Defenses to an HOA Foreclosure
If your homeowners association initiates a foreclosure of your home, condo, or townhome, you may have a defense.
If you owe dues or assessments to your homeowners’ association (HOA), the HOA can foreclose on your home, condominium, or townhome if you default on those payments. However, there are defenses available to an HOA foreclosure. Read on to learn more about possible defenses in an HOA foreclosure.
(To learn about HOA foreclosures, see HOA Liens & Foreclosure: An Overview.)
Liens for HOA Assessments
If you don’t pay the fees and assessments imposed by your HOA (collectively called “assessments”), as required by the Declaration of Covenants, Conditions, and Restrictions (CC&Rs), in many cases, a lien will usually automatically attach to your property. (Learn more about homeowners’ associations in our article Homeowners' Associations (HOAs) and CC&Rs.) Additionally, sometimes the HOA will record a lien with the county recorder to provide public notice that the lien exists, even if your state doesn't require the lien to be recorded.
An HOA Can Foreclose for Unpaid Assessments
What homeowners don’t always realize is that, even if you are current on your home mortgage payments, you could lose your house to foreclosure if you do not pay the HOA assessments. If an HOA has a lien on your property, it may foreclose that lien. The foreclosure will occur in much the same way it would if your mortgage lender were to foreclose. (Learn more about foreclosure in Nolo's Foreclosure topic area.) This means you could lose your home even if you are only a few hundred or thousand dollars behind on HOA assessments.
Available Defenses to an HOA Foreclosure
To fight an HOA foreclosure, you may be able to raise one or more of the following defenses:
The HOA Did an Incorrect Accounting or Overstated Charges
Sometimes assessment liens are invalid due to incorrect accounting by the association or its management company. If you believe the HOA has improperly calculated the assessments and raise this as a defense, the HOA must show how all amounts were calculated, including assessments, late fees, interest, fines, and costs, all of which must be in the correct amount and have a basis provided for in the CC&Rs.
Failure to Follow the Assessment Lien Foreclosure Statutes
If the HOA fails to adhere to the state statutory requirements, the foreclosure can be dismissed. For example, in California, the delinquent assessments must exceed $1,800 or the delinquency must be at least 12 months old before the HOA can initiate foreclosure proceedings (Cal. Civ. Code §1367.4). If the HOA prematurely initiates a foreclosure, the homeowner can raise the failure to adhere to the statutory requirements as a defense.
The fines, interest, late fees, management fees, and attorneys’ fees assessed must be reasonable. For example, if the HOA forecloses due to $500 in back dues, but penalties and costs associated with the foreclosure (such as fines and attorneys’ fees) increase the amount due to over $10,000, a judge may very likely decide this is unreasonable.
The Assessment is Not Authorized by the Governing Documents
Sometimes, an HOA may assess a charge that is not authorized by the CC&Rs. If the HOA then initiates foreclosure of the lien that is the result of an unauthorized charge, the lien (and foreclosure) would be invalid.
Misapplication of Payments
Depending on the state and the CC&Rs, in many cases, payments to an HOA must first be applied to assessments before any other type of debt. This means that an assessment lien and subsequent foreclosure may be invalid if the HOA applied payments to a category other than assessments, such as fines.
Improper Recording of the Assessment Lien
In some states, the lien for assessments must be perfected through recordation of the lien. If the HOA improperly records the lien (or does not record the lien at all) in a state that requires recordation, this can provide a defense to the foreclosure.
Also, if an assessment lien is improperly recorded against a property, the property owner may be able to bring a wrongful lien claim against the HOA. In Arizona, for example, a homeowner is entitled to a minimum $5,000 in damages against a party that improperly records a lien, plus attorneys’ fees and costs, as well as an additional $1,000 if the party refuses to release the incorrect assessment lien within twenty days from the date of a written request. (Ariz. Rev. Stat. Ann. § 33-420).
The HOA is Not Authorized by its Governing Documents to Foreclose
Generally, the CC&Rs will contain a provision governing how and when the HOA may foreclose. However, in some cases, the CC&Rs may not authorize foreclosure.
What to Do if You are Facing Foreclosure By an HOA
These are only a few of the possible defenses available to an HOA foreclosure, but there are, of course, others. HOA laws vary widely from state to state and are complicated. Additionally, the manner in which you will need to fight an HOA foreclosure differs depending on whether the foreclosure is judicial or nonjudicial. (To learn more about the difference between judicial and nonjudicial foreclosure, and the procedures for each, see our Judicial v. Nonjudicial Foreclosure topic area.)
If you are facing a foreclosure due to unpaid HOA assessments, you should consult with a licensed attorney in your state to discuss all legal options available in your particular circumstances.
(See our HOA Foreclosure topic page for articles on HOAs, how bankruptcy can help discharge dues, HOA super liens, and more.)