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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
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Experience:  JA Mentor
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How can a declarant turn an owners condominium community into

Resolved Question:

How can a declarant turn an owner's condominium community into a subsidies housing community with owners still living in their units and 98% are subsidies housing residents and they want us to pay HOA DUES
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  Lucy, Esq. replied 11 months ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today.

If the original declaration calls for all units to be sold, or requires a certain number to be owner-occupied, then the developer could not turn the units into subsidized housing. However, there is nothing in the law that would prevent the developer from buying the units and then renting them out, if the by-laws permitted rentals. In that scenario, the developer would be responsible for the condo fees on all owned units that were being rented. Each condominium owner is responsible for paying condominium fees in accordance with his percentage of ownership in the whole community. A developer cannot unilaterally decide that he wants to rent out most of the units and will therefore raise everyone else's condo fees. That is a breach of his obligation to act in the best interests of the community.

Is there a condo board established? If so, you may be able to take these concerns to the board and have them take action to ensure that the developer is assessed the appropriate fees. They may also be able to pass rules or by-laws to prevent rentals. And if they won't, then you and other affected members of the community may be able to sue for breach of fiduciary duty. Requiring some members to pay HOA dues for others is not acting in the best interests of the community. You may want to take the HOA documents, including the declaration and by-laws, to a local attorney who can review it for you. If you can get other homeowners on your side, it may help. You may also want to look at the required procedure for recalling board members. If there is no board, then the suit would be against the developer directly for violating the declaration and by-laws.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
Lucy, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 19662
Experience: JA Mentor
Lucy, Esq. and 10 other Real Estate Law Specialists are ready to help you
Customer: replied 11 months ago.
Let me say first that I appreciate your answer, it is the best I have heard.
In the 4 year period that I have lived here as an owner, there has been only one "board meeting" and it was established at that meeting that there was really no board at all, they are acting as declarant(developer). When the property is 75% completed(which is never going to happen) then they will establish a real board. Because they own 98% of the existing units, then they are the board for now and we must pay dues or else.
We have been to several attorneys and no one will fight this battle, the best advice we have gotten so far is to counter sue when they sue. So what do you think.?
Expert:  Lucy, Esq. replied 11 months ago.
Yes, if they do sue, you could file a counterclaim. If you are willing to wait and see if they sue, that may be an option.

You could also bring a declaratory judgment asking for a ruling that the developer has violated the declaration and by-laws. If you cannot find a lawyer to take the case, you have the option of filing yourself. A law library would have books that you could use to get an idea of what a Complaint of that sort might look like.

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