Q&A: It’s in titleholders own best interest to make sure HOAs have all their addresses

Question: My daughter just learned that her homeowner association is foreclosing on her condominium, but she was never served with notice. Doesn’t she have to be personally served? Also, the board told her she did not comply with a legal requirement that she inform them of other addresses she may have. I don’t understand why they need this information. What is the existing law and is there a new law?

Answer: The board should request current contact information from association titleholders, and it’s in each owner’s best interest to regularly update that information. No action adverse to a member, or their property, may be taken without notice, but not all notices require personal service.

A change in the law that becomes effective Jan. 1, Civil Code Section 4041, requires the association to obtain completed annual address information from each titleholder. The law places a burden on owners too, requiring them to provide written notice to the association of the following:

1. The address or addresses to which notices from the association are to be delivered, including alternative or secondary addresses.

2. The name and address of the titleholder’s legal representative, if any, including any person with power of attorney or any person who can be contacted in the event of the titleholder’s extended absence from the property, whether it is owner-occupied or rented out.

Owners need to be diligent about this, because if the titleholder fails to provide the required addresses, the address of the owner’s HOA property shall be deemed to be the address to which notices are to be delivered, even if the titleholder does not live there.

Owners also need to pay close attention to several existing laws related to titleholders who are subject to homeowner association enforcement actions.

An association may record a lien against an owner’s property in the amount of any delinquent assessment, plus any costs of collection, late charges and interest assessed, as specified, under Civil Code Section 5675. That decision to record a lien is strictly regulated by Civil Code Section 5673, which states that the decision may be made only by a majority vote of the directors in an open meeting, with the vote recorded in the minutes.

Once the board votes, Civil Code Section 5660 requires an association to send the owner of record a notice by certified mail at least 30 days prior to recording a lien to collect the debt. That notice must include lien-enforcement procedures, a general description of the collection and an itemized statement of charges. It also must enumerate the titleholder’s legal rights, including the right to inspect the association records, to request a meeting with the board, to dispute the debt and to request alternative-dispute resolution with a neutral third party before initiation of foreclosure.

Then, once the lien is recorded, a copy of the notice of delinquent assessment must be mailed by certified mail to the owner within 10 calendar days, according to Civil Code Section 5675.

Should a board’s enforcement action move toward foreclosure, that also is highly regulated. An association that seeks to collect delinquent assessments in the amount of $1,800, or more, or assessments that are delinquent by more than 12 months and secured by a lien against an owner’s property, can use judicial or non-judicial foreclosure, subject to specified requirements under Civil Code Section 5720.

Notice of a lien can be served by mail to the titleholder. However, foreclosure requires a board vote before initiating foreclosure proceedings. If the titleholder lives in the unit, notice of foreclosure must be personally served and cannot merely be mailed. If the titleholder does not live in the unit, notice of foreclosure can be mailed, under Civil Code Section 5705. Any notice of default in assessments owed to the association (which is the first step in the nonjudicial foreclosure process) must be personally served on the titleholder.

A board’s failure to follow the law in any of these areas may invalidate the lien or foreclosure process. But it is the titleholder’s responsibility to make certain his or her information on file with the association is kept current. Even though you may have sent the communication using a recognized method of tracking, always ask for written confirmation that this required information was received.

Zachary Levine, a partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to Donie Vanitzian, JD, P.O. Box 10490, Marina del Rey, CA 90295 or noexit@mindspring.com.