Suspension of Community Privileges: Delaware

Date: April 8, 2014

A community association's ability to suspend an owner's voting privileges and community privileges, such as parking, pool, and/or fitness center access, is a powerful tool associations can use in getting the attention of owners who are in violation of association governing documents.  This tool is typically used when an owner is delinquent in paying his or her assessments and can serve as a deterrent for non-payment as well as an effective means of assessment collection.  It is important to note, however, that before an association can proceed with suspending an owner's voting and/or community privileges, it must carefully review its Declaration, Bylaws, and applicable statutory codes in order to determine whether it has the requisite authority to suspend such privileges, and if so, what procedures must be followed.

Under 25 Del. C. ¶ 81-302(a)(11), which is applicable to many but not all* common interest communities in Delaware, an Association may

…suspend any privileges of unit owners, other than the right of a unit owner to vote on any matter submitted to a vote of unit owners, or services provided to unit owners by the association (other than those necessary for the habitability of the owner's unit) for non-payment of assessments; may impose charges for late payment of assessments; and, after notice and an opportunity to be heard, may levy reasonable fines for violations of the declaration, bylaws and rules of the association.

This statutory provision is relatively new in Delaware and has not been challenged or interpreted by a Delaware Court yet.  However, it provides an Association with broad powers to suspend privileges for unpaid assessments so long as the suspended privilege is not related to a unit owner vote or a service necessary for the habitability of a unit.  A board that is considering the suspension of certain owners' privileges should carefully review their governing documents to determine if there are any express provisions allowing or limiting the proposed suspension.

*The application of this section of the code requires an in-depth analysis, so if you have questions please contact your attorney.