GalaxyFacts Chat Room

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[stevenbraitman]

[Guest]

[quote="stevenbraitman"]

[miked]

I was a little upset with the other board members when I first read your post, especially Slava and Fini, but then I looked back at one of your prior postings:

stevenbraitman responds:
“Mike, this post is more than a bit confusing to post "as is". GTCA's master deed and by laws are quite a bit different. If a unit owner suffers this kind of damage, and GTCA were to refuse to pay for it, before the unit owner sues, I strongly recommend that the person bring the issue to the attention of the Board. the Board has the power to interpret the Master Deed and By-Laws and set policy in this regard. (yes the Board will hear the opinion of GTCA's attorney, but the decision is the Board's to make, not the attorney's). And I have the feeling that the current Board may have a significantly different point of view on this issue than the Board that tried to pass the utterly ridiculous proposed By-Laws amendments that would have made individual unit owners responsible for damage to their units caused by the Common Elements(!).”

If the Board has the power then why give any more money to Buckalew. You already know his position anyway. If the Board were to take a vote, I can’t imagine any of the directors voting against fixing her damage considering the evidence she presented.
mike

[stevenbraitman]

[quote="miked"]I was a little upset with the other board members when I first read your post, especially Slava and Fini, but then I looked back at one of your prior postings:

stevenbraitman responds:
[See below for URGENT request for info]

I regret the implied slap at Fini and Slava. I didn't contemplate the implications of what i was writing. there is so much stuff going on, no one can respond to all the emails flying back and forth among the directors. i was trying to indicate that buckalew not responding at the Sept 6 meeting was proper, without having received prior direction from the Board to be prepared to discuss the matter. yes i know i'm defending buckalew on this. When i rebuke him, i like it to be only for things for which he is actually guilty (the OCD in me).

And additionally, my implied criticism was wrong because Slava DID respond to my email, by rebuking me for the same reason you did--of incurring additional expense by asking for buckalew's opinion, when it will be the Board's decision and not Buckalew's.

i did this because, in order to get a Board majority to make the rational decision (and reverse existing policy), it will be necessary to first hear from Buckalew as to the legal basis for the current policy / decision. I can't imagine being able to influence several other directors on this matter without explicitly confronting (and, as I anticipate, crushing) the rationale for the current policy. In other words "it's a fool who answers a matter before he hears it." and my momma didn't raise any fools. (please resist the temptation to argue with me on this last sentence <g>).

As part of the review of the Board's policy of not reimbursing for damage caused to Units from the Common Elements, I am seeking to find if there actually were any Unit Owners who WERE reimbursed by GTCA (i.e., special treatment). If anyone has any info on this, PLEASE provide ALL specifics that you know. For example, was there anyone who just happened to be a Director who received reimbursement? As I have indicated to the Directors, I hope that a review will demonstrate that the policy, even if a bad one, was at least enforced equally. However, I am not prepared to assume without validation that all Unit Owners have been treated equally in this regard.
_________________
steven braitman
member, galaxy board of directors

[Guest]

maybe you should take a holiday from emails and tape your mouth shut and then you'd have some time to do what you were elected to do.

which is to pay attention to our business...

you guys are a joke. do you think that the lobbies are 44% complete?

where do these numbers come from?

how much of our money has been spent so far and how much more is going to be spent?

do your job and, please, could you do it quietly?

thanks

[Mike]

Link

[admin]

"SO WHAT IF YOU DON’T FIX IT RIGHT NOW?"
As we know, a Condominium Association has many duties and obligations to fulfill including the collection of assessments, and the enforcement of the provisions of the Condominium Documents. In addition, the Association also has another very important duty: the maintenance and repair of the common elements. This duty not only is relevant to the aesthetics and the upkeep of the appearance of the condominium, but also encompasses safety concerns as well. A Board of Directors of an Association that ignores its maintenance and repair duties or otherwise does not take them seriously enough exposes the Association to potential liability from claims of co-owners and others who come into the condominium. This article will focus on some key issues that Boards must consider in the fulfillment of their maintenance and repair obligations, and will also discuss the ramifications of neglecting such duties and not diligently taking action in a timely fashion.

When faced with a maintenance and/or repair issue, the starting point, of course, is to determine whether the area in question is, in fact, an item for which the Association has the duty to maintain, repair and/or replace. This may not necessarily be as simple as it sounds. While the Master Deed for the condominium generally will define the general and limited common elements of the condominium project and delineate the corresponding maintenance and repair responsibilities of the co-owners and the Association, sometimes the item in need of repair may fall into a "gray area", leaving it unclear who has the responsibility of repair. For example, while the Master Deed may provide that the Association has the duty to maintain the structure of the floor between unit levels, consider what happens when a co-owner requests that the Association fix a floor in his unit that constantly squeaks when walked upon. The question then arises: Is a floor squeak a structural problem, which the Association must remedy, or a "cosmetic" one that is left to the co-owner to solve? In dealing with a repair responsibility that falls into such a "gray area", the Board would be wise to seek out advice and assistance from its legal counsel and professionals associated with the construction industry. Inaction or procrastination by the Board in addressing the issue may ultimately engender legal action by a frustrated co-owner to enforce the Association’s repair responsibilities, resulting in the Association, at the very least, incurring attorney fees and costs to defend the lawsuit.

Associations may find it helpful to create a "repair matrix" in the form of a chart that can serve as a quick reference guide for determining the maintenance and repair responsibilities of the Association and co-owners. This chart should be submitted to the Association’s attorney for review and any additions or corrections.

Once the Board determines that the Association is responsible for the maintenance/ repair of a particular area, it should then thoroughly evaluate the scope of the need for maintenance/repair and obtain estimates from licensed contractors. Obviously, this step is less complicated when dealing with simple or routine maintenance such as painting the exterior of buildings, as opposed to being confronted with the problem of deteriorating roads or roofs, for example. Some contractors may propose different repair approaches than others to solve the problem. It is the Board’s duty then to determine which repair approach to adopt. While the Board may not necessarily be compelled to select the most expensive repair, the Board may want to think twice about choosing the cheapest repair that merely represents a "band-aid" solution that may ultimately prove not to be a proper repair. While cost is an important consideration, it should not be the sole basis for the decision. Conserving Association funds in the short term may only lead to the expenditure of even more money down the road to rectify a failed "repair".

Perhaps the most important thing that the Board should do is to take prompt action. The time frame within which the Board should act is dictated, of course, by the type of maintenance or repair that is needed. Routine maintenance associated with the appearance of the condominium is less urgent than addressing potential safety concerns or conditions that may lead to damage to the common elements or a co-owner’s unit. For example, sidewalks that are heaving and creating a tripping hazard require quicker action than scheduling the repainting of signs or buildings. For those repairs needed to correct safety hazards or to avoid damage to the common elements or a unit, prompt action should be taken by the Board, and any concern regarding the availability or expenditure of funds should not be allowed to pose a serious impediment to moving forward with corrective measures. If the Board has truly been attentive to its duties, a reserve fund should be available for any major repairs. The Board has a statutory duty to ensure that adequate reserves are set aside for major repairs and replacement of common elements. It is a breach of the Board’s fiduciary duty to fail to establish reserves. If such reserves are not set aside, a Court will probably not listen very favorably to an Association that claims that it did not have the money to make a repair, where the failure to repair resulted in an injury to a co-owner or damage to a co-owner’s unit.

The importance of promptly responding to a repair request from a co-owner was made very clear by a recent jury verdict in the Los Angeles Superior Court. The jury in the case of Mary Jamison Moller v. The Atherton Homeowners Association found a condominium association liable for $495,000.00 in water damage to a resident’s unit. The resident had made repeated complaints to the Board in 1991 of water damage, mustiness, and moistness in her unit. The Board did not take action, however, until 1994, when an architect was hired to design a drain system to alleviate the problem. By then, the condition had grown worse, and in addition, the system was not installed properly and did not work. The resident developed health problems, allegedly because mold and mildew began to grow inside the unit’s walls. Among other things, the jury found that the association was negligent and had breached its fiduciary duties. The resident was awarded damages for pain and suffering and the trial judge ordered the Association to raise $250,000.00 to pay for repairs to the unit.

How soon should a Board take action to make a repair? At least one Court has held that a condominium association must perform a repair within a "reasonable time". What constitutes a "reasonable time", the Court stated, is a question of fact that depends on the circumstances. In Lemon v. Golf Terrace Owners Association, the Supreme Court of Alabama found that the Association did act within a reasonable time when it took over three years for a re-roofing project to progress from the planning stage to actual construction. The resident in that case had a serious roof leak in his unit and sued the Association for failing to fix it within a reasonable time. The roofs in the project were over sixteen years old, were defectively designed and not subject to a permanent repair. More and more roofs began to deteriorate and leak. The Board appointed a committee to develop a plan to deal with the roof problem and an architect was hired to prepare a design. The Board was constrained in its actions, the Court noted, because it then was required by the Condominium Documents to submit the new design for a vote of the co-owners. Once approval was obtained, the Board then had to secure four bids from roofing contractors, one of which then had to again be submitted for co-owner approval. The Court expressly acknowledged that "[t]he delay in the construction appears to have resulted from the fact that the Association had to follow the corporate procedure set out in the [Condominium Documents] for making extensive structural alterations to the roofs . . . The record affirmatively shows that the Association took [the co-owner’s] problem seriously." The Court then went on to document extensive efforts undertaken by the Association to try to stop the leaks in the co-owner’s unit while awaiting construction of the new roof. Thus, it appears that if a Board diligently pursues any procedures mandated by the Condominium Documents before a repair project can be undertaken, an argument can be made that the Board should not be held responsible for the delay in actually effectuating a repair. If there are no constraints on the Board’s ability to take immediate action, however, the Board should not unduly hesitate to begin the repair.

Finally, there has been a recent development that impacts the liability of an Association for allegedly failing to fulfill its maintenance and repair obligations of which Board members and Association counsel should be aware. It has long been presumed that the "business judgment rule" would, in most cases, insulate a Board from liability for a business decision made in good faith, so long as the Board members acted on an informed basis, were disinterested and independent, and were reasonably diligent in informing themselves of the facts. Generally, Courts will not review such matters of business judgment and discretion. There has recently, however, been a dent placed in this "shield" from liability by a California appellate court in Lamden v. La Jolla Shores Clubdominium Homeowners Association (1998). In that case, the complex experienced a major termite problem and an exterminator recommended fumigation to control it. The Board decided against fumigation, however, based on its review and careful consideration of several factors. Instead, the Board decided to spot treat the infested areas. A co-owner sued, alleging that the association should fumigate instead of spot treat. The Board defended the lawsuit by stating that its conduct was in conformity with the "business judgment rule", and the trial court agreed, holding that the Board had acted in good faith and had a rational basis for the decision to reject fumigation.

On appeal, however, the trial court’s decision was reversed. The appellate court essentially held that the "business judgment rule" is not the applicable standard when reviewing maintenance/repair decisions. The court reasoned that the Association was "for all practical purposes" the complex’s landlord, and must, therefore, exercise due care for the "tenant’s" property. The court stated that this common law relationship between the Association and the co-owner required that, in performing its maintenance and repair duties to the common areas, the Association was to exercise due care to protect the co-owner’s unit from undue damage. This common law standard, the court held, was to be applied instead of the "business judgment rule", and the Association’s conduct should be scrutinized under an objective standard of reasonableness rather than a determination of whether the decision was made in good faith. At this point, Michigan courts have not yet issued any similar decisions, but it is probably only a matter of time before a skilled and well informed co-owner’s attorney will raise this issue in a lawsuit brought against an Association in regard to an alleged failure to properly carry out maintenance and repair duties. Accordingly, Boards should also consider whether their maintenance/repair decisions are reasonable and prudent, in addition to ensuring that they are made in good faith and represent an informed business judgment.

In summary, like other duties, Associations must take their maintenance and repair duties seriously and take prompt action to pursue a course of repair when necessary. Neglecting a needed repair can have deleterious consequences. To avoid a problem with funding repairs, the Board should also be faithful to its duty to set aside adequate reserves. If an Association acts diligently to address a maintenance and repair issue, and does so in good faith, while being well informed, it will significantly reduce any potential liability for claims that it did not live up to its obligations.

**************************************************************
Richard M. Delonis is an attorney with the law firm of Szura & Delonis, P.L.C., which has offices located in Southfield and St. Clair Shores. The law firm represents several community associations in Southeastern Michigan. Mr. Delonis holds a Bachelor of Arts degree from the University of Michigan and is a cum laude graduate of the Wayne State University Law School. He was a candidate for the Michigan House of Representatives in 1992. Mr. Delonis also currently serves as the President of a condominium association in Oakland County. The law firm and its attorneys maintain membership in the State Bar of Michigan, the Oakland County and Macomb County Bar Associations, and the Community Associations Institute. Mr. Delonis was also recently accepted into membership with the Commercial Law League of America.

[Mike]

I don't see any "GO TO YOUR INSURANCE COMPANY" for an employee 's property damage. And this damage was caused by the contractor not the GTCA. SO why did the GTCA pay for the damage? Why do they treat an employee better than an owner? When owner marika Bethel's floor and ceiling were damaged by GTCA neglect she was told to go to her insurance.
When Eisenberg told the GTCA his floor was damaged by the contractor he was told to use his insurance or go after the contractor. So why the special treatment for an employee? Why did the board approve to pay for damage caused by the contractor? Why didn't they tell her to use her car insurance to fix the windshield?

[mikede]

[quote="stevenbraitman"]

[admin]

no proof to back it up but you could look back at the records

we did hear of a former director with "black water fairy" damage in the thousands to his kitchen that was allegedly renovated and then paid for by the gtca. Once again this is "hear say" I cannot prove this.

[Mike]

Welcome back Mr. Braitman! I hope you enjoyed the holidays. I just thought I would remind you of some of the comments you made about helping Marika get her water damage fixed since it was caused by the negligence of the GTCA.

I attached a copy of an amendment the GTCA tried to pass which in my opinion shows they are responsible to fix her damage along with anyone else who can prove their damage was caused by the negligence of the Board in maintaining the common elements.

DID YOU EVER GET THAT MEMO FROM BUCKALEW?

[miked]

COOPERATIVE OWES $1.3M FOR LEAKY ROOF
A Bergen County jury has awarded $1.3 million to the owners of a Fort Lee penthouse whose cooperative board failed to repair their leaky roof despite five years of complaints. Nathan and Myrna Yagoda were forced to move elsewhere because of contamination from bacteria and fungus. They stopped paying their monthly maintenance fee. The cooperative board sued them in September 2005, and they counterclaimed a few months later. The award in 2077 Tenants Corp. v. Yagoda will force the board and its management company to return the maintenance fees the Yagodas did pay, to cover the cost of repair to their personal property, to pay each of them $50,000 for damages from exposure to toxic substances - and to buy their penthouse at a $1 million-plus price. The Yagodas were represented by Terry Paul Bottinelli for Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz in Hackensack. David J. Byrne of Stark & Stark in Lawrenceville stood for the cooperative board. Superior Court Judge Robert C. Wilson presided at the four-week trial. 11-6-07

[admin]

In last Thursday’s Board meeting, Steve Braitman motioned for the Board to revisit Buckalew’s interpretation of the Governing documents that deal with the GTCA’s responsibility to fix water damage to an owners unit caused by the common elements. Mr. Braitman disagrees, as many owners do, with Buckalew’s interpretation and the prior Board’s agreement and acceptance of his interpretation. It is clear to most owners that the governing documents clearly state that the GTCA is responsible to fix the damage they cause.

Mr. Braiman’s only opposition was Slava Lerner. This “reform” candidate and director who has been preaching for the last two years that we should replace the association attorney and who fought hard to remove some of the prior Board members, now agrees with Mr. Buckalew and the prior Board’s interpretation which in simple terms means; if the GTCA causes thousands of dollars of water damage to your apartment, you will be responsible to fix the damage. What he is basically saying in this video clip is; why should we revisit the water damage issue when our Attorney, the person he wants replaced, and the prior Board members, Ellinger, Bolasco, Haase and Blank, the Board members he helped remove, have already established that the sky is not blue, it’s pink!

Marika Bethel’s apartment was damaged by the GTCA’s negligence. She has documents that show the GTCA admitting they caused her damage but the Board, prior and current, refuses to fix her damage. So why did we go to the trouble of removing the prior Board members when it looks as though nothing has changed except the faces? The new face of Martha Norget and Allan Ellinger looks to me like Slava Lerner, traitor to the people who helped get him elected.



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