Massachusetts Condo Lien Foreclosure: Six Months Ahead of the Mortgage

Start with what kind of association is covered. Massachusetts never adopted the Uniform Common Interest Ownership Act. Chapter 183A is titled simply CONDOMINIUMS, and its lien in § 6 belongs to an "organization of unit owners" of a condominium. Time-shares run on a separate track, G.L. c. 183B, whose § 29 lien is enforced through the same chapter 254 machinery and even has its own auction notice form. A conventional homeowners association governing detached houses on a recorded set of covenants is not an organization of unit owners, has no § 6 lien, and must collect through its declaration and ordinary contract remedies. The search for a general Massachusetts homeowners association act returns nothing: there is no chapter that does for a subdivision association what 183A does for a condominium.

Within a condominium, the lien is easy to create and hard to miss. Section 6(a)(i) says the organization shall have a lien on a unit for any common expense assessment levied against that unit from the time the assessment becomes due. Subsection (a)(ii) extends the same treatment to expenses caused by an owner's own breach or misconduct, to limited common area costs charged to the benefited unit, and to fees, attorneys' fees, late charges, fines, costs of collection and enforcement, court costs and interest. Subsection (c) adds that recording of the master deed constitutes record notice and perfection of this lien and that no further recordation of any claim of lien is required. A title search will therefore never show a separate condominium lien instrument.

The priority rule is the limit that actually matters. Under § 6(c) the lien is prior to everything except encumbrances recorded before the master deed, a first mortgage recorded before the assessment went delinquent, and municipal tax liens. It then leapfrogs even that first mortgage, but only to the extent of the common expense assessments based on the adopted budget which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien, together with costs and reasonable attorneys' fees incurred in the action. The statute measures that window backwards from the institution of an action, not from the first missed payment and not from a fixed calendar date, and it speaks of "an action" rather than the action, so the six months is a measure tied to when suit is brought.

The statute then subtracts. The priority amount shall not include any amounts attributable to special assessments, late charges, fines, penalties, or interest. A board that has piled fines and late charges onto a delinquent unit still holds a lien for all of it under § 6(a)(ii), but only the regular budgeted common expenses from that six-month window jump the mortgage. One dated cap survives in the text: attorneys' fees incurred before January 1, 1993 that take priority over the first mortgage are limited to no more than two thousand five hundred dollars.

Two notices govern the run-up. Once any portion of an owner's share has been delinquent for at least sixty days, the organization shall send a notice of the amount to the unit owner by certified and first class mail, and the same notice to the first mortgagee if that mortgagee has told the organization its name and address. Thirty days before filing an action, a further notice of the intention to file must go to the first mortgagee on the same terms. Missing either notice does not destroy the six-month priority, but § 6(c) says the priority amount then excludes any costs or attorneys' fees incurred in the action, which is a targeted and expensive consequence.

Massachusetts also gives the first mortgagee a way to stop enforcement by paying. If the mortgagee agrees in writing that a priority lien exists without an action being commenced, and pays within 60 days both the six months of delinquent regularly recurring budgeted common expenses that would have been the priority amount and the organization's costs and reasonable attorney's fees, and then pays all future common expenses within 30 days of their due dates, the organization shall take no further action to enforce its priority liens against that unit. Special assessments for improvements made under § 18 are excluded from what the mortgagee must pay. If the 60-day or 30-day payments are missed, the organization may resume enforcement. On written request the organization must give the mortgagee a written statement of the actual dollar amounts within ten days, the mortgagee then has 14 days to sign the agreement, and the organization must hold off for 24 days from the request or 14 days from the mailing of the statement, whichever is less, unless it has notice of a foreclosure sale actually scheduled within 30 days.

Before any sale there is a cheaper remedy. If an owner is 25 days late, § 6(c) lets the organization collect the tenant's rent directly, subject to the rights of a first mortgagee of record. Notice must go to the owner by a delivery method producing a signed receipt, the owner has ten days to file a written response signed under the pains and penalties of perjury with a cancelled check or receipt, and if the response knowingly misrepresents a material fact the organization may recover three times the amount found owing. Retaliation against the tenant is barred and any waiver of the section in a lease is void as against public policy.

Foreclosure itself is a court process. Section 6(c) directs that the lien be enforced in the manner provided in G.L. c. 254, §§ 5 and 5A. Section 5 requires a civil action in the Superior Court for the county, or the District Court for the judicial district, where the land lies, and an attested copy of the complaint containing a description of the property and a statement of the amount due must be filed and recorded in the registry of deeds within thirty days of commencement or the lien is dissolved. Section 5A then provides that once the amount has been established by a court, the court shall enter an order authorizing sale, and no sale is effectual unless notice was published once in each of three successive weeks with the first publication not less than twenty-one days before the sale, in a newspaper of the town or county. The statute prints the required auction notice under the heading SALE OF REAL ESTATE UNDER GLM 183A:6. Section 6(c) also preserves the alternatives: an action to recover the sums as a debt, and a deed in lieu of enforcement of the lien.

Delinquency exposes a Massachusetts unit owner on two fronts at once. c. 183A, § 6(b) the owner is personally liable for all sums assessed for his share of the common expenses including late charges, fines, penalties and interest, and all costs of collection including attorneys' fees, so the association can sue the owner personally as well as proceed against the unit. c. 254, § 5 in the Superior or District Court where the land lies, and must record an attested copy of the complaint in the registry of deeds within thirty days of commencement or the lien dissolves.

After judgment the court enters an order of sale under § 5A, and the auction must be advertised once in each of three successive weeks with the first publication at least twenty-one days ahead. Rent diversion under § 6(c) can begin much earlier, at twenty-five days delinquent, and a knowingly false response to the association's notice exposes the owner to treble the amount found owing plus the association's costs and reasonable attorneys' fees. On the association's side, failing to send the sixty-day delinquency notice or the thirty-day notice of intent to file does not cost it the six-month priority, but it does strip costs and attorneys' fees out of the priority amount.

Under § 6(d) a recorded statement of the amounts unpaid discharges the unit from any lien for other sums then unpaid, and the association must furnish that statement within ten business days of a written request on payment of a reasonable fee, with no fee chargeable to a mortgagee that has given notice of intent to foreclose.