Understanding The Homeowners Association (HOA) Fee Liability
What is the association's responsibility?
The association's core responsibilities are to maintain the common areas, enhance the quality of life of owners within the community, and preserve property values. In order to fulfill these obligations, the association needs a financial lifeline, and the cooperation of all of its members to fund this financial need. Simply put, the association would not be able to function, or fulfill its obligations without the financial resources needed to pay for the costs and expenses of administration.
What is a homeowners association (HOA) fee?
An HOA fee is a mandatory "maintenance" fee levied by a homeowners association against all the members of the community. Each owner of an HOA property agrees to pay this fee by acceptance of a deed, and that obligation continues until the ownership of the property ceases.
The maintenance fee, together with interests, late fees, administrative fees, collection fees, attorney fees and costs are the personal obligation of all the owners of the property, and may also be a lien in the event of a default. The fee is levied on an annual, semi-annual, quarterly or monthly basis as established by the governing documents.
What do hoa fees cover?
HOA fees cover the costs of the maintenance and repair of the common areas, amenities, and operation of the association. In particular, the maintenance fees may cover the following expenditures:
Cable TV and/or Internet
Property taxes assessed upon the common area
Personnel salaries, such as professional management agents and janitorial services.
Maintenance of swimming pools, tennis courts, roads, parks, etc.
If the association is a condominium, the fees may cover for the maintenance and repair of roofs, elevators, hallways, patios, pipes, exterior of units, etc.
To gain a clear understanding of what your association is responsible for maintaining, please read the maintenance provision of your CC&Rs and Bylaws. It is also important to note that, associations typically have the power to levy special assessments, capital improvement assessments, and other emergency assessments, in addition to, the regular maintenance fees.
The association's authority to charge HOA fees
The local statutes and recorded Declaration of Covenants, Conditions, and Restrictions (the "CC&Rs" or "Declaration") serve to establish the association's authority to charge HOA fees and enforce non-compliance against all members subject to its authority. For example, all CC&Rs have standard language regarding an owner's obligation to pay assessments that may read similar to this:
COVENANT FOR MAINTENANCE ASSESSMENTS
Each Owner of any Lot by acceptance of a deed (whether or not it is expressed in the deed) is deemed to covenant and agree to pay to the Association: (1) Annual Assessments, (2) Benefited Assessments and (3) Special Assessments for capital improvements or any other assessments to defray the operating costs of the Association in any one given year said assessment is assessed, such assessments to be established and collected as provided by the Declaration.
The Annual Assessments, Benefited Assessments and Special Assessments, together with interest, costs and reasonable attorneys' fees including collection costs, shall be a charge on the Lot and shall be a continuing lien thereon as well as the personal obligation of the person who was the Lot Owner at the time when the Assessment fell due.
All Assessments and charges shall be payable in the amount specified in the Assessment or by notice and no offsets against the specified amount shall be permitted for any reason, including, but not limited to, a claim that (a) the Association, the Board, or Declarant is not properly exercising its duties and powers as provided in the Declaration; (b) Assessments for any period exceed expenses for the Association; or (c) an Owner has made, or elects to make, no use of the Common Areas of Association responsibility.
Under the above example, when a person acquires ownership of the property, he or she becomes an automatic member of the association, and therefore, subject to the association's assessments. The assessment liability remains for the entire period of ownership, or until the title is transferred. In other words, an HOA member cannot waive or otherwise escape the assessment obligation by non-use of the common areas, or abandonment of the property.
What happens if an owner defaults on the HOA fee payment?
In the event of a default, the CC&Rs allows the association to collect the past due assessments, collection costs, attorney's fees and related charges by recording a lien (not required in some states) and filing a personal, or foreclosure lawsuit. The association's right to collect unpaid fees stems from the default provision in the CC&Rs similar to the following example:
EFFECT OF NON-PAYMENT; REMEDIES OF THE ASSOCIATION
Any Assessment not paid within [number] days after the due date shall be subject to a late payment charge equal to the greater of [$0.00] or __ percent per annum interest on the amount unpaid, which shall be assessed on the amount owing from the date of delinquency until such time as it is paid, but in no event exceeding the maximum rate or amount allowed by law.
Enforcement by Suit. The Board may cause a suit at law to be commenced and maintained in the name of the Association against an Owner to enforce each such Assessment obligation. Any judgment rendered in any such action shall include the amount of the delinquency together with interest thereon at the rate of [% ] percent per annum or such lower rate that is equivalent to the maximum rate allowed by law, court costs, attorneys' fees, late fees, collection costs and lien fees…
Enforcement by Lien. There is hereby created a claim of lien on each and every Lot within the Property to secure payment to the Association for any and all Assessments (including any late PaymentCharge) levied against any and all Owners of Lots covered by this Declaration, together with interest, all costs of collection which may be paid or incurred by the Association, including reasonable attorneys' fees. Any such lien may be foreclosed by appropriate action in court in the manner provided by law for the foreclosure of a realty mortgage or by the exercise of a power of sale in the manner provided by law under a trust deed, as set forth by the laws of the State.
These examples establish the owner's obligation to pay the hoa fees, and the association's right to collect delinquent dues and related charges. The assessment obligation cannot be waived, for any reason, even if an owner believes that the association is not fulfilling its obligations.
Things to consider when dealing with past due fees:
All associations, debt collectors, or its attorneys must abide by the Fair Debt Collection Practices Act (FDCPA) which provides limitations on what they can do when attempting to collect past due assessments. You can watch a video here about this subject.
It is important to note that an association cannot take an action that is not authorized by the Declaration, or adopted policies. We address the association's duty to adopt fair processes and procedures in "The Homeowner's Right To A Fair Due Process." If you need copies of your CC&Rs, you can get a free copy by visiting your county recorder's office.
If you fall behind on your payments, it is important to communicate with your association's representative in writing about your intentions to cure the delinquency. You must keep in mind that the correspondence will serve as confirmation or proof of some sort, should the association decide to move forward with collection efforts.
It is important to show a good faith effort to attempt to resolve the delinquency to prevent the association from referring your account to a debt collector or attorney's office. If this happens, the fees and costs associated with the delinquency will increase substantially. An attorney will charge a minimum fee of $125.00 dollars just to send an initial template collection letter to you demanding payment.
Attempt to negotiate settlement keeping in my that the association will only entertain waiver of "soft costs" such as late fees, fines, and interest. Most associations will not waive "hard costs" like maintenance fees or actual costs incurred by the association resulting from your failure to pay.
Know when to hire professional help. Don't fight your HOA, for fees they are entitled to charge under the law and declaration. If a lawsuit is filed, the judge will rule on the case based on your contractual obligations, and not your personal financial circumstances.
Talk to an attorney if your association is threatening to file a foreclosure lawsuit.
Things to consider before purchasing an HOA property:
Conduct A Lien Search - This will allow you to decide if your property has a clear title.
Obtain a current payoff or estoppel from the HOA to decide if there are outstanding dues. This is important because, in some states, the new owner is jointly and severally liable with the previous owner for all unpaid assessments that came due up to the time of the transfer of title.
Review the association's financial records and decide how often the assessment amount increases.
Obtain and review copies of the association's governing documents, rules, and policies, meeting minutes, etc.
Our goal is to provide owners with general guidance and knowledge of their rights and obligations as HOA members. This article is provided for informational purposes only and is not a substitute for legal research and advice.