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Articles Posted in Default & Foreclosure

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This economic downturn has dealt a serious blow to the assessment revenue of Associations throughout California. Almost every Association is dealing with several delinquent homeowners. One Board Member recently submitted a question on our site asking what happens to an owner’s delinquent assessments if the owner sells his property in a short sale.

In an effort to avoid foreclosure, an owner may elect to sell his property in a “short sale” by selling the property for less than is owed on the mortgage. Because the lender will take a loss on the property, the lender ‘s approval is required before the sale can take place.

Any outstanding liens on the property must be satisfied for the sale to proceed. Provided that the Association has liened property for the delinquent assessments, then it stands in a strong position to recoup at least some money.

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Though the Association is under no obligation to release its lien, it should realize the benefit of having a new, dues-paying owner in the property. The Association should negotiate with the parties involved by seeking contribution from the lender, buyer, and realtors in exchange for the Association waiving some of the late fees and interest that may have accrued on the outstanding assessment amount. This type of reasonable approach will (1) help the Association recover at least some money, (2) provide the Association with a dues-paying owner, and (3) help prevent the new owner from harboring resentment for the Association.

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foreclosure_pic.jpgIn an effort to collect unpaid assessments, Associations have the power pursuant to California Civil Code Sections 1367(a) and 1367.1 to record a lien on the offending property and subsequently enforce that lien through foreclosure. After the foreclosure sale, California Code of Civil Procedure § 729.035 states that “the sale of a separate interest in a common interest development is subject to the right of redemption…if the sale arises from a foreclosure by the association of a common interest development…” This right of redemption allows the delinquent homeowner to redeem the foreclosed property from its purchaser by paying the requisite “redemption price” within 90 days. California Civ. Code § 1367.4.

The recently decided case of Barry v. OC Residential Properties, LLC (2011), holds that if such a homeowner wishes to exercise her right of redemption, the redemption price should include any repair costs paid by the purchaser that were “reasonably necessary for the preservation of the property.”

In Barry, the Plaintiff redeeming homeowner challenged the redemption price because it included over $17,900 in expenses that the Defendant purchaser paid for maintenance and repair work on the unit after the foreclosure sale, an electric bill, and interest on the foreclosure sale price. In ultimately affirming the validity of the redemption price, the court in Barry relied on a declaration given by one of Defendant’s project managers that concluded that the unit was “in need of repair and rehabilitation” and that the “repairs made were necessary to prevent further damage to the property.”

To read the Barry case, click here.