Recent articles contend the state should become more involved in the management of condominiums and homeowner associations because of alleged unchecked abuses by boards and property managers.
These articles claim association boards are oppressing owners by instituting expensive enforcement and collection actions against them; and managing agents are primarily interested in profits at the expense of owners, accomplished by imposing excessive fees on owners. These articles claim condominium self-governance is abused and undermined by boards and property managers.
These broad generalizations fail to recognize the complexity of the operation of associations, the roles owners often play in creating their own problems, and the many amendments to the law the Legislature has made over the past 25 years to address the claims made in these articles.
More than 30 years ago, a Hawaii appellate court opined: “The uniqueness of the condominium concept of ownership has caused the law to recognize that each unit owner must give up some degree of freedom of choice he might otherwise enjoy in separate, privately owned property.” Nevertheless, some owners still subscribe to the proposition that “their home is their castle” and the association has no right to infringe upon their lives in and around that castle.
Consequently, and to comply with the law, associations have been forced to obtain court orders to install fire alarms inside units because owners took the position that the association had no right to install the alarms. Similarly, associations have been forced to obtain orders to gain access to units to repair and replace common element pipes.
While owners agreed to follow the rules when they purchased their units, they later ignore the rules by making unauthorized improvements to their property. For example, owners submit applications to the board to make minor improvements to their units and then have their contractor remove a load bearing wall. If the board fails to pursue the owners for this violation, then other owners can claim they, too, are entitled to remove a load-bearing wall and to deny them this would constitute selective enforcement, and they can now sue the association.
Enforcement actions result in legal fees; owners who caused the fees to be incurred then refuse to reimburse the association. Contrary to the claims asserted in recent articles, the Legislature has addressed this type of dispute. Now, while owners must pay their maintenance fees, the law allows owners to contest all other charges (legal fees, fines, etc.) through a subsidized mediation program administered by the Hawaii Real Estate Commission. If the association refuses to mediate a covered dispute, the owner can go to court and collect up to $1,500 for filing a motion to compel mediation. Mediation has been a successful means of resolving disputes between owners and associations.
Boards are often faced with difficult decisions. That is especially true as projects grow older and require the replacement of common elements. While property managers are compensated, they too are faced with difficult issues, including the need to implement board decisions and the resulting pushback from owners. Some owners refuse to recognize the bylaws give the board authority to make certain decisions. If the board makes those decisions, then those owners should accept the result and move on. If the majority perceives the board is doing a poor job, then they can remove those directors and elect new board members.
In conclusion, rather than mandated government oversight, educating owners regarding condominium management, the importance of following the rules and law, the availability of Condo-Ed subsidized evaluative mediation, and the need to forgo some rights owners would otherwise have in single-family properties, are more effective next steps.
Laree McGuire is an attorney who has been practicing in the area of condominium and community association law for more than two decades. Jane Sugimura is an attorney and longtime advocate for condominium and community association legislation.
