Condominium common-expense liens in Massachusetts — six months that beat the mortgage

A condominium association that is not paid has a problem no ordinary creditor has: it cannot stop providing the service. The roof still needs replacing and the heat still runs, and every unit owner who does not pay shifts the cost onto the ones who do.

Massachusetts answers that with a super-priority lien. The association's lien for common expenses outranks a first mortgage — up to six months of assessments, plus the costs and reasonable attorney's fees of the enforcement action. That is what makes these claims collectible, because it gets the association paid ahead of the bank.

What the claim is

A unit owner stopped paying common-expense assessments, and the association is enforcing its lien to collect.

Where the right comes from

G.L. c. 183A, § 6, enforced "in the manner provided in sections five and five A of chapter two hundred and fifty-four" — the mechanic's lien enforcement machinery.

What the association has to prove

1. A condominium governed by chapter 183A, with a recorded master deed;
2. A validly adopted budget and assessment — § 6(a)(i) requires assessments at least annually, based on a budget adopted at least annually in accordance with the master deed, trust or by-laws;
3. The assessment is due and unpaid — the lien attaches "from the time the assessment becomes due"; and
4. The notice steps below.

Two kinds of assessment

Common expenses are assessed against all units by percentage of undivided interest, or by the area-based formula the master deed allows.

Charge-backs are different, and § 6(a)(ii) is worth knowing. Where an expense is incurred because a unit owner failed to comply with the chapter, the master deed, the by-laws or the rules — or because of the misconduct of the owner, their family, tenants or invitees — the association may assess that expense exclusively against that owner, and it "shall be enforceable as a common expense assessment." The same is true of the cost of maintaining a limited common area, which may be assessed solely to the unit it serves.

So the lien is not limited to a share of the roof. It reaches the cost of the damage one owner caused.

The notice steps

Section 6(c) sets three, and their consequences differ.

Sixty-day delinquency notice. When any portion of an owner's share has been delinquent for at least 60 days, the association must send a notice stating the amount to the unit owner by certified and first class mail.

The same notice to the first mortgagee, by certified and first class mail — provided the mortgagee has told the association its name and mailing address.

Thirty days before filing, a notice of intent to file the enforcement action, again to the first mortgagee on the same condition.

And here is the consequence the statute states. Failure to send the first mortgagee either the 60-day notice or the 30-day notice of intent "shall not affect the priority lien of the organization of unit owners for up to six months' common expenses, but the priority amount shall not include any costs or attorneys' fees incurred in the action to enforce."

The priority survives. The fees do not. That is a smaller penalty than a forfeiture and a larger one than it sounds, because the fees are often a substantial part of what the association is chasing.

The priority itself

Section 6(c) ranks the lien ahead of everything except:

1. liens and encumbrances recorded before the master deed;
2. a first mortgage recorded before the assessment became delinquent; and
3. liens for real estate taxes and other municipal assessments or charges.

And it beats even that first mortgage to the extent of the common expense assessments, based on the adopted budget and absent acceleration, "which would have become due in the absence of acceleration during the six months immediately preceding institution of an action to enforce the lien," plus any costs and reasonable attorney's fees incurred in that action.

Two limits on that super-priority amount matter.

It excludes the extras. The priority amount "shall not include any amounts attributable to special assessments, late charges, fines, penalties, and interest." Those remain part of the debt and part of the lien; they are not ahead of the mortgage.

Payment discharges it. Payment of the six months' assessments and the costs and fees of the action discharges the lien to the extent it was prior to the mortgage — which is how a lender protects its position without paying the whole arrears.

Successive liens

Drummer Boy Homes Association, Inc. v. Britton, 474 Mass. 17 (2016), settled the question that makes the six-month window workable. An association may maintain multiple, successive priority liens — filing a new action as new assessments come due — rather than being confined to a single six-month recovery for a long-running delinquency.

Without that, an owner who stopped paying for three years would leave the association with six months of priority and thirty months behind the mortgage. Drummer Boy lets the association keep pace.

How long you have to file

Chapter 183A sets no limitations period for the underlying debt, and the claim on unpaid assessments runs on the ordinary contract period — six years under G.L. c. 260, § 2.

The six-month priority window is the deadline that matters, and it is measured backwards from the institution of the enforcement action, not forwards from the delinquency. Waiting does not preserve priority; it loses it.

What has to happen before you file

The 60-day delinquency notice to the owner and to the first mortgagee, and the 30-day notice of intent to the first mortgagee.

What the claim pays

The unpaid assessments, including charge-backs.

Costs and reasonable attorney's fees incurred in the enforcement action — which are within the priority amount if the notices were sent, and outside it if they were not.

Late charges, fines, interest and special assessments, as part of the debt but outside the super-priority.

Foreclosure of the lien, through the c. 254 §§ 5 and 5A procedure.

Who can be sued

The unit owner. The lien runs with the unit, and a purchaser takes subject to it — which is why a 6(d) certificate stating the amount owed is obtained at every condominium closing.

Common defenses

• The assessment was not validly adopted — no annual budget, or an allocation that departs from the master deed.
• The charge-back was not authorised by the chapter, the master deed or the by-laws.
• The notices were not sent, which costs the association its fees within the priority.
• The amount is wrong, including disputed fines and late charges.
• The association failed to perform — a defence Massachusetts treats narrowly, because the obligation to pay assessments is generally not conditioned on the association's performance.

What people get wrong

The association can outrank the bank. Six months of assessments plus the costs and fees of the action come ahead of a first mortgage recorded years earlier.

Fines and late charges are not in the priority. They are still owed, and they sit behind the mortgage.

Missing the mortgagee notices does not destroy the lien. It removes the fees from the priority amount.

Withholding assessments over a dispute is a bad strategy. Massachusetts does not treat the duty to pay as conditional, and the arrears accumulate with fees attached.

Successive liens are allowed. Drummer Boy means a long delinquency does not cap the association at one six-month recovery.

Where it came from

The Condominium Act of 1963 created a form of ownership with a collective-action problem built in. Every owner benefits from the roof, and every owner who stops paying for it makes the others pay more. The association has no ability to withhold the service and no leverage beyond the lien.

An ordinary lien would have been nearly worthless, because a first mortgage recorded at the time of purchase would outrank it and consume the equity. The super-priority was the Legislature's answer, and it works by putting a limited amount of the association's claim ahead of the lender — enough to make collection realistic, capped so that lenders can price the risk.

The 1992 amendments set the modern structure: six months, notices to the mortgagee, and fees inside the priority for an association that gives them. Drummer Boy completed it in 2016 by allowing successive liens, and § 6 was amended again in 2024. The design is a negotiated allocation between associations and lenders, and reading any one piece of it alone gets the answer wrong.

Common questions

Can a condo association outrank my mortgage?

For up to six months of common expense assessments preceding the enforcement action, plus the costs and fees of that action, yes.

What is not in the six-month priority?

Special assessments, late charges, fines, penalties and interest. They remain owed but sit behind the first mortgage.

What notices does the association have to send?

A 60-day delinquency notice to the owner and to the first mortgagee, and a 30-day notice of intent to file to the first mortgagee — by certified and first class mail.

What happens if the association skips those notices?

The six-month priority survives, but the priority amount no longer includes the costs and attorney's fees of the enforcement action.

Can the association file more than one lien?

Yes. Drummer Boy Homes Association v. Britton allows successive priority liens as new assessments come due.

Can I stop paying because the association is not doing its job?

That is a poor defence in Massachusetts. The obligation to pay assessments is generally not conditioned on the association's performance, and the arrears accrue with fees.

Where these rules live

• Mass. R. Civ. P. 4.1 — Attachment
• Mass. R. Civ. P. 8 — General rules of pleading
• Mass. R. Civ. P. 56 — Summary judgment
• Mass. R. Civ. P. 69 — Execution
• Enforcing a money judgment in Massachusetts
• Computing deadlines