Massachusetts Appeals Court Clarifies Condominium Unit Owners’ Rights to Protest Condominium Fines and Late Fees

Mark Lichtenstein Condominium Law, Litigation, Mark Lichtenstein, Real Estate Disputes, Real Estate Disputes Litigation, Real Estate Law

A recent 2021 decision rendered by the Appeals Court in Trustees of 10 Porter Street Condo Trust v. Cerda has clarified the rights of unit owners to protest the payment of fines and late fees associated with the payment of monthly condo fees.

In the 1994 case of Blood v. Edgar’s Inc., the Appeals Court held that a unit owner may NOT challenge the legality of a common expense assessment by refusing to pay it when due. The court held the owner must pay its share of the assessment but may do so under protest – “self-help” remedies, such as withholding condo common expense assessments are not available.

In Trustees of the Prince Condo. Trust v. Prosser (1992), the Supreme Judicial Court had held that “whatever grievance a unit owner may have against the condo trustees must not be permitted to affect the collection of lawfully assessed common expense charges.”

The Appeals Court in 10 Porter Street Condo found that the rationale behind the pay-under-protest principle does not apply to late charges, penalties, fines and interest assessed by the Trustees, which were not monthly fees based upon the annual operating budget. The Court held under the unique circumstances of this case, the defendants (unit owners) should not have been required to pay the accruing, unsubstantiated fines in order to challenge them. It must be noted that the Trustees in this case may not have been acting in good faith as to these defendant owners.