If you live in a single-family home, condominium, or townhouse that is part of a common interest community in Kansas, you are most likely responsible for paying dues and assessments to the homeowners’ association (HOA) or condominium association (COA). If you don’t pay, in most cases the HOA or COA can get a lien on your property that could lead to a foreclosure.
Read on to learn about the particular requirements for HOA and COA foreclosures in Kansas.
The Kansas Uniform Common Interest Owners Bill of Rights (Kan. Stat. Ann. § § 58-4601 through 58-4623), the Apartment Ownership Act (Kan. Stat. Ann. § § 58-3101 through 58-3129), and the Townhouse Ownership Act (Kan. Stat. Ann. § § 56-3701 through 58-3713) govern the various types of common interest communities in Kansas.
Most HOAs and COAs have the power to place a lien on your home if you become delinquent in paying the monthly dues and/or any special assessments (collectively referred to as “assessments”). Once you become delinquent on the assessments, a lien will usually automatically attach to your property.
The specific rules regarding the operation of the HOA or COA, including those regarding assessments liens, can be found in the association’s governing documents, such as the Declaration of Covenants, Conditions, and Restrictions (CC&Rs). (Find out more about what's in the CC&Rs and other relevant documents in Before Buying: How to Read the CC&Rs or Homeowners' Association (HOA) Documents.)
Based on Kansas law, a COA or townhouse lien is prior to all other liens except:
To find out the priority of an HOA lien, check the association’s governing documents. (Learn what lien priority is and what happens to a first mortgage in an HOA foreclosure in What happens to my mortgages if the HOA forecloses on its lien?)
Typically, an HOA’s governing documents will describe any charges that may be included in the lien. For example, the HOA is usually permitted to include the following in its lien:
With a COA or townhouse, all unpaid sums for common expenses assessed by the association constitute a lien on the unit (Kan. Stat. Ann. § 58-3123, § 58-3710).
If you default on the assessments, the HOA or COA can foreclose. A common misconception is that the association cannot foreclose if you are current with your mortgage payments. However, the association’s right to foreclose has nothing to do with whether you are current on your mortgage payments. (Learn more about HOA liens and foreclosure.)
To find out about the specific notice and foreclosure procedures that the HOA must follow if you fall behind in assessments, read the association’s governing documents.
The Kansas statutes state that a COA or townhouse lien may be foreclosed in the same manner as a mortgage of real property (Kan. Stat. Ann. § 58-3123, § 58-3710). (Learn more about foreclosure laws and procedures in Kansas.) Alternatively, the association may bring an action to recover a money judgment for unpaid common expenses without foreclosing or waiving the lien (Kan. Stat. Ann. § 58-3123, § 58-3710).
Sometimes COA bylaws set forth conditions in which you must pay rent during a COA foreclosure. Kansas law allows such provisions. Check your bylaws carefully (Kan. Stat. Ann. § 58-3123, § 58-3710).
If you are facing an HOA or COA foreclosure, you should consult with an attorney licensed in Kansas 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.)