It Shall Set Forth The Name

Residential or commercial property and Conveyances" Subtitle IV. Common Interest Communities" Chapter 18. Residential Or Commercial Property Owners' Association Act" Article 3. Operation and Management of Association" § 55.1-1833. Lien for evaluations; foreclosure




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§ 55.1-1833. Lien for evaluations; foreclosure.


A. The association shall have a lien, as soon as improved, on every lot for unpaid assessments imposed versus that lot in accordance with the arrangements of this chapter and all legal provisions of the statement. The lien, as soon as improved, will be prior to all other subsequent liens and encumbrances except (i) real estate tax liens on that lot, (ii) liens and encumbrances taped prior to the recordation of the statement, and (iii) amounts unsettled on and owing under any mortgage or deed of trust tape-recorded prior to the perfection of such lien. The provisions of this subsection shall not impact the top priority of mechanics' and materialmen's liens. Notice of a memorandum of lien to a holder of a credit limit deed of trust under § 55.1-318 shall be given up the exact same fashion as if the association's lien were a judgment.


B. The association, in order to ideal the lien offered by this section, shall submit, before the expiration of 12 months from the time the very first such evaluation became due and payable in the clerk's workplace of the circuit court in the county or city in which such advancement is positioned, a memorandum, by the oath of the principal officer of the association or such other officer or officers as the statement may specify, which includes the following:


1. The name of the development;


2. A description of the lot;


3. The name or names of the persons making up the owners of that lot;


4. The quantity of overdue assessments presently due or overdue relative to such 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 individual to get in touch with to schedule payment or release of the lien; and


7. A statement that the association is acquiring a lien in accordance with the arrangements of the Residential or commercial property Owners' Association Act as set forth in Chapter 18 ( § 55.1-1800 et seq.) of Title 55.1.


It shall be the task of the clerk in whose workplace such memorandum is submitted as offered in this section to record and index the same as supplied in subsection D, in the names of the individuals determined in such memorandum in addition to in the name of the association. The expense of recording and launching the memorandum will be taxed versus the individual discovered accountable in any judgment or order implementing such lien.


C. Prior to submitting a memorandum of lien, a composed notification will be sent out to the residential or commercial property owner by licensed mail, at the residential or commercial property owner's last known address, informing the residential or commercial property owner that a memorandum of lien will be submitted in the circuit court clerk's workplace of the appropriate county or city. The notification shall be sent at least 10 days before the actual filing date of the memorandum of lien.


D. Notwithstanding any other provision of this area or any other arrangement of law needing documents to be taped in the miscellaneous lien books or the deed books in the clerk's office of any court, on or after July 1, 1989, all memoranda of liens developing under this area shall be recorded in the deed books in the clerk's office. Any memorandum shall be indexed in the basic index to deeds, and the general index shall determine the lien as a lien for lot evaluations.


E. Any lien perfected pursuant to subsection B might be enforced by submitting a civil action to conduct a judicial foreclosure in the circuit court in the county or city where the lot is situated or by nonjudicial foreclosure pursuant to subsections I and J. No foreclosure of any lien perfected under this section will be started after 120 months from the time when the memorandum of lien was recorded. The filing of a civil action to implement any such lien by foreclosure through judicial methods or issuance of notice of nonjudicial foreclosure under neighborhood J 1 shall be considered as the institution of an action under this section. Nothing in this subsection will extend the time within which any such lien may be improved.


F. The judgment or order in an action brought pursuant to this area will consist of repayment for costs and reasonable attorney costs of the prevailing party. If the association prevails, it may likewise recover interest at the legal rate for the amounts protected by the lien from the time each such amount ended up being due and payable.


G. When payment or complete satisfaction is made from a financial obligation secured by any lien perfected pursuant to subsection B, such lien will be released in accordance with the provisions of § 55.1-339. Any lien that is not so released will subject the lien lender to the penalty set forth in subdivision B 1 of § 55.1-339. For the functions of § 55.1-339, the primary officer of the association, or any other officer or officers as the statement might define, shall be considered the appropriately authorized agent of the lien lender.


H. Nothing in this section shall be interpreted to restrict actions at law to recover sums for which subsection A produces a lien, maintainable pursuant to § 55.1-1828.


I. The association may carry out a judicial or nonjudicial foreclosure sale upon a lot versus which the association has actually perfected one or more liens pursuant to this area if the total sums protected remain in excess of $5,000, exclusive of attorney costs and costs. For purposes of this area, the association shall have the power both to offer and communicate the lot and shall be deemed the lot owner's statutory representative for the function of moving title to the lot.


J. A nonjudicial foreclosure sale shall be performed in compliance with the following:


1. The association will provide notice to the lot owner prior to advertisement needed by subdivision 4. The notice will specify (i) the financial obligation protected by the improved lien; (ii) the action required to please the financial obligation protected by the refined lien; (iii) the date, not less than 60 days from the date the notification is provided to the lot owner, by which the debt secured by the lien needs to be pleased; and (iv) that failure to satisfy the debt protected by the lien on or before the date defined in the notice might result in the sale of the lot. The notification shall even more notify the lot owner of the right to bring a court action in the circuit court of the county or city where the lot lies to assert the nonexistence of a financial obligation or any other defense of the lot owner to the sale.


2. After expiration of the 60-day notice period specified in subdivision 1, the association might appoint a trustee to carry out the sale. The appointment of the trustee will be filed in the clerk's office of the circuit court in the county or city in which such advancement is located. It will be the duty of the clerk in whose workplace such appointment is submitted to record and index the like supplied in subsection D, in the names of the individuals recognized in such appointment as well as in the name of the association. The association, at its option, may from time to time remove the trustee and select a follower trustee.


3. If the lot owner satisfies the conditions specified in this subdivision prior to the date of the foreclosure sale, the lot owner will have the right to have enforcement of the improved lien terminated prior to the sale of the lot. Those conditions are that the lot owner (i) please the debt protected by lien that is the subject of the nonjudicial foreclosure sale and (ii) pay all costs and expenses incurred in refining and implementing the lien, including marketing expenses and affordable lawyer fees.


4. In addition to the ad needed by neighborhood 5, the association will give written notice of the time, date, and place of any suggested sale in execution of the lien, including the name, address, and phone number of the trustee, by hand shipment or by mail to (i) today owner of the residential or commercial property to be sold at his last recognized address as such owner and address appear in the records of the association, (ii) any lienholder who holds a note against the residential or commercial property protected by a deed of trust taped a minimum of 1 month prior to the proposed sale and whose address is recorded with the deed of trust, and (iii) any assignee of such a note secured by a deed of trust, provided that the assignment and address of the assignee are likewise taped at least one month prior to the proposed sale. Mailing a copy of the advertisement or the notice containing the very same information to the owner by licensed or registered mail no less than 14 days prior to such sale and to lienholders and their appoints, at the addresses noted in the memorandum of lien, by United States mail, postage prepaid, no less than 14 days prior to such sale, shall be a sufficient compliance with the requirement of notification.


5. The advertisement of sale by the association will be in a paper having a basic circulation in the county or city in which the residential or commercial property to be offered, or any part of such residential or commercial property, is located pursuant to the following arrangements:


a. The association will market when a week for four succeeding weeks; nevertheless, if the residential or commercial property or some part of such residential or commercial property is situated in a city or in a county immediately contiguous to a city, publication of the advertisement on five different days, which might be consecutive days, shall be considered sufficient. The sale shall be held on any day following the day of the last ad that is no earlier than eight days following the first ad nor more than 30 days following the last advertisement.


b. Such ad shall be put because section of the paper where legal notifications appear or where the type of residential or commercial property being sold is normally marketed for sale. The advertisement of sale, in addition to such other matters as the association discovers appropriate, shall state a description of the residential or commercial property to be sold, which description need not be as substantial as which contained in the deed of trust but will determine the residential or commercial property by street address, if any, or, if none, will offer the basic place of the residential or commercial property with reference to streets, routes, or known landmarks. Where readily available, tax map recognition might be used but is not required. The ad will also consist of the date, time, location, and terms of sale and the name of the association. It will set forth the name, address, and phone number of the representative, agent, or attorney who may be able to react to inquiries worrying the sale.


c. In addition to the advertisement required by subdivisions a and b, the association may even more promote as the association discovers suitable.


6. In case of post ponement of sale, which post ponement shall be at the discretion of the association, advertisement of such postponed sale will remain in the same manner as the original advertisement of sale.


7. Failure to adhere to the requirements for advertisement consisted of in this area shall, upon petition, render a sale of the residential or commercial property voidable by the court.


8. The association shall have the following powers and tasks upon a sale:


a. Written one-price bids may be made and will be received by the trustee from the association or anybody for entry by statement at the sale. Anyone besides the trustee may bid at the foreclosure sale, including a person who has actually sent a written one-price quote. Upon demand to the trustee, any other bidder in participation at a foreclosure sale will be allowed to examine written quotes. Unless otherwise supplied in the statement, the association may bid to acquire the lot at a foreclosure sale. The association may own, rent, overload, exchange, sell, or convey the lot. Whenever the composed bid of the association is the highest bid submitted at the sale, such written quote will be filed by the trustee with his account of sale required under neighborhood J 10 and § 64.2-1309. The composed quote submitted pursuant to this subsection may be prepared by the association, its agent, or its attorney.


b. The association might need any bidder at any sale to post a money deposit of as much as 10 percent of the list price before his bid is received, which will be refunded to him if the residential or commercial property is not sold to him. The deposit of the successful bidder shall be applied to his credit at settlement, or, if such bidder fails to complete his purchase promptly, the deposit shall be applied to pay the costs and costs of the sale, and the balance, if any, will be kept by the association in connection with that sale.


c. The association will get and receipt for the proceeds of sale, no buyer being needed to see to the application of the earnings, and apply the very same in the following order: initially, to the reasonable expenditures of sale, consisting of attorney costs; second, to the fulfillment of all taxes, levies, and assessments, with expenses and interest; 3rd, to the complete satisfaction of the lien for the owners' evaluations; 4th, to the complete satisfaction in the order of priority of any remaining inferior claims of record; and 5th, to pay the residue of the proceeds to the owner or his designates, supplied, nevertheless, that, regarding the payment of such residue, the association will not be bound by any inheritance, devise, conveyance, project, or lien of or upon the owner's equity, without actual notification thereof prior to circulation.


9. The trustee will deliver to the purchaser a trustee's deed communicating the lot with unique service warranty of title. The trustee shall not be required to take ownership of the residential or commercial property prior to the sale of such residential or commercial property or to deliver belongings of the lot to the purchaser at the sale.


10. The trustee will submit an accounting of the sale with the commissioner of accounts pursuant to § 64.2-1309, and every account of a sale shall be recorded pursuant to § 64.2-1310. In addition, the accounting will be provided for examination and copying pursuant to § 55.1-1815 upon the composed demand of the prior lot owner, the existing lot owner, or any holder of a taped lien versus the lot at the time of the sale. The association will maintain a copy of the accounting for a minimum of 12 months following the foreclosure sale.


11. If the sale of a lot is made pursuant to subsection I and the accounting is made by the trustee, the title of the buyer at such sale shall not be disrupted unless within 12 months from the verification of the accounting by the commissioner of accounts the sale is set aside by the court or an appeal is filed in the Court of Appeals or granted by the Supreme Court and an order is gotten in requiring such sale to be reserved.


1989, c. 679, § 55-516; 1991, c. 667; 1997, cc. 760, 766; 2000, c. 905; 2004, cc. 778, 779, 786; 2019, c. 712; 2021, Sp. Sess. I, c.