HOA/COA Super-Priority Lien in Foreclosure
Reusable edge-case explainer. Legal information, not legal advice. Last verified: 2026-06-01.
The scenario
A property in a common-interest community (a subdivision governed by a homeowners association, or a condominium governed by a condominium owners association) falls delinquent on both mortgage payments and HOA/COA assessments. In roughly 20 states and the District of Columbia, a slice of the HOA’s lien — typically the most recent six to nine months of unpaid assessments — is by statute elevated to super-priority status, meaning that slice ranks senior to a recorded first-position mortgage or deed of trust.
This complicates the analysis in at least three ways relevant to this wiki:
- HOA-initiated foreclosure can extinguish a first mortgage. If the HOA forecloses the super-priority portion, the first lender’s lien may be wiped out, dramatically altering who holds title and what liens survive.
- An HOA super-priority lien may survive a tax deed sale (or remain claimable from surplus proceeds), depending on state law and whether the taxing authority extinguishes subordinate liens.
- Surplus-recovery agents must audit HOA lien status before computing the payoff waterfall — a senior HOA claim reduces or eliminates the surplus available to the former owner or a junior lienholder.
The controlling rule
The doctrine
Under the Uniform Common Interest Ownership Act (UCIOA), and under similar non-uniform state statutes, an HOA/COA lien for unpaid assessments is “split” into two portions:
- A super-priority portion (senior to all prior recorded mortgages and deeds of trust) equal to a fixed number of months of assessments — typically six months, nine months in Nevada.
- A sub-priority portion (junior to a prior-recorded first mortgage) covering all remaining delinquent amounts, interest, fees, and fines.
The super-priority portion, if foreclosed, extinguishes the first-position mortgage. The landmark case establishing this principle under Nevada’s version of the statute is SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408 (Nev. 2014).
Federal preemption for GSE-backed loans
When Fannie Mae or Freddie Mac owns or guarantees the loan, the Housing and Economic Recovery Act of 2008 (HERA), 12 U.S.C. § 4617(j)(3), provides that “[n]o property of the [Federal Housing Finance Agency] shall be subject to levy, attachment, garnishment, foreclosure, or sale without the consent of the [FHFA].”
The Ninth Circuit held in Berezovsky v. Moniz, 869 F.3d 923 (9th Cir. 2017) (case no. 16-15066), that this Federal Foreclosure Bar implicitly but clearly preempts Nevada’s HOA super-priority statute as applied to properties securing GSE-backed mortgages. An HOA foreclosure sale that purports to extinguish a Freddie Mac deed of trust — without FHFA consent — is void under the Supremacy Clause. The FHFA has confirmed it will not consent to such foreclosures and will pursue litigation to defend GSE interests. See FHFA Statement on HOA Super-Priority Lien Foreclosures (statutory authority: 12 U.S.C. § 4617(j)(3)).
Tax lien paramount priority
Real estate tax liens are universally senior to HOA super-priority liens. In every state surveyed, the HOA super-priority statute expressly excepts governmental tax liens. Accordingly, when a property is sold at a tax deed sale or through a judicial tax-lien foreclosure, the tax lien is paid first from sale proceeds; whether the HOA super-priority portion is extinguished or instead survives to claim from surplus funds depends on the specific state statute.
In Florida, for example, Fla. Stat. § 197.552 provides that a tax deed conveys title free of most covenants and liens; HOA/COA liens (including the statutory priority lien) are generally extinguished, though the association may seek payment from surplus proceeds if it recorded a claim of lien. See Lunohah Investments, LLC v. Gaskell (Fla. 2013); Calendar v. Stonebridge Gardens Section III Condominium Association, Inc., No. 4D 16-3393 (Fla. 4th DCA Dec. 13, 2017) (statutory lien may be asserted against tax-deed surplus even without a separately recorded claim, under Fla. Stat. § 718.116(5)(a)).
In Nevada, a tax deed sale similarly passes title subject to the paramountcy of tax liens, but an HOA lien that was of record before the tax sale may survive or give rise to a surplus claim depending on whether the association was properly joined in the tax foreclosure proceeding.
Practice rule: A surplus-recovery agent must independently research (a) whether the jurisdiction extinguishes HOA liens by tax deed operation or only by joining the lienholder, (b) whether an HOA filed and recorded its claim of lien before the sale, and (c) the HOA’s claimable priority amount relative to sale proceeds before computing net surplus available to the former owner.
State variation
| Jurisdiction | Super-Priority Status | Priority Amount | Statute |
|---|---|---|---|
| Alaska | Yes (UCIOA) | 6 months | needs_verification |
| Colorado | Yes | 6 months | C.R.S. § 38-33.3-316 |
| Connecticut | Yes (UCIOA 2008) | 6 months | needs_verification |
| Delaware | Yes (UCIOA 2008) | 6 months | needs_verification |
| District of Columbia | Yes | 6 months | D.C. Code § 42-1903.13(a)(2) |
| Hawaii | Yes | 6 months (regular assessments only) | Haw. Rev. Stat. § 514B-146(g) |
| Maryland | Yes (mortgages recorded on or after Oct. 1, 2011) | 4 months or $1,200, whichever is less | needs_verification (Md. Real Prop. § 11-110 reported) |
| Massachusetts | Yes | 6 months (rolling priority liens permitted) | Mass. Gen. Laws ch. 183A, § 6(c) |
| Minnesota | Yes (UCIOA) | 6 months | needs_verification |
| Missouri | Yes | 6 months | Mo. Rev. Stat. § 448.3-116(2) |
| Nevada | Yes | 9 months + nuisance-abatement charges | Nev. Rev. Stat. § 116.3116(2) |
| New Jersey | Yes | 6 months (cumulative annual renewal) | N.J.S.A. § 46:8B-21 |
| Oregon | Conditional | Super-priority if mortgagee fails to foreclose within 90 days of written notice | O.R.S. § 100.450(7) |
| Utah | No verified super-priority statute | — | Liens under Utah Code § 57-8-44 and § 57-8a-301 but no priority over first mortgage confirmed |
| Vermont | Yes (UCIOA 2008) | 6 months | needs_verification |
| Washington | Yes | 6 months | Wash. Rev. Code § 64.34.364 |
| West Virginia | Yes (UCIOA) | 6 months | needs_verification |
States without verified super-priority HOA lien statutes (as of 2026-06-01): Alabama (listed in some secondary sources — needs_verification of current statute), California, Florida (no general super-priority; statutory lien exists but junior to first mortgage), Georgia, Idaho, Illinois (listed in some secondary sources — needs_verification), Michigan, New York, North Carolina, Ohio, Pennsylvania (listed in some secondary sources — needs_verification), Rhode Island (listed in some secondary sources — needs_verification), Tennessee, Texas, Virginia, and most remaining states.
Note: The list above reflects states where super-priority status has been confirmed against a primary source retrieved in this research pass. States marked
needs_verificationappear in reliable secondary sources (e.g., Mortgage Bankers Association, Community Associations Institute, Alston & Bird advisory) but the primary statute was not independently retrieved and confirmed. Do not cite theneeds_verificationrows as definitively confirmed.
Illustrative cases
sfr-investments-pool-1-v-us-bank-2014 — In SFR Investments Pool 1, LLC v. U.S. Bank, N.A., 334 P.3d 408 (Nev. 2014) (Nev. Supreme Court No. 63078, decided Sept. 18, 2014), the Nevada Supreme Court held two things: (1) Nevada’s HOA super-priority lien under NRS § 116.3116(2) is a true priority lien — not merely a payment priority — such that nonjudicial foreclosure of the nine-month super-priority portion extinguishes a preexisting first deed of trust; and (2) the HOA may foreclose the super-priority lien nonjudicially (by trustee’s sale under NRS § 116.31162(1)). The decision destabilized the Nevada mortgage market and triggered legislative and federal responses described below.
Post-SFR: Nevada SB 306 (2015) — The Nevada Legislature responded with Senate Bill 306, signed May 28, 2015, effective Oct. 1, 2015. It amended NRS § 116.31163 to require certified-mail notice of the HOA default and sale to all recorded lien holders, clarified which charges may be included in the super-priority amount, and created a 60-day redemption period post-HOA-sale for the owner and first lienholder.
berezovsky-v-moniz-2017 — In Berezovsky v. Moniz, 869 F.3d 923 (9th Cir. 2017) (No. 16-15066, decided Aug. 25, 2017), the Ninth Circuit held that the Federal Foreclosure Bar (HERA, 12 U.S.C. § 4617(j)(3)) preempts Nevada’s super-priority statute for loans held by Freddie Mac (a GSE in FHFA conservatorship). An investor purchased a Las Vegas home at an HOA foreclosure sale for 220,000 Freddie Mac deed of trust — the Ninth Circuit voided that result. The preemption principle applies equally to Fannie Mae loans.
Oregon: Bank of New York Mellon Trust Co. v. Sulejmanagic, 367 Or. 537, 481 P.3d 293 (Or. 2021) — The Oregon Supreme Court held that under ORS § 100.450(7), a condominium association lien jumps priority over a first mortgage or deed of trust when the mortgagee fails to initiate judicial foreclosure within 90 days of receiving the association’s written delinquency notice. This is Oregon’s distinctive “conditional super-priority” mechanism: the lien is not automatically senior but becomes so if the lender is passive.
Massachusetts: Drummer Boy Homes Association, Inc. v. Britton (Mass. SJC No. SJC-11969, March 29, 2016) — The Massachusetts Supreme Judicial Court validated the “rolling” priority lien practice under Mass. Gen. Laws ch. 183A, § 6(c): there is no limit on the number of consecutive six-month priority liens a condominium association may assert. Each rolling priority lien primes prior-recorded first mortgages for that successive six-month window, compounding exposure to lenders in prolonged delinquency situations.
Florida tax deed context: Calendar v. Stonebridge Gardens Section III Condominium Association, Inc., No. 4D 16-3393 (Fla. 4th DCA Dec. 13, 2017) — Under Fla. Stat. § 718.116(5)(a), a condominium association possesses a statutory lien for unpaid assessments and may assert it against tax-deed surplus proceeds without having separately recorded a claim of lien (except when a first mortgagee is involved). This illustrates how an HOA lien extinguished from the property by a tax deed may still consume surplus proceeds that would otherwise flow to a former owner or junior lienholder.
Practical note
For investors purchasing at HOA foreclosure sales:
- In non-GSE states or for non-GSE loans, a proper HOA nonjudicial foreclosure sale of the super-priority portion does extinguish the first mortgage (per SFR Investments), but title insureability remains contested in many markets.
- For GSE-backed loans (Fannie/Freddie), federal preemption under 12 U.S.C. § 4617(j)(3) protects the GSE deed of trust; do not assume a tax-deed or HOA foreclosure sale clears the mortgage.
For surplus-recovery agents operating in super-priority states:
- Before computing net surplus, order a lien search and pull HOA account history.
- If the HOA has a recorded claim of lien or if the state statute creates an automatic lien (no recording required, e.g., Mass. Gen. Laws ch. 183A, § 6(c)), treat the HOA as a potential senior or same-priority claimant for the super-priority months.
- In states where the tax deed statute extinguishes HOA liens (e.g., Florida), the HOA may still have priority over the former owner in the surplus distribution — the “extinguishment” removes the lien from the property, not from the surplus.
- Verify whether the GSE owned or guaranteed the loan. If yes, the Federal Foreclosure Bar means the GSE’s deed of trust was never extinguished; the purported title from an HOA foreclosure sale may be unmarketable, and the surplus waterfall must treat the first mortgage as still encumbering the property.
- In Oregon, check whether the association gave the 90-day delinquency notice. If yes and the lender did not foreclose within 90 days, the association lien may have jumped to super-priority even if the state is sometimes described as a “conditional” super-priority state.
For lenders and servicers:
- Monitor HOA delinquency in super-priority states. In states without GSE preemption, tender payment of the super-priority portion before an HOA foreclosure sale — tendering the nine months of assessments in Nevada, for example, defeats the super-priority (confirmed by subsequent Nevada Supreme Court decisions post-2014).
- Record a request for notice of HOA delinquency under the applicable statute (e.g., Wash. Rev. Code § 64.34.364 requires notice to lenders who have requested it; failure to request can reduce the association’s priority by up to three months).
Cross-links
surplus-funds, title-marketability-post-sale, federal-tax-lien-redemption, bankruptcy-automatic-stay
Sources
Legal information, not legal advice. Nothing in this page constitutes legal advice or creates an attorney-client relationship. Laws change; some provisions cited here may have been amended after the
last_verifieddate. Always verify current statutory text and consult a licensed attorney in the relevant jurisdiction before taking action.