Submitted by Grett8 on Mon, 05/30/2011 - 07:52
Posted in
I remember when I was a student and renting an apartment in Boston my roommates and I once withheld rent from our landlord to get him to make repairs to our stove and water heater. Now, a bit older, my wife an I own a condominium unit in Massachusetts that suffered water damage to the ceiling in our living room as a result of a leak in the roof that the condominium association has, to this date, refused to adequately repair. So my question is whether we can withhold our condominium fees until they make the repair? Thanks for any help you can offer.
Withholding condominium fees
No, unlike in landlord and tenant situations, where the law specifically allows the withholding or rent, Massachusetts law requires condominium owners to pay their fees, even if they have a legitimate gripe about the behavior of the association and even if they feel the fees were not lawful. (The statutory law in Massachusetts requires owners to pay their "“lawfully assessed fair share of common expenses.”)
If you're interested in reading more about this issue, check out the 1984 Massachusetts Appeals Court decision of Blood vs. Edgar’s Inc., in which the court stated: “From the date of this opinion, a condominium owner may not legally challenge the legality of a common expense assessment by refusing to pay it(.)” In the Blood case, the Court recognized that the plaintiff had an excellent argument regarding the legality of the fees in question. Nevertheless, the Court held that, although unit owners are free to challenge a fee or the legitimacy of that fee, they must pay it first, and then challenge it in a separate suit (not in a counterclaim to the association's suit to collect the fees).
If you have attempted to get your condominium association to make the repair and it continues to refuse, it may be time for a sternly worded letter from a Massachusetts attorney. Good luck.
The Editor is corect. Both
The Editor is corect. Both state law as well as Court decisions have confirmed that a unit owner may not withhold the payment of the common area charges. These Courts have recognized that just as a homeowner can not withhold their payment of taxes, a unit owner must pay his common area charges without deduction. The unit owner must pay the common area charges under protest and then is free to challenge the actions of the Board. A common mistake unit owners make is attempting to protest a Board's action by refusing to pay common area charges. This can leasd to devastating results because Board's have considerable power to collect unpaid common area assessments. The amounts which are not paid constitute a lien on the unit as well as a personal liability of the unit owner. In addition, all costs of collection, including the attorneys fees, are assessed against the unit owner. Thus, not only can the association obtain a judgment against the unit owner for the unpaid amounts, but the association will also obtain a judgment for the attorneys fees and costs incurred in collecting these amounts. In many cases, these amounts can be more than the unpaid common area charges. If the unit owner continues to fail to pay, the association maintains the power to foreclose on the lien which results in the unit owner losing title to the unit. In fact, the association's lien has priority to the first mortgage for six months of common area charges and legal fees. This means that the association can foreclose on the unit and gain title to the unit free of the mortgages. The main point is that the non payment of common area charges often leads to added expense to the unit owner and, in some cases, to the loss of the unit.
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