Under the RAD statutes (West Virginia Code § 7-25-1 et seq.) there is no power for the RAD to impose a lien on any homeowner property except in connection with a specific “assessment” of the “benefited” property for properly authorized “project.”
All of the quoted terms have a number of limitations under the statute making the power more restricted. But the restrictions mean, among other things, that:
1. There is no power in the RAD to impose a lien on homeowner property in the event of a budget deficit;
2. The RAD cannot impose a lien on any homeowner property to fund services that the RAD board might want;
3. The RAD cannot impose a lien on any homeowner property to fund salaries or operating expenses;
4. The RAD cannot use any homeowner property as collateral for RAD debts;
5. The RAD has no power to impose any lien on a homeowner’s property without meeting all of the requirements for a specific project, to benefit specific property owners, and also meeting all the rules applicable to required estimates and reserve requirements, and complying with all notice and voting rules applicable to assessments.
Finally, under no circumstances can the RAD impose any liens or assessments for Snowshoe (or its owner) or for any third party, or to underwrite the debt of Snowshoe or of a third party.
A validly noticed, approved and created assessment for specific homeowner property benefited by a specific project does create a lien for a specific lien amount for that property (not to exceed 5%) set out in the notices and the approved project. That lien is generally enforceable like a tax lien, but there is a specific exception that forbids property to be sold to enforce a RAD lien; so in that respect, a RAD lien is unlike an unpaid tax lien. Like a tax lien, however, the RAD lien vanishes upon payment by the property owner, regardless of whether the RAD collected all the money it needed or wanted from the assessment.
Gordon H. Copland
Steptoe & Johnson PLLC
400 White Oaks Boulevard
Bridgeport, WV 26330
O: 304-933-8162 F: 304-933-8601