Verbatim from the public record. The law itself is a government work — always confirm the current version on the official source before you rely on it.
(a) All sums assessed by the
association, but unpaid for the share of the assessments chargeable to any
unit, shall constitute a lien on the unit. The priority of the association's
lien shall, except as otherwise provided by law, be as provided in the association
documents or, if no priority is provided in the association documents, by the
recordation date of the liens; provided that any amendment to the association
documents that governs the priority of liens on the unit shall not provide that
an association lien shall have priority over a mortgage lien that is recorded
before the amendment is recorded. A lien recorded by an association for unpaid assessments shall expire six years from the
date of recordation
unless proceedings to enforce the lien are instituted prior to the expiration
of the lien; provided that the expiration of a recorded lien shall in no way affect the
association ' s automatic lien that arises pursuant
to this subsection or the association documents. Any proceedings to enforce an association ' s lien for any
assessment shall be instituted within six years after the assessment became
due; provided that if the owner of a unit subject
to a lien of the association files a petition for relief under the United
States Bankruptcy Code (11 U.S.C. §101 et seq. ), the period of time for
instituting proceedings to enforce the association ' s lien shall be tolled until thirty days after the automatic stay of
proceedings under s ection 362 of the United States
Bankruptcy Code (11 U.S.C. §362) is lifted.
The lien of the association may be
foreclosed by action or by nonjudicial or power of sale foreclosure procedures
set forth in chapter 667, by the managing agent or board, acting on behalf of
the association and in the name of
the association; provided that no association may exercise
the nonjudicial or power of sale remedies provided in chapter 667 to foreclose
a lien against any unit that arises solely from fines, penalties, legal fees,
or late fees, and the foreclosure of any such lien shall be filed in court
pursuant to part IA of chapter 667. In any association foreclosure, the unit owner shall be
required to pay a reasonable rental for the unit, if so provided in the
association documents or the law, and the plaintiff in the foreclosure shall be
entitled to the appointment of a receiver to collect the rental owed by the
unit owner or any tenant of the unit. If the
association is the plaintiff, it may request that its managing agent be
appointed as receiver to collect the rent al from the
tenant. The managing agent or board, acting on behalf of the association and in the name of the association, may bid on the unit at foreclosure
sale and acquire and hold, lease, mortgage, and convey the unit thereafter as the board deems reasonable. Action to recover a money judgment for unpaid assessments shall be
maintainable without foreclosing or waiving the lien securing the unpaid
assessments owed.
In the case of a voluntary
conveyance, the grantee of a unit shall be jointly and severally liable with
the grantor for all unpaid assessments against the latter for the grantor's
share of the common expenses up to the time of the grant or conveyance, without
prejudice to the grantee's right to recover from the grantor the amounts paid
by the grantee. Any such grantor or grantee is entitled to a statement from
the board, either directly or through its managing agent or resident manager,
setting forth the amount of the unpaid assessments against the grantor. The
grantee is not liable and the unit conveyed is not subject to a lien for any
unpaid assessments against the grantor in excess of the amount set forth in the
statement, except as to the amount of subsequently dishonored checks mentioned
in the statement as having been received within the thirty - day period immediately preceding the date of such statement.
(b) Except as provided in subsection ( g ) or in the association documents, when the mortgagee of a mortgage of
record or other purchaser of a unit obtains title to the unit as a result of
foreclosure of the mortgage, the acquirer of title and the acquirer's
successors and assigns shall not be liable for the share of the assessments by
the association chargeable to the unit that became due
prior to the acquisition of title to the unit by the acquirer. The unpaid share of assessments shall be deemed
to be assessments collectible from all of the unit owners, including the
acquirer and the acquirer's successors and assigns. The mortgagee of record or other purchaser of the unit shall be deemed
to acquire title and shall be required to pay the unit's share of assessments
beginning:
(1) Thirty-six days after the order confirming the sale to the purchaser has
been filed with the court;
(2) Sixty days after the hearing at which the court grants the motion to
confirm the sale to the purchaser;
(3) Thirty days after the public sale in a nonjudicial power of sale
foreclosure conducted pursuant to chapter 667; or
(4) Upon the recording of the instrument of
conveyance;
whichever occurs first; provided
that the mortgagee of record or other
purchaser of the unit shall not be deemed to acquire title under paragraph (1),
(2), or (3), if transfer of title is delayed past the thirty-six days specified
in paragraph (1), the sixty days specified in paragraph (2), or the thirty days
specified in paragraph (3), when a person (other than the mortgagee of record or other purchaser of the unit) who appears at the hearing on the
motion or a party to the foreclosure action (other than the mortgagee of record or other purchaser of the unit) requests reconsideration of the
motion or order to confirm sale, objects to the form of the proposed order to
confirm sale, appeals the decision of the court to grant the motion to confirm
sale, or the debtor or mortgagor declares bankruptcy or is involuntarily placed
into bankruptcy. In any such case, the mortgagee of
record or other purchaser of the unit shall be deemed to acquire title upon
recordation of the instrument of conveyance.
(c) Except as provided in section 667-92(c), no unit owner shall withhold
any assessment claimed by the association. A unit owner who disputes the amount of an assessment may request a
written statement clearly indicating:
(1) The amount of regular and special assessments included in the assessment,
including the due date of each amount claimed;
(2) The amount of any penalty, late fee, lien filing fee, and any other
charge included in the assessment;
(3) The amount of attorneys' fees and costs, if any, included in the
assessment;
(4) That under Hawaii law, a unit owner has no right to withhold assessments
for any reason;
(5) That a unit owner has a right to demand mediation to resolve disputes
about the amount or validity of an association's assessment; provided that the unit owner immediately pays the
assessment in full and keeps assessments current; and
(6) That payment in full of the assessment does not prevent the unit owner from contesting the assessment or receiving a refund of amounts not
owed.
Nothing
in this section shall limit the rights of a unit owner to the
protection of all fair debt collection procedures mandated under federal and
state law.
(d) A unit owner who pays an
association the full amount claimed by the association may file a claim against the association in court, including small
claims court, or require the association to
mediate under section 421J-13 to resolve any disputes concerning
the amount or validity of the association's claim. If the unit owner and the association are unable to resolve the dispute
through mediation, either party may file for relief with a court;
provided that a unit owner may only file for relief in court if all amounts claimed by the association are paid in full on or
before the date of filing. If the unit
owner fails to keep all association assessments current during the court hearing, the association may ask the court to temporarily suspend the proceedings. If the unit owner pays all association assessments within thirty days of
the date of suspension, the unit owner may ask the court to recommence the proceedings. If the unit owner fails to pay all association assessments by the end of the
thirty-day period, the association may ask the court to dismiss
the proceedings. The unit owner shall be entitled to
a refund of any amounts paid to the association that are not owed.
(e) In conjunction with or as an
alternative to foreclosure proceedings under subsection (a), where a unit is
owner-occupied, the association may authorize its managing agent or board,
after sixty days written notice to the unit owner of the unit's share of the
assessments, to terminate the delinquent unit's
access to the common areas and cease supplying a delinquent
unit with any and all services normally supplied or paid for by the
association. Any terminated services and privileges shall be restored upon
payment of all delinquent assessments, but need not be
restored until payment in full is received.
(f)
Before the board or managing agent may take the actions permitted under
subsection (e), the board shall adopt a written policy providing for such
actions and have the policy approved by a majority vote of the unit owners,
as provided in the association documents, who are present in person or by proxy
or as otherwise permitted by the association documents, at an
annual or special meeting of the association or by the written consent of a voting
interest equal to a quorum of the unit owners unless the association
documents already permit the process.
(g) Subject to this subsection and
subsection (h ), the board may specially assess the
amount of the unpaid regular periodic
assessments for
assessments against a person who, in a judicial or nonjudicial power of sale
foreclosure, purchases a delinquent unit; provided that:
(1) A purchaser who holds a mortgage on a delinquent unit, which mortgage is not subordinate to the priority
o f lien by the
association, and who acquires the delinquent unit
through a judicial or nonjudicial foreclosure proceeding, including purchasing
the delinquent unit at a foreclosure auction, shall not be obligated to make,
nor be liable for, payment of the special assessment as provided for under this
subsection; and
(2) A person who subsequently purchases the delinquent unit from the
mortgagee referred to in paragraph (1) shall be obligated to make, and shall be
liable for, payment of the special assessment provided for under this
subsection; and provided further that the mortgagee or subsequent purchaser may
require the association to provide, at no charge, a notice of the association's intent to claim a lien against the delinquent unit for the amount of the special
assessment, prior to the subsequent purchaser's acquisition of title to the
delinquent unit. The notice shall state the amount of
the special assessment, how that amount was calculated, and the legal
description of the unit.
(h) The amount of the special assessment assessed under subsection (g) shall
not exceed the total amount of unpaid regular periodic
assessments that were assessed during the six months
immediately preceding the completion of the judicial or nonjudicial power of
sale foreclosure.
(i) For purposes of
subsections (g) and (h), the following definitions shall apply, unless the
context requires otherwise:
"Completion" means:
(1) In a nonjudicial power of sale foreclosure, when the affidavit required
under section 667-33 is recorded; and
(2) In a judicial foreclosure, when a purchaser is deemed to acquire title
pursuant to subsection (b).
"Regular periodic assessments" does not include:
(1) Any special assessment, except for a special assessment imposed on all
units as part of a budget adopted pursuant to the association documents;
(2) Late charges, fines, or penalties;
(3) Interest assessed by the association;
(4) Any lien arising out of the assessment; or
(5) Any fees or costs related to the collection or enforcement of the
assessment, including attorneys' fees and court costs. [L 2012, c 182, pt of § 2(1); am L 201 4, c 65, § 2 ]