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Why Do Maintenance Fees vary Widely From Association to Association

Maintenance fees vary widely from one condominium to another depending on a variety of factors. Within a building, they are usually (although not in every case) apportioned based on the percentage ownership of the project that the specific unit represents.

In the broadest sense the maintenance fees are determined by taking the total operating budget of the condominium, adding in a factor to fund any reserves that the Association's directors and Owners believe they should be funding and dividing that amount by the ownership interest in the common elements of each unit. That annual sum is then usually collected in monthly payments although some projects bill in quarterly or annual payments to minimize accounting effort.

If all buildings costs of operation were identical, you could assume that any condo of roughly the same square footage would have roughly the same maintenance figure. This is clearly untrue for several reasons.

First and most importantly is the overall style of the operation. A large project with doorman, plenty of security guards on duty around the clock, air-conditioned indoor corridors and public areas, fancy carpets in the corridors, pool, spa, gym and other costly amenities to maintain will normally be at the high end of the range, especially if the Association makes substantial provision for collecting and retaining reserves for replacement of major items.

A small (under 100 unit, say) project, with exterior "catwalk" access to the units, an electronic security system instead of live doormen and guards, no pool or waterfront will fall at the low end of the range: it's cheaper to run this sort of building.

No part of the fee is "profit" for the Association. Condo Associations are non-profit corporations set up to administer the building on behalf of the owners. The directors are almost always unpaid volunteer unit-owners. Larger projects will have a paid staff usually consisting of a Community Association Manager and staff. The financial activities of condos are strictly regulated by Law.

Just like owning a single-family house, there is no cap on how much it can cost you to maintain your property! Things break, things go wrong etc., costs of water, sewer, electric etc., are all beyond the direct control of the Association. What it costs is what it costs.

Outside of normal maintenance fees, a unit owner can be exposed to "Special Assessments" for large maintenance items for which adequate reserves do not exist as well as for updating and improving the property ("capital improvements").

Although one's first reaction to this would be: then a well-run building would have big reserves, in practice this is not usually the best avenue for a Condo Board to follow. Condo Boards, like the Congress, have a way of spending the "surplus" no matter how well-intentioned they are. Also, future buyers of the condo tend to disregard both the potential for future "Special Assessments" as well as the value of any reserves on hand when they review a condo for purchase. In fact, the higher the monthly maintenance figure, the harder it is to sell a condo even though that "high" maintenance could really just mean careful and conscientious management.


Written by David J. Byrne

Ebert v. Briar Knoll Condominium Association

In a recent case, New Jersey's appellate court held that a condominium may breach its fiduciary duty to its members by failing to maintain the common elements, failing to increase assessments sufficiently to maintain the property, and fund adequate reserves. In Ebert v. Briar Knoll Condominium Association, Ms. Ebert alleged that the board of trustees failed to hold meetings open to the members and failed to provide proper notice of board meetings. Importantly, she also alleged that the association was not maintaining the property, was not setting aside adequate reserves and was not raising assessments sufficient to fund both of these things.

The appellate court reiterated the longstanding rule that a condominium has a fiduciary duty to its owners, and that said condominium is responsible, by law, to maintain, repair and replace common elements. The appellate then added that a condominium must assess and collect funds for common expenses sufficient to carry out those responsibilities. Then it wrote that a board's decision associated with repairs, reserves and the amount of assessments is protected by the "business judgment" rule only if the board's actions or inactions were authorized by law or its governing documents and, if so, whether the actions or inactions were "fraudulent, self-dealing or unconscionable".

Here, Ms. Ebert presented evidence that the condominium had "allowed the common elements to deteriorate" thereby diminishing the value of the common property. She presented evidence that the condominium "failed to provide adequate reserves for the maintenance of common elements by refusing over the course of years to increase maintenance fees sufficiently to create such reserves". This evidence included the condominium's own reserve report which recommended to the board, at that time, that "maintenance fees be increased threefold in order to create adequate reserves".

Cases like this one, and others, remind condominiums that despite the objections of owners, or concerns about a backlash, a condominium and its board must raise maintenance fees to a level sufficient to maintain the property and set aside "adequate" reserves. Note also New Jersey's Planned Real Estate Development Full Disclosure law, or PREDFDA, which requires via its regulations that each association (not just condominiums) must "prepare and adopt an operating budget which shall provide for .... adequate reserves for repair and replacement of the common elements and facilities". A condominium board that fails to raise its maintenance fees to levels sufficient to maintain the property and set aside adequate reserves could very well be found to have breached its fiduciary duty.