One of the methods a community association may use to discourage non-payment or other violations is the suspension of use rights. In 2010, lawmakers provided associations with the power to prevent an owner's access to certain common elements when the owner breaks association rules or becomes delinquent in paying membership dues for more than 90 days.
The length of the suspension depends on the circumstances. Suspensions stemming from rule-breaking must be reasonable and may not be imposed without notice and the opportunity for a hearing. The notice and hearing requirements do not apply for delinquency-based suspensions. When the owner is more than 90 days delinquent, the board may suspend use rights until the debt is satisfied.
The laws were recently amended to clarify the scope of such suspensions. An association may not impair an owner's ability to access the property and it may not interrupt the utility services provided to the unit. Elevators and parking rights are also off limits.
These clarifications seem to create some grey areas. For example, many associations supply water, electricity, and gas as part of the monthly assessments. Others provide cable and internet access. While it is clear that a suspension may not affect a unit owner's water or power, is the association required to continue cable and internet service when the owner refuses to pay assessments?
Another ambiguity exists for gated communities. The suspension may not impair the right to access the property, but certain privileges can arguably be limited so long as the resident can ultimately gain entry. When access is available through an attendant or call box, may the association disable a gate card? Where is the line between inconvenience and injury?
What is clear is that access to the gym, pool, and clubhouse may be denied to rule breakers and delinquent owners. It is probably best to err on the side of caution for any other rights, at least until the legislature comes out with further clarifications.
Written by Danielle Schneider, Peyton Bolin Law Firm.