Nonpayment of HOA Fees


When a home is bought or rented, the homeowner accepts the rules of the homeowner's association, which are called the CC&Rs (Covenants, Conditions & Restrictions). Homeowners Association (HOA) fees are usually assessed for the maintenance of common areas and the property's exterior. A homeowner must pay these assessments and a lease may require a renter to pay them. If you are sued for HOA fees, it is important for you to read all of the documents received and decide if you agree or disagree with the allegations.  

Below is information that may be helpful if a creditor files a lawsuit against you but it is not a substitute for legal advice. There are other rules and laws that may apply to your situation, but these are common rules and laws that apply in civil cases.


 

1  NOTICE
  • Every homeowner in a HOA must pay their HOA assessments. If the homeowner fails to make payments, the HOA must send notices to the homeowner indicating that the account is overdue and delinquent and will assess late fees. Unless the CC&Rs indicate differently, an assessment is considered late 15 days after it was due. Late fees cannot be more than $15 or 10% of the assessment. A lease may require a tenant to pay the HOA fees.

2  COMPLAINT AND SERVICE
  • A process server might serve papers from the court on the homeowner or someone living at the home, indicating a civil lawsuit has been filed against them. The papers might also be left on the door and mailed to the homeowner if the judge authorized it. You may be served a small claims lawsuit by certified mail.
  • The complaint will explain how much the homeowner owes and might include the accounting ledger showing how that amount was calculated. The summons and complaint will say that an answer must be filed within 20 days. 

3  JURISDICTION
  • Depending on how much is owed, the case can be filed in small claims court, justice court, or superior court. In small claims court, the plaintiff cannot be represented by an attorney and the amount owed must be under $3,500. Small claims have different rules and move through the court process much quicker than civil cases in justice or superior court. Go to www.azcourts.gov/smallclaims, or What Happens in Small Claims Court webpage or watch the video for more information about small claims. Justice and superior court's rules of procedure are different, but still similar.

4  ANSWER  
  • The homeowner has 20 days to file an answer to the lawsuit in court and mail it to the HOA. 
  • The homeowner will be required to pay a filing fee when filing an answer. If the homeowner cannot afford the filing fee, they can ask the clerk for a fee waiver/deferral application.

5  COURT/TRIAL
  • If the homeowner files an answer to the complaint, the court will either set the case for a case management conference or a mediation depending on the practice of the assigned court. That will be an opportunity to try to settle the case or find out how the HOA plans on proceeding with the case and what evidence they have. 
  • Everyone has the right to take their case to trial if they want to. If the homeowner agrees that they owe the money, they might want to consider trying to resolve the case without a trial by reaching out to the HOA or their attorney before the time to file the answer has expired, or resolving it at the hearing set by the court. 
  • Note that the plaintiff/creditor may file a Motion for Summary Judgment. You will need to follow the instructions and respond in writing, or you may have a judgment entered against you without a trial.
6  IMPORTANT NOTE
  • Be aware that HOA assessments continue to be added until a judgment is signed if the homeowner remains in the home. And if the HOA is represented by an attorney, legal fees might continue to grow as well.
  • Keep in mind, in most cases, the HOA has the power to get a lien on the homeowner's property for monies and judgments due and record it with the county recorder. The lien could cloud the property's title and harm the homeowner's ability to sell or refinance the home. Additionally, the property can be foreclosed to force a sale to a new owner, even if there is a mortgage on the property.
7  DEFENSES  
  • Hardship is not a legal defense to the nonpayment of debts, including HOA assessments. Unless the CC&Rs indicate differently, an assessment is considered late 15 days after it was due and cannot be more than $15 or 10% of the assessment.
  • A legal defense might be the homeowner did pay their assessments or they were not properly put on notice of a non-compliance, which led to a fine.
  • The HOA must give prior notice and an opportunity for the homeowner to be heard if the HOA is imposing a penalty or fine for violation of the CC&Rs. 
  • The HOA must give prior written notice to the homeowner if the HOA alleges the condition of the property is in violation of the community documents. The homeowner then has 21 days to respond by certified mail.
  • A homeowner may follow the complaint process established by law and have an administrative judge decide the case if the homeowner has a complaint against the HOA for non-compliance with these obligations or other federal and state laws.



The information offered on this site is made available as a public service and is not intended to take the place of legal advice and cover all topic areas. If you do not understand something or are not sure these videos, info sheets, FAQs, forms or instructions apply to your situation, see an attorney for help. For more information, go to: www.azcourts.gov/consumerdebt.

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