Massachusetts HOA Super Liens: Navigating Unpaid Condo Fees and Foreclosure Risks
Under Massachusetts law, a condominium association is granted a 'super-priority' lien for up to 6 months of unpaid condo fees. This lien leapfrogs your first mortgage, giving the HOA the power to foreclose on your unit and sell it if you fail to pay your dues.
Falling behind on your monthly condominium fees in Boston, Cambridge, or Worcester can trigger a rapid and financially devastating chain of events. Many homeowners mistakenly believe that as long as they pay their primary mortgage, their home is completely safe from foreclosure. In Massachusetts, this is a dangerous misconception. The state provides condominium associations with incredibly powerful collection tools designed to keep the building financially stable. If you are facing a lawsuit or foreclosure from your HOA, you must act immediately. You can search our directory to find a highly experienced Massachusetts real estate lawyer to help you navigate this crisis.
Understanding the Massachusetts HOA Super Lien
The power of a condo board to collect unpaid dues is governed by Mass. Gen. Laws ch. 183A, § 6(c). When a unit owner fails to pay their assessed common expenses, the association automatically holds a lien on the unit. What makes this law uniquely powerful is the 'super-priority' status it grants. This means that a specific portion of the unpaid fees actually takes legal priority over almost every other debt attached to the property, including municipal liens and, most importantly, the first mortgage held by a bank.
The 6-Month Rolling Priority Over First Mortgages
The statute specifies that the association's super lien covers the regular monthly common expenses that came due during the six months immediately preceding the filing of a lawsuit to enforce the lien. It also includes the association's legal fees and collection costs. The landmark precedent established in Drummer Boy Homes Ass'n, Inc. v. Britton, 474 Mass. 17 (MA Supreme Judicial Court 2016) confirmed that associations can establish multiple rolling super-priority liens. This means if an owner continually fails to pay, the board can repeatedly file lawsuits, effectively stacking 6-month priority liens against the property over and over again.
Impact on First Mortgage Lenders
Because the super lien wipes out the first mortgage if the condo association forecloses, mortgage lenders are terrified of these HOA lawsuits. The law requires the condo association to send a formal 60-day notice to the first mortgage lender before filing an enforcement action. In almost all cases, the bank will step in and pay the six months of back-due HOA fees directly to the association to protect their investment. However, the bank does not do this out of kindness. They will immediately add this amount, plus heavy administrative fees, directly to your mortgage balance, putting you at severe risk of bank foreclosure.
Rights of the HOA Board to Foreclose
If the bank does not step in, or if you own the unit outright, the HOA board has the absolute legal right to foreclose on your home and auction it off to the highest bidder to satisfy the debt. The board will typically initiate an enforcement action by filing a verified complaint pursuant to Mass. Gen. Laws ch. 183A, § 6(c) and Mass. Gen. Laws ch. 254, § 5, accompanied by a civil action cover sheet. This case is most commonly filed in the Massachusetts Land Court, Boston or the local county court, such as the Suffolk County Superior Court, Boston or the Middlesex County Superior Court, Woburn.
How Unit Owners Can Request Payment Plans
If you receive a 30-day notice of delinquency from the property management company, do not ignore it. The legal fees associated with these lawsuits can easily double or triple the amount you owe. Once a lawsuit is filed, you are legally responsible for paying the HOA's attorney fees. The best defense is proactive negotiation. You or your attorney can formally request a written payment plan from the condo board. Most boards will agree to a 6-to-12-month structured repayment plan to avoid the expense of litigation, provided you agree to pay your current monthly dues on time while catching up on the arrears.
Frequently Asked Questions (FAQ)
Can the HOA turn off my utilities if I don't pay?
No. Under Massachusetts law, including the State Sanitary Code and Mass. Gen. Laws ch. 186, § 14, shutoffs of essential utilities like heat, water, or electricity constitute unlawful self-help. However, the association may suspend your access to non-essential common amenities, such as a gym, pool, or clubhouse, if authorized by the condominium bylaws.
Should I withhold my condo fees if the board refuses to fix my roof?
No. This is a fatal legal mistake. Massachusetts courts explicitly prohibit unit owners from withholding condo fees as a form of protest. You must pay the fees 'under protest' and then separately sue the association for failing to maintain the common areas.
Can the HOA collect rent from my tenant if I owe fees?
Yes. If you rent out your unit and fall behind on condo fees for 25 days or more, the HOA can legally order your tenant to send their monthly rent checks directly to the condo association until your debt is completely paid off.
Are late fees and attorney costs included in the super lien?
Yes. The super-priority portion of the lien specifically includes the 6 months of unpaid regular assessments, plus all reasonable attorney fees and costs the association incurred while trying to collect the debt from you.
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