Question: In a recent column you said that a homeowners association (“HOA”) has an automatic lien against a home if HOA monthly dues are not paid. Thus, a buyer of the home would be responsible for any unpaid monthly HOA dues if not paid by the seller at close of escrow. On the other hand, you stated that an HOA does not have an automatic lien for unpaid fines charged by the HOA for violations of the CC&Rs, e.g., leaving the garage door open overnight. Thus, a buyer of the home is not responsible to pay any unpaid fines. This distinction between unpaid HOA dues and unpaid fines makes no sense. If the homeowner violates the CC&Rs by not paying monthly HOA dues there is a lien, but if a homeowner violates the CC&Rs by not paying a fine for leaving the garage door open overnight, there is no lien. What is the reason for this distinction?
Answer: Under specific Arizona statutes the CC&Rs can require the payment by the homeowner of HOA dues, or otherwise a lien is created for the amount of the unpaid HOA dues. A.R.S. § 33-1807. Therefore, any unpaid HOA dues are a lien by “state action.” No Arizona statutes, i.e., “state action,” authorize the CC&Rs to require payment by the homeowner for other violations of the CC&Rs, e.g., leaving the garage door open. Therefore, there is no automatic lien for unpaid fines, e.g., leaving the garage door open, which could authorize foreclosure by the HOA. The HOA has to file a collection lawsuit.
Note: An HOA cannot fine a homeowner for any violation of the CC&Rs unless the homeowner is first offered the opportunity to appear before the HOA board of directors to contest the proposed fine. A.R.S. § 33-1803.