Can we talk?
I’m asking you, the condominium owner who thinks your common area
fees are too high and so is refusing to pay them. And you,
too, the unit owner over in the corner with the Dalmatians you
assumed somehow weren’t included in the “no pets” provision of
your condominium’s bylaws.
I get calls about
you and owners like you all the time, from the condominium board
members and property managers you are suing, or who are suing you.
But perhaps if we can spend a few minutes talking calmly, without
shouting and without filing legal briefs, maybe I can explain some
of the details of condominium living that you, and many of your
neighbors, don’t entirely understand.
Common Charges
Aren’t Optional
Common area fees
and special assessments are a good place to start. The law
in this area is about as clear as the law can be. You have
to pay your share of the common area expenses every month and
you’re obliged to pay a special assessment if the board levies
one. If you think the fees are too high or question the need
for an assessment, by all means request an explanation and insist
on reviewing the documentation. But even if you want to
question the assessment, you cannot legally refuse to pay it.
Common fees and assessments are like your taxes; you have the
right to challenge them, but you have to pay them first. If
you don’t, the condominium association can assess late fees and
interest; and if the board has to hire an attorney to collect, you
are going to be responsible for paying the association’s legal
expenses and court costs as well.
Although all of
this is spelled out in the condominium documents you reviewed (you
did review them didn’t you?) before you purchased your unit, you
still don’t accept these requirements or don’t believe they apply.
Even worse, although you wouldn’t go to a foot doctor for an
earache, you hire attorneys specializing in areas other than
condominiums, who really don’t understand the condominium
framework, and who file futile suits on your behalf. The end
result is always the same – you amass whopping legal bills (your
own and the association’s) plus interest and penalties on top of
the back condominium fee or assessment, which at day’s end, you
still have to pay.
The Association Is You
Unit owners often
act more like apartment tenants, assuming that they have the same
right to withhold condominium fees from the association that
tenants have to withhold rent from the landlord. The thing
is, you’re not a tenant and the condominium association isn’t your
landlord; it’s a representative of all the unit owners, including
you. If you withhold your common area expense payment from
the association, you are really withholding it, at least partly,
from yourself. Without the common expense payments the
association cannot operate or provide the services.
This us against
them mentality doesn’t make much sense. The board members
aren’t the evil empire; they are owners, just like you. They
have to pay common area expenses and if they approve a special
assessment to finance an unanticipated and un-budgeted expense,
they have to pay that, too.
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Talk about having
your cake and eating it, too! Everyone seems to like the
idea that the condominium association, or the management
company it hires, will handle all the administrative details,
pay the bills, coordinate maintenance and repairs, and
generally make sure everything runs smoothly. But hardly
anyone likes the notion that the board members can make
decisions that affect them. Unfortunately (or
fortunately), that is the essence of a representative
government, which is what a condominium is. And the
failure to grasp that central point is responsible for a lot
of unnecessary conflict in many condominium communities. |
What Rules?
Rules and
regulations also rank high among the sources of condominium
conflicts. Unit owners simply don’t like the idea of
condominium rules, or don’t think the rules should apply to them.
How else to explain the number of owners who profess to be shocked
to discover that they can’t operate a home-based automobile repair
shop from the condominium parking lot, or stunned to learn that
their pet boa constrictor falls under the category of pets that
are not allowed? The failure to review the rules and
regulations before buying, or the refusal to believe or accept
them, also explains why so many new owners arrive with three cars
in tow, even though the documents state clearly that each owner is
allowed only one parking space. Do they assume no one will
notice the extra vehicles, or object when they occupy spots
belonging to someone else?
| Although the
tenant mentality surfaces when it comes to repairs (someone
else should make them) and common area fees (you shouldn’t
have to pay them), when it comes to rules that govern what you
can and can’t do to your unit, the ownership mentality takes
over and the “home is my castle” debate begins. You can
do pretty much anything you want inside your condominium unit
castle, but if you want to change the exterior, even a little,
you probably will have to get prior permission from the
board. And if the board doesn’t like the idea of a mural
depicting the Battle of Gettysburg, you won’t be able to paint
it on the outside of your garage door. You may own the
door, but the association controls what goes on it.
Understanding and accepting this reality can eliminate the
dispute.
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The Noise Next Door
Noise is another
problem that bedevils condominium owners and the governing boards
that often find themselves in the middle of noise complaints.
If you are sharing walls with your neighbors, odds are you are
going to hear something of what goes on in their units. Even
the best soundproofing won’t block every sound. But a
strange phenomenon afflicts many condominium owners; they become
acutely and sometimes irrationally sensitive to noise.
Noise complaints
often reflect, in fairly equal measure, a lack of tolerance on one
side and a lack of consideration on the other. But sometimes
noise levels really are excessive. In those cases, it helps
if the affected owner can get some independent verification of the
problem – ideally, another owner who will confirm that the sounds
coming from above or below are not just noticeable but unbearable.
Although condominium boards usually try to stay out of these
neighbor-vs.-neighbor disputes, sometimes they can mediate
effectively and where necessary, they can intervene officially –
imposing fines, for example, if noisy owners refuse to reform.
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In one recent
situation, an owner insisted on using her trampoline every
night, starting around 10 p.m., much to the dismay of her
downstairs neighbor, who did not appreciate the sound effects.
When polite requests, mediation, and fines all failed, the
association got a court order requiring the owner to stop
using her trampoline inside. |
That is an
extreme example. In most noise complaints, the problem is
not too much noise but too little tolerance. You can
reasonably insist that a neighbor not play rock music at full
blast at midnight or that an insomniac refrain from vacuuming or
sawing wood at 2 a.m. But it is not reasonable to complain
if someone who works the night shift showers regularly before
dawn. There is a difference between excessive noise and the
sounds of daily living – an important distinction that too many
owners fail to make.
Hope for the Future?
I had thought
that noise disputes along with the other problems I’ve mentioned
would disappear, or at least lessen over time, as people became
more familiar with condominiums. But I continue to see the
same issues, the same misunderstandings, and the same complaints
in each new generation of condominium buyers, and I see them in
all kinds of developments and among all kinds of owners. The
issues I’m describing are universal and seemingly intractable in
the condominium world.
I don’t think the
situation is hopeless, however. Progress is certainly
possible, but it requires good communication and a willingness to
appreciate the community association concept. That means
understanding and accepting the requirements outlined in the
association documents, the applicable law, and the role and
responsibilities of the board. They say seeing is believing,
so maybe the best solution is to require every unit owner to
serve at least one term as a member of the board!
March 02
LEGAL BRIEFS
Zero Tolerance.
The Supreme Court, almost without
dissent, recently upheld a “zero tolerance” policy on drug use in
public housing, supporting the evictions of four elderly public
housing tenants in Oakland, CA, because members of their
households had been convicted of using drugs. The policy at
issue allows local housing authorities to evict tenants whose
housemates or guests engage in drug-related activity on or off the
premises, whether or not the tenant was aware of the activity.
Responding to complaints of crime in public housing projects,
Congress passed the one-strike law in 1988. The federal
government's lawyer, assistant to the solicitor general James
Feldman, told the Supreme Court that 700 drug-related arrests have
been made in public housing projects since that law took effect.
The four
tenants in this case invoked an "innocent tenant defense" against
being evicted because household members were using drugs.
One of the defendants, a 63-year-old great-grandmother (Pearlie
Rucker), was evicted when her mentally disabled daughter was
caught with cocaine three blocks from the apartment she shared
with her mother and other family members.
Faced with that fact situation, U.S.
District Judge Charles Breyer, who sits in the Northern District
of California, issued a preliminary injunction against enforcement
of the law. The 9th U.S. Circuit Court of Appeals later
upheld Breyer’s decision and struck down the law. That case
and a similar one then went to the high court.
During the oral arguments, Supreme
Court Justice, Sandra Day O’Connor, called the law “draconian.”
But that didn’t prevent Justice O’Connor from joining seven other
justices in an 8-0 majority upholding the rule. (Justice
Stephen Breyer recused himself from the case because his brother
Charles was the lower court judge who issued the preliminary
injunction.) The court found the one-strike policy constitutional
and consistent with similar policies written routinely into rental
leases to protect tenants and the surrounding community from the
byproducts of illegal drug activity. Although admittedly dismayed
by the policy’s impact on tenants like Rucker, O’Connor agreed
with the majority that the innocent tenant defense “was
manufactured by the 9th Circuit," and had no basis outside of that
court’s legal imagination.
Religious Orders. The homeowners said they had a
covenant with God, but the judge said the homeowners association
could still enforce its rule prohibiting them from posting
religious signs outside of their homes. That District Court
decision, in a Texas case, will allow Ivy Raschke, her son, and
daughter, who all own houses in the same subdivision, to post
small signs for short periods, no more than twice each year.
The plaintiffs had accused the association of religious
discrimination for refusing to permit their signs proclaiming,
“This is a house of prayer.” But the association insisted
that it was simply enforcing a ban on advertising of all kinds.
The earlier signs had included the telephone number of a religious
group. “It didn’t matter whether it stated house of
prayer or Tom’s Flower Shop,” Chris Branson, the association’s
attorney, told reporters. He indicated that the association
was satisfied with the decision, which requires the plaintiffs to
pay the association’s court costs and attorney’s fees.
Agency
Relationship. A landlord who allowed a tenant to
approve new residents when vacancies occurred, established an
agency relationship with that tenant and incurred liability for
his discriminatory actions, a U.S. District Court in Massachusetts
has ruled. The suit arose when the plaintiff, Kriti Arora,
applied to rent a room in the six-bedroom house the defendant
(Linda Slakey) rented to unrelated individuals. Although
Arora met the traditional criteria for tenants (she was a
vegetarian and a non-smoker), one of the tenants (Norris) voted
against her, saying he did not want to live in a house with three
Indian women. Arora is Indian, as were two of the other
tenants at the time.
Arora filed suit
under both the state and federal Fair Housing Acts and the Civil
rights Act, claiming that Norris had acted as Slakey’s agent.
Slakey contended that Norris was not her employee and was not
acting in any official capacity on her behalf. But the court
found evidence to the contrary. Over a five-year period
involving some 20 vacancies, “Norris and the other tenants were
actively involved in posting the advertisements and selecting each
new tenant who moved into the residence,” the court said.
“Moreover, no candidate was selected without the express approval
of each tenant, and Slakey never rejected any of her tenants’
selections, although the lease expressly reserved her right to do
so.” The court also concluded “after considerable research”
that the answer to the agency question would be the same under
both the state and federal Fair Housing laws.
A
Bad Idea.
A New Jersey Superior Court blocked the planned development of a
supermarket and affordable housing complex, because he determined
that the scope and size of the project would overwhelm the 10-acre
site and the surrounding area. “A 45,000 square foot
supermarket by itself is eminently appealing,” Judge Jonathan
Harris wrote. “Likewise, even 272 residential units [alone]
on the same 10 acres would probably neither contribute to sprawl
nor visit a substantial negative effect on the zone plan and
neighborhood scheme….[But] the negative effects of the specific
mixed-use proposal are staggering.”
The plan called
for construction of a six-level, 500-car parking garage plus 250
above-ground spaces to serve the supermarket, which would operate
around-the-clock. Mincing no words, Judge Harris described
the project as “so overwhelmingly grotesque from a planning
perspective, it immediately calls to mind the admonition not to
stuff 50 pounds of flour into a five-pound sack.”
| Tree
Wars. A group of South Florida homeowners have
won class action status for their lawsuit challenging a state
program to eradicate “canker” in trees by chopping down
healthy trees to prevent the disease from spreading.
Specialists argue that this is the only way to prevent the
disease, which mars fruit and causes it to fall prematurely
from infecting healthy trees. But the homeowners argue
that destroying healthy trees amounts to taking private
property for a public purpose, and the state, thus, should
compensate homeowners for their losses, which the plaintiffs
estimate at around $250 million. |
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