[WSBARP] HOA priority lien - non-condomium act HOA's

Wed Dec 21 11:01:53 PST 2016

You need to look at the assessment language.  Is it considered a ‘continuing lien when due’ for example?  In some situations HOAs are better off and only limited by the SOL on trying to collect.  If their founding documents were recorded before the DOT, the DOT is subject to them.  They already HAVE priority over the DOT the question is whether or not the language about imposing assessments etc. provides more specifics.  Sometimes they make themselves subject to a DOT, sometimes not.  In many situations the “lien” from an HOA on title is just a NOTICE of lien amount due.  The lien itself was created by the governing documents.  Hence, in those cases, when the Notice of Lien was recorded doesn’t matter.  The CC&Rs created the lien.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Wednesday, December 21, 2016 10:43 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HOA priority lien - non-condomium act HOA's

THanks!  This is the language in the CC&R’s:

“ …The terms of this Declaration, and any of its amendments, shall be binding on all parties having any right, title, or interest in any part of the Property at any time, and shall inure to the benefit of each owner thereof… The provisions of this Declaration shall be enforceable by … the association…

Article X Section 1: All present and future Lot Owners… shall be subject to and shall comply with the provisions of this Declaration…The acceptance of a deed or conveyance…shall constitute an agreement that the provisions of this Declaration and amendments are accepted and ratified by such Lot Owner…, and all such provisions shall be deemed and taken to be covenants running with the land and shall bind any person having an any time any interest of estate in such Lot as though such provisions were recited and stipulated at length in each and every deed and conveyance of lease thereof.
Does anyone think that this language allows the HOA to have a priority over later recorded deeds of trust?

Josh

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734
From: James L. Strichartz<mailto:jim at condo-lawyers.com>
Sent: Tuesday, December 20, 2016 4:26 PM
To: WSBA Real Property Listserv<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] HOA priority lien - non-condomium act HOA's

There is no statutory basis for a six-month super-priority lien for non-condo HOAs.  There is no statutory basis for any liens for HOA assessments.  Theoretically such a super-priority lien could arise based on the language of the covenants, but I am not familiar with any such provisions.

Jim Strichartz
Attorney
Fellow, College of Community Association Lawyers

Law Offices of James L. Strichartz
201 Queen Anne Avenue North, Suite 400
Seattle, WA 98109-4824

jim at condo-lawyers.com <mailto://jim@condo-lawyers.com/>
http://www.condo-lawyers.com<http://www.condo-lawyers.com/>
http://www.linkedin.com/in/condolawyer

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Tuesday, December 20, 2016 4:02 PM
To: wsbar
Subject: [WSBARP] HOA priority lien - non-condomium act HOA's

I understand that under the Condominium Act RCW 64.34 that an association has a “super-priority” at least for 6 months of assessments, over prior recorded security interests (as long as the CC&R’s are recorded 1st). This was the ruling in:  In BAC Homeloans Servicing v. Fulbright 180 Wn 2d, 754 (2014) “a future lien for unpaid condominium assessments is established at the time the condominium declaration is recorded, even though it may not be enforceable until the unit owner defaults on his or her assessments, if ever.”

Is there similar authority for a HOA “super-priority” when the HOA is not under formed under the Condominium Act?  I think this was discussed before on this listserve and this super priority doesn’t exist for other HOA’s. ?

Thanks

Josh

Joshua F. Grant, PS
Attorney at Law
P. O. Box 619
Wilbur, WA 99185
tel 509 647 5578
fax 509 647 2734
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