Hawaii HOA and COA Foreclosures

In Hawaii, if your home is part of a homeowners' association (HOA) or condominium owners' association (COA) and you fall behind in assessments:

• The HOA or COA can usually get a lien on your home.
• The association typically can charge you for overdue assessments, including late fees, attorneys' fees and costs, interest, and fines.
• The process might be judicial or nonjudicial if the association forecloses the lien. But an association can't use a nonjudicial process to foreclose a lien that arises solely from fines, penalties, legal fees, or late fees; the lien must be judicially foreclosed.
• Lien priority determines what happens to other liens, like a mortgage lien, if an HOA or COA lien is foreclosed.

If the HOA or COA initiates a foreclosure, you could have a defense to the action. Or you might be able to negotiate a way to get caught up on the overdue amounts and save your home.

What Are Hawaii's HOA Laws?

Different sets of state laws often govern HOAs in subdivision communities and COAs. In Hawaii, planned community associations (HOAs) are governed by Haw. Rev. Stat. §§ 421J-1 to 421J-16.

The Condominium Property Act (§§ 514B-1 through 514B-163) governs condominiums and COAs. Effective January 1, 2019, Chapter 514A, called the "Condominium Property Act," was repealed. But the repeal didn't invalidate any condominium property regime validly created under that law before July 1, 2006. The Condominium Property Act applies to all condominiums in the state, provided that such application won't invalidate existing provisions of a condominium's governing documents if doing so would invalidate a developer's reserved rights.

This article focuses on Hawaii's planned community association laws and the Condominium Property Act.

What Happens If You Don't Pay HOA or COA Fees in Hawaii?

When you buy a single-family home, townhome, or condominium in a planned community with covenants, you'll most likely pay fees and assessments, often collectively called "assessments," to an HOA or COA. If you fall behind in the assessments, the association will likely initially try to collect the debt using traditional methods. For instance, the association will probably call you and send letters.

But if those tactics don't get you to pay up, the association might try other ways to collect from you. The association could take away your privileges to use the common facilities or file a lawsuit for a money judgment against you.

Based on the association's Declaration of Covenants, Conditions, and Restrictions (CC&Rs) or Declaration of Condominium and state law, most HOAs and COAs also have the power to get a lien on your property if you become delinquent in assessments. Once you fall behind in payments, a lien will usually automatically attach to your property. Sometimes, the association will record its lien with the county recorder to provide public notice that the lien exists, regardless of whether state law requires recording.

An assessments lien clouds the title to the property, hindering your ability to sell or refinance the home. In addition, the property can also be foreclosed to force a sale to a new owner—even if the property has a mortgage.

How Do HOA and COA Liens in Hawaii Work?

In Hawaii, all sums the association assesses, but are unpaid, constitute a lien on the property. (Haw. Rev. Stat. § 421J-10.5(a), § 514B-146(a) (2024).)

What Charges Can an HOA or a COA Include in a Lien?

An HOA or COA may generally include certain charges and penalties in the lien, including late fees, attorneys' fees and costs, interest (not exceeding 18% for COAs), and fines. (Haw. Rev. Stat. § 421J-10.5(a), § 514B-146(a), § 514B-144(b) (2024).)

Requesting a Statement of Amounts Due in Hawaii

You may request a written statement indicating the amount of common expenses included in the assessment due. (Haw. Rev. Stat. § 421J-10.5 (c), § 514B-146(c) (2024).)

How Do HOA and COA Lien Foreclosures Work in Hawaii?

Once an HOA or COA has a lien, it might foreclose. An HOA or COA may foreclose its lien judicially or nonjudicially in Hawaii, whether or not the association's governing documents contain power of sale language. (Haw. Rev. Stat. § 421J-10.5(a), § 514B-146(a) (2024).)

HOAs and COAs also have an alternative nonjudicial foreclosure process available for foreclosure under state law, separate from nonjudicial foreclosures that mortgage lenders may conduct. (Haw. Rev. Stat. §§ 667-91 and following (2024.)

Foreclosure Limitation on HOA and COA Foreclosures in Hawaii

An HOA or COA can't nonjudicially foreclose a lien that arises solely from fines, penalties, legal fees, or late fees. The foreclosure of any such lien must be filed in court. (Haw. Rev. Stat. § 421J-10.5(a), § 514B-146(a) (2024).)

Right to Mediation in a Hawaii Foreclosure

If the homeowner disputes the amount due, the homeowner may require the association to participate in mediation. However, you have to pay the full amount of the assessments first and keep them current. (Haw. Rev. Stat. § 421J-10.5(c),(d), § 514B-146(d),(f) (2024).) Talk to a lawyer to find out the specific steps you need to take to require the association to go to mediation.

What Is the Statute of Limitations for an HOA or a COA Foreclosure in Hawaii?

Proceedings to enforce an HOA or COA lien must begin within six years after the assessment became due. (Haw. Rev. Stat. § 421J-10.5(a), § 514B-146(a) (2024).)

But if the homeowner files bankruptcy, the statute of limitations is tolled (suspended) until 30 days after the automatic stay is lifted. (Haw. Rev. Stat. § 421J-10.5(a), § 514B-146(a) (2024).)

How Does an HOA or a COA Foreclosure Affect My Home Mortgage?

A common misconception is that the association can't foreclose if you're current with your mortgage payments. But an association's right to foreclose isn't dependent on whether you're up to date on your mortgage. Instead, lien priority determines what happens in a foreclosure.

What Is Lien Priority?

The priority of liens establishes who gets paid first following a foreclosure sale and often determines whether a lienholder will get paid at all. Liens generally follow the "first in time, first in right" rule, which says that whichever lien is recorded first in the land records has higher priority than later recorded liens. A first lien has a higher priority than other liens and gets the first crack at the foreclosure sale proceeds.

If any proceeds are left after the first lien is paid in full, the excess proceeds go to the second lienholder until that lien is paid off, and so on. A lien with a low priority might get nothing from a foreclosure sale.

But state law or an association's governing documents can adjust lien priority.

HOA and COA Lien Priority in Hawaii

Generally, the priority of an HOA lien in Hawaii is determined by the association documents or, if no priority is provided in the association documents, by the date the lien is recorded. (Haw. Rev. Stat. § 421J-10.5(a) (2024).)

A COA lien for unpaid assessments usually has priority over all other liens except:

• liens for taxes and assessments lawfully imposed by governmental authority and
• all sums unpaid on any mortgage recorded prior to the recordation of a notice of a lien by the association. (Haw. Rev. Stat. § 514B-146(a) (2024).)

But in Hawaii, six months' worth of unpaid regular monthly common assessments assessed during the six months immediately preceding the completion of the judicial or nonjudicial power of sale foreclosure get super-lien status. (Haw. Rev. Stat. § 421J-10.5(g)(h), § 514B-146(j)(k) (2024).)

Talk to a Lawyer If You're Facing an HOA or COA Foreclosure

If you're facing an HOA or COA foreclosure in Hawaii, consider consulting with a foreclosure attorney to discuss all legal options available.