Real Estate Law
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Welcome and thank you for your question. I will be the professional that will be assisting you. You bring up an excellent point and they will need to provide evidence proving they notified you at the property address. Had you been paying your assessments?That being said, did your tenants ever receive anything in the mail? What are the requirements under the Bylaws? Do they need to send notice via certified mail?
They filed a lien in '06--is that now expired (in OH)? It remains on the recorder's office records You will need to have the lien released.
Does the lien expire after 5 yrs whether or not it's been paid? If so, how do we go about having it released? I received a copy of the CCR's for the HOA after contacting them this week, but there's no by-laws or anything about whether they're required to verify sending invoices, late notices, lien notice, etc. to us and receiving no response. We always had good relationships with our tenants and find it hard to believe that they wouldn't have passed along any mail (especially from an attny's office or a certified mail notification) with our name on it. We were easy to find, listing in the phone directories, and as I said, we'd gotten correspondence from the previous management co. and had been paying them before the HOA apparently fired them and got a new one. Supposedly the prior mgmt co had reported a $220 balance that the new mgmt started our accnt with in 2002 (unbeknownst to us), yet the prior mgmt co (according to the new one) hadn't given them our correct mailing address. This has gone on since 2002 with them just continuing to (supposedly) mail to our property address year after year and no attempt to find us or our actual mailing address.
In order to file a lien there must be a process that the association needs to follow. Can you send me a copy of the section on liens from your bylaws? Are your bylaws available on line? They need to be able to show that they sent notice to the property at the very least. If the 2006 was not paid and not re-recorded after the five year period it will expire. The HOA would need to provide a release to clear your title.
If I ask them to provide a release, they may file a new lien to replace it, in an even-larger amount (to include cumulative fees since 2006). Since it's expired, does it still cloud the title if they haven't released it (but that would mean it's not expired then, wouldn't it?). There is nothing about the bylaws on the association's website, nor has anyone offered to send them to me. They only sent me the CCR's that relate to covenants and restrictions, nothing about how they handle billing or collections, liens, etc. Can I ask them to provide some proof that they did send not only annual dues statements but also late fee and lien notifications to the property, at least? Since the prior assoc management co did have my address (I still have some correspondence in a file to verify that), does the burden of proof fall on the new mgmt co., or the association, to prove that the information was never provided to them (only a residual balance amt, but no owner address?)?
I suppose it's a PAD since it's not a condo. There is only a retention basin and a small community entrance that the association maintains, and the fee's now only $90 / month (have apparently run between $95 and $195 in early years). Most of the amounts they want me to pay, for both the lien and the subsequent charges for which no lien has yet been filed, are for late fees, legal and attorney and filing fees.
The notice requirements are not very strict and only require one of several methods for delivery.
5312.11 Individual lot assessments
(5) Any written notice that this section requires shall be delivered to the owner or any occupant of the dwelling unit by personal delivery, by certified mail, return receipt requested, or by regular mail.
The method to remove a lien that was wrongfully placed is provided below.
D) An owner may commence an action for the discharge of the lien in the court of common pleas of the county in which all or a part of the property is situated if the owner believes that the liability for the unpaid assessment or charge for which the owners association filed a certificate of lien was improperly charged. In the action, if it is finally determined that the unpaid amount of the assessment or charge was improperly charged to the owner or the lot, the court shall enter an order that it determines to be just, which may provide for a discharge of record of all or a portion of the lien and an award of attorney's fees to the owner.
It is Oak Forge Homeowner's Association in Lebanon, Ohio. I e-mailed the Association President and asked him if they or the management company or the attorney have any verification of attempted delivery to the property address, of invoices, late notices, lien notices (either prior to or after placing the lien, which theoretically should be expired now but in effect isn't really--since we have to ask them to release it, thereby inviting the placement of a new, larger lien that includes subsequent dues payments & additional legal fees), certified mail notices, etc.. I also asked for a copy of the by-laws. Interestingly enough, we are currently refinancing this property and are due to close on Monday. The title company for the lender has not mentioned the lien, so I actually told them about it but so-far it doesn't look like they have any plans to delay the closing due to this 'cloud' on the title!
I hope the lien does not impact your refinance.
I do not see Bylaws available online. I do see that the HOA can file a lien pursuant to the Ohio code which only requires that written notice be delivered to the owner or any occupant of the residence by personal delivery, certified mail, return receipt requested, or by regular mail.
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