D.K. from Alabama writes:
Dear Mister Condo,
Is a condominium budget valid when it assesses charges to all units for a common utility expense, even when not all units have access to the benefits of the utility benefits? To be specific, the HOA dues are being used to pay for natural gas used in some units with gas heaters and ranges. The other units are all-electric and sub-metered. The association board claims this is legal, since the declarations don’t prohibit it. The relevant state code reads as follows:
(3) To the extent required by the declaration:
(a) “Any common expense or portion thereof benefiting fewer than all of the units must be assessed exclusively against the units benefited;”
My point is that the declarations appear to be too vague or incomplete to allow such an unfair billing practice. What do you think?
Mister Condo replies:
D.K., you raise an interesting point in so much as it would appear your governance documents do not agree with the state law. However, you have asked the question and the Board has answered that they do not agree with your interpretation of the state law. Guess what comes next? You can either accept their explanation OR you can meet with an attorney to determine if it is worth suing the association. A qualified attorney will let you know about the likelihood of you prevailing in court. Without knowing the specifics of why the association has both gas and electric heated units (were they built in phases?), I can see why the original documents didn’t address the issue. However, it is quite clear to me that the current situation merits a readdressing of the issue. It is patently unfair that all unit owners pay for amenities that cannot be accessed by other unit owners. A simple lawsuit should do the trick. Better yet, the threat of a lawsuit may get the Board to rethink their position and propose a more equitable arrangement such as submetering the gas in the same manner that the electricity is sub-metered whereby everyone pays their fair share. Fair is fair. Good luck!