Q. In a situation wherein a person refuses to pay maintenance fees, what can be done? Every time we ask whether we can cut off snow removal from the person's driveway, we are told that it could be considered a "gray area." What if the person slips and falls? Will they sue the snow removal company? Will they sue management? We asked counsel if we could put up notice on the main entry doorway to alert others of the person's default, hopefully embarrassing them into paying, but we were then told that this too could be a gray area. We have also gotten notice that this home has gone into foreclosure, but it's taking an extremely long time. It has been almost three years. The person does not even work, so we cannot garnish wages. They are not tenants, so we cannot have them evicted. They will not take phone calls. They ignore every effort. We hired a collection company, only to see it give up. What can we and others in this type of situation do?
—Frustrated in Massachusetts
A. “First, I assume that maintenance fees are the equivalent of a unit owner’s monthly common fee,” says Attorney Mark A. Rosen of the law firm of Goodman, Shapiro & Lombardi, LLC in Dedham, Massachusetts. "In Massachusetts, the non-payment of one’s monthly common fees is governed by statute, in particular, M.G.L. c. 183A, section 6. Once a unit owner is delinquent by more than sixty (60) days, a procedure must be followed with notices to the unit owner, the mortgagee, if there is one and any other entity or individual who has a encumbrance of record on the title to the unit. Ultimately, if the delinquency is not paid within certain prescribed time periods after notice, a lawsuit is filed to obtain a judgment, an assessment of damages (in Massachusetts legal fees and costs incurred by the condominium to collect the arrearage are part of the lien) and an order for sale of the unit by foreclosure at a public auction. In Massachusetts, six (6) months of delinquent common fees take priority over even the first mortgage and subsequent liens and/or encumbrances except liens for taxes or government fees. Consequently, more often than not, the first mortgagee will “step up” and pay the delinquency rather than risk having less than the full amount of its mortgage paid at foreclosure, i.e., the mortgages and subsequent liens and/or encumbrances are extinguished by the foreclosure sale.
"With all of the above said, irrespective of whether this condominium is in a state that has a lien enforcement statute and procedure (collection of delinquent common fees is state specific), as to the other questions raised I would advise as follows.
1. I would not recommend withholding any services or amenities from the delinquent unit owner, e.g. snow removal, unless it is specifically provided for in the governing documents of the condominium, e.g., use of the pool or club house, in order to avoid any potential claim for retaliation or personal injury as a consequence of not having access to one’s unit.
2. I would not recommend publicizing in any manner the identity of the delinquent unit owner again in order to avoid a potential claim for defamation or violation of applicable federal and/or state laws on privacy.
3. If the unit is in foreclosure, I would recommend the governing body of the condominium take immediate steps to also place a lien on the unit for the unpaid common fees pursuant to the state’s laws/procedures, which will probably necessitate retaining an attorney who is familiar with the law for collecting delinquent common fees in the state in which the condominium is located."