lawsuit against HOA due to lien without informing the owner

Started by ShaiS • 10 replies • 3396 views

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ShaiS (Florida)
Posts: 1

Posted:

A homeowner has filed a suit stating that prior to our HOA putting a lien against the house, the HOA did not make best efforts to contact the home owner. However, the Homeowner's address was incorrect. So this was the homeowner's fault. However, the homeowner did send her contact phone in a letter few years back. But we didn't think this was official, since there was no formal request for change of address or contact information.

Can the homeowner win because the HOA didn't try to call the owner, but only kept sending letters to the address on file, which all got returned?

Any ifnormation would be appreiciated.
sk

JackieB (California)
Posts: 198

Posted:

why is the lien being done?

SureshD
Posts: 268

Posted:

Florida requires (non-binding) arbitration prior to court proceedings of an HO against an HOA or vice-versa.

At that time the "discovery" process will reveal what the issues are. THEN if the two parties cannot resolve the issue(s) then it CAN proceed to court.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By ShaiS on 09/17/2010 3:01 PM
A homeowner has filed a suit stating that prior to our HOA putting a lien against the house, the HOA did not make best efforts to contact the home owner. However, the Homeowner's address was incorrect. So this was the homeowner's fault. However, the homeowner did send her contact phone in a letter few years back. But we didn't think this was official, since there was no formal request for change of address or contact information.

Can the homeowner win because the HOA didn't try to call the owner, but only kept sending letters to the address on file, which all got returned?

Any ifnormation would be appreiciated.
sk

IMHO, no. Your documents almost certainly require notification to be by mail or posting, not by phone. It is the homeowners responsibility to make sure the HOA has their correct address if different from their HOA address. At the most I could see it delaying the procedure a little.

Studies show that 5 out of 4 people have problems with fractions

PeterB1 (Florida)
Posts: 257

Posted:

The Florida Statute (720) governing this issue is pretty specific. It says notification:

"Be sent by registered or certified mail, return receipt requested, and by first-class United
States mail to the parcel owner at his or her last address as reflected in the records of the
association, if the address is within the United States, and to the parcel owner subject to the
demand at the address of the parcel if the owner’s address as reflected in the records of the
association is not the parcel address. If the address reflected in the records is outside the United States, then sending the notice to that address and to the parcel address by first-class United States mail is sufficient."

Two key points:
1. Mail via both Certified and regular mail.
2. The address reflected in the HOA records.

Peter

SnakeP (Washington)
Posts: 41

Posted:

I reside in Washington State.

Does anyone know what Washington State law states on this matter?

I have a neighbor that had a lien placed on her. The Board claims they sent notice via first class mail. The property owner claims she never received any notice.

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

Posted By SnakeP on 09/18/2010 3:35 AM
I reside in Washington State.

Does anyone know what Washington State law states on this matter?

I have a neighbor that had a lien placed on her. The Board claims they sent notice via first class mail. The property owner claims she never received any notice.

It's easy to say you didn't get it when you do not like the news. For whether or not it was done legally, she should consult an attorney or better yet, PAY WHAT SHE OWES AND GET THE LIEN RELEASED.

Studies show that 5 out of 4 people have problems with fractions

SnakeP (Washington)
Posts: 41

Posted:

Quote:

Posted By GlenL on 09/18/2010 12:03 PM

It's easy to say you didn't get it when you do not like the news. For whether or not it was done legally, she should consult an attorney or better yet, PAY WHAT SHE OWES AND GET THE LIEN RELEASED.

The HoA had filed numerous small claims cases against other members (and won) for unpaid dues in the same year. However for my neighbor, there was no small claims case filed. The HoA went straight to a lien in her case.

Furthermore my neighbor had made a payment in Sept 2008 and yet 2.5 months the HoA filed this lien. The office manager is stating that my neighbor owed ALL of 2008 dues and that her payment in Sept 2008 was for unpaid 2007 dues. This is actually not the case and when my neighbor had requested her account balance on file it clearly shows she had paid ALL of 2007 dues and only owed a portion of 2008 dues. Admittedly my neighbor was behind in her 2008 dues but the office manager seems to have her wires crossed by stating her payment in 2008 went towards 2007 dues which we can prove is not the case.

My question are, can a HoA place a lien without receiving a judgment?

Is a HoA required to send a notice by a mailing method that PROVES (IE registered or certified mail) that the HoA served them notice of intent to file a lien?

GlenL (Ohio)
Posts: 5,491

Posted:

Quote:

My question are, can a HoA place a lien without receiving a judgment?

Is a HoA required to send a notice by a mailing method that PROVES (IE registered or certified mail) that the HoA served them notice of intent to file a lien?

Depending on State law, yes. We file liens all of the time without a judgment. Different States have different rules on what is required before a lien can be filed, so your friend should check with an attorney or as I stated earlier, pay her assessment. You stated that this was for 2008, you do realize it will shortly be 2011???? Is she current with 2009 & 2010?

Studies show that 5 out of 4 people have problems with fractions

SnakeP (Washington)
Posts: 41

Posted:

Quote:

Posted By GlenL on 09/18/2010 1:41 PM

She continued to make dues payments and did not even know she had a lien filed until January 2010. She has paid all dues and assessments through to the present. However she is contesting the admin fees the HoA is charging her for filing the lien as she feels the lien never should have been filed to begin with and she claims she was never given notice of the lien.

Interestingly on another case, one of the current Board members also complained about not receiving any written notice from the office manager concerning a fine for a covenant violation and the Board voted to rescind his fine. So the Board is already aware there are issues with our office manager not mailing out notices in at least one other case. My wife is also on the Board and takes great exception that a lien was filed just 2 and a half months after a payment was made. However the other Board members are stating they are not required to give notice of liens.

Prior Boards and even the current Board have voted on other similar issues to waive or lower charges like this. It really is looking like selective enforcement to me.

This member with the lien has stated she is going to pursue legal action if the fees for the lien are not removed. We are really just trying to stop a bad situation from getting worse. The HoA is not in the best of financial health and both my wife and I feel a legal battle is not in anyone's best interest. Other Board members disagree and currently won't budge on this particular case. The other Board members are fearful that more members may come forward asking to have fines and fees waived.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Snake,

Any other fees charged to a delinquent member, other than the assessment fee, can very easily be written off. I call these fees "gravy" as they are not bugeted items. If writing off these fees would prevent a lawsuit I would certainly recommend doing so.

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