HOA -- FINING PROCEDURE FS 720.305

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

"Be careful what you wish for" should be the headline for the chapter about FINING! Fines levied the right way may serve the community well, but if the board doesn't follow the FINING Procedure as required by Florida Statutes 720.305 it can come back to haunt the whole community.

Fines can be 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! Many very expensive lawsuits are witness to abuse and selective enforcement.

Before starting the FINING procedure, make sure that your original governing documents allow fining. Remember: The US Constitution only allows government entities to fine its citizens. State Supreme Courts of Virginia and Rhode Island already ruled that fining by community associations is unconstitutional. Our Florida legislature has so far refused to remove the fining provisions from the statutes governing community associations. It's all about money: Service providers love it -- it's a great source of income for them. Management companies write the violation letters -- for a price -- and attorneys are kept busy with the many lawsuits caused by fining procedures.

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.

Make sure that the provisions regarding "FINING" in the original governing documents are followed, especially when it comes to the amounts that can be charged as fines.

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.

Any board should be very careful to avoid SELECTIVE ENFORCEMENT. It is still the best defense owners have against being fined -- and it has cost associations hundreds of thousands of dollars in legal fees after losing such "violation" cases.

Compliance Committee

The Compliance Committee (or whatever each association calls it) should be a committee of independent owners (not board members and/or their spouses or association employees) charged with approving or rejecting a fine levied by the board. The function of this committee resembles an "appeals court", where the owner -- in a public meeting -- has the opportunity to plead his/her case, trying to get the committee to reverse the fine imposed by the board.

Don't forget: Even if the compliance confirms the fine, it's still a long way for the association to really collect the fine. Most associations file a lien against the property if the owner doesn't pay the lien voluntarily. That is the moment when the owner, if unwilling to pay the fine, should take action. Remember, FS 720.3085 contains the valuable form : "CONTEST OF LIEN".

That court filing would then trigger the lawsuit that will finally decide about the validity of the imposed fine. Association boards should never forget: The association will be the plaintiff in this case, meaning the O&E insurance policy will not cover the expenses.

And if our Florida legislature doesn't act and stops the unconstitutional fining process by amending the statutes, one day an owner will take his case to the Florida Supreme court in order to get the same result as owners in Virginia and Rhode Island already got: A ruling by the Florida Supreme Court declaring fining by community associations UNCONSTITUTIONAL!

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.

(1) Each member and the member's tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:

(a) The association;

(b) A member;

(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.

The prevailing party in any such litigation is entitled to recover reasonable attorney fees and costs. A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. This section does not deprive any person of any other available right or remedy.

(2) An association may levy reasonable fines for violations of the declaration, association bylaws, or reasonable rules of the association. A fine may not exceed $100 per violation against any member or any member's tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association unless otherwise provided in the governing documents. A fine may be levied by the board for each day of a continuing violation, with a single notice and opportunity for hearing, except that the 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 reasonable attorney fees and costs from the nonprevailing party as determined by the court.

(a) An association may suspend, for a reasonable period of time, the right of a member, or a member's tenant, guest, or invitee, to use common areas and facilities for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. This paragraph does not apply to that portion of common areas used to provide access or utility services to the parcel. A suspension may not prohibit an owner or tenant of a parcel from having vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park.

(b) A fine or suspension levied by the board of administration may not be imposed unless the board first provides at least 14 days' written notice of the parcel owner's right to a hearing to the parcel owner at his or her designated mailing or e-mail address in the association's official records and, if applicable, to any occupant, licensee, or invitee of the parcel owner, sought to be fined or suspended. Such hearing must be held within 90 days after issuance of the notice 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. The committee may hold the hearing by telephone or other electronic means. The notice must include a description of the alleged violation; the specific action required to cure such violation, if applicable; and the hearing date, location, and access information if held by telephone or other electronic means. A parcel owner has the right to attend a hearing by telephone or other electronic means.

(c) If the committee, by majority vote, does not approve a proposed fine or suspension, the proposed fine or suspension may not be imposed. The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board.

(d) Within 7 days after the hearing, the committee shall provide written notice to the parcel owner at his or her designated mailing or e-mail address in the association's official records and, if applicable, any occupant, licensee, or invitee of the parcel owner, of the committee's findings related to the violation, including any applicable fines or suspensions that the committee approved or rejected, and how the parcel owner or any occupant, licensee, or invitee of the parcel owner may cure the violation, if applicable, or fulfill a suspension, or the date by which a fine must be paid.

(e) If a violation has been cured before the hearing or in the manner specified in the written notice required in paragraph (b) or paragraph (d), a fine or suspension may not be imposed.

(f) If a violation is not cured and the proposed fine or suspension levied by the board is approved by the committee by a majority vote, the committee must set a date by which the fine must be paid, which date must be at least 30 days after delivery of the written notice required in paragraph (d). Attorney fees and costs may not be awarded against the parcel owner based on actions taken by the board before the date set for the fine to be paid.

(g) If a violation and the proposed fine or suspension levied by the board is approved by the committee and the violation is not cured or the fine is not paid per the written notice required in paragraph (d), reasonable attorney fees and costs may be awarded to the association. Attorney fees and costs may not begin to accrue until after the date noticed for payment under paragraph (d) and the time for an appeal has expired.

(3) If a member is more than 90 days delinquent in paying any fee, fine, or other monetary obligation due to the association, the association may suspend the rights of the member, or the member's tenant, guest, or invitee, to use common areas and facilities until the fee, fine, or other monetary obligation is paid in full. This subsection does not apply to that portion of common areas used to provide access or utility services to the parcel. A suspension may not prohibit an owner or tenant of a parcel from having vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park. The notice and hearing requirements under subsection (2) do not apply to a suspension imposed under this subsection.

(4) An association may suspend the voting rights of a parcel or member for the nonpayment of any fee, fine, or other monetary obligation due to the association that is more than 90 days delinquent. A voting interest or consent right allocated to a parcel or member which has been suspended by the association shall be subtracted from the total number of voting interests in the association, which shall be reduced by the number of suspended voting interests when calculating the total percentage or number of all voting interests available to take or approve any action, and the suspended voting interests shall not be considered for any purpose, including, but not limited to, the percentage or number of voting interests necessary to constitute a quorum, the percentage or number of voting interests required to conduct an election, or the percentage or number of voting interests required to approve an action under this chapter or pursuant to the governing documents. The notice and hearing requirements under subsection (2) do not apply to a suspension imposed under this subsection. The suspension ends upon full payment of all obligations currently due or overdue to the association.

(5) All suspensions imposed under subsection (3) or subsection (4) must be approved at a properly noticed board meeting. Upon approval, the board must send written notice to the parcel owner and, if applicable, the parcel's occupant, licensee, or invitee by mail or hand delivery to the parcel owner's designated mailing or e-mail address in the association's official records.

(6) The suspensions permitted by paragraph (2)(a) and subsections (3) and (4) apply to a member and, when appropriate, the member's tenants, guests, or invitees, even if the delinquency or failure that resulted in the suspension arose from less than all of the multiple parcels owned by a member.

(7) Notwithstanding any provision to the contrary in an association's governing documents, an association may not levy a fine or impose a suspension for any of the following:

(a) Leaving garbage receptacles at the curb or end of the driveway within 24 hours before or after the designated garbage collection day or time.

(b) Leaving holiday decorations or lights on a structure or other improvement on a parcel longer than indicated in the governing documents, unless such decorations or lights are left up for longer than 1 week after the association provides written notice of the violation to the parcel owner.

History. s. 37, ch. 92-49; s. 55, ch. 95-274; s. 2, ch. 97-311; s. 51, ch. 2000-258; s. 20, ch. 2004-345; s. 17, ch. 2004-353; s. 12, ch. 2007-173; s. 8, ch. 2008-202; s. 24, ch. 2010-174; s. 18, ch. 2011-196; s. 16, ch. 2013-188; s. 17, ch. 2015-97; s. 14, ch. 2018-96; s. 21, ch. 2021-99; s. 4, ch. 2023-228; s. 58, ch. 2024-2; s. 7, ch. 2024-221.

Note. Former s. 617.305.