—Questioning Condo Owner
“The statutory warranty of habitability does not apply to condominiums and there is no abatement of common charges or set-off right available to a condominium owner even if the same condition would warrant relief to a tenant shareholder in a cooperative or a tenant in a rental building. Accordingly, if the unit owner is suffering from water leaks or inadequate heat, the unit owner is not entitled to withhold common charges and seek an abatement, but may sue the condominium for breach of its obligations under the bylaws and seek an injunction compelling the condominium to repair the conditions. The unit owner also has the right to sue or counterclaim against the condominium for damages as a result of the breach of the condominium documents if the conditions complained of constitute a violation of the condominium’s obligations. However, the condominium would probably be entitled to summary judgment for its claim of unpaid common charges while the claims the unit owner has against the condominium would continue to be prosecuted after the condominium has its foreclosure judgment and seeks to enforce it. This means that the unit owner would have to pay the judgment obtained by the condominium to avoid foreclosure before they could obtain a judgment in their favor for the breach of the condominium documents.
“The unit owner also has to be aware that the condominium bylaws probably grant the right to the condominium to recover its legal fees as a result of the unit owner’s default. Again, unlike the statutory rights granted to tenants in a cooperative or rental, the unit owner does not have the right to recover its legal fees against the condominium even if he or she successfully sues the condominium for the damages the owner suffered as a result of the breach of the condominium’s obligations.”