Does Your Condominium Have a Jersey Barrier Guy on Speed Dial? New Hampshire Court Allows Condominium to Terminate Privilegesfor Non-payment of Common Expenses

Published on: May 1, 2010

In an unreported Trial Court Decision, a New Hampshire Superior Court Judge refused to require a condominium board to remove a jersey barrier it had placed on a unit owner’s driveway, which in turn prevented him not just from using his driveway, but also his garage. The condominium board, fed up with the unit owner’s refusal to pay his monthly common expenses for over two years placed a jersey barrier in front of the unit owner’s driveway, preventing him from accessing his unit and/or garage via vehicle. Previously, the Condominium Board had towed the vehicle as it sat in the driveway and terminated pool and clubhouse privileges, to no avail.

In calling their jersey barrier guy, the Condominium Board relied upon N.H. RSA 356B:46(IX), which allows a Condominium Board to terminate the delinquent unit’s common privileges and cease supplying all services normally supplied or paid for by the Condominium Association, after first giving thirty (30) days notice of its intent to do so both to the unit owner and to the first mortgagee of record on the unit. In this particular case, the driveways were common area of the condominium (which is somewhat rare). Accordingly, the Condominium Board reasoned that it could terminate the unit owner’s common privilege to use the driveway and that the only effective way to do so was a jersey barrier.

The Unit Owner sued the condominium board and its property manager in Hillsborough County Superior Court, alleging all kinds of mischief and initially secured an ex parte restraining order requiring the condominium board to remove the jersey barrier. However, once the fact and law were presented to the Court, the Court changed its tune and allowed jersey barrier to remain absent payment of all assessments. The Court’s three page Decision, reasoned that the unit owner was delinquent and that the remedy undertaken by the condominium board, as draconian as it may seem to some, was specifically provided for in the New Hampshire Condominium Act.

The case was litigated and argued for the condominium by Paul Baressi of MEEB.

What the case really underscores and fails to mention is that remedies and litigation like this are required in states like New Hampshire, which lack easier statutory remedies for the collection of condominium assessments, such as a condominium superlien. However, with the help of CAI’s New Hampshire Legislative Action Committee, of which MEEB’s Janet Oulousian Aronson is a member, there is a superlien bill currently pending in the New Hampshire Legislature. If passed, New Hampshire would become the seventeenth State (and 4th New England State-MA, RI, CT) to pass condominium superlien legislation. Until then, add your jersey barrier guy to your speed dial, as delinquent common expense assessments continue to be a problem in New Hampshire during the current economic climate.

If you would like more information about the pending NH superlien legislation please contact me at eallcock@meeb.com or Janet Oulusian Aronson at jaronson@meeb.com or Claudette Carini at cacarini@caine.org.

[Court Decision]