Condominium assessment collection in the District of Columbia (Washington DC).The timely payment and collection of condominium assessments is essential to the financial well-being and efficient operation of a condominium association. The association’s Board of Directors has a fiduciary responsibility to stay on top of condominium assessment collection so that delinquent condominium assessments do not accumulate. Excessive delinquencies not only deprive a condominium association of needed operating capital, but also affect its ability to borrow money and obtain FHA approval. This article provides an overview of the condominium assessment collection process for condominium associations in the District of Columbia. Information is provided to help associations adopt their own condominium assessment collection policies and procedures that work best for their communities within the framework of Washington DC condominium law.
ANNUAL ASSESSMENTS AND SPECIAL ASSESSMENTS
Condominium assessment collection is the means by which a condominium association board of directors funds the annual budget. Each year the condominium association adopts a budget to cover its operating expenses and an amount to be set aside for anticipated future expenses. The total budget cost is divided among the unit owners in the form of an annual assessment typically due and payable in equal monthly installments on the first day of each month.
Sometimes condominium associations are faced with unanticipated major expenses in excess of the funds raised by the annual assessments. In such cases, governing documents give the board of directors the power to levy a “special assessment,” subject to restrictions imposed by applicable laws. Unit owners may be given the option to pay the special assessment in monthly installments.
PAYMENT OF ASSESSMENTS
Condominium assessments are traditionally paid by check using payment coupons and envelopes provided by the condominium association’s management company. More frequently, management companies send electronic coupons and/or assessment invoices by email and offer online payment by E-check, credit card or recurring ACH payment (direct debit). Coupons and invoices are often used as an opportunity to remind the unit owners that they can avoid late fees and interest by making timely payment on or before the specified due date.
ASSESSMENT COLLECTION POLICIES & PROCEDURES
It is recommended that all associations establish written condominium assessment collection policies and procedures based on governing documents and applicable law. Written policies and procedures can be created under the rulemaking authority of the association and provide an objective framework under which the condominium association can treat all unit owners equally.
Written policies and procedures are a useful aid in the collection of assessments because they can be published and distributed on a regular basis so that all unit owner members have ample notice of, and opportunity to understand, what is expected (e.g., due date and manner and method of payment) and the consequences for nonpayment (e.g., late fees, interest, returned check fees, acceleration, suspension of common element privileges, referral to legal counsel, and court costs and attorney’s fees if legal action is taken).
Written policies and procedures promote the timely collection of assessments by establishing a timeline for collection actions to be taken once a payment is missed. Written procedures instruct when an association should send out late notices and when to refer unresolved delinquencies to legal counsel. A timetable of deadlines for actions to be taken by legal counsel can also be specified, including sending demand letters and commencing proceedings to establish and/or enforce assessment liens, or pursue civil suits when assessments remain unpaid.
ASSESSMENTS PAYMENT INCENTIVES IN GOVERNING DOCUMENTS
1. Late Fees and Interest
When assessments become past due, a condominium association can charge late fees and interest as permitted by governing documents and applicable law. Late fees and interest are not only an incentive to make timely payment, but also to help defray costs associated with delinquencies.
The District of Columbia Condominium Act does not regulate the amount or timing of late fees that a condominium association can impose for nonpayment of condominium assessment. Thus, reference should be made to the governing documents.
A condominium association in the District of Columbia, by statute, can charge interest after an assessment payment is 15 days late, unless the governing documents provide otherwise. District of Columbia Condominium Act (“DC Condo Act”) § 42–1903.12(e). Interest runs from the due date at either 10% per year or the maximum first mortgage loan rate in DC, whichever is less. DC Condo Act § 42–1903.12(e).
2. Acceleration of The Annual Assessment Upon Non-Payment
Acceleration is another incentive for unit owners to make timely payments. Most governing documents permit a condominium association to accelerate the entire balance of the unpaid annual assessment following nonpayment of a monthly installment. This means that the board of directors may declare the entire balance of the unpaid annual assessment immediately due and payable, such that monthly installments will no longer be accepted. Any attempt at acceleration by a condominium association must be permitted by governing documents and consistent with applicable laws.
In Washington DC, governing documents can provide for acceleration after one unpaid installment, which can be automatic or at the option of the association, board, or manager. DC Condo Act § 42–1903.12(d)
3. Suspension of Common Privileges
Suspension of a unit owner’s privileges within the community can also be an incentive to make timely assessment payments. The condominium governing documents often authorize the Board of Directors to suspend a delinquent unit owner’s common privileges such as use of common elements (e.g., swimming pool, exercise facilities, recreational amenities and parking), voting rights and/or ability to serve on the board of directors. Before suspending a unit owner’s privileges, the condominium association must comply with any notice or hearing requirements set forth in the governing documents and/or as require by statute.
In the District of Columbia, a board of directors has the statutory “power to suspend the voting rights … of any unit owner who is in arrears in … payment of … assessments by more than 30 days.” DC Condo Act § 42-1903.12(j). A condominium association in the District of Columbia also has general rule making authority under § 42-1903.08 of District of Columbia Condominium Act to established a policy that provides for the suspension of a delinquent unit owners common element privileges. However, in order to avoid a successful constitutional argument of unlawful taking of property rights without due process, a Washington DC condominium association should adopt, publish and regularly distribute written policies and procedures regarding the suspension of common area privileges so that all unit owners have prior notice. These procedures should also ideally include written notice and an opportunity for the non-paying unit owner to attended or request a hearing before the board within a specified time (even if not required by the governing documents), before a final decision to suspend common element privileges is imposed.
LATE NOTICES
A typical first step in the condominium assessment collection procedure is to send out a late notice to any unit owner who has not paid an assessment installment within a specified time following the due date. The late notice is a reminder that the assessment payment is overdue and specifies the amount and any late charges and/or interest due as a result of non-payment. If payment is not forthcoming, follow-up late notices may be sent depending on the association’s collection policy.
DEMAND LETTER (REFERRAL TO LEGAL COUNSEL)
If one or more late notices do not result in a payment, the second step in the typical condominium assessment collection procedure is to refer the assessment delinquency to legal counsel for collection. Legal counsel will attempt to resolve the matter amicably by sending a demand letter to the unit owner. In addition to itemizing the current amount due and requesting payment by a certain date, the demand letter provides notice of any immediate or pending acceleration of the entire remaining balance of the annual assessment and describes other legal actions that may be taken, such as: (1) recording an assessment lien against the non-paying unit owner’s condominium unit that can be enforced by way of foreclosure (i.e., forced sale of the unit to obtain funds to pay the amount due); and/or (2) filing a lawsuit seeking a personal monetary judgment against the unit owner in the amount due, including late fees, interest, costs, and reasonable attorneys’ fees as permitted by governing documents and applicable law.
In 2017, the District of Columbia enacted amendments to the Condominium Act known as the “Condominium Owner Bill of Rights and Responsibilities Act of 2016.” Under this Act, condominium associations must provide specified information whenever notifying a unit owner of its intention to take legal action to collect any past due amount. DC Condo Act § 42–1903.12a. Therefore, a demand letter sent on behalf of a Washington DC condominium that notifies a unit owner of pending or potential legal action for nonpayment of past due assessments must contain the following information: (1) a statement of account showing the total amount past due, including a breakdown of the categories of amounts claimed to be due and the dates those amounts accrued; (2) contact information for a representative whom the unit owner can contact to settle the past due amount; and (3) information regarding resources which the unit owner may utilize at the District of Columbia Department of Housing and Community Development and the United States Department of Housing and Urban Development (form language is provided by the statute). DC Condo Act § 42–1903.12a.
COMPLIANCE WITH DEBT COLLECTION AND LICENSING LAWS
Demand letters and many late notices constitute an attempt to collect a delinquent debt and, to the extent applicable, must comply with debt collection conduct and notification requirements imposed by the Federal Fair Debt Collection Practices Act and/or the District of Columbia Fair Debt Collection Act.
There is currently no collection agency license in the District of Columbia, however, management companies doing business in the District of Columbia are required to obtain a general business license with the Department of Consumer and Regulatory Affairs. D.C. Code 47-2851.03d.
ASSESSMENT LIENS AGAINST A CONDOMINIUM UNIT
If demand letters do not result in payment of the delinquent assessment, a condominium association’s board of directors has the power to establish and/or enforce an assessment lien against the non-paying unit owner’s condominium unit. Once an assessment lien attaches to the unit, it places a “cloud on title,” by encumbering the ability to sell the unit, similar to a mortgage, such that the lien must be paid off in connection with any future sale before the unit owner receives any part of the remaining sale price. A title company representing the purchaser of the delinquent unit will likely discover the assessment lien before settlement and require that it be paid as a condition to issuing a title insurance policy. Without a title insurance policy, an institutional lender will not provide funding for the purchase of a unit. Additionally, a unit owner with an assessment on their unit will have difficulty obtaining financing. Thus, an assessment, lien, to this extent, serves to secure an association’s assessment debt.
Additionally, once an assessment lien attaches (and providing that required notices have been provided), it can be used by the condominium association to immediately force the sale of the unit as a source of funds to pay the past due amount (the “enforcement and foreclosure of the lien”), without having to wait for a purchaser to come along and acquire the unit.
Foreclosures are expensive and used as a last resort when they make economic sense. However, the prospect of having a lien established against one’s unit, or the desire to have the lien removed, is often enough to resolve any dispute over past due assessment payments without the need for further legal action.
1. What’s included in a Washington DC assessment lien?
In the District of Columbia, an assessment lien may consist of “the assessment levied against the condominium unit … along with any applicable interest, late fees, reasonable expenses and legal fees actually incurred, cost of collection and any other reasonable amounts payable by the unit owner under the condominium instruments.” DC Condo Act § 42-1903.13(a). If condominium assessments are paid in installments, governing documents can provide for acceleration of the entire assessment after one or more unpaid assessment installments. DC Condo Act § 42–1903.12(d). However, whether or not monthly installments are accelerated, the full amount of the annual assessment becomes part of the assessment lien “from the time the first installment becomes due and payable.” DC Condo Act § 42-1903.13(a).
2. How is a Washington DC assessment lien created?
In the District of Columbia, an assessment lien in favor of the condominium association attaches to the unit automatically “from the time the assessment becomes due and payable,” DC Condo Act § 42-1903.13(a), and lasts for a period of three years, DC Condo Act § 42-1903.13(e). Unlike Maryland, no recording of a statement of lien in the land records is required in the District of Columbia to create the lien because “the recording of the [original governing documents in the land records] shall constitute record notice of the existence of such lien.” DC Condo Act § 42-1903.13(b). Nonetheless, a condominium association can choose to file a notice of lien in the land records to put prospective purchasers, lenders and others on notice of the existence and or subsequent release of an assessment lien. The Recorder of Deeds publishes forms online for this purpose entitled “Notice of Condominium Lien for Assessments Due” and “Release of Condominium Lien.”
Even if no formal action has been taken to record or enforce the lien, any unit owner or contract purchaser of a condominium unit can find out whether there are unpaid assessments by requesting that the condominium association provide “a recordable statement setting forth the amount of unpaid assessments levied against that unit.” DC Condo Act § 42-1903.13(h). Failure of the condominium association to provide such a statement within 10 days of receipt of the request “shall extinguish the lien.” DC Condo Act § 42-1903.13(h).
3. How is a Washington DC assessment lien foreclosed upon?
The District of Columbia Condominium Act sets forth the procedure for foreclosing on a condominium unit to satisfy an assessment lien. The board president of the condominium association (also known as the “chief executive officer of the unit owners’ association) is deemed by statute to be a “trustee” for purposes of exercising the power to sell and transfer title to a delinquent unit owner’s condominium unit. DC Condo Act § 42-1903.13(c)(1) and (3). However, such a foreclosure sale cannot be held until at least 31 days after a “Notice of Foreclosure Sale of Condominium Unit for Assessments Due” (a/k/a “NFSCUAD”) is recorded in the land records and served upon the unit owner. DC Condo Act § 42-1903.13(c)(4)(A). The NFSCUAD must contain information specified by the statute, including detailed information about the amount due, the amount being foreclosed on, and assistance that may be available to the unit owner from the District of Columbia Department of Housing and Community Development and the United States Department of Housing and Urban Development. DC Condo Act § 42-1903.13(c)(4)(B) and (D). The NFSCUAD must also be provided to the mayor or the mayor’s designated agent, any and all junior lienholders of record, any holder of a first deed of trust or first mortgage of record (including successors, assigns, and trustees), and the Mortgage Electronic Registration System (“MERS”). DC Condo Act § 42-1903.13(c)(4)(E).
4. Super Priority Assessment Liens
Assessment liens in Washington DC have priority, up to a specified amount, over the liens created by a lender’s earlier-filed first mortgage or deed of trust. This is referred to as a “super priority lien” and references the fact that in the event of a foreclosure sale, the super priority portion of the assessment lien must be paid to the condominium association from the sale proceeds before satisfying the lien amount of an earlier-filed lender’s mortgage or deed of trust.
In the District of Columbia, the super priority lien is limited to the most recent six months’ worth of common expense assessments. DC Condo Act § 42-1903.13(a)(2). The super priority lien in Washington DC only provides priority over first mortgages or first deeds of trust recorded after March 7, 1991 for the benefit of an institutional lender. DC Condo Act § 42-1903.13(a)(1)(B) and (a)(2). An association’s super priority lien does not provide priority over mortgages and deeds of trust recorded before March 7, 1991, a lien for real estate taxes or municipal assessment charges, nor does it affect the priority of a mechanics’ or materialmen’s lien. DC Condo Act § 42-1903.13(a)(1)(C) and (2).
When faced with a foreclosure proceeding, a lender may offer to pay off the super priority lien amount on behalf of the delinquent unit owner in order to prevent the foreclosure and thereby protect its mortgage or deed of trust.
CIVIL LAWSUIT TO OBTAIN PERSONAL JUDGMENT
A condominium association can also file a civil lawsuit seeking a personal monetary judgment from a court in its favor and against the delinquent unit owner in the amount of the unpaid assessment, together with authorized late fees, interest, court costs and reasonable attorneys’ fees. A lawsuit seeking a personal judgment can be filed in addition to or in place of a lien foreclosure action, or can be used to make up any deficiencies remaining after foreclosing on the assessment lien. Once the court enters a personal monetary judgment against a delinquent unit owner, the association can seek to collect on the judgment by garnishing the unit owner’s wages or bank accounts and/or rent (if the unit is being rented), subject to restrictions imposed by applicable laws. Additionally, a personal judgment entered against unit owner by the court and recorded in the courthouse will create a judgment lien not only against the unit in question, but also as to and any other real property located in the jurisdiction of filing. The judgment can also be recorded among the land records of a different county or jurisdiction thereby extending the judgment lien to any real property located within the boundaries thereof. As with an assessment lien, a judgment lien also creates a “cloud on title” such that property cannot be transferred “free and clear” of the lien unless it is paid off by prior to transfer of title.
PAYMENT PLANS
During the condominium assessment collection process, it may be appropriate to agree upon a payment plan with unit owners who fall behind on their assessment payments. Payment plans can save the association the time and expense of pursuing legal action and provide a unit owner member with time needed to bring their account current. Payment plans should be reserved for those cases where timely repayment of a past due amounts under the proposed plan is feasible and likely, such as where a unit owner is able to pay assessments going forward but needs help catching up on missed payments. Payment plans can also be used as a means of resolving a payment dispute by allowing a unit owner to pay off an accelerated annual assessment together with interest, late fees, costs and attorneys’ fees, if any. Payment plans should be made part of a contractual agreement between the association and the unit owner that sets forth the amount of each payment, its due date, and the mutually agreed-upon consequences of failure to make a scheduled payment. A hierarchy for application of payments pursuant to the association’s collection policy can also be included to specify which fees are paid first (e.g., court costs, return check charges, interest, late fees, and lastly unpaid assessments).
NOTE ABOUT TERMINOLOGY:
The term “condominium association” is used in this article to describe the organization or entity that governs the affairs of the condominium in accordance with the condominium bylaws and declaration, and whose members consist of all condominium unit owners. “Condominium association” is the terminology commonly used for this purpose. However, the District of Columbia Condominium Act refers to a condominium association as a “unit owners’ association.”
The term “board of directors” is used to refer to the administrative entity made up of board members that have authority under the condominium bylaws and declaration to act on behalf of the condominium association. The District of Columbia Condominium Act refers to a board of directors as an “executive board.”
The term “governing documents” is used to refer to the condominium declaration and bylaws. The District of Columbia Condominium Act refers to the condominium bylaws and declaration as “condominium instruments.”
NOTE ABOUT AUTHOR:
Nicholas D. Cowie is a partner in the law firm of Cowie & Mott, P.A. and has been representing condominiums for over 29 years. The law firm of Cowie & Mott, P.A. provides general counsel legal services to condominiums throughout the State of Maryland and the District of Columbia, including condominium assessment collection, drafting resolutions, developing condominium assessment collection policies, contract negotiation, legal opinions, foreclosure actions, litigation, arbitration, mediation services, bylaw amendments and other general counsel services tailored to condominiums associations and homeowners associations. The law firm of Cowie & Mott, P.A. offers flat fee condominium assessment collection services with deferred billing. Please contact our firm for references.
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NOTE ON LEGAL ADVICE: This Article should not be relied upon as a legal advice applicable to any specific case concerning Condominium Assessment Collection in the District of Columbia . Rather, it is a general statement of legal principles that may or may not apply to your Washington DC condominium. The individual facts of each case must be analyzed to determine the application of law. Speak with a Washington DC condominium assessment collection law attorney at Cowie Law Group, P.C. for a consultation relative to your specific situation.