In most jurisdictions, state HOA laws empower homeowners’ associations to collect assessments. Assessment payments are also mandatory under almost all community Declaration of Covenants, Conditions, and Restrictions (also known as the CC&Rs or Declaration).

An HOA Declaration acts as a contract between the association and its members, and, in most states, HOA membership is mandatory for owners of homes in HOA communities. The standard language of most declarations that create mutual obligations between the property owners and community associations state:

Declarant hereby declares that all of the properties described above shall be held, sold and conveyed subject to the following easements, restrictions, covenant, and conditions, which are for the purpose of protecting the value and desirability of, and which shall run with, the real property, be binding on all parties having any right, title or interest in the described properties or any part thereof, their heirs, successors, and assigns, and shall inure to the benefit of each owner thereof.

Thus, when homeowners purchase a property subject to an HOA, they are deemed to have accepted the terms of the declaration—including the duty to pay assessments. A generic example of the language used in most association Declarations is as follows:

COVENANT FOR MAINTENANCE ASSESSMENT

The Declarant, for each lot owned within the Properties, hereby covenants, and each owner of any Lot by acceptance of a deed therefor . . . is deemed to covenant and agree to pay the association. . .annual assessments or charges…special assessments for capital improvements, such assessments to be established and collected as hereinafter provided. The annual and special assessments, together with interest, costs, and reasonable attorney’s fees shall be a charge on the land and shall be a continuing lien upon the property against which each assessment is made. Each such assessment, together with interest, costs, and reasonable attorneys’ fees, shall also be the personal obligation of the person who was the owner of such property at the time when the assessment fell due. The personal obligation for delinquent assessments shall not pass to his successors in title unless expressly assumed by them.

Based on the above, the obligation to pay the assessments is the responsibility of the homeowner—specifically, the person(s) whose name is on the deed. See, e.g., Village of Pheasant Run Homeowners Ass’n, Inc. v. Kastor, 47 S.W.3d 747 (Tex. App.—Houston [14th Dist.] 2001); Castle Point Homeowners Assn. v. Simmons, 333 Ga. App. 501, 505-506, 773 S.E.2d 806 (2015).  

Importantly, a member’s obligation to pay assessments is independent of the HOA’s duties. See Spanish Court Two Condo. Assn. v. Carlson, 12 NE 3d 1 (Ill. 2014); Blood v. Edgar’s, Inc., 632 NE 2d 419 (Mass. App. Ct., 1994). That is, a homeowner cannot use an HOA’s alleged failure to perform its duties (such as maintaining common areas) as a defense to a collection action brought by the association.

Moreover, most association declarations have offset language prohibiting homeowners from withholding HOA fees due to non-use of the common areas or abandonment of his or her lot. The language used in most declarations, for example, is as follows:

NO OFFSETS 

No Owner may waive or otherwise escape liability for the assessments provided for herein by non-use of the Common Area or abandonment of his Lot.

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