PRIORITY OF CONDOMINIUM LIENS

In Massachusetts, condominium common area expenses are both a personal obligation of the unit owner and a lien against the condominium unit.  Mass. Gen. L. c. 183A, 6(a)(i) provides that condominium common expense assessments are a lien against condominium units from the date each assessment becomes due.  Mass. Gen. L. c. 183A, 6(b) provides that condominium unit owners are personally liable for their share of condominium common expenses, including late charges, fines, penalties, interest, and all costs of collection.

Section 6(c) of c. 183A provides that condominium liens are superior to all other liens and encumbrances except (i) liens and encumbrances recorded before the master deed, (ii) first mortgages recorded before the date on which the assessment becomes delinquent (provided that the condominium association retains priority over the first mortgage for six (6) month's worth of common expense assessments, including costs and reasonable attorneys' fees incurred by the association in enforcing the lien, but excluding special assessments, late charges, fines, penalties, and interest assessed by the condominium association), and (iii) liens for real estate taxes and other municipal assessments or charges against the unit.

In July of 1999, the Land Court considered a case of first impression - when a town has taken certain condominium units for non-payment of real estate taxes and subsequently foreclosed each unit owner's right of redemption, can the town still be held "personally" responsible for common expense assessments accruing after the date of the tax taking.  Town of Milford v. Boyd, Land Court Misc. Case 250336 (1999), involved the following facts:

In 1993 and 1994, the Town of Milford took certain condominium units for unpaid real estate taxes.  In 1999, the Town foreclosed the rights of redemption.  Soon after, the condominium association notified the Town that it was responsible for all condominium common area expenses arising from and after the date of the instrument of taking.  Citing Mass. Gen. L. c. 183A, 6(c) which provides that liens for real estate taxes are superior to condominium liens, the Town refused payment.

The Land Court first ruled (and the condominium association conceded) that under Mass. Gen. L. c. 183A, 6(c), the lien for condominium common expense assessments had been wiped out by the tax title foreclosure proceeding.  However, the Court ruled that the Town's obligation to pay condominium common expenses continued despite the termination of the lien.  The Court's rationale was that since the obligation to pay common area expenses was a "covenant running with the land," the Town's obligation was governed by the terms and provisions of Mass. Gen. L. c. 60, 77.

Mass. Gen. L. c. 60, 77 provides that towns are not responsible for complying with covenants running with the land which call for the payment of money for the period beginning with the tax taking and ending with the foreclosure, unless during that time, the town (directly or indirectly) receives the benefit of such covenant.

In this case, the Land Court ruled that the Town of Milford had received the benefit of the condominium common area maintenance from and after the date of the tax taking, and was therefore responsible for the payment of the condominium association assessments. 

"Under the condominium regime, the town receives the benefit of the covenant for common area maintenance by the association's continued maintenance of the condominium common areas and of the necessary related insurance."

Therefore, liens for real estate taxes and condominium common expense assessments are prioritized as follows:  (i) the foreclosure of rights of redemption will wipe out all prior liens for unpaid common expense assessments, and (ii) despite the extinguishment of this lien, a town will remain liable for common expense assessments from and after the date of the tax taking (not the date of the foreclosure proceeding).