HOA lien

please forgive my typing errors it's been a long day

Sorry, I hit submit too early.

Keep in mind that I am not an attorney and I do not work in the legal profession.


You didn't really offer to pay. You offered to pay with conditions attached. Based on your conditions, you were recognizing (by offering to pay) that that Association had the legal authority to collect assessments but you didn't want to acknowledge the rest of their legal authority to require membership. You can't really have it both ways.

This is why I said, you need to seek the advice of an attorney.

You may want to place the money in an escrow while the legalities are straightened out. However, do this only if a local attorney agrees as there are likely other legal steps that you would need to do along with placing money in escrow.


Probably. The question would be could the lien withstand a legal challenge. An attorney who has access to all the applicable documents and communications between you and the Corporation, would be better able to answer that question.


They probably are. They may or may not be doing so on the advice of an attorney.


The Lien would be to collect monies owed. How you are interpreting the reason for the Lien is not really relevant to the issue.


All good questions for an attorney.

Thank you both for your responses. There is so much to weigh out and consider in this matter.

With our offer to pay we did not admit that they have "legal authority" to collect those fees from us or anyone. We said we would voluntarily pay them. We won't ask them to prove this point because we want to contribute to anything that is being done to maintain our common areas. (We have done much work on the landscape ourselves actually.) We stated we will voluntarily give them monies, therefore no need for a legal debate between us and them about that. (even if they legally can't collect we would still offer help with any expense.)

However, giving them the legal authority to do what they are proposing to do here as far as changing/adding amendments and such is an entirely different story. (You would be shocked at how they are attempting to change the character of the community as it was intended to be). They are the ones that set the condition that receipt of our payment will make us "members" and they won't take our money unless it we agree it confirms membership.

We have stated verbally and written to them this: "We have unsettled legalities as far as your legal authority over our property, we ask that you prove your legal authority to us. When and if you provide this to us we will agree to membership but until then we offer to pay a fair share to maintain the common areas.

We feel it is their responsibility to prove they posses legal authority since they are the ones making the demands of us. They should be the ones spending money on an attorney. (We suspect they have but that the attorney knows this is a grey legal area and won't sign his name to anything). They have not sent one letter to us from an attorney. As far as we know everything they are saying is based on their interpretation/opinion of the issue. We have asked them this direct question repeatedly (written form) "Are you making you claims and threats under the legal advice of an attorney? The won't respond to this question with even a simple yes or no?

We have sought the advice of some attorneys who think we have a good case and could win, but are hones that it would be expensive. It would be less expensive if they filed and we countered. (The attorneys state that they should have received a declaratory judgment prior to their actions. It all falls back to contract law here in South Carolina, there are no hoa laws that govern single family HOA's.

Soooo everything has been at a stand still. All they have done is threatened us which we feel is a form of harassment, but since they have not caused and "damages" to us that would be worth the time and money of a lawsuit yet, we haven't pursued it.

(for the record the reason we don't want to be legally committed to them is because we fear they will probably have to spend much money in the future defending their illegal actions (its not just towards us). The board members are violating the original covenants. They show extreme favoritism and targeting others. They have already caused a drop in our property value by their lack of maintenance. We want the neighborhood kept up to the covenants that run with the land. Our dispute is not "about the money" its about their desire for power. If we voluntarily join then we would have no recourse against them except for expensive litigation which is exactly what they want.

Sorry to rant, but is is so very frustrating to be living through this emotionally. I do appreciate your input, this is my first post ever although I have been reading posts over the last year and is has been very helpful to see other viewpoints and reactions depending on how things are viewed. (very good practice in case we go to court prosec, lol)

One more question------If they actually do file a lien will it go to mediation before a judgement would be made on the lien, allowing someone to defend themselves against s wrongfully place lien?

thanks again for any response and opinions you may have

Emma's comments above were posted while I was drafting my previou comments. Let me add that our huge waterfront and common lands has functioned quit adequately - some would say quite wee- without a legal HOA/POA for +25 years albeit with minimal built environment on that waterfront. We have and maintain elaborate docks. NO HOA/NO POA can work well if there is enough respect. We keep our guns locked and at home. There is periodic drift into whacky illegal ideas but no lasting harm here yet except toxicity and chronic incorrigibility.

If your state has a formal Mediation law it should be consulted. Many jurisdictions incorporate or merely encourage diversionary mediation/other forms of ADR like arbitration to reduce congestion in civil courts.

"The law is a grey area" : may also sometimes mean "I am too cheap to hire a lawyer or paralegal" or "I am too incompetent to handle your question ?" Validly it may have meant that judicial outcomes may not be predictable.
Bob D ( not in new york but nearby )

1-Actually not "scolding". Just pointing out that lienability and vires/jurisdiction issues cannot receive 'any one size fits all or usually fits all' because the actual text of documents and applicable law is the only way to try to answer or even give a credible opinion to your jurisdcition question.

2-Misuse of liens is rampant and often illegal particularly in the condominium universe, with or without a lawyer. Maybe worse with lawyers.

3 Here Land Titles legislation exposes to less danger of "contributions for enrichment" somehow creating some sort of an implied covenant on title.

A bigger issue for me is sharing liability jointly & severally if other co-owners negligently cause harm or injury. Think : 'Our neighbourhood watch had to burn the common lands debris. But the fire was built too close to a home. And now as Officers we are insured by D&O insurance. But you co-owners are up the creek without an express rider extending coverage on your home insurance policy..."

Bob d ( not in new york but nearby. I did not sign up that way )

sorry for the typo should say (They would have to act as if there is no controversy......................

you own stuff

the covenants and restrictions recorded with/against your deed most likely impose an HOA

the present HOA may or may not have been 'properly' formed

why don't YOU try to form a proper HOA ?

? too much work ?

MOVE if you don't like where you live

John don't take this the wrong way but I feel like I know you already and that is exactly what I thought you would say. You are entitled to you opinion but my particular situation is not as simple as you make it seem. I do not have to just move. You do not know all the facts and your rude.

I can stand my legal ground. They must prove themselves, I do not have to just trust what they say.

They and their attorney are afraid to answer our direct questions because if they do they will admit wrongdoing. I am building my case.

Larry I never said I had not sought the advice of an attorney. In fact we have consulted with several over the last year or so. We are going by their legal advice. They say don't fall into the trap of being pushed into litigation. The attorneys we spoke to say that the voluntary hoa's strategy is to have us back down because we don't to incur legal expense. Like someone one this forum once said it's like a game of chess.

The attorney they are associated with is using them along with all the other hoa's he "works with" as a "cash cow" . Advising them to try and amend the declaration to add more restrictive and ambiguous rules that would leave the neighborhood vunerable to abuse of power, and conflict which in turn would make more money for the Attorney. (He is well know for his bullying behind the scenes where I live. He just wants the status quo.

We have an arsenal of documentation just waiting. I love legal research. When the time comes if needed we'll pick the Lawyer we feel most comfortable. We are not falling into their trap. They are in the wrong.

This is the only thing about this site people like you seem to just criticize, (I swore if I ever posted I would just ignore John and Larry and try to gain more information from others.) Why do you feel the need to be that way.

ps.

HOAs are incorporated to shield from personal liability.

An HOA mentioned in the Covenants exists whether incorporated or not.

The landowners are members of said HOA whether incorporated or not, like it or not, by virtue of ownership.

If your HOA is NOT incorporated then you are open to personal liability from any negligence involving a common area (eg. child drowns in unprotected retention pond, falls off climbable signage, etc).

If it is incorporated search the SC Secretary of State's web site for info. regarding same.

If it is not incorporated run fast and run far.

or

Settle down and in and wait for the next annual Meeting of the Members when elections will be held as per: SC non-profit corporate law.

Y'all have a nice day in your wonderful HOA

NONE of the language you refer to in your first post appears anywhere in the covenants.

you are kind of funny with your 95% (under our circumstances I believe we are in the 5%)

and 98% correct maybe not this time, cause so am I. (lol)

(We actually may not have to do anything because the people are so out of control and on power trips that people that agreed and joined in the beginning are afraid of them, and talking about overturning/de-throning the entire board!)

thank for your input

We signed a contract but in our case their was a defective execution of our contract (it was breached). If all parties to the contract do not agree to the "new contract" then a it must be determined in a legal way not by anyone's opinion (including an attorney) of the law but a judgement.

All of the restrictions and covenants that do not refer to the hoa are in tact and we intend to follow, but the one referring to the hoa are questionable, especially the power for them to add or amend anything.

Power to control is what they are after.

We are only 17 homes the intent was not to be overly strict, uphold property values yes, silly restriction no.

EmmaH1,

After you are foreclosed and homeless ..... I hope you have saved your 'dues money' for rent.

Perhaps. However, it was a mechanics lien and not an Association issue.

In that case, work was done that wasn't completed or wasn't done properly (I can't really recall which one). The owners initially paid for 1/2 the job with the contract and was refusing to pay the other half until the work was finished/repaired. On the advice of an attorney, they placed the remaining amount of funds into an escrow account to be paid to the contractor upon complete/repair of the work. A mechanics lien was filed. The owners fought the lien by explaining the issue and the fact that payment is available once the work is completed/repaired - it all rested on the contractor decision of what they wanted to do. The owners won and the lien was removed.

That was why I had previously suggested an escrow account but advised not to do it without the advice of an attorney.

Since you have already contacted an attorney over the issue, you may want to have them write a letter on your behalf (rather then you writing the letters). A letter from an attorney tends to get more attention then a letter from a homeowner as it can show you are ready to fight if needed. Then, as your attorney suggested, wait to see what happens. If a lien is filed, you can then dispute it.

If need be, the attorney can even instruct the Association to only contact you through them. This can help relieve the frustration of threats (real or perceived).

Keep in mind, that filing a lien is not the same as foreclosing on a lien. A lien that is properly filed but never foreclosed on does very little unless you are trying to sell or refinance your property.

We do have one attorney that we probably will end up actually retaining, she was a attorney that specializes in contract law. Someone one this site had advised that was the way to go, she has been adamant that they are in the wrong in this situation. It does seem that the "hoa" attorneys aren't geared towards helping homeowners when they are being wronged.

Howsoever liens & credit damage, the seriousness of the group's claim to "vires" or jurisdiction could complicate any plans you have to sell or a buyer's access to mortgage financing. If the claims are invalid, you & others may be the victims of what some might label title-slandering. BUT without legal skillsets applied to the covenant document(s), how long will your predicament last ? Years ?

I do not know the South Carolina judgments, but if you like legal research yourself why not check out something like : http://law.justia.com/lawsearch?query=owners%20association%20and%20lien (which returns eg 147 hits for search of "owners association" with "vires" )

In 2 sets of identical confrontations in my jurisdiction ( unfriendly to HOAs claiming pay/comply/pass along without ownership or intact chains of transferee promises ) within the last 15 years, the courts massacred wrongdoing, buckshee HOA pretender groups making voodoo "vires" claims. These and also the claims that succeeded, may show how your state's system might address this issue. But they will not help you from that judicial distance.

Listen to your lawyer. Bob D ( not in new york state )