Q&A: Withholding HOA Fees?

I live in a condominium I have brought several issues to the management and board’s attention for the past three years, and spent two years on the board before removing myself due to the frustration of dealing with our management company. The management company does the bare minimum to abide by its contract. The board is essentially ineffective and the board president never replies to emails. Little has been done in response to issues at the building and matters which are addressed take anywhere from a few months to a couple of years to be resolved. I have emailed the management company repeatedly asking for status of resolutions to the many issues reported. However, the management company takes personal offense to any complaints and turns the tables on the owners by claiming that we are harassing them, ordering us to stop emailing them. They are simply not doing their job and have been caught in a handful of lies regarding their management of our building. This is taking a toll on the overall appearance of our five-year old property. I would like to know my rights. Can I withhold my HOA fees until matters are resolved?

—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.”     

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  • Can I withhold a portion of my HOA? Say the difference between what I pay now and the increase they are implementing? I would put the difference in a separate account to accumulate tho. The HOA is not enforcing an important part of our CC&Rs and I have diligently documented the reoccurring violation and the continued excuses of the Board and our Management Company. My monthly dues are not being properly applied to which they are suppose to cover. Why should I pay the increase.
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