Bill Text: VA HB1256 | 2012 | Regular Session | Comm Sub
Bill Title: Condominium and Property Owners' Association Acts; lien for assessments, priority.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2012-02-09 - House: Continued to 2013 with substitute in General Laws by voice vote [HB1256 Detail]
Download: Virginia-2012-HB1256-Comm_Sub.html
12104629D
Be it enacted by the General Assembly of Virginia: 1. That §55-516 of the Code of Virginia is amended and reenacted as follows: §55-516. Lien for assessments. A. Once perfected, the association shall have a lien on every
lot for unpaid assessments levied against that lot in accordance with the
provisions of this chapter and all lawful provisions of the declaration. The
lien, once perfected, shall be prior to all other B. The association, in order to perfect the lien given by this section, shall file before the expiration of 12 months from the time the first such assessment became due and payable in the clerk's office of the circuit court in the county or city in which such development is situated, a memorandum, verified by the oath of the principal officer of the association, or such other officer or officers as the declaration may specify, which contains the following: 1. The name of the development; 2. A description of the lot; 3. The name or names of the persons constituting the owners of that lot; 4. The amount of unpaid assessments currently due or past due relative to such lot together with the date when each fell due; 5. The date of issuance of the memorandum; 6. The name of the association and the name and current address of the person to contact to arrange for payment or release of the lien; and 7. A statement that the association is obtaining a lien in
accordance with the provisions of the Virginia Property Owners' Association Act
as set forth in Chapter 26 (§55-508 et seq.) It shall be the duty of the clerk in whose office such memorandum is filed as hereinafter provided to record and index the same as provided in subsection D, in the names of the persons identified therein as well as in the name of the association. The cost of recording and releasing the memorandum shall be taxed against the person found liable in any judgment or decree enforcing such lien. C. Prior to filing a memorandum of lien, a written notice shall be sent to the property owner by certified mail, at the property owner's last known address, informing the property owner that a memorandum of lien will be filed in the circuit court clerk's office of the applicable city or county. The notice shall be sent at least 10 days before the actual filing date of the memorandum of lien. D. Notwithstanding any other provision of this section, or any other provision of law requiring documents to be recorded in the miscellaneous lien books or the deed books in the clerk's office of any court, on or after July 1, 1989, all memoranda of liens arising under this section shall be recorded in the deed books in the clerk's office. Any memorandum shall be indexed in the general index to deeds, and the general index shall identify the lien as a lien for lot assessments. E. No suit to enforce any lien perfected under subsection B shall be brought or action to foreclose any lien perfected under subsection I shall be initiated after 36 months from the time when the memorandum of lien was recorded; however, the filing of a petition to enforce any such lien in any suit wherein the petition may be properly filed shall be regarded as the institution of a suit under this section. Nothing herein shall extend the time within which any such lien may be perfected. F. The judgment or decree in an action brought pursuant to this section shall include, without limitation, reimbursement for costs and reasonable attorneys' fees of the prevailing party. If the association prevails, it may also recover interest at the legal rate for the sums secured by the lien from the time each such sum became due and payable. G. When payment or satisfaction is made of a debt secured by
the lien perfected by subsection B H. Nothing in this section shall be construed to prohibit
actions at law to recover sums for which subsection A I. At any time after perfecting the lien pursuant to this section, the property owners' association may sell the lot at public sale, subject to prior liens. For purposes of this section, the association shall have the power both to sell and convey the lot and shall be deemed the lot owner's statutory agent for the purpose of transferring title to the lot. A nonjudicial foreclosure sale shall be conducted in compliance with the following: 1. The association shall give notice to the lot owner prior to advertisement required by subdivision 4. The notice shall specify (i) the debt secured by the perfected lien; (ii) the action required to satisfy the debt secured by the perfected lien; (iii) the date, not less than 60 days from the date the notice is given to the lot owner, by which the debt secured by the lien must be satisfied; and (iv) that failure to satisfy the debt secured by the lien on or before the date specified in the notice may result in the sale of the lot. The notice shall further inform the lot owner of the right to bring a court action in the circuit court of the county or city where the lot is located to assert the nonexistence of a debt or any other defense of the lot owner to the sale. 2. After expiration of the 60-day notice period specified in subdivision 1, the association may appoint a trustee to conduct the sale. The appointment of the trustee shall be filed in the clerk's office of the circuit court in the county or city in which such development is situated. It shall be the duty of the clerk in whose office such appointment is filed to record and index the same as provided in subsection D, in the names of the persons identified therein as well as in the name of the association. The association, at its option, may from time to time remove the trustee and appoint a successor trustee. 3. If the lot owner meets the conditions specified in this
subdivision prior to the date of the foreclosure sale, the lot owner shall have
the right to have enforcement of the perfected lien discontinued prior to the
sale of the lot. Those conditions are that the lot owner: (i) satisfy the debt
secured by lien that is the subject of the nonjudicial foreclosure sale and
(ii) pays all expenses and costs incurred in perfecting and enforcing the lien,
including but not limited to advertising costs and reasonable 4. In addition to the advertisement required by subdivision 5, the association shall give written notice of the time, date and place of any proposed sale in execution of the lien, and including the name, address and telephone number of the trustee, by personal delivery or by mail to (i) the present owner of the property to be sold at his last known address as such owner and address appear in the records of the association, (ii) any lienholder who holds a note against the property secured by a deed of trust recorded at least 30 days prior to the proposed sale and whose address is recorded with the deed of trust, and (iii) any assignee of such a note secured by a deed of trust provided the assignment and address of the assignee are likewise recorded at least 30 days prior to the proposed sale. Mailing a copy of the advertisement or the notice containing the same information to the owner by certified or registered mail no less than 14 days prior to such sale and to lienholders and their assigns, at the addresses noted in the memorandum of lien, by ordinary mail no less than 14 days prior to such sale, shall be a sufficient compliance with the requirement of notice. 5. The advertisement of sale by the association shall be in a newspaper having a general circulation in the city or county wherein the property to be sold, or any portion thereof, lies pursuant to the following provisions: a. The association shall advertise once a week for four successive weeks; however, if the property or some portion thereof is located in a city or in a county immediately contiguous to a city, publication of the advertisement five different days, which may be consecutive days, shall be deemed adequate. The sale shall be held on any day following the day of the last advertisement which is no earlier than eight days following the first advertisement nor more than 30 days following the last advertisement. b. Such advertisement shall be placed in that section of the newspaper where legal notices appear or where the type of property being sold is generally advertised for sale. The advertisement of sale, in addition to such other matters as the association finds appropriate, shall set forth a description of the property to be sold, which description need not be as extensive as that contained in the deed of trust, but shall identify the property by street address, if any, or, if none, shall give the general location of the property with reference to streets, routes, or known landmarks. Where available, tax map identification may be used but is not required. The advertisement shall also include the date, time, place, and terms of sale and the name of the association. It shall set forth the name, address and telephone number of the representative, agent, or attorney who may be able to respond to inquiries concerning the sale. c. In addition to the advertisement required by subdivisions a
and b 6. In the event of postponement of sale, which postponement shall be at the discretion of the association, advertisement of such postponed sale shall be in the same manner as the original advertisement of sale. 7. Failure to comply with the requirements for advertisement contained in this section shall, upon petition, render a sale of the property voidable by the court. 8. In the event of a sale, the association shall have the following powers and duties: a. Written one-price bids may be made and shall be received by
the trustee from the association or any person for entry by announcement at the
sale. Any person other than the trustee may bid at the foreclosure sale,
including a person who has submitted a written one-price bid. Upon request to
the trustee, any other bidder in attendance at a foreclosure sale shall be
permitted to inspect written bids. Unless otherwise provided in the
declaration, the association may bid to purchase the lot at a foreclosure sale.
The association may own, lease, encumber, exchange, sell or convey the lot.
Whenever the written bid of the association is the highest bid submitted at the
sale, such written bid shall be filed by the trustee with his account of sale
required under subdivision b. The association may require of any bidder at any sale a cash deposit of as much as 10 percent of the sale price before his bid is received, which shall be refunded to him if the property is not sold to him. The deposit of the successful bidder shall be applied to his credit at settlement, or if such bidder fails to complete his purchase promptly, the deposit shall be applied to pay the costs and expenses of the sale, and the balance, if any, shall be retained by the association in connection with that sale. c. The property owners' association shall receive and receipt
for the proceeds of sale, no purchaser being required to see to the application
of the proceeds, and apply the same in the following order: first, to the
reasonable expenses of sale, including 9. The trustee shall deliver to the purchaser a trustee's deed conveying the lot with special warranty of title. The trustee shall not be required to take possession of the property prior to the sale thereof or to deliver possession of the lot to the purchaser at the sale. 10. The trustee shall file an accounting of the sale with the commissioner of accounts pursuant to §26-15 and every account of a sale shall be recorded pursuant to §26-16. In addition, the accounting shall be made available for inspection and copying pursuant to §55-510 upon the written request of the prior lot owner, current lot owner or any holder of a recorded lien against the lot at the time of the sale. The association shall maintain a copy of the accounting for at least 12 months following the foreclosure sale. 11. If the sale of a lot is made pursuant to this subsection
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