Condo Media - December 2016 - 47

I explained to the board that this
particular provision does not require
the seller to provide that information.
That would be up to the board to visit or
contact the new owner upon the transfer
of title. While requiring the identity of
the new buyer and the tentative closing
date is appropriate, in my mind, providing bank information on the certificate
is strictly voluntary and should not be a
reason for delaying the issuance of the
Certificate. More importantly, unreasonably or unjustifiably (as in the case here)
withholding the Certificate would be
grounds for a claim of damages under the
Condo Act. Fortunately, the board relented and processed the Certificate. The
board took my suggestion and requested
the information under separate cover.
The second incident: A unit owner
had contracted to sell his unit. A few
months prior, he had made unauthorized alterations to the common element
perimeter wall outside of his unit. Specifically, he installed a gas fired fireplace
that needed to be vented outside. The
work was completed. No permission
was sought or given for the work, no
permits, no proof of insurance, and no
pre and post inspections occurred. After
the work was completed, it appears the
vent exhaust is causing the vinyl siding
to stain and discolor. Not a problem
now, but sure to be one in the future.
The association tried to hold up issuing the Certificate until such time as the
permit was produced and the system inspected. Fortunately, I was able to work
with the seller and explained the issue.
He produced a permit and a certificate
of inspection to satisfy the health and
safety concerns.
Setting aside the issue of the aesthetics of an outside vent, there will be an
issue as to how to treat the possibility
that in the future this unit owner would
be called upon to replace or reimburse
the association the cost of replacing
the vinyl. Typically, had this been done
earlier and not at the eleventh hour,
I would have had the unit owner sign
a maintenance agreement wherein
the unit owner agrees to maintain the

vent. The agreement would run with
the land. But as the closing was about
to take place, obviously, it was too late
to enforce that requirement or even to
have a covenant enforcement hearing to
levy fines and other requirements.
I advised the association that while it
would not be possible to withhold the
Certificate as it wanted, the new condominium owner is certainly entitled
to know that in the future he would be
required to fix the vent. I accordingly
wrote a cover letter separate and apart
of the Certificate to the selling unit
owners detailing how their buyers
would be responsible for the work in
the future. In this manner, the burden
would be on the seller to disclose this
to the unit owner coming in. Moreover,
I advised the brokers as well in order
that all parties would be put on notice
of a future requirement. In this case the
Certificate was issued and the unit own-

ers purchasing were indeed made aware
of the issue and were more than happy
to assume the obligation of maintaining
the vent post-closing. Another lesson
learned here is making sure that the
association immediately addresses covenant enforcement issues as they occur.
In both instances above, I advised the
association against overreaching on the
Resale Certificate, and instead focused
on its true intent: disclosure beforehand
of financial issues, and not stretching
the Certificate into something it's not-
a lien to either secure information improperly requested or to secure action
not timely requested or justified.

n FRANK A. LOMBARDI, ESQ., CCAL,
IS A PRINCIPAL WITH THE LAW
FIRM GOODMAN, SHAPIRO &
LOMBARDI, LLC.

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December 2016

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Condo Media - December 2016

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