Legal Question in Real Estate Law in California

Special Assessment Liens
What is the procedure for challenging special assessment liens on a condominium unit? We own two units and the HOA has recorded liens on both. We paid the past due regular assessment, but they won't remove the liens. In fact they keep recording additional notices of default and additional liens. The HOA will not cooperate with us, but foreclosure proceedings have begun.

Asked on 8/02/05, 4:42 pm

3 Answers from Attorneys

Carl Starrett Law Offices of Carl H. Starrett II

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Re: Special Assessment Liens

Owners have the right to dispute assessments which may have been incorrectly levied or where payments may not have been credited, etc. When there is a dispute, owners may demand and receive alternative dispute resolution up to twice in a single calendar year, but not more than 3 times within any 5 calendar years. See Civil code � 1366.3(b) Owners may dispute the amounts an assessment by submitting to the board a written explanation of the reasons for the dispute. The board must respond in writing within 15 days. See Civil Code � 1367.1(c)(1)

As a condition to taking the association into alternative dispute resolution, the requesting party must pay in full to the association all of the charges listed below and give written notice that the amount is paid under protest, and the written notice is mailed by certified mail not more than 30 days from the recording of a notice of delinquent assessment.

1. The amount of the assessment in dispute;

2. Late charges;

3. Interest; and

4. All reasonable fees and costs associated with the preparation and filing of a notice of delinquent assessment, including all mailing costs, and including reasonable attorney's fees not to exceed four hundred twenty-five dollars ($425). See Civil Code � 1366.3(a)

Once an owner has complied with the above, the association must inform the owner that he or she may resolve the dispute through alternative dispute resolution.

If foreclosure proceedings have already begun, chances are that you are past the 30 day period when you can pay under protest. If the association has started nonjudicial foreclosure proceedings, you have two basic options (1) file a lawsuit in superior court to object to the assessment and foreclosure procedings; or (2) pay up to stop the foreclosure and then sue. If you pay up and then sue, you might be able to handle this in small claims court if the amount is less than $5000.

If they have filed a foreclosure lawsuit (judicial foreclosure), you can file an answer and a countersuit to address the assessment issue.

I've represented literally hundreds of associations throughout Soutern California and have a lot of collection work on deliquent assessments. Feel free to email me if you need additional assistance.

Answered on 8/02/05, 4:58 pm

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