Open HOA Liens and Actions

Although a homeowners association foreclosure does not occur frequently, it is still a possibility for all association members. If you own a home, you should be aware of what an HOA foreclosure is and what you can do about it.

HOAs are allowed to file for foreclosure under the law. An HOA can foreclose on a home much more quickly and easily than a mortgage company can. Therefore, if the HOA is threatening you with foreclosure, you should immediately speak with an attorney.

The HOA will likely place a lien on your property for the amount owed if you fail to pay. The HOA may initiate a foreclosure proceeding and force a sale of the property if the lien remains unpaid. The HOA can file for foreclosure for as little as one dollar, and there is no minimum amount required.

Even if the foreclosure auction is already scheduled, Chapter 13 bankruptcy will stop it. In addition, the HOA may be forced to give you five years to pay the balance without incurring additional interest.

A homeowner filing for Chapter 13 bankruptcy may be able to compel the HOA to agree to a five-year payment plan. Regardless of whether the HOA approves the loan, the homeowner will essentially have a 60-month loan to pay the back-dated HOA fees. In contrast to Chapter 13, Chapter 7 does not offer a payment plan option, but it may also stop the foreclosure sale.

Homeowners associations regularly or occasionally collect assessments and fees from their members. The HOA then uses these assessments and fees to pay for things like common area maintenance and repairs. When homeowners sign up for an HOA for the first time, they also agree to pay these fees. If you fail to pay these assessments, there will undoubtedly be repercussions. One of the most well-known outcomes is a foreclosure and HOA lien.

Is it possible for an HOA to seize your home?

In most cases, if state laws and the rules of your HOA allow foreclosures, an HOA can take over your home. Most of the time, a homeowner’s failure to pay fees and assessments leads to HOA foreclosures. This means that even if you pay your mortgage on time, you could lose your home to the HOA if you don’t pay your assessments.

You need not even be significantly behind. Even if you owe your HOA only a few hundred dollars, the association may still be able to take over your property. Most of the time, this kind of foreclosure goes through the same steps as a foreclosure caused by your mortgage lender. It is possible for an HOA to foreclose on your property through judicial or non-judicial means. In contrast to a non-judicial foreclosure, a judicial foreclosure necessitates filing a lawsuit and taking the matter to court.

Understanding HOA Liens A lien is placed on your property when you fail to pay your HOA assessment or fee. Although it is not required, an HOA will frequently file this lien with the county records office.

You must settle your debt with the HOA if you want the lien on your house to be lifted. This includes the amount of the initial assessment as well as any associated fines, interest, or penalties. Even attorney fees may be necessary.

Even if an HOA does not foreclose, a lien from an HOA can still cause you problems. You won’t be able to sell your property because you don’t have clear title if there is a lien on it.

What concern does an HOA pose to a mortgage?

An HOA’s lien usually takes precedence over any other liens that are already on a property. As long as it was recorded prior to the placement of the lien, this includes the mortgage but not the first mortgage. However, you must still pay off your debts if you signed any promissory notes. The HOA will not be responsible for keeping up with mortgage payments if you have a lien on your home. This indicates that you will still need to repay your mortgage lender.

You can, however, stop paying your mortgage once the HOA decides to foreclose on your home. The remaining mortgage payments will then be the responsibility of the HOA. However, the HOA will frequently allow the mortgage lender to simply foreclose on the property and then sell it to a new homeowner.

How to Fight HOA Foreclosure Although facing HOA foreclosure can be nerve-wracking as a homeowner, you are not powerless against it. If you have the following defenses, you can fight the HOA foreclosure:

1. No Authority to Foreclose The CC&Rs of an HOA typically specify when and how it can foreclose on a property. However, this provision is not present in all CC&Rs. In point of fact, the HOA might not be permitted to foreclose under some CC&Rs. As a result, in the event of a foreclosure, it is essential to review the governing documents of your HOA.
2. Unauthorized Assessments In some cases, an HOA may impose an assessment that the CC&Rs do not authorize. The lien and the foreclosure are null and void if you fail to pay this fee and the HOA forecloses on your property. Again, this is where having knowledge of the governing documents of your association can be helpful.
3. Inaccurate Accounting Inaccurate accounting may also invalidate the HOA’s assessment lien on your home. You can use it as a defense if the management company or HOA does not correctly calculate the assessments. The management company or the HOA will need to show their tabulations in this case. This must include a reference to the CC&Rs that allow each charge as well as the correct values of the assessments, fees, fines, and interest.
4. Noncompliance with Foreclosure Laws In some states, an HOA’s approach to foreclosure is regulated by law. You can use this claim to fight the foreclosure on your property if the HOA doesn’t follow these laws. For instance, in California, a property can only be foreclosed on by an HOA if the amount of unpaid taxes is greater than $1,800, as stated in Civil Code Section 1367.4. If the delinquency has been present for at least a year, the HOA may also initiate foreclosure proceedings.
5. Inaccurate Recording Although the HOA is not required to record the lien in every state, some, like Arizona, do. In point of fact, the absence of recordation may even land an HOA in hot water. You can file a wrongful lien claim against your HOA and fight its foreclosure if it fails to record the lien or records it incorrectly.

What Takes Place Following an HOA Foreclosure?

The typical processing time for HOA foreclosure proceedings is 60 days. A foreclosure by an HOA could hurt your credit score and make it harder to get a loan.

Some financial institutions may only allow loans with higher interest rates, while others may require a larger down payment.

Some states will let you buy your home back after a foreclosure if you pay off the association’s debt. In this instance, you are obligated to pay the debt, including any fees and interest. You may be required to pay back the HOA for any repairs or renovations done to your property. It is essential to check your state’s laws because they can differ significantly from one state to the next.

Avoid a Homeowners Association foreclosure and regardless of your perspective, an HOA foreclosure is bad news. You stand to lose everything and gain nothing from it. As a result, you must make every effort to avoid foreclosure. Regularly paying your HOA’s assessments and fees is a surefire way to achieve this. If you encounter a foreclosure, you can definitely try to fight it, but prevention is always better than cure.

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