HOA and condo association foreclosure in West Virginia

HOA and condo collection rules in West Virginia, step by step

• Which West Virginia law covers your community

  Before you answer any letter

  The Uniform Common Interest Ownership Act, chapter 36B of the West Virginia Code, applies to common interest communities created after it took effect in 1986. Its lien section, 36B-3-116, also applies to communities created earlier for events after that date, except some small preexisting communities. Older condos may also be governed by chapter 36A, Condominiums and Unit Property.

  W. Va. Code §§ 36B-1-201, 36B-1-204

• The lien covers assessments and fines from the day they are due

  From the due date

  The association has a lien for any assessment against your unit and for fines against you, from the time each becomes due. Unless the declaration says otherwise, fees, late charges, fines and interest are collected the same way as assessments.

  W. Va. Code § 36B-3-116(a)

• Notice to you and a recorded lien notice

  Before the lien binds a later buyer

  The association must notify you by certified or registered mail, return receipt requested, or as allowed under § 56-2-1. Against a later buyer who does not know about the debt, the lien is discharged unless the association records a lien notice with the county commission clerk listing the unit, the owners, and each unpaid amount with its due date. When you pay, the association must record a release at its own cost.

  W. Va. Code § 36B-3-116(h)

• Ask for a binding statement of what you owe

  Answer due within 10 business days

  If you ask in writing, the association must give you a statement of unpaid assessments within 10 business days, and the statement binds the association, its board and every owner. Use it to check the association's ledger before you pay or set up a plan.

  W. Va. Code § 36B-3-116(g)

• Up to 6 months can come ahead of your first mortgage

  If the association enforces its lien

  A first mortgage or deed of trust recorded before the assessment became delinquent is generally ahead of the association's lien, except for up to six months of regular budget assessments that would have come due before the association started enforcing. That is why your lender may pay the association and add the cost to your loan. You still owe your mortgage.

  W. Va. Code § 36B-3-116(b)

• A 3-year limit, and attorney fees for the winner

  Within 3 years after the assessment is fully due

  The lien ends unless the association starts proceedings to enforce it within three years after the full assessment became due. The association can also sue you for the money or accept a deed in lieu, and a judgment must award costs and reasonable attorney fees to whoever wins. Section 36B-3-116 does not spell out a foreclosure procedure or a payment plan right, so read your declaration and collection policy.

  W. Va. Code § 36B-3-116(d), (e), (f)

• State debt collection rules apply to HOA collections

  Whenever the association or its collector contacts you

  In Fleet v. Webber Springs Owners Association (2015), the Supreme Court of Appeals of West Virginia held that HOA assessments for maintaining common areas are "claims" under the debt collection part of the West Virginia Consumer Credit and Protection Act, so its unfair debt collection rules apply. If you think the collection is abusive or misleading, keep every letter and call log and talk to legal aid.

  W. Va. Code § 46A-2-122; Fleet v. Webber Springs Owners Ass'n, No. 14-0637 (W. Va. 2015)

Common questions in West Virginia