On the continuing saga, I receive calls almost every day from board members and others pleading for some help in dealing with abandoned and troubled properties. Here are some tips:

PRIMER ON COLLECTIONS: Stay on top of collections matters! Get liens filed in a timely manner, after following all legally required steps. You will want the liens in place in case of bankruptcy or a "creative" transaction among owners. Using a collections agent that is familiar with HOA law on collections is very important. One missed step and an entire collection action can unravel.

A foreclosure by a lender usually results in the HOA lien being "extinguished" as a matter of law. HOAs do not generally have to go back and release these liens; I say generally because there may be a reason to do so, in specific circumstances. Thus, when someone makes a demand to release a lien, get some legal help. If there was a misstep or mistake, it might be necessary, or in the alternative, it might help to collect all or part of the debt that is due, do not miss the opportunity.

Lenders are trying to avoid inventory these days, and are doing some things to try and avoid foreclosure costs as well. A lender might take back a "Deed in lieu of foreclosure", or may try to do a workout through a "short sale". If there is no foreclosure, there is no extinguishing of the HOA lien so it if was a good one in the first place, it still protects the property and most likely flows through the transaction, leaving the HOA with the pressure point in place. Get help if someone asks or demands to have a lien released, know your legal rights! HOA assessment debt follows the individual or entity that owned the property when the delinquency occurs, and follows the property through transactions where there is no legal event that cuts it off (extinguishes it). 

If someone asks to have a lien released and you suspect changes in ownership through foreclosure or otherwise, get their proof of ownership, and if a lender was involved, theirs too! Get the deeds, take them to a knowledgeable legal professional, and have the situation analyzed.

SMALL CLAIMS REMEDIES: For properties that are not maintained, that house problem tenants, or maybe even criminals, get on the owners@!! (Assuming you can locate them.)

I hate to recommend "litigation", and find that boards and managers generally abhor small claims remedies, mainly, I believe, because they are usually on the receiving end of the Complaint (as defendant). BUT, do not automatically dismiss the small claims remedy without understanding what might be accomplished there, without the expense of the bizillions of dollars needed to pay a lawyer to sue in "big court". If you believe that there is such a nuisance, eyesore, bad element hanging out, possible criminal (drug, prostitute, or otherwise) activity going on next door, and you have some proof (pictures are worth a thousand words), consider this possibility:

Neighbors can sue neighbors in small claims court for up to $7500. Boards can sue individuals or even corporate or trust owners in small claims court for $5,000. Boards and owners can sue the persons or banks that take property back or buy it through foreclosure sales and do not fix it up. They can sue the owner who allows a bad tenant to reside in their property. There is a cavaet on the amount.  If two other small claims complaints are filed by the person suing within the same year, the amount requested drops to $2500. These are California figures.

Small claims court is especially designed for people and businesses to seek resolutions to their legal complaints in the form of money. BUT, they work for nuisance cases too.

Nuisance comes in all forms. It is not just about noise. It can be about dealing with abusive and nasty neighbors, threatening dogs, property in serious disarray, and criminal activity in the neighborhood.  (Attorneys, close your eyes and cover your ears!)

No one has to hire an expensive attorney to sue and try to prove the lowered value of property (which is a real uphill battle these days anyway simply because of the subprime mortgage crisis and hurting economy). You, your family, your neighbors, your HOA, and any resident or property owner (probably better standing here since property values among other things can be affected) who is disturbed by a recognizable problem next door can head on down to the local county small claims court offices and pick up a claim form (called a Complaint), and sue for nuisance. There is a statute in California that works, and also most HOA governing documents actually have a written prohibition on nuisance next door. 

All you have to do is list all owners of the offending property as defendants. That can be the tricky part, but once determined, one family of 7 can file 7 complaints, seeking $7500 each. 10 neighbors can file 10 complaints each, seeking $7500. The HOA Board can file a complaint seeking $5000 in damages. You can all work together or separately.

This should get the owners attention (much more so than a $100 fine or call to a hearing which is often ignored). Attorneys certainly can provide expertise and help with words and preparing a case, even for small claims. They can provide advice about what to do if this .... or what to do if that happens ...., etc. And the small claims courts have advisors that give guidance on the process itself (not legal advice, but guidance on the process) for free. What are you waiting for? Just a suggestion. And note: do not do this expecting to receive big bucks. It is an attention getter! If the complaint is served properly and the defendant is a "no show", you might get some money. If he or she comes to court, the judge or hearing officer does have the power to threaten the defendants with "big bucks" if he or she does not prove up an intent to clean up the problem. The hearing officers can delay and reschedule hearings, which can be a pain, but which also can be a boon, especially if he or she says to the defendant: "I will continue this hearing for 30 days and if the problem is not resolved by then, you can expect an adverse judgment." That would be better than nothing, right? And I know of some successes. One HOA and some owners in it received a total of $18,000 in judgments against a woman who owned a condo and let her adult son living with her terrorize the neighbors. And tip: Be sure and write a letter to the defendant BEFORE filing the complaint with your demands, giving them an opportunity to do something to avoid the complaint. The hearing officer will ask if you did. If you say no, you may be the sorry one. 

This is simply one of the tools in my toolbox that I offer to owners and HOAs that are frustrated, concerned, and suffering a tight budget because of all the extra costs and losses these days, and it may or may not work. I have seen it work. There are ways it can backfire if you do not take the time to prepare, present a viable case and solution. It is simply one means of putting pressure in the right places (I call it "pushing the right buttons"). And be advised that if you go into small claims un- or ill-prepared, be prepared to lose. There must be some believable evidence to present. Just saying it is so does not often convince a judge or hearing officer that it is. Did you know that there are publications available on almost every subject HOA-related? Be sure to visit the Condoguru Webstore found at (www.californiacondoguru.com) ­ There are more than 40 publications on very specific subjects available now, and this fall. Visit the publications page.

*** NOTICE OF TWO EXCELLENT OPPORTUNITIES IN SOUTH LAKE TAHOE (it's lovely there!) ON SITE MANAGER NEEDED: small HOA (40U) with manager apartment seeks person(s) with HOA management and maintenance experience and capability. Vacation Rental income a possibility as well.

PRIMO SKI RUN BLVD CONDO AVAILABLE FOR SHORT TERM AND HOLIDAY RENTAL (Dander and Smoke Free - NO PETS OR SMOKING): Outstanding Beautiful Vacation Rental - sleeps 6 ­ pool, 2 spas, excellent location. Quiet complex. Comfortable beds. Carport parking. Surrounded by woods - hear the pines whistle softly in the wind! Heavenly Ski Area bus comes to end of driveway during ski season.  For either - contact Beth Grimm: califcondoguru@aol.com .

Copyright © 2008 Beth A. Grimm, All Rights Reserved