Strata-living has become the reality for most homeowners in the island. Whether it be an apartment or a complex with apartments and townhomes, there is a common thread across every strata property, and that is the owners’ contribution to maintenance.
Under the Registration (Strata Titles) Act, “the Act”, Strata Corporations, which are made up of the actual strata lot owners, have a duty to properly maintain the common areas in a development. To do so funds for upkeep of the common areas come from the maintenance contributions of strata lot owners.
In instances where maintenance payments are overlooked, missed, or ignored all together by strata lot owners, the Strata suffers significantly as it directly affects Strata Corporation’s ability to carry out its duty of maintaining the common area property. Non-payment of maintenance can lead to disrepair and the overall devaluation of the development.
The Strata Corporation is empowered under the Act to sell any property belonging to a delinquent strata owner in order to recover outstanding maintenance. The Act provides that where a proprietor fails, neglects, or refuses to pay maintenance contributions for a period exceeding thirty (30) days, the Corporation may begin the process to have the strata lot sold by public auction or private treaty in order to collect the arrears.
Before exercising its Power of Sale, the Corporation must satisfy the Strata Commission that it has taken all reasonable steps to recover the amounts owing. According to the Act, this includes giving the proprietor, his agent or the mortgagee (if any) written notice setting out the following:
- The amount owing and the period for which contribution is owed;
- The amount of any interest payable on the contribution and the period for which interest is owed;
- Requiring that payment of the outstanding funds be made within 30 days from the date of service of the notice; and
- That should the outstanding contribution and interest not be paid within the above time period or suitable arrangements to pay the amount are not made, the Corporation may sell the strata lot by public auction or private treaty in accordance with the Act.
This notice must be served by either giving the notice to the proprietor and his agent, or leaving it on some noticeable part of the strata lot, or sending it to the proprietor and his agent through the post office by registered mail directed to them at the address provided by the proprietor.
Where the Commission is satisfied that the Corporation has exhausted all reasonable means of notifying the proprietor in accordance with the Act, the Commission may direct the corporation to take any additional action it sees fit in the circumstances, including the publication of a notice of the proposed sale. This notice should be published in a daily newspaper and within 30 days after the Commission’s directive.
Once the Commission is satisfied that all reasonable steps, in accordance with the Act, for the purpose of obtaining payment of the amounts owing and notifying the proprietor of the proposed sale have been taken, the Commission will issue a Power of Sale Certificate. The Corporation may only exercise a Power of Sale where it has received this certificate.
As you can see, paying your maintenance contributions is more than a mere obligation; it is protection of your investment.
If you happen to find yourself in such circumstances, where your home investment is at risk of being sold for non-payment of maintenance, we recommend acting quickly and seek legal advice as soon as possible.
Kandi Chin is an Associate at Myers, Fletcher and Gordon. He may be contacted at Kandi.Chin@mfg.com.jm or through the firm’s website www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.