[§421J-10.6] Association fiscal matters; collection of unpaid assessments from tenants or rental agents. (a) If a unit owner rents or leases the unit and is in default for thirty days or more in the payment of the unit's share of the regular assessments, the board, for as long as the default continues, may demand in writing and receive each month, or any other period of time for rental payment as provided in the lease, from any tenant occupying the unit or rental agent renting the unit, an amount sufficient to pay all sums due from the unit owner to the association, including interest, if any, but the amount shall not exceed the tenant's rent due at the time of demand. The tenant's payment under this section shall discharge that amount of payment from the tenant's rent obligation, and any contractual provision to the contrary shall be void as a matter of law.
(b) Before taking any action under this section, the board shall give to the delinquent unit owner written notice of the board's intent to collect the rent owed. The notice shall:
(1) Be sent both by first-class and certified mail;
(2) Set forth the exact amount the association claims is due and owing by the unit owner; and
(3) Indicate the intent of the board to collect such amount from the rent, along with any other amounts that become due and remain unpaid.
(c) The unit owner shall not take any retaliatory action against the tenant for payments made under this section.
(d) The payment of any portion of the unit's share of regular assessments by the tenant pursuant to a written demand by the board is a complete defense, to the extent of the amount demanded and paid by the tenant, in an action for nonpayment of rent brought by the unit owner against a tenant.
(e) The board may not demand payment from the tenant pursuant to this section if:
(1) A commissioner or receiver has been appointed to take charge of the unit pending a mortgage foreclosure;
(2) A mortgagee is in possession of the unit pending a mortgage foreclosure; or
(3) The tenant is served with a court order directing payment to a third party.
(f) In the event of any conflict between this section and any provision of chapter 521, the conflict shall be resolved in favor of this section; provided that if the tenant is entitled to an offset of rent under chapter 521, the tenant may deduct the offset from the amount due to the association, up to the limits stated in chapter 521. Nothing herein precludes the unit owner or tenant from seeking equitable relief from a court of competent jurisdiction or seeking a judicial determination of the amount owed.
(g) Before the board may take the actions permitted under subsection (a), the board shall adopt a written policy providing for the actions and have the policy approved by a majority vote of the unit owners, as provided in the association documents, who are present in person or by proxy or as otherwise permitted by the association documents, at an annual or special meeting of the association or by the written consent of a voting interest equal to a quorum of the unit owners unless the association documents already permit the process. [L 2012, c 182, pt of §2(1)]