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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 29818
Experience:  JA Mentor
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Homeowner association fees were paid directly to the home

Customer Question

Homeowner association fees were paid directly to the home owner association bank account a month in advance and the check memo says fees for 2016. We are receiving letters from are association president that are fees are considered a donation and that the bylaws state that and if we don't pay them in full by the end of the month that a lien is going to be put on our home. Can they do that.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Lucy, Esq. replied 1 year ago.

Hi,

I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your situation.

An HOA does have the ability to put a lien on a person's home for unpaid dues, however, you paid your dues. A prepayment of a debt cannot be unilaterally transformed into a donation. If they brought an action to foreclose your property, you could defend on the basis that you have already paid.

However, I understand that a lien on your home and being sued for foreclosure can be very stressful - especially because you'll have to pay the HOA's attorney's fees if you lose. The other option, if you'd prefer, is to send a second check noting that you're paying "under protest" and then sue for a refund. If the total amount is less than $5,000, you'll be able to bring the case in the Magistrate's Court, more commonly known as small claims. Here is more information:

http://www.courtswv.gov/lower-courts/magistrate-forms/index-magistrate-forms.html

The third option is to have a local attorney send a letter reminding the HOA that you have already paid, and that they will have to pay a lawyer when you sue them, so it's in their best interests to find your check and apply it properly in order to avoid having to charge the homeowners additional assessments so they can file a frivolous lawsuit. Your neighbors don't want to have to spend money because the association president is making up his own laws. And you may want to look into whether your bylaws allow for board members to be recalled and in what circumstances.

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