The Massachusetts Condo 6(d) Certificate, Explained

A Massachusetts condominium sale runs through a letter from the association, and the statute gives the association its own stretch of time to write it. That stretch of time is what tends to move a closing date.

What the statement is

Section 6(d) of chapter 183A describes a statement from the organization of unit owners setting forth the amount of unpaid common expenses and any other sums assessed against a unit owner, including the amount the organization claims is entitled to priority with respect to any mortgage under subsection (c). Recorded in the appropriate registry of deeds, that statement operates to discharge the unit from any lien for other sums then unpaid. Where the organization is unincorporated, the recorded statement has to specify the book and page, or document number for registered land, of the instrument giving the signer authority.

The ten business day clock

The statement has to be furnished within ten business days after receipt of a written request, upon payment of a reasonable fee, and once furnished it binds the organization, its governing body and every unit owner. A mortgagee foreclosing on a unit, having given notice of its intention to foreclose, owes no fee. Nothing in the section shortens the period because a closing is scheduled, which is the practical reason to send the request the week a unit is listed rather than the week the deal closes.

Why a lender insists on it

Subsection (c) is the reason. The association’s lien is prior to all other liens and encumbrances except those recorded before the master deed, a first mortgage recorded before the assessment went delinquent, and municipal tax and assessment liens. It then jumps ahead of even that first mortgage for common expense assessments, based on the annually adopted budget, that would have become due without acceleration during the six months immediately preceding an action to enforce the lien, together with the costs and reasonable attorneys’ fees of that action. The statute expressly keeps special assessments, late charges, fines, penalties and interest out of the priority amount.

The lien exists without any filing

Recording of the master deed constitutes record notice and perfection of the lien, and no further recordation of a claim of lien is required. The organization has a lien on a unit for any common expense assessment from the time it becomes due, and assessments must be made at least annually from a budget adopted at least annually under the master deed, trust or by-laws. The unit owner is also personally liable for the assessed sums, including late charges, fines, penalties, interest and collection costs.

The notice timeline behind the letter

When any portion of an owner’s share has been delinquent at least sixty days, the organization sends notice of the amount to the owner by certified and first class mail, and to the first mortgagee if that lender has supplied its name and mailing address. Thirty days before filing an action to enforce the lien, it sends the mortgagee notice of that intention. Failing to send either notice doesn’t defeat the six month priority, but it strips the costs and attorneys’ fees out of the priority amount.

The rent remedy

There’s a separate tool for a unit that’s rented out. If an owner fails to pay a share of common expenses for at least twenty-five days from its due date, the organization may collect from any tenant renting the unit the rent then or thereafter due to the owner, subject to the rights of a first mortgage holder. Written notice to the delinquent owner comes first, stating the exact amount claimed and the intent to collect from rent, sent by a method requiring a signed receipt, with a copy to any first mortgagee that has asked to be told about delinquencies. The owner then has ten days to respond in writing under the pains and penalties of perjury, with proof of payment or a plain statement of what is disputed.

What sellers and buyers should do with this

Sellers: put the written request in early, budget for the fee, and read the statement when it arrives rather than forwarding it unopened, because a number you disagree with is easier to fix in week one than on closing day. Buyers: the statement only tells you what the unit owes today, so read it alongside the budget, the reserve figure and the minutes to see how the building is doing. Selling or buying a condo in Greater Boston this fall? Send me the address and I’ll map out which association documents your deal will need and when to ask for them. Diana Kim, REALTOR®, eXp Realty.