An unpublished decision in a lower California court recently upheld a community association’s attempt to charge substantial extra fees to owners who rent out their units.  Stating that they were acting in accordance with the authority granted in the association’s governing documents, the board’s adoption of additional trash, watercraft, building permit and property transfer fees was supported by the court.

But can, or should this, be attempted in your community?

One of the keys to the court decision in question appeared to be that there was sufficient leeway in the declaration of covenants to allow the Board to adopt this additional fee structure designed to alleviate some of the perceived impact on the association by the renters of the units in question.  While we have not read the declaration of covenants in question, we can tell you that you should be careful in “attempting this stunt at home.”  Most covenants have specific provisions regarding how the expenses of the association are to be allocated, what are to be considered valid common expenses, and what are to be considered individual or special expenses. In single family developments, assessments are typically allocated equally per lot.  In condominiums, they may be allocated in accordance with the square footage of the unit.  Attempting to disproportionately assess fees or expenses against a class of owners (non-resident owners) created by the board could easily run afoul of these allocation provisions of the declaration in question.  This could, in turn, lead to legal action by those non-resident owners who are aggrieved by the practice or attempt.

If you are considering looking into the possibility of assessing non-resident owners differently than resident owners, or allocating separate expenses to them, we highly recommend you consult with your association legal counsel regarding the subject.

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