“Fining and Common Facility Use Right Suspensions Discussed ” – News-Press
Q: My homeowners’ association is looking to impose fines or other penalties against owners who violate the rules. We understand that there are limits on the amount a fine but question whether the board has the authority to impose fines. Can you explain the process for fines? (G.R., via e-mail)
A: For homeowners’ associations, Chapter 720, the Homeowners’ Association Act, discusses the ability of the association to levy reasonable fines for violations of the governing documents. The Homeowners’ Association Act also discusses the ability to impose common facility use right suspensions. Specifically, Section 720.305(2) of the Homeowners’ Association Act discusses the fining and suspension process.
Pursuant to the Homeowners’ Association Act, the fine may not exceed $100.00 per violation or $1,000.00 in the aggregate for an ongoing violation, unless the governing documents provide otherwise. The Homeowners’ Association Act also provides a detailed procedural process which the association must follow to properly impose a fine or suspension for violating the governing documents.
Once the board has determined to fine an individual, the board must give that individual at least fourteen (14) days written notice of their right to attend a hearing before a committee. The committee must be at least three (3) members of the community 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 of the association. Therefore, the first issue the association must address is the appointment of the committee. Many associations I have worked with have trouble forming the committee, given that many owners do not wish to sit on the committee which will judge their neighbors.
However, assuming that the association can constitute the committee, the committee must hold a hearing, either in person or by telephone or other electronic means. The notice to the owner regarding the hearing must describe the alleged violation, specific action required to cure the violation, if applicable, and the date, location and access information, if applicable, for attending the hearing.
At the hearing, the committee, by a majority vote, must approve the fine or suspension and if the committee does not approve the fine or suspension, they may not be imposed. Within seven (7) days of the hearing, the committee must provide written notice to the owner advising them of the outcome of the hearing and again advise them how the violation may be cured if applicable.
Even if the association goes through the fining hearing process if the owner cures the violation either before the hearing or cures the violation before the due date for which the fine must be paid, the fine may not be collected.
As such, the owner has ample opportunity to cure the violation, as applicable, throughout the process and if the owner cures the violation, even if the association has properly levied and approved the fine through the committee process, the association cannot collect the fine.
Chapter 718, the Florida Condominium Act, has a similar process for imposing fines and common facility use suspensions as the Homeowners’ Association Act. The Florida Condominium Act contains similar language concerning the requirement for the independent committee as well as a required fourteen (14) day notice to the owner concerning the fining hearing. However, Section 718.303(3), of the Florida Condominium Act, which discusses the fining process for a condominium association, does not have similar language concerning the ability of the owner to cure the violation prior to either the hearing or the due date of the fine.
If an association wishes to explore the option of imposing fines or common facility use right suspensions for violations of its governing documents, it should discuss the matter with its legal services provider because, as discussed above, there are a number of procedural requirements that must be complied with in order for a fine or suspension to be properly imposed.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.
