Owner believes lien is unfair

H.F. writes:

Dear Paul:

I am having a dispute with our board over the fact that they should not place a lien on a property for missing a common elements fee payment. We all forget deadlines as we grow older. It is stressful to be told that a lien will be placed on our unit when we miss one payment. I think this is unfair.

Paul replies:

Dear H.F.:

I understand how you feel. It can be stressful to learn that legal action is being taken against us. However, there are some valid reasons why the board would engage in this process fairly quickly.

The main reason a lien must be filed promptly is that a lien must be registered with the Land Tiles Office within ninety days of a missed payment. If the board fails to file the lien within this time frame, it may forfeit its right to collect under this process.  Since the board was elected by all unit owners to enforce the Act, the Declaration, the Bylaws, and the Rules of the corporation, which includes the collection of condo fees, the board is fulfilling its responsibilities. This process is fair to all other owners who paid on time.

This is the process I would recommend that the board follow in these circumstances. First, when the payment is missed, the unit owner should receive a call to remind them of their obligation to pay the monthly fee. No later than seven days after the call, if the payment has not been made, the unit owner should receive a registered letter asking for payment and outlining that failure to pay within the next ten days will be considered cause to begin the lien proceedings. I would remind the owner that they will have to bear the legal costs incurred by the corporation to file the lien, in addition to the legal costs to discharge the lien when paid. The costs to the unit owner will be much greater than the initial missed condo fee.

The time lines suggested above can be changed, but I urge boards to provide sufficient time to complete the legal details on time and  anticipate possible glitches along the way. Legal advice should be sought whenever a lien is involved.

In this day and age, unit owners should set-up a Pre-Authorized Debit from their bank account or provide post dated cheques. Unless a unit owner legitimately does not have the funds, I do not see any excuse for late payments.

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