Can my HOA file a lien against my property?

Who can file an HOA lien against my property?

A “Community Association” may file a condominium or HOA lien for assessments. A Community Association is defined as a nonprofit corporation or an unincorporated association created for the purpose of managing a common interest development including a condominium, a community apartment, a planned development, or a stock cooperative. Any association that filed a declaration may file a lien for assessments.

What can an HOA file for (dues, assessments, etc.)?

A California HOA may file a lien for any regular or special assessment validly assessed by the association. Regular assessments are “dues” to the association, and special assessments are one-time assessments levied to enable the community association to perform its obligations under the governing documents of the association, including an extraordinary assessment for an emergency situation. An HOA may also record a lien for a monetary charge imposed by the association as a means of reimbursing the association for costs incurred by the association in the repair of damage to common areas and facilities for which the member or the member’s guests or tenants were responsible, if such a lien is provided for in the declaration.

What other fees can be included in an HOA lien?

The following amounts may be included in the lien in addition to the amount of the delinquent assessment(s):

  • Late Charges (not to exceed 10% of the delinquent assessment amount)
  • Reasonable Fees and Costs of Collection
  • Reasonable Attorney Fees
  • Interest (not to exceed 12% annually)

What can I do if I receive a Notice of Delinquent Assessment?

You need to contact your insurance company to see if they will cover the claim. You may also need to go talk with an attorney especially if your insurance denies coverage.

There are prerequisites that must be met before a lien for delinquent assessments can be enforced. The HOA must offer the owner, and participate in if requested by the owner, dispute resolution pursuant to the association’s “meet and confer” program, or alternative dispute resolution with a neutral third-party required by California law, subject to certain requirements. Further, an assessment lien may not be foreclosed until the amount of the delinquent assessments alone equals or exceeds $1800 or the assessments are more than one-year delinquent.

DiJulio Law Group

California Transfer Disclosure Statement

A Transfer Disclosure Statement (TDS) is required by Law

In California a transfer disclosure statement, also known in the industry as a TDS, is required by law. This statement requires residential property sellers to disclose, in writing for the buyer, details about the property they have on the market. These disclosure obligations apply to nearly all California home sellers, whether selling a single family home or a condo unit. It also applies to mobile homes. This document is one of the seller disclosures that buyers receive during their contract contingency period.

The TDS form must contain specific information about your home such as any improvements on the property, their condition, and any defects or malfunctions of the improvements. Also included is information about all appliances in the home, including which are included in the sale as well their functionality. Additionally, other pertinent information might concern any room additions, damage, or neighborhood noise problems.

Buyer and sellers have a vested interest in full disclosure

Potential home buyers need to know as much as possible about a property in order to evaluate whether they really want to buy it and the resources they need in order to make the purchase. Knowing about any potential repairs or upgrades needed to areas of the home would be a key factor in their decision to purchase a property. For the seller’s part, they may receive a demand from a buyer that alleges nondisclosure, fraud, or concealment.To avoid such complications and accusations, sellers too, need to disclose all relevant issues.

The sellers are not warranting the condition of the property

It is important to realize that, with the transfer disclosure statement, the sellers are not warranting the condition of the property. They are are simply disclosing its condition.

As it is the seller who is providing the information, this form must be completed in the seller’s own handwriting. Online information is available to aid sellers in filing out the required forms.

DiJulio Law Group

What are construction defects?

Construction defects may be excluded from home owner’s policies

Almost any condition that reduces the value of a home, condominium, or common area can be legally recognized as a defect in design or workmanship, or a defect related to land movement.Faulty construction is generally excluded from home owner’s policies, although some ensuing damage like a fire due to an improperly installed gas pipe might pass–it’s a gray area.

In California, for any home or condo completed or closed escrow after January 1, 2003, SB 800 (Civil Code Section 895 et seq.) clarified the types of defects that the builders are responsible to fix.

Construction defects in design, workmanship and materials

Examples include, water seepage through roofs windows and sliding glass doors; siding and stucco deficiencies; slab leaks or cracks; faulty drainage; improper landscaping and irrigation; termite infestation; improper materials; structural failure or collapse; defective mechanical and plumbing; faulty electrical wiring; inadequate environmental controls; improper security measures and devices; insufficient insulation and poor sound protection; and inadequate firewall protection.

Construction Defects may result in landslide and earth settlement problems

Examples are expansive soils; underground water or streams; landslides; settlement; earth movement; improper compaction; inadequate grading; and drainage.Structural failures and earth movement conditions can be catastrophic in nature and present both personal injury and substantial property damage exposure. Landslide and settlement conditions may result in collapse of buildings; cracks in slabs, walls, foundations, and ceilings; disturbance of public or private utilities; and sometimes a complete undermining of the structures.

How do I prove that construction defects exists?

In most cases, you will need to hire the services of an independent construction defect expert. Experts are those who have the necessary training, education and experience to give testimony in court as to the cause of a defect. For example, if your roof leaks, a waterproofing expert who has designed effective roofs, evaluated other defective roof systems and knows how roofs should be built would be in a good position to testify. Your   lawyer cannot, in most cases, prove his case against the developer unless he has a qualified expert. Experts are available in nearly every aspect of residential construction.

DiJulio Law Group

Adverse Possession and California property owners

Adverse possession a concern for California property owners

The relatively obscure principle of “adverse possession” may be demonstrated by the story of a Bay area man who found a suitably abandoned house and simply moved in. The concept of adverse possession is rooted in the belief that society’s best interests are met when property and land are utilized productively rather than sitting fallow.

Steve DeCaprio had become aware of a turn-of-the-century bungalow that had sat vacant for many years. He also knew that the previous owner of the house had died in the early 1980s and that no one had come forward to claim it. The house was in major disrepair.

DeCaprio and a group of friends got to work making the place habitable. He got the water flowing, bought storm doors and painted the exterior, planted vegetation in the front yard, and cut down another backyard tree that posed a hazard to the house next door.

DeCaprio didn’t buy this house but adverse possession says he owns it

DeCaprio didn’t buy this house, but, after more than a decade of struggle, he now owns it through the process of adverse possession. The obscure law called “adverse possession” allows ownership not through purchase or inheritance (the usual paths to home ownership), but through occupation. It only applies when no one else can prove they are the real owner.

In California, adverse possession requires five years of continued use

In California, adverse possession requires five years of continued use which is “open and notorious” and “adverse” to the owner’s interest. The maintenance and upkeep and improvement of the property is required and for the five years of use the property taxes must be paid for the property being adversely possessed.

Through adverse possession, it is possible to gain ownership of just a few feet of property or many acres. Adverse possession is not necessarily intentional on the part of the party that gains possession. It can happen through a legitimate mistake. For example, a neighbor may have relied upon a faulty property description in a deed when building a fence on an adjoining property.

DiJulio Law Group

Foreclosure by Power of Sale

Foreclosure by power of sale may be preferable

California allows foreclosure by the power of sale which is generally a more expedient way of foreclosing on a property, when compared with foreclosure by judicial sale. Foreclosure by power of sale involves the sale of the mortgaged property by the mortgage holder (usually a bank or other lender), rather than a sale supervised by the court. As it reduces the time spent in selling a foreclosed property considerably, foreclosure by power of sale may be preferable.

The majority of states allow foreclosure by power of sale. After the sale, proceeds go first to the mortgage holder. If there is any money left over, it will go to those who are holding liens on the property and then to the borrowers. Foreclosure by the power of sale accomplishes the same thing as a judicial sale.

When a “power-of-sale” clause is included in a deed of trust or mortgage, the borrower pre-authorizes the sale of the property to pay off the balance on a loan if the borrower defaults (fails to make the loan payment when due).

The power given to sell the property is generally given to the trustee who acts on behalf of the beneficiary (lender) by recording and sending Notice of Default and Notice of Sale.

However, there are some legal questions associated with this method of foreclosure.

Foreclosure when the mortgage holder is a government entity

Some state “power of sale” laws have resulted in questions of constitutionality. It has been argued in several cases that foreclosure by power of sale legislation fails to comply with the notice and hearing requirements of the Fourteenth Amendment of the U. S. Constitution. Courts have consistently rejected this theory when it comes to private foreclosure actions when there is no public official conducting the foreclosure sale. With no public official present, there is no state action necessary to invoke the terms of the Fourteenth Amendment.

However, there have been rulings indicating that if the mortgage holder is a government entity or if a public official conducts the foreclosure sale, the Fourteenth Amendment might be invoked and stricter notice requirements might apply. The case law on this issue is so far unsettled.

DiJulio Law Group

1 2 3 4 5