Real Estate Law

Have Real Estate Law Questions? Ask a Real Estate Lawyer.

Ask a Lawyer,
Get an Answer ASAP!

Real Estate Law
This answer was rated:

An HOA is putting a $2500 lien on an unimproved lot in Lake…

An HOA is putting...

An HOA is putting a $2500 lien on an unimproved lot in Lake County CA. My name as recorded is Dale Moore, Trustee. My ex wife is now trustee through a divorce settlement. The change was never recorded. The trust was dissolved many years ago. My wife and I have an ongoing dispute about the $2500 fine. In what name will the lien be recorded. Will it be against me personally. How likely will it be picked up by credit agencies and what potential effect will it have on my 750+ FICO? I have received a pre-lien letter.

Lawyer's Assistant: Since estate law varies from place to place, can you tell me what state this is in?

CA

Lawyer's Assistant: Has any paperwork been filed?

With the Co Recorder? Not to my knowledge

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I think that covers it.

Show More
Show Less
Ask Your Own Real Estate Law Question
Answered in 5 minutes by:
1/8/2018
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,908
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
Verified

Welcome and thank you for your question. I will be the professional that will be assisting you.

Ask Your Own Real Estate Law Question

An HOA lien is both a personal debt as well as a debt that can be foreclosed.

Ask Your Own Real Estate Law Question

The lien will be in the name of the party or parties that are on the title to the real property. Is the unimproved property lien in your name?

Ask Your Own Real Estate Law Question
Customer reply replied 1 month ago
As written in my question, it is in the name of Dale Moore, Trustee. My name is*****

You are personally liable and can be foreclosed.

Ask Your Own Real Estate Law Question

What matters is the lien was filed against at the time the lien was filed

Ask Your Own Real Estate Law Question
Customer reply replied 1 month ago
Despite that I am trustee?

If it is in the name of a trustee the trustee is liable personally.

Ask Your Own Real Estate Law Question

Is your wife ended up with the real property it needed to be deeded into her name.

Ask Your Own Real Estate Law Question
Customer reply replied 1 month ago
Is it likely that the lien would be picked up and shown on my personal credit report even though it is recorded as Dale Moore, Trustee?

"How HOA Liens Work

In most cases, once you fall behind in payments, the HOA can record a lien on your property. Almost all HOAs have the power to place a lien on the property if the homeowner becomes delinquent in paying the monthly dues and/or any special assessments (collectively referred to as “assessments”).

Pre-Lien Notice Requirement in California

In California, a lien cannot be recorded until 30 days after the HOA has sent notice to the homeowner regarding the delinquent assessments. The notice must include (among other things):

  • a general description of the collection and lien enforcement procedures
  • an itemized statement of the charges owed, and
  • various options to try to resolve the problem of the delinquent assessments (Cal. Civ. Code § 1367.1(a)).

The HOA must notify the homeowner in writing at both a primary and, if available, a secondary address (Cal. Civ. Code § 1367.1(k)).

Board Approval Required Before Lien Can Be Filed

Only the board of directors of the HOA has the authority to make the decision to record the lien for delinquent assessments. The board must approve the decision by a majority vote of the board members in an open meeting and must record the vote in the minutes of that meeting (Cal. Civ. Code § 1367.1(c)(2)).

Charges the HOA May Include in the Lien

In California, an assessment is considered delinquent 15 days after it is due, unless the Declaration of Covenants, Conditions, and Restrictions(CC&Rs) provides for a longer time period (Cal. Civ. Code § 1366(e)).

If an assessment is delinquent, the association may recover all of the following:

  • Assessments. The HOA can include amounts for unpaid assessments in the lien.
  • Reasonable attorney's fees and costs. The association may include the costs expended in attempting to collect the past-due assessments in its lien.
  • Late charge.The association may include a late charge so long as it does not exceed 10% of the delinquent assessment or $10, whichever is greater (unless the CC&Rs specify a late charge in a smaller amount, in which case any late charge imposed cannot exceed the amount specified in the CC&Rs).
  • Interest. The HOA may impose interest on all of the above charges, including the delinquent assessments, reasonable attorney's fees, and reasonable fees and costs of collection at an annual interest rate not to exceed 12% (unless the CC&Rs specify a lesser amount, in which case the lesser rate of interest applies), beginning 30 days after the assessment becomes due (Cal. Civ. Code section 1366(e)).

HOA Lien Priority in California

An HOA lien is prior to all other liens recorded after the notice of assessment, except that the CC&Rs may provide that the HOA lien may be subordinated to any other liens and encumbrances (Cal. Civ. Code § 1367(b),(d)). (Learn more about lien priority and what happens to a first mortgage in an association foreclosure in Nolo’s article What happens to my mortgages if the HOA forecloses on its lien?)

HOA Foreclosures in California

If you default on dues or assessments, the HOA can foreclose. A common misconception is that the association cannot foreclose if you are current with your mortgage payments. However, the association’s right to foreclose has nothing to do with whether you are current on your mortgage payments. (Learn more about HOA liens and foreclosure.)

In California, the HOA may foreclose its lien judicially or nonjudicially (Cal. Civ. Code § 1367.1). Most HOA foreclosures in California are nonjudicial. (Learn more about the difference between judicial and nonjudicial foreclosures and foreclosure laws and procedures in California.)

HOA Foreclosure Limitations

California law limits the HOA’s ability to foreclosure in certain circumstances.

Limitation Based on Amount and Length of Delinquency

The HOA cannot foreclose unless:

  • the delinquent amount is $1,800 or more (not including any accelerated assessments, late charges, fees and costs of collection, attorney's fees, or interest), or
  • the owner has been delinquent for more than 12 months (Cal. Civ. Code § 1367.4).

Right of Redemption Following Foreclosure

If the HOA forecloses on the homeowner using a nonjudicial foreclosure, the foreclosure is subject to a 90 day right of redemption after the sale (Cal. Civ. Code § 1367.4(c)(4)). When you redeem the property, you get it back by repaying all assessments, interest, attorneys fees, and possibly costs of repair. (Learn more in Nolo’s article The Right of Redemption Following an HOA Foreclosure.)

In California judicial foreclosures, the redemption period is:

  • 90 days, if the proceeds of the sale are sufficient to satisfy the debt, or
  • one year, if the proceeds from the sale are insufficient to satisfy the delinquency (Cal. Code Civ. Proc. §729.030(a) and (b))." https://www.nolo.com/legal-encyclopedia/california-hoa-foreclosures.html
Ask Your Own Real Estate Law Question

"An HOA Foreclosure’s Effect on Your Credit Score

Your credit score influences the credit that lenders will offer you, as well as the terms, like the interest rate. A FICO credit score, for example, ranges from 300–850. A foreclosure will likely damage your FICO score by reducing it by at least 100 points, probably more. The actual number of points the score will drop varies from one person to the next. If you had a really high credit score before the foreclosure, the drop will be more severe. But if your credit score is already pretty low, there will be less of an impact. Missed HOA payments might also lower your score, if the HOA reports them to the credit reporting bureaus.

A Low Credit Score Will Likely Affect Your Ability to Obtain a Mortgage Later On

When you apply for a mortgage, one of the first things a potential lender will take into consideration when deciding whether or not to lend to you is your credit score. Lenders prefer to make loans to borrowers who are most likely to repay them, such as those people with the highest scores. If you have a low score as a result of a foreclosure, you may be able to get a mortgage loan eventually, but the interest rate will probably be higher or you may have to put more money down." https://www.nolo.com/legal-encyclopedia/hoa-liens-foreclosures-an-overview.html

Ask Your Own Real Estate Law Question
Customer reply replied 1 month ago
This is for a disputed $2500 fine. I am not concerned with foreclosure at this time. The unimproved lot is worth $10,000. My question is if the lien is recorded as Dale Moore, Trustee, Is it likely the credit reporting agencies will pick it up as Dale Moore and add to my personal credit report or does the designation of Trustee confuse the issue?

When you say you are the trustee the land is a trust?

Ask Your Own Real Estate Law Question

If you are the owner in your name alone or through trust it is a personal debt.

Ask Your Own Real Estate Law Question
Customer reply replied 1 month ago
It was originally a trust 30 years ago. The trust (Georgia Moore Trust) no longer exists due to the death of my mother. Due to a divorce, my Ex was awarded the property, but never recorded the name change.

Unfortunately it is still in your name and will be picked up as a personal debt.

Ask Your Own Real Estate Law Question

It may be time to record the property in her name.

Ask Your Own Real Estate Law Question
Customer reply replied 1 month ago
I agree, but will it forestall recording the lien in my name?
Ask Your Own Real Estate Law Question

"There are several legal distinctions between condominiums and Planned Unit Developments (PUDS)—the ownership of common areas is one of the most cited. However, whether a townhouse or a single-family dwelling is part of a PUD or condo development, both are deed-restricted properties subject to homeowner associations regulated by California’s Davis–Stirling Common Interest Development Act in the California Civil Code. A power reserved for the board of all common interest developments is the right to place a lien on the property of an owner who violates the covenants or fails to pay on some association-related debt. The lien lets the board foreclose on and take that property to satisfy the debt.

This is tough for estate planning, because if a lien is applied to the property and the owner passes away, the estate can be attached. This keeps the property from passing to the owner’s heirs until any outstanding debts are paid.

Unfortunately, the most commonly used trusts won’t protect these assets." http://blog.411probate.com/2017/02/trusts-and-home-owners-association-hoa-not-necessarily-a-good-match.html

Ask Your Own Real Estate Law Question

http://www.latimes.com/business/la-fi-associations-trusts-20170201-story.html

Ask Your Own Real Estate Law Question

Trusts do not have the same protections against HOA's due to deed restrictions. If the lien is not recorded yet, transfer the HOA property into her name.

Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,908
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.
Verified
Attyadvisor and 87 other Real Estate Law Specialists are ready to help you
Ask your own question now

Thank you.

Ask Your Own Real Estate Law Question
Ask Attyadvisor Your Own Question
Attyadvisor
Attyadvisor
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7,908
7,908 Satisfied Customers
Experience: 30 years of experience in General Practice, Real Estate Law and Estate Law.

Attyadvisor is online now

A new question is answered every 9 seconds

How JustAnswer works:

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

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

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.

EricRedwood City, CA

I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight.

MichaelWichita, 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!!

ElaineAtlanta, 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.

TonyApopka, 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

< Previous | Next >

Meet the Experts:

Tina

Tina

Lawyer

5,436 satisfied customers

17 years of legal experience including real estate law.

Barrister

Barrister

Lawyer

11,126 satisfied customers

17 years real estate, Realtor. Landlord 26 years

Infolawyer

Infolawyer

Lawyer

7,785 satisfied customers

Experienced lawyer

Ray

Ray

Lawyer

7,559 satisfied customers

Texas Attorney for 30 years dealing in real estate

LawTalk

LawTalk

Attorney

6,207 satisfied customers

I have 30 years legal experience. Additionally, in CA I held a Real Estate Broker's license.

Dimitry Esquire

Dimitry Esquire

Attorney

5,526 satisfied customers

JA Mentor, multiple jurisdictions, specialize in business/contract disputes, estate creation & admin

Ely

Ely

Counselor at Law

4,925 satisfied customers

Qualified attorney in private practice including business, family, criminal, and real estate issues.

< Previous | Next >

Related Real Estate Law Questions
I live within a condo Homeowners Association. There is a
I live within a condo Homeowners Association. There is a paved walk in front of my home which the Association claims is a sidewalk owned and controlled by the association. I have researched my deed wh… read more
Lori
Lori
Juris Doctor
589 satisfied customers
Can a HOA make homeowner insurance required for a unit
Can a HOA make homeowner insurance required for a unit owner? Can the HOA make insurance required for tenants who rent a unit in HOA? … read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
8,239 satisfied customers
Are homeowners in an HOA community also part owners of the
Are homeowners in an HOA community also part owners of the common areas? … read more
lucy7368
lucy7368
Juris Doctor
763 satisfied customers
I need title search explanation about first mortgage and
I need title search explanation about first mortgage and second mortgage if after bidding on home if I win, am I paying to second mortgage company also or not. I have title search letter just need cla… read more
Ray
Ray
Lawyer
Doctoral Degree
7,559 satisfied customers
When there is a dispute between a homeowner HOA board of
when there is a dispute between a homeowner HOA board of directors what conditions are required before the Board can consider the issue is closed … read more
P. Simmons
P. Simmons
Attorney
Doctoral Degree
35,566 satisfied customers
Our condominium complex is in need of major repairs. The HOA
Our condominium complex is in need of major repairs. The HOA is getting competitive bids, but they are not being transparent about the process. Information is being leaked to the community about the c… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
8,239 satisfied customers
My client is being sued by his Homeowner association and
My client is being sued by his Homeowner association and want him to sign a document that will authorized foreclosure. The Annual fees of the association are $250 and they are suing him for $5,000+ He… read more
Attyadvisor
Attyadvisor
Attorney
7,908 satisfied customers
Can a homeowners association deny a homeowner's application
Can a homeowners association deny a homeowner's application to plant trees within his property borders because it has a drainage easement where the trees will be planted? … read more
Barrister
Barrister
Lawyer
Doctoral Degree
11,126 satisfied customers
A homeowner vs HOA. My HOA sent me a letter using a
A homeowner vs HOA. My HOA sent me a letter using a 'hear-say' to accuse "someone in my unit" of HOA rule violation. I prepared a letter of one page asking the HOA not to use 'hear-say' and not to use… read more
TJ, Esq.
TJ, Esq.
Juris Doctor (JD)
11,298 satisfied customers
I live in an HOA of 29 townhouses in Arlington,. Can two
I live in an HOA of 29 townhouses in Arlington, Virginia. Can two separate homeowners occupy a Board or officer position jointly? In the case at hand, two homeowners have offered to share the Treasure… read more
Damien Bosco
Damien Bosco
3,628 satisfied customers
Can a homeowners' association own land? If so can a
Can a homeowners' association own land? If so can a partnership that currently owns the land transfer it to the HOA? How is it accounted for on the partnership's books? Since the HOA is not a 501(c)(3… read more
Legal Eagle
Legal Eagle
Attorney
Doctoral Degree
8,239 satisfied customers
In condominium association all parts of building and stairs
In condominium association all parts of building and stairs exteriors (aesthetic and structural) have to be maintain by HOA or individual owners? … read more
LegalGems
LegalGems
Juris Doctorate
11,009 satisfied customers
A homeowner in carmel South HOA. Recently, I questioned the
I am Tom Culpepper, a homeowner in carmel South HOA. Recently, I questioned the painting of a home being against our HOA policy by addressing the Board of Directors. They advised they would review and… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
Homeowner (me) in dispute with HOA. A tree owned by the HOA
Homeowner (me) in dispute with HOA. A tree owned by the HOA has caused significant damage to my driveway. They acknowledge ownership, but have set a cap on reimbursement for driveway replacement of $5… read more
Attyadvisor
Attyadvisor
Attorney
7,908 satisfied customers
My first mortgage held by of A was successfully modified,
My first mortgage held by B of A was successfully modified, but before the process was concluded and the modification on the 2nd mortgage (also held by B of A) could begin, B of A's claim with Old Rep… read more
TaxAttorneytoHelp
TaxAttorneytoHelp
Owner
Doctoral Degree
2,542 satisfied customers
I have lived in a homeowners association in Florida. The HOA
I have lived in a homeowners association in Florida. The HOA has both long term or residential and short term sections clearly defined. I live in the short term section, we pay more than 3 times the r… read more
PaulmoJD
PaulmoJD
Attorney At Law
Doctoral Degree
106 satisfied customers
If there is a first mortgage on a property, can the HOA
If there is a first mortgage on a property, can the HOA foreclose and take title to the property for non payment of dues? … read more
Roger
Roger
Litigation Attorney
Doctoral Degree
26,913 satisfied customers
We live in a townhouse ( of a condominium association) on
We live in a townhouse (pat of a condominium association) on the Windward side of Oahu in Hawaii. When we bought our townhouse in 1995, there were many trees in the front and back of our unit. Over th… read more
Infolawyer
Infolawyer
Lawyer
Doctoral Degree
7,785 satisfied customers

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

Show MoreShow Less

Ask Your Question

x