#Condominium special assessment disputes

[andrewjbernhard]

Challenging Condo Special Assessments Under Florida Law: Essential Guide for Homeowners

Are you a condominium owner in Florida facing an unexpected special assessment and unsure of your rights? Our latest guide is here to help. This article explores grounds for challenging assessments if you believe an assessment is unfair.

In Florida, condominium governance involves a nuanced interplay of laws designed to protect both individual unit owners and the collective community interests. A common source of contention is special assessments—extra fees levied by a condominium association to cover unforeseen expenses or improvements not included in the annual budget. If you face a special assessment you deem unfair,…

[thaiattorney]

Buying Property in Thailand

Thailand is an attractive destination for property buyers due to its scenic landscapes, vibrant cities, and welcoming culture. However, purchasing property in Thailand, especially as a foreigner, involves navigating a complex legal framework and understanding the local market intricacies. This comprehensive guide will provide detailed insights, enhancing expertise and credibility by delving into the legalities, procedures, and best practices for buying property in Thailand.

1. Understanding the Legal Framework

Key Legal Restrictions:

Land Code Act B.E. 2497 (1954): Foreigners cannot own land in Thailand except under specific conditions.

Condominium Act B.E. 2522 (1979): Foreigners can own up to 49% of the total floor area of a condominium building.

Foreign Business Act B.E. 2542 (1999): Regulates foreign business activities and investments, impacting property purchases for business purposes.

Exceptions and Alternatives:

Board of Investment (BOI) Projects: Foreigners investing in BOI-promoted projects can acquire land under specific conditions.

Long-Term Leases: Foreigners can lease land for up to 30 years, with options to renew.

Thai Company Ownership: Forming a Thai company where foreigners hold less than 50% of shares allows indirect land ownership.

2. Types of Property Available for Purchase

Condominiums:

Freehold Ownership: Foreigners can own condominium units outright.

Ownership Percentage: The foreign ownership quota in a condominium building should not exceed 49%.

Leasehold Properties:

Land and Houses: Foreigners can lease land and houses for up to 30 years, with potential for renewal.

Registration: Leases exceeding three years must be registered at the Land Department to be legally enforceable.

Investment Properties:

Commercial Real Estate: Foreigners can invest in commercial properties through long-term leases or joint ventures with Thai partners.

Resort and Hotel Investments: Special regulations apply to foreign investments in resort and hotel properties, often requiring joint ventures.

3. Due Diligence and Legal Processes

Conducting Due Diligence:

Title Search: Verify the property’s legal status, ownership history, and any encumbrances or disputes.

Zoning and Land Use: Ensure the property complies with local zoning laws and land use regulations.

Environmental Compliance: Check for any environmental restrictions or issues affecting the property.

Engaging Legal and Financial Advisors:

Real Estate Lawyer: Hire a reputable lawyer specializing in Thai real estate to guide you through the legal processes.

Financial Advisor: Consult a financial advisor to understand tax implications, financing options, and investment strategies.

Steps in the Buying Process:

Reservation Agreement: Sign a reservation agreement and pay a reservation fee to secure the property.

Due Diligence: Conduct thorough due diligence with the help of legal advisors.

Sale and Purchase Agreement (SPA): Draft and sign the SPA, detailing the terms and conditions of the sale.

Deposit Payment: Pay a deposit, typically 10-30% of the purchase price.

Transfer of Ownership: Complete the transfer at the Land Department, paying the remaining balance and associated fees.

4. Costs and Taxes Involved

Purchase Costs:

Transfer Fee: 2% of the appraised property value.

Stamp Duty: 0.5% of the purchase price or appraised value, whichever is higher.

Withholding Tax: 1% of the appraised value or the actual sale price, whichever is higher.

Specific Business Tax (SBT): 3.3% of the appraised or actual sale price, applicable if the property is sold within five years of acquisition.

Ongoing Costs:

Common Area Fees: Monthly fees for maintenance of common areas in condominiums.

Property Tax: Annual property tax based on the assessed value of the property.

Utilities and Maintenance: Regular expenses for utilities, repairs, and maintenance.

5. Financing Options

Local Financing:

Thai Banks: Some Thai banks offer mortgage loans to foreigners for condominium purchases.

Eligibility Criteria: Generally, borrowers need to have a work permit, proof of income, and a good credit history.

Foreign Financing:

Home Country Banks: Some buyers secure financing from banks in their home countries, leveraging their assets abroad.

International Mortgage Providers: Specialized financial institutions provide mortgages for international property purchases.

Payment Plans:

Developer Financing: Some developers offer financing plans with staggered payments during the construction period.

Installment Payments: Buyers can negotiate installment payments directly with sellers or developers.

6. Common Pitfalls and How to Avoid Them

Legal Complications:

Unclear Title: Always verify the title to avoid disputes and ensure clear ownership.

Zoning Issues: Confirm zoning regulations to ensure the property can be used as intended.

Contractual Disputes: Have all agreements reviewed by a lawyer to prevent misunderstandings and ensure enforceability.

Financial Risks:

Currency Fluctuations: Be aware of exchange rate risks when making payments in foreign currency.

Hidden Costs: Account for all additional costs such as taxes, fees, and maintenance expenses.

Financing Challenges: Ensure you have a clear financing plan and understand the terms of any loans or payment plans.

7. Enhancing Expertise and Credibility

Demonstrating Professional Credentials:

Legal Qualifications: Highlight the legal qualifications and experience of your advisors and partners.

Professional Experience: Detail your experience in handling property transactions in Thailand.

Memberships and Affiliations: Include memberships in professional organizations like the Thai Bar Association, the Real Estate Broker Association, or international property associations.

Providing Authoritative References:

Cite Legal Documents: Reference specific sections of the Land Code Act and Condominium Act to support your points.

Expert Opinions: Incorporate insights from recognized experts in Thai real estate law and property investment.

Including Detailed Case Studies:

Client Testimonials: Feature testimonials from clients who have successfully purchased property in Thailand with your assistance.

Real-Life Examples: Provide detailed examples of successful transactions, highlighting any challenges overcome and solutions implemented.

Visual Aids and Infographics:

Process Flowcharts: Use flowcharts to depict the steps involved in the property buying process.

Diagrams: Create diagrams to visually explain key legal concepts and ownership structures.

[constructioncompanyblog]

About building services in norfolk

Building services engineers provide oversight of the execution of building services. These professionals oversee the operation and maintenance of systems and buildings, and ensure compliance with industry standards. Building services engineers also develop new technologies and energy-efficient systems. They also provide contract interpretation and dispute resolution. If necessary, building services engineers also provide construction management services. They may also be called upon to oversee special events. Have a look at building company norfolk for more info on this. A building services manager reports to the city's Deputy Commissioner. Building services engineers also supervise the construction and renovation of new facilities, including hospitals, offices, and condominiums.

Building services engineers play a vital role in the construction process. They determine the layout and design of building services. They are key to achieving sustainability, as they impact the shape and orientation of buildings, thereby optimizing renewable technologies. In addition to overseeing construction and maintenance of buildings, building services engineers are responsible for assessing the lifecycle of building components and their impact on the environment. The challenges faced by these professionals include determining how to best design buildings to meet client requirements and budgets.

Those involved in building services engineering are professionals with specialized training and experience in building construction and maintenance. They apply creative problem-solving and engineering skills to design building systems and components that provide optimal comfort and safety. In addition to designing building systems, building services engineers are responsible for ensuring that these systems operate within the lowest cost technically acceptable range. While the work of building services engineers is varied, the field focuses on sustainable building design as well as energy efficiency.

Building services provide a range of comfort, safety, and energy-efficient conditions for occupants and businesses. Depending on the type of building, specialist building services may include bacteria and humidity control, security, emergency power, fume cupboards, and operating theaters. Building services play an integral role in the design of buildings, and they influence various building systems and processes, from the overall strategy and design to the layout and distribution of horizontal services. They also influence the energy source used and the drainage of buildings.

Career development opportunities in building services are many and varied. Career development is dependent on the type of employer you choose and the area of specialisation. Early on in your career, building services engineers should be strategic about the kind of qualification they will seek. In addition to choosing specific areas of expertise, building services engineers can choose from a variety of entry-level positions. Some may even become heating and cooling technicians, HVAC technicians, or refrigeration specialists. Once they have achieved these positions, they can work independently, as a consultant or even an independent contractor.

[theblueboxwestlake-blog]

Please note the owners of West Lake Tower 2

YOUR INVESTMENT IS AT RISK AND THE FINANCIAL VIABILITY OF THE CONDOMINIUM CORPORATION IS IN JEOPARDY. YOUR IMMEDIATE ATTENTION IS IMPERATIVE. October 30, 2017 Dear Westlake Tower 2 Unit Owner, We are writing to you today collectively as a group of concerned Unit Owners and Residences about the events that have taken place in our building from July/17 to now. Please read this letter carefully, respond to this email to let us know that you have received it by indicating your unit number. We urge all owners to attend the AGM on Nov. 9th at 6.30pm in person. Not Proxy. We need all Owners at this meeting to vote in person for a board that will act in good faith on behalf of owners. Please take the time to also read the CBC articles noted in the closing of this communication. They provide the basis for our request for you to attend the Nov. 9th meeting. At this meeting you will have a chance to learn more about the events outlined in this letter and the opportunity to vote for your new Board of Directors. Summary of the events: 1. Termination of First Service Residential Property Management (FSR) Three of the five Board of Directors: Sam (Shahab) Roozbahani, Marko (Maher) Hafez and Mian Aziz formed a quorum (majority) on the board and without the knowledge or input of the other two Board members, Mark Huang and Shaun McGrath, they acted on their own and terminated FirstService Property Management and replaced them with iCare Property Management. With some due diligence, the following was brought to our attention: a. iCare is not a recognized Condominium Property Management company in Ontario; b. Their website says “Manages over 400 separate suites” icarepropertymanagement.com which coincidentally we have over 400 suites. This raises the question, are we their only client? What experience do they have? What is their track record? What designations and experience do their Property Managers have? Do they have backup staff to cover vacations and other leave of absences? Do they have staff that are available 24/7? What is their track with emergencies? Have they had experience with critical emergencies that can develop in a Village the size of ours? We use the term Village because we share amenities, P1 parking, courtyard, retail stores in our commercial units, BBQ, etc. with Towers 1 & 3 and soon Tower 4. Managing four (4) towers requires coordinated efforts to maintain our shared facilitates and to ensure we receive quality level of service. With iCare in place, the sharing of security across buildings, superintendents, cleaning staff, etc. cannot happen and we lose this benefit that we have come to expect but maybe not always known this was the case. There are complex issues that can only be managed effectively if we have one property management company in the complex. There are also economies of scale in acting jointly. The three named Board Members are aware that fact but decided to act unilaterally despite the dissent of the other two members of their board and other members on the Shared Condo Committee. 2. Conduct of Business The same three Board Members Sam, Marko and Mian have failed to act honestly and in good faith on the behalf of all Owners. The hasty transition of property management has enabled these Members to take control of the AGM process to ensure their re-election and allow them to continue with their agenda against the best interest of the Corporation and the Owners. As a result, we are now paying for two property management companies during the three months of transition. If these actions continue the Corporation may need to commence legal action against all the Board Members to recover substantial financial losses and protect the interest of the Corporation. This will increase costs by creating legal costs and increases in future insurance costs. These costs will be borne by the unit owners in the form of increases of condominium fees. 3. Requisition Meeting to Remove Board Members Sam, Marko and Mian A group of Owners were unsuccessful in the petition to have an Owner Requisition Meeting to remove the 3 board members. They managed to get the meeting date of Monday, September 25th arranged but did not have quorum (minimum of 109 votes either in person or by proxy). They were unsuccessful in their endeavor to remove the board members because iCare oversaw the process and failed to notify all Owners in a timely manner. The three Board Members named above incurred costs for the Owners by retaining the services of the Corporation lawyer and minute taker for their sole benefit at that meeting. 4. Critical Emergencies: 1. Massive Power Failure Sunday, Oct 15th 3:30 pm. There was no iCare assistance. No one from iCare to reach, responding or returning emails during this black-out. No one helping us to remain calm or assure us things are under control; 2. Major Flood Saturday, Oct. 21 at 5:30 am. Tenants in one unit were responsible for water overflow of at least 3 hours in duration which affected over 10 floors and multiple units. Emergency responders were on the scene but iCare was nowhere to be found for days. FSR acted immediately to respond to ALL 2 of our crisis, put people at ease, made calls and had restoration units and staff arrived to do clean-up. 5. Re-Election In the recent AGM package that you should have received by mail, Marko and Mian are asking to be re-elected and are promising to lower maintenance fees. Their actions in the last 12 months may result in two lawsuits, liens and potentially a Special Assessment of the property which will raise the unit owner condominium fees substantially and potentially disrupt the process of obtaining Clearance Certificates that will disrupt purchase and sales and mortgage transactions for the unit owners. 6. Our Investment Owners have a lot at stake with their investment. There is a total of 434 units in the tower with an annual budget of $2.36 million dollars and a reserve fund of $477, 000. Daily we hear on the news that we should not give out confidential information to callers or emails who we do not know. Giving out bank account numbers, signatures etc should only given to a trusted and known person(s) or company. It is improper for iCare to request such confidential information through a portal. The actions of these Board Members brings into question their motives and agenda. 7. AGM By now you should have received a hard copy of the AGM package by regular post. It was sent out on October 20th, 2017. Please note in the Agenda where it references “the following interested persons of their intention to be a candidate in the election” includes only two candidates running for the board. The same two directors whose term has expired and now seeking re-election. However, it does not list the names of individuals who also submitted their application to run for the board. Their names were excluded from AGM Agenda in the package mailed – 1. Karen Calder and 2. Yinan (Helen) Liu. Those excluded candidates are now concerned that they have no option but to nominate themselves from the floor during AGM on November 9th and after the fact that Proxy’s have been submitted. This is why WE ARE STRONGLY ENCOURAGING YOU TO ATTEND THE AGM IN PERSON in order for your vote to count and voice to be heard. The same three Board Members approved the package and omitted to name all the competing candidates. 8. Major Dispute with the developer (Onni) Onni has failed to provide audited financial statements to account to the three Corporations for the $25,000 to $35,000/month that the three Corporations pay to Onni subject to an Agreement called the “Four-Way Agreement”. This Agreement governs the commercial properties and the costs of maintaining the common areas and commercial space in the courtyard, P1 and P2 levels. The three Corporations manage this Agreement through a Three-way Committee consisting of a Board Member from each of the three Corporations. The three Corporations through the Shared Committee and with the assistance of FSR have been in negotiations for the last 12 months for the release of information so that they may account to Owners on how this money is spent by Onni. They believe that Onni has not been accurate and fully transparent in the administration and allocation of these costs. They have refused to provide any information and have threatened to commence another lawsuit and place liens on all the units in the complex if we do not pay exorbitant sums for electrical bills that have neither been substantiated or budgeted for by the three Corporations. The three Board Members named above have failed to attend any of the meetings or acknowledge the position of our Corporation in this looming crisis. They have exposed the Owners to possible liens and another lawsuit involving Onni. Our main goal here is simply to have a fair and democratic election process, to have our building managed by an experienced, registered and reputable company with a qualified Property Manager as well as having a Board of Directors that act with respect and in good faith on behalf of all Owners as well as with each other. We trust you agree. It is critical you educate yourself on what can happen when you do not get involved in your condo and do not attend a crucial meeting like the Annual General Meeting. Following are links to CBC articles that will show you why we are concerned: 1. http://www.cbc.ca/news/canada/toronto/questionable-proxies-shut-down-charles-street-condo-election-sources-say-1.4118643 and; 2. http://www.cbc.ca/news/canada/toronto/condo-owners-resign-toronto-1.4131732. Thank you for your time in reading this letter and taking an active role in your home. Again, to ensure your voice is heard, it is imperative that we have ALL UNIT OWNERS at this meeting on November 9th and vote in person. Please, reply to this email with your unit number and confirm your attendance. Thank you Concerned Owners and Residents

[287s-blog1]

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[sallyschultz937-blog]

Does Real Estate Companies In Hampton Roads Sometimes Make You Feel Stupid?

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[marylandconstructionlaw]

ASSESSMENT COLLECTION FOR CONDOMINIUM ASSOCIATIONS IN MARYLAND AND WASHINGTON DC

Guidelines for adopting assessment collection policies in Maryland and the District of Columbia. 

The Legal "dos and don'ts" of assessment collection.

The timely payment and collection of condominium assessments is essential to the financial well-being and efficient operation of a condominium association. The association’s Board of Directors has a fiduciary responsibility to stay on top of assessment collection so that delinquent condominium assessments do not accumulate. Excessive delinquencies not only deprive a condominium association of needed operating capital, but also affect its ability to borrow money and obtain FHA approval. This article provides an overview of the assessment collection process for condominium associations in Maryland and the District of Columbia. Information is provided to help associations adopt their own assessment collection policies and procedures that work best for their communities within the framework of Maryland and Washington DC condominium law.

 ANNUAL ASSESSMENTS AND SPECIAL ASSESSMENTS

 Condominium assessments are the means by which a condominium association board of directors funds the annual budget. Each year, the condominium association adopts a budget to cover its operating expenses and an amount to be set aside for anticipated future expenses. The total budget cost is divided among the unit owners in the form of an annual assessment typically due and payable in equal monthly installments on the first day of each month.

Sometimes condominium associations are faced with unanticipated major expenses in excess of the funds raised by the annual assessments. In such cases, governing documents give the board of directors the power to levy a “special assessment,” subject to restrictions imposed by applicable laws. Unit owners may be given the option to pay the special assessment in monthly installments.

PAYMENT OF ASSESSMENTS

 Condominium assessments are traditionally paid by check using payment coupons and envelopes provided by the condominium association’s management company. More frequently, management companies send electronic coupons and/or assessment invoices by email and offer online payment by E-check, credit card or recurring ACH payment (direct debit). Coupons and invoices are often used as an opportunity to remind the unit owners that they can avoid late fees and interest by making timely payment on or before the specified due date.

ASSESSMENT COLLECTION POLICIES & PROCEDURES

It is recommended that all associations establish written assessment collection policies and procedures based on governing documents and applicable law. Written policies and procedures can be created under the rulemaking authority of the association and provide an objective framework under which the condominium association can treat all unit owners equally.

Written policies and procedures are a useful aid in the collection of assessments because they can be published and distributed on a regular basis so that all unit owner members have ample notice of, and opportunity to understand, what is expected (e.g., due date and manner and method of payment) and the consequences for nonpayment (e.g., late fees, interest, returned check fees, acceleration, suspension of common element privileges, referral to legal counsel, and court costs and attorney’s fees if legal action is taken).

Written policies and procedures promote the timely collection of assessments by establishing a timeline for collection actions to be taken once a payment is missed. Written procedures instruct when an association should send out late notices and when to refer unresolved delinquencies to legal counsel. A timetable of deadlines for actions to be taken by legal counsel can also be specified, including sending demand letters and commencing proceedings to establish and/or enforce assessment liens, or pursue civil suits when assessments remain unpaid.

ASSESSMENTS PAYMENT INCENTIVES IN GOVERNING DOCUMENTS

1.         Late Fees and Interest

When assessments become past due, a condominium association can charge late fees and interest as permitted by governing documents and applicable law. Late fees and interest are not only an incentive to make timely payment, but also to help defray costs associated with delinquencies.

Under Maryland law, where a delinquency in the payment of condominium assessments has continued “for at least 15 calendar days,” the condominium’s governing documents may provide for the imposition of a one-time “late charge” of $15 or 10% of a delinquent assessment, whichever is greater. Maryland Condominium Act (“MD Condo Act”) § 11-110(e)(2). Additionally, whenever an assessment is not timely paid, a condominium association board of directors may charge interest from the due date until paid at a rate of “18% per annum,” unless a lesser amount is specified in the condominium’s governing documents. MD Condo Act § 11-110(e)(1). Governing documents may further define parameters for late charges and interest.

In the District of Columbia, the Condominium Act does not regulate the amount or timing of late fees imposed for nonpayment of condominium assessment. Thus, reference should be made to the governing documents. A condominium association in Washington DC can charge interest after an assessment payment is 15 days late, unless the governing documents provide otherwise. District of Columbia Condominium Act (“DC Condo Act”) § 42–1903.12(e). Interest runs from the due date at either 10% per year or the maximum first mortgage loan rate in DC, whichever is less. DC Condo Act § 42–1903.12(e).

2.         Acceleration of The Annual Assessment Upon Non-Payment

Acceleration is another incentive for unit owners to make timely payments. Most governing documents permit a condominium association to accelerate the entire balance of the unpaid annual assessment following nonpayment of a monthly installment. This means that the board of directors may declare the entire balance of the unpaid annual assessment immediately due and payable, such that monthly installments will no longer be accepted. Any attempt at acceleration by a condominium association must be permitted by governing documents and consistent with applicable laws.

In Maryland, the governing documents can provide for acceleration after one unpaid installment, but only if the association demands payment of the remaining annual assessment and notifies the non-paying unit owner within 15 days of nonpayment that the entire annual assessment will become due and constitute a lien on their unit if the monthly installment is not paid within 15 days of the notice. MD Condo Act § 11-110(e)(3).

In Washington DC, governing documents can provide for acceleration after one unpaid installment, which can be automatic or at the option of the association, board, or manager. DC Condo Act § 42–1903.12(d)

3.         Suspension of Common Privileges

Suspension of a unit owner’s privileges within the community can also be an incentive to make timely assessment payments. The condominium governing documents often authorize the Board of Directors to suspend a delinquent unit owner’s common privileges such as use of common elements (e.g., swimming pool, exercise facilities, recreational amenities and parking), voting rights and/or ability to serve on the board of directors. Before suspending a unit owner’s privileges, the condominium association must comply with any notice or hearing requirements set forth in the governing documents and/or as require by statute.

In Maryland, a condominium association may only suspend a delinquent unit owner’s use of communally held common elements facilities for failure to pay assessments if the specific suspension in question is expressly authorized in the recorded condominium declaration. In the case of Elvaton Towne Condominium Regime II, Inc. v. Rose, 453 Md 684 (2017) (“Elvaton”), the Maryland Court of Appeals struck down a condominium policy that suspended a delinquent owner’s right to use the pool and parking facilities. The court found that Section 11-108(a) of the Maryland Condominium Act only permits a condominium association to restrict a unit owner’s use and enjoyment of the common elements if such restriction is expressly authorized by the condominium declaration. Elvaton, 453 Md. at 701-06. In Elvaton, the declaration did not expressly authorize suspension of pool and parking privileges; instead, the suspension policy was based solely upon general rule making authority under governing documents, which was insufficient. Elvaton, 453 Md. at 705-06. The court did acknowledge that a condominium board has authority to generally adopt reasonable rules for parking, assessment collection, and use of the common elements. However, when it comes to suspending a specific unit owner’s right to use the common elements generally available to others, the authorization for such action must be expressly set forth in the condominium declaration, which is, in essence, an agreement of all unit owners who become members of the association. If not spelled out in the declaration, then such a suspension constitutes “an impermissible taking” and an unlawful “revocation” and “infringement of [an] owner's property rights.” Elvaton, 453 Md. at 703-06.

The Maryland condominium Act contains a statutory “dispute settlement mechanism” that also must be taken into consideration when suspending a unit owners common privileges. Unless the governing documents state otherwise, the statue sets forth the procedure for providing notice and a hearing to a delinquent unit owner before the condominium association may “impose a fine, suspend voting, or infringe upon any other rights of the unit owner or other occupant for violation of rules….”.MD Condo Act § 11–113.

The District of Columbia Condominium Act does not have a statutory provision like Maryland’s Section 11-108(a), and, therefore, the rationale in Elvaton (i.e., authority to suspend use of common elements must be expressed in the declaration) would likely not apply. In fact, a Washington DC condominium association has general rule making authority under § 42-1903.08 of District of Columbia Condominium Act to established a policy that provides for the suspension of a delinquent unit owners common element privileges, even if not specifically set forth in the recorded condominium declaration. However, in order to avoid a successful constitutional argument of unlawful taking of property rights without due process, a Washington DC condominium association should adopt, publish and regularly distribute written policies and procedures regarding the suspension of common area privileges so that all unit owners have prior notice. These procedures should also ideally include written notice and an opportunity for the non-paying unit owner to attended or request a hearing before the board within a specified time (even if not required by the governing documents), before a final decision to suspend common element privileges is imposed.

In the District of Columbia, a board of directors has the statutory “power to suspend the voting rights … of any unit owner who is in arrears in … payment of … assessments by more than 30 days.” DC Condo Act § 42-1903.12(j).LATE NOTICES

A typical first step in the collection procedure is to send out a late notice to any unit owner who has not paid an assessment installment within a specified time following the due date. The late notice is a reminder that the assessment payment is overdue and specifies the amount and any late charges and/or interest due as a result of non-payment. If payment is not forthcoming, follow-up late notices may be sent depending on the association’s collection policy.

DEMAND LETTER (REFERRAL TO LEGAL COUNSEL)

If one or more late notices do not result in a payment, the second step in the typical collection procedure is to refer the assessment delinquency to legal counsel for collection. Legal counsel will attempt to resolve the matter amicably by sending a demand letter to the unit owner. In addition to itemizing the current amount due and requesting payment by a certain date, the demand letter provides notice of any immediate or pending acceleration of the entire remaining balance of the annual assessment and describes other legal actions that may be taken, such as: (1) recording an assessment lien against the non-paying unit owner’s condominium unit that can be enforced by way of foreclosure (i.e., forced sale of the unit to obtain funds to pay the amount due); and/or (2) filing a lawsuit seeking a personal monetary judgment against the unit owner in the amount due, including late fees, interest, costs, and reasonable attorneys’ fees as permitted by governing documents and applicable law.

1.         Required Lien Notice to be Provided in Maryland Demand Letter

In 1985, the Maryland General Assembly enacted the Maryland Contract Lien Act (“MD Contract Lien Act”) to govern, among other things, liens arising from unpaid condominium assessments under the terms of governing documents recorded in the land records. Demand letters sent on behalf of condominium associations in Maryland must comply with this Act as a precondition to establishing and enforcing an assessment lien against a delinquent unit (discussed below). A unit owner must be provided with specified information about the basis, nature, and amount of the lien owed, as well as the unit owner’s right to contest the establishment of a lien by filing a complaint in the circuit court where the lien is sought to be established within 30 days after receiving notice. MD Contract Lien Act, § 14-203 (b)(1) – (7). The Demand Letter containing this information must be served upon the unit owner as specified in Section 14-203(a) of the Maryland Contract Lien Act (e.g., certified or registered mail, personal delivery, and some cases posting on the property).

2.         Required Information to be Provided in Washington DC Demand Letter  

In 2017, the District of Columbia enacted amendments to the Condominium Act known as the “Condominium Owner Bill of Rights and Responsibilities Act of 2016.” Under this Act, condominium associations must provide specified information whenever notifying a unit owner of its intention to take legal action to collect any past due amount. DC Condo Act § 42–1903.12a. Therefore, a demand letter sent on behalf of a Washington DC condominium that notifies a unit owner of pending or potential legal action for nonpayment of past due assessments must contain the following information: (1) a statement of account showing the total amount past due, including a breakdown of the categories of amounts claimed to be due and the dates those amounts accrued; (2) contact information for a representative whom the unit owner can contact to settle the past due amount; and (3) information regarding resources which the unit owner may utilize at the District of Columbia Department of Housing and Community Development and the United States Department of Housing and Urban Development (form language is provided by the statute). DC Condo Act § 42–1903.12a.

COMPLIANCE WITH DEBT COLLECTION AND LICENSING LAWS

Demand letters and many late notices constitute an attempt to collect a delinquent debt and, to the extent applicable, must comply with debt collection conduct and notification requirements imposed by the Federal Fair Debt Collection Practices Act, Maryland Consumer Debt Collection Act, and/or the District of Columbia Fair Debt Collection Act.

In Maryland, persons who fall within the definition of a “collection agency” (e.g., those who collect consumer debt on behalf of another) must be licensed. Maryland Collection Agency License Act (“MCALA”) § 7–301(a). The United States District Court for the District of Maryland has held that a management company is a “collection agency” as defined in Section 7-101(c)(1)(i) of MCALA whenever it seeks to collect a debt on behalf of a homeowner’s association. Fontell v. Hassett, 870 F. Supp. 2d 395, 409 (D. Md. 2012) (“Fontell”). The same rationale applies to condominium associations. Therefore, any management company sending demand letters to unit owners or otherwise seeking to collect an assessment debt for a condominium association in Maryland must have a collection agency license or it will expose itself  to criminal misdemeanor imprisonment, fines, or both (MCALA § 7-401(b)), and also subject itself to civil liability under the Maryland Consumer Debt Collection Act, the Maryland Consumer Protection Act, and possibly the Federal Fair Debt Collection Act. Fontell, 870 F. Supp. at 409.

Moreover, in addition to the management company entity itself, an employee of an unlicensed management company can be held personally liable for seeking to collect a debt on behalf of an association without a collection agency license in Maryland. Fontell v. Hassett, 891 F. Supp. 2d 739 (2012) (motion to amend earlier court order holding individual management company employees liable was denied). However, once a management company has a collection agency license, its “regular employees” do not require a license, while “acting within the scope of [their] employment.” MCALA § 7-301(b)(2).

There is currently no collection agency license in the District of Columbia, however, management companies doing business in the District of Columbia are required to obtain a general business license with the Department of Consumer and Regulatory Affairs. D.C. Code 47-2851.03d.

ASSESSMENT LIENS AGAINST A CONDOMINIUM UNIT

If demand letters do not result in payment of the delinquent assessment, a condominium association’s board of directors has the power to establish and/or enforce an assessment lien against the non-paying unit owner’s condominium unit. Once an assessment lien attaches to the unit, it places a “cloud on title,” by encumbering the ability to sell the unit, similar to a mortgage, such that the lien must be paid off in connection with any future sale before the unit owner receives any part of the remaining sale price. A title company representing the purchaser of the delinquent unit will likely discover the assessment lien before settlement and require that it be paid as a condition to issuing a title insurance policy. Without a title insurance policy, an institutional lender will not provide funding for the purchase of a unit. Additionally, a unit owner with an assessment on their unit will have difficulty obtaining financing. Thus, an assessment, lien, to this extent, serves to secure an association’s assessment debt.

Additionally, once an assessment lien attaches (and providing that required notices have been provided), it can be used by the condominium association to immediately force the sale of the unit as a source of funds to pay the past due amount (the “enforcement and foreclosure of the lien”), without having to wait for a purchaser to come along and acquire the unit.  

Foreclosures are expensive and used as a last resort when they make economic sense. However, the prospect of having a lien established against one’s unit, or the desire to have the lien removed, is often enough to resolve any dispute over past due assessment payments without the need for further legal action.

1.         Creation of Assessment Liens and Foreclosure in Maryland

a. What’s included in a Maryland assessment lien? In Maryland, assessment liens may consist of unpaid assessments, “together with interest, late charges, if any, costs of collection, and reasonable attorneys’ fees.” MD Condo Act § 11-110(d). If permitted by the governing documents (and provided 15 days’ notice of acceleration has been given), a failure to pay a single installment will result in the remaining annual assessment coming due (“acceleration”) upon demand of the condominium association. MD Condo Act § 11-110(e)(3). In such a case, the full amount of the remaining unpaid annual assessment for the balance of the fiscal year also becomes part of the assessment lien. MD Condo Act § 11-110(e)(3). 

b. How is a Maryland assessment lien created? In Maryland, unlike the District of Columbia, a condominium assessment lien does not automatically attach to a unit upon non-payment of an assessment installment. Rather, an assessment lien must be established or “created” in favor of the condominium association by the filing of a “Statement of Lien” in land records of the county where the unit is located in accordance with the procedures set forth in the Maryland Contract Lien Act. Select Portfolio Servicing, Inc. v. Saddlebrook West Utility Company, LLC, 455 Md. 313, 336 (2017). Only then will an assessment lien attach to the delinquent unit. A form Statement of Lien is provided in Section 14-203(j) of the Maryland Contract Lien Act. As a precondition to seeking to create a lien, the unit owner whose property is affected must be given the notices as required by the Maryland Contract Lien Act § 14-203 (a) and (b) (described above), within 2 years of a nonpayment in violation of the governing documents. MD Contract Lien Act § 14-203(a)(1).

In cases where the assessment is uncontested, the lien is created non-judicially by simply filing of the Statement of Lien in land records. MD Contract Lien Act § 14-203(g). In cases where the assessment is contested in court, the lien is created judicially by the filing of a Statement of Lien in land records, upon the order of a court that a lien be imposed. MD Contract Lien Act § 14-203(h).

c. How is a Maryland assessment lien foreclosed upon? In Maryland, a residential unit may be foreclosed upon to satisfy an assessment lien in the same manner and subject to the same requirements as the foreclosure of mortgages or deeds of trust on property containing a power of sale or an assent to a decree. MD Contract Lien Act § 14-204(a). See Maryland Real Property § Article 7-105 and Maryland Rules § 14-201 et seq. An action to foreclose on an assessment lien must be brought within 12 years following recordation of the statement of a lien, MD Condo Act 14-204(c), or within a shorter time period required by the governing documents. However, unlike other real property foreclosures, a foreclosure sale involving a condominium unit in Maryland may only be pursued to the extent that damages secured by the lien consist of: (1) delinquent periodic assessments or special assessments and any interest; (2) reasonable costs and attorney’s fees directly related to the filing of the lien that do not exceed the amount of the delinquent assessments, excluding any interest; and (3) do not include fines imposed by the governing body or attorney’s fees or costs related to recovering the fines. MD Contract Lien Act § 14-204(d)(2). Ironically, although a condominium association in Maryland may impose fines for late payment (the “late fees” discussed above under MD Condo Act § 11-110(e)(2)) which may be made part of the lien itself under MD Condo Act § 11-110(d)(1), such late fees may not constitute the basis of a condominium association’s foreclosure sale action.

2.         Creation of Assessment Liens and Foreclosure in Washington DC

a. What’s included in a Washington DC assessment lien?  In the District of Columbia, an assessment lien may consist of “the assessment levied against the condominium unit … along with any applicable interest, late fees, reasonable expenses and legal fees actually incurred, cost of collection and any other reasonable amounts payable by the unit owner under the condominium instruments.” DC Condo Act § 42-1903.13(a). If condominium assessments are paid in installments, governing documents can provide for acceleration of the entire assessment after one or more unpaid assessment installments. DC Condo Act § 42–1903.12(d). However, whether or not monthly installments are accelerated, the full amount of the annual assessment becomes part of the assessment lien “from the time the first installment becomes due and payable.” DC Condo Act § 42-1903.13(a).

b. How is a Washington DC assessment lien created?  In the District of Columbia, unlike Maryland, an assessment lien in favor of the condominium association attaches to the unit automatically “from the time the assessment becomes due and payable,” DC Condo Act § 42-1903.13(a), and lasts for a period of three years, DC Condo Act § 42-1903.13(e). Unlike Maryland, no recording of a statement of lien in the land records is required in the District of Columbia to create the lien because “the recording of the [original governing documents in the land records] shall constitute record notice of the existence of such lien.” DC Condo Act § 42-1903.13(b). Nonetheless, a condominium association can choose to file a notice of lien in the land records to put prospective purchasers, lenders and others on notice of the existence and or subsequent release of an assessment lien. The Recorder of Deeds publishes forms online for this purpose entitled “Notice of Condominium Lien for Assessments Due” and “Release of Condominium Lien." 

Even if no formal action has been taken to record or enforce the lien, any unit owner or contract purchaser of a condominium unit can find out whether there are unpaid assessments by requesting that the condominium association provide “a recordable statement setting forth the amount of unpaid assessments levied against that unit.” DC Condo Act § 42-1903.13(h). Failure of the condominium association to provide such a statement within 10 days of receipt of the request “shall extinguish the lien.” DC Condo Act § 42-1903.13(h). 

c. How is a Washington DC assessment lien foreclosed upon? The District of Columbia Condominium Act sets forth the procedure for foreclosing on a condominium unit to satisfy an assessment lien. The board president of the condominium association (also known as the “chief executive officer of the unit owners’ association) is deemed by statute to be a “trustee” for purposes of exercising the power to sell and transfer title to a delinquent unit owner’s condominium unit. DC Condo Act § 42-1903.13(c)(1) and (3). However, such a foreclosure sale cannot be held until at least 31 days after a “Notice of Foreclosure Sale of Condominium Unit for Assessments Due” (a/k/a “NFSCUAD”) is recorded in the land records and served upon the unit owner. DC Condo Act § 42-1903.13(c)(4)(A). The NFSCUAD must contain information specified by the statute, including detailed information about the amount due, the amount being foreclosed on, and assistance that may be available to the unit owner from the District of Columbia Department of Housing and Community Development and the United States Department of Housing and Urban Development. DC Condo Act § 42-1903.13(c)(4)(B) and (D). The NFSCUAD must also be provided to the mayor or the mayor’s designated agent, any and all junior lienholders of record, any holder of a first deed of trust or first mortgage of record (including successors, assigns, and trustees), and the Mortgage Electronic Registration System (“MERS”). DC Condo Act § 42-1903.13(c)(4)(E).

3.     Super Priority Assessment Liens

Assessment liens in Maryland and Washington DC have priority, up to a specified amount, over the liens created by a lender’s earlier-filed first mortgage or deed of trust. This is referred to as a “super priority lien” and references the fact that in the event of a foreclosure sale, the super priority portion of the assessment lien must be paid to the condominium association from the sale proceeds before satisfying the lien amount of an earlier-filed lender’s mortgage or deed of trust.

In Maryland, the super priority lien is limited to four months of unpaid assessments or $1,200.00, whichever is less, and may not include interest, collection costs, late charges, fines, attorneys’ fees, or special assessments or any other costs. MD Condo Act § 11-110(f)(3). The super priority lien in Maryland only provides priority over “a holder of a first mortgage or deed of trust recorded against the unit on or after October 1, 2011.” MD Condo Act § 11-110(f)(2). An association’s super priority lien does not provide priority over mortgages or deed of trust recorded before October 1, 2011,nor does it provide priority over liens or secured interest held by the state, county, or municipality such as a tax lien. MD Condo Act § 11-110(f)(1) and (2).

In the District of Columbia, the super priority lien is limited to the most recent six months’ worth of common expense assessments. DC Condo Act § 42-1903.13(a)(2). The super priority lien in Washington DC only provides priority over first mortgages or first deeds of trust recorded after March 7, 1991 for the benefit of an institutional lender. DC Condo Act § 42-1903.13(a)(1)(B) and (a)(2). An association’s super priority lien does not provide priority over mortgages and deeds of trust recorded before March 7, 1991, a lien for real estate taxes or municipal assessment charges, nor does it affect the priority of a mechanics’ or materialmen’s lien. DC Condo Act § 42-1903.13(a)(1)(C) and (2).

When faced with a foreclosure proceeding, a lender may offer to pay off the super priority lien amount on behalf of the delinquent unit owner in order to prevent the foreclosure and thereby protect its mortgage or deed of trust.

CIVIL LAWSUIT TO OBTAIN PERSONAL JUDGMENT

A condominium association can also file a civil lawsuit seeking a personal monetary judgment from a court in its favor and against the delinquent unit owner in the amount of the unpaid assessment, together with authorized late fees, interest, court costs and reasonable attorneys’ fees. A lawsuit seeking a personal judgment can be filed in addition to or in place of a lien foreclosure action, or can be used to make up any deficiencies remaining after foreclosing on the assessment lien. Once the court enters a personal monetary judgment against a delinquent unit owner, the association can seek to collect on the judgment by garnishing the unit owner’s wages or bank accounts and/or rent (if the unit is being rented), subject to restrictions imposed by applicable laws. Additionally, a personal judgment entered against unit owner by the court and recorded in the courthouse will create a judgment lien not only against the unit in question, but also as to and any other real property located in the county or jurisdiction of filing. The judgment can also be recorded among the land records of a different county or jurisdiction thereby extending the judgment lien to any real property located within the boundaries thereof. As with an assessment lien, a judgment lien also creates a “cloud on title” such that property cannot be transferred “free and clear” of the lien unless it is paid off by prior to transfer of title.

PAYMENT PLANS

During the collection process, it may be appropriate to agree upon a payment plan with unit owners who fall behind on their assessment payments. Payment plans can save the association the time and expense of pursuing legal action and provide a unit owner member with time needed to bring their account current. Payment plans should be reserved for those cases where timely repayment of a past due amounts under the proposed plan is feasible and likely, such as where a unit owner is able to pay assessments going forward but needs help catching up on missed payments. Payment plans can also be used as a means of resolving a payment dispute by allowing a unit owner to pay off an accelerated annual assessment together with interest, late fees, costs and attorneys’ fees, if any. Payment plans should be made part of a contractual agreement between the association and the unit owner that sets forth the amount of each payment, its due date, and the mutually agreed-upon consequences of failure to make a scheduled payment. A hierarchy for application of payments pursuant to the association’s collection policy can also be included to specify which fees are paid first (e.g., court costs, return check charges, interest, late fees, and lastly unpaid assessments).

NOTE ABOUT TERMINOLOGY:

The term “condominium association” is used in this article to describe the organization or entity that governs the affairs of the condominium in accordance with the condominium bylaws and declaration, and whose members consist of all condominium unit owners. “Condominium association” is the terminology commonly used for this purpose. However, the Maryland Condominium Act refers to a condominium association as a “council of unit owners” and the District of Columbia Condominium Act refers to a condominium association as a “unit owners’ association.”

The term “board of directors” is used to refer to the administrative entity made up of board members that have authority under the condominium bylaws and declaration to act on behalf of the condominium association. The District of Columbia Condominium Act refers to a board of directors as an “executive board.” 

The term “governing documents” is used to refer to the condominium declaration and bylaws. The District of Columbia Condominium Act refers to the condominium bylaws and declaration as “condominium instruments.”

NOTE ABOUT AUTHOR: 

Nicholas D. Cowie is a partner in the law firm of Cowie & Mott, P.A. and has been representing condominiums for over 29 years. The law firm of Cowie & Mott, P.A. provides general counsel legal services to condominiums throughout the State of Maryland and the District of Columbia, including assessment collection, drafting resolutions, developing assessment collection policies, contract negotiation, legal opinions, foreclosure actions, litigation, arbitration, mediation services, bylaw amendments and other general counsel services tailored to condominiums associations and homeowners associations. The law firm of Cowie & Mott, P.A. offers flat fee assessment collection services with deferred billing. Please contact our firm for references.

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