Laura White Brandow
The subject of death is never an easy or pleasant topic of conversation, but unfortunately, it is a fact of life. As the baby boomer generation ages, I have seen an increase in the number of lien enforcement matters involving a deceased unit owner. The fact patterns in such matters widely differentiate, leaving them best handled on an individual basis as there is no magic cookie cutter formula. It is best to contact condominium counsel for advice on how to proceed. Because of the complexity of this subject, this article will focus on some of the basic issues.
Notification of an owner’s death has been received.
Above all, have empathy and sympathy for the family. Condominium trustees should inform the property management company when an owner dies so that the property manager can update the owner records and can in turn advise legal counsel when an account is sent for a lien enforcement action. It can be painful for the surviving spouse or co-owner to receive a notice of lien naming both owners when they are dealing with what seems to them to be a still recent traumatic loss. Failure to share such information can cause resentment and anger when the surviving owner claims the condominium trust or management company was notified and failed to pass this information along. Who else is in the unit? Is there a surviving spouse, life partner, or adult child who are not on the deed, but use the unit as their current residence?
These situations do place the condominium trust in an awkward position. Neither the condominium trust nor legal counsel want to immediately overwhelm grieving family members with financial responsibilities or on taking care of a now vacant unit; HOWEVER, the condominium trust must still fulfill its fiduciary duties. If the weather turns colder with a unit now vacant due to an owner death the condominium trust may need to enter under emergency powers to ensure that windows are locked and secured and that the unit is heated to at least 55 degrees. Further, next of kin may not have keys to the main door, the unit door or the mailbox and will request management to provide keys. If the deceased owner did not provide the management company with emergency contact information, it should not be management’s responsibility to determine who should and should not have access to the unit. As my probate and estates professor in law school always said, “Blood is thicker than water, unless there is money involved.” One relative may try to clean out the unit and take whatever valuables they can before the person with authority under a will can legally make entry. While a probate case may take time to file, the management company may need to accompany persons into and out of the unit until legal authority can be established. Actual case – mother of deceased unit owner needed to enter the unit to pick out clothes for her son’s burial but didn’t have a key to the unit. The property manager never met the owner’s family members and wasn’t sure this person was in fact related, so they accompanied her into the unit to make sure nothing else was taken and locked the unit afterwards.
When I first receive an account for lien enforcement, I review the payment history. An owner who has paid timely for years and suddenly goes delinquent needs to be investigated for possible death and probate. We check on-line obituaries and gather information as to relatives and search county probate records. Sometimes it is the mail returned by the post office marked “Deceased” that provides the first indication.
As owners age, they often are temporarily moved to a rehabilitation center after surgery or illness or to an assisted care facility. They may expect to return to the unit so they do not provide change of address/contact information to the condominium trust. If the owner is not seen on the premises for an extended amount of time and failed to mention a move to assisted living, the condominium trust is left not knowing whether they are in fact alive or deceased. While Chapter 183A, sec. 4(4) does mandate that owners provide current mailing address information, there is no requirement that they provide emergency contact or next of kin information. Such information is only provided on a voluntary basis, but the condominium trust should suggest that owners provide such information. For worst case scenarios, contacting the police to conduct a wellness check may be necessary. Actual case – owner hears a thump on the floor from upstairs in the middle of the night. The next morning she realizes she doesn’t hear movement from the upstairs unit as she usually does and wonders about that thump. When she can’t get the owner to answer the door, she calls management, who in turn requests a wellness check from the police and with management’s pass key, the police discover the owner deceased in her bedroom. If not for the concerned downstairs neighbor, the deceased may not have been found for an extended period of time.
Which leads to an unfortunate consequence of death inside the condominium unit - when an owner dies and is not immediately discovered. This can leave other unpleasant issues for the condominium trust as when a body decomposes, bodily fluids are released which can seep through flooring and into common areas. This qualifies as a hazmat situation. For deaths not immediately discovered, the personal representative of the estate (formerly called executors) or family members will need to contract with a company that specializes in removal of the bodily fluids. The condominium trust may also need to file an insurance claim and contract with such a company to address intrusion into common areas.
Lien Enforcement against an Estate
How soon is too soon to commence a lien enforcement action? While we all want to be sympathetic and provide heirs with time to decide what to do, the condominium trustees again need to be mindful of their fiduciary duty to undertake what is best for the Trust, and not for any particular individual unit owner. It is one thing if an owner was current on payment of common expenses prior to their death and quite another if they were in arrears before passing. Further, most issues arise when the unit is owned individually, not when there is a surviving unit owner. I currently have a lien enforcement action where the owner passed and the wife was not on the deed as an owner. The wife probated her husband’s estate and transferred title into her name (also individually). A year later she fell into arrears on the condominium fees and then she passed quite unexpectedly at the beginning of month six of arrears. Immediately after the condominium trustee contacted me about the death, I notified the mortgage holder of the owner’s death in the hope that the bank will pay. It will ultimately be the condominium trustees’ decision as to whether to allow the family more time to file a probate.
Filing a probate is not a fast action. If the death is unexpected, it may take time to search for a Will, and pull basic information as to identity of heirs, real estate and other assets together and then find an attorney to assist in the filing. Typically, it can take two to three months after death before a probate is filed. Once filed, the person petitioning to be the personal representative (“PR”) still needs to obtain court approval of appointment. Until that time, the PR may not be able to legally access the checking account of the deceased to make payments of the real estate taxes, the mortgage, the condominium fees and other monthly expenses such as utilities.
In the earlier case where the downstairs neighbor heard a thump - no one came forward to claim the body and undertake funeral arrangements. The owner kept to herself, so neither the other owners, the trustees nor management had any next of kin information. Further, there was no mortgage encumbering the unit. Fortunately, the Commonwealth has appointed probate attorneys in each county who work for the estate to locate relatives and assets. In this particular case, I notified the state appointed attorney who then obtained court authorization to enter the unit to search for information and was able to locate the owner’s sister in California. The sister then hired the attorney to conduct the probate here in Massachusetts. The attorney was then able to access the bank accounts of the owner and pay the utilities and condominium fees until the unit could be sold and all remaining arrearages paid in full.
Once a PR is named by the court, then the notice of lien letters are sent to the “PR of the Estate of [name of deceased unit owner]”. They are not named in their individual capacity. If a complaint needs to be filed, the defendant is the PR of the estate and the heirs of the estate are named as parties in interest as they may have an ownership interest in the unit depending on the terms of the will. Heirs are determined from obituaries and probate documents.
Even with an appointed PR, there may be a lack of funds to pay the entire lien arrearage until the Estate can sell the unit. In such instances the condominium trust can make payment arrangements with the PR to keep the arrearages under six months and make subsequent payments until the unit can be sold, or attempt to convince the mortgage holder to pay until the unit is sold. Actual case – tenant occupied unit with no mortgage, and the owner had been deceased for five years before the deceased owner’s sister filed a Probate so the unit could be sold. The sister had used the rental proceeds to pay the condominium fees, so no one was aware the owner had even died. The tenant vacated and the sister suddenly had no funds to pay the condominium fees and the probate was held up by a long-lost brother, who smelling money, decided to contest the sister’s appointment as PR. Only after a notice of lien letter from our office was sent to the deceased owner, did the sister make contact and advise of the owner’s death. Unable to make payment in full, she is now making subsequent payments until the probate issues can be settled and the unit sold.
In extreme cases, where there are surviving family members, but no one is stepping forward to file a probate, it may be necessary to file a lien enforcement action against the estate of the deceased and name all known heirs as parties in interest. In a current case, an obituary named the two surviving sons of the owner, who were also known to the condominium trust, so notice of lien letters were sent to the estate and to the two heirs as parties in interest. With no mortgage of record, the condominium trust provided additional time for the sons to file a probate. When six months elapsed with no one filing a probate, paying the condominium fees or communicating with the condominium trust, the decision was made to go forward against the estate and the heirs.
In my twenty plus years of representing condominiums, I have seen owner deaths by natural causes, accidents, suicides and one murder. Only once have I actually had to foreclose on an estate. The process may take some time, but typically everything works out and the common expenses are paid in full. As can be seen from the above case examples, a unit owner death can result in many different issues for the condominium trust and need to be handled with empathy but also with a flexible game plan. Always consult with your condominium counsel to make sure the condominium trust is taking the appropriate and best action.