Recorded a lien of $211,178.40 against a unit of which $132,879.10 was late charges and legal fees rather than common charges, curtailed the owner's building services, foreclosed, and had him ejected from the home he owned while requiring him to pay $6,500 a month in rent for it.

A tribunal rejected this claim.

Heywood Condominium v. Wozencraft · 148 AD3d 38 (1st Dept 2017) · Sup Ct NY County · Index 152411/2013

Outcome

Board prevailed

Filed

2013-03-15

Last decision

2017-01-12

Elapsed

3.8 yrs

Brought by

board

Posture

interlocutory appeal

What the court held

Real Property Law s 339-z gives a condominium board a lien for unpaid common charges "together with interest thereon." Where the by-laws separately authorise attorneys' fees, late charges and interest to be ADDED to the delinquent common charges and provide that all such sums constitute a lien on the unit, a lien that includes them is not fraudulent, and a motion to dismiss the foreclosure on that ground fails; challenges to the AMOUNT are for a referee under RPAPL 1321, not for the motion. Real Property Law s 339-aa entitles the plaintiff in such a foreclosure to the appointment of a receiver and requires the unit owner to pay a reasonable rental for his own unit pending sale, and a receiver so appointed may obtain a writ of assistance ejecting him. Ejectment on these facts is neither improper nor unconstitutional. (One claim was cut: a money-damages cause of action could not be pleaded in the foreclosure while an identical claim was pending in the board's earlier 2011 action — CPLR 3211[a][4].)

“we reject defendant's contentions that plaintiff's lien on the unit is fraudulent to the extent it includes attorneys' fees, late fees, and interest”
148 AD3d at 46

Outcome in full

The board prevailed on everything material. Confirmation of the JHO's report (service properly made; receiver recommended) affirmed. Appointment of a receiver, the $6,500 monthly use-and-occupancy direction, and the denial of the owner's cross motion to dismiss affirmed — MODIFIED only to dismiss the board's own second cause of action for money damages as duplicative of its pending 2011 action. The writ of assistance ejecting the owner from his unit affirmed. The amount actually owed was NOT determined; it was left to a referee under RPAPL 1321.

The harm continued while the case ran

The owner stopped paying in April 2007 after being denied services he says he was owed; the board curtailed non-essential services under house rule 32; the arrears, late fees and legal fees compounded for nearly a decade; and he was ultimately ejected from the unit he owned. Whether he was ever owed those services was not decided in this action.

What it cost

$63,409 — stated in the decision itself, borne by the unit_owner.

What would have prevented this

The statute is thin and the by-laws are the whole game. RPL s 339-z alone would have supported a lien for common charges and interest; sections 5.5(c) and 5.7 of this building's by-laws are what carried $63,408.59 in legal fees and $69,470.51 in late charges onto the lien, and no public body reviewed those clauses before they were used. Florida caps the charges an association may add to a delinquent account by statute; New York leaves the cap to the document the sponsor drafted. Note the compounding: fees accrue while the owner litigates the fees, and the amount is not reviewable until a referee reaches it.

Sources

Read in full and verified 2026-08-04.

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