Massachusetts HOA fine rules

What this means for homeowners

• Massachusetts has no homeowners association act. For a single-family development governed by recorded covenants, no Massachusetts statute requires the association to give notice before levying a fine, sets a cure period, guarantees a hearing, or caps the amount of a fine. Whether such an association may fine at all, how much, and what steps it must take first are set by the recorded declaration, covenants and restrictions, bylaws and rules, together with the Massachusetts nonprofit corporation law or the law of trusts for an association organized under them, which supply organizational mechanics rather than fine procedure.
• Massachusetts's only common-interest-community statute is the condominium chapter, Mass. Gen. Laws ch. 183A, and it does not apply to a single-family homeowners association. "This chapter shall apply only when the owner of the land or the lessee of the land submits such owner's or lessee's interest in the land hereof by duly executing and recording a master deed with an assent by the lessor in the case of a leasehold condominium, containing a statement to the effect that the owner or lessee proposes to create a condominium to be governed by the provisions of this chapter," and "The provisions of this chapter shall not be deemed to preclude or regulate the creation or maintenance of other interests in real property not expressly declared by the owner or lessee to be subject thereto" (ch. 183A, § 2). Property outside a recorded master deed is outside the chapter.
• Even on the condominium side Massachusetts attaches no notice or hearing requirement to a fine, which is a meaningful contrast with the many states that do. Chapter 183A gives the condominium organization the power "To impose charges or to charge interest for the late payment of common expense assessments or other charges, and to levy reasonable fines for violations of the master deed, trust, by-laws, restrictions, rules or regulations of the organization of unit owners" (ch. 183A, § 10(b)(5)) — with no accompanying condition of notice, opportunity to be heard, cure period or dollar limit. The word "heard" does not appear anywhere in ch. 183A, and the word "hearing" appears exactly once in the whole chapter, in a passage about electronic meetings that has nothing to do with fines: the governing body "shall take reasonable measures to ensure that unit owners can participate fully, including by reading or hearing the proceedings and posing questions or comments" (§ 24(b)). No section of the chapter attaches a hearing, or any other process, to a fine. The chapter's mandatory by-law list requires only a method of maintenance and payment, the manner of collecting common expenses, a hiring procedure, a method of adopting and amending rules, and use restrictions designed to prevent unreasonable interference (§ 11); it does not require any fine procedure. Chapter 183A does permit, but does not require, by-laws providing "A procedure for submitting the disputes arising from the administration of the condominium to arbitration" (§ 12(b)).
• What ch. 183A does supply for condominiums is collection machinery and a records right. Fines are collected like assessments: the organization "may also assess any fees, attorneys' fees, charges, late charges, fines, costs of collection and enforcement, court costs, and interest charged pursuant to this chapter against the unit owner and such assessment shall constitute a lien against the unit from the time the assessment is due, and shall be enforceable as common expense assessments under this chapter" (ch. 183A, § 6(a)(ii)), and "The unit owner shall be personally liable for all sums assessed for his share of the common expenses including late charges, fines, penalties, and interest assessed by the organization of unit owners and all costs of collection including attorneys' fees, costs, and charges" (§ 6(b)). The one mandatory notice in the chapter concerns money already overdue, not a violation: "When any portion of the unit owner's share of the common expenses has been delinquent for at least sixty days subsequent to April 1, 1993, the organization of unit owners shall send a notice stating the amount of the delinquency to the unit owner by certified and first class mail" (§ 6(c)). Fines are excluded from the part of the association's lien that outranks a first mortgage: "The priority amount shall not include any amounts attributable to special assessments, late charges, fines, penalties, and interest assessed by the organization of unit owners" (§ 6(c)). Section 6 also contains the one place in the chapter where an owner is given a window to answer the organization in writing, and again it concerns money rather than a rule violation: before the organization may collect rent from a tenant of a delinquent owner it must give the owner written notice "sent by any form of mail or other delivery requiring or providing a signed receipt" setting forth "the exact amount the organization of unit owners claims is due and owing," and "The unit owner shall have ten days after receipt of such notice to file a written response with the organization of unit owners," a response signed under the pains and penalties of perjury that must either prove payment or "state in short and plain terms all grounds upon which said unit owner maintains that the amount claimed to be owed to the organization was incorrectly calculated or charged" (§ 6). On records, the organization must keep the master deed, the by-laws, the minute book and enumerated financial records, and "Such records shall be kept in an up-to-date manner within the commonwealth and shall be available for reasonable inspection by any unit owner or by any mortgagee holding a recorded first mortgage on a unit during regular business hours and at such other times as may be provided in the agreement between the manager or managing agent and the organization of unit owners. Access to said records shall include the right to photocopy said records at the expense of the person or entity making the request"; "All records shall be retained for a period of at least seven years" (§ 10(c)).