Understanding The Ins and Outs of HOA Fees

As an owner of a property in the community, you are obligated to pay maintenance assessments, commonly referred to as your “HOA fees.” This is a legal obligation, found in the deed to your property.

Why Are Homeowners Obligated To Pay HOA Fees?

First, it’s important to understand why you are obligated to pay these fees. Homeowners’ associations typically are formed to manage any property in the community that is owned communally, as opposed to individually, such as a playground or building hallways.

Whether an HOA is made up of a condominium building, townhouses, or single-family homes, the responsibilities generally include the same type of tasks – maintain landscaping, employ property managers, maintain shared private roads or driveways, arrange trash removal, operate a swimming pool, and the like.

The HOA of a condo building may have additional tasks, such as paying utilities for common areas, providing cable or internet for the building, maintaining internal pipes, or operating a laundry room. All of these responsibilities cost money.

Thus, the HOA looks to the individual owners, by way of an “assessment” of a share of the total costs. As an owner of a property in the community, you are obligated to pay these assessments, commonly referred to as your “HOA fees.” This is a legal obligation, found in the deed to your property.

As with all things HOA-related, the specifics of how these fees are assessed, how they are collected, and what happens if you default will be found in the relevant state law and the HOA governing documents, specifically in the Covenants, Conditions, & Restrictions (CC&R) document and in the by-laws. Those documents also will detail the HOA’s responsibilities for maintaining the community.

Types of HOA Fees

There are two types of HOA fees you may encounter.[1] First, there are “regular dues” – this is the amount you pay on a regular basis, such as monthly or quarterly, for the routine operation and maintenance of the community.

The second type is known as a “special assessment,” which usually is a one-time fee charged to the homeowners for special projects. For example, if your community has a swimming pool that needs to be relined, or if the condo building needs a new roof, that cost likely will be a special assessment.

A special assessment may also be used in an emergency; for example, if a flood washes out a condo parking lot.[2] Sometimes, the fees are assessed against all properties equally; in other communities, they may be weighted, such that owners of larger pieces of property pay a higher share of the total fees.

How the amount of regular fees and the timing and amount of any special assessments are determined will be dictated by the HOA governing documents. In many HOAs, they are voted on by all the members, although in some HOAs, only the board members have a say.

As mentioned above, as a homeowner in the community, you are legally obligated to pay the HOA fees. This obligation will be included in the deed to your property, and the details will be spelled out in the HOA governing documents. It is not easy to challenge these fees, which is why it’s important that you understand the amount and timing of the fees before you purchase the property.

If you object to the amount of either the monthly dues or a special assessment, there may be procedures for doing so outlined in the HOA governing documents. If not, you should consider consulting a lawyer who can advise you of your legal rights and, if necessary, bring a lawsuit against the HOA to challenge the fees.

What Happens If You Fall Behind

Ideally, you will always pay your dues on time and in full, but sometimes circumstances arise that prevent people from honoring their obligations. If that happens to you, it’s important to understand the potential consequences, and how to mitigate the damage.

The most important thing to do is to communicate with your HOA if you think you will not be able to pay the HOA fees on time. The HOA may be willing to waive some of the late fees or interest they normally charge, if you maintain an open and polite dialogue while you work to get up to date.

The HOA will follow the procedures set forth in the governing documents to collect delinquent fees. Most likely, this will involve sending you letters demanding payment. The HOA likely will start charging late fees and/or interest at this point.

Next, the HOA has three options available: hire an attorney or collections agency to collect from you; bring a lawsuit against you; or file and then foreclose upon a lien on your property.

Most HOAs will take the first option, as it is the easiest and least expensive. If the HOA pursues the debt through the first option, you have rights under the Fair Debt Collections Practices Act (FDCPA).[3]

HOA Collections: Rights Of Homeowners Under The FDCPA

The Fair Debt Collection Practices Act (FDCPA) was enacted to protect individuals from unscrupulous, dishonest, and abusive collections practices. It requires someone attempting to collect a debt to follow certain procedures and to abide by certain rules.[4]

Many states have adopted their own version of the FDCPA, and both state and federal courts have ruled on its applicability. Generally, the actions of both the HOA and the law firm or collection agency hired to collect the debt are governed by the FDCPA; an attorney licensed in your state can help you understand the specifics of its application in your area.[5]

The FDCPA dictates the manner in which a debt collector can communicate with you. For example, they can only contact you between 8 a.m. and 9 p.m. (unless you agree to a call at another time), and they must stop contacting you at work if you ask them to. They cannot discuss your debt with a third party without your permission.

Additionally, the law requires that they provide certain information to you. They must inform you that they are attempting to collect a debt, and must provide you with a “validation notice” (which informs you of the amount of the debt, to whom it is owed, and how to repay it) within five days of initially contacting you. If you owe the debt, this is the time to work with the debt collector to develop a payment plan, if possible.

However, if you are having a dispute with the HOA about the amount you owe, you should protest the debt; this will give you some time during which you may be able to resolve the dispute. After you receive the validation notice, you have thirty days to protest the debt. You can protest either the amount of the debt owed, or that you owe it at all, but you must do so in writing.

After you protest the debt, the law firm or collection agency cannot contact you again unless and until they verify the debt. The verification notice should include the amount of the debt, the date it was incurred, the name of the original creditor (in this case, the HOA), and proof that the debt was legally sold or assigned to the law firm or collection agency.

If the debt collector cannot verify the debt, they must stop contacting you altogether. Generally, it will not be difficult for the debt collector acting on behalf of an HOA to verify the debt, as the fees due are rather straightforward. Protesting the debt will not relieve you of your obligations to pay, though – the HOA may take other action, such as bringing a lawsuit against you.

The FDCPA also prohibits harassing, deceptive, or abusive practices when attempting to collect a debt. For example, a debt collector cannot pretend to be someone else in an attempt to gather information about you and your finances. Nor can a debt collector threaten you with arrest or call you names.

If you believe that the HOA or the debt collector (whether an attorney or collection agency) has violated the FDCPA, you can bring a claim against them. In some circumstances, you may be entitled to money damages. However, as a rule, you still will owe the original debt.

The best practice is to pay your HOA fees on time and in full. If you think the fees are inappropriate, the best way to challenge or change the fees is to attend your HOA meetings, where the budget and special assessments are discussed and voted upon, or even to run for a seat on the board.

FOOTNOTES:

[1] There is a third type of payment you may have to make to your HOA – a fine imposed if you violate community rules. HOA fines are different than HOA fees, and are not the subject of this article.

[2] For an example of a CC&R section regarding the imposition of special assessments, see http://www.calassoc-hoa.com/Homeowners-Association/General-Information/Sample-Covenants-Conditions-Restrictions.aspx, section 4:

As allowed by California law, and as reasonably required by need, the Board of Directors may for any fiscal year, impose special assessments which in the aggregate do not exceed five percent (5%) of the budgeted gross expenses for that fiscal year. For any special assessment that exceeds five percent (5%), the Board must obtain the approval of a majority of the members at a duly convened meeting where a quorum of fifty-one percent (51%) is present. . ., except in an emergency situation as defined by [state law].

[3] See, e.g., Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984 (9th Circ. 2017) (law firm hired by HOA to collect delinquent HOA fees was attempting to collect a “debt” and must abide by the FDCPA).

[4] The text of the FDCPA can be found here: https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text

[5] Compare Agrelo v. Affinity Management Services, LLC, 841 F.3d 944 (11th Circ. 2016) (both the HOA and the law firm hired to collect delinquent fees were governed by the Florida version of the FDCPA) with Mendez v. Fiesta Del Norte Home Owners Association, Case No. 2:15-cv-00314 (D. Nev. July 7, 2016) (the HOA itself was not a “debt collector” under the FDCPA).