Published on: March 22, 2002
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.
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.
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.
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.
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!