It has long been the frustration of condominium boards that unlike their cooperative board brethren, condominium boards have very limited options in dealing with a recalcitrant unit owner who fails to pay common charges. Unlike co-ops where the owners are “tenants” who can be evicted for non-payment of rent in a summary proceeding, condominium unit owners have a fee interest in their unit and, generally, condominium boards are relegated to either a plenary action to recover unpaid common charges or the prosecution of an action to foreclose a condominium lien for unpaid common charges filed pursuant to Real Property Law (RPL) 339-z. A foreclosure action can be a lengthy and expensive process, during which time the unit owner many times remains in possession “rent free.”
‘Heywood v. Wozencraft’
In a major decision issued just weeks ago by the Appellate Division, First Department, the court has provided a powerful remedy to address the case of a defaulting unit owner who refuses to pay common charges. In Heywood Condominium v. Wozencraft, ___ A.D.3d ___, 2017 N.Y. Slip. Op. (1st Dept. Jan. 12, 2017), the Appellate Division, in a unanimous opinion signed by Justice Peter Tom, affirmed the Supreme Court’s order ejecting the condominium unit owner from the apartment. In considering what the court described as “a rare occurrence—the eviction of a condominium unit owner from his apartment for failure to pay condominium common charges and rent,” the court held that “pursuant to the Condominium Act and relevant condominium bylaws, and under the circumstances presented here, eviction was proper and not unconstitutional.”
