Are Condominium Unit Owners Unconditionally Obligated to Pay Common Expense Assessments?
The short answer is – Yes! The Condominium Act specifically obligates all unit owners to pay a proportionate share of the common expenses. Even where a unit owner waives the right to use a common element or abandons the unit there is no exemption from liability for common expenses. The Condominium Act, N.J.S.A. 46:8B-1 to -38, provides in pertinent part:
A unit owner, shall by acceptance of title, be conclusively presumed to have agreed to pay his proportionate share of common expenses accruing while he is the owner of a unit. . . . No unit owner may exempt himself from liability for his share of common expenses by waiver of the enjoyment of the right to use any of the common elements or abandonment of his unit or otherwise . . .
The “or otherwise” language implies that the obligation of unit owners to pay the proportionate share of the common expense is absolute and does not yield to other considerations, such as disputes with the Association. See Holbert v. Great Gorge Vill. S. Condo. Council, 281 N.J. Super. 222 (Ch. Div. 1994) (plaintiff owner was obligated to pay for previously unpaid common expenses, plus interest, despite having brought suit against defendant condominium association for alleged mismanagement of condominium affairs).
Among the powers assigned by law to a condominium association is the authority to assess and collect funds for the payment of common expenses. N.J.S.A. 46:8B-14. The New Jersey Legislature has defined "common expenses" as follows:
[E]xpenses for which the unit owners are proportionately liable, including but not limited to:
(i) all expenses of administration, maintenance, repair and replacement of the common elements;
(ii) expenses agreed upon as common by all unit owners; and
(iii) expenses declared common by provisions of this act or by the master deed or by the by-laws.
“A unit owner's obligation to pay common expenses is unconditional.” Holbert, supra, 281 N.J. Super. at 226 (emphasis added). Failure to pay assessed common expenses automatically gives rise to a lien against the owner's unit in favor of the association. N.J.S.A. 46:8B-17. The lien may be foreclosed following its recordation in the office of the Clerk of the county in which the unit is situated. N.J.S.A. 46:8B-21. The amount of the lien against the unit may lawfully include the unpaid common expenses, interest on the common expenses calculated at the legal rate and, if authorized by the master deed or the by-laws, reasonable attorneys fees. N.J.S.A. 46:8B-17 and -21.
While unit owners have an absolute legal obligation to pay common expense assessments, the same may not be true of other assessments, such as limited common element assessments, emergency assessments, special assessments, capital improvement assessments, etc. The validity of those assessments may be successfully challenged should the internal procedures proscribed by the applicable governing documents not be followed and fully documented by the Board of Directors. It is therefore imperative that a condominium Board be familiar with the oft-overlooked procedural particulars outlined in the master deed and/or by-laws for enacting and levying certain types of assessments.