Real Property Law section 339-z, protects the enforceability of the condominium common charge lien from all liens except the lien of a first mortgage. The statute states that, "The board of managers, on behalf of the unit owners, shall have a lien on each unit for the unpaid common charges thereof, together with interest thereon, prior to all liens except only...(ii) all sums unpaid on a first mortgage of record...."

What types of mortgages are given priority over subsequently filed common charge liens has been determined by case law. In Dime Savings Bank of New York v. Levy, the first mortgage was adjudicated to include not only purchase money mortgages but also a subsequent gap mortgage that was consolidated with the purchase money mortgage prior to the filing of a common charge lien. Greenpoint Bank v. El-Basary, included within the meaning of first mortgages, a non-purchase money mortgage that is recorded ahead of common charge liens.

The real estate downturn of 2008 created a glut of purchasers with buyer's remorse, looking to rescind their contracts of sale. Some prospective purchasers of condominium units looked to the Interstate Land Sales Full Disclosure Act ("ILSA"), 15 U.S.C. 1701 et seq., to provide them with an out that would allow them to walk away with their down payments intact. ILSA was enacted by the federal government in 1968 to protect purchasers from fraudulent interstate sales of undeveloped land. Unscrupulous developers were able to dupe unsuspecting investors into purchasing out-of-state land that was unsuitable for development by making deceptive representations regarding the condition of the land. ILSA countered this problem by requiring sellers of undeveloped land to submit a property disclosures to HUD, known as a "statement of record," and to the prospective purchaser, known as a "property report." A failure to adhere to the technical reporting requirements under ILSA would give a prospective buyer a right of rescission running two years from the date of the signing of the contract of sale. Although ILSA does not specifically state that it applies to purchases of condominium units within yet to be built condominiums, some buyer's attorneys were able to make the case that ILSA applied to undeveloped land and undeveloped condominiums alike.