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Subject: Sneaky owner (continuation of Difficult Owner post)
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MichelleW
(Texas)

Posts:25


06/26/2006 10:58 AM  
Brief synopsis...I'm HOA president of small 10 unit condo property in Texas. We have a problem owner who has not paid dues for 3 months feeling we didn't give enough notice of the increased fees which took effect in January (this is untrue and a bit ridiculous since he paid the dues for several months then decided he shouldn't have to). We have sent 2 previous letters asking he make payment with the last letter indicating we'll place a lien on his property if payment isn't received by July 1, 2006. The letter was sent last week by certified delivery receipt mail and in Texas they attempt to deliver it once then require the recipient to pick up the mail at the post office. To date, he has not picked up the letter (since I've not received the delivery receipt) and I'm unsure if he is just "out of town" or refusing to pick up the letter since he knows it was sent by the HOA.

Can we still file a lien if no payment is received July 1, 2006 or is there another step we need to take?
JulieS
(Georgia)

Posts:412


06/26/2006 11:13 AM  
We automatically file liens against properties once accounts are 60 days past due. We do not notify the individual that we are going to do this but it is stated in the newsletter several times a year when the assessments are due. I don't think the person is required to be notified in order to place the lien but I'm sure every state and covenants have their own rules.
RogerB
(Colorado)

Posts:5067


06/26/2006 2:02 PM  
In Colorado, it is my understanding that 30 days prior written notice is required prior to filing a lien. If they don't pick up certified returned receipt requested mail then I would send a letter by first class mail plus post a copy of the letter to the property with a witness. Many have learned to play the game of not picking up mail that requires a signature and thinking nothing can be done to them. SURPRISE!
SusieC
(Florida)

Posts:3


06/28/2006 8:27 AM  
I am in a HOA in Florida - and here, you can't NOT PAY, just because you don't feel like it or think the Board is not in compliance with the Covenants or is taking actions you personally don't agree with. For example, if the pool is not operational or my name hasn't been added to the front gate for whatever reason, I still have to pay my assessments. If I take the Board to Court and say "But they didn't [FILL IN THE WHINER BLANK]..." All they have to say is, "Sorry, your Honor, it's true, but we'll do better next time..." and that's it.

Check with your attorney and check with your Covenants - you will usually have a LIEN schedule in there. Sounds to me like this guy's been given every chance, and is probably bragging about what he's doing (somewhere).

Here is the link to the Texas property code statutes in case you don't have:

http://www.capitol.state.tx.us/statutes/pr.toc.htm

Good luck!
MichelleW
(Texas)

Posts:25


07/01/2006 11:57 AM  
I've been unable to locate anything in the Texas Property Code statutes regarding giving the owner notice of our intent to file a lien. This guy still has not picked up the certified letter, so I sent by regular mail the same letter we sent by certified mail as well as a final notice and copy of the lien papers we intend to file. I also went with another Board member this morning to post the same letters and intended lien papers on this guy's door (I wanted a witness). Two hours later, the Board member who went with me, came to my door to say he (Board member) had just walked by the difficult owner's door and the guy had pulled down the sealed envelope we tacked on his door and had thrown the still sealed envelope down his exterior steps. The Board member took the letter back up the stairs and placed the letter on the ground in front of the difficult owner's door.

Clearly this guy is trying to avoid receipt of the information. Any other suggestions before we proceed with filing? I guess I could email the letters to him, but don't know that would do anything. We also recently had an open Board meeting and the Board voted to make it our operating practice to file liens at the Board's discretion after dues are 60 days deliquent. This was put in our minutes which were sent by email to all owners/residents yesterday.

The other slightly concerning thing is the whole issue of my sharing an adjoining wall with this guy. Since we posted the letter on his door 2 hours ago, he's been pounding with a hammer on our adjoining wall. It's tolerable, but I know this guy is a loose canon when he gets agitated. I'll file a report with the police if things get worse and I'm going to notify the Board of this guy's behaviors.
BradP
(Kansas)

Posts:2640


07/01/2006 12:24 PM  
Michelle:

I would suggest emailing them to him. You can attach a return receipt on the email, although he can circumvent that as well. But then you can print off a copy of your sent message as proof. Also, some emails have the capability to trace the message and give you a message back when it reaches its destination inbox regardless of whether he opened it or not.

I would have the other board member write down in statement form and sign what he witnessed today, that way when this guy claims that you never notified him you can go through all the steps you tried and it will be apparent that he was avoiding it.

I don't know if this is a good idea or not, but if you had two board members who were willing you could knock on his door and hand the letter to him? That may not be the best idea, would be curious of other opinions on that.
WilliamT
(Arizona)

Posts:489


07/01/2006 12:50 PM  
What do your documents say? It seems to me that the documents should spell out the procedure for notices.

You gave notice of dues increases.

He made several payments then balked. He cannot just stop paying dues. He must keep current while seeking to have the board reverse the increase. When he began to pay the increases he expressed agreement with the increase.

You sent demand letters stating your intent to file a lien.

You gave him a deadline.

You sent a certified letter and a regular mail letter. You have proof of the certified letter sent.

This is not a subpeona so you do not have to have the notice delivered in person. I would recommend not going to his door again. That could be construed as harassment, and possibly trespassing.

I believe it is encumbent upon him to read his mail. It's not like a subpeona where the person must be served in person.

My opinion is that you've done all you need to do, providing your docs don't state anything else.

Just file the lien and send him a copy of the filed lien. One by certified mail, and another by regular mail, and just keep track of what he owes including the late fees and interest.

Probably after he sees the lien, he'll know you're serious. It will cost him a lot more to hire an attorney and try to get the lien removed than it will to pay up. You seem to be in the right, and he would lose in court, and your docs may requre that the losing party pay the others attorney fees.

Your D&O insurance would cover the board members and the board in this instance. Ask your insurance agent to be sure. But I seriously doubt it will come to that.

Bill
LisaS
(Illinois)

Posts:341


07/01/2006 6:51 PM  
Per Illinois law, and our CCRs, we send our notices via regular US postal mail to members address.

A few things (like violations) we are required to send via certified mail, some we send that way just to have proof of mailing. There is nothing that states that our member must accept the mail in order for it to be valid. It is the responsibility of the addressee to read their mail.

The only other option is to pursue 'service' on him by a sherriff or something. However, you would have to find out how much it would cost, and I bet it is not really neccesary. He's playing the dodging game. Send him his notices via whatever mail method you are required to use (I am sure there is one stated by law or CCR). Then when he fails to accept just move forward.

Lisa
MichelleW
(Texas)

Posts:25


07/02/2006 10:36 AM  
Finally, this guy has responded to the email I sent him with all the documents we've been trying to get him to read for weeks now. I think seeing his name on the lien papers shook him up; however, the email he wrote me was scathing and very unprofessional (no surprise). He says he has not paid the HOA's because we've been self-managing (but starting with new PM July 1st) and he doesn't trust anyone on the Board with "his" money. Of course, we've been completely open with every cent that has been spent. Regardless, this guy now says he is "going to" pay the dues but he still refuses to pay the increase going back to January 2006 because he still feels we didn't give 30 days notice. We did give the appropriate notice...

If this guy pays a portion of his deliquent dues, can or should we still file the lien? He's also said he is fully prepared to pursue any legal avenue possible to fight us. I know he's in the wrong and our Bylaws even indicate that he'd be assessed for attorney costs for such garbage as this. The one good thing this guy said in his email to me is that last month he supposedly put his unit on the market to sell. I don't fully believe him as I've seen no sale signs posted, but I'll research that a bit.

He also made some comment in his email about "once you've made your answer, I want it in writing with 3 people present (and he listed off the people--me being one of the parties). I feel we've offered numerous opportunities for this guy to meet with the Board face-to-face, but he's not responded. I don't feel we need to meet with him or put anything else in writing. We've done all of that. Thoughts?
BradP
(Kansas)

Posts:2640


07/02/2006 1:03 PM  
Michelle:

Don't negotiate with him. He feels he is doing you a favor by paying past dues except for the increase and he is not. He paid the increase in the past so he was ok with it then. If he doesn't pay, file the lien and let him sue you. I wouldn't negotiate or hold any more special meetings with him, he has had his opportunity.

The only way I would meet with him is if he has paid everything in full.
WilliamT
(Arizona)

Posts:489


07/02/2006 1:28 PM  
Just file the lien and forget about it. The lien will have to be satisfied in order for him to close escrow on his house - if he is selling it.

Bill
JulieS
(Georgia)

Posts:412


07/02/2006 2:28 PM  
This guy has been given more than enough of everything. File the lien for everything he owes, including late fees and fines if you can. Once he is paid in full and becomes a member in good standing again, then remove the lien. You can only hope he sells and moves away! I wouldn't waste any more time, effort and money on this guy. You've gone above and beyond what is required.
RogerB
(Colorado)

Posts:5067


07/02/2006 4:39 PM  
If this owner was in one of the association's we manage, he would be sent a notice acknowledging his partial payment. He would be given the amount of the balance which would be due within 10 days. If not received by that date a lien would be filed with an additional $100 charge added for lien costs. He would be referred to the Rules and Regulations on Delinquent assessments which advise on these procedures.
JustineP
(Arizona)

Posts:19


07/06/2006 9:59 AM  
Have your checked with usps.com and tracked your letter? It may show delivery and you just didn't receive the return receipt notice. I just had a similar thing happen and when I finally checked with the post office, it showed it had been delivered. It's worth a check. Justine
MichelleW
(Texas)

Posts:25


07/09/2006 6:29 AM  
As suspected this guy paid the 3 months he owes but not at the new increased rate. He paid at the old rate still claiming we never gave official notice of the increase which is complete crap. We are now using a new Property Management Co and when I met with her the other day, she suggested we hold off on filing the lien since he is now just $220 behind on dues. What she suggested is that she will continue to track what he is behind add late fees and if/when he tries to sell his unit, we won't issue a "Resale Certificate" until he pays what is due which will prevent him from being able to sell and put the pressure on him. Other Board members want to still pursue filing a lien, but I wondered what people on here thought. It makes sense, but if this guys lives here forever, then he'd just get away with it or it could go years without being addressed. I think at a minimum our new PM should send this guy a notice of what he owes and our intention to not issue a "Resale Certificate" if he doesn't pay. Plus, I still wonder if we should go ahead with filing the lien?
RogerB
(Colorado)

Posts:5067


07/09/2006 9:13 AM  
Michelle, I totally disagree with waiting to collect until there is a title transfer. Before filing a lien you should establish rules and regulations on delinquent assessments and distribute to all owners. The rules can include a statement that any payment will be applied first to the oldest amount due and progress towards the latest amount due (and be retroactive. Also include that if a lien is filed there will be a filing fee which will be included (the fee will be whatever you establish as the charge to file two notices - notice of lein and release of lein). The amount should be high enough, as long as it is reasonable, to encourage him to pay prior to filing the lien.

I would absolutely would not send this guy a notice stating - our intention is to not issue a Certificate of Status of Assessment if he does not pay. I would send him a notice of the current balance and advise a lien will be filed if not paid within 30 days and it would include the filing fees.
BradP
(Kansas)

Posts:2640


07/09/2006 5:02 PM  
Michelle:

Roger is the man and I think has the right idea. Quit playing games with him, slap on the lien if he refuses to pay up and let him lay in the bed he has made for himself.

JulieS
(Georgia)

Posts:412


07/10/2006 8:48 AM  
The fact that this guy has already made payments at the increased rate means he received notice and understood the new rate...he paid it. To decide mid-stream that he wasn't properly notified is crap. I think if it ever went to court, he would lose based on his action of paying the new amount.

Follow Rogers advice...take all payments received and apply to the oldest amount due. Keep applying late fees to unpaid balances and send regular statements on what he owes. At some point, file a lien on the unpaid balance. He will get the hint that you are not going to monkey around with him. Too much time has been wasted on this guy and the board has been more than accomodating.
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