§ 34-36.1-3.16. Lien for assessments. (a) 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. The association's lien may be foreclosed in accordance with and subject to the provisions of § 34-36.1-3.21. Unless the declaration otherwise provides, attorney's fees, charges, late charges, fines, and interest charged pursuant to § 34-36.1-3.02(a)(10) - (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 thereof becomes due.

(b)(1) A lien under this section is prior to all other liens and encumbrances on a unit except:

(i) Liens and encumbrances recorded before the recordation of the declaration and not subordinated to the declaration,

(ii) A first mortgage or deed of trust on the unit recorded before the date on which the assessment sought to be enforced became delinquent, and

(iii) Liens for real estate taxes and other governmental assessments or charges against the unit.

(2) The lien is also prior to any mortgage or deed of trust described in subdivision (b)(1)(ii) of this section to the extent of the common expense assessments based on the periodic budget adopted by the association pursuant to § 34-36.1-3.15(a) which would have become due in the absence of acceleration during the six (6) months immediately preceding the foreclosure of the interest of the unit owner including any costs and reasonable attorney's fees not to exceed two thousand five hundred dollars ($2,500), incurred in the collection of any delinquent assessment or other charges by legal proceedings or otherwise and all costs of foreclosure held pursuant to section 34-36.1-3.21, including, but not limited to, publication, advertising and auctioneer costs, said foreclosure costs not to exceed five thousand dollars ($5,000) (for a total aggregate of attorney's fees and costs of seven thousand five hundred dollars ($7,500)).

(3) The priority amount under subdivision (b)(2) above shall not include any amounts attributable to special assessments, late charges, fines, penalties, and interest assessed by the association.

(4) When any portion of the unit owner's share of the common expenses has been delinquent for at least sixty (60) days the association shall first send a notice stating the amount of the delinquency to the unit owner by certified mail, return receipt requested, and first class mail. The association shall also send a notice by certified mail, return receipt requested, and first class mail, stating the amount of the delinquency to the holder of the first mortgage or deed of trust as it appears in the land evidence records at the address appearing in the mortgage or deed of trust or such other address as the first mortgagee may provide in writing to the association.

(5) The failure of the association to send the first mortgagee the notice of sixty (60) days delinquency of common expense assessments, as described in subsection (b)(4) above, shall not affect the priority of the lien for up to six (6) months common expense assessments, but the priority amount shall not include any costs or attorney's fees.

(6) This subsection does not affect the priority of mechanics' or materialmen's liens, or the priority of liens for other assessments made by the association.

(c) Unless the 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 equal priority.

(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 but is permitted.

(e) A lien for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted within six (6) years after the full amount of the assessments becomes due.

(f) This section does not prohibit actions to recover sums for which subsection (a) creates a lien or prohibit an association from taking a deed in lieu of foreclosure.

(g) A judgment or decree in any action brought under this section must include costs and reasonable attorney's fees for the prevailing party.

(h) The association, upon written request shall furnish to a unit owner or the holder of a first mortgage or deed of trust granted with respect to such unit owner's unit a recordable statement setting forth the amount of unpaid assessments against his or her unit. The statement must be furnished within ten (10) business days after receipt of the request and is binding on the association, the executive board, and every unit owner.

(i) The association may take action for failure of a unit owner to pay any assessment or other charges pursuant to this section. The delinquent unit owner shall be obligated to pay all expenses of the executive board, including reasonable attorney's fees, incurred in the collection of the delinquent assessment or other charges by legal proceedings or otherwise, such attorney's fees and other charges also being a lien on the unit. The delinquent unit owner shall also be obligated to pay any amounts paid by the executive board for taxes or on account of superior liens or otherwise to protect its lien, which expenses and amounts, together with accrued interest, shall be deemed to constitute part of the delinquent assessment and shall be collectible as such.

History of Section. (P.L. 1982, ch. 329, § 2; P.L. 1991, ch. 247, § 1; P.L. 1991, ch. 369, § 1; P.L. 1992, ch. 8, § 1; P.L. 1997, ch. 324, § 1; P.L. 2001, ch. 84, § 1; P.L. 2008, ch. 459, § 1; P.L. 2008, ch. 479, § 1; P.L. 2009, ch. 246, § 1.)