If you live in a condominium, single-family house, or townhome that is part of a common interest development in New Hampshire, you are likely required to pay assessments for common expenses to a condominium association (COA) or homeowners’ association (HOA). If you fall behind in payments, in most cases the COA or HOA can get a lien on your home that could lead to a foreclosure.
Read on to learn about the particular requirements for COA and HOA foreclosures in New Hampshire.
The Condominium Act (Chapter 356-B of the New Hampshire Statutes) governs most COAs in New Hampshire.
HOAs in New Hampshire are often incorporated as nonprofit corporations and are subject to the laws that govern such corporations. In addition, the policies regarding the operation of the HOA (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) and bylaws. (Find out more about what's in your HOA CC&Rs and other relevant documents in Nolo’s article Before Buying: How to Read the CC&Rs or Homeowners' Association (HOA) documents.)
A COA or HOA typically has the power to place a lien on your property if you become delinquent in paying the monthly dues and/or any special assessments (collectively referred to as assessments).
In New Hampshire, a COA is entitled to a lien on a condominium unit for unpaid assessments. The COA must perfect its lien (make it effective) by recording a memorandum in the county records within six months after the assessment becomes due (N.H. Rev. Stat. Ann. § 356-B:46(III)).
If you are part of an HOA, check the CC&Rs to learn about the association’s right to place a lien on your home if you don’t pay the assessments.
Lien priority determines what happens to other liens, mortgages, and lines of credit if your HOA or COA 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?)
New Hampshire law provides that once a COA lien is perfected it is prior to all other liens, except for:
To find out the priority of an HOA lien, check the association’s governing documents. (In most cases, the CC&Rs will state that a first mortgage or deed of trust will have priority over the HOA lien.)
Under certain circumstances, a lien for delinquent assessments has priority over a lender’s first mortgage or deed of trust. This is called a super lien.
In New Hampshire, six months worth of delinquent common assessments (plus attorney’s fees and collection costs) have super lien status over first mortgages recorded on or after January 1, 2011, so long as the association sends notice to the condo owner and the lender (N.H. Rev. Stat. Ann. § 356-B:46(I)(c)). (Learn more about super liens in Nolo’s article Homeowners’ Association Super Liens.)
If you make a written request to the COA, the association must provide you with a statement of the amount due within ten business days after receiving the request. If the COA does not provide the statement within this time period, the lien is extinguished (eliminated). The COA is permitted to charge up to $10 for providing the statement (N.H. Rev. Stat. Ann. § 356-B:46(VIII)).
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. If you default on the assessments, the COA or HOA can foreclose.(Learn more about HOA liens and foreclosure.)
In New Hampshire, a COA must bring a lawsuit to foreclose its lien (N.H. Rev. Stat. Ann. § 356-B:46(IV),VII)). To learn about an HOA’s right to foreclose on your home if you fall behind in paying the assessments, read the CC&Rs and bylaws.
A COA must initiate its action to enforce the lien (such as starting a foreclosure lawsuit) within six years after the lien memorandum is recorded (N.H. Rev. Stat. Ann. § 356-B:46(IV)). This is called the statute of limitations.
If you are facing a COA or HOA foreclosure, you should consult with an attorney licensed in New Hampshire 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.)