HOA needs legal advice to deal with delinquent owner

Q: We are a relatively small homeowners association and have only a few delinquent homeowners. I am writing, as the vice-president of a local HOA, to ask about our options.

In working with our management company, I believe we have received inaccurate advice. One delinquent homeowner has used bankruptcy for the excuse to cease paying HOA dues and also in not maintaining the property. This person also will not attend hearings.

Not being a legal person I do not know how long a bankruptcy is good for or how long we have to wait to be able to take some kind of action. The surrounding neighbors have filed complaints with the board, asking why nothing is being done.

Our covenants, conditions and restrictions state that we have the right to enter the property and resolve the issues at the homeowner’s expense. Our management company stated that we should just cut the lock on the homeowners gate and proceed. I feel that would be an invasion of the homeowners property. I do not believe it would be legal. I called the state’s Ombudsman’s Office and was referred to the Nevada Real Estate Board and they said that we would have to fill out an intervention form and submit that. She said that may take up to 14 to16 months.

This has been going on between 2½ and three years. We have attempted to serve the homeowner with a certified letter and the homeowner has not responded. We have taken the step to fine the homeowner and this in itself has caused the arrears to mount rapidly.

With all of this information, is there any way we can proceed legally? We are trying to resolve this situation.

A: I would not recommend cutting the lock off the gate and entering into the homeowner’s property. Your board definitely needs to speak with legal counsel who understands the bankruptcy laws and who can provide a game plan for the association.

You need to take two immediate steps:

1. Have the collection company’s representative meet with the full board to discuss this homeowner’s account in detail.

2. You need to speak with your legal counsel to discuss how bankruptcy works.

The collection company’s representative can give you first-hand information as to the status of this account. Is the homeowner is delinquent with his or her mortgage payment, and if so, has the bank tried to “lift the stay” (which essentially would move it out of bankruptcy). Has the collection company submitted a motion for “post-petition payment”? If not what would it cost to ask the court for it?

Does your current collection company offer that service or do you need to talk to your association’s legal counsel? In essence, post-petition payment would allow the association to at least receive monthly payments during this period where the bankruptcy has not been dismissed or where its plan has not been accepted by all of the parties.

Bankruptcies can take years before they are resolved. Find out the name of the attorney who is representing the delinquent homeowner in bankruptcy court. Contact that attorney to discuss the various issues pertaining to the maintenance of the house and see what she can do to assist the association, as well as seeking post-petition payments.

Barbara Holland is a certified property manager, broker and supervisory certified association manager. Questions may be sent to holland744o@gmail.com.

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