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There are two prospective points of liability involved in filing unauthorized liens. In both cases, the potential for large damages (regular and/or punitive) is greatly amplified when it can be shown the Board knows that what it is doing is unlawful. Unfortunately, Elmore is wrong in his recent contention that MALA can continue to record liens in "good faith". That would have been the case up until August 2009, when the first Elmore opinion letter was presented. It clearly states that MALA lacks authority to record liens, and the Sottolano letter does not reverse this. Therefore, it is highly unlikely that any court would consider MALA to be acting in good faith when it now records Memoranda of Lien and clouds the titles of its member property owners. There may be few punitive damage awards against HOAs, but nothing opens the door for them like intentional malfeasance.

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It has been stated by several members of the Board that the Anderson v. Arrowhead case shows that MALA can 'file liens"* since the decision stated

Absent qualification under the POAA, LACA's right to impose an assessment on the property owners, and to seek liens against the lots of property owners who are delinquent in paying that assessment, arises only from covenant 13.

where LACA is the Lake Arrowhead Civic Association. However, the Supreme Court found

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The original opinion from MALA's law firm, Chadwick, Washington, Moriarty, Elmore and Bunn, PC (CWMEB) was written in August of 2009, during dispute between property owners and the Board. The letter covered two subjects that are essential to our lien issue: (1) Is MALA subject to the Virginia Property Owners' Association Act (VPOAA), and (3) Is the Association's lien authority valid? (Subject (2) was a MALA membership issue and not related to liens). The letter concluded that MALA was not subject to VPOAA, and in regard to liens, concluded, in pertinent part:

With respect to the Declaration, an argument can be made that there is an inchoate lien right by virtue of the reference in paragraph 10(e).

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(Update) Despite Elmore's contention that the Sottolano letter is an opinion, it is still not useful for MALA. If one increases the scope of the "opinion", then it might be called a very broad one, that boils down to this: MALA can "file liens" if CWMEB can find some kind of authority in the land records." Again, there is nothing in the letter that refers back to the 2009 CWMEB letter, and as Mark Sharp points out, it doesn't state any source of authority for MALA to record statutory liens. All liens deriving from the covenants are inchoate, as Elmore 2009 clearly stated. They require court action and approval to become perfected liens. There is no mechanism to perfect liens as are currently being recorded by MALA.

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