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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.
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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.
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