If you live in a condominium, single-family house, or townhome that is part of a common interest development in West Virginia, you are likely responsible for paying dues and assessments to a homeowners’ association (HOA) to cover the expenses of the community. If you don’t pay, in most cases the HOA can get a lien on your property that could lead to a foreclosure.
Read on to learn more about HOA foreclosures in West Virginia.
West Virginia HOA Lien Laws
West Virginia’s Uniform Common Interest Ownership Act, which is found in Chapter 36B of the West Virginia Code, is the main set of laws governing HOAs in the state. It governs common interest communities created after 1986, including condominiums and planned communities, as well as communities previously created with respect to certain events and circumstances after that date.
How HOA Liens Work
Almost all HOAs have the power to place a lien on the property if the homeowner becomes delinquent in paying the monthly common expense dues and/or any special assessments (collectively referred to as assessments). Once a homeowner becomes delinquent on the assessments, a lien will usually automatically attach to that homeowner's property.
In West Virginia, the HOA is entitled to a lien from the time an assessment or fine becomes due. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment becomes due (W. Va. Code § 36B-3-116(a)).
To protect its right to enforce the lien, the HOA must give notice of the lien to the homeowner (personally or by registered or certified mail) and record a notice of lien in the land records (W. Va. Code § 36B-3-116(h)).
Charges the West Virginia HOA May Include in the Lien
West Virginia law sets out the types of charges that the HOA may include in its lien, such as unpaid assessments and fines (for example, fines for letting your lawn become overgrown, leaving trash cans outside, or parking in forbidden areas). In addition, unless the declaration (the HOA's governing documents) provides otherwise, the HOA can also include the following in its lien:
- late charges
- other fees and charges (such as charges for the preparation and recordation of amendments to the declaration, resale certificates, or statements of unpaid assessments), and
- interest at the rate established by the association, but not exceeding 18% per year (W. Va. Code § 36B-3-116(a), § 36B-3-115(b)).
HOA Lien Priority in West Virginia
Lien priority determines what happens to other liens, mortgages, and lines of credit if your HOA lien is foreclosed. (To learn more about lien priority and its importance in HOA foreclosures, see What happens to my mortgages if the HOA forecloses on its lien?)
In West Virginia, an HOA’s lien is prior to all other liens, except for:
- liens and encumbrances recorded before the declaration
- liens for real estate taxes (and other governmental assessments), and
- a first mortgage or deed of trust recorded before the date on which the assessment to be enforced became delinquent (W. Va. Code § 36B-3-116(b)).
HOA Super Liens
In some states, an HOA lien (or a portion of an HOA lien) for delinquent assessments has priority over a lender’s first mortgage or deed of trust. This is called a super lien.
West Virginia law states that six months of past common expense assessments have super lien status (W. Va. Code § 36B-3-116(b)). (Learn more in Nolo’s article Homeowners’ Association Super Liens.)
Requesting a Statement of Past-Due Assessments
If you make a written request to the HOA, the association must provide you with a statement of the amount of unpaid assessments within ten business days after it receives the request (W. Va. Code § 36B-3-116(g)).
HOA Foreclosures in West Virginia
A common misconception is that the association cannot foreclose if you are current with your mortgage payments. However, the HOA’s right to foreclose has nothing to do with whether you are current on your mortgage payments. (Learn more about HOA liens and foreclosure.)
If you default on the assessments, a West Virginia HOA can foreclose on your home (W. Va. Code § 36B-3-102(17)). (Learn more about general foreclosure laws in West Virginia.)
Right to Cure
You have the right to cure the default and stop a foreclosure by paying the total amount due to the HOA, plus reasonable foreclosure expenses, including attorney's fees (W. Va. Code § 36B-3-116(i)).
Statute of Limitations
An HOA must initiate a foreclosure within three years after the full amount of the assessment becomes due, otherwise the lien is extinguished (W. Va. Code § 36B-3-116(d)). This is called the statute of limitations.
What to Do if You Are Facing Foreclosure by an HOA in West Virginia
If you are facing an HOA foreclosure, you should consult with an attorney licensed in West Virginia to discuss all legal options available in your particular circumstances. (See our HOA Foreclosure topic page for articles on HOAs, possible options to catch up if you are delinquent in payments, how bankruptcy can help discharge dues, HOA super liens, and more.)