Q I am three months behind in my homeowner's association payments. Can the  condominium foreclose on my unit? My mortgage payments are up to date, and I  called my lender who said no, they cannot foreclose. What do you say? I wrote a  letter to the board asking for a payment plan earlier this year, but no  response as of yet. I know I owe the money but I was sick for a period of time.  I am planning to pay the back fees with my taxes.  

 —Behind in Back Bay  

A “By law, you are obligated to pay the condominium assessments when due, and the  condominium association is under no obligation to enter into a payment plan  with you,” says attorney Alan E. Lipkind, a partner at the Boston-based law firm of Burns & Levinson LLP in the Business Litigation, Condominium Law, Design & Construction and Real Estate Groups. “Notwithstanding your difficult personal circumstances, a condominium association  is not a bank with funds available to carry your share of the common expenses  until you can repay them. Common expenses need to be paid, regardless of the  personal circumstances of any particular unit owner. In all likelihood, the  only funds available to the association are those paid by your fellow unit  owners, based upon an annual budget designed to meet the anticipated common  expenses. Accordingly, if the condominium association refuses to enter into a  payment plan with you, perhaps you can borrow the funds needed to satisfy your  obligation to the condominium association from a third party, and repay the  lender with your tax refund.  

 “By Massachusetts statute, a condominium association has an automatic lien  against the unit of a nonpaying unit owner for each unpaid and properly adopted  assessment. A lien is an interest in real property, in this case, your condominium unit. Like a bank that makes a mortgage loan, a condominium association can sell a  unit if the owner does not comply with payment obligations. The sale proceeds  are used to pay all lien creditors in order of their priority under the law,  with any surplus going to the unit owner.  

 “The priority afforded to a condominium association’s lien as compared to other liens that may exist on your unit, and the procedure  required to foreclose a condominium association’s lien, are governed by statute. A condominium association’s lien has priority over all other liens except for liens recorded prior to the  master deed, a first mortgage recorded before the delinquent assessment, and  liens for real estate taxes and other municipal assessments or charges. A  condominium association’s lien has priority over a first mortgage to the extent of six months of common  assessments as well as costs incurred enforcing the lien, including litigation  and foreclosure sale costs.  

 “In order for a condominium association to foreclose its lien on a unit, and  preserve its priority over the first mortgage, it must comply with certain  notice provisions described in the statute. One of these notices is referred to as the sixty day notice. By statute, in order to foreclose its lien, at some point after a unit owner is  sixty days behind on paying assessments, i.e., two monthly payments have been  missed, the condominium association must give notice to both the first  mortgagee and to the unit owner. A unit owner can expect that once this occurs, his or her mortgage lender will  be getting in touch. Many mortgage lenders in fact will pay the condominium association the amount  that a unit owner owes that is protected by the condominium association’s limited first priority lien, and seek to collect that from their borrower,  i.e., the unit owner.  

 “The other notice that must be sent is called a thirty day notice. By statute, at  least thirty days before filing suit to enforce the lien, the condominium  association must give notice of its intent to file suit to both the first  mortgagee and to the unit owner. Once the condominium association gives these two notices, it is free to commence  its lien enforcement action in the appropriate court. If the court determines the unit owner to be liable, it will issue an order to  sell. This allows the condominium association to sell a unit in order to recover the  debt owed by the unit owner.  

 “Although boards are generally composed of reasonable people that may want to  give a unit owner in unfortunate circumstances a break, the board must act in  the best interests of the entire organization of unit owners. One factor that boards often take into account is that if a unit owner slips  behind more than six months, the condominium association may well lose its  priority position over a first mortgage. Further, delinquencies may negatively  impact the ability of other unit owners in a condominium to refinance or sell  their units, as the secondary mortgage market looks negatively at too high a  delinquency rate.”