Homeowners Association Trustee Must Notify Delinquent Homeowners of Redemption Right Following Foreclosure Sale of Their Condominium Unit
Multani v. Witkin & Neal, Castle Green Condominium Association, etc.
By David Swedelson, Condo Lawyer and HOA Attorney, Partner at SwedelsonGottlieb, Community Association Attorneys
As we have previously reported, when property is sold through non-judicial foreclosure on an assessment lien, buyers (third parties or the association) take ownership subject to a 90-day right of redemption, which allows the foreclosed owner to recover the property if the owner pays the delinquency and any fees and costs (Civil Code §1367.4(c)(4); Code of Civil Proc. §729.035).
This right of redemption is unusual in that it does not apply to non-judicial foreclosure on trust deeds; it was added to the law for community associations several years ago to help owners so they do not lose their homes because they did not pay their associations’ assessments or fees. Owners rarely take advantage of this right. But that does not mean that the foreclosing association and, more specifically, the foreclosure trustee retained by the association do not need to give notice of this right. And this was confirmed in the recent Court of Appeal decision in the case of Multani v. Witkin & Neal.
Print this Post
The Daily Journal, a newspaper for attorneys, reports weekly on various verdicts and settlements. I read those reports, as it keeps me up on what kind of cases are being filed and what kind of verdicts and settlements are being made.
Many owners buy units, lots or homes at community associations that have views and are later shocked to learn that the view they cherish, the view that caused them to buy that home, is not guaranteed. The question that has been posed is whether or not property owners are entitled to an unobstructed view. With some exceptions, the answer in California is “no.” The California Supreme Court spoke on this subject in the late 19th century case of Kennedy v. Burnap and established the doctrine in California that one’s ownership of land does not imply a right to force owners of neighboring land to refrain from obstructing the view from the land or the light and air reaching the land. This law has not changed all that much since that case was decided in 1898.
California community association attorneys, managers and others in the industry have differing opinions on how to properly and legally proceed with uncontested elections — elections in which the number of candidates is less than or equal to the number of board positions needed to be filled. Prior to 2006 when the election process and procedures were changed and secret elections were mandated, the answer was simple. No election was required, and candidates were deemed the elected board by way of acclamation. Since 2006, the law has changed, and elections must be held by way of a secret ballot process. Some attorneys know that the days of deeming the board elected by acclamation are over; others think the opposite.
Sometimes, owners sue their condo or homeowners association in small claims court. And sometimes, they win, and there is a judgment to be satisfied. The association pays the amount of the judgment and then wants a receipt showing that the judgment is not owed any longer. They do not know what to do when a judgment or a portion of a judgment has been satisfied. How do you get the homeowner creditor, flush with the fruits of their lawsuit, to provide their association with an "acknowledgment of satisfaction of judgment" (the form that should be completed and filed with the court to show that the judgment is no longer owed)? Board members and managers often ask why they would bother taking this step since the judgment is satisfied.
Many California community associations have a difficult time achieving a quorum to hold board elections or to vote on other important association matters. Some condo and planned development homeowner associations have not been able to hold a vote for a new Board of Directors for many years because they require a quorum of at least 50% of the owners. And unlike many other community associations, they do not have a reduced quorum provision in their bylaws that allows them to hold the meeting and take the vote of the owners with 25% of the owners constituting a quorum. Some associations cannot even achieve a quorum with just 25% of the owners.
A pipe, window or some other element of the common area leaks or breaks, and a condo association board decides that it is exclusive use common area and the unit owner’s repair and/or replacement responsibility, as it serves only that one unit. The problem is that this is not what the law provides. And while it may be what many board members and managers want to see happen, this is really contrary to the condominium concept where, unless the CC&Rs otherwise state, the association is responsible for the repair or replacement of the common area, and exclusive use common area is part of the common area. Let's face reality, we really do not want to see owners opening up and trying to repair the common area, as they may likely not do the right repair, and that may come back to haunt the association in the future (after that owner has sold and moved). 
