Is it legal to publish a list for public consumption of homeowners who are delinquent in their assessments? Signed, S.K.
Whether it’s legal is a complex question with a lot of factors, but whether or not it’s technically “legal,” it’s a bad idea, and it’s not going to have the desired result (which, inevitably, is to embarrass delinquent homeowners into paying their past-due maintenance).
The answer to the question is going to be similar, whether we are talking about a condominium or a homeowners’ association. Documents relating to unit owner account balances are inspectable by any owner in the association. It is a frequent belief that, if this information were published in some fashion (whether in a newsletter, or posted in the association bulletin board) that it would be so mortifying that it would motivate those delinquent owners to bring their accounts current.
The problem with this strategy is that it potentially runs afoul of the Fair Debt Collection Practices Act, a federal law that prohibits abusive practices by debt collectors. While community associations are not debt collectors under the statute, their lawyers are, and as their lawyers are agents of the association, it is thought that courts might find the two connected enough to establish some liability for publishing debtor information. In fact, the law specifically prohibits “the publication of a list of consumers who allegedly refuse to pay debts” — that sounds a lot like a list of delinquent owners. Now, as every unit owner is entitled to this debtor information, if your association could find a way to ensure that only owners would ever see the information, it would potentially be OK; and this is why some attorneys allow their associations to publish such lists in association newsletters.
Remember, also, there are many good tools available to encourage delinquent owners to pay their assessments. Associations may restrict use of the common elements, and there’s always the dual hammer of foreclosure and personal judgment.
People tend to believe that relieving judgment on a debt through foreclosure is the ultimate penalty. The truth is, a personal judgment can be far more punitive — with a personal money judgment, an association has the power to levy (sell and collect the proceeds of) not only the property itself, but most personal property owned by the unit owner. The association also can garnish bank accounts and wages. By matter of illustration, imagine this — once an association has a personal judgment against an owner, they may ask a court to order the sheriff to enter the home and take everything inside and have those items sold to satisfy the judgment.
One of the units in our building is in the process of being sold. The buyer filled out an application for the Board of Directors, and one of the questions was whether he had any dogs. His answer was “N/A.” He now tells us that he has two dogs. Our condo documents clearly state that only one dog is permitted in each unit. If he moves in with one dog, and then at a later date brings his second dog, what are our legal options? Signed, M.C.
Your legal options in the situation you described are going to be the same for any violation of the condominium documents. The documents will specify exactly which types of remedies are available for violations of the declaration or the rules, but many condo documents specify that the board has all powers specified in the Condo Act.
The first typical remedy is a fine. If this owner brings in a second dog, he is violating your rules, and the association can fine the owner $100 per day, for up to ten days (no more than $1000 per violation).
If that doesn’t work, the association can suspend the owner’s use of the common elements for a reasonable amount of time. Finally, if all else fails, the association can sue the owner, asking a court to order the removal of the dog. It’s an order most courts will grant.