Maine Alliance for Road Associations
The property owner died July 2020. His son has filed for ownership in Probate Court. He has been delinquent over 90 days for plowing fees. We are a statutory association so it's my understanding that we can't file in Small Claims.
Can we still proceed with sending him the 20 day Collection notice? And if so, do I address it to the deceased owner?
We had a similar situation in our road association. The father had been delinquent for over a year, but we had not filed a Notice of Claim. But the son expressed an intent to catch up, only was not able to until the estate cleared. We let him know that we were going to file a claim just to cover ourselves, but that we understood his situation and would work with him. Once the estate cleared, he paid all that was owed, and has continued to pay on time since then. I believe the initial notice should go to the executor of the estate, if one has been appointed. If not, I would think sending it to the son would be acceptable since he expects to acquire the lot. (Anyone else have other ideas on this?)
I believe a statutory association can still file in small claims court, but the Notice of Claim is an easier and less expensive option. If someone owes a great deal, small claims court would then be worthwhile.
The following is an excerpt from 23 MRSA 3102:
" If any owner, on requirement of the commissioner or board, neglects to furnish that owner's proportion of labor, materials or money, the same may be furnished by the other owners and recovered of the owner neglecting to pay in a civil action, together with costs of suit and reasonable attorney's fees. Such civil action may be brought in the name of and by the road association created pursuant to this subchapter and the decision to bring that civil action may be made by the commissioner or board or as otherwise provided for in the road association's bylaws. "
So yes, a statutory road association can still use small claims court if they so choose instead of a Notice of Claim.
There are 16 Maine Probate Courts; one for each county. I assume your 20-Day Notice and NOC would involve the Oxford County Probate Court which may be reached by telephone at: (207) 743-6671.
The Deputy Probate advised me to download Form DE-503, "Claim Against Estate" (Attached), fill out the name of the decedent complete with the claim, and submit the form and $25 to the Oxford County Register of Probate, 26 Western Ave #2, South Paris, ME 04281.
The Personal Representative (Executor) of the estate will then be notified by Probate to answer the Claim Against Estate. I recommend calling the court at the number above with further questions.
Is the son the Personal Representative of the estate? If so, I think this could get more complicated. The son, as Personal Representative, may deny your Claim Against Estate in which case you would need to appeal the decision to the Probate Court and seek redress.
I have learned it is permissible to record a NOC against the property of a deceased owner in the Registry of Deeds. I am not an attorney, and would recommend you seek legal advice before acting.
If I were doing this, I would initially check time lines for filing with the Probate Court and, if consistent with time lines, attempt to settle the matter with the surviving son as Roberta has indicated. Failing this approach, I would send the 20 Day Notice to the son and the Probate Court attached to a DE-503 and wait the required 30 days. If payment was not forthcoming, I would record the NOC and send copies to the son and to Probate attached to a DE-503, hoping the Claim Against Estate would be favorably resolved by the Probate Court. Costs of legal advice, recording and filing in Probate Court would seem to me to be recoverable as costs of collection at settlement.
Update: The 90 days has been reached. Our Treasurer sent the 20 day NOC to the son, Representative in Probate. The 20 days will be July 30 and the plan is to register the NOC with the Registry, send it to the Probate with the DE-503 form, and mail certified to the son.
We plan to use MARA's template. (attached) Questions: 1) Can the Road Commissioner fill this out, sign and go to the Registry? Or should it be the Treasurer (who is away right now)
2) Is there is a legal reason for the words "refused" Said lot owner has refused, and continue to refuse, to pay the assessments of $__________for the year 2018. Instead, can I use the words "has not paid..."
.3) How do we address #3. since he is not the owner. “Lot Owner” is the owner of Lot #1 of Happytown Hill Estates pursuant to a deed which is recorded in the ___________County Registry of Deeds in Book _____, Page
Instead, can I write: The Representative of the estate of.........
Thank you! - Emily
First, I am not an attorney and therefore cannot offer legal advice. I would recommend you ask a qualified legal expert before acting on 3. below.
1. Yes. The Commissioner can sign the Notice of Claim (NOC) if your by-laws don't state otherwise.
2. Yes. "Has not paid" can stand for "refuses to pay"
3. Yes. "Representative" or "Executor" of the estate should stand for "Owner" in the current NOC. To be sure, please check with a attorney. I believe reasonable attorney fees in this case could be submitted to the estate along with recording fees and other costs of collection at settlement.
The Maine Alliance for Road Associations