Condominium Board not required to serve a 90-day notice on Defendant

This week the Home Team wanted to bring your attention to an interesting decision out of the Appellate Division, First Department, which in affirming a Lower Court’s decision, held that a Condominium Board was not required to serve a 90-day notice upon Defendant pursuant to RPAPL  §1304 as a precondition of bringing a Real Property Law § 339-aa action to foreclose upon a condominium common charge lien. 
The relevant facts of, as well as a link to, the case are set forth below.

 The Board of Managers of the Lenox Ct. Condominium (“Plaintiff”) commenced an action to foreclose on a Common Charge Lien that had been filed against a Unit Owner for unpaid Common Charges allocated to Defendant, Owen D. Kurtin’s, Unit.  The Defendant filed a motion to dismiss the foreclosure action on the ground that Plaintiff failed to deliver a 90-day notice upon Defendant pursuant to RPAPL  §1304 as a precondition to the foreclosure proceeding and the Lower Court denied the motion after which this appeal ensued.
 
The Appellate Court stated that under Real Property Law § 339-aa, a Condominium Board is permitted to foreclose on common charge liens "in like manner as a mortgage of real property"  and in Board of Mgrs. of Parkchester N. Condominium v Alaska Seaboard Partners Ltd. Partnership (37 AD3d 332 [1st Dept 2007]), this Court held that RPAPL art 13, and specifically RPAPL §1311 concerning necessary defendants in a mortgage foreclosure action, applied to lien foreclosure actions pursuant to Real Property Law § 339-aa.  The Appellate Court noted however, that in contrast to RPAPL §1311, which applies to all mortgage foreclosure actions, RPAPL §1304, which requires notice of at least 90 days prior to commencing a legal action by "an assignee or a mortgage loan servicer" "against the borrower, or borrowers at the property address and any other address of record, including mortgage foreclosure," only applies to legal actions regarding "a home loan" (RPAPL 1304 [1]) (emphasis added). The statute defines a "home loan," as among other things, "a loan . . . in which . . . (ii) [t]he debt is incurred by the borrower primarily for personal, family, or household purposes[, and] (iii) [t]he loan is secured by a mortgage . . ." (RPAPL 1304 [6] [a] [1]). Courts have held that notice pursuant to RPAPL §1304 is not required as a condition precedent to a mortgage foreclosure action that does not concern a "home loan" as defined under that statute (see e.g. Lane v Tyson, 133 AD3d 530, 531 [1st Dept 2015], lv dismissed 27 NY3d 1033 [2016]; see also U.S. Bank Trust, N.A. v Longo, 227 AD3d 1122 [2d Dept 2024]).
 
Given that the Plaintiff has not brought a foreclosure action "with regard to a home loan" within the meaning of RPAPL §1304 (1) but, instead, has sought to foreclose upon a common charge lien, the Appellate Court reasoned that the Plaintiff did not need to give Defendant a RPAPL §1304 90-day notice to commence the foreclosure action.
 
It is also important to note that, pursuant to Real Property Law § 339-aa, a Condominium’s filed Common Charge Lien remains effective until either (a) all sums secured by it (plus interest) are fully paid, or (b) six (6) years from the date of filing of the notice of lien, whichever occurs sooner.

To view this case, click the below link: 
https://www.nycourts.gov/reporter/3dseries/2024/2024_06006.htm