How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Attyadvisor Your Own Question

Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3589
Experience:  25 years of experience in general practice, real estate law and estate law.
68197583
Type Your Real Estate Law Question Here...
Attyadvisor is online now
A new question is answered every 9 seconds

Is there any burden of proof requirement on an HOA that claimed

Resolved Question:

Is there any burden of proof requirement on an HOA that claimed to have been sending us annual bills, late notices and notifications of legal fees, a lien filed in '06, etc.? They should have had our mailing address from the prior mgmt co, who'd had it, but instead claim they didn't get it from them (only a past-due balance to carry over), and mailed repeatedly since 2004 to the property address where our rental tenants (according to them) must have never passed it on to us. We didn't find out about this lien until I called the recorder's office about something else. They filed a lien in '06--is that now expired (in OH)? It remains on the recorder's office records. They are also claiming we owe subsequent dues, late charges & legal fees totaling around 4K. We were easy to find--our tenants and neighbors of theirs on both sides all knew we didn't live at that property and never had (bought it in 2000 from the VA as an investment). Is it their word against ours (and our past tenants, with whom we had good relationships) that they indeed mailed bills and notifications of late charges and legal fees, etc. repeatedly to the property? We are willing to pay the $800+ cumulative HOA fees for the period since the former mgmt was fired and the new mgmt quit sending anything to our actual mailing address. Just don't think it's fair that we should pay late charges and attorney fees, lien & release fee, etc.
Submitted: 11 months ago.
Category: Real Estate Law
Expert:  Attyadvisor replied 11 months ago.

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.

Customer: replied 11 months ago.


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.


 

Expert:  Attyadvisor replied 11 months ago.

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.

Customer: replied 11 months ago.


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?)?

Expert:  Attyadvisor replied 11 months ago.
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?). Yes it can still cloud the title which is why it was vital that they notify you of the lien.

The management company is the agent for the association, ultimately it is the HOA's responsibility. Filing a lien is serious recourse and they need to provide you with proof that they sent notice to you or at the very least the property address. Your property can be foreclosed due to a lien.


We really need to see what they bylaws provide to determine what the obligation was on the part of the HOA and to see how they breached their obligation.

Is your property considered a condo or a planned area development?
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 3589
Experience: 25 years of experience in general practice, real estate law and estate law.
Attyadvisor and 3 other Real Estate Law Specialists are ready to help you
Customer: replied 11 months ago.


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.

Expert:  Attyadvisor replied 11 months ago.

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.

http://codes.ohio.gov/orc/5312

 

The method to remove a lien that was wrongfully placed is provided below.

5312.12 Liens

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.

http://codes.ohio.gov/orc/5312


I can try to find your bylaws if you can provide with the name of the HOA and location.

There is no doubt in my mind that they have a procedure for filing liens. They need to provide you with proof that they contacted you.
Expert:  Attyadvisor replied 11 months ago.
Thank you Linda.
Customer: replied 11 months ago.


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!

Expert:  Attyadvisor replied 11 months ago.

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.

 

 

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C. Freshfield, Liverpool, UK
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    4813
    16 years of legal experience including real estate law.
  • http://ww2.justanswer.com/uploads/LA/lawpro/2012-6-25_171315_PT206740s.64x64.jpg Law Pro's Avatar

    Law Pro

    Lawyer

    Satisfied Customers:

    6227
    20 years extensive experience in real estate law, foreclosure, finance, and landlord tenant law.
  • http://ww2.justanswer.com/uploads/BA/barristerinky/2012-6-10_22423_office.64x64.jpg Barrister's Avatar

    Barrister

    Lawyer

    Satisfied Customers:

    4966
    13 years real estate, Realtor. Landlord 24+ years
  • http://ww2.justanswer.com/uploads/LA/LawTalk/2012-6-6_17379_LawTalk.64x64.JPG LawTalk's Avatar

    LawTalk

    Attorney

    Satisfied Customers:

    4446
    I've more than 27 years legal experience. Additionally, in CA I held a Real Estate Broker's license.
  • http://ww2.justanswer.com/uploads/RA/rayanswers/2012-6-7_23346_Untitled1.64x64.jpg Ray's Avatar

    Ray

    Lawyer

    Satisfied Customers:

    4030
    Texas Attorney for 29 years dealing in real estate
  • http://ww2.justanswer.com/uploads/PH/philip.simmons/2012-6-7_161915_BIGPhilipSimmons.64x64.jpg P. Simmons's Avatar

    P. Simmons

    Lawyer

    Satisfied Customers:

    2377
    12+ yrs. of experience including real estate law.
  • http://ww2.justanswer.com/uploads/mnphillips2/2009-03-13_203105_10984459-249293407.jpeg Phillips Esq.'s Avatar

    Phillips Esq.

    Attorney-at-Law

    Satisfied Customers:

    2355
    B.A.; M.B.A.; J.D.