Summary
noting Connecticut's statute limits a condominium association's priority lien to six months of common charges plus fees and costs
Summary of this case from In re WalkerOpinion
No. CV-11-6003706S
February 23, 2011
RULING RE FORECLOSURE (#106)
The plaintiff, Lakeridge Association, Inc., seeks to foreclose a mortgage on a unit in a common interest community owned by Douglas Lynch and Rickey J. Combs. The plaintiff asserts that it holds a priority lien on the property. The plaintiff submitted two affidavits of debt. The first, dated January 20, 2011, claims that its priority lien should include common charges in the amount of $2,675.78 and interest in the amount of $68.96. The second affidavit of debt, entitled "Update of Debt," is dated February 15, 2011. It refers to additional common charges for February 2011 and additional interest for February 2011. It does not distinguish between the defendants' total debt and the amount of debt that may be factored into determining the plaintiff's six-month priority lien.
There is no authority for the court to allow interest to be included in a condominium association's priority lien. The court will allow, only, a priority lien that represents six months of common charges plus appropriate attorneys fees and costs.
FACTS
This action involves a unit owned by defendants Douglas Lynch and Rickey J. Combs, neither of whom have appeared in this case. The condominium association brought this foreclosure action, asserting that the defendants have failed to pay monthly common charges since June 2010, that the current total debt is $3,346.24, and that the six-month priority lien to which it is entitled equals $2,744.74. The latter figure includes interest charges for six months in the amount of $68.96. This matter came before the court and was heard on February 22, 2011.
DISCUSSION
The issue before the court is to determine the nature of charges and expenses that are appropriately included in a condominium association's six-month priority lien. In order to resolve this question it is appropriate to turn, first, to General Statutes § 47-258. That statute provides, in relevant part, as follows:
"(a) The association has a statutory lien on a unit for any assessment attributable to that unit or fines imposed against its unit owner. Unless the declaration otherwise provides, reasonable attorneys fees and costs, other fees, charges, late charges, fines and interest charged pursuant to subdivisions (10), (11), and (12) of subsection (a) of section 47-244 and any other sums due to the association under the declaration, this chapter, or as a result of an administrative, arbitration, mediation or judicial decision, are enforceable in the same manner as unpaid assessments under this section. If an assessment is payable in installments, the full amount of the assessment is a lien from the time the first installment thereof becomes due.
(b) A [condominium association] lien under this section is . . . prior to all security interests described in subdivision (2) of this subsection to the extent of (A) an amount equal to the common expense assessments based on the periodic budget adopted by the association pursuant to subsection (a) of 47-257 which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce either the association's lien or a security interest described in subdivision (2) of this subsection and (B) the association's costs and attorneys fees in enforcing its lien. A lien for any assessment or fine specified in subsection (a) of this section shall have the priority provided for in this subsection in an amount not to exceed the amount specified in subparagraph (A) of this subsection."
Thus, Section 47-258 provides that the association's priority lien is equal to "common expense assessments based on the periodic budget" during the six months prior to the foreclosure action and the association's costs and attorneys fees in enforcing its lien. This issue came before the court in People's United Bank v. Rieger, Superior Court, judicial district of Fairfield, Docket No. CV 095023963 (October 14, 2009, Doherty, J.) [ 48 Conn. L. Rptr. 660]. In Reiger, the association sought to include in the priority lien common charges, late fees, interest, a parking lot special assessment, and a capital improvements special assessment. The court analyzed Section 47-258 and concluded that, by the plain language of section 47-258(b), an association's lien does include late fees and interest, but "the priority lien is limited to those elements articulated in subparagraph (A)." The court relied on the plain meaning of Section 47-258 and also the Supreme Court opinion in Linden Condominium Association, Inc. v. McKenna, 247 Conn. 575, 726 A.2d 502 (1999).
In Linden Condominium Association, our Supreme Court made clear that Section 47-258(b) creates a priority for common charges and also creates a "superpriority," i.e., the six months priority lien, that includes "six months of common charges and attorneys fees and costs prior to first and second mortgages and taxes, and establishes a recording lien for the remainder of the common charges that is prior to many other liens." Id., 584-85. Thus, the superpriority can only include precisely what Section 47-258(b) provides: the common charges that "would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce . . . the association's lien . . ." As the court pointed out in Reiger, "a party does not usually incur late fees and late interest in the absence of default . . ." Therefore, late fees and late interest cannot be included in the superpriority.
Accordingly, the plaintiff's priority lien is limited to six months of common charges totaling $2,675.78, plus appropriate attorneys fees and costs.
"Costs" do not include interest on common expense assessments. See General Statutes §§ 52-249(a); 52-257.
So ordered.