Lien notices

Started by PeggyH • 10 replies • 1153 views

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PeggyH (South Carolina)
Posts: 36

Posted:

Our HOA here in South Carolina last month notified some homeowners that a lien was going to be put on their property if they didn't pay their back dues. We sent the notifications by certified mail giving them 30 days notice. My question is this, some of the homeowners for what ever reason didn't pick up their letters at the post office, or didn't take delivery of them at their homes. Is there anything else we should have legally done to notify these people. My thought is we can not control if the homeowners choose not to get their mail, but we did notify them at least 30 days in advance. Any thoughts on this.

MaryH5 (North Carolina)
Posts: 2

Posted:

Your covenants should address how homeowner's are to be notified of such things. If you do not have anything in your covenants or bylaws, the look to State Law. I know North Carolina has the Planned Community Act 47-F that states such things.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Our bylaws actually address "notice" this way:

"If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the member at his or her address as it appears on the books of the Residents Association, with the postage thereon paid."

BradP (Kansas)
Posts: 2,640

Posted:

Peggy:

I would also send a first class letter to them...if they chose to not open it that is there fault, but between the two that should be all the notification you need unless your state and/or docs say differently.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By MicheleD on 04/25/2008 6:50 AM
Our bylaws actually address "notice" this way:

"If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the member at his or her address as it appears on the books of the Residents Association, with the postage thereon paid."

Just curious Michele.. does the reverse work as well? Can I say "Well, I delivered my dues, promptly and on time. I deposited it in the US mail, addressed and properly stamped. That's good enough to be deemed "delivered", right?"

RogerB (Colorado)
Posts: 5,067

Posted:

Brian, in regard to your question: Can I say "Well, I delivered my dues, promptly and on time. I deposited it in the US mail, addressed and properly stamped. That's good enough to be deemed "delivered", right?"

Our collection rule states - assessments are due by the first day of the month, after a 10 day grace period payments are delinquent and will be charged a late fee.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Brian,

Well, the only thing I would say to that is, "we never received it, do you have a cancelled check? Or, if it was lost in the mail, then bring, or send in another one today and I won't charge the late fee." If it's a chronic late payer, I wouldn't give his excuse much credence. Checks do get lost in the mail and I would give anyone the benefit of the doubt -- one time. That happened once when I was treasurer. I believed the guy because he was always on time, in fact I usually received his checks a few days b/4 the first of the month. I wondered why he was late and when I sent the notice I found out what had happened.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Peggy,

That is typical of someone who is just trying to get out of something. I had that happen to a member who owed the assn $$ for damages to the playground. She knew she was late on a payment and when the notice was mailed certified mail she purposely did not go to the post office to pick it up. The mailman hand- delivered it for me! It's always good to be on friendly terms with the mailman.

MicheleD (Kentucky)
Posts: 4,491

Posted:

Brian said: " Can I say "Well, I delivered my dues, promptly and on time. I deposited it in the US mail, addressed and properly stamped. That's good enough to be deemed "delivered", right?""

Sure, you can SAY that, and sure, you can "deem" it delivered.

Sadly, we can't "deem" your account "paid," however, since we can't deposit air or best intentions, so payment has got to clear the bank to be valid and keep your account current.

But to a much finer point, we (the HOA) didn't agree to the reverse in any contract with the homeowner, however, by agreeing to abide by the HOA documents upon taking title of their deed, the homeowner agreed to our "definition" of what constitutes a "delivered notice" from us to them.

So, just curious and a bit off topic, but do you stay up at night to think of ridiculous and contrary and basically unreasonable iterations of any and every possible scenario of everything?

Maybe cut back on the caffeine?

=-)

BruceD (Ohio)
Posts: 9

Posted:

One of the tactics we have used when we want to be sure that notice is given, is to tape a copy of the notice to the persons front door. If it disappers, we would argue that notice has been given, even if the person did not read the document.

BrianB (California)
Posts: 2,820

Posted:

Quote:

Posted By MicheleD on 04/25/2008 9:16 AM
Brian said: " Can I say "Well, I delivered my dues, promptly and on time. I deposited it in the US mail, addressed and properly stamped. That's good enough to be deemed "delivered", right?""

Sure, you can SAY that, and sure, you can "deem" it delivered.

Sadly, we can't "deem" your account "paid," however, since we can't deposit air or best intentions, so payment has got to clear the bank to be valid and keep your account current.

But to a much finer point, we (the HOA) didn't agree to the reverse in any contract with the homeowner, however, by agreeing to abide by the HOA documents upon taking title of their deed, the homeowner agreed to our "definition" of what constitutes a "delivered notice" from us to them.

So, just curious and a bit off topic, but do you stay up at night to think of ridiculous and contrary and basically unreasonable iterations of any and every possible scenario of everything?

Maybe cut back on the caffeine?

=-)

lol.. nope, but some cities have been found at fault for using the same logic in the issuance of traffic tickets. COurts have upheld that simply "mailing" the citation is not the same as the law (sometimes) requires. The cities use almost the exact same language, but courts say "nope, does not meet the standard" and invalidated the traffic tickets. The court's language has tended to be that if the city says "well, mailing is the same as delivering", that the ticketed people could use the same response about their payments.

You make an excellent point that as an owner, I agree to your statement when i buy. that helps clear your arguement and defend it nicely. I would give your HOA a "win" on this arguement, but I would caution others who don't have such language to be cautious, and make sure they can prove due diligence in their delivery methods.

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