FINING OWNERS FOR DEED VIOLATIONS? DO IT THE RIGHT WAY !

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc. 

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) 

A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed. 

   

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.


NEWS PAGE HOME HOA ARTICLES