Tuesday, September 8, 2009

Should "Mrs. Smith" be able to use the pool if she hasn't paid her maintenance in a year?

Hardly a day goes by that I am not contacted by a client asking whether or not certain common area and recreational use rights can be shut off for a chronically delinquent owner. The frustration that these board members, paying unit owners and property managers express is easy to understand. It must be difficult to share a spot by the pool with a neighbor who hasn't paid maintenance in nearly two years!

One of the reasons many people buy in common interest ownership communities is the recreational amenities that most people couldn't afford without a budget shared by many. Over time, people tend to forget all of the amenities that initially drew them to a particular community: tennis court, pool, clubhouse, guard gate, etc. When non-paying owners continue to use these facilities without contributing to their expenses and upkeep, the rest of the community naturally does a double take.

If you live in a homeowners' association, Chapter 720 does give the board the authority to suspend a delinquent owner's use rights and voting rights if the proper authority is provided in the declaration or bylaws. Many HOA's have amended their documents over the last few years to take advantage of this significant tool.

Unfortunately, no such right exists for condominium boards. Last year, my firm drafted language for inclusion in two bills which would have given condominium boards the similar right to suspend use rights for delinquent owners. Sadly, that bill and every other community association bill failed.

When I am asked by a condominium board if they can make "Mrs. Smith" use the visitor entrance at the gate, stop her from using the pool or shut off her cable, I point them to Section 718.106 (3) of the Condominium Act which clearly states that a unit owner is "entitled to use the common elements in accordance with the purposes for which they are intended but no use may hinder or encroach upon the lawful rights of other owners." At the time this language was written, the drafters could not have foreseen our current foreclosure crisis and the fact that it is not equitable to give such unfettered rights to owners who might not have paid their fair share of common expenses for quite some time.

The language we drafted last year will return next session. Please make sure your condominium communities support such change loudly and early. There is no justifiable reason that HOA boards should have this useful tool while condominium boards are deprived of same.

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