THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Saturday, June 15, 1996 TAG: 9606130280
SECTION: REAL ESTATE WEEKLY PAGE: 16 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN
LENGTH: 71 lines
Q. Your column two weeks ago discussed collections, but you did not mention when it is okay for someone not to pay. I am very upset with the association where I live and do not feel that they are taking care of the property.
Can I quit paying until the board gets its act together?
A. There are only a couple of issues that raise more hackles than the issue of paying assessments when one party is unhappy with the performance of the association.
We have seen the reasons run the gamut. They have included failure to maintain the grounds, disagreement over a new rule, failure of the association to approve an architectural variance request.
In homeowner associations, one of the most common reasons is, ``I was told that the association was voluntary.'' Only civic leagues are voluntary.
The first issue to clarify is membership. Anyone who buys a home in a community association is automatically a member and can quit being a member only by selling her home. As part of that membership, a homeowner agrees to pay dues to the association. All the documents we have seen establish this requirement in the declaration and then again in the bylaws.
There is to our knowledge no legitimate reason for not paying your assessments. In some newer documents, it is clearly spelled out that non-performance of the association in any issue cannot be used as a defense for nonpayment. In all the years we have been associated with community associations, we have never heard of a judge that allowed an owner to claim nonperformance or any of the other reason we cited as an excuse for not paying.
If you are determined not to pay then you have three recourses.
Sell our home and move, after you bring your dues current.
Get enough votes to dissolve the association. We do not know of a single case of this happening in this area.
Sue the association in the Circuit Court and ask a judge to order the association to perform its obligations. The court order may include a provision for you to escrow your dues until performance is complete. Notice we said that if you want to escrow your dues, you will have to have a court order for that purpose. You cannot do this on your own or on the advice of legal counsel.
The better solution is to bring your dues current and go to the board or manager and ask to have your issues addressed at a board meeting. Most of the misunderstanding occurs for one of two reasons.
Either the association does not know of the problem or there is a misunderstanding by one or both parties. Communication remains the best way to resolve problems.
Too many owners have not read the documents prior to purchase and then are upset because they do not like a particular rule. The declaration constitutes a ``contract'' between the buyer and the association. In order for the relationship to be successful, both parties need to understand that contract.
Board members need to review the declaration and make sure that they are performing in accordance with requirements. Homeowners need to read the documents and make sure they understand what the rules and obligations are.
Several associations have held ``Getting to Know Your Documents'' meetings every year. This provides an opportunity for the owners and the boards to have a discussion without dealing with a specific problems. Pay up and speak up. By paying your assessments your are a member in good standing, entitled to speak and be heard. But remember, speak with courtesy and respect and you will be answered the same way. MEMO: G. Robert Kirkland, president of a Virginia Beach property
management consulting firm, and attorney Michael A. Inman specialize in
Virginia community association issues and are affiliated with the
Southeastern Virginia chapter of the Community Associations Institute.
Send comments and questions to them at 2622 Southern Blvd., Virginia
Beach, Va. 23452. To submit questions by phone, call 486-7265; by fax:
431-0410; by E-mail, grkirkland(AT)aol.com by CNB