Kansas HOA Lien Foreclosure: Behind the First Mortgage, With a 12-Month Redemption

Three separate Kansas acts govern three different kinds of community, and only two of them create a lien at all. The Kansas Apartment Ownership Act, K.S.A. 58-3101 et seq., governs condominiums and supplies the lien at K.S.A. 58-3123. The Townhouse Ownership Act, K.S.A. 58-3701 et seq., governs single-family townhouse residences joined by a common wall, roof or foundation, and K.S.A. 58-3702(a) says a townhouse unit expressly does not mean an apartment as defined in K.S.A. 58-3102; its lien is K.S.A. 58-3710. The Kansas Uniform Common Interest Owners Bill of Rights Act, K.S.A. 58-4601 et seq., is the newest and creates no lien and no foreclosure power whatsoever. Its sections run from citation through budgets and enforcement of rights and stop at K.S.A. 58-4622, with nothing on liens. It is also the narrowest in reach: K.S.A. 58-4605(a) applies it only to common interest communities containing 12 or more residential units created in Kansas after its January 1, 2011 effective date. A 40-year-old subdivision of detached houses in Kansas therefore has no statutory assessment lien at all, and whatever lien its board asserts comes from the recorded declaration.

Where a lien does exist, the two statutes are near-twins and both cap it the same way. Unpaid common expenses become a lien prior to all other liens except tax liens in favor of any assessing unit and special district, and all sums unpaid on a first mortgage of record. That single exception is what makes Kansas a non-super-lien state: unlike the states that give an association a priority slice of six or nine months of assessments ahead of the bank, Kansas lets the entire first mortgage outrank the whole association claim, however old the arrears.

The foreclosure route is judicial and slow. The lien may be foreclosed by suit in like manner as a mortgage of real property, which means district court, a sheriff's sale, and the redemption regime in K.S.A. 60-2414(a): the defendant owner may redeem within 12 months from the day of sale and is entitled to possession of the property in the meantime, with the first three months exclusive to the owner before any lien creditor may redeem under subsection (b). A court may shorten or extinguish that period after a hearing on not less than 21 days' notice if it finds the property abandoned or not occupied in good faith. Two extras run in the association's favor during suit: the unit owner shall be required to pay a reasonable rental if the bylaws so provide, and the plaintiff is entitled to the appointment of a receiver to collect it. The association may also bid at its own foreclosure sale and then hold, lease, mortgage and convey the unit, unless the declaration prohibits it.

The association is not confined to foreclosure. Both statutes say a suit to recover a money judgment for unpaid common expenses is maintainable without foreclosing or waiving the lien, so a Kansas board can sue the owner personally and keep the lien alive for later. On the other side, K.S.A. 58-3709 stops the obvious defense in a townhouse: no owner may escape liability for common expenses by waiving use of the common areas or by abandoning the unit.

The biggest practical limit falls on the association, not the owner. Both K.S.A. 58-3710 and K.S.A. 58-3123(b) provide that where the first mortgagee or another purchaser takes title through foreclosure of the first mortgage, that acquirer is not liable for any share of common expenses that became due before it acquired title. The debt is not written off; it is reallocated, becoming a common expense collectible from all the other owners, including the new acquirer going forward. A bank foreclosure in a Kansas condominium or townhouse project therefore shifts the delinquent owner's arrears onto the neighbors. A buyer in a voluntary sale is treated very differently: K.S.A. 58-3124 makes the grantee of a condominium jointly and severally liable with the seller for unpaid assessments up to the date of conveyance, but entitles the buyer to a written statement of the amount owed from the manager or board, and caps both the buyer's liability and the lien on the unit at the figure in that statement.

An association enforcing a Kansas assessment lien files a civil suit in the district court of the county where the unit sits and asks for judgment plus foreclosure in like manner as a mortgage of real property. A. A. 58-3123, so any pre-suit demand schedule comes from the declaration and bylaws rather than from the statutes. A. 60-2414(a) unless the court shortens or extinguishes it for abandonment or lack of good-faith occupation. A. 58-3709 forecloses the argument that abandoning the unit or giving up the pool and common areas ends the obligation. A. 58-3124 statement of unpaid assessments before closing, because the lien on the unit is capped at the amount that statement discloses.