Benny L. Kass
3:12 PM EST, December 13, 2012
Q: We live in a large condominium complex, and our unit happens to be close enough to the lobby that we hear the elevator constantly. The sound, what I call harmonizing, has been occurring for the last five to six years. I have spoken to the management many times and they have responded by repairing, but the fix is never long-lasting.
This noise is mind-numbing since it is more of a scraping sound that on occasion seems to go right through you.
My question is would it be too much if I told management that I will no longer pay assessments until this issue has been resolved? Would I be justified in doing this? I have looked in the bylaws and found nothing pertaining to an issue like this. What would you suggest?
A: No! No! No! I cannot under any circumstances recommend that any homeowner in a community association, whether that be a condominium, a cooperative or in a homeowners association, withhold the assessment.
There are several reasons. First, you admit that this problem has been plaguing you for several years. If you suddenly decide to withhold your association assessments, I seriously doubt that a judge would be sympathetic.
More importantly, as soon as you are delinquent, I suspect your association will start collection efforts, which can include filing a lawsuit against you. Once again, while you may have a legitimate concern, case law throughout this country makes it clear that a homeowner has an obligation to pay his assessment, regardless of any problems that the homeowner has.
You will be accused of just trying to get out of paying the assessment, and using the noise problem as an excuse.
I don't mean to be unsympathetic; I just don't think it's a good idea to withhold your assessment. However, that does not mean you don't have remedies. You claim that the noise is a major concern. Noise is subjective; I have often joked that my definition of noise is my son's definition of music.
You need to prove that the noise is excessive. I suggest you ask the association board to hire an acoustical engineer to do a study of the noise level in your unit. If the board refuses, then you should hire the engineer yourself. Once you get a report that indicates the noise in your apartment is above acceptable levels, present that report formally to the board and demand that they resolve the situation. A good engineer will also recommend possible solutions to the problem.
In the final analysis, you may have to file suit. At that point, you can start withholding your assessment, but make sure you give it to someone (perhaps your attorney) to hold in escrow. You don't want the judge to think you are a deadbeat, just trying to avoid paying the assessment.
This way, you are the plaintiff and not the defendant. In my opinion, it makes you look more favorable to a judge.
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