§ 3-116 — Lien for sums due association; enforcement

(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 attorney’s fees and costs, other fees, charges, late charges, fines, and interest charged pursuant to subdivisions 3-102(a)(10), (11), and (12) of this title, and any other sums due to the association under the declaration, this title, 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 becomes due.
(b) A lien under this section is prior to all other liens and encumbrances on a unit except:
(1) liens and encumbrances recorded before the recordation of the declaration; and
(2) except as otherwise provided in subsection (c) of this section, a first mortgage or deed of trust on the unit recorded before the date on which the assessment to be enforced became delinquent; and
(3) liens for real estate taxes and other governmental assessments or charges against the unit.
(c) A lien under this section is also prior to all security interests described in subdivision (b)(2) of this section to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to subsection 3-115(a) of this title that would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien. Subsections (b) and (c) of this section do not affect the priority of mechanics’ or materialmen’s liens, or the priority of liens for other assessments made by the association. A lien under this section is not subject to the provisions of 27 V.S.A. chapter 3.
(d) Unless the declaration otherwise provides, if two or more associations have liens for assessments created at any time on the same property, those liens have equal priority.
(e) Recording the declaration constitutes record notice and perfection of the lien. No further recording of any claim or lien for assessment under this section is required.
(f) A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within three years after the full amount of the assessment becomes due.
(g) This section does not prohibit an action against unit owners to recover sums for which subsection (a) of this section creates a lien or an association from taking a deed in lieu of foreclosure.
(h) A judgment or decree in any action brought under this section shall include an award of costs and reasonable attorney’s fees to the prevailing party.
(i) The association, upon request made in a record, shall furnish to a unit owner a statement of the amount of unpaid assessments against that unit. If the unit owner’s interest is real estate, the statement shall be recordable. The statement shall be provided within 10 business days after receipt of the request and is binding on the association, the executive board, and every unit owner.
(j) The association’s lien may be foreclosed pursuant to 12 V.S.A. chapter 172 and subsection (o) of this section. The association shall give the notice required by statute, or if there is no such requirement, reasonable notice of its action to all lienholders of the unit whose interest would be affected.
(k) A unit owner is not exempt from liability for payment of common expenses by a waiver of the use or enjoyment of any of the common elements or by abandonment of the unit.
(l) In an action by an association to collect assessments or to foreclose a lien on a unit under this section, the court may appoint a receiver to collect all sums alleged to be due and owing to a unit owner before commencement or during pendency of the action. The court may order the receiver to pay any sums held by the receiver to the association during pendency of the action to the extent of the association’s common expense assessments based on a periodic budget adopted by the association pursuant to section 3-115 of this title.
(m) An association may not commence an action to foreclose a lien on a unit under this section unless:
(1) the unit owner, at the time the action is commenced, owes a sum equal to at least three months of common expense assessments based on the periodic budget last adopted by the association pursuant to subsection 3-115(a) of this title and the unit owner has failed to accept or comply with a payment plan offered by the association; and
(2) the executive board votes to commence a foreclosure action specifically against that unit.
(n) Unless the parties otherwise agree, the association shall apply any sums paid by unit owners that are delinquent in paying assessments in the following order:
(1) unpaid assessments;
(2) late charges;
(3) reasonable attorney’s fees and costs and other reasonable collection charges; and
(4) all other unpaid fees, charges, fines, penalties, interest, and late charges.
(o) Notwithstanding subsection (a) of this section, unless sums due the association include an unpaid assessment, a foreclosure action may not be commenced against the unit unless the association has a judgment against the unit owner for the sums due the association and has perfected a judgment lien against the unit.
(p) Every aspect of a foreclosure, sale, or other disposition under this section, including the method, advertising, time, date, place, and terms, must be commercially reasonable.
(q) Unless other procedures are provided in the declaration, bylaws, or rules, an association of time-share unit owners may not deny an owner of a time-share access to the owner’s time-share for failure to pay an assessment unless:
(1) the time-share owner is delinquent in payment of that owner’s common expense assessments based on the periodic budget last adopted by the association pursuant to subsection 3-115(a) of this title; and
(2) the association provides written notice of the delinquency to the time-share owner no less than 30 days after the date the assessment was due, but in no case later than 30 days before the date the time-share owner is entitled to occupy that owner’s time-share.
(3) The following provisions apply to the notice required in subdivision (2) of this subsection:
(A) The notice shall clearly state the total amount of any delinquency that then exists, including any accrued interest and late charges permitted to be imposed under the terms of the declaration or bylaws and including a per diem amount, if any, to account for further accrual of interest and late charges between the stated effective date of the notice and the first date of use.
(B) The notice shall clearly state that the time-share owner will not be permitted to use his or her time-share interest, that the time-share owner will not be permitted to make a reservation in the time-share property’s reservation system, or that any confirmed reservation may be canceled, as applicable, until the total amount of such delinquency is satisfied in full or until the time-share owner produces satisfactory evidence that the delinquency does not exist.
(C) The notice shall be mailed to the time-share owner at his or her last known address as recorded in the books and records of the time-share property, and the notice shall be effective to bar the use of the time-share owner and those claiming use rights under the time-share owner, including his or her guests, lessees, and the third parties receiving use rights in the time-share in question through a nonaffiliated exchange program, until such time as the unit owner is no longer delinquent.
(D) If the association elects to deny use of the owner’s time-share to any third party receiving use rights through an affiliated exchange program, the association shall at the same time provide similar written notice of the owner’s delinquency as required in subdivision (2) of this subsection to any affiliated exchange program. Receipt of the written notice by the affiliated exchange program is effective to bar the use of all third parties claiming through the affiliated exchange program. (Added 1997, No. 104 (Adj. Sess.), § 3, eff. Jan. 1, 1999; amended 2001, No. 46, § 13; 2009, No. 155 (Adj. Sess.), § 35, eff. Jan. 1, 2012; 2013, No. 102 (Adj. Sess.), § 3.)