Often, unpaid maintenance fees, special assessments, condo fees, fines, etc. are paid by owners via “bank” or “cashier’s” check. These checks are almost cash, as they are checks that are actually drawn on the bank’s accounts, not the owners. The owner’s funds have been collected by the bank and have cleared. These types of checks are preferable methods of paying large arrearages because there is no risk of them being returned for insufficient funds.
However, because these checks are almost cash, a manager’s, or board’s loss of them can be quite perilous. Under current law, if and/or when the owner properly delivered the bank check, the owner’s underlying obligation to the common interest community association or cooperative was discharged pursuant to Section 3-310 of the Uniform Commercial Code.
Securing a replacement check is governed by the Uniform Commercial Code §3-312. The purpose of §3-312 is to allow a common interest community association or cooperative, who loses such a check a means of obtaining a refund of the amount of the check within a reasonable time period as well as offering full protection of the obligated bank.
A claimant, or person who claims the right to receive the amount of the bank check, must assert a claim through a communication to the obligated bank describing the check with reasonable certainty and requesting payment of the amount of the check. The communication must contain or be accompanied by a Declaration of Loss with respect to the check.
Such Declaration of Loss required by the Code is a written statement or affidavit, made under penalty of perjury to the effect that the declarer lost the possession of the check; the declarer is a person entitled to assert such claim (either the remitter or payee of the check); the loss was not the result of a transfer by the declarer or a lawful seizure; and the declarer cannot reasonably obtain possession of the check because the check was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process. Delivery of this declaration warrants truth of the statements.
Furthermore, the communication must be received in a time and manner affording the bank a reasonable period to act before the check is paid and the claimant is able to provide reasonable identification if requested by the bank. §3-312. The obligated bank may not impose any additional requirements on the claimant to assert a claim under the Code.
The claim becomes enforceable at the later of either the time the claim is asserted, or the 90th day following the date of the check. Once the claim becomes enforceable, the obligated bank must pay the amount of the check to the claimant. If the obligated bank pays the claimant, the bank is discharged of all liability with respect to the check.
So, as long as the common interest community association or cooperative follows these steps, a lost bank or cashier’s check can be overcome.