Bill Text: AZ HB2730 | 2022 | Fifty-fifth Legislature 2nd Regular | Introduced
Bill Title: Homeowners' associations; assessment liens
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2022-02-10 - House read second time [HB2730 Detail]
Download: Arizona-2022-HB2730-Introduced.html
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REFERENCE TITLE: homeowners' associations; assessment liens |
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State of Arizona House of Representatives Fifty-fifth Legislature Second Regular Session 2022
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HB 2730 |
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Introduced by Representative Dalessandro
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An Act
amending sections 33-1256 and 33-1807, Arizona Revised Statutes; relating to condominiums and planned communities.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 33-1256, Arizona Revised Statutes, is amended to read:
33-1256. Lien for common expense assessments; priority; mechanics' and materialmen's liens; judgment liens; applicability; definition
A. The association has a lien on a unit for any common expense assessment that is levied against that unit from the time the assessment becomes due. The association's lien for common expense assessments, for may include charges for late payment of those assessments, for reasonable collection costs or fees incurred or applied by the association on DELINQUENT common EXPENSE assessments, for reasonable interest charges as authorized in the declaration and for reasonable attorney fees and costs incurred and awarded by the court in any action with respect to those assessments. If a common expenses assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment of the assessment becomes due.
B. The common expense assessment lien may be foreclosed in the same manner as a mortgage on real estate but may be foreclosed only if the owner has been and remains delinquent in the payment of monies secured by the lien, excluding reasonable collection fees, reasonable attorney fees and charges for late payment of and costs incurred with respect to those assessments, common expense assessments for a period of one year or in the amount of $1,200 or more, whichever occurs first, as determined on the date the action is filed.
C. Notwithstanding any provision in the CONDOMINIUM DOCUMENTS, fees, charges, late charges, monetary penalties and interest charged pursuant to section 33-1242, subsection A, paragraphs 10, 11 and 12, other than charges for late payment of assessments, are not enforceable as common expense assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment of the assessment becomes due. The association has a lien for fees, charges, late charges, other than charges for late payment of assessments, monetary penalties or interest charged pursuant to section 33-1242, subsection A, paragraphs 10, 11 and 12 after the entry of a judgment in a civil suit for those fees, charges, late charges, monetary penalties or interest from a court of competent jurisdiction and the recording of that judgment in the office of the county recorder as otherwise provided by law. The association's judgment lien for monies other than for assessments, for charges for late payment of those assessments, for reasonable collection fees and for reasonable attorney fees and costs incurred with respect to those assessments as prescribed in this subsection may not be foreclosed and is effective only on conveyance of any interest in the real property.
B. D. A lien for common expense assessments, for charges for late payment of those assessments, for reasonable collection fees and for reasonable attorney fees and costs incurred with respect to those assessments under this section is prior to all other liens, interests and encumbrances on a unit except:
1. Liens and encumbrances recorded before the recordation of the declaration.
2. A recorded first mortgage on the unit, a seller's interest in a first contract for sale pursuant to chapter 6, article 3 of this title on the unit recorded prior to before the lien arising pursuant to subsection A of this section or a recorded first deed of trust on the unit.
3. Liens for real estate taxes and other governmental assessments or charges against the unit.
C. E. Subsection B D of this section does not affect the priority of mechanics' or materialmen's liens or the priority of judgment liens for other assessments made by the association. The lien under this section is not subject to chapter 8 of this title.
D. F. Unless the declaration otherwise provides, if two or more associations have liens for common expense assessments created at any time on the same real estate, those liens have equal priority.
E. G. Recording of the declaration constitutes record notice and perfection of the lien for common expense assessments, for charges for late payment of those assessments, for reasonable collection fees and for reasonable attorney fees and costs incurred with respect to those assessments. Further recordation of any claim of lien for common expense assessments under this section is not required.
F. H. A lien for unpaid common expense assessments is extinguished unless proceedings to enforce the lien are instituted within six years after the full amount of the assessments becomes due.
G. I. This section does not prohibit:
1. Actions to recover sums for which subsection A or C of this section creates a lien.
2. An association from taking a deed in lieu of foreclosure.
H. J. A judgment or decree in any action brought under this section shall include costs and reasonable attorney fees for the prevailing party.
I. K. The association on written request shall furnish to a lienholder, escrow agent, unit owner or person designated by a unit owner a statement setting forth the amount of unpaid assessments assessment liens pursuant to subsection A or C of this section against the unit. The statement shall be furnished within ten days after receipt of the request. and The statement is binding on the association, the board of directors and every unit owner if the statement is requested by an escrow agency that is licensed pursuant to title 6, chapter 7. Failure to provide the statement to the escrow agent within the time provided for in this subsection extinguishes any lien for any unpaid assessment then due.
J. L. Notwithstanding any provision in the condominium documents or in any contract between the association and a management company or any other agent of the association, unless the unit owner directs otherwise, all payments received on a unit owner's account shall be applied first to any unpaid current common expense assessments, then delinquent common expense assessments, unpaid charges for late payment of those assessments, unpaid reasonable collection costs or fees, unpaid interest charges and unpaid court-ordered attorney fees and costs incurred with respect to those assessments, in that order, with any remaining amounts applied next to other unpaid fees, charges and monetary penalties or interest and late charges on any of those amounts.
K. For a delinquent account for unpaid assessments or for charges related to unpaid assessments, the association shall provide the following written notice to the unit owner at the unit owner's address as provided to the association at least thirty days before authorizing an attorney, or a collection agency that is not acting as the association's managing agent, to begin collection activity on behalf of the association:
Your account is delinquent. If you do not bring your account current or make arrangements that are approved by the association to bring your account current within thirty days after the date of this notice, your account will be turned over for further collection proceedings. Such collection proceedings could include bringing a foreclosure action against your property.
The notice shall be in boldfaced type or all capital letters and shall include the contact information for the person that the unit owner may contact to discuss payment. The notice shall be sent by certified mail, return receipt requested, and may be included within other correspondence sent to the unit owner regarding the unit owner's delinquent account.
L. Beginning January 1, 2020, except for condominiums that have fewer than fifty units and that do not contract with a third party to perform management services on behalf of the association, the association shall provide a statement of account in lieu of a periodic payment book to the unit owner with the same frequency that assessments are provided for in the declaration. The statement of account shall include the current account balance due and the immediately preceding ledger history. If the association offers the statement of account by electronic means, a unit owner may opt to receive the statement electronically. The association may stop providing any further statements of account to a unit owner if collection activity begins by an attorney, or a collection agency that is not acting as the association's managing agent, regarding that unit owner's unpaid account. After collection activity begins, a unit owner may request statements of account by written request to the attorney or collection agency. Any request by a unit owner for a statement of account after collection activity begins by an attorney or a collection agency that is not acting as the association's managing agent must be fulfilled by the attorney or the collection agency responsible for the collection. The statement of account provided by the attorney or collection agency responsible for the collection shall include all amounts claimed to be owing to resolve the delinquency through the date set forth in the statement, including attorney fees and costs, regardless of whether such amounts have been reduced to judgment.
M. An agent for the association may collect on behalf of the association directly from a unit owner the assessments and other amounts owed by cash or check, by mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, by credit, charge or debit card or by other electronic means. For any form of payment other than for cash or for mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, the agent may charge a convenience fee to the unit owner that is approximately the amount charged to the agent by a third-party service provider.
N. This section does not apply to timeshare plans or associations that are subject to chapter 20 of this title.
O. For the purposes of this section, "common expense assessments":
1. Means the annual, special or supplemental assessments that are payable by all unit owners in the association to maintain all common elements and to account for the budgeted EXPENSEs of the association and the application of reserves, or to fund common element IMPROVEMENTS or long-term MAINTENANCE of common elements, as specified in the declaration.
2. INCLUDES any assessment made on an individual unit owner to pay for the REPAIR of damage to common elements caused by that unit owner or ANY other occupant of the unit owner's residence.
Sec. 2. Section 33-1807, Arizona Revised Statutes, is amended to read:
33-1807. Lien for common expense assessments; priority; mechanics' and materialmen's liens; judgment liens; definition
A. The association has a lien on a unit property for any COMMON expense assessment that is levied against that unit property from the time the assessment becomes due. The association's lien for common expense assessments, for may include charges for late payment of those assessments, for reasonable collection costs or fees incurred or applied by the association on delinquent common EXPENSE assessments, for reasonable interest charges as AUTHORIZED in the DECLARATION and for reasonable attorney fees and costs incurred and awarded by the court in any action with respect to those assessments. If a common expense assessment is payable in INSTALLMENTS, the full amount of the assessment is a lien from the time the first installment of the assessment becomes due.
B. The common EXPENSE assessment lien may be foreclosed in the same manner as a mortgage on real estate but may be foreclosed only if the owner has been and remains delinquent in the payment of monies secured by the lien, excluding reasonable collection fees, reasonable attorney fees and charges for late payment of and costs incurred with respect to those assessments, common EXPENSE assessments for a period of one year or in the amount of $1,200 or more, whichever occurs first, as determined on the date the action is filed.
C. NOTWITHSTANDING any provision in the community DOCUMENTS, fees, charges, late charges, monetary penalties and interest charged pursuant to section 33-1803, other than charges for late payment of assessments are not enforceable as common expense assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment of the assessment becomes due. The association has a lien for fees, charges, late charges, other than charges for late payment of assessments, monetary penalties or interest charged pursuant to section 33-1803 after the entry of a judgment in a civil suit for those fees, charges, late charges, monetary penalties or interest from a court of competent jurisdiction and the recording of that judgment in the office of the county recorder as otherwise provided by law. The association's judgment lien for monies other than for assessments, for charges for late payment of those assessments, for reasonable collection fees and for reasonable attorney fees and costs incurred with respect to those assessments as prescribed in this subsection may not be foreclosed and is effective only on conveyance of any interest in the real property.
B. D. A lien for common expense assessments, for charges for late payment of those assessments, for reasonable collection fees and for reasonable attorney fees and costs incurred with respect to those assessments under this section is prior to all other liens, interests and encumbrances on a unit property except:
1. Liens and encumbrances recorded before the recordation of the declaration.
2. A recorded first mortgage on the unit property, a seller's interest in a first contract for sale pursuant to chapter 6, article 3 of this title on the unit recorded prior to before the lien arising pursuant to subsection A of this section or a recorded first deed of trust on the unit property.
3. Liens for real estate taxes and other governmental assessments or charges against the unit property.
C. E. Subsection B D of this section does not affect the priority of mechanics' or materialmen's liens or the priority of judgment liens for other assessments made by the association. The lien under this section is not subject to chapter 8 of this title.
D. F. Unless the declaration otherwise provides, if two or more associations have liens for common expense assessments created at any time on the same real estate those liens have equal priority.
E. G. Recording of the declaration constitutes record notice and perfection of the lien for common expense assessments, for charges for late payment of assessments, for reasonable collection fees and for reasonable attorney fees and costs incurred with respect to those assessments. Further recordation of any claim of lien for common expense assessments under this section is not required.
F. H. A lien for an unpaid common expense assessment is extinguished unless proceedings to enforce the lien are instituted within six years after the full amount of the assessment becomes due.
G. I. This section does not prohibit:
1. Actions to recover amounts for which subsection A or C of this section creates a lien.
2. An association from taking a deed in lieu of foreclosure.
H. J. A judgment or decree in any action brought under this section shall include costs and reasonable attorney fees for the prevailing party.
I. K. On written request, the association shall furnish to a lienholder, escrow agent, unit owner member or person designated by a unit owner member a statement setting forth the amount of any unpaid assessment liens pursuant to subsection A or C of this section against the unit property. The association shall furnish the statement within ten days after receipt of the request. , and The statement is binding on the association, the board of directors and every unit owner member if the statement is requested by an escrow agency that is licensed pursuant to title 6, chapter 7. Failure to provide the statement to the escrow agent within the time provided for in this subsection extinguishes any lien for any unpaid assessment then due.
J. L. Notwithstanding any provision in the community documents or in any contract between the association and a management company or any other AGENT of the association, unless the member directs otherwise, all payments received on a member's account shall be applied first to any unpaid current COMMON expense assessments, then delinquent common EXPENSE assessments, unpaid charges for late payment of those assessments, unpaid reasonable collection costs or fees, unpaid interest charges and unpaid court-ordered attorney fees and costs incurred with respect to those assessments, in that order, with any remaining amounts applied next to other unpaid fees, charges and monetary penalties or interest and late charges on any of those amounts.
K. For a delinquent account for unpaid assessments or for charges related to unpaid assessments, the association shall provide the following written notice to the member at the member's address as provided to the association at least thirty days before authorizing an attorney, or a collection agency that is not acting as the association's managing agent, to begin collection activity on behalf of the association:
Your account is delinquent. If you do not bring your account current or make arrangements that are approved by the association to bring your account current within thirty days after the date of this notice, your account will be turned over for further collection proceedings. Such collection proceedings could include bringing a foreclosure action against your property.
The notice shall be in boldfaced type or all capital letters and shall include the contact information for the person that the member may contact to discuss payment. The notice shall be sent by certified mail, return receipt requested, and may be included within other correspondence sent to the member regarding the member's delinquent account.
L. Beginning January 1, 2020, except for planned communities that have fewer than fifty lots and that do not contract with a third party to perform management services on behalf of the association, the association shall provide a statement of account in lieu of a periodic payment book to the member with the same frequency that assessments are provided for in the declaration. The statement of account shall include the current account balance due and the immediately preceding ledger history. If the association offers the statement of account by electronic means, a member may opt to receive the statement electronically. The association may stop providing any further statements of account to a member if collection activity begins by an attorney, or a collection agency that is not acting as the association's managing agent, regarding that member's unpaid account. After collection activity begins, a member may request statements of account by written request to the attorney or collection agency. Any request by a member for a statement of account after collection activity begins by an attorney or a collection agency that is not acting as the association's managing agent must be fulfilled by the attorney or the collection agency responsible for the collection. The statement of account provided by the attorney or collection agency responsible for the collection shall include all amounts claimed to be owing to resolve the delinquency through the date set forth in the statement, including attorney fees and costs, regardless of whether such amounts have been reduced to judgment.
M. An agent for the association may collect on behalf of the association directly from a member the assessments and other amounts owed by cash or check, by mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, by credit, charge or debit card or by other electronic means. For any form of payment other than for cash or for mailed or hand-delivered bank drafts, checks, cashier's checks or money orders, the agent may charge a convenience fee to the member that is approximately the amount charged to the agent by a third-party service provider.
N. For the purposes of this section, "common expense assessments":
1. Means the annual, special or supplemental assessments that are payable by all members of the association to maintain all common areas and to account for the budgeted EXPENSEs of the association and the application of reserves, or to fund common area IMPROVEMENTS or long-term MAINTENANCE of common areas, as specified in the declaration.
2. INCLUDES any assessment made on an individual member to pay for the REPAIR of damage to common areas caused by that member or ANY other occupant of the member's residence.
