Lowell Deeds

The latest on real estate recordings and new technology from the Middlesex North Registry of Deeds in Lowell

October 26, 2006

Homeowner Associations

by @ 5:26 am. Filed under Indexing

A controversy has arisen over the recording of certificates issued by homeowner associations regarding fees owed or not owed by members of the association. Some registries (including this one) routinely record such certificates, reasoning that they are equivalent to the routinely recorded 6D certificates from condominium associations. Other registries, however, refuse to record such documents, reasoning that such a certificate constitutes a lien on the property and without statutory or judicial authority, the homeowner association has no right to record such a document. After hearing the arguments on both sides of this dispute, I have concluded that these documents should not be recorded and here’s why. There is a strong public policy in favor of setting some threshold requirement before documents that would constitute a lien on real estate may be recorded. It is only in limited cases, primarily with Mechanic’s Liens, that a private individual may freely record a lien against another’s real estate. The condominium statute specifically entitles a condo association to a lien for unpaid condo fees, thus allowing the aforementioned 6D certificate to be recorded. In all other cases, however, a judicially issued attachment must be obtained. Two decades ago, the legislature made a major change to the lis pendens law, requiring that such a document be judicially authorized before recording contrary to the former practice that freely allowed anyone to record such a document. This action on lis pendens and the more recent tightening of the Mechanic’s Lien statute confirm this public policy. Those who do not work in registries of deeds would be amazed by the number of citizens who present themselves at the registry with all manner of claims against the real estate of friends, relatives and neighbors. To allow them to freely record a document asserting a claim and thereby encumber the real estate of another would unnecessarily burden our system of real estate ownership. While the homeowner association, with its previously recorded by-laws and deed covenants does possess the indicia of authenticity and reliability, claims by such associations still fall short of the formal legal authority needed to record a document that would constitute a lien against the property of another. The registers’ association did not take a final position on this but agreed to study the situation further. But I predict that the outcome will be that absent some specific statutory authority or a judicial order, certificates of homeowner associations regarding amounts due or not due will no longer be accepted for recording.

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