DEAR BENNY: I am hoping you can help me with some information. My husband and I bought a time share years ago and over time we upgraded, and then converted to the point system. In that time the company we originally purchased with sold to another company that touted lower maintenance fees if we just paid "X" amount of dollars, so mistakenly we did.
Well, a few years later our maintenance fees went from $700 a year to almost $1,200. At that point my husband and I stopped paying.
My question is: What can they do to us legally? Can they put a lien against our home? We don’t care if they take our time share and sell it — they can have it! I am just afraid there may be worse repercussions. –Lisa
DEAR LISA: If you have stopped paying, the time share developer who controls (or manages) the complex can either sue you for the back fees or foreclose on the time share, or both. You want to preserve your credit standing so I can’t recommend that you do nothing.
However, if you have a written statement that if you pay that "X" amount your maintenance fees will not be increased, you should send that information to the time-share manager. Advise him that unless your fee is reduced, you will have to take all appropriate legal action. This could include filing a lawsuit, or filing a complaint with your state’s attorney general.
But make sure that the notice you received is clear that you would not have to pay a higher maintenance charge forever.
If it is not clear, then you are in the same boat as thousands of (if not more) consumers who bought time shares and now are unable to get rid of them. Perhaps the manager will take it off your hands, by way of a "deed in lieu."
In other words, you will give the time share back to the company and they will relieve you of any further financial obligations. It probably won’t work, but is worth trying.
DEAR BENNY: I am a California broker and here is my understanding of condos, etc. A condominium (condo) building is where an individual owner has the right of sole occupancy of the airspace within the walls of the unit but owns the land, etc., only in common with the other owners.
A townhome is a physical design. The owner may own the land underneath the home, in which case the legal state is a planned unit development (PUD), but it also may legally be a condo where the owner does not solely own the land underneath just like a condo.
Then there is a "de minimis" planned unit development, where there are single-family homes but where such items as streets, recreation facilities, parks, etc., are owned in common with the other owners.
All of the above have homeowners associations (HOAs), which are controlled by the governing documents — namely, articles of incorporation, CC&Rs and bylaws.
These terms should not used interchangeably. –Jo
DEAR JO: Thanks for writing. You are right on, and have confirmed my opinion that a condominium is not a homeowners association and vice versa. If you want to lump them collectively, the correct term is "a community association."
DEAR BENNY: You previously mentioned in one of your articles that owners who are bound by no-rent clauses in their homeowners association documents can sell with a rent-to-own agreement. How can I find out more about such options?
Units in our condo building have not been selling. Due to the economy some of our homeowners find themselves in a bind. They need to sell because they have been forced into early retirement or now have jobs with very long commutes. I’m concerned that some of these homeowners may walk away from their obligations if they can’t rent and can’t find a buyer who qualifies for a traditional mortgage. Changing our governing documents is not a viable option at this point. –Janice
DEAR JANICE: I am sure that many community association attorneys will disagree with me, but I am convinced that in economic times such as we are still in, boards of directors should be flexible and not vigorously enforce any bylaw restrictions on rentals.
My argument is that if a person enters into a contract where they rent with an option to purchase, this is not the same as having just a plain rental situation. The tenant has what is known as an "equitable interest" in the condominium unit, which gives him/her greater rights and responsibilities than if this was just a simple tenant.
Obviously, the best solution is to get your legal documents amended so as to permit rentals for hardship situations (such as losing a job or getting transferred far away from the condo unit). I recognize, however, that amending community association documents is difficult if not impossible, since it usually takes a super-majority vote of all of the members.
There is no easy answer to this dilemma and it is a nationwide issue. Boards of directors have to have a heart; some of them do.
DEAR BENNY: We live in a townhouse. Many of the outdoor structures, fences, etc., outside many of the houses that I’ve seen are not in compliance with our rules or our bylaws. Two years ago when I bought the house, there were three things mentioned by the association that needed to be fixed, and we fixed them.
But somehow the association would find ways to notice something outside our house that was not within the rules and tell us that we need to fix it, or they would fix it and bill us. The association claimed we had nail damages above the garage door on the siding and that (the association would) fix it and bill us. I found one rusty nail and removed it.
Whenever I asked the association to prove the "damages," they would not. Instead we got new management that sent us a letter saying that we had to pay $145 for a siding repair. I disputed the charges with the new management; which said that the previous manager "forgot" to send the bills.
The description for the charges were "nail damages on the right side of the garage siding." I don’t know how this changed from "above" the garage door to the "right side of the garage." I’m still disputing the charges.
Does the old management or the new management have the right to bill me on something it cannot prove? Why is management continuing to harass us on issues that existed prior to us even buying the house? Do I have any recourse? –Ruby
DEAR RUBY: Yes, you have recourse. You should send management and the board of directors a strong letter (by certified mail, return receipt requested) stating that: 1. management has no proof that there was nail damage, and more importantly (2) the first notice is inconsistent with the second notice.
Explain to management that you do not plan to pay and will fight management in court should management file suit (or file a lien against your unit).
That, of course, is the legal recourse. And while I don’t belittle $145 as having no value, sometimes it is easier to pay the bill and have the matter dropped.
Clients often tell me that it is a matter of principle and they want to fight for what they know is right. I remind them that there are two spellings to that word: "principle" and "principal." One deals with ethics and morals, and the other deals with money.
You could also write a letter of complaint to your state’s attorney general, but once again, that office probably is busy and I doubt that you will get a prompt response. However, the letter may scare off your board and the property manager, so such a letter clearly can’t hurt — and may actually help.
If, on the other hand, you have proof that other homeowners are having similar problems, then you should organize a group and try to overthrow the current board. Honor that time-old expression: "Throw the rascals out."
