From the AZ Republic

BY: CLINT G. GOODMAN, ESQ.

QUESTION: My association fined me for weeds on my neighbor’s lawn. I’ve tried to explain that the weeds are not mine but they won’t listen to me and demand that I pay the fine or they will put a lien on my home. Can my HOA really put a lien on my home if I refuse to pay the fine? What about if I refuse to pay my assessments until the fine issue is resolved?

ANSWER: This is the type of case that gives homeowners associations a bad name. As a trial attorney, I see these cases on a daily basis and they almost always happen because HOA boards do not know the law. In the past, associations could record liens and foreclose on a homeowner’s property for almost any reason. You may have read about the 83-year-old woman in Tequesta, Fla., who battled her community over nearly $1.8 million in fines for weeds; the 82-year-old widow who was evicted over $814.50 in unpaid dues; or the California couple whose home was foreclosed because they failed to pay $120 in assessments. Fortunately, our state lawmakers enacted laws to combat situations such as these by addressing when and how liens can be recorded and foreclosed.

Under today’s laws, associations have an “automatic lien” against every home in the association for unpaid assessments. Assessments are the dues paid on a regular basis for maintenance and upkeep of the association; they are not fines. This means that associations need not record a lien for unpaid assessments to foreclose on one’s home because the law implies one already exists. But, unlike other states where associations may evict homeowners for a few dollars, Arizona associations cannot foreclose until the unpaid assessments have accumulated for more than one year or until the amount owed reaches $1,200, whichever occurs first.

Lawmakers also took great care in distinguishing liens and foreclosure actions for unpaid assessments from liens and foreclosure actions for unpaid fines. Unlike assessment liens, an association cannot record a lien for unpaid fines until it first sues the homeowner in court and wins. This means any “lien” on a homeowner’s property for unpaid fines without proper court authority may be a “false document” in violation of Arizona’s false recording laws. It also means the individual director and/or the association responsible for its recording may be liable for statutory damages of at least $5,000.

Importantly, unlike assessment liens, an association cannot evict a homeowner from their home for fine liens. Thus, even if a homeowner is sued for fines and the association wins, the association still cannot foreclose on those fines until the home is sold or the title is transferred