Property owners have the right, according Massachusetts General Laws Chapter 183A, to deed their property into a condominium form of ownership structure. By doing so, the property owner creates separate and distinct units of its property, which units may be transferred and owned by separate and distinct owners. Each owner of a unit would also own an interest in the “common areas” of the condominium structure. The Massachusetts law that creates these rights also recognizes the important role the condominium association has in maintaining the common areas of the condominium, and the importance of each individual unit owner’s obligation to pay its fair share of the condominium common expenses.
The Massachusetts condominium law grants to the condominium association, which is tasked with collecting common area expenses from unit owners, an automatic lien for unpaid common expenses, interest, late charges, legal fees and costs and special assessments. When enacting the Massachusetts condominium law, the legislature determined that the obligation of the condominium association to maintain, and the unit owner’s obligation to fund the maintenance of common areas so important, that a condominium’s lien is superior to all other liens on a condominium unit except: liens recorded before the master deed, a first mortgage recorded against the unit if such mortgage is recorded before the date on which the common area assessment the condominium association is trying to collect becomes delinquent, and real estate taxes. Interestingly, the condominium’s lien is also ahead of a first mortgage on the unit as to common expenses due for the six months before the institution of the association’s lawsuit against the unit owner.
When a lien takes priority over other liens on a property, even when the subordinate liens are recorded or perfected prior in time, the lien that takes priority is often referred to as a “super lien.” Although the condominium association’s super lien is a powerful tool, it has its limits. For example, the super lien may include an amount for attorney fees and costs, but it does not include interest or late payment charges. Additionally, with respect to the super lien, the common expenses for which collection is sought, should be based on the amounts charged per the association’s annual budget. Further, special assessments would not be included in the super lien. Although the super lien is subject to the limits described above, the condominium association still has the right to enforce and collect sums that are covered by its general lien, but which may not be subject to the super lien. For example, unpaid common charges without limitation as to time, special assessments, interest, late fees, and attorney fees and costs may still have priority over second mortgages, attachments and other similar liens.
Most importantly, the lien rights granted to the condominium are a powerful tool because, if the condominium’s attempt to collect on the unpaid amounts is not successful, after following a litigation process, the condominium still has the right to foreclose on the lien, much like a lender would. If the outstanding amounts subject to the lien or super lien are not paid, the foreclosure process permits the condominium association to evict the unit owner and take possession of the owner’s unit.
