English v. Parkfairfax Condo Ass'n

34 Va. Cir. 114, 1994 Va. Cir. LEXIS 82

Opinion

By Judge Alfred D. Swersky

This matter is before the Court on a petition to remove liens for assessments recorded by Respondent against property of Complainants. Petitioners complain that the liens were not “perfected” within the meaning of the statute (Code of Va., § 55-79.84) since they fail to list the dates the assessments and late fees were due and that they list assessments not yet due. Further, they argue that the liens are invalid because they are for assessments and fees due more than ninety days prior to the filing of the liens, and they improperly include attorneys’ fees and costs.

Respondent argues that two of the liens (Exhibits A and D attached to the Bill of Complaint) are validly perfected; that two are not perfected (Exhibits B and C). However, Respondent argues that the effect of the failure to perfect is not to render the lien invalid but simply to lose its claim to priority under the statute.

Petitioners will be granted the relief sought; that is, the liens will be declared invalid and removed as encumbrances on Petitioners’ property.

There has not been substantial compliance with the statutory scheme required to perfect the lien. Respondent has failed to specify the dates upon which the assessment and fees fell due; they have provided for future assessments when this is not permitted by statute;¹ they have provided for assessments older than the ninety days provided for in § 55-79.84(C); and have filed for attorneys’ fees and costs which are awardable by statute only upon filing of a suit to enforce the liens (§ 55-79.84(D)).

Since the liens are inchoate at the time they arise and have not been perfected in accordance with the statute, they may not be enforced as liens under this statute and must be dismissed. See § 55-79.84(D).

Respondent is free to pursue such claims as may be proper in an action at law. See § 55-79.84(G).

Petitioners’ request for attorneys’ fees are denied.

1 § 55-79.84(c)(3) refers only to “unpaid assessments currently due or past due.” There is no statutory provision for the acceleration of assessments creating a lien.