[WSBARP] No Super Priority Lien for Non Condo HOAs? RCW 64.34.364 Inapplicable.

[Rob Wilson-Hoss]

1.       The condo six month superpriority statute has zero to do with non-condo HOAs. What you see is servicers and lenders who all trade the same tired, wrong information, a list of states and priority rules, and when they get to the W's, and read Washington, the list says, six months.  Yeah, for condos. These aren't condos. And the six-month rule only applies to new act condos anyway. 

2.       Lien priority in Washington for non-condo HOAs is structured by the association's governing documents, so the results will vary widely. The research to support that conclusion is hundreds of pages long and totally compelling. Just think of them as any other consensual, contract lien. Without going into the authorities, think of deeds of trust. A restrictive covenant lien is considered to be like a contract lien for these purposes, so it is like a deed of trust in many conceptual ways. Now, some deeds of trust are fixed in terms of the amount at the time of recordation, such as my house loan, but some are, for example, home equity lines of credit, or reverse mortgages, or construction loans - the date of recordation of the right is fixed as of the date of recordation of the deed of trust, even though the money is not lent yet. Then when the money is lent, the right to collect that money by lien foreclosure relates back for priority purposes to the date of recordation of the deed of trust, or, in the case of an HOA, the covenant, bylaw or other governing document that creates the lien right and the priority right.  Banks can't really argue against this because they are the ones who use the same principles with their relation back liens. 

3.       Yes, this means that some HOAs have lien priority and some don't, and some have some sorts of priority and not other sorts of priority. Depends on the documents.

4.       Don't give up on the six year old debt so easily. Have there been any payments on the debt that suggest an acknowledgement of the entire debt and intent to pay it? There are other exceptions to the SOL, but that is one of the most useful.  

5.       I see that Jim Strichartz has weighed in to the same effect, and he is always right about these things, but I will say that we live in different worlds. Out here in the hinterlands, banks do lend on properties in HOAs with priority all the time. I have been making these arguments for thousands of units of HOAs since the mid-90s and have never once had a member complain that he or she couldn't get a loan because of them.  

 

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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This office does debt collection and this e-mail may be an attempt to collect a debt, Any information obtained will be used for that purpose.  To the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) applies this firm is acting as a debt collector for the condominium/homeowners' association named above to collect a debt owed to it. Any information obtained will be used for collection purposes. You have the right to seek advice of legal counsel.

 

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rowley, Rob
Sent: Friday, February 24, 2017 4:39 PM
To: WSBA RPPT
Subject: [WSBARP] No Super Priority Lien for Non Condo HOAs? RCW 64.34.364 Inapplicable.

 

Assume standard non-condo residential homeowners association records lien against one of its lots for an owner who never pays.  Lien grows in excess of six years and association starts and abandons lien foreclosure.  Big bank forecloses on underlying deed of trust of the recalcitrant homeowner and sells at auction to real estate investor.  Homeowners association wants to collect in excess of six years.  I looked at the CCRs and see nothing allowing for survival of the lien post foreclosure. Real estate investor swears up and down the Association is barred to the six months as all of his fellow investors are saying the same thing.  I know that the balance beyond six years would be barred by the contract statute of limitations.

 

I'm aware of a section under the Condo Act dealing with a six-month limitation on dues that an Association can to collect RCW 64.34.364. I can't find anything similar for a non-condo homeowners association.

 

When I ask my favorite title office below is her response.  Even she got it confused.

 

"Hi Rob!  Received your message regarding “super liens” – you may want to check out RCW 64.34.364 – it is my understanding that those priority liens need to be established in the CCR’s to be legally effective to survive a foreclosure.  However, from a title perspective, we tend to be cautious about them and if there is an HOA lien recorded, we will continue to show it after the sale and make the new owner cure or negotiate a release with the HOA if the priority standing is unclear.  I think from a “legal” perspective, the RCW above lays out the conditions and stipulations.  Hope this helps and hope you have a great weekend!"

 

​Suggestions?​

 

Robert R. Rowley, Attorney at Law

7 S. Howard St., Suite 218

Spokane, WA  99201

T: (509) 252-5074

C: (509) 994-1143

F: (509) 928-3084

E: rob at rowleylegal.com

W: www.rowleylegal.com <http://www.rowleylegal.com/> 

 

Practice concentrated on business, real estate and general legal matters in Washington and Idaho.

 

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