Tennessee § 66-27-415 - Lien for assessments.

§ 66-27-415. Lien for assessments.

The association has a lien on a unit for any assessment levied against that unit or fines imposed against its unit owner from the time the assessment or fine becomes due, which lien may be foreclosed by judicial action. Notwithstanding subdivision (a)(1), the declaration may provide that the association's lien may be foreclosed in like manner as a deed of trust with power of sale under title 35, chapter 5; provided, that the association shall give notice of its action to the unit owner and to all lienholders of record prior to the first publication of notice as required under title 35, chapter 5. Notice shall be deemed sufficient if sent by United States mail, postage prepaid: If to the unit owner, at the unit, or, if different, the last address for the unit owner on file with the association; or If to a lienholder, other interested party, or the nominee of record, at the address set forth in the instrument of record, or, if different, at such other address as the lienholder, the other interested party, or the nominee may have on file with the association. Notice shall be deemed received three (3) days after deposit in the United States mail, postage prepaid. Unless the declaration otherwise provides, fees, charges, late charges, fines, and interest charged pursuant to § 66-27-402(a)(10), (11), and (12) are enforceable as 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 of the assessment becomes due. A lien under this section is prior to all other liens and encumbrances on a unit, except: Liens and encumbrances recorded before the recordation of the declaration; A first or other contemporaneous mortgage or deed of trust on the unit recorded before the date on which the assessment sought to be enforced became delinquent; and Liens for real estate taxes and other governmental assessments or charges against the unit. Upon a foreclosure action initiated by a lien holder or the association under title 35, chapter 5, the association shall be entitled to a priority in the proceeds from the foreclosure sale to satisfy the lien under subsection (a) up to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to § 66-27-414, which would have become due in the absence of acceleration during the six (6) months immediately preceding institution of an action to enforce the lien, but not exceeding one percent (1%) of the maximum principal indebtedness of a lien secured by the first mortgage or deed of trust; provided, that, notwithstanding this subsection (b) or any law to the contrary: Any foreclosure by the association of its lien for assessments shall be subject to any prior mortgage or deed of trust encumbering the property and shall not extinguish the lien of such mortgage or deed of trust; Upon any foreclosure by the holder of a mortgage or deed of trust, the sale and foreclosure will be subject to the association lien up to the payment priority amount set forth in this subdivision (b)(2); and Any right of foreclosure or priority of the association shall not be transferable and shall be extinguished if assigned or transferred to a third party. This subsection (b) does not affect the priority of mechanics or materialmen's liens. The lien under this section is not subject to the statutory or other right of redemption, homestead, or any other exemption, unless specifically reserved in the declaration. Unless the first recorded declaration otherwise provides, if two (2) or more associations have liens for assessments created at any time on the same real estate, those liens have priority based upon the priority of recording of the declarations creating the liens. Recording of the declaration constitutes record notice of the lien. A lien for any delinquent assessment under this section up to the priority in payment provided in subdivision (b)(2) is perfected without recording. Any other delinquent amount above the priority of payment provided in subdivision (b)(2) is perfected by recording it in the lien book in the register of deeds office in the county where the real property is located, and shall have priority over any subsequently filed liens. The lien shall not have the priority provided for in subdivision (b)(2)(A) over the mortgages and deeds of trust described in subdivision (b)(1)(B) if the owner of the unit or the holder of any mortgage or deed of trust on the unit has notified the association in writing of the holder's name and address and the identity of the unit upon which it holds a first mortgage or deed of trust, and the association has failed, within thirty (30) days of the date that six (6) months of assessments for common expenses due from the unit became delinquent, to give written notice of the delinquency to the holder of the first mortgage or deed of trust at the address provided by the party. A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within six (6) years after the date the lien for the assessment becomes effective. This section does not prohibit actions to recover sums for which subsection (a) creates a lien or prohibits an association from taking a deed in lieu of foreclosure. A judgment or decree in any action brought under this section must include costs and reasonable attorney's fees for the prevailing party. The association, upon written request, shall furnish to a unit owner, or to a holder of any mortgage or deed of trust encumbering the unit, or their respective authorized agents, a written statement setting forth the amount of unpaid assessments against the owner's unit. The statement must be furnished within seven (7) days after receipt of the request and is binding on the association. Acts 2008, ch. 766, § 1; 2016, ch. 866, §§ 1, 2. Compiler's Notes. Acts 2016, ch. 866, § 3 provided that the act, which amended this section, shall apply to any foreclosure action initiated on or after June 1, 2016. Amendments. The 2016 amendment, in (a), redesignated former (1)(A)-(D) as present (2)-(4) respectively, substituted “Notwithstanding subdivision (a)(1)” for “Notwithstanding subdivision (a)(1)(A)” at the beginning of present (2), and inserted “other interested party, or the nominee of record,” following the first instance of “lienholder” and inserted “the other interested party, or the nominee” following the second instance of “lienholder” in present (3)(B); in (b), inserted “or other contemporaneous” near the beginning of (1)(B), and rewrote (2) which read: “(2)(A) The lien is also prior to the mortgages and deeds of trust described in subdivision (b)(1)(B) to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to § 66-27-414(a) that would have become due in the absence of acceleration during the six (6) months immediately preceding institution of an action to enforce the lien.“(B) The lien shall not have the priority provided for in subdivision (b)(2)(A) over the mortgages and deeds of trust described in subdivision (b)(1)(B) in the event that the owner of the unit or the holder of any first mortgage or deed of trust on the unit has notified the association in writing of the holder's name and address and the identity of the unit upon which it holds a first mortgage or deed of trust, and the association has failed, within thirty (30) days of the date six (6) months of assessments for common expenses due from the unit became delinquent, to give written notice of the delinquency to the holder of the first mortgage or deed of trust at the address provided by the party.”; and rewrote (d) which read: “(d) Recording of the declaration constitutes record notice and perfection of the lien. No further recordation of any claim of lien for assessment under this section is required.” Effective Dates. Acts 2016, ch. 866, § 3. June 1, 2016.