GA HOA Proof od Service (LIen)

DennisG7,

-- Best practices is to have a written-down, well-defined schedule of events that happen when an owner does not pay her/his assessment. Before placing a lien on a property, several communications should be sent, warning of a lien.

-- In my experience, "Proof of service" refers to serving lawsuit-related papers on a person and having the statutory required proof that the papers were served. A lien is not the same as filing a lawsuit.

-- Arguably the mere fact that the covenants state that a lien may be placed is official notice to owners who are behind in assessments that a lien may have been placed.

-- Lastly and most importantly, god help the MC if they are clouding people's titles to their homes by placing liens when the people are in fact up-to-date on assessments owed. It is a very big deal to do this. The HOA could be sued big time if a real estate sale falls through because, during the title search, a lien is found but the lien is unfounded.

-- Georgia statutes may have specific requirements for placing a lien, including possible service on the owners of the property?

Try Georgia statute section O.C.G.A. 44-14-361.1(a)(2):

https://codes.findlaw.com/ga/title-44-property/ga-code-sect-44-14-361-1.html

This statute section looks likely to apply here. I am not 100% sure.

I suspect the regulars here have a lot of experience with this. CathyA3's links, along with some of my own experience with HOAs/COAs, lead me to this question:

When an owner fails to pay an assessment, the HOA/COA Declaration typically speaks of a lien applying by default, and the HOA/COA can move right to foreclosure (which is a lawsuit). Why then do many HOAs/COAs nonetheless record a lien with the county clerk?

From one site:
"The [HOA] lien usually automatically attaches to the property, typically as of the date the assessments became due. In some cases, the HOA will record its lien in the county records to provide public notice that the lien exists, even if state law doesn't require recordation. Once the HOA has a lien, it might decide to foreclose it to force the sale of the home to a new owner."

From another site:
Technically, the lien attaches to the property as soon as the assessments become delinquent. However, because there is no way for third-parties to know about it, the homeowners’ association records a notice of the lien with the land records of the county in which the property is situated so that it will show up in a title search.

Once the lien is recorded, and proper notice is given to the property owners, the association’s claim for money is part of the public record and must be honored by third-parties."

The point of recording a lien with the county clerk appears to me to be a precaution: Recording the lien helps ensure the owner does not up and put her/his house on the market and sell it without paying what he/she owes to the HOA. Does this custom perhaps date to the days when HOA disclosure paperwork, to buyers, was not quite as routine as it is today?

I thought title companies stopped a home sale the instant they learned that the seller was delinquent in paying dues, typically from the HOA disclosure paperwork.

One of my former HOAs routinely recorded (filed) liens with the county clerk after warning delinquent owners. Yet few years ago, a former COA of mine explained to a court that the lien was automatic, and it need not be filed with the county. A judge, as part of a longer order, stated the COA could begin foreclosure without recording a lien.

You may be right about recording liens and other items as part of real estate disclosures and to prevent delinquent sellers from skedaddling without paying.

My community has some easement agreements with the adjacent commercial properties, and these agreements are recorded. I asked our attorney if sellers need to disclose them as well, and the lawyer said that recording the agreements is legal notice and additional disclosure is not required. Lesson to buyers: check the county recorder's website, don't rely on sellers to disclose.

Liens and/or foreclosure notices are done publicly. They have to be published in a PUBLIC resource available to the PUBLIC. It is typically published in the "Legal" classified section of your local newspaper. I would suggest getting the paper and taking a gander at that section. It isn't printed on a regular basis. Check with your local newspaper what their schedule is for printing. I believe it has to be published up to 3 months before the final steps are taken. Plus I always say that one should send the HOA address the notice and then a notice to the OTHER address listed. This way covers both bases. Never open an unopen rejected certified letter. Need it to prove that notice was given and rejected.