I received a call today from a manager of an HOA telling me she had just gotten off the phone with a homeowner who was refusing to pay his assessments because he felt the association was not properly maintaining the common area in front of his residence. He stated until the HOA did its “job,” he would not be paying assessments. The manager asked, “Can he do that?” The answer, I told her, was “No!”
This issue was addressed by the court in Park Place Homeowners Association, Inc. v. Naber (1994) 29 Cal.App.4th 427. Under California law, an owner’s obligation to pay assessments is not subject to offset. As the court in Naber recognized, homeowners associations would cease to exist without the regular payment of assessment fees by its members. In fact, the need for an HOA to regularly and collect assessments from the owners is so important that the legislature has created procedures for associations to quickly and efficiently seek relief against a nonpaying owner in the form of liens and foreclosure. Permitting an owner to assert the homeowners association’s conduct as a defense or offset to an enforcement action would “seriously undermine” those rules and procedures.
That does not mean an owner is left without a remedy if the association is violating the CC&Rs. In California an owner has two options. One is the option recognized by the court in Nabor. The owner can file legal action against the association.
The other option, pursuant to California Civil Code section 1367.6, is that if an owner disagrees with the amount of an assessment, fine, penalty, late fee, collection cost, or monetary penalty imposed as a disciplinary measure, and the amount in dispute is within the jurisdictional limit of the small claims court, the owner may, in addition to pursuing dispute resolution, pay the disputed amount and all other amounts levied under protest and commence an action in the small claims court. This allows the association to meet its financial obligations by allowing for the regular payment of assessments, and still allows an owner to avoid the unpleasant option and uncertainty of facing foreclosure as a result of failing to pay their assessments while providing protection that if there is a error on the part of the association, there are several methods to bring that error to the attention of the association, or if necessary, to a judge.
