HOA lien against non-members of HOA (foreclosure, insurance, lawyer)

[annasinfo]

We have a single residence in a neighborhood. There is an HOA for one section of the homes in the neighborhood. Due to foreclosure on the development after the initial building of the first home, a new developer bought the remaining lots and built homes. We live in one of those homes. When we purchased our home we were told that we were not members of the HOA, but would be responsible for paying annual fees for lawn maintenance of mowing, fertilizing,etc. Irrigation was not mentioned. Our lawn is not part of the group of homes that has an irrigation system. Now the HOA says they we must pay for the maintenance which includes the irrigation system. They have also stated they will be assessed for insurance of the common areas that they control. Again we are not members of the HOA.

We have all paid an assessment for lawn maintenance based on the previous year + 10%.

We recently received a letter stating that if we did not pay the full amount (based on the irrigation system as well), that they would place a lien on our homes.

Is that legal?

Thanks,

[Jkgourmet]

Originally Posted by annasinfo

We have a single residence in a neighborhood. There is an HOA for one section of the homes in the neighborhood. Due to foreclosure on the development after the initial building of the first home, a new developer bought the remaining lots and built homes. We live in one of those homes. When we purchased our home we were told that we were not members of the HOA, but would be responsible for paying annual fees for lawn maintenance of mowing, fertilizing,etc. Irrigation was not mentioned. Our lawn is not part of the group of homes that has an irrigation system. Now the HOA says they we must pay for the maintenance which includes the irrigation system. They have also stated they will be assessed for insurance of the common areas that they control. Again we are not members of the HOA.

We have all paid an assessment for lawn maintenance based on the previous year + 10%.

We recently received a letter stating that if we did not pay the full amount (based on the irrigation system as well), that they would place a lien on our homes.

Is that legal?

Thanks,

Umm, I really think you need to gather your closing documents and the HOA regulations and have a visit with an attorney.

[WaldoKitty]

You should check your deed/land records to see if the property is subject to the HOA. The seller might have misled you. If there are no restrictions then, I don't see where the HOA has any grounds to place a lien on your property.

[cully]

So is the board extending the irrigation system to your homes now?

[BoBromhal]

"contact your closing attorney first. If that attorney was really the 'developer's attorney', then contact them and a separate attorney hopefully familiar with this subdivision or at least bankrupt development law"

[IC_deLight]

Originally Posted by annasinfo

We have a single residence in a neighborhood. There is an HOA for one section of the homes in the neighborhood. Due to foreclosure on the development after the initial building of the first home, a new developer bought the remaining lots and built homes. We live in one of those homes. When we purchased our home we were told that we were not members of the HOA, but would be responsible for paying annual fees for lawn maintenance of mowing, fertilizing,etc. Irrigation was not mentioned. Our lawn is not part of the group of homes that has an irrigation system. Now the HOA says they we must pay for the maintenance which includes the irrigation system. They have also stated they will be assessed for insurance of the common areas that they control. Again we are not members of the HOA.

We have all paid an assessment for lawn maintenance based on the previous year + 10%.

We recently received a letter stating that if we did not pay the full amount (based on the irrigation system as well), that they would place a lien on our homes.

Is that legal?

Thanks,

The law in this area tends to be very state-specific. Usually, the argument is that the HOA corporation had a lien before you ever purchased the place - the threat of "filing a lien" is somewhat nonsensical. What they probably mean is filing an "affidavit of lien" or some other fee-generation document that is intended to further cloud title to your property by claiming some amount is owed. Such affidavits are not liens but they effectively operate as if they were.

Not all HOA corporations are set up to have "members". It may be that you are an involuntary "funder" without regard to "membership". In other words, your restrictive covenants imposed an obligation to pay assessments to some entity without any regard to "membership". More common, however, is the involuntary membership HOA corporation (in both cases the HOA corporation has a "charging lien" into perpetuity on your property). The obligation to pay will be set forth in the restrictive covenants burdening your property. The "membership" issue may be determined from either the restrictive covenants, the bylaws of the organization, or both.

If you consult an attorney you will want to look at the transition documents. Often these get botched when there is a developer bankruptcy or a transfer from one developer to another. I'm guessing you live in a "declarant-controlled" subdivision which means the developer du jour is controlling the HOA corporation.

Just because the HOA corporation is making demands upon you does not mean that it is entitled to the monies demanded. Unfortunately overreaching is ubiquitous with HOA corporations, their boards, and their vendors. You need to consult an attorney that deals with real property issues and who is licensed in the state where the property is located. Avoid attorneys affiliated with Community Associations Institute. As an organization, CAI and its members promote the HOA corporation over the homeowners and would not be acting in your interests.

By the way, never underestimate the desire by a few to control everyone else - the HOA corporation is their preferred platform. There is a pretty well-known case in your state where a few individuals tried to impose an HOA on all their neighbors. The victims - who sued and won - put together a pretty nice web page explaining the lawsuit and the legal issues. You can read about the case (and maybe get some ideas of attorneys to call and attorneys to avoid) here:
http://ledgesofhiddenhills.com/

[Sherifftruman]

Yeah, you definitely need to pore over those HOA documents and check the county deeds. As others said, you are probably going to have to get a lawyer involved in this (and heed BoBrohmals advice and use one unconnected with the original sale, unless you brought your own) . Sounds like about the weirdest deal I have heard of with an HOA.

[annasinfo]

Thanks to all of you. I have contacted a lawyer and we will see what happens.