When you buy a single-family home, townhome, or condominium that's part of a planned community with covenants, you'll most likely pay fees and assessments, often collectively called "assessments," to a homeowners' association (HOA) or condominium owners' association (COA). If you fall behind in the assessments, the association will likely first 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 will probably try other ways to collect from you. The association might take away your privileges to use the common facilities or file a lawsuit to get a money judgment against you. Most HOAs and COAs also have the power to get a lien on your property if you become delinquent in assessments. Not only will an assessments lien cloud the title to the property, which hinders your ability to sell or refinance the home, but the property can also be foreclosed to force a sale to a new owner—even if the property has a mortgage.
If your home is part of a COA or HOA and you fall behind in assessments in Tennessee:
If the COA or HOA initiates a foreclosure, you might 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.
In Tennessee, the Tennessee Condominium Act of 2008 (Tenn. Code Ann. §§ 66-27-201 through 66-27-507) applies to all condominiums created after January 1, 2009, and the provisions discussed in this article also apply to condos created before this date with regard to events or circumstances that occur after this date. Tennessee's Horizontal Property Act (Tenn. Code Ann. §§ 66-27-101 through 66-27-123) governs condos created before 2008. A COA's governing documents, such as a Declaration of Condominium, also create rules for the community. An HOA's governing documents, which include the Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and bylaws, will usually contain specific information regarding assessments liens.
Based on the association's governing documents, like the CC&Rs, and state law, a COA or HOA can usually get a lien on your home if you're delinquent in paying the assessments.
In Tennessee, a COA is entitled to a lien for assessments or fines from when they became due. If an assessment is payable in installments, the lien amount is equal to the full amount of the assessment from when the first installment became due. (Tenn. Code Ann. § 66-27-415(a)(1),(4)).
The recording of the COA's governing documents constitutes record notice of the lien. The lien is perfected (made effective) by recording it in the county records. (Tenn. Code Ann. § 66-27-415(d)).
If you're 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.
State law and the COA or HOA's governing documents will usually set out the type of charges that may be included in the lien.
In Tennessee, unless the declaration provides otherwise, a COA is permitted to include charges like the following in its lien:
To find out how much you owe in assessments, you can make a written request to the COA. The association then has to provide you a written statement of the amount due within seven days after receiving the written request. (Tenn. Code Ann. § 66-27-415(h)).
To find out which charges a Tennessee HOA may include in its lien, check the association's governing documents.
Once a COA or HOA has a lien, it might foreclose.
In Tennessee, a COA lien may be foreclosed nonjudicially if permitted by the COA's governing documents and so long as the COA gives proper notice of the foreclosure to the unit owner (see "How Tennessee Nonjudicial Foreclosures Work" below). (Tenn. Code Ann. § 66-27-415(a)(2)).
A COA must start the foreclosure within six years after the date the lien for the assessment becomes effective; otherwise, the lien is extinguished (eliminated). (Tenn. Code Ann. § 66-27-415(e)).
To find out about an HOA's right to foreclose if you become delinquent in paying the assessments, read the association's governing documents.
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 paid up on your mortgage. Instead, lien priority determines what happens in a foreclosure.
Generally, a foreclosure by a COA or HOA usually won't eliminate a first mortgage because the association's lien is normally lower in 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 might adjust lien priority.
In Tennessee, a COA lien is prior to all other liens, except for:
Under certain circumstances, though, a COA lien for delinquent assessments gets priority over a lender's first mortgage or deed of trust. This type of lien is called a "super lien." In Tennessee, six months' worth of delinquent common expense assessments have super-lien status, but not more than 1% of the maximum principal indebtedness of a lien secured by the first mortgage or deed of trust. (Tenn. Code Ann. § 66-27-415(b)(2)).
But under Tennessee law, a COA foreclosure can't wipe out a first mortgage or deed of trust in a foreclosure—even if it has a super lien. (Tenn. Code Ann. § 66-27-415(b)(2)). The COA has only a payment priority interest, which means it has the right to receive six months' worth of delinquent common expense assessments out of the proceeds of a foreclosure sale.
HOA CC&Rs often address lien priority, and typically state that HOA assessments and liens are subordinate to a first mortgage or deed of trust. To find out the priority of an HOA lien in Tennessee, check your association's governing documents.
If you're facing a COA or HOA foreclosure in Tennessee, consider consulting with a foreclosure attorney to learn more about state laws, how they apply to your situation, and to discuss all legal options available in your particular circumstances.