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QUESTION: We have a number of owners who are defaulting on their mortgages and not paying their HOA fees. Can we disconnect their gas, water & electricity? Can we disconnect their Cable TV? Laundry is coin operated through a vendor, but can we ban them from using the laundry rooms? We have outdoor areas and gardens. Can we ban them from sitting in the gardens or walking through those areas and parking lots? Can me ban them from using the elevators and require them to use the stairs? Can we prohibit them from going through the main lobbies and only use the freight entrances and back doors? Just how far can we go to make it uncomfortable for them and get these deadbeats to pay up or sell their units so the rest of us don't have to have a dues increase to fund their non-payments. It's getting bad and more owners are defaulting every month.
ANSWER: I know the defaults are getting bad, but not everyone is a deadbeat who deserves to be painted with a scarlet letter and paraded through the courtyard. Many owners are decent people going through tough economic times. Can you suspend privileges? Yes, provided your governing documents allow it, and you follow due process. In addition to suspending an owner's right to vote, you can suspend some, but not all, services. Following are the ones you listed:
Utilities. The courts treat associations as landlords when it comes to utilities. Under landlord-tenant law, landlords may not interfere with or terminate utility services (gas, electricity, heat, etc.).
Cable TV. Suspension of cable services can be quite effective. If your association has a bulk contract with the cable company, you can suspend services. In one case, an owner had a Super Bowl party planned for the weekend. When his cable was disconnected, he paid his entire delinquent account (thousands) in cash, in a matter of hours.
Laundry. If laundry machines are paid through owners' dues, the service can be suspended. If they are coin operated, it cannot.
Elevators. If you make elderly or medically challenged owners and gests walk up stairwells and they have a heart attack, you're going to get sued. Moreover, elevators have been classified in landlord-tenant law as a utility. That means you cannot cut elevator service to owners and their guests. However, I believe you can require that furniture deliveries and other deliveries use the stairs. Not everyone agrees with me on this point.
Main Lobbies. No, you cannot bar owners and guests from walking through the lobby. Owners have the right of ingress and egress. Except as provided by an order of the court, associations may not deny owners or occupants access to their separate interests by restricting access through the common areas. Civil Code 1361.5
Gardens. Can you prevent delinquent owners from walking through the gardens? I suppose, but really, who is going to enforce it? That's a bit much.
Other. The list of privileges that can be suspended will depend on the privileges being offered by the association.
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