Home Owner Association Fees: Should I Pay Them?

SO, you filed a Chapter 7 bankruptcy, and you are surrendering your home which is located in a subdivision with home owner association fees. If you are surrendering the house to the mortgagee, should you continue to pay home owner association fees?

At first glance, you might think if the house is being surrendered in the bankruptcy, why should I need to continue to pay home owner association fees? After all, after the bankruptcy, I will not own the house anymore, right?

Well not necessarily. Sometimes the mortgagee does not want the property, for any number of reasons. The property could be contaminated. Guess who would be responsible for cleanup. That's right, the owner. The property could also have problems, like being in the bottom of a sink hole. The mortgagee could end up with property there is very little, or no market for, but just be obtaining liability. Another reason has recently come to light, related to home owner association fees. In Florida, the owner is personally responsible for the payment of the fees.

How does this apply to bankruptcy?

Although one can list within their Statement of Intentions for real property to be surrendered, the Courts have said one can not make the mortgagee to take the property. Hence, until the bank owns the property, they are not responsible for the homeowner association fees. Just as you do not want to have to pay the home owner association fees, the bank does not want to be stuck with them either.

So, obviously your question would be, how can one make the bank take the property? Well, I, along with numerous other attorneys, are trying to find an answer to that question. As of now, as far as I know, you can not. In Florida, the transfer of real property requires both delivery and acceptance. The problem is, although you can give something to away, you can not make one take it.

The home owner association fees, generally, are discharged up to the date of the filing of the bankruptcy. Association fees incurred post petition (after the filing of the bankruptcy) are not discharged, and are personally assessed to the property owner(s). What does that mean? Well, it means the owners are personally responsible for the fees, even after home owner association foreclosures on the property, that is, unless the association can satisfy the amount due to them from the sale of the property though the foreclosure proceeds.

In short, one can loose their real property through foreclosure, and still be stuck with being responsible for the payment of home owner association fees. You should consult with your attorney concerning this.