This Week's Q & A

Q: About 10 years ago, when we were young and naïve, my husband and I purchased a duplex condominium. The other unit was sold recently to a single, middle-aged woman. Since she moved in, the new owner has: Smashed into the asbestos-sided house wall abutting her deeded driveway, shattering the shingles and taking down the downspout; crashed twice into a neighbor’s fence abutting the same driveway; destroyed any semblance of landscaping on her side of the yard; and put a hideous ancient, rotting vinyl chair on our front porch, surrounding it with an assortment of dead plants, the aforementioned downspout, and a rug which has been “airing” for six months. We’ve asked her to repair the wall, which she has thus far refused to do; repaired the neighbor’s fence twice, at our own expense; and replaced a fence and gutters, again, at our own expense, even though these, technically, are common area components. (She says those repairs weren’t necessary.) We’ve also asked her to contribute to an account to cover major repairs, which we know will be needed over the next several years, but she has ignored these requests, as well. Our condominium documents state that in the event of a dispute between the association trustees (the other owner and us), each shall choose a lawyer, and those two lawyers will select a third lawyer to mediate. If I could afford lawyers, I’d just move. What alternatives do we have? Can we sue the woman, and attach her condominium, as a contractor would if his bill wasn’t paid? And if I do file a lien, can I force the sale of her unit if she refused to contribute her share of the common expenses?

A: As a first step, you might want to encourage this woman to take driving lessons; it sounds as if the hazards she poses aren’t limited to the structure and value of your duplex. But you’ve asked about the condominium issues, so let me concentrate on those. The situation you describe underscores a reality known to the attorneys who deal with condos and to the owners, like you, who have purchased them: Very small condominiums often don’t work very well. The issues that can make the condo experience challenging for a large association are exacerbated when there are only a few owners are involved. Many attorneys who specialize in condominium law tell me they counsel clients considering a purchase in a small condominium community to think carefully about the many potential problems they entail – problems very much like those you have encountered. The condominium model, which is a representative government structure, “essentially breaks down,” one attorney told me, if you’re dealing with fewer than seven or eight units.

The remedies available to you are essentially the same as the remedies available to a larger condominium, only more difficult and more expensive to pursue. You can go to court, argue that the other owner is violating the condominium rules and regulations and failing to fulfill her financial obligations as an owner and her fiduciary obligations as a trustee. If the court agrees, you can get a judgment against her, probably order her, at a minimum, to pay her share of expenses and repair bills; whether the court also would share you concern about the ugly, orange chair, is less certain.

Bear in mind, though, that the other owner undoubtedly will argue that the repairs aren’t essential, and, since she represents 50 percent of the trustees and 50 percent of the owners in your condominium, her views will have to be considered. If the court does issue a judgment in your favor, and if she doesn’t comply with the order, you can file a lien against her unit and, ultimately, move to force the sale of her unit to satisfy the obligation, recovering, in addition to the sums assessed, the cost of your enforcement actions.

Of course, you will have to pay all of those (potentially considerable) legal costs up front, which may make this course of action less than appealing. (If the costs are under $2,000, small claims court may offer a less expensive legal remedy.) Still, the prospect of suing your downstairs neighbor and fellow condominium trustee in any venue has to be less than enthralling. Certainly a law suit won’t do much to improve your relationship or to encourage the spirit of cooperation needed to make a condominium function smoothly.

Your condominium documents suggest a different and probably preferable route – mediation. In fact, you indicate that the documents specifically require you and the other owner to submit any disputes to mediation and outline a procedure for selecting a mediator. This clearly is the course of action you should pursue, not only because your condo documents mandate it, but also because mediation offers a less expensive and potentially less fractious means of resolving your differences. If this doesn’t work, then you have only two options: (1) File suit (or threaten to do so); (2) Make the best of the current situation, and hope the other owner sells her unit before she drives you crazy, drives the value of your property down – or both; or (3) Sell your own unit if you can, and, if you buy another condominium, learn from this experience, and purchase a unit in a larger development next time.