Discrepancies with HOA do not call for nonpayment

Q: I belong to a homeowner’s association and believe the association is not making repairs for which it is responsible. I am frustrated that I pay monthly dues but never see anything get done. Can I withhold payment of my monthly dues until repairs are made?

A: No, Idaho law generally does not permit owners of houses or condominiums to exert leverage by withholding payment of assessments when involved in a dispute with the homeowner’s association about its services and operations. While it is true that under general contract law, a party’s performance under a contract may sometimes be excused when the other party has breached the contract, pursuant to statute and/or an individual association’s bylaws, assessments are generally independent and separate from an association’s obligations to provide services. There is no legal justification for a homeowner to withhold payment of valid assessments.

The independent nature of these assessments reflects significant public policy considerations surrounding the financial management and stability of an association’s operation. Associations have the important function of maintaining common areas to promote the recreation, health, safety and welfare of homeowners. By withholding payment of association assessments, an individual owner, who may or may not have a meritorious claim against the association, injures every other owner by diminishing the resources available to the association to perform its duties. Associations rely solely upon payment of these assessments to perform their duties and would cease to function without regular payment of assessment fees.

Recognizing their important function, the Idaho Legislature has established specific procedures for an association to quickly and efficiently obtain relief against a nonpaying owner. Idaho law provides that an assessment becomes a debt of the owner at the time the assessment is levied. If an owner fails to pay the assessment, the association may file a lien on the owner’s property in the amount of any outstanding fees owed plus costs and attorney fees. If the owner still does not pay the assessment, the association may pursue other legal remedies, including judicial or private sale foreclosure. If the association takes legal action against a nonpaying owner, the owner cannot use the association’s alleged breach of contract as a defense for nonpayment of the assessment.

Although it may be frustrating when it appears the association is not fulfilling its duties to maintain common areas, allowing individual owners to assert grievances by refusing to pay assessments would threaten the financial integrity of an association’s operation. Consequently, to obtain relief against a homeowner’s association that is failing to perform its duties, a homeowner may not unilaterally withhold payment of monthly dues but must seek other legal remedies against the association.

Ryan Jacobsen is an attorney practicing in Idaho Falls. This column is provided by the 7th District Bar Association as a public service. Submit questions to It’s the Law, P.O. Box 50130, Idaho Falls, ID 83405, or by email to rfarnam@holdenlegal.com. This column is for general information. Readers with specific legal questions should consult an attorney. A lawyer referral service is provided by calling the Idaho State Bar Association in Boise at 208-334-4500.