2009 April 06
Last edit: 2009 May 04. Click History for a list of changes and updates.
__The
continuation of this post discusses implications of the decisions and actions of MOA’s board of directors to pursue collection of unpaid dues and special assessments as personal debts of the owner. I believe the Board has the obligation to determine the validity of the collection as personal debt under the law and governing documents before proceeding. Part of this obligation is to examine the likely arguments against validity and to determine that the likely arguments are not valid. This post discusses (at least some of) those likely arguments.
__Under the Declaration of Covenants, Conditions and Restrictions, DMCCR (sometimes called deed restrictions), liens can be filed against the property unit (lot) for unpaid or delinquent dues and assessments. There are no provisions in the DMCCR making the unpaid dues and assessments a personal debt of the owner.
__Owners were certainly informed in a number of ways that ownership includes an obligation to timely pay dues and special assessments. They were also advised that the means for MOA to collect unpaid dues and assessments is to file a lien and then foreclose that lien.
__Since the DMCCR does not state that unpaid dues and assessments are personal debt of the owner, action by the board of directors to file a lawsuit in small claims court is likely invalid under the law and governing documents. Before proceeding, the MOA Board should have determined such lawsuits in small claims court are unquestionably valid under the law and governing documents.
__(edited 2009 May 04) If the money is owed, it should be paid and/or collected. None of the angst related to liens and potential lawsuits would occur if the owners just made timely payment of dues and assessments. But MOA's collection means should be limited to those authorized under the law and the governing documents. An unauthorized collection action is a violation of the rights of the owners/members — a rights issue. While we may not have sympathy for those who have not made timely payments of dues and assessments, they are entitled to the same protections under the law and governing documents as any other owner/member. The classic rights issue in USA is ACLU’s defense of the right of a Nazi group to march in Skokie, Illinois.
(end edit)__Other information may be available on the internet with the following Google searches:
- Michaywe OR Michaywé dues OR assessments "owners association" "personal debt"
- debt "small claims" site:http://www.hoatalk.com/
- Michaywe OR Michaywé "owners association" dues OR assessments "personal debt"
Copy the text in the bullets into the Google search window. Obviously, the search terms in the third bullet focus on Michaywé.
__Correctness and good explanation are a high priority in this post. If there are questions concerning the correctness and explanations, please call to discuss. Thanks.
Don Nordeen
(989) 939-8240
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Please be advised that the writer is not an attorney, and this is not legal advice. The information is based on research on information available in the public domain.
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- Key Words:_ Attorney Issues; Governance; Governing Documents; Members' Rights; dues, assessments, unpaid, delinquent, late fee
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