OPINION
This matter has been brought to my attention through facts that have been stipulated by the parties. (Stipulation of Facts Doc. # 7A, Supplement to Stipulation of Facts Doc. # 11A. Page 2 to Exhibit A to Supplement filed separately as Doc. # 15A.) At issue is the often-discussed tension created by the possible bankruptcy discharge of an association’s continuing property assessment.
Despite the bankruptcy of Christopher and Lisa Eno, Indian Country Campsites Recreation and Maintenance Fund (“ICC”) has been invoicing the Enos for post-petition assessments. The Enos have neither used nor rented the property or the trailer which is upon the lot. They have indicated a willingness to convey the lot to the ICC, but such is not possible because of a mortgage on the premises.
The original deed in the chain of title includes a covenant subjecting each owner to an annual “lien and charge.” Supplement to Joint Exhibit A, ¶ 17. The dues and charges assessed by the ICC are used to repair, maintain, and improve the amenities for the benefit of all property owners. Id.
While this is a dischargeability litigation, the fundamental question presented is whether post-petition property association assessments are barred by the bankruptcy filing of the debtors?
Courts reviewing this issue are quite evenly divided. About half of those courts find that those assessments accrue post-petition and, therefore, their collection is not barred.
River Place East Housing Corp. v. Rosenfeld (In re Rosenfeld),
As if two “halves” were not sufficient, a few courts have endeavored to “split the baby” and have concluded that future collection efforts “depend” on post-petition circumstances, such as continuing occupation by the debtor.
Matter of Pratola,
Let me explain.
Those decisions concluding that post-petition assessments can be collected notwithstanding a bankruptcy discharge, primarily rely on the fact that provisions for assessments belong to that amorphous legal interest known as covenants running with land and, as such, bind the owner of the land to its burden.
In re Affeldt,
Decisions concluding that the obligation to pay future assessments ceases with the discharge turn on the broad definitions attributed to debt to conclude, quite correctly, that the continuing obligation to pay assessments is discharged.
In re Rosteck,
Those cases alluding to the circumstance of continuing possession as a factor in determining the dischargeability of the obligation, appear to rely on equitable *322 grounds as a basis for their decisions — a sort of moral obligation based on the “use and occupation” of association services. 2
The tension assumed to exist between these approaches may not, in fact, exist.
There has always been a great deal of uncertainty in discussing the concept of covenants running with land. In the first instance, it represents a personal contract between the grantor, covenantee, and the grantee, covenantor. Unlike most contracts, however, one may enforce the contract simply by virtue of being an owner of the land. Chester Smith, Real Property Survey, at 304 (1956). Like a mortgage, a covenant running with the land may bind the owner personally to pay a set fee for common expenses and maintenance
and
may provide for a lien in favor of the association as security for this continuing obligation. Moreover, most jurisdictions refer to covenants as interests in real property. 9 Powell on Real Property § 60.04[1] at 60-43.
In re Penn Cent. Transp. Co.,
Under what circumstances the lien arises depends on the terms of the association’s recorded declaration of covenants and restrictions, which bind all members.
Wrenfield Homeowners Association v. DeYoung,
410 Pa.Super 621,
In applying these legal determinations to the facts, I hold that the Debtors’ personal obligations to pay the assessments may be dischargeable, subject to the exceptions found in 11 U.S.C. § 523. If this debt is included among those exceptions, the personal obligation to pay the assessment will survive. More specifically, my attention is directed to § 523(a)(16), which excepts from discharge any debt
for a fee or assessment that becomes due and payable after the order for relief to a membership association with respect to the debtor’s interest in a dwelling unit that has condominium ownership or in a share of a cooperative *323 housing corporation, but only if such fee or assessment is payable for a period during which—
(A) the debtor physically occupied a dwelling unit in the condominium or cooperative project; or
(B) the debtor rented the dwelling unit to a tenant and received payments from the tenant for such period,
but nothing in this paragraph shall except from discharge the .debt of a debtor for a membership association fee or assessment for a period arising before entry of the order for relief in a pending or subsequent bankruptcy case; (Emphasis mine.)
11 U.S.C. § 523
Whether or not Indian Country Campsites qualifies as a condominium or a cooperative is not controlling since the Debtors herein did not occupy nor rent the camp lot rendering the exception inapplicable to these facts. 5 Thus, I find the Debtors’ personal obligation to ICC is dischargea-ble.
Notwithstanding the dischargeability of the assessment fee, I further hold that the annual assessment is a covenant running with the land, and, as such, constitutes a continuing lien upon the premises that can be enforced in the same manner as mortgages are foreclosed.
In re Vary,
This conclusion is not unlike the holding in the case of
In re Dalton,
This ruling recognizes the primacy of Pennsylvania’s view as to property interests while continuing to further the significant bankruptcy goal of enabling the debt- or to obtain a fresh start. Such conclusion is also consistent with the rather limited exceptions to discharge in this area now included in § 523(a)(16) of the Code.
An Order will follow.
*324 ORDER
For the reasons set forth in the attached Opinion, IT IS HEREBY
ORDERED that judgment is entered in favor of the Plaintiffs and against the Defendant.
Notes
. One author has opined that the outcome is driven by the bankruptcy chapter chosen by the petitioner. Samuel Sherry, Condomini-urn Assessments in Bankruptcy: the Curious Case of the Vanishing Assessment, 29 CAWLR 345, 367 (1993).
. In 1994, Congress adopted this equitable approach with specific regard to condominium units and housing cooperatives by adding § 523(a)(16) to the discharge exceptions.
. 11 U.S.C, § 727(b) references the scope of the discharge as affecting all debts, which, in turn, are defined broadly in § 101 as including contingent claims. See also,
In re Thrall,
. Dewsnup v. Timm,
. I note that the bills now pending before Congress would amend § 523(a)(16) to specifically eliminate the reference to "housing” when referring to cooperatives and to specifically include lots in homeowners associations. H.R. 333 and S.420.