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Condo Q&A

State Law May Prevail on Late Assessment Penalty

September 13, 1998|JAN HICKENBOTTOM | SPECIAL TO THE TIMES; Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers

QUESTION: Our condo association's declaration states that a penalty is due on assessments that are 10 days past due. Some of our owners are disputing this. What advice can you provide?

ANSWER: California Civil Code Section 1366 (d) supersedes your declaration. The law states, "Regular and special assessments levied pursuant to the governing documents are delinquent 15 days after they become due. If an assessment is delinquent, the association may recover all of the following:

1) Reasonable costs incurred in collecting the delinquent assessment, including reasonable attorneys' fees.

2) A late charge not exceeding 10% of the delinquent assessment or $10, whichever is greater, unless the declaration specifies a late charge in a smaller amount, in which case any late charge imposed shall not exceed the amount specified in the declaration.

3) Interest on all sums imposed in accordance with this section, including the delinquent assessment, reasonable costs of collection and late charges, at an annual percentage rate not to exceed 12% interest, commencing 30 days after the assessment becomes due."

The laws pertaining to community associations are frequently revised, and you should rely on an attorney whose practice primarily deals with the representation of community associations.

Sometimes the law supersedes your declaration, and in other circumstances, such as the time limit for distribution of the annual financial report, the state law requires that the association comply with stricter time limits imposed by the association's declaration.

Liability Insurance Is Owner's Safeguard

Q: Our association's declaration states that the owners are legally liable for the actions of their tenants and guests. How can one person be liable for another's actions? Is this provision in the legal documents enforceable?

A: Yes, the provision is enforceable; an owner is responsible to the association for any actions, such as rule violations or damage to the common property, that is caused by any person that the owner invites into the complex. This would include even workers who might cause some kind of common area damage or create a problem for other owners. For instance, the association has the right to hold you responsible if your plumber backs his truck into the common area wall and damages it.

This provision is enforceable. It is a good reason for owners to have liability insurance and to require that any companies doing work for them are licensed and have liability coverage, vehicle liability and workers' compensation coverage.

Is Owner Stuck Paying Association Lawyer?

Q: I am an owner in a homeowner association. I called the association's attorney to see if he would represent me in a contingency case. He said that he would not take the case, but he sent the bill for his time to the association.

The association paid the bill and is now charging me for the expense. Can the association file a lien against my property if I don't pay the bill?

A: Obviously, you won't call the association's attorney to get the answer to your question! Very few associations have governing documents that allow the association to file a lien for anything other than delinquent assessments. Your documents may state that your association has that authority. You can review the declaration and bylaws to find out about the association's lien rights.

You used the attorney's time to explain your problem and you got his response that he would not take the case. Before the conversation started you should have been advised that the attorney was going to bill for his time. Then the length of the conversation and the size of the bill would have been under your control.

Was the bill sent to you first before it was sent to the association? Did you refuse to pay the bill so that sending it to the association was the attorney's second means of collection? I would advise you to clean up your account with the association by paying the bill before they start adding late charges or other collection costs.

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Hickenbottom is a community association management consultant and a founding director of the California Assn. of Community Managers. She selects questions of general interest for the column and regrets that she cannot respond to all questions received. Send questions to Condo Q&A, Box 5068, Thousand Oaks, CA 91360.

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