Revision: Jan. 8, 2019, 9 a.m.
HB 436 - AS INTRODUCED
HOUSE BILL 436
SPONSORS: Rep. Almy, Graf. 13
COMMITTEE: Commerce and Consumer Affairs
This bill establishes an alternative judicial method for foreclosure of a lien on a condominium unit by the unit owners' association. The bill also clarifies the liability for common expenses for abandoned units.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Nineteen
Be it Enacted by the Senate and House of Representatives in General Court convened:
356-B:46-b Alternative Method for Foreclosure.
I. The unit owners' association may enforce its lien under RSA 356-B:46 by filing an action in the circuit court or superior court in the city or town where the property is located. At least 30 days prior to filing suit, the condominium association shall send notice to the unit owner and first mortgagee of record, of its intent to file suit to enforce its priority lien.
(a) Pre-suit notice to the unit owner shall be to the unit address unless the owner has provided the condominium or the condominium’s management, with an alternative address in writing.
(b) Pre-suit notice to the first mortgage holder shall be at the address stated on the recorded mortgage or such other address as the mortgagee provides in writing to the condominium or its management. A copy of all such notices shall be sent by regular and certified mail to the mortgagee’s resident agent, if any, in the state of New Hampshire.
(c) The condominium association shall name as parties to the lawsuit all unit owners and all lienholders of record as they appear with the registry of deeds as of the date of the filing of the complaint. Lienholders will be named as parties-in-interest to the suit. When the amount of a lien subject to foreclosure under this section has been established by a court, the court shall enter an order authorizing the sale of the real estate to satisfy the lien. The reasonable legal fees and costs incurred in enforcing the lien shall be part of the priority lien. Post-judgment legal fees, costs, and expenses, including those associated with conducting the foreclosure sale, shall be part of the priority lien but shall not exceed $6,000. Auctioneer fees shall also be part of the priority lien, separate from other costs and expenses, and shall be in the amount of 4 percent of the sale price or $5,000, whichever is less. The unit owners' association shall also be entitled to the condominium fees assessed after the issuance of the judgment, for up to 6 months, as part of the priority lien. Lienholders shall be entitled to an accounting of the post-judgment legal fees, costs and expenses, condominium assessments, and auctioneer fees for purposes of verification.
II. A foreclosure sale brought under this section shall not occur until authorization from a court of competent jurisdiction has been issued.
(a) Notice of the foreclosure sale shall be sent to the unit owner and all lienholders of record by regular and certified mail no less than 30 days prior to the sale date. The notice shall state the owner’s name, the unit address, as well as time and location of the sale. A copy of all such notices to the first mortgagee shall also be sent by regular and certified mail to the mortgagee’s resident agent, if any, in the state of New Hampshire.
(b) Notice of the sale shall also be published in a newspaper published in or circulated in, the city or town where the unit is located, for 3 consecutive weeks prior to the date of the foreclosure sale. The first publication shall occur at least 21 days prior to the sale date.
(c) The transfer of real estate through the public auction shall transfer the subject property free and clear of all encumbrances junior to the association’s priority lien, including all mortgages.
III. The unit owners' association conducting a lien foreclosure sale under this section shall utilize an auctioneer licensed to perform such services in the state of New Hampshire. The association shall maintain the right to reject any and all bids if said bids are not sufficient to satisfy the association’s priority lien or if such bids do not represent the foreclosure value of the property.
IV. The unit owners' association’s right to foreclose under this section shall neither create an obligation to do so nor prohibit the exercise of any other remedy available pursuant to this chapter, at law or in equity. The association’s right to foreclose under this section is an optional additional remedy which does not replace or alter other remedies available pursuant to New Hampshire law or pursuant to the governing instruments of a unit owners' association.
2 New Paragraph; Liability for Common Expenses. Amend RSA 356-B:45 by inserting after paragraph III the following new paragraph:
IV. A unit owner shall not exempt himself or herself from liability for contribution toward the common expenses by waiver of the use or enjoyment of any of the common areas and facilities or by abandonment of the unit or otherwise. A unit owner shall not be entitled to an offset, deduction, or waiver of common expenses or other charges levied or lawfully assessed by the organization of unit owners. All condominium fees assessed by a condominium association shall be deemed lawful unless they have been declared invalid by a court.