ARE UNEXPECTED ASSESSMENTS LEGAL?
Q: There is going to be an assessment at my condo and we are being told that we all must pay equally even though a number of us will have no benefit from the work being done. Is there anything we can do?
P.M., SAN DIEGO
A: Condominiums consist of two elements, 100 percent ownership in the unit (aka “separate interest”) and an undivided interest in everything else (aka the “common area”). The homeowners association has a duty to maintain and repair all parts of the common area, including parts of the association complex that are not near your home. You along with all other members each own a fractional share of the common area and so its care concerns all the members. This is one of the trade-offs of shared ownership, in that while you receive the benefits of shared ownership and shared costs, some HOA funds will be expended on the other homes within the project. However, the day your roof leaks and causes repair expense, someone on the other side of the project could ask how your roof repair benefits them — but it does, if it’s common area.
Q: A month after I became owner of my condominium, I received a letter and bill from the HOA board for a large special assessment fee. I don’t feel I should be responsible to pay this fee because nobody disclosed this special assessment to us prior to purchasing the property and the decisions were discussed and made prior to us purchasing the property. The assessment was discussed shortly before we took ownership. Should we be responsible for the fee? Any info or advice you could give me would be greatly appreciated.
M.P., RANCHO MIRAGE
A: Prior to a special assessment becoming due for payment, the HOA must give written notice at least 30 but not more than 60 days ahead pursuant to Civil Code Section 5615. You should be able to get a copy of that notice, which was supposed to be sent via mail individually to each member. If the notice was not sent, the payment is not yet due. If the notice was sent within the proper time frame, your seller may have received it but not notified you — in which case your problem is not with the
HOA but is with your seller.
Q: We received a letter from the association stating that homeowners must pay thousands of dollars each soon to fix all the balconies in the community. What are the California law requirements?
S.S., MISSION VIEJO
A: First, I hope the HOA did a good job in explaining well ahead of the assessment why it was needed. Many HOAs fall short in this area, thereby creating unnecessary membership upset. I hope that is not the problem here. HOA boards have the power under Civil Code Section 5605(b) to impose a special assessment of up to 5 percent of the HOA’s prior year aggregate budgeted gross expenses. If the assessment qualifies under Civil Code Section 5610 as an “emergency assessment” then the board can impose a greater amount. Otherwise the members must approve the assessment.
Richardson, Esq., is a Fellow of the College of Community Association Lawyers and Partner of Richardson Ober DeNichilo LLP, a California law firm known for community association expertise. Submit questions to Kelly@rodllp.com. Past columns at www.HOAHomefront.com.