Q&A: Authority to Impose Fees

Q I am the board president for a condominium development. At one point the board allocated space for storage cages and bike spaces at no cost. The board would now like to consider charging for these spaces (to existing owners as well as new owners). How can we implement this?

—Revenue Raiser

A “The answer to this question requires a careful review of the governing documents in terms of the description of the areas to be allocated as individual unit owner storage and the board’s authority to impose fees,” says Attorney Mark D. Imbriani, who has his own practice in Somerville, New Jersey. “Generally, the land, recreation or clubhouse facilities, structural elements, halls, stairways, walkways, driveways, and parking areas within a condominium, not specifically reserved or limited to a particular unit of group of units, are defined in the master deed as common elements. In addition to ownership of the unit, as defined in the master deed, each unit owner receives an undivided percentage interest in the common elements. As a result, each unit owner has the right, in common with all other unit owners to the use of the common elements, except to the extent that the master deed provides for limited common elements.

“A limited common element is generally defined as those common elements, which are intended for the use of one or more specified units to the exclusion of other unit owners. Whether or not the board has the power to designate a space or other portion of the common elements for use by a particular unit owner to the exclusion of all others will depend on the extent to which those powers have been delegated to the board in the master deed and bylaws. For example, it is common for bylaws to delegate to the board the power to rent the clubhouse or recreation facility to a unit owner for a fee, or to assign a parking space to a particular unit. However, in the absence of expressed authority to assign common elements, in this case a storage area, there may be some doubt or uncertainty as to the authority of the board to make such an exclusive allocation of space to an individual unit.

“Assuming that the master deed and bylaws for your condominium authorize the board to allocate space to a particular unit for use as a storage cage or for bike storage, the second part of your question asks whether or not the association can charge a fee for the use of such spaces. Generally the master deed and bylaws will spell out what fees and charges may be imposed by the association. In the absence of expressed authority in the master deed or bylaws, it is unlikely that your board has the power to impose a fee in connection with the allocation of a storage space to a particular unit. If the board desires to designate storage areas to particular units for a fee, my advice would be that it first amend the master deed and bylaws to grant such powers to the board.”

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