Questions Answered:
QUESTION: Good morning, I am sending this email in hopes of garnering further information about the potential filing of liens for homes past due on association fees. I am the the current HOA president and we are looking to move forward on filing liens on delinquent member homes. I would like to find out more and explore what next steps would like. Thank you for any help you may be able to give.
ANSWER: Good morning. Thank you for contacting us.
Usually, in the Declaration of Covenants, a lien is provided for late payments and violations. The lien ordinarily runs with the property so when a property sells, there is a process in the closing of requesting that association provide verification that the dues are current.
There are a variety of ways of enforcing unpaid dues:
-Sending multiple letters and filing multiple notices of the lien is one way.
-Filing a collection lawsuit or a foreclosure are two other ways.
Assuming the Declarations provide for collection of attorney fees against delinquents, which is usually the case, enforcement can happen at no cost to the association. That is the usual case and the way the association is supposed to work. I would need to review your master documents– declaration, amendments, bylaws and rules, to be sure. Sometimes procedural adjustments are needed.
The Process is usually as follows:
1. Association sends any required delinquency notice(s).
2. Associations send final notice of referral (to atty) for collection.
3. Attorney sends required Fair Debt Collection letter and initial bill.
4. Attorney files whatever proceeding is appropriate.
In our experience, diligent followup results in a quickly declining number of violations.
For us the process starts when the association send us a copy of the final referral notice and a copy of the full statement of account. If you have any questions or want to send a test case, please feel free to reply with details. If you have copies of association documents that would be helpful as well. Thank you for your consideration.
Vince Heuser
(502) 458-5879
Recent Cases to Ponder
Be Sure you Pay Enough for your Foreclosure Purchase.
Recently the S. Carolina Supr. Ct. in a rambling and whiney opinion castigated an association and foreclosure purchaser, and voided a foreclosure sale because the sale amount was too low. Stripped of all the drive-by commentary, the holding consists of a sentence:
“Under the Equity Method, [the buyer’s] bid accounted for approximately 4.9% of the value of the Property, which was far less than the 10% threshold we have looked to in the past. As a result, under the circumstances presented in this case, [the buyer’s] winning bid was so grossly inadequate as to shock the conscience of the court.”
You can read the full tale of woe here: Winrose Homeowners’ Assoc v. Hale.
Sixth Circuit Says Smokers have Rights, Too.
A non-smoking condo owner got steamed over the neighbors smoke and sued the association claiming her “asthma” was a protected disability, the smoke was a nuisance and the board was required to prohibit it. Reminding the Plaintiff that property rights are still important and that not every discomfort is a protected disability, the Sixth Circuit affirmed the dismissal by the district Court.
This is a good decision for condo managers to review: Phyllis Davis v. Echo Valley Condo Assoc..
Ky Condominium Law Major Revision
Effective Jan 1, 2011, the Commonwealth of Kentucky adopted the Kentucky Condominium Act. This representented a major revision of Kentucky Horizontal Property Law created in 1962 and added numerous new obligations for condominium associations.
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Condominium Association Sued?
Board members can become personally liable for association debts if they fail to act prudently.
Read more…