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Balcony imbroglio roils some condo owners

Partial reprint

posted 2/15/11 by Pelican Paulie

Controversy has erupted over construction of two balconies at Torre Esmeralda Condominiums last June that were approved by and built for two leading members of the condominium’s homeowners association who claimed they had the consent of the then condo administrator and the Colonos.

But this week, Colonos general manager Armando Rincon and former condo administratorOscar Calderon denied claims they approved the construction that earlier triggered a torrent of concerned questions from owners and a trickle of vague answers from the vigilance committee during the condo association’s annual meeting Feb. 1. and thereafter. The denials by Rincon and Calderon stem from statements by Don Papa, president of Esmeralda’s HOA, and Dennis Burris, of the 4-member Vigilance Committee, that they had secured their permission to build the balconies.

“Let them show me a paper with my signature on it,” said Rincon when asked about the alleged approval. “The Colonos has no standing in these private property construction matters to begin with,” he said, indicating it isn’t  necessary to get a Colonos sanction for such work. He explained the only involvement the Colonos had in June was its discovery that workers on the balconies were evidently smuggled past security into the resort area without acquiring and paying for identification required of all workers to maintain security. He said work was stopped then allowed to resume on the balconies after the identification issue was resolved. “The Colonos had no involvement with the actual construction.”

Papa and Burris have repeatedly told inquirers, vocally and in writing, that they had the blessings of Calderon and the Colonos in addition to the HOA lawyer and their own consentas members of the Vigilance Committee. They in essence condoned their own constructionplans without any peer review by owners, which, says one perception of Quintana Roo state law, requires approval by 75 percent of the association voters at an assembly. Some of the owners have labeled the actions of Papa and Burris as a conflict of interest, while Papa and Burris believe they were empowered to make such decisions by voters at last year’s association meeting. Some owners said they also sense a perception of stealth in having the balconies built in June when most owners are absent. Papa and Burris say the work was done in the open.

What angers some owners, as expressed in a flurry of e-mails following the annual meeting, is the claim by Papa and Burris that the balconies have not added living space to the units and therefore will not not be charged an expanded maintenance fee or, it follows, municipal taxes. Papa and Burris claim the Mexican way of totaling living space is different than in the United States. They say they have already been paying an expanded fee for the “empty space” between their ground floor terraces to their second floor roof line. This claim is countered by Calderon and other officials in the resort who say the balconies add to living space and should figure into the maintenance fee and the legal living space of the building. Calderon also quoted from superseding Q. Roo condominium law noting the requirement for peer review of the balcony plans prior to construction.

Papa and Burris say they have discussed these matters with the HOA lawyer Alberto Avelaiswho, they say, approves of their actions.  In addition, Alicia Venturi, among others, an owner and architect, has fired a number of e-mail questions at Papa, as president, and copied them to other owners, wanting to know, for example, who among the four vigilance committee members voted for the balconies, whether an actual vote was taken and minutes recorded; whether engineers were hired to assure structural integrity; whether municipal permits were obtained if required and other pointed detail questions.The vigilance committee says it answered the questions at the annual assembly and further inquiries should be made to the HOA lawyer, since the committee members are not experts and don’t have all the answers.

Calderon said there is a long history of the balcony affair between him and Burris that began before Burris was on the vigilance committee. Calderon said Burris, and Burris concurs, had originally started to construct a wooden balcony and was ordered to stop by Calderon, setting off a longstanding tense relationship that has, Calderon believes, figured into his provoked resignation as administrator on Feb. 1.

Despite the mix of strong feelings over this entire affair, all four volunteer, unpaid vigilance committee members were re-elected at the annual meeting (there were no other nominations) and applauded for leading the association into its own regime, more oversight of finances and other progress that, say Papa and Burris, required many man-hours of their vacation and away time dealing with association issues.

The balcony affair has apparently damaged the credibility of the vigilance committee among some owners and left the situation at an impasse. Answers to satisfy aggrieved owners and/or vindicate the vigilance committee may never surface unless investigators from the state and the municipality intercede with determinations that carry the force of accurate, written, official law. There are four other owners waiting in the wings to construct balconies and it would serve the condominium community well if the required processes were fully understood and followed.

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