DEAR BENNY: My homeowners association fees are of great concern to me, since I am on a limited income. The monthly fees are $399, and this, combined with my mortgage payments of nearly $1,400, creates a burden. I have been a widow since 1973 and am, of course, a "retired" senior with no retirement income benefits.
Is there a limit to the amount that homeowners associations can charge? I felt that I could handle their fees when I bought my condo in 1998, when the monthly fee was $185. But, the increases over the years have now come to an amount that deprives me of many necessities, i.e., a dishwasher, a working clothes washer and dryer, shower/bath repairs, not to say anything about necessary painting, cleaning, etc., and everyday living expenses. I love my condo, but it is very difficult financially. –Dot
DEAR DOT: Unfortunately, there is no limit to what a community association can charge. Your assessment is based on the association’s current operating budget, multiplied by your percentage interest in the association.
Typically, the board of directors with the advice and assistance of the property manager prepares the annual budget. In some associations, the membership must approve; in others, the board has the absolute right to set that budget.
But, as an owner, you have the right to review the budget — in advance of it being put in final — and challenge those line items that you feel are excessive, wasteful or unnecessary. It would be helpful if you could round up a number of owners to support you in this review, as there is strength in numbers.
But, realistically, the cost of living keeps going up. A competent board of directors must set a budget that tracks what is projected to be needed in the coming year. If you live in the Northeast, you have to plug in a line item for snow removal. If you live in the Pacific Northwest, you have to plug in a line item to deal with excessive rainfall.
And, more importantly, every association must have adequate reserves. If you want to be able to get FHA loans for your association, that is a must. Indeed, even if you are not concerned about FHA, every association needs to have sufficient reserves; I would rather pay $5 or $10 a month extra to build up a reserve account than be hit with a $10,000 special assessment because the roof is leaking or the elevators are malfunctioning.
Although I am not a complete fan of reverse mortgages, this might be something you should consider. If you are eligible, you can get a monthly payment, and you don’t have to repay the loan until you move out or die.
DEAR BENNY: It was interesting to know that we were not alone in getting duped by the shady time-share agent in Florida, selling a "dream" that was worthless. We have found that if you have kids and can take the vacation only on certain days, the time share is not for them. An agency such as RCI cannot get the places you want when you want anyways. We always ended up switching to a place we never heard of, or we would never go in the first place for a vacation!
We paid $12,000 for two weeks, spent about $600 a year in maintenance, and for each week we exchanged, we paid about $180 on top of $12,000; so we were spending about $960 to "own" the time share on a yearly basis! This was totally inappropriate and I think time shares should be banned legally for not explaining the "full" cost. Needless to say, after four years of "ownership," we finally sold our time share at a 75 percent (($3,000) discount! We feel cheated and robbed! –Anil
DEAR ANIL: I hope my readers get your message. If you really have to buy a time share, make sure that you get all of the facts. And don’t sign a contract without having a lawyer review it first.
From personal experience, I was testing a time-share salesman. I listened patiently to his "pitch", including telling me how many great hotels I could stay at. I then asked for a copy of the contract, which he refused to give me. I started to walk out, when he finally agreed.
I reviewed the contract, and found that too many of his "sales pitch promises" were just not factual. In fact, at one hotel where he said we could stay seven nights a year, it turns out that I could stay only half a day based on my hypothetical investment.
Perhaps readers should send their time-share complaints (or any other financial complaint) to the Consumer Financial Protection Bureau and see if there is a response.
DEAR BENNY: I own and live in a three-unit building with two apartments rented that the bank has turned over to its foreclosure lawyers. Mine was one of those nonconforming loans securitized in 2004, and the trustee bank keeps changing.
When I received the first subpoena in early January (along with the bank that originated and is still servicing the loan!), my attorney responded with a request for discovery asking who actually owns the loan. We’ve heard nothing since. I’m not sure what this means.
Escrow paid the taxes and insurance last year, but not this year. I haven’t made a mortgage payment since bankruptcy early last year. The bank servicing the loan has actually recently opened the possibility of my just picking up the payments again, which I’d consider if I could, as I’d really like to keep the house, but, if I understand the subpoena, they are not the entity foreclosing.
Should I pay the homeowners insurance since it has lapsed? And later, if I’m still there, the property taxes when they come due? –Gil
DEAR GIL: I am confused. Are you still in bankruptcy? If so, there is what is known as an "automatic stay" in which no one can take any legal action against you — including filing for foreclosure — without obtaining consent from the bankruptcy judge.
Furthermore, you state that you have an attorney. He should be able to guide you on these matters. But I am surprised that the lender or servicer (whoever that is at this time) has not paid the real estate tax or the homeowners insurance. If the tax is not paid, there will ultimately be a tax sale, and you (and the lender) will lose out.
Furthermore, if there is a fire or other hazard that destroys the house, without adequate insurance, once again, you and the lender will lose out.
If your attorney is not giving you answers to your questions, I suggest you find another lawyer.
DEAR BENNY: I have a question regarding a civil suit against a homeowners association (HOA) that insists it cannot consent to any nontrial settlement without owner approval because of the settlement’s likely impact on its budget. If the HOA bylaws provide that a proposed budget increase of greater than X percent has to be OK’d by an owner vote (not a very likely outcome), what can plaintiffs do to suggest a proper and legal way to steer around such a provision?
For example, can plaintiffs frame the issue as falling outside the budget process and incurring a legal liability? –Don
DEAR DON: You posed a question that I have never encountered before, despite practicing community association law for many years.
It is true that many associations require a majority vote from the owners before the next year’s budget can be adopted. It is also true that many associations have provisions that the board cannot spend more than XX dollars on improvements without a majority vote of the owners.
But we are dealing with litigation here. If the board is saying, "We would rather spend thousands of dollars litigating because we cannot spend money settling the case," I believe the board is acting in bad faith and violating its fiduciary duty to those it represents. Why? Because after spending all of the money on litigation expenses, the board could lose the case and have to pay additional funds based on any judgment against the association.
In any event, a judge could by court order force the association to pay moneys, even if it exceeded the budget.
More importantly, has the board advised the company that issued the master insurance policy of the lawsuit? Perhaps the insurance company will pick up the cost of litigation and settlement, which would not impact the budget.
I suggest you discuss this matter with an attorney in your area who understands community association law.
