Legal Question in Real Estate Law in Massachusetts
A unit owner at our 20-unit townhouse complex simply disappeared one day and left no forwarding information. She owes a large assessment (for which she was present at the annual unit owners meeting and voted for in December 2008) as well as about 8 months of homeowner fees. Attempts to contact her mortgage company were unsuccessful (no one at the mortgage company seemed to know where to direct us), so we forwarded the matter to our attorney in mid-July 2009.
So far as far as we can tell the attorney has done nothing and is difficult to get a hold of, although in one of the only correspondences to date the attorney has stated that if the mortgage company is going to foreclose then they will not have to pay the common assessments that are owed, or any fees, but she failed to back that up with any other information. Beyond that, we don't even know if and when the mortgage company is going to start the foreclosure process, yet the attorney appears to be holding off on taking any action and simply waiting to see if and when they are going to foreclose.
In reviewing Massachusetts General Law 183a it would seem to the board (who are admittedly all laymen) that we could already have enforced a lien against the owner. It's frustrating that our attorney appears to be acting in the best interest of the mortgage company (and/or the deliquent homeowner) instead of the best interests of the homeowners association.
Are we correct in assuming that we can enforce a lien on the unit, or any advice on how we should proceed?
3 Answers from Attorneys
It may be time for you to retain a new attorney. The Massachusetts condominium super-lien law provides a great remedy for condo associations, but only if certain steps are followed to perfect the lien. You don't need to wait for the mortgage company to foreclose. If done properly, you have the right to commence foreclosure proceedings independently, and the condominium "super" lien takes priority over mortgages.
You are substantially correct. You must be very sensitive to the legal requirements of giving proper notice and strictly adhering to the statutory requirements. Severe legal penalties may be imposed on the association and each of its members for violations arising from this effort to foreclose.
If you are not satisfied with you attorney, you should seek legal assistance from an attorney with whom you are satisfied.
This Office provides real estate legal assistance to condominium associations and owners.
Under 183a, you can only take a superior lien for six months fees in arears. 'I would suggest you contact a new attorney if you find your current counsel unresponsive. The only problem you have is the timing of the foreclosure at this point. You need to get a judgment ASAP.
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