier, until the next regularly scheduled election of executive board members.
       (e) Determine the qualifications, powers, and duties, or terms of office of members of the board of directors.
    II-a. An officer shall not directly receive any salary or compensation from the association for the performance of duties as an officer or board member and shall not in any other way benefit financially from service to the association.
    II-b. If annually approved by a 2/3 majority of the voting interests present at a properly called meeting of the association, the association may waive the requirements of paragraph II-a

While the BOD may feel a simple wave of a magic wand by vote by emailed ballot that incorrectly states the voting requirements to amend the Declaration will help issues, we believe they are mistaken.

1. The BOD are not presenting the actual written changes to the Declaration such as; we would like to replace paragraph X to be read as paragraph Y.  The Association members have a right to vote on the actual proposed verbiage that is replacing what paragraph/sentances in the declaration and this should be a yes or no vote.

2. The BOD are not allowed to change a common area responsibility to a limited common area responsibility per the Declaration above.  Unfortunately, for the BOD, they do not seem to understand the contractual obligations put forth by the governing documents.  By making this type of change when unit owners purchased according to the 'terms' laid out in the governing documents and any new changes to responsibilities would only apply to owners purchasing after recordation of such document. Current owners could be grandfathered.

3. If the BOD continues to make changes to the governing documents that 'are not duly authorized' then they are opening the Association to lawsuits. And since the BOD of this Association have misappropriated funds, mixed fund monies without proper authorization of which all is documented, you can count on lawsuits if this type of behavior from the BOD continues.

•  The Board of Directors is not 'duly authorized'.
•  At least 10 or 11 unit owners cannot vote, leaving only 13 or 14 owners for a 2/3 majority of all the units required at 16 for a Declaration change.
•  In some cases not only does the declaration need to be changed but the bylaws as well.
• HB353 is a House Bill. Once a House Bill has passed it becomes law. In the case of HB353, those items have been placed as law into NH RSA 356B.
• HB 353 items are under the following: NH RSA 356B:6a, NH RSA 356:34, NH RSA 356:37 a,b,c,d, NH RSA 356:38, NH RSA 356:39 &39a,NH RSA 356:40, 40a, 40b, 40c,and NH RSA 356:43.

We sincerely thank the BOD of Directors for working hard to include the members (after all this complex belongs to us all) and for making inroads to compliance of the Governing Documents. 

But we can't help but feel that perhaps you are missing concentration on key elements which require reading, reading, re-reading, re-reading, analyzing , re-analyzing, and re-re-analyzing the governing documents together not as separate documents.

1. A proper financial foundation must be built according to the governing documents including The Working Capital Fund, The Reserve for Replacement of the Common Area (formerly known as The Capital Reserve) and the Operating Account.
2. Spending only within Budget Allowances as set forth in the budget ratified according to NH RSA 356B:40c, having cost overrun protection through The Working Capital Fund.
3. Making maintenance issues a priority and following through providing for adding, enhancing or maintaining value to the property (all common area elements) as reducing common area elements, reassigning common area elements and ignoring common area elements are not the answer to maintaining value.
4. Understand that the Former BOD have made the approach to these issues seemingly difficult for some in our community, this is going to be a slow climb back and not everyone can handle the ramifications of misdeeds by the Boards prior; causing excessive jumps in fees, special assessments and declining services, in other words bankrupting the population of this community will only drive values down more. Not to mention the undue financial burden on us all through excessive legal fees (that we won't recover in a bankruptcy situation)
5. Communication not exclusion will only enhance conversation ... calling fellow unit owners names such as deadbeats, toxic, or speaking of their financial position to others (whether they are current or not ... as in publishing in minutes which units are experiencing financial difficulties ... as we know many who have held or now hold Board positions, have had their share of rough times and it is a matter of public record). Stop with the crap!
6. Please treat all equally (whether they are current or not, well-liked or not, male or female, rich or poor as the governing documents as well as laws protect all classes).
7. Please use discretion and respect.
8. Remember that the governing documents protect us all.

Dear Board of Directors:

Please reconsider putting the skylight issue up for a vote where you cannot have the number of votes required, is against the governing documents and will only cause undue harm to the overall association in the form of lawsuits and cancelled insurance.

Sincerely, with respect and complements,

ECF