Time was when all the families and management in apartment walk-ups were as one, with the triumphs and sorrows of the other families our triumphs and sorrows as well. These were shared experiences at communal barbecues, picnics, graduations, Christmas parties, and all manner of celebrations.

After the last glimpse of what were then truly our homes, through the back seat windows of sedans driving us away to new houses or apartments, these times were long gone, but the preservation of our liberties as American homeowners, should prevail.

Unfortunately, with the advent of burgeoning mega-communities including condominiums in the latter half of the 20th century, the interpersonal sensitivities of management towards condo owners collectively and individually has declined. In its place, a self-serving spirit of opportunism assumed by management seems to be the order of the day.

With unfettered access to enormous sums of maintenance fees and assessments from owners,  the temptation of untold gain has attracted  management and contractors alike — contractors, including attorneys. These objectives they protect under the guise of self governance for condos, whereby a laissez-faire or hands off approach by state and federal governments prevents scrutiny of condo management misdeeds.

Hokua Naru Towers Kakaako Condominiums Ala Moana Beach Park aerial.
Condominiums fronting Ala Moana Beach Park. A new law helps the owners of condos. Cory Lum/Civil Beat/2018

The condo management and legal service industries, instead of being humbled by, and competitive for the contracts bestowed on them by associations, have become ruthless, biting the hand that feeds them. Owners who get into debt due to circumstances beyond their control — sudden illness or injury, or loss of income, are often regarded as derelicts, even criminals intent on bilking their associations of their dues. Instead of helping owners to stave off the loss of their properties, contractors and boards alike actually see foreclosure and property loss as goals devoutly to be pursued because of the cash trove they have become.

In this perverse business model, pathological money lust and illicit schemes of management replace formerly obligatory track records of integrity and superior service. The plight of condo owners in these circumstances nationwide is a testament to this disturbing trend.

Among favored means of gain at the expense of condo owners in default of association dues are the illegal foreclosure processes and the priority of payments policies which make clearing delinquent core balances difficult because owner installment payments repeatedly have been applied to incidental payments like legal fees and late charges first.

Last year’s passage of Hawaii’s Act 195, which will expire at the end of June 2020, is an affirmation of condo owners’ constitutional rights to challenge unfair monetary charges associated with delinquent condominium maintenance or special assessment payments.

While it requires condo owners in default of maintenance or common element expense dues to pay these amounts immediately or in accordance with a payment agreement with management, before disputing these sums, it also allows that incidental charges to those core expenses such as late fees, penalties, fines and legal fees can be disputed through mediation before paying them. Thus, the former priority of payments process enabling management to deduct these noncore amounts first from installment payments by owners is also prohibited.

A Crucial Milestone

Although without a doubt a very crucial milestone in condo owner rights struggles, the significance of Hawaii’s Act 195 is still lost on many owners who do not realize the empowerment and value it provides them, thus the risk that they will allow the legislation to slip away and revert back to the previous priority of payments plan in 2020 is all too real. Some management companies are reportedly allowing, even encouraging association boards to defy Act 195, which the condo industry is working overtime to defeat.

This writer is no financial advisor or administrator;  however, common sense measures would significantly discourage abuse or fraud:

  1. Thoroughly read and understand the terms of Act 195, which language is clear and straightforward enough for most individuals to comprehend.
  2. Terminate the services of contractors who fail to conform to state condo laws, refuse to perform transparently, and deny owners the right to document review.
  3. Protect yourself by learning the basics of pro se (self help) legal procedures, including the use of injunctions against parties committing illegal acts.
  4. Support the passage of legislation imposing a 25 percent cap on legal collection fees for condo delinquent principal amounts due. There is no justification whatsoever for allowing unlimited legal charges from condo debt collectors, when other collectors are bound by 25 percent percent limits.  These runaway fees have cost some condo owners their homes, even when the original base amounts owed were just a small fraction of the legal fees alone!
  5. Whether you hire an attorney yourself, or must deal with the association’s attorney, insist on a detailed itemized schedule of agreed upon legal fees you must pay before an attorney’s work begins. Under Act 195, you have the right to dispute these before paying them.
  6. If you are making installment payments to pay off a debt owed to your association, obtain detailed statements of how each payment is applied towards the balance due to make certain legal fees, late charges, fines and penalties are not illegally first being extracted from the base amount.
  7. Keep detailed journals and indexed files of documents and accounts of all events and communications involving boards and management contractors. These will be essential in supporting your case in any disputes.
  8. Be vigilant about your rights, including the resumption of Act 195 which we as property owners must openly support before 2020.

Pulitzer prize-winning author Alice Walker’s quote on power should be taken to heart: “The most common way people give up their power is by thinking they don’t have any.”

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