How many times have you heard a homeowner tell a manager or board that he/she did not receive the delinquency notices mailed?  As a collections attorney, I hear this excuse very frequently from homeowners.

More times than not, homeowners do not “receive” letters because they fail to open their mail.  This can be intentional or not.  Many people assume that if they do not recognize the company name on the outside of the envelope, the mail must be trash.  Or, as a coping mechanism, some homeowners stop opening their mail because they have so much debt that they become overwhelmed because they know they cannot pay the bills inside the envelopes.  I have even had the occasional homeowner tell me that he ignores everything that is sent to him from the association.  If the homeowner admits he throws away mail without opening it first, most judges will explain to the homeowner that, as long as the mail was addressed correctly and not returned by the post office, the law presumes receipt.  This is commonly referred to as the mailbox rule.

However, bear in mind that most judges are ultimately concerned with fairness and reaching the correct outcome of a case.  If the mail was returned undeliverable by the post office, because either it was sent certified mail and refused, or because the homeowner no longer lives at the address where the mail was sent, then receipt cannot be assumed.  The judge will likely agree with the homeowner and find that the association did not notify the homeowner as required by the association’s collection policy.

What can managers and boards do to combat a homeowner arguing he did not receive the notices?  It is always best to have procedures in place to respond to this type of problem when it arises.  Management companies and self-managed boards should do the following:

  • Keep copies of all delinquency letters and other notices sent to homeowners.  In the event that the association has to prove to a judge that notice was sent pursuant to the association’s collection policy, copies of the actual letters sent will be required.
  • Always update homeowner contact addresses when requested, and keep copies of the request from the homeowner to change the address to demonstrate to a judge that the association sent mail to the address the homeowner provided as the contact address.
  • Be aware of letters that are returned by the post office and why.
    • Was the letter sent certified, but the homeowner refused to accept it?  If the governing documents do not require notices be sent certified, attempt sending the letter by regular mail.  Letters sent by regular mail are more likely to be delivered successfully because no signature is required for delivery.
    • Was the letter returned undeliverable because the homeowner no longer resides at the address?  Look for a forwarding address on the envelope, update your records accordingly, and send a new letter to the new address.  Also, be sure to save the envelope with the forwarding address from the post office so you can show how you got the new address.
  • If notices are sent by certified mail, keep the delivery confirmation with a copy of the letter that was sent.

With the proper procedures and records available, arguing against a homeowner that claims he did not receive the required notices should be fairly simple.

If you have additional questions, please contact a Altitude Community Law attorney at 303.432.9999 for more information.

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