—Concerned in Colchester
“In most states, condominium owners do not have the right to withhold HOA fees until ‘matters are resolved’ to a unit owners’ satisfaction,” says Jack Facey, a shareholder attorney and director with the law firm of Kenlan, Schwiebert, Facey & Goss, P.C. in Rutland, Vermont. “Payment of condominium fees is an absolute requirement and, while you can withhold those fees to try and get the board or the management company’s attention, the association will legitimately be entitled to late fees, interest and attorney’s fees and collection costs even if you are later found to prevail in a declaratory action requiring the association to perform something which they have failed to do.
“Basically, you have three remedies: 1. Consider a recall effort against your president if your HOA either comes under UCIOA (§3-122) or has its own provisions for recall of a nonperforming officer; 2. Run for the board again and encourage other like-minded individuals to also run for the board so that you get a majority willing to be an activist board. Once you have a majority of like-minded individuals on the board, you would have the ability to put some pressure on your management company; or 3. File a declaratory action in the trial court of the jurisdiction you are in requiring the association to respond to whatever you believe it has not done.
“Clearly, this is not an optimum situation and would require you to spend time and resources that typically would be better spent in other ways. Condominium government is very much akin to municipal government these days and a certain amount of give-and-take is going to be tolerated by the trial courts before they will get involved in condominium disputes. Executive boards have some discretion and a court may not see the issue as black-and-white as you do.”