As provided for in Civil Code § 5650(b), regular and special assessments are delinquent 15 days after they become due (unless an association's governing documents provide a longer period of time). If an assessment is delinquent, associations may recover all of the following:
- A late charge not to exceed 10% of the delinquent assessment or $10.00, whichever is greater (unless the CC&Rs specify a smaller amount).
- Interest on delinquent assessments, reasonable fees and costs of collection, and reasonable attorney's fees, at an annual interest rate not to exceed 12%, commencing 30 days after the assessment becomes due, unless the CC&Rs specify a lower interest rate, in which case the lesser rate applies.
- Reasonable attorneys' fees and costs incurred in collecting the delinquent assessment.
Authority to Collect. The authorization to collect late charges and interest need not be in the governing documents. Authority is granted by Civil Code § 5650(b).
Fee or Penalty? Some try to argue that late fees cannot be greater than documented expenses to the HOA due to the delinquency. They use Civil Code § 5600 to make their argument because the statute restricts associations from imposing assessments or fees that exceed the amount necessary to defray the costs for which it is levied. This fee restriction does not apply to late charges. Associations are allowed to charge a 10% fee regardless of the true costs incurred. That's because the "fee" is actually a penalty to encourage owners to be on time with their payments.
One Late Charge Per Assessment. Associations cannot levy late charges month after month on the same unpaid assessment. A late charge is a one-time penalty of 10% or $10 (whichever is greater) to encourage timely payment of assessments. (Civ. Code § 5650) Thereafter, the association can charge interest at 12% until the assessment is paid (unless the governing documents set a lesser amount). (Civ. Code § 5650)
No Interest on Fines. Associations cannot charge interest on unpaid fines. Civil Code § 5725 prohibits an association from characterizing or treating a monetary penalty “imposed by the association as a disciplinary measure for failure of a member to comply with the governing instruments, except for the late payments” as an assessment. As provided for in Civil Code § 5650(b)(3):
Interest on all sums imposed in accordance with this section, including the delinquent assessments, reasonable fees and costs of collection, and reasonable attorney's fees, at an annual interest rate not to exceed 12 percent ...
Since a monetary penalty does not fall into any of the categories described above, associations cannot charge interest on fines.
No Late Charges on Unpaid Fines. When delinquent, homeowners will sometimes pay the delinquent assessment but refuse to pay late charges. If they received fines for rules violations, they may refuse to pay those as well. When that occurs, are associations allowed to charge late fees and interest on unpaid late fees and unpaid fines? No. The Davis-Stirling Act provides for a late fee of 10% or ten dollars, whichever is greater (unless the CC&Rs specify a lesser amount), against delinquent assessments. (Civ. Code § 5650) That means late charges cannot be charged against unpaid late charges or unpaid fines.
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