COLUMN: Association quadruples fee for renter

Q. I rent a home within an association. My landlord pays the association fee which is absorbed in my rental payment. I also have been paying a $60 fee which enables me to use the common areas, which I consider to be a reasonable fee to cover the administrative cost. However, the association increased this fee to $240 in January.

As a renter, I have no vote and the association charged these fees without informing me. Is it customary for associations to sock it to renters? Is it legal?

A. You raise a number of issues. The concept behind this special charge is that renters do not have a proprietary interest in the common area property and therefore may have a tendency to abuse or vandalize that property more than an owner. Whether this perception is true is debatable.

First, you must review your lease agreement. Does it state that the tenant will be charged a fixed fee of $60 per year to use the association's facilities? Or, does it state that the renter will pay a fee to the association, as assessed by the association?

If the lease agreement has a cap on the fee, then the landlord would have to absorb the increase. If there is no cap but just a statement that the renter pays the fee, then you, as the renter, would have to pay the increased amount.

If the lease agreement is silent as to the payment of this fee, there is a precedent -- the renter pays the fee, regardless of the amount of the fee.

The next issue is whether the association has a legal right to charge a user fee for its facilities. If this fee is charged to all residents, then the renter is just another resident who is paying a fee that has been assessed to all. If this user fee is just being charged to renters, then we need to review the governing documents and state law.

Generally speaking, governing documents allow for the transfer of some of rights of ownership, such as the right to live in the community and the right to use its facilities. There are governing documents that restrict the rights of renters, such as the right to own a pet, and this restriction has been tested in several state supreme courts.

In some of these cases, the association won, and in others the association lost. One of the legal issues often discussed is whether the covenants specifically state the restriction. If they do, then there was notice of the restriction. Do your governing documents state that renters will be charged a user fee? If so, the action may be legal.

According to state law, any common expense or portion thereof benefiting fewer than all of the units must be assessed exclusively against the units benefited. It could be argued that owners who lease their units should not have a special user fee for their tenants to use the same facilities that owners who do not have a tenant enjoy.

Owners with renters, if motivated enough, could challenge these fees by filing a complaint with the ombudsman's office and ask for arbitration. Other than this action, your options are paying the fee; not paying and not using the facility; negotiating with the landlord to include the fee in the rental payment; or not renewing the lease and vacating the premises.

Questions for Barbara Holland may be sent to Association Q. & A., P.O. Box 7440, Las Vegas, NV 89125. Her fax number is 385-3759.

Barbara Holland, Certified Property Manager, is president and co-owner of H&L Realty and Management Co. She is a member of the Institute of Real Estate Management and is the author of two books on the subject. Holland is a past president of the Greater Las Vegas Association of Realtors.

Real Estate home