claiming not part of HOA

Here in our little HOA/POA, we are dealing with one HomeOwner who is delinquent on this year's Annual Dues. Each year, they have habitually paid very late, like MONTHS late, after getting three notices and finally our President knocking on their door personally. This year as we are now part of the GAPOA, the BOD decided that enough was enough, so after the initial bill went out (with the consequences of not paying itemized), then a courtesy email reminder that they were now delinquent (again with the consequences itemized), then a demand letter from our attorney (the expense of which was added to their Annual Dues, plus late penalty), they still have not paid. We also sent them two more letters from the BOD, with emails, telling them if they don't pay by July 15, 2009, we will initiate a lawsuit on behalf of the Association, at their expense. Now the HomeOwner's attorney is claiming that they are not part of the HOA/POA...seems so dumb to me (they had paid each year and voted at the Annual Meetings)...but that is their stance.

Our BOD is meeting this weekend to discuss what steps are next. I do not believe that there is much choice. I believe we will have to front the lawyer fees and procede with the lawsuit, seeking payment, get a judgement and garnish their wages/income/etc.

My feeling is that we will be opening up a can of worms if we do not finalize that they are part of the Association, and attempt to get the delinquent funds. Not just to collect their paultry Annual Dues of $330, but to ensure that they are adhering to our CCRs in its entirety.

Has anyone dealt with this type of issue? I know that delinquencies have been discussed at length, but this twist of not being part of the Association is new to me (oh, their rationale is that the builder didn't register the deed transfer properly...)

I always appreciate the many points of view offered here.
Thanks,
Gloria

What is the definition of "Member" for your HOA?

A single Member can't just "drop out" of the association.

Are you condo, single homes?

Gloria,

A little clarification regarding your statement that the builder did not register their deed transfer properly would be good. I've never heard that excuse for not being a member of an HOA b/4!

I'm afraid I would call their bluff and file the lawsuit (you can do this in small claims court) for a judgment.

I would also file a lien.

Actually, I would file the lien FIRST, then the small claims.

You don't have to prove they ARE part of the HOA. Your PVA/plat records and your CC&R definitions should take care of that for you.

They will have to convince the judge that they are not part of the HOA.

Gloria it does happen at least according to one of the posters here. DJ from Canada reported that the builder's attorney screwed up and didn't attach the deed restrictions to his and others property leaving them as non-members in the middle of the HOA. Before you pay the attorney you might want to go to the County Recorders office and look at this persons deed (the information is available online in my county) and make sure they are members.

Gloria,

I think what Gary was trying to suggest to you is that you should take a look at the deed to make certain it says it is subject to "covenants, conditions, restrictions, assessments, charges, servitudes, liens, reservations and easements for the (name of the HOA)", or something to that effect. The problem could be that the developer accidentally did not include the covenant restrictions on the deed. If this is the case, IMO, it would take a real estate attorney to sort this out and determine if steps can be taken to correct the deed. IMO you should not proceed with a lien until you know for sure the deed has been properly worded and contains the covenant restrictions.

Gloria has already stated that their attorney has researched the H/O's claim and the determination is that they are a part of the HOA. The attorney would (should?) know where and how to look to confirm such a claim.

We had a resident try this many years ago.

He claimed he only paid the assessments to be "nice" and that his lot and his lot alone (in the middle of the street, too) is the only one not a part of the HOA. He made a similar claim, that they bought it from the builder BEFORE any of the plats and CC&Rs were recorded. When we researched it we discovered all the plats and CC&Rs were registered in 1997. He bought his property in 2000. Some people are just pathological.

It became an issue only when we tried to enforce some violations he had. He "bluffed" us all the way to our sending his attorney a copy of the lawsuit we intended to follow.

Then he just simply "complied," but he still insists he is not part of the HOA, but will pay the assessments and follow the rules, again, just to be a "nice guy."

Michelle, yes, our attorney has said that they are part of the HOA. Mary, we have already placed a lien for the delinquent dues. As you know, that lien would help us collect only WHEN/IF they sell the property.

The HO had said to me when I gave them a copy of the "courtesy email" advising them that we will proceed with a lawsuit if they don't comply in xxx days, they would pay the dues plus the late penalty, but not the attorney fees. I don't believe that is negotiable. There wouldn't be any attorney fees if they had just paid, like everyone else in the HOA, instead of having us chase them down and do this silly dance.

Their position is much like Michelle's HO, in that they are complying because they are being the "nice guy" not because they are obligated. The fact is that they ARE obligated to pay and to comply with our CCRs in their entirety, again IMHO.

I think we should proceed with letting our attorney handle this and initiate the lawsuit more to validate the strength of our CCRs than anything else.
I also don't want to have to continue this battle each and every year, either for collection of dues or compliance with our CCRs. As I have said, this particular HO has NEVER paid on time, and is usually two or three months late, requiring several notices and finally a personal knock on their door from our President. And our notice for the Annual Dues gives the HO 30 days to pay, so we are talking about three to four months to collect $330!! We don't have the funds for a management company and no one wants to run for any Board position, so this falls on the same four people. That is getting very old very fast.

My vote when the BOD meets will be...just sue them and get it over with!

Gloria,
Prior to filing a law suit, I would have your attorney send them a letter listing all charges, including their fee for that letter, and give them a deadline to receive payment. For the future develop rules of delinquent accounts which will strongly encourage payment without involving an attorney.

Yes, this is chronic, but your attorny fees will eat up any benefit in collecting this assessment.

I would wait until is reached a full year to file a lawsuit, but file the lein ASAP (when your documents allow)

I agree with Roger. Also think the attorney should state in his letter that partial payment will NOT be accepted. And the attorney should add his fee for preparing this letter.

Yup. Our docs state the legal fees, including attorney's fees, associated with assessment collection are to be paid by the homeowner.

It's been upheld in court, as well.