Advisories

Condominium Unit Owner Not Entitled to Abatement of Common Charges Even When Unit Was Destroyed by Fire

Under the terms of a Condominium Declaration and By-Laws, a unit owner was not excused from paying his monthly common charges, even though his residential unit had been destroyed by fire through no fault of his own. Hall v. Windbrooke Home Condominium Ass’n, 60 Misc. 3d 140(A), 2018 N.Y. Misc. LEXIS 3444 (App. Term 9th & 10th Dists. Aug. 9, 2018).

The unit owner sued the Condominium in Small Claims Court seeking to recover $4,949 in common charges that he had paid to the Condominium. He asserted that he was entitled to an abatement of the common charges for the period following the fire during which the unit could not be used, until it was reconstructed.  The Condominium argued that the By-Laws did not permit an abatement of common charges.

The Small Claims Court awarded the unit owner $3,862, but an appellate court reversed this decision and granted judgment in favor of the Condominium, awarding the unit owner nothing.  The appellate court reasoned that “[t]he bylaws required plaintiff, as a unit owner, to pay common charges assessed against him when due for the common elements, such as the land under the homes, all utilities located outside the homes, courtyards, and park areas.  The condominium’s bylaws do not allow for a proportionate abatement of common charges to the owners of condominium units which have been rendered wholly unusable as a result of damage resulting from all-encompassing destruction such as a fire.”  In addition, the Board’s decision to seek a variance in connection with reconstructing the unit, which allegedly caused a delay in its reconstruction, was protected by the Business Judgment Rule.

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