Published on: April 22, 2019
By Richard Brooks
Condo owners usually understand that they give up some of the rights enjoyed by single-family homeowners. The right to paint their front door any color they choose, to play their music at any decibel level they choose, and even to smoke in their residences, for example, all may be prohibited by condo associations rules or covenants. But condo owners pay property taxes, just like single-family homeowners, and they expect to receive the same municipal services. But this is not the case in many condominium developments, where community associations are required to provide for their members services the city or town provides to owners of single-family homes.
Trash collection, snow removal, maintenance and repair of streets and sidewalks are on that list, but they aren’t the only examples of differential treatment. Some communities charge condominium owners higher rates for water consumption as well. And equal access to government services isn’t just a local issue. The Federal Emergency Management Agency (FEMA) bars federal assistance to community associations to repair damage to common areas caused by storms or other natural disasters.
Equity arguably requires equal treatment for condominium owners, whose taxes finance services they don’t receive. And that argument has, in fact, persuaded approximately 40 Massachusetts cities and towns to provide residential trash services they had previously denied to condo communities. This has been a cause I have pursued for the past 25 years, helping condo associations successfully fight city hall in their communities.
Municipalities fall into one of four categories:
- Those that provide trash collection to all homeowners, including owners of condominiums;
- Those that don’t provide the service to any homeowners;
- Those that require all homeowners to pay a fee for the service; and
- Those that provide the service to single-family owners only.
Municipalities that don’t provide trash services or provide it on the same basis to all homeowners are treating condominiums fairly. It’s with communities in the fourth category that the fight for equal treatment has been waged.
A Difficult Fight
It’s not an easy battle and it’s not one all condo associations want to fight. It requires organization, research, coordination, lobbying, and a considerable investment of time and energy. Some are willing to fight for the principle that condo owners should be treated fairly; others don’t think the potential savings justify the effort. After hearing my presentation on trash collection, one owner noted: “We’re paying about $15 a month for that service. We’re fighting for that?”
Those who fight don’t always win. We lost a close vote in one town, when a city councilor who was otherwise sympathetic, explained: “We just closed one of our elementary schools because we couldn’t afford to sustain it; how can we divert money to pay for trash collection at condominium communities?” We knew we were dead in the water there.
Some associations want to sue cities or towns that aren’t providing equal trash service to condo owners, but that strategy isn’t likely to succeed – partly because few associations are willing to absorb the litigation costs, but mainly because the legal arguments aren’t strong. Condo ownership isn’t a protected class, like religion or marital status, discrimination based on which is prohibited by law. Local governments only need a rational basis for their disparate treatment of condo owners (budget constraints, for example) and courts aren’t likely to challenge the justifications they cite.
A federal district court in Ohio did rule in 1995 that it was unconstitutional for a town to deny equal services for condo owners. That decision looked like ‘game, set and match’ for condominiums in the parity battle and we quickly sent a letter to Massachusetts cities and towns calling it to their attention. One community, in fact, decided immediately to begin providing trash services to condos, because it appeared that might become a legal requirement. But a few weeks later, a federal Appeals Court decided that withholding services from condos because of the budget impact was “rational and not discriminatory,” which pretty much erased the leverage the first decision had provided.
Following a different strategic path, condo owners in New Jersey persuaded the state legislature to enact a law requiring municipalities to provide a range of services – including trash collection and snow and ice removal – to common interest communities “in the same fashion” that they provide those services to single-family homeowners, or to reimburse condo associations for those costs.
We actually sought legislation in Massachusetts more than 20 years ago making it mandatory for communities to provide trash collection services on an equal basis for condo associations and came close to securing it, until a legislator pointed out that Proposition 2-1/2 required the state to pay the cost of any local services it mandated. The compromise was to insert language specifying that municipalities had the option of providing the service to condos, but we decided that was worse than having no legislation at all. Given the option, most communities would not provide the services; without legislation making the equal treatment optional, condo associations at least had a chance of persuading local officials that fairness required it.
Community associations have won more of those battles over the years than they have lost – partly because the fairness argument resonates with local officials, but also (and maybe more so) because elected officials have recognized that the large number of condo owners who appear at hearings are voters, who could vote against them in the next election.
Clearing the Roads
That political strategy should be equally effective in seeking other municipal services, such as snow removal and street maintenance and repair, and even street lighting, but the fairness argument doesn’t apply as clearly in those areas.
Take snow removal, for example: Municipalities don’t plow private streets and don’t clear snow from homeowners’ driveways and walkways. If you show us a town that is providing those services, we’ll show you a town that has no idea it is doing so and will stop instantly. Also, while many condo associations might like to eliminate their snow removal costs, most won’t want to give up the control they have over contractors they hire directly. If the contractor you hire doesn’t provide the service you want, you can hire a different vendor. If the city plow doesn’t clear your streets until noon, you can complain about the service, but you can’t replace it.
Snow removal control aside, some associations might consider asking their town to “take” the community’s private roadways and convert them to public ways in order to shift hefty street maintenance and repair costs from the association to the local government. That is not likely to be a viable option, however. Cities and towns aren’t required to assume responsibility for private roads, and most won’t voluntarily accept that expense. Also, few roadways in condo communities meet the size requirements for public ways, so municipalities would have to upgrade the roadways in order to take them, adding that undesirable expense to the maintenance and repair costs they don’t want to absorb.
Tiered Water Rates
While the fairness argument doesn’t apply as clearly to most services as it does to trash, it would seem to provide persuasive grounds for challenging the tiered water rates some communities have embraced, basing the rate charged on the amount of water consumed. The avowed purpose of the policy is to encourage water conservation, but its effectiveness is questionable and its impact is unfair.
Under a tiered structure, a 100-unit condominium would be in a higher rate category than a single family home, because those 100 units collectively would obviously consume far more water than any single-family household. But condo owners don’t use more water per household than single-family owners; they pay more for their water only because they are part of a multi-family structure that is billed at a higher rate.
The inequitable result: “Aunt Sadie” living in a $150,000 condo unit would pay more to drink a glass of water than the owner of a $2 million home. That argument persuaded Framingham to rescind its tiered rate structure when we challenged it on behalf of an association client more than 20 years ago, but it’s unlikely to be as successful today. Many condominium communities have converted to individual meters, so owners aren’t billed at the multi-family rate. Most of the buildings still on a single meter are high-end downtown high-rises, and the owners paying higher rates are more likely to be millionaires than Aunt Sadies living on fixed incomes.
The Community Associations Institute (CAI) has been trying for several years, thus far without success, to persuade the Federal Emergency Management Agency that community associations should be eligible for disaster assistance. Under FEMA’s policy, condo owners individually can receive aid to repair damage to their units, but community associations, can’t get funding to repair damage to common areas that are owned collectively by unit owners.
When the Community Associations Institute (CAI) began to push again for assistance after Hurricane Sandy, Congress directed FEMA to review its policy. That review reaffirmed the agency’s position that aid for community associations isn’t allowed because the Stafford Act , which created FEMA, does not specifically authorize the assistance.
Although federal legislation providing that authorization has failed repeatedly to get out of committee, its prospects are much better now, because more legislators understand that FEMA’s policy is illogical and unfair. It isn’t opposition that is blocking the bill now; it is political paralysis. When the political environment in Washington improves, so will the prospects for winning approval of this legislation.
Call Richard (781-843-5000) or e-mail him (firstname.lastname@example.org) if you want more information or advice on securing municipal services for your community association.