Question: We have lived in a condominium for nearly 20 years. The building was built in 1969, and there are a total of 35 units.
The building has always charged a higher assessment on the five units that have exterior balconies, as compared with the interior units. The board president says that this is because those units have a few more square feet, and because this is the way it has always been done. But that is the only explanation. Is charging these different amounts legal? The same unbalanced formula has been used when the association has occasionally passed special assessments, for example, to repair damage to the seawall, a dock, the roof, landscaping, lighting, the pool, etc. These special assessments are for projects that affect all owners equally, and so we think that the costs should be split equally. — P.P.
Answer: The Condominium Act, at Section 718.115, specifies that the common expenses of an association include the expenses related to the operation, maintenance, repair, replacement or protection of the common elements and association property; the costs of carrying out the powers and duties of the association, and any other expense that is designated as a common expense by the statute or the governing documents. That is true whether those costs are collected through the regular periodic assessments established by the budget, or whether they are collected by special assessment passed by the board from time to time to fund special projects. The method of passing the assessment is irrelevant — the only question is whether the expenses relate to the common interest. All of the projects that you describe are certainly proper common expenses, unless there is specific language in your declaration of condominium that provides otherwise.
Further, the Condo Act states that all assessments must be collected in the proportions specified in the condominium declaration. While your board president was loose in his answer, your declaration almost certainly provides that the exterior units, having a greater square footage, have a slightly larger appurtenant ownership interest in the common elements, and so they, therefore, pay a larger percentage of all assessments. That does not change your use rights, but it does change the calculation of what you must pay. The vast majority of condominiums that I deal with calculate their assessments based on the square footage of the unit, and so the scheme you describe is not unusual.
The argument about whether it is fair for larger units to pay more in assessments than smaller units, particularly when the expenses do not vary based upon the size of the unit, has been debated forever, but the way you are being charged is likely legal and proper. Yes, it’s true that you do not use the pool more than it is used by a slightly smaller unit, and you do not affect the seawall any differently than a slightly smaller unit. But, the association has to divide the expenses in some manner, and in your community, the developer chose to allocate those costs proportionally. In buildings where the split is equal for all units, the owners of smaller units, particularly those where fewer people can reside, often argue that allocation is unfair because they use the building less and put less wear and tear on the common elements. This is similar to the argument that is frequently made by people who do not use certain portions of the common elements. For example, a person who cannot swim (or perhaps is medically prohibited from swimming) might argue that they should not be responsible for the cost of maintaining the pool. These debates, however, are entirely academic, as the law on the issue is clear. Your declaration of condominium is a contract that binds your property, and, at the time you bought your unit, it almost certainly specified that you were to pay a greater share of the assessments — and so you are bound by that provision. If it turns out that your declaration is completely silent on this issue, that might be a different matter, but it is unlikely to be the case.
Ryan Poliakoff is a co-author of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living” and a partner at Backer Aboud Poliakoff & Foelster, LLP. Email questions to email@example.com. Please include your hometown.