[WSBARP] HOA "Continuing" Lien and Foreclosure

Thu Nov 17 10:09:21 PST 2016

Liens are often misunderstood in this context. The governing documents typically create the lien. Nothing else needs to be done to create the lien right.  We file a notice of claim of lien so that anyone else actually knows about the lien, which makes it easier to deal with lenders and new owners and so on, but the lien is not the recorded document; that is just notice that the lien exists, and is not even necessary unless the governing documents make it so. 

And each association may have different governing documents, some of them create an inchoate lien as of the recording of the covenants, some of them create a lien when an assessment is due, some when the assessment is delinquent, so you have to look at all the governing documents, and don’t forget the plat maps.

Our notices of claim of lien specifically include that the lien includes all other such charges to be imposed in the future. That also covers notice to everyone else that the lien can grow.

Rob

Robert D. Wilson-Hoss 
Hoss & Wilson-Hoss, LLP 
236 West Birch Street 
Shelton, WA 98584 
360 426-2999

www.hossandwilson-hoss.com
rob at hctc.com

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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Patrick McDonald
Sent: Thursday, November 17, 2016 9:41 AM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] HOA "Continuing" Lien and Foreclosure

Hi, 

If the covenants provide for a lien for unpaid assessments, there is no obligation to continuously record liens with the county. I think you can foreclose and include the 2016 annual assessment amount.

Homeowner associations can charge late fees pursuant to RCW 64.38.020(11) unless otherwise provided in the governing documents. However, the wording in the recorded lien itself isn’t very good and suggests that the Association isn’t going to charge late fees after 2015. 

Patrick McDonald

_________________________

Pody & McDonald, PLLC

1200 Fifth Avenue, Suite 1410 

Seattle, WA 98101-3106

T: 206-467-1559

F: 206-467-4489

On Nov 17, 2016, at 9:18 AM, Josh Grant <jgrant at ACCIMA.COM> wrote:

My client is a HOA that recorded a lien for nonpayment of annual assessments for years  in 2013, 2014 and 2015.  Not sure if some of the earlier years’ assessments were paid, but 2015 was definitely not paid.  Now we have 2016 unpaid as well.  I am getting ready to judicially foreclose liens and I thought I would have to record a new lien for the 2016 assessment before I can foreclose based on the 2016 assessment.

My client thinks the following language in the CC&R’s prevents us from having to file a lien each year, once we have filed one of them, or at least once we file one and some portion of it remains unpaid:

    “Any annual... assessments, together with interest, costs, collection costs, and reasonable attorney's fees... shall be a continuing lien on the lot against which such assessment is made... The board shall have the right to publicly record a lien against title to a Lot evidencing the existence of this continuing lien.... The Board of Directors... may sue the Lot Owner personally obligated to pay and/or foreclose a lien against the Lot in the same manner as a mortgage of real property....”

    Also, the lien itself states:  “Principal Amount to Date for Which the Is [sic] Lien Claimed:  $15000 including:  and at this point the 2013, 2014, and 2015 lien amounts are listed] and then it reads “Plus continuing annual dues”.

Another issue is that the lien recites an added amount: “$189.00 Late Fees owing on Annual Dues”, however, I don’t see any provision for charging late fees in the CC&R’s.

Anyone have an opinion on whether we can tack on the 2016 assessment to our lien foreclosure action without recording a new lien? and on whether we can require late fees be paid?

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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