D.K. from Long Island, New York writes:
Dear Mister Condo,
I live in a ten-story building of about 80 units. About 75% of the units have individual natural gas furnaces to supply their heat and hot water: the natural gas is paid for out of the common HOA dues. The other 25% of the units are all-electric and individually metered, and the electric bills are paid individually. The problem is that ALL of the units pay the same amount of HOA dues (on a per square foot basis). In effect, the all-electric units are subsidizing the heat/hot water utility in other units through the HOA dues without having any access to the benefits.
Needless to say, this arrangement is entirely lopsided and seems illegal. My question is this: Can the board force a group of tenants to pay for a utility while those same tenants are simultaneously excluded from any benefits of the utility? It seems to me that the only legal solution would be to charge different HOA fees, depending on whether a unit is part of the natural gas collective or part of the individually sub-metered all-electric units.
Mister Condo replies:
D.K., I can understand why this arrangement appears lopsided and even illegal. I will agree with you on lopsided but I doubt it is illegal. You would have to speak with an attorney for a legal opinion. While I agree with your solution, it would take a rewriting of the association’s governing documents to implement such a solution. If I lived in one of the units being supplied with association gas, I would certainly fight back tooth and nail as that enticement was likely one of the reasons they purchased those units. The bottom line is that unless the provision of gas to the affected units isn’t in the governing documents, it would take a rewriting of the documents to remedy the situation. Depending on the difficulty of rewriting the documents (a separate answer for that problem – majority, supermajority, or another formula to change documents), it is unlikely that the arrangement will be changed. All the best!