“A regular or special assessment and any late charges, reasonable fees and costs of collection, reasonable attorney’s fees, if any, and interest, if any… shall be a debt of the owner of the separate interest at the time the assessment or other sums are levied.” (Civ. Code § 5650(a).) Civil Code Section 5650 makes this debt the personal obligation of the owner at the time the assessment is levied, regardless of whether it may ultimately “become a lien against the [owner’s property] under the circumstances as provided in [Section 5650].” (Cerro del Alcala Homeowners Assn. v. Burns (1985) 169 Cal.App.3d Supp. 1, Supp. 5.)
Payment Duty not Dependent upon Possession of Property
Where a member merely abandons or vacates possession of his property within the association’s development, it does not operate to relieve or reduce the member’s obligation to pay assessments to the association:
“Although respondent ceased to enjoy the possession of his property, he continued to enjoy other aspects of ownership until the very moment of recordation of the trustee’s deed which effected a transfer of the property. As the record owner of the property, respondent continued to benefit from the homeowners association’s ongoing schedule of maintenance and repairs to the common areas. In addition, respondent benefited from the protection of a policy of general liability insurance maintained by the homeowners association. Also, at all times prior to the transfer of title, respondent was entitled to lease, encumber, assign, exchange or sell the property as well as reoccupy the unit at no expense. Thus, it is clear that respondent did not cease to enjoy the benefits of the estate by voluntarily vacating the premises.” (Cerro del Alcala Homeowners Assn. v. Burns (1985) 169 Cal.App.3d Supp. 1, Supp. 4-5.)
No Defense or “Offset” to Payment Duty
Members may not withhold or deduct a portion of their assessment payments because they have a grievance or dispute with the association, or because they do not use the association’s common areas or recreational facilities:
“Because homeowners associations would cease to exist without regular payment of assessment fees, the Legislature has created procedures for associations to quickly and efficiently seek relief against a nonpaying owner. Permitting an owner to broadly assert the homeowners association’s conduct as a defense or ‘setoff’ to such enforcement action would seriously undermine these rules.” (Park Place Estates Homeowners Assn. v. Naber (1994) 29 Cal.App.4th 427, 432.)
“A system that would tolerate a [condominium] owner’s refusal to pay an assessment because the unit owner asserts a grievance … would threaten the financial integrity of the entire condominium operation.” (Id. at FN 5.)
However, a member does have the right to dispute any assessment, penalty, interest charge, late fee, collection cost or monetary penalty (fine) by paying the disputed amount under protest and “pursuing dispute resolution pursuant to Article 3 (commencing with Section 5925) of Chapter 10,” as well as commencing an action in small claims court. (Civ. Code § 5658; See also “Member Right to Dispute Charges.”)
Related Case Law
- Diamond Heights Village Association, Inc. v. Financial Freedom Senior Funding Corp.
(2011) 196 Cal.App.4th 290
[Assessment Collection; Judgment Lien Merger] When a HOA assessment lien is enforced by the HOA through judicial action, the debt secured by the assessment lien is merged into the judgment.
- Cerro De Alcala Homeowners Assn. v. Burns
(1985) 169 Cal.App.3d Supp. 1
[Assessments & Collection; Duty to Pay] A homeowner may not avoid his/her obligation to pay assessments levied by a HOA merely because the homeowner abandons possession of the property.