2006 Code of Virginia § 55-516 - Lien for assessments

55-516. Lien for assessments.

A. Once perfected, the association shall have a lien on every lot for unpaidassessments levied against that lot in accordance with the provisions of thischapter and all lawful provisions of the declaration. The lien, onceperfected, shall be prior to all other subsequent liens and encumbrancesexcept (i) real estate tax liens on that lot, (ii) liens and encumbrancesrecorded prior to the recordation of the declaration, and (iii) sums unpaidon and owing under any mortgage or deed of trust recorded prior to theperfection of said lien. The provisions of this subsection shall not affectthe priority of mechanics' and materialmen's liens. Notice of a memorandum oflien to a holder of a credit line deed of trust under 55-58.2 shall begiven in the same fashion as if the association's lien were a judgment.

B. The association, in order to perfect the lien given by this section, shallfile before the expiration of 12 months from the time the first suchassessment became due and payable in the clerk's office of the circuit courtin the county or city in which such development is situated, a memorandum,verified by the oath of the principal officer of the association, or suchother officer or officers as the declaration may specify, which contains thefollowing:

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 tosuch 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 personto contact to arrange for payment or release of the lien; and

7. A statement that the association is obtaining a lien in accordance withthe provisions of the Virginia Property Owners' Association Act as set forthin Chapter 26 ( 55-508 et seq.) of Title 55.

It shall be the duty of the clerk in whose office such memorandum is filed ashereinafter provided to record and index the same as provided in subsectionD, in the names of the persons identified therein as well as in the name ofthe association. The cost of recording and releasing the memorandum shall betaxed against the person found liable in any judgment or decree enforcingsuch lien.

C. Prior to filing a memorandum of lien, a written notice shall be sent tothe property owner by certified mail, at the property owner's last knownaddress, informing the property owner that a memorandum of lien will be filedin the circuit court clerk's office of the applicable city or county. Thenotice shall be sent at least 10 days before the actual filing date of thememorandum of lien.

D. Notwithstanding any other provision of this section, or any otherprovision of law requiring documents to be recorded in the miscellaneous lienbooks or the deed books in the clerk's office of any court, on or after July1, 1989, all memoranda of liens arising under this section shall be recordedin the deed books in the clerk's office. Any memorandum shall be indexed inthe general index to deeds, and the general index shall identify the lien asa lien for lot assessments.

E. No suit to enforce any lien perfected under subsection B shall be broughtor action to foreclose any lien perfected under subsection I shall beinitiated after 36 months from the time when the memorandum of lien wasrecorded; however, the filing of a petition to enforce any such lien in anysuit wherein the petition may be properly filed shall be regarded as theinstitution of a suit under this section. Nothing herein shall extend thetime within which any such lien may be perfected.

F. The judgment or decree in an action brought pursuant to this section shallinclude, without limitation, reimbursement for costs and reasonableattorneys' fees of the prevailing party. If the association prevails, it mayalso recover interest at the legal rate for the sums secured by the lien fromthe time each such sum became due and payable.

G. When payment or satisfaction is made of a debt secured by the lienperfected by subsection B hereof, the lien shall be released in accordancewith the provisions of 55-66.3. Any lien which is not so released shallsubject the lien creditor to the penalty set forth in subdivision A (1) of 55-66.3. For the purposes of 55-66.3, the principal officer of theassociation, or any other officer or officers as the declaration may specify,shall be deemed the duly authorized agent of the lien creditor.

H. Nothing in this section shall be construed to prohibit actions at law torecover sums for which subsection A hereof creates a lien, maintainablepursuant to 55-515.

I. At any time after perfecting the lien pursuant to this section, theproperty owners' association may sell the lot at public sale, subject toprior liens. For purposes of this section, the association shall have thepower both to sell and convey the lot and shall be deemed the lot owner'sstatutory agent for the purpose of transferring title to the lot. Anonjudicial foreclosure sale shall be conducted in compliance with thefollowing:

1. The association shall give notice to the lot owner prior to advertisementrequired by subdivision 4. The notice shall specify (i) the debt secured bythe perfected lien; (ii) the action required to satisfy the debt secured bythe perfected lien; (iii) the date, not less than 60 days from the date thenotice is given to the lot owner, by which the debt secured by the lien mustbe satisfied; and (iv) that failure to satisfy the debt secured by the lienon or before the date specified in the notice may result in the sale of thelot. The notice shall further inform the lot owner of the right to bring acourt action in the circuit court of the county or city where the lot islocated to assert the nonexistence of a debt or any other defense of the lotowner 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 ofthe trustee shall be filed in the clerk's office of the circuit court in thecounty or city in which such development is situated. It shall be the duty ofthe clerk in whose office such appointment is filed to record and index thesame as provided in subsection D, in the names of the persons identifiedtherein as well as in the name of the association. The association, at itsoption, may from time to time remove the trustee and appoint a successortrustee.

3. If the lot owner meets the conditions specified in this subdivision priorto the date of the foreclosure sale, the lot owner shall have the right tohave enforcement of the perfected lien discontinued prior to the sale of thelot. Those conditions are that the lot owner: (i) satisfy the debt secured bylien that is the subject of the nonjudicial foreclosure sale and (ii) paysall expenses and costs incurred in perfecting and enforcing the lien,including but not limited to advertising costs and reasonable attorneys' fees.

4. In addition to the advertisement required by subdivision 5, theassociation shall give written notice of the time, date and place of anyproposed sale in execution of the lien, and including the name, address andtelephone number of the trustee, by personal delivery or by mail to (i) thepresent owner of the property to be sold at his last known address as suchowner and address appear in the records of the association, (ii) anylienholder who holds a note against the property secured by a deed of trustrecorded at least 30 days prior to the proposed sale and whose address isrecorded with the deed of trust, and (iii) any assignee of such a notesecured by a deed of trust provided the assignment and address of theassignee are likewise recorded at least 30 days prior to the proposed sale.Mailing a copy of the advertisement or the notice containing the sameinformation to the owner by certified or registered mail no less than 14 daysprior to such sale and to lienholders and their assigns, at the addressesnoted in the memorandum of lien, by ordinary mail no less than 14 days priorto such sale, shall be a sufficient compliance with the requirement of notice.

5. The advertisement of sale by the association shall be in a newspaperhaving a general circulation in the city or county wherein the property to besold, 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 acounty immediately contiguous to a city, publication of the advertisementfive 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 advertisementwhich is no earlier than eight days following the first advertisement normore than 30 days following the last advertisement.

b. Such advertisement shall be placed in that section of the newspaper wherelegal notices appear or where the type of property being sold is generallyadvertised for sale. The advertisement of sale, in addition to such othermatters as the association finds appropriate, shall set forth a descriptionof the property to be sold, which description need not be as extensive asthat contained in the deed of trust, but shall identify the property bystreet address, if any, or, if none, shall give the general location of theproperty with reference to streets, routes, or known landmarks. Whereavailable, tax map identification may be used but is not required. Theadvertisement shall also include the date, time, place, and terms of sale andthe name of the association. It shall set forth the name, address andtelephone number of the representative, agent, or attorney who may be able torespond to inquiries concerning the sale.

c. In addition to the advertisement required by subdivisions a and b above,the association may give such other further and different advertisement asthe association finds appropriate.

6. In the event of postponement of sale, which postponement shall be at thediscretion of the association, advertisement of such postponed sale shall bein the same manner as the original advertisement of sale.

7. Failure to comply with the requirements for advertisement contained inthis section shall, upon petition, render a sale of the property voidable bythe court.

8. In the event of a sale, the association shall have the following powersand duties:

a. Written one-price bids may be made and shall be received by the trusteefrom the association or any person for entry by announcement at the sale. Anyperson other than the trustee may bid at the foreclosure sale, including aperson who has submitted a written one-price bid. Upon request to thetrustee, any other bidder in attendance at a foreclosure sale shall bepermitted to inspect written bids. Unless otherwise provided in thedeclaration, the association may bid to purchase the lot at a foreclosuresale. The association may own, lease, encumber, exchange, sell or convey thelot. Whenever the written bid of the association is the highest bid submittedat the sale, such written bid shall be filed by the trustee with his accountof sale required under subdivision I 10 of this section and 26-15. Thewritten bid submitted pursuant to this subsection may be prepared by theassociation, its agent or attorney.

b. The association may require of any bidder at any sale a cash deposit of asmuch as 10 percent of the sale price before his bid is received, which shallbe refunded to him if the property is not sold to him. The deposit of thesuccessful bidder shall be applied to his credit at settlement, or if suchbidder fails to complete his purchase promptly, the deposit shall be appliedto pay the costs and expenses of the sale, and the balance, if any, shall beretained by the association in connection with that sale.

c. The property owners' association shall receive and receipt for theproceeds of sale, no purchaser being required to see to the application ofthe proceeds, and apply the same in the following order: first, to thereasonable expenses of sale, including attorneys' fees; second, to thesatisfaction of all taxes, levies and assessments, with costs and interest;third, to the satisfaction of the lien for the owners' assessments; fourth,to the satisfaction in the order of priority of any remaining inferior claimsof record; and fifth, to pay the residue of the proceeds to the owner or hisassigns; provided, however, that the association as to such residue shall notbe bound by any inheritance, devise, conveyance, assignment or lien of orupon the owner's equity, without actual notice thereof prior to distribution.

9. The trustee shall deliver to the purchaser a trustee's deed conveying thelot with special warranty of title. The trustee shall not be required to takepossession of the property prior to the sale thereof or to deliver possessionof the lot to the purchaser at the sale.

10. The trustee shall file an accounting of the sale with the commissioner ofaccounts pursuant to 26-15 and every account of a sale shall be recordedpursuant to 26-16. In addition, the accounting shall be made available forinspection and copying pursuant to 55-510 upon the written request of theprior lot owner, current lot owner or any holder of a recorded lien againstthe lot at the time of the sale. The association shall maintain a copy of theaccounting for at least 12 months following the foreclosure sale.

11. If the sale of a lot is made pursuant to subsection I and the accountingis made by the trustee, the title of the purchaser at such sale shall not bedisturbed unless within 12 months from the confirmation of the accounting bythe commissioner of accounts, the sale is set aside by the court or an appealis allowed by the Supreme Court of Virginia, and a decree is therein enteredrequiring such sale to be set aside.

(1989, c. 679; 1991, c. 667; 1997, cc. 760, 766; 2000, c. 905; 2004, cc. 778,779, 786.)

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