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[ The Atlanta Journal-Constitution: 4/25/04 ]

Condo dues change can create new inequities

By DAVID MYERS
Cowles News Service

Q:  We live in a condominium complex where every owner must pay $212 each month to the homeowners association. This seems unfair, because I must pay the exact same amount of dues for my one-bedroom condo as my next-door neighbor pays for his three-bedroom unit. What can I do?

A: The dues structure should be spelled out in your association's bylaws. Changing the rules so that monthly fees are based on each unit's size would likely require majority (and perhaps even unanimous) approval by all homeowners in the complex.

You can certainly ask your association's board to consider putting the issue up for a vote. But it is doubtful that owners of larger units would be willing to approve an increase in their own monthly dues just so owners of smaller units could pay less. Though the current situation might seem unfair, restructuring the dues system based solely on each unit's size could create even greater disparities. For example, a young couple that own a one-bedroom unit in your complex and regularly uses its pool, tennis courts or other amenities would be getting far more benefits from their $212 monthly dues than, say, a frail older couple that owns a three-bedroom unit but does not use the on-site recreational facilities.

Changing the rules so the younger couple would pay less and the older couple would pay more wouldn't really be fair.

Q: I own a 2-acre parcel of raw land that I would like to subdivide. The information I received from the government about subdividing says I would have to include a "percolation test" as part of my plans. What is it?

A: A percolation test is usually performed by a hydraulic engineer to gauge the soil's ability to absorb and drain water.

The results of the test help to determine the suitability of the site for different types of construction, as well as for the installation of septic tanks or injection walls for sewage treatment. Many landowners who want to build on raw land or subdivide it are required to perform a percolation test before their plans can be approved by government officials.

Q: We are about to refinance. The appraisal we have received from the bank indicates that our property has gone up in value by almost $70,000. When the refinancing is complete and the new loan is recorded with the county, will the assessor automatically raise our property tax bill because of the home's increased value?

A: No, the bank's new appraisal won't automatically trigger an increase in your annual property tax bill. Neither the bank nor its appraiser will share the report with the assessor, and you're under no legal obligation to let the assessor know about the increase either. Of course, if your home had actually dropped in value since you bought it, you would certainly want to share the appraisal results with the local assessor and ask that your property tax bill be adjusted downward. Filing a property tax appeal is relatively easy, and a successful appeal can often save a homeowner $100 or $200 every year.

Q: We have received an offer to purchase our home from some first-time buyers. They have offered to make a 10 percent down payment but would rather take over our existing monthly payments instead of getting a new loan. Would this be possible? What would our bank say?

A: The bank might agree to the deal. Whether you should, however, is an entirely different matter.

There are two basic ways for a buyer to take over a seller's monthly payments. The first is for the buyer to formally "assume" the loan, which requires the bank's approval. If the bank approves the assumption, the seller should also insist that the lender provide a release stating that the seller is no longer legally liable for any repayment of the debt.

The other (and far riskier) way for a buyer to take over the seller's payments is for the buyer to take title to the home "subject to" the existing mortgage. In these types of deals, the buyer agrees to make the seller's future monthly payments, but the seller is still legally liable to the bank for full repayment of the mortgage.

If the buyer defaults and the home is foreclosed, the seller's credit also will be ruined. These are just two reasons it's generally best for sellers like you to steer clear of offers made "subject to" the existing loan. Also realize that if you accept this offer, the only cash you'll get is the buyer's 10 percent down payment, much of which might be needed to pay your share of the closing costs. If your equity exceeds 10 percent, you'll essentially be giving that excess equity to the buyer.