If you’re a member of a condo board and an owner falls behind on his association fees, what legal options do you have?
On the other hand, if you’re the owner, what recourse do you have if the board opts to foreclose?
In recent years, condo boards, faced with cutting back services and filing for bankruptcy, have been cracking down harder on delinquent owners.
Recent hearings before the D.C. Council highlighted this problem. Attorneys for the elderly, as well as the Legal Aid Society, urged the council to require mediation before the association can foreclose on a unit owner. Community representatives argued that delinquent owners have plenty of time to reach an acceptable resolution with the condo board before legal action is taken, and that mediation will only delay the process and place additional burdens on those owners who pay their dues.
The council — having heard the arguments — will ultimately decide the matter.
Regardless of whether the council approves the measure, associations and owners have a range of legal options to deal with a delinquency.
Associations generally have two avenues: They can file suit in a local court, or they can foreclose.
Every condo owner is required to pay assessment dues to the association. Typically, the payment is monthly, although some are on a quarterly or even yearly basis. If a payment is missed, depending on the requirements spelled out in the legal documents, the condo manager will send a 15- or 30-day notice of default. If the payment is not made during that period, the matter is turned over to the association’s attorney.
A document called a “condo lien” is filed in the public land records in the jurisdiction where the unit is located. This puts the world on notice that money is owed. The condo association wants to make sure that if the owner sells the property, the assessment will be paid out of the sales proceeds.
Then the association has to decide which route to take. It can file suit against the owner in a local court, seeking a monetary judgment. If the court issues such an order — which typically will include court costs and attorneys fees — the association has the right to garnish the owner’s wages or attach any bank accounts in the owner’s name. Additionally, it may attach other property owned by the unit owner and even sell it to satisfy the court judgment.
The owner has the right to challenge the association, presenting defenses to the judge. For example, the owner might say payments were made but not recorded by the manager or the condo did not comply with the collection procedures spelled out in the association’s legal documents.
Another defense typically raised is that the association has not repaired a problem affecting the unit, and that’s why the owner is withholding the payment. Although courts will often allow the condo owner to present such a defense, standard condominium law states that owners must pay the assessments regardless of whether there are valid claims against the association. If the owner has such a problem and it has not been resolved internally within the association, the owner can file a separate lawsuit against the condo.
Foreclosure is another avenue available to the association. This can be done judicially — ask the court to order the unit be foreclosed — or nonjudicially. The latter is the route most associations take, since it is less expensive and much quicker than going to court. In a nonjudicial foreclosure, the association arranges with a local, professional auctioneer to advertise in a local newspaper that the property will be sold on a specific time and date. If the owner does not become current before that date, the property is sold to a buyer at the auction.
Lenders have to be diligent in pursuing delinquencies, and so should condominium associations. We don’t want to evict homeowners, but the longer we wait, the larger the debt and the more difficult to reach an amicable payment plan.
Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. For a free copy of the booklet “A Guide to Settlement on Your New Home,” send a self-addressed stamped envelope to Benny L. Kass, 1050 17th St. NW, Suite 1100, Washington, D.C. 20036.