Q. I am the president of an association in Massachusetts. We have been under the impression that if an owner is delinquent in paying a monthly fee that an automatic lien is created on the property, thus preventing such owner from voting on association matters and stopping him/her from running for a trustee position. Is this correct or must there be language in our documents stating the same?
—Laying Down the Law
A. “There are really two questions here,” says Attorney Clive D. Martin of the law firm of Robinson & Cole LLP in Boston. Firstly, as regards the association’s lien on the unit: the Condominium Act, M.G.L. chapter 183A, section 6(a)(1) provides that the condominium association has an automatic lien on a unit for any common expense assessment levied against that unit from the time the assessment becomes due. Subsection (c) of section 6 provides that the lien is perfected when the master deed of the condominium is recorded. However, even though the lien is automatically perfected at the time the master deed is recorded, and becomes effective whenever payment falls due, if a unit owner defaults in paying common area charges the association still has to enforce its lien by means of a lien action under section 6(c) of the statute. This requires the familiar enforcement process: letter notification of amount due after 60-days delinquency, 30-day notice letter prior to initiation of lawsuit, followed by lien enforcement action in the Superior Court or District Court. “All of the foregoing procedures regarding the lien are written into the statute. As to the association’s ability to prevent a delinquent owner from voting or running as trustee, no such provisions are found in the statute. The place for such additional restrictive provisions is in the condominium’s documents. The statute (section 6(c)) specifically provides that an association may adopt or amend its master deed, trust, by-laws or rules and regulations “to provide additional protections, remedies, or rights for said organization.” That is where the bar to a delinquent owner’s voting or running for office or holding office is to be found, and if it is not in the condo docs then the association cannot apply that remedy. The association always has the option of amending the condo docs by vote of the owners, or— which is probably more easily accomplished—the trustees can vote to incorporate the rule as one of the rule and regulations of the association.”