FILING ACTIONS TO RECOVER UNPAID CONDOMINIUM COMMON EXPENSES IN REM

Published on: March 13, 2013

Pursuant to G.L. c. 183A, §6(a), condominium common expenses are to be assessed against all units in accordance with their percentage interest in the condominium’s common areas, and the “organization of unit owners shall have a lien on a unit for any common expense assessment  levied against the unit from the time the assessment becomes due.”

G.L. c. 212, §3 provides that actions may proceed in Superior Court only if the amount in controversy exceeds $25,000.00.  In the past, Superior Court judges have relied upon this statutory section to dismiss cases filed in Superior Court to recover unpaid condominium common expenses totaling less than $25,000.00. However, in the action styled: Residences at Cape Ann Heights Condominium Association v. Halupowski, et al., 2012-P-1689, the Massachusetts Appeals Court cautioned that this practice of dismissing suits where the amount in controversy is less than $25,000.00, is not always proper.

To that end, in the Halupowski case, the Appeals Court reiterated that under G.L. c. 183A, §6(c), an association has two (2) options through which to proceed to recover unpaid common expenses, being an action in personam against the unit owner, or an action in rem against the unit itself. Actions brought in personam seek to recover money damages from the unit owner directly. In actions brought in rem, the association has to establish the amount due from the unit owner, but unlike the action brought in personam where the ultimate goal is an order from the Court that the unit owner pay the association directly, the ultimate goal in an action brought in rem, is an order from the Court authorizing the sale of the unit for the unpaid common expenses.

Accordingly, as the amount in controversy requirement dictated by G.L. c. 212, §3 does not apply to in rem actions brought to recover unpaid common expenses where the ultimate goal is an order of sale of the unit, associations are not limited to filing actions to recover unpaid common expenses totaling less than $25,000.00 to district court only.