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Gwendolyn,
As in all property purchases, most all terms and conditions are negotiable. So, you've got several options.
1. Tell the listing agent to tell the bank that your buyer won't pay the HOA fees. Then see what they say. It sounds like they've already said, "fine- no deal" to two previous buyers so that sounds like a high probability result.
2. Your buyer pays the fees and buys the house. This might not be a bad result if the fees are less than or equal to the difference in the market value of the home and the usually lower list price on short sales. I normally sell mine for about 90-95% of FMV (depending on the type loan, the servicer, the investor, mortgage insurance, etc.)
3. Everyone (seller - if able, listing agent, you, buyer) pitches in an takes a little of the "haircut" to make this happen. Of course, this is dependant on the amount of HOA fees, amount of commissions, etc. I've gotten several HOA management companies to share in the "haircut" by discounting the amount owed to get the property sold and newer/better homeowners in the neighborhood.
Etc, etc, etc.
How much are we talking about?
I had a similar situation where the seller was 6 months behind once the sale was approved, even though I told her to continue paying the condo fee. She ended up bringing $1,400 to the settlement.
Unless the past due amount has been converted into a lien, then BOA will not pay for the fees. If a lien has been recorded for the back dues than I would inform BOA that there is a 2nd lien on the property and send them a copy of it to show proof. BOA should approve up to $3,000 to go towards any junior liens.
If not try and work out a solution where the buyer and seller split the amount evenly.
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