Memorandum of Lien - Virgina

Started by PaulM18 • 18 replies • 3857 views

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PaulM18 (Virginia)
Posts: 46

Posted:

Does anyone know where I can find a good sample form to file Assessment Liens?

We're a small HOA and would like to avoid the expense of a Lawyer to file these.

Thanks!

Paul

MelissaP1 (Alabama)
Posts: 13,836

Posted:

That would be great but it depends on your laws of your state on filing liens. Some states do require a lawyer to file a lien. The good news is that it doesn't necessarily mean having a full time lawyer. There are some legal services available where you can pay them a fee to file a lien on your behalf. It's usually about $400 more or less depending on who you hire. Plus that legal fee now becomes part of the lien.

Otherwise, I would just call up your local courthouse (Probate court I believe) and ask them what the process is to file a lien. The President may be able to file it after a board vote agreeing to it. A HOA only needs a lawyer to really represent them in court for the most part. Otherwise your HOA may be able to hire a legal service which can be found in your yellow pages of the phone book.

I also strongly recommend you have a lien policy in place before filing. We had a policy of 6 months of non payment of dues and we would lien. A year or so after that we may start considering foreclosure. It depended on the circumstances. This way a member could work toward making arrangements to pay if they have financial difficulties if you have a cut off. It's best they pay little or avoid late fees than nothing at all. After the established time line and no payment you can pretty much discern who's just not willing to pay and take the appropriate actions from there.

Former HOA President

PaulM18 (Virginia)
Posts: 46

Posted:

Thanks for the response.

I know we can file it ourselves in Virginia... and there is not a standard form (there was one for Mechanic's Liens but not for Assessment Liens)...

Our treasurer is going to go talk to the Clerk of Courts office and see if the memorandum we developed is good...

Was just hoping someone out there had one they'd already used in Virginia

Paul

PaulM18 (Virginia)
Posts: 46

Posted:

Oh... forgot to mention... Right now we're just trying to get a Builder who refuses to pay annual Assessments so that when he sells the homes he has to clear the lien...

So far we have had great payment history of the actual owners... but I'm sure that at some point it will be an issue.

Paul

MelissaP1 (Alabama)
Posts: 13,836

Posted:

I thought that it is only a mechanic's lien. Didn't know there was a lien for assessments. Atleast that's not what we called it. Are you still under the control of the developer or are you owner run? I am a bit confused on the filing a lien on a builder. Could you elaborate more on that set up? Something seems off here. Thanks.

Former HOA President

PaulM18 (Virginia)
Posts: 46

Posted:

We are no longer under developer control...

But a 2nd builder is in our neighborhood who's not playing nice and the Developer has basically washed his hands of us...

In virginia we can file an Memorandium of Lien for unpaid assessments (including fines) Doesn't require a lawyer to file and requires no judgement in court.

The 2nd builder refuses to get plans and specs approved before building.. won't pay his assessments and basically hangs up on us when we call him.

Paul

MelissaP1 (Alabama)
Posts: 13,836

Posted:

A lien is a form of a court judgement. It's got stronger teeth than a lawsuit type court judgement. Is the builder a HOA member? You say he's not paying his assessments. That would mean he has to be a HOA member. That being the case then treat him as such. Seems your HOA needs to establish an ACC (Archectual Control Commitee) that can enforce some of the approvals. If not, the board is responsible for approving. You need to establish a fining schedule. I would also talk to the local building codes people about your building codes and make sure they are aware of the HOA's standards. They will hit them harder for violating codes than the HOA. Just follow your rules and make sure you have some that cover your issues.

Former HOA President

TimB4 (Tennessee)
Posts: 21,062

Posted:

Paul,

Typically the builder and their successors are exempt from paying assessments. Of course your governing documents may be different. You should check to be sure.

Tim

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Paul

I see several issues in your post:

1. When does one start paying dues. One HOA I was a member of got into an issue with the builder about when should HOA dues start. The builder's lawyer said when the home was sold. Our lawyer said when the lot was platted. There was no outcome as we decided not to pursue the issue. I can only assume others have, so I hope some post.

2. HOA control over style/design of new homes built. As I understand, you are saying that the builder will not "accept" your HOA's right to control the style/design/whatever of the homes he wishes to build. Is this correct?

Thanks

John

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By MelissaP1 on 03/28/2012 1:13 PM
A lien is a form of a court judgement. It's got stronger teeth than a lawsuit type court judgement.

Wrong!

A lien is nothing more than a legal notice that one party claims that another owes him money. Courts do not issue liens. A party who disputes the validity or amount of a lien will usually have file a lawsuit to quash the lien.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

It is another form of a judgement. It ataches itself to property while a lawsuit court judgement doesn't. Ask a lawyer....

Former HOA President

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By MelissaP1 on 03/28/2012 8:24 PM
It is another form of a judgement. It ataches itself to property while a lawsuit court judgement doesn't. Ask a lawyer....

Which part of "Wrong" do you not understand?

A lien is an allegation, usually ex-parte, filed with the same public officer that records deeds. The claims set forth in a lien are always subject to judicial review.

Courts do not issue liens; they issue judgments or orders.

If you have a obtained a judgment against another party, you may be able to file a lien against his property, but it is you, and not the court, that files the lien and your judgment lien remains subject to judicial review just like any other lien.

For a more authoritative discussion, see ABA Family Legal Guide

PaulM18 (Virginia)
Posts: 46

Posted:

Ok.. To address some of the questions... I know we CAN file a lien... I'm just looking for a good standard form to use in Virginia...

But if you want to satisfy your own curiousity...

Our Declaration requires all builders to pay assessments at 20% of a regular home's assessment. Assessments are due January 1st each year. There is no exception.

We provided the 10 day notification of our intent to LIEN as required by the Property Owners Association Act of Virginia for unpaid annual assessments.

In regards to the violation/penalty assessments:

We have an ARC that we just established but the board has been fullfilling that role.... but having one doesn't help if he refuses to even speak to us and simply hangs up the phone if we call him.

We've provided him notification of violation and are assessing him daily for non-compliance in accordance with the Property Owners Association Act. We provided him 10 days to come into compliance and we would waive penalties afterwhich we would move toward placing a second Assessment Lien against his properties.

Again since we are required to provide 10 days notification prior to filing any lien... we are providing a second warning with how much his current penalty is as well as giving him a time and date to contest his violation before the Board of Directors.

Think I covered everything...

Paul

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

We're a small HOA and would like to avoid the expense of a Lawyer to file these.

You need a lawyer to file the first one. He needs to read your CCR's to see if you are legally allowed to file a lien. In some cases, your HOA doesn't have the authority to file a lien. Now the homeowner is suing "you" for an illegal lien.

After a lawyer has issued a lien for "your" hoa, you can copy him for future liens.

PaulM18 (Virginia)
Posts: 46

Posted:

Its quite clear in the State Property Owners Assocaition act that we can lien as well as in our CC&R's which state we have the right to lien

Again... I'm not here to debate IF i can submit a lien...

I'm just looking for a form...

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Just saw advertised on TV something called "Legal Zoom". They may have what your looking for. It says it will fill out or provide certain forms. You can still not have to hire a full out firm to do this job. There should be some legal options out there to lower your costs. Check out the yellow pages for some legal services. You can pay a small amount to a lawyer without all the retainer and hourly rates. We never had a full time attorney. Our book keeper had one and we'd work through them. If you have an MC, they may have an attorney set up to use there as well. Plus some companies offer free legal help as part of their employee packages. Plenty of options out there for hiring a lawyer without all the fees or needing one full time.

Former HOA President

BradP (Kansas)
Posts: 2,640

Posted:

get a copy from your county clerk of what other HOA's have done..that is what we did

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Steve and Paul

Steve, laws vary from state to state as Paul has said. In SC, a lawyer is not need/required (and many might say not wanted....LOL) to file a lien.

Hope this helps.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

our CC&R's which state we have the right to lien

But do you have the right to lien for the reason your filing one for. And did you follow the correct process of hearings, etc. If your here asking for a template, I'm thinking you probably havent. So go ahead, file the lien, and cross your fingers you did it right and dont get sued. Me? I'd spend the $250 on a lawyer to do the first one, then follow his example.

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