I am a trustee of a condominium trust and one of the owners has stopped making payment of their monthly condo fees. Are unpaid fees a priority lien and is there any action we should be taking in order to collect the amounts due?

A condominium association does enjoy a priority lien against the unit for the unpaid condominium fees except for a first mortgage of record and even with respect to a first mortgage the condominium association has a priority lien to the extent of the common expense assessments based upon a budget which become due during the six months immediately preceding the institution of an action to enforce a lien and to the extent of any costs and reasonable attorneys fees incurred in connection with bringing any such action. The priority amount ahead of the first mortgage does not include any amounts attributable to special assessments, late charges, fines, penalties and interest assessed by the condominium unit owners organization. The statute requires that the first mortgagee give notice to you that it holds a first mortgage but most of the time they do not. The first step you should take is to have the title to the unit run and send a letter to the holder of the first mortgage notifying them that the unit owner is not paying and telling them that if they do not bring it current that you will engage counsel in order to establish a priority lien. Most local lenders will be responsive to you because they recognize the priority and because they know that the legal fees will mount quickly and increase dramatically the amount due.  Unfortunately a lot of loans are serviced by out-of-state organizations which service thousands of loans and  they will probably be less responsive. In any event it is in your responsibility and in your interest to send a letter to the first mortgagee and institute an action to enforce the lien before six months in unpaid fees goes by. Given the priority of your position, is unlikely that once a law suit is brought the first mortgagee will continue to ignore your collection action.

If you have questions about this or any other legal matter, please contact Tom Bennett at (617) 531-6574 or tvb@barronstad.com.