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Q&A: Helpless in New Hampshire?

Q I am a volunteer association board member in New Hampshire and we don’t have a management company. We have a problem with a unit owner who owes us at least $2,000 at this point. Because she is still paying her mortgage or owns her home outright (we don’t know which one), there is nothing we can do to collect that money. Right? We went to court, and have a lien, but if she never tries to sell, or isn’t foreclosed upon, are we are helpless to get that money back?

— Helpless in New Hampshire

A No, you are not helpless to seek collection of condominium assessments. In fact, there are several options available under New Hampshire state law. Pursuant to R.S.A. 356-B: 46 III, the association should file a lien for unpaid assessments within six months of the time the assessment(s) became due. So, in order to protect the debt on an ongoingbasis, the association may file liens at six-month intervals if the failure to pay continues.

To the extent that the association files a writ and obtains judgment from the Court, continued action may be taken on that judgment. Ultimately, pursuant to applicable provisions of R.S.A. 529, the association may conduct a Sheriff's Sale to foreclose upon the delinquent unit owner. It should be noted that there is a one-year right of redemption relative to a Sheriff’s Sale.

If the unit owner rents the unit, the association may pursue Attachment of Rents in accord with R.S.A. 356-B: 46-a. If the association is able to collect rent monies from a tenant, the same may be used to satisfy the delinquent unit owner’sfinancial obligations to the association.

Yet another option is presented by R.S.A. 356-B: 46 IX. Pursuant to this provision, an association may terminate common privileges and services of the delinquent unit owner/unit. Utilizing this powerful provision, an association could require a delinquent owner to pay his/her account current in order to gain access to the pool or clubhouse or to receive landscaping or other common services.

One fairly recent New Hampshire case upheld the association’s ability to terminate use of the unit’s driveway via placement of a “Jersey” barrier. An association’s termination of services often provides strong motivation for a unit owner to make arrangements regarding payment of the delinquent assessments.

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Comments

  • Under RSA 356-B:46-a, the last paragraph states "notwithstanding any other provision of this chapter, a vote of a majority of those attending an annual mmeting of the unit owner's association, in person or by proxy, shall be necessary to adopt the provisions of this section as a part of the association's declaration or bylaws or both". I live in NH and we have not formally adopted this provision by a unit owner vote; therefore, I don't think we can use 46-a. Another board member pointed out that in our by-laws it states "The assessment and collection of the common expenses from the unit owners, and the enforcement of liens to secure unpaid assessments, pursuant to RSA section 356-B:46, as amended from time to time, or any successor statute". Because of this, he thinks that we can utilize 46-a. Based on the above, do we or don't we need a unit owner majority vote? Thanks