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Withholding Condo Fees

By John M. Desiderio


By: Ronda Kaysen

April 18th, 2015

Ask Real Estate

Withholding Condo Fees

My husband and I have not been able to live in our condo since December 2013 because of construction defects that damaged our unit. Real estate professionals recently told us that we do not have to pay our condo dues during this period. What law states this? Do we have any other redress? We filed a claim with the attorney general and hired our own lawyer. Our building, which has only four units, also hired a lawyer. So far, this issue has cost our building $150,000 — of which my husband and I are responsible for $51,000, in addition to the $30,000 in costs we have personally incurred. What are we to do? 

Park Slope, Brooklyn

You might not be able to live in your apartment, but unless your unit has been rendered unusable by a disaster like a fire, you still have to pay common charges. Unlike rentals and co-ops, condominiums are not protected by the warranty of habitability, a state law that provides tenant protections, according to a Manhattan real estate lawyer. It is possible, but unlikely, that your condo’s bylaws include a provision allowing owners to withhold common charges under certain circumstances.

If you stop paying common charges, you open yourself up to serious risks. If the condo sues you for unpaid common charges, most bylaws allow for the board to recover attorneys’ fees, late charges and interest from a defaulting unit owner, said John M. Desiderio, a Manhattan real estate lawyer.

Because your condominium is so small, any unpaid common charges will make it difficult, if not impossible, for the building to pursue a lawsuit against the responsible parties. “The chief recourse they have is the expensive litigation they have already embarked on,” Mr. Desiderio said.

If you prevail in court, you (and the condo) will recoup at least some of your losses — and perhaps compel those responsible to correct or repair the defects.

Adam Leitman Bailey, P.C.

NEW YORK REAL ESTATE ATTORNEYS