FINING
OWNERS FOR DEED VIOLATIONS? DO IT THE |
An
Opinion By Jan Bergemann Published April 19, 2010
For
one simple reason I am against an HOA having the right to fine its
members: Fining is badly abused. Fines are in many cases levied by a
kangaroo court by owners who often don’t know the deed restrictions and
the legal remedies. In many
associations fines are used to subdue owners who dare to contradict board
members. Many very expensive lawsuits are witness to abuse and selective
enforcement. Fines
are as well a great way to bankrupt a community association and its
members, if it backfires and the legal bills have to be paid by the
association and its members. Our website is full of examples of lawsuits
regarding fines that came back to haunt the community! But
if you feel you need to “FINE”
your neighbors, please do it the correct way, so the whole community will
not have to suffer because the board used a private agenda instead of the
statutes to enforce fines. Before
starting the FINING procedure,
please check your governing documents, because FS
720.305(2) clearly says: “If
the governing documents so provide, an association may ….”
Many governing documents, especially in older communities, don’t
allow boards to fine their neighbors. Make sure there is a provision in
the original governing documents that allows the board to levy fines
against owners. But
if a board feels that it needs to FINE neighbors, please make sure
that it is done the correct way. Otherwise the board members may get a lot
of egg on their faces and have to pay big legal bills from the opposing
attorney! Here
are some ideas to do it right – trying to avoid lawsuits, in which the
“fined” neighbor ends up being the prevailing party. Make
sure that you have accurate guidelines and fine charts in place,
guidelines that will hold up to legal challenges. Especially since more
and more communities are trying the self-manage approach due to serious
budget deficits caused by unpaid dues and/or foreclosures, it’s
important that the board watches the fining process carefully in order to
avoid serious financial harm to the community. Compliance
Committee It
should be a committee of independent owners (not board members and/or
their spouses) charged with finding valid violations and informing the
owner in writing that he/she is violating the deed restrictions of the
community. The committee should create form letters that explain in detail
exactly which provisions of the deed restrictions are being violated and
what the owner needs to do in order to remedy the situation. The letter
should state that the association gives the owner 14 days to remedy the
violation and that the association can fine the owner if he/she fails to
remedy the violation. If
the owner fails to act as required, a second form letter should be mailed.
This letter announces that the violation procedure will be turned over to
the Grievance Committee within 7 days. This committee will hold a public
meeting at which it will be determined if a fine should be levied. The
compliance committee turns the file over to the grievance committee. GRIEVANCE COMMITTEE Membership and actions and procedures of this committee are regulated by FS 720.305(2) (a)
The
grievance committee has to hold a public, noticed meeting -- same as board
meetings regulated by FS
720.303(2). The committee decides if the violation as alleged by
the compliance committee has merits. The owner shall have the opportunity
to speak in his/her defense at the hearing. The committee members can levy
a fine if they feel that the violation notice was rightfully issued. It is
important for the committee to make sure that deed restrictions are
actually violated before levying a fine. ASSOCIATION BOARD The
association board works in these cases like an appeals court. That’s why
no board member should be a member of the compliance committee. If the
board confirms the fine levied by the grievance committee, the board has
to take the necessary steps to start enforcement of the fine! But
please make sure that all the governing documents this fine is based upon
are in order, that not some made-up rules that will not hold up in a court
of law are being “enforced” and that the rules and guidelines the
association is trying to enforce are not violating FS
720.3035. And
beware of SELECTIVE
ENFORCEMENT – the biggest and most likely successful defense
owners have in a court of law. Every
community association board should make sure that all fining procedures
and guidelines are followed before enforcing any deed-restriction
violations with a fine. Sloppy work can get very expensive for the
community and should be avoided. |