| HOMEOWNERS'
ASSOCIATION EDUCATION |
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FINES -- ENFORCEMENT Fines and suspensions of owners' rights are regulated by FS Chapter 720.305. In 2004 the legislature added a provision to protect owners against abuses -- and kangaroo courts! A fine shall not become a lien
against a parcel. That is the sentence that attorney
groups and lobbyists have been trying in vain to repeal during 2005 and
2006 legislative sessions. This
is the simple sentence that changed the entire situation in regard to FINES.
Now the board and their managers and attorneys have to prove that
there really was a violation that would allow an association to levy a
fine. Already rulings by State Supreme Courts in
Virginia (Unit
Owners Association of Buildamerica v. Harry F. Gillman) and Rhode
Island (James
Foley v. Osborne Court Condominium, ET AL.) have
held that fines by associations are unconstitutional. According to the Boards and attorneys often try to use little tricks to circumvent Florida Statutes. We have seen the attempts of boards to add little sentences into their bylaws, stating (example): "Unpaid fines turn into special assessments if unpaid for more than four weeks!" Then comes the attempt to lien the property for an "unpaid special assessment!" A fine is a fine
-- according to Florida Statutes. And deceptively renaming the amount
doesn't void the sentence in the Florida Statutes: A fine shall not
become a lien against a parcel. Boards, attorneys and managers have always used fines to subdue free speech or opposition against the board members. Before 2004 a fine could be levied, no proof of violation necessary, and the owner could be threatened with losing his/her home if the fine wasn't paid, even if there never was a violation. Since enactment of this law, the tide
has turned and the boards have to use the proper ways specified by Here are the necessary actions that must be taken to fine an owner for any violation: 1.) Written notice of at least 14 days to the person sought to be fined. See provisions for MONETARY FINE 2.) 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. 3.) PRESUIT MEDIATION according to new version of FS 720.311 4.) If still unsolved, litigation in Court of Law. This is how FS 720.305 specifies to fine an owner for violation of deed restrictions. Nothing else!
Suspension of common-area-use rights: Only allowed if governing documents so provide. The levied suspension can't impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park. Suspension of voting rights: Only allowed for nonpayment of regular annual assessments (not special assessments or fines) that are delinquent in excess of 90 days. Only valid after official written notification of pending suspension. We have recently seen that boards in recall cases try to disqualify petitions signed by owners that boards claim to be delinquent. Even if there is a delinquent payment, a timely notice had to be mailed out before the recall petition was served. Arbitrators have rejected this claim by the boards in various recall arbitration cases. See: Sandpointe Townhouses Owners' Association, Inc., V. Homeowners Voting for Recall (Case No. 2006-00-7925). Similar attempts are being made by sitting boards at annual elections. In extreme cases boards even sent out violation notices and claimed that owners were not eligible to vote due to unpaid fines. Checks for monthly dues were not cashed timely in order to disqualify owners from voting because of “delinquency.” These shenanigans clearly violate the Florida Statutes. But since there is no accountability of the people in charge, we see these extreme cases happening! Legislative changes are necessary. |