When an individual purchases a home in a community governed by a homeowners' association (HOA), they are also signing a contractual agreement that they will adhere to the associations' guidelines. When the homeowner fails to abide by these guidelines — they are in violation. Many HOAs have the right to file a lien against a homeowner as a result of the violation, but the process must be handled delicately.
Ensure the violation that the resident is guilty of is one that qualifies for a lien request based on the bylaws. Some organizations have different consequences for different violations. As a result, some associations only outline a lien as a consequence in the case of unpaid dues, in which the value of the lien is equivalent to the unpaid fees. Legally, your organization can only file a lien if the bylaws state that the particular violation is punishable by a lien as a consequence of non-compliance. If a lien is not listed as an option in the bylaw, you will have to seek an alternative resolution.
Opportunity to Comply
A lien is the last resort for a resident that has received a demand letter and has decided not to respond or comply as required. It is not intended to be the first step after a violation. Liens must be approved by the court, and a judge will ensure that the resident was notified of the violation, sent a demand to comply, and failed to, within a reasonable amount of time. If the judge determines that the resident was not allowed to comply before the lien request was submitted, it will likely be denied. Make sure you provide the resident this opportunity.
County Clerk Office
Different states have different requirements, but typically, an HOA must submit a lien application to the county clerk office before a judge will even review the request and issue a public record of the lien. This application requires a significant amount of information, including the date of the first violation and the legal grounds for which the association has chosen to make this request. Any issue with the lien request application will result in a denial. You must have the facts and evidence readily available before this form is requested and completed.
If you have a resident in your community that violates the HOA bylaws, you should speak with an association attorney to ensure you handle the situation legally.