The death or incapacity of a member appointing a proxy does not affect the right of the corporation to accept the proxy’s authority, unless notice of the death or incapacity is received by the Secretary or other officer or agent authorized to tabulate votes before the proxy exercises authority under the appointment. N.C. Gen. Stat. § 55A-7-24.
Filing a lien and pursuing a civil action are two options available to associations for collecting unpaid assessments and fines from delinquent lot owners. It is also critical that you carefully evaluate the costs and benefits to the association before electing to pursue foreclosure. Many associations attempt to file their own liens without the assistance of an attorney, but because there are very technical statutory requirements involved, many miss the mark. These mistakes are critical because filing an invalid lien can constitute slander of title for which an association may be sued, in addition to creating a permanent obstacle to collecting the unpaid assessments. Mistake #1: Not waiting long enough before filing the lien. General Statute section 47F-3-116 governs the
Filing a lien and pursuing a civil action are two options available to associations for collecting unpaid assessments and fines from delinquent lot owners. For associations that elect to file a lien, the next step when the owner continues to refuse to pay is foreclosure. Foreclosures can be expensive and time-consuming if the lot owner contests the proceedings or appeals the orders entered by the Clerk of Court to Superior Court. Therefore, it is critical that association boards carefully evaluate this option before electing to pursue this remedy. If there is a deed of trust, judgment lien, or other encumbrance on the property prior in time to the recorded association lien, the decision becomes more difficult. Foreclosure of the association
An appointment of a proxy is effective when received by the Secretary or other officer or agent authorized to tabulate votes. An appointment of a proxy is valid for 11 months unless a different period is expressly provided in the appointment form. N.C. Gen. Stat. § 55A-7-24.
Incorporated associations must prepare an alphabetical list of the names of its members entitled to notice of a meeting, showing the address and number of votes each member is entitled to cast. N.C. Gen. Stat. § 55A-7-20(a). The list must be made available for inspection prior to the meeting and during the meeting. N.C. Gen. Stat. § 55A-7-20(b).
So far in our series we have outlined the general nature of those rights and how long they can last, the requirements of transferring those rights from one person or company to another, and what happens when your declarant’s lender forecloses. In our last part of the series, we discuss what you can do when disputes arise between the declarant and the owners. An association and its members under the control of the declarant have few options to resist a declarant who is abusing control. Board members have a fiduciary duty to the association and this fiduciary duty must be met even if it conflicts with the desires of the declarant who appoints board members. If the board ignores its
As discussed in our post “‘Lien’ on Me”, we are frequently asked for advice on how to collect unpaid assessments and fines. While the answer for your specific association depends on the particular facts of each situation, there are some general guidelines that can help your board make decisions regarding collections. The first option, discuss in our earlier post, is to record a lien against the lot and demand payment from the lot owner. The second option is a civil action against the lot owner(s) to recover the unpaid account. This option can be especially attractive where one member owns several delinquent lots and each lot would have to be foreclosed separately or where the lot is secured by a
We are frequently asked for advice on how to collect unpaid assessments and fines. While the answer for your specific association depends on the particular facts of each situation, there are some general guidelines that can help your board make decisions regarding collections. The first option is to record a lien against the lot and demand payment from the lot owner. Recording a lien for unpaid assessments coupled with a demand letter for payment of the assessments and attorneys’ fees is usually a good first step in the collection process. Our firm charges affordable flat fees for preparation and recording of the lien and for the statutory letter that permits the recovery of attorney’s fees if the amount demanded is
In Part 1 of our series on special declarant rights, we explained the general nature of those rights and how long they can last, and in Part 2 we explored the requirements of transferring those rights from one person or company to another. In this installment, we discuss another aspect of declarant control that became particularly relevant in the recent collapse of the real estate market – what happens when your developer (the declarant) goes out of business. Unless a deed of trust, mortgage, or other security instrument provides otherwise, the developer loses all declarant rights and the period of declarant control ends when its lender forecloses. However, if the instrument conveying title provides for transfer of all special declarant
An Association is not permitted to foreclose on a claim of lien unless the Board specifically votes to commence the proceeding against the lot. N.C. Gen. Stat. § 47F-3-116(f)