Condo Fees In Massachusetts: You Have to “Pay to Play”
Condominium ownership is, in theory, a democratic form of existence. The common areas and facilities—usually the structure of the building(s), roof, grounds, central systems, etc.—are controlled by a democratically elected board of trustees. The trustees also have the right to levy “special assessments” for capital projects, and even fines for violations of rules and regulations. Where democracy can appear to go off the rails, however, is when a unit owner believes that the trustees have become dictators by approving assessments or fines that an owner believes to be unreasonable.
A recent example is illustrative of my point. A Massachusetts condominium owner recently contacted me about a notice of a fine he received from the trustees for failing to provide the trustees with the name and contact information for tenants who were renting his unit. As the rules and regulations of the condominium provided that such notice was required, and as they further provided that the trustees could assess fines for violating any rules, the trustees were within their right to assess a fine against the owner. But the size of the fine–$2,000—was eye-popping (the trustees learned that the tenant had been renting the unit for approximately 20 months, and computed the fine at a rate of $100 per month for each month of the period). From all appearances, the punishment hardly fit the “crime”. But behind this fine was a possible motivation for its disproportionate size: one of the trustees and the unit owner had been feuding with one another about various aspects of condominium governance for nearly 10 years, and the trustee might have been hankering to get some retaliation in the form of a fat fine.
The unit owner decided not to pay the assessment, and the trustees eventually hired an attorney and sued the owner.
In that situation, your instinct as a unit owner would be to say to the trustees, “Take me to court!”. But your instinct would be wrong, at least in one major respect.
The condominium law, which was drafted about 40 years ago, gives condominium trustees dictatorial power over unit owners, and courts—which are charged with interpreting the law—have essentially affirmed that power. In a decision known as Blood v. Edgar’s, Inc. that was issued in 1994, the Massachusetts Appeals Court ruled that a unit owner who takes issue with any assessment, fee or fine levied by the trustees must first pay the amount demanded, then sue separately to challenge it. That makes it a practical impossibility for most unit owners to challenge any trustee action (with exceptions described below).
The mistake that unit owners make—and some of them are even advised by attorneys to proceed in this manner—is to fight assessments and fines without suing separately. The reason that is problematic is that the law gives the trustees the right to attorney’s fees for any collection proceeding, and presumes that the assessment or fee is reasonable. There are countless instances in which unit owners, either proceeding on bad advice or simply not understanding the law, have to pay not only the claimed assessment, but often thousands of dollars in attorney’s fees.
And by that point, the prospect of a further fight—in the form of a separate lawsuit–becomes less alluring.
So what is a unit owner to do? Several strategies are available:
1. Comply with all rules and regulations! This consists of nothing more than actually taking time to read them and to understand what’s permissible and what’s forbidden.
2. Keep the lines of communication open. If one or more trustees have an issue to discuss with you, don’t duck them. Be available to discuss it in a reasonable, non-threatening manner.
3. Attend all trustee and unit owner meetings. Contrary to what many people believe, trustees generally want and appreciate unit owner input and feedback, especially if it’s conveyed in a businesslike manner.
4. Attempt to become a trustee yourself. Yes, it’s a thankless job, but it puts you more in control of your own destiny as an owner.
5. If your condominium does not have a mediation or arbitration clause for disputes, try to have the declaration of trust amended to provide for one. Trustees will often agree to mediate or arbitrate disputes involving fines or assessments against a single unit owner (but they will typically not agree to such procedures for condo-wide fees or assessments).
6. If you believe you’re the victim of “condo bullying” or retaliation, immediately contact an attorney experienced in Massachusetts condo law for assistance.
Contact Massachusetts Condo Litigation Attorney, Alan Fanger
Condo attorney Alan Fanger is a condo litigation lawyer with offices in Wellesley. He serves the entire Greater Boston and Boston metrowest region including Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.
