Columbus HOA Foreclosure Defense Lawyer
Did you know you could be current on your mortgage payments and still have your home foreclosed on? If you belong to a homeowners’ association (HOA), then you could lose your home for something as minor as being late on your dues or failing to pay an assessment for painting your fence the wrong color. HOA rules can be strict, but you have the advantage of Ohio homeowner protection laws and a team of dedicated Ohio consumer protection attorneys looking out for you. Before you lose your home to an overly aggressive HOA, talk to our legal team to find out how we can help. Contact our experienced Columbus HOA foreclosure defense lawyers today.
How HOAs Can Have the Right to Foreclose on Your Home
If you live in a planned community governed by an owner’s association, you are required to pay dues regularly as well as any general or emergency assessments needed to maintain the common areas of the community. You can also be subjected to individual assessments for damaging common property or violating HOA rules. If you are late or delinquent in paying any of these dues or assessments, the HOA can record a lien on your property for the amount due. With that lien attached to your property, you can’t sell it and give good title to the purchaser without first paying what you owe the HOA to get rid of the lien.
Although the HOA could sit and wait for you to sell the property and realize you have to pay the lien first, they could also be more proactive and foreclose on the lien very soon after it is created. In fact, they might even be required to foreclose within a certain period after recording the lien if they want to retain and enforce their rights.
If the HOA forecloses on the lien, you’ll be evicted, and your home will be sold out from under you. You are not without rights, however. If the HOA is wrongfully foreclosing, our experienced real estate attorneys will step in and fight that wrongful foreclosure and help you keep your home. We know the laws and rules surrounding the Ohio Planned Community Act, and we have been fighting for years to help homeowners stay in their homes when facing wrongful foreclosures.
Mortgage Lien Foreclosures Under Ohio’s Planned Community Act
Under the Ohio Planned Community Act, a planned community is any community comprised of individual lots where the owners are required by their deed, a common plan or declaration to join an owner’s association. It also includes communities where an association holds or leases property or facilities for the benefit of the owners or where the owners support property or facilities for all owners to use by paying membership dues or fees. A condominium property, however, is not a planned community governed by the Act.
Generally, the developer initially files and records a declaration and bylaws with the county recorder, so for a period of time the association will be under developer control before it eventually transfers to owner control. The declaration and bylaws will list the common expenses for which assessments may be made and the manner used to collect those assessments from the owners.
Dues and assessments cover common expenses for administration and governance of the community, as well as maintenance, operation, repair and replacement of common community property or facilities. The homeowner’s association (HOA) can levy and collect fees or other charges for the use, rental or operation of common elements or services provided to the owners, such as lawn care. The HOA can levy interest and charges for late payments, returned check charges, and enforcement assessments for violations of the declaration, bylaws and association rules, such as street parking, lawn requirements, fence requirements, etc. The HOA can also assess charges for damage to common elements or other property belonging to the community.
The Planned Community Act gives the HOA a lien on any lot for payment of any individual assessment or charge, plus interest, costs and fees, ten days after the assessment is due and payable. The lien is a continuing lien, subject to automatic adjustment for interest, fees and costs as they are incurred.
HOA Lien Foreclosure Defenses
To enforce the lien, the lienholder can foreclose on the property in the same manner that a mortgage holder could foreclose on the property if the homeowner failed to keep up with mortgage payments. In Ohio, foreclosure is a judicial process. You are entitled to a hearing in court before the HOA can foreclose the lien and sell your property to cover the amount owed. At this hearing, you might have one or more defenses your attorney can raise on your behalf to stop the foreclosure. Examples of HOA foreclosure defenses include:
- The assessments charged were not authorized in the declaration or bylaws
- The Board unlawfully increased assessments for common expenses in violation of the declaration
- Excessive fees were charged for enforcement of HOA rules
- Enforcement assessments or charges for damages were imposed without proper written notice, the right to cure the violation, and the right to a hearing before the Board
- The certificate of lien was not filed in accordance with Ohio legal requirements
- The foreclosure was brought past the statute of limitations allowed to enforce the lien
When faced with a foreclosure lawsuit, you have only about 30 days to respond or risk having a default judgment entered against you. Act quickly and get an attorney right away to go over the complaint and see what defenses might be available. You need to file an answer with the court, and your answer needs to include the defenses you intend to raise. You might have other options to avoid HOA foreclosure as well, including paying off the amount due, redeeming the property after a sale, making a qualifying offer to the HOA, and more. Homeowners can even bring their own action to discharge a lien that they believe was imposed for an improper charge. Successful homeowners can even get their attorney’s fees paid for by the HOA.
Contact Kohl & Cook Today
If your HOA has put a lien on your property or if you have received a notice of foreclosure, call Kohl & Cook to explore your options and craft an immediate strategy to keep your home from being lost to the HOA. Call our experienced Ohio HOA foreclosure defense lawyers today.