When a Massachusetts condominium unit owner wants to sell her unit to a buyer, she will have to obtain a “6(d) certificate” from her condominium association. Typically, a few weeks before the closing, the seller will request the certificate from the condominium trustees or the property manager, pay a fee, obtain the certificate, and provide it to her attorney, who will bring it to closing.
Clean 6(d) certificates
Assuming the unit owner has been regularly paying her condominium fees and any special assessments, then the 6(d) certificate will reflect that there are no unpaid common expenses. This is commonly known as a “clean 6(d) certificate”.
The seller will bring the clean 6(d) certificate to closing along with the unit deed, and deliver these documents, among others, to the buyer. Most likely the closing will occur without a problem.
When a clean 6(d) certificate has been issued by the condominium trust, and it has been recorded in the appropriate registry of deeds, the buyer, the seller, lenders, and everyone else, can know and rely on the fact that there are no common expenses which the unit owner has not paid, and also that any lien the condominium association has against the unit has been discharged.
“A statement from the organization of unit owners setting forth the amount of unpaid common expenses and any other sums which have been assessed against a unit owner, including a statement of the amount which the organization of unit owners claims is entitled to priority with respect to any mortgage under subsection (c), shall operate to discharge the unit from any lien for other sums then unpaid when recorded in the appropriate registry of deeds; . . . .” G. L. c. 183A, § 6(d).
The necessity for obtaining a 6(d) certificate typically arises in connection with the purchase and sale, or a mortgage refinance, of a condominium unit. However, there is at least one other situation in which it would be valuable for a unit owner to obtain a clean 6(d) certificate. If a unit owner has been involved in litigation with his condominium association, as part of the resolution of the lawsuit, I consider it good practice for the unit owner to require the association to issue a clean 6(d) certificate from the association, and then record it. That way, it will be clear to the world that there are no unpaid common expense assessments outstanding the unit through the date stated on the certificate.
“The statement . . . shall be binding on the organization of unit owners, the governing body of the organization of unit owners, and every unit owner; . . . .” G. L. c. 183A, § 6(d).
Dirty 6(d) certificates
If the unit owner has not paid all outstanding common expense assessments or other sums that have been assessed against her, then the condominium trust can issue a 6(d) certificate that reflects these unpaid amounts. Such a certificate is commonly referred to as a “dirty 6(d) certificate”.
Items that might appear on a dirty 6(d) certificate could include unpaid monthly condominium fees, including amounts for which the association might have a priority lien over a first mortgage holder, unpaid special assessments, attorney’s fees, and fines.
Assume that the unit owner has wrongly refused to pay certain amounts that have been assessed against her. Now she is under a purchase and sale agreement to sell her unit, or alternatively, she wants to refinance her mortgage.
Since it is unlikely that a buyer or a lender will go through with a transaction unless these amounts are satisfied, at this point, the likelihood that the association will get paid increases considerably.
The condominium association cannot refuse to issue a 6(d) certificate.
One thing the condominium cannot do is refuse to issue a 6(d) certificate to the unit owner. “The statement shall be furnished within ten business days after receipt of a written request, upon payment of a reasonable fee . . . .” G. L. c. 183A, § 6(d).
Imagine a small association that is not professionally managed, and which is dysfunctional. A unit owner asks the trustees to issue a 6(d) certificate. The trustees wrongly refuse to provide one. Perhaps the trustee is diabolical and wants to interfere with the unit owner’s ability to sell her unit.
What recourse does the unit owner have under these circumstances? The owner should have an experienced attorney draft a letter demanding the immediate issuance of a 6(d) certificate. The demand should make it clear that the unit owner will very quickly file a lawsuit and seek a preliminary injunction that orders the trustees to issue the certificate unless the certificate is provided immediately.
What if the owner lives in a two-unit condominium and there is no functioning association?
There are many two-unit condominiums in Massachusetts that, for various reasons, barely operate. Some two-unit condominiums may not have trustees. It may be that after the declarant developed the condominium and sold both units, neither of the owners held meetings, and no trustees were ever elected or appointed.
Now one of the owners wants to sell, and the neighbor is not cooperative. In a situation like this, the seller should retain an experienced Massachusetts condominium attorney.
It may or may not be possible for the seller to self-appoint, or self-elect himself as trustee, so that he can issue a 6(d) certificate, and then close. It will be important to review the declaration of trust and follow the procedures for filling vacancies as carefully as possible, and to the satisfaction of the bank’s attorney.
About the author: Robert Nislick is a Massachusetts condominium and real estate lawyer. For more information, contact him at (508) 405-1238, or by e-mail.