Attorneys Mary A. Denison, Lake and Denison, Winthrop, and John A. Cunningham, EatonPeabody, Brunswick, have recently responded to a question asked of them by the MARA Board. Their answer was prepared and  submitted by Mary Denison. The Question and Answer follow:

MARA Board Question: 

If an owner has been issued a Notice of Claim (NOC) on a delinquent assessment and the NOC has expired for lack of recording a timely Notice of Extension (NOE), can a new NOC be issued to the same owner?

a. If so, is it necessary to issue a second “20-Day Notice” before recording another NOC on that assessment?

b. If an NOE is allowed to expire, is it possible to issue a new NOC on the original delinquent assessment?

c. What are the circumstances (change of ownership, the time elapsed, etc.) that would prevent extension of the NOC?

Attorney Answer:

For the answer to parts (a) and (b) above, I have consulted with John Cunningham and we agree that once a Notice of Claim that was filed due to delinquency of a particular assessment has expired and has not been renewed within 18 months of recording, you cannot resuscitate that particular assessment by simply filing a new NOC. It does not mean that the debt has evaporated however. It simply means that you cannot use one of the methods available to a Statutory Road Association to try to collect that debt, namely by filing a Notice of Claim at the Registry of Deeds. The Association may still collect on the debt by filing a Small Claims action in the local District Court.

For part (c) above, it is our opinion that the only thing preventing the extension of an NOC is the passage of more than 18 months since the date of the original recording. Change of ownership should have triggered a review of the property title and payment of the delinquent assessment, but if the title has transferred without adequate review (perhaps by a Will or in a cash sale with no due diligence), an Association should still keep filing its NOC extensions every 18 months to protect the claim. Someday when the new owner sells or applies for a mortgage, it will likely get paid.

23 Title, Section 3104, Penalties and Process.

Our Association has  a notice of claim on a member who did not pay for years 2016 through 2018.  We never filed the required 18 month extensions through 2023.  My questions are: 

1.   Can we now just file the new, required 6 year extension?

2.  If not, can we file a new NOC for those years or do we have to pursue in Small Claims Court?

3.  Upon judgement, how do we collect from an out of state resident?  Do we just record the judgement at the Registry of Deeds and wait for property transfer?

4.  Can we issue a new NOC for the years 2019 through present,  also delinquent, and just forget about 2016 through 2018? 

Thank you, Ellen

I didn't realize you could filed for an extension. Is there a form and procedure for the 18 month extension?

The effective date of the amendment that changed the expiration from 18 months to six years was Oct 25, 2023.  Therefore if you filed a Notice of Claim against someone shortly before that date, so that the 18 months have not yet expired, make sure you file for an extension before that claim expires, i.e. before 18 months from when you filed it.  It will then be good for another six years, and if it has not yet been paid at that point you would want to file an extension before the six years run out.

I'm not an attorney either, but I believe that any Notice of Claim that was filed BEFORE the 18 month expiration went into effect, i.e. before November 1, 2017, would come under the earlier version of the law.  Therefore it should remain in effect indefinitely, and runs with the land upon transfer to a new owner.   

If there is a claim that was filed between those dates, i.e. between Nov 1, 2017 and Oct 25, 2023, it would be subject to the 18 month expiration.  If it was not renewed in time, it looks like that claim could now only be recovered in small claims court.  But if money was owed during that period and NO Notice of Claim was filed, it should be possible to file a claim on it after Oct 25, 2023 without the 18 month expiration applying.

I missed a deadline for filing an extension by one day, due to delays in processing during the height of COVID.  I've been hesitant to try Small Claims Court because I'm not familiar with the process. but at the recent MARA Conference, Mary Denison said the process is simple and does not require an attorney, and hinted that judges tend to favor the party who is owed the money.  MARA Board member Erin Barker suggested that anyone who is not familiar with the process should sit in on a few hearings to become familiar with it and demystify the process.  I think that's a great idea, and will have to see about doing so myself.