ABSTRACT

As Gonsalves-Sabola J pointed out in Triple Ecstasy Ltd v Bay View Village Management Ltd,19 the success of the condominium idea depends on the punctual discharge by the unit owners of their financial obligations. To ensure this, the legislature has provided ‘machinery for effectively protecting the rights of the unit holders against breach by any of them of these financial obligations’. Thus, where a unit owner is in default in payment of contributions levied by the body corporate for common expenses, the body corporate has two methods of recovery, which exist concurrently: (a) to bring an action for debt in respect of the amount owed (s 18(2) of Ch 139; s 18(2) of Cap 224A); (b) to enforce a charge (s 21 of 139) or a lien (s 21 of Cap 224A) against the unit of the offender. In the Triple Ecstasy case, Gonsalves-Sabola J rejected an argument to the effect that the charge created by s 21 was equitable only, holding that the Act must be interpreted as providing for a legal charge, otherwise the body corporate would only be able to put up for sale an inferior interest, and this would defeat the purpose of the Act. Further, it is noteworthy that s 21(4) gives the body corporate the same powers of sale for the purpose of enforcing the charge as a mortgagee under the provisions of ss 21-23 of the Conveyancing and Law of Property Act, Ch 138.20

An issue which arose on similar legislation in the US Virgin Islands was whether the obligation to pay contributions (called ‘common assessments’) was independent of the condominium association’s duty to repair and maintain the units or common areas; and a further question was whether the condominium association had the authority to disconnect the water supply to recalcitrant unit owners who had failed to pay their assessments. In Towers Condominium Association v Lawrence,21 the Territorial Court of the Virgin Islands held that the alleged breaches of duty by the association in failing to maintain the buildings, facilities and common areas of the condominium did not justify the unit owners’ withholding of the common charges payable by them. Meyers J emphasised that:22

A unit owner’s duty to pay assessment fees was conditional solely on his acquisition of title. Thus, a unit owner who was involved in a dispute with the association concerning its services and operations was not entitled to ‘exert

leverage in that controversy by withholding payment, but must seek other remedy’.23 The obligation to pay assessments was independent of the association’s obligation to carry out repairs; and it was further held, in this case, that the association had acted within the scope of its authority and was justified in disconnecting the water supply of delinquent unit owners, as the policy had been approved by the board of directors as a means of abating violations of the bylaws, and in order to prevent the disconnection of the entire complex by the water authority because of the refusal of a few unit owners to pay their assessments.