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If the COA or HOA initiates a foreclosure, you could have a defense to the action. Or you might be able to negotiate a way to get caught up on the overdue amounts and save your home.
When you buy a single-family home, townhome, or condominium in a planned community with covenants, you'll most likely pay fees and assessments, often collectively called "assessments," to a COA or HOA. If you fall behind in the assessments, the association will likely initially try to collect the debt using traditional methods. For instance, the association will probably call you and send letters.
But if those tactics don't get you to pay up, the association might try other ways to collect from you. The association could take away your privileges to use the common facilities or file a lawsuit for a money judgment against you.
Based on the association's Declaration of Condominium or Declaration of Covenants, Conditions, and Restrictions (CC&Rs) and state law, most COAs and HOAs also have the power to get a lien on your property if you become delinquent in assessments. Once you fall behind in payments, a lien will usually automatically attach to your property. Sometimes, the association will record its lien with the county recorder to provide public notice that the lien exists, regardless of whether state law requires recording.
An assessments lien clouds the title to the property, hindering your ability to sell or refinance the home. In addition, the property can also be foreclosed to force a sale to a new owner—even if the property has a mortgage.
In Illinois, a COA is entitled to a lien if the condo owner fails or refuses to pay the common expenses or fines. (765 Ill. Comp. Stat. 605/9(g)(1)).
If you're part of an HOA, check the CC&Rs to learn about the association's right to get a lien on your home if you don't pay the assessments.
State law and the COA or HOA's governing documents will usually set out the type of charges an association may include in the lien.
Under Illinois law, a COA is permitted to include the following in its lien:
To determine which charges an Illinois HOA may include in its lien, check the association's governing documents.
Once a COA or HOA has a lien, it might foreclose.
A COA lien may be foreclosed in the same manner as a mortgage once the association records the lien in the county records. (765 Ill. Comp. Stat. 605/9(h)).
Read the association's governing documents to find out about an HOA's right to foreclose if you become delinquent in paying the assessments.
Look Out for Legal Changes
Different sets of state laws often govern HOAs in subdivision communities and COAs. In Illinois, the Illinois Condominium Property Act (765 Ill. Comp. Stat. 605/1 through 605/35) governs COAs. The Illinois Common Interest Community Association Act (765 Ill. Comp. Stat. 160/1-1 through 160/1-90) governs HOAs, although it's not very comprehensive when compared to the Condominium Property Act. Some HOAs for smaller neighborhoods are covered by the General Not For Profit Corporation Act of 1986 (805 Ill. Comp. Stat. 105/101.01 and following).
An HOA's governing documents, which include the Declaration of CC&Rs and a COA's Declaration of Condominium, usually contain specific information about the rules of the community, including assessments liens. The Declaration is a publicly recorded document, and you should have received copies of this document when you purchased your property.
In this article, you'll find details on laws covering COA and HOA liens in Illinois, with citations to statutes so you can learn more. Statutes change, so checking them is always a good idea. How courts and agencies interpret and apply the law can also change. And some rules can even vary within a state. These are just some of the reasons to consider consulting an attorney.
A common misconception is that the association can't foreclose if you're current with your mortgage payments. But an association's right to foreclose isn't dependent on whether you're paid up on your mortgage. Instead, lien priority determines what happens in a foreclosure.
Generally, a foreclosure by a COA or HOA usually won't eliminate a first mortgage because the association's lien is normally lower in priority.
The priority of liens establishes who gets paid first following a foreclosure sale and often determines whether a lienholder will get paid at all. Liens generally follow the "first in time, first in right" rule, which says that whichever lien is recorded first in the land records has higher priority than later recorded liens. A first lien has a higher priority than other liens and gets the first crack at the foreclosure sale proceeds.
If any proceeds are left after the first lien is paid in full, the excess proceeds go to the second lienholder until that lien is paid off. And so on. A lien with a low priority might get nothing from a foreclosure sale.
But state law or an association's governing documents might adjust lien priority.
In Illinois, a COA lien is prior to all other liens, except for:
HOA CC&Rs often address lien priority and typically say HOA liens are subordinate to a first mortgage. To find out the priority of an HOA lien in Illinois, check your association's governing documents.
If you're facing a COA or HOA foreclosure in Illinois, consider consulting with a foreclosure attorney to learn more about the law and how it applies to your situation and to discuss all legal options available in your particular circumstances.