FINING A HOMEOWNER -- ARE YOU SURE?

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

Published August 3, 2010

Have you already bothered to read the new version of FS 720.305(2) -- and by "read" I mean word by word? And if you did read it, did you realize that the new wording creates a lot more questions than it provides answers? Continue to read this article and you'll find a few of the obvious questions.

Whoever authored this new version of the HOA fining provision started out with a clear violation of owners' contract rights. You know this "contract" owners are always being reminded on when it's convenient for the powers that be? "You knew what you were getting into -- you signed the contract!" Former versions of this paragraph always provided the language to protect the right of owners who moved into associations that didn't allow "fining" of owners. Remember the good old start of the provision: "If the governing documents so provide....?" That's gone now, because the new bill wants to make sure that all attorneys get a big bite of the apple, not just the attorneys that represent associations that specifically allow fining of owners.

Arguments about giving the association the right to fine its members had been a hotly debated issue during the meetings of the HOA TASK FORCE MEETINGS in 2003/2004. The members heard lengthy testimony from homeowners about abuses by dictatorial boards. We heard many horror stories from frustrated owners who testified that boards used fining power to plainly blackmail neighbors! Together with the argument that this provision is anyway unconstitutional, the provision to enforce fines with the help of liens and foreclosures was removed from the statutes in the so-called HOA Task Force bill enacted in 2004.

The Supreme Courts of two states, VIRGINIA and RHODE ISLAND, have already decided that fining by community associations is unconstitutional.

NEVER FORGET: COMMUNITY ASSOCIATIONS ARE NOT GOVERNMENT ENTITIES!

So much for honoring contracts!

FS 720.305(2) If a member is delinquent for more than 90 days in paying a monetary obligation due the association, an association may suspend, until such monetary obligation is paid, the rights of a member or a member’s tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines of up to $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied for each day of a continuing violation, with a single notice and opportunity for hearing, except that a fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney’s fees and costs from the nonprevailing party as determined by the court. The provisions regarding the suspension-of-use rights do not apply to the portion of common areas that must be used to provide access to the parcel or utility services provided to the parcel.

If you read the newly amended version and remove all the garnish (more detailed explanations), the first sentence reads like this: "If a member is delinquent for more than 90 days in paying a monetary obligation an association may suspend the rights of a member to use common areas and may levy reasonable fines."

Not considering legislative intent and/or legalese explanations, wouldn't that mean that the association can suspend and/or fine owners who are delinquent for more than 90 days in paying a monetary obligation due to the association? What happened to all the other reasons owners could be fined for? Like "brown spots on the lawn after a serious drought and watering restrictions"? No reason other than delinquency is mentioned, as far as I can see. But it looks like the association has now the right to fine an owner who is behind in his/her dues -- something that really doesn’t make sense. Imagine now a board can levy a $100 fine a day against a family that fell on hard times. Since the family couldn't pay the annual dues of $250 (for example) they are now already up to $1,250 in debt, not considering all the late fees and attorney's fees. "That's right, let's trample a lot more on the families that fell on hard times. These deadbeats really don't deserve better!"

But homeowners' associations now have to hold a hearing not only if they want to fine a neighbor. They now have to hold a hearing before suspending use rights of common elements.

FS 720.305(2)(a) A fine or suspension may not be imposed without at least 14 days notice 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. If the association imposes a fine or suspension, the association must provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.

This might get really interesting: Imagine they want to suspend the rights of an owner to use the pool (common area; facility), because he/she is months behind in association dues. Owner shows up at hearing and states that he couldn't pay the dues because his wife has cancer and he has to pay the medical bills for her treatment. Not sure what the decision of the committee would be? It could be "Go swimming -- you already have enough problems!" Or it could be "We don't care if your wife dies as long as you pay the association dues and for bringing up a stupid excuse we fine you $1,000 for not paying your dues on time!" Many options, but none that make common sense! Right?

Is that what community associations are all about?

I really would like to know who erected the fence that prevents Common Sense from entering Tallahassee?

[DISCLAIMER: This opinion article is not meant to be some kind of legal interpretation of this provision. I think only courts will be able to interpret the real meaning of this badly written law!]