Q: Fining for violations has always been confusing to me, since most fines are cumulative or compounding for each day the violation is not corrected. Should the due date be following correction of the violation or whatever date the fine ceases? (R.N., via e-mail).
A: You are not alone. I have written this column for some 25 years, and questions about fining are probably the number one question I get.
Fines can be levied for violations of the governing documents, which generally involve either the declaration of covenants or rules and regulations. Fines can be imposed against condominium and cooperative unit owners, occupants, licensees, and invitees. The law for homeowners’ associations authorizes fines against members, members’ tenants, guests, and invitees. The difference in wording between the various statutes is likely unintentional and a function of their separate historical developments.
Condominium and cooperative fines are capped at one hundred dollars per day and one thousand in the aggregate for continuing or ongoing violations. Homeowners’ association fines are likewise capped at one hundred dollars per violation and one thousand dollars in the aggregate, with one important difference. The declaration, articles, or bylaws can authorize higher fines (this option is not available to condominiums and cooperatives).
Fining is retroactive and can begin accruing from the first day a violation is alleged to have occurred. If a violation is of an ongoing or continuous nature, it has usually already been going on for at least ten (10) days, so there is usually no reason to calculate a prospective per-day amount. There is no legal requirement to give a warning letter or opportunity to correct a violation before a fine is levied, although many associations do so as a matter of policy, especially for minor or first-time violations.
The board typically initiates the fining process by placing the matter on the agenda for a regular or specially scheduled meeting to consider levying a fine. A majority vote of the board at a meeting where a quorum is present would be required to levy the fine, which should be levied as a specific amount.
After levy by the board, a hearing must be offered. The hearing is conducted by an independent committee appointed by the board. The committee, sometimes called “fining committee” or “compliance committee,” must be comprised of at least three (3) members of the association who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.
At the fining hearing, the committee must afford basic due process and allow the accused to be heard, state his or her case, and challenge evidence against him or her. Ongoing or continuing violations only require a single notice and opportunity for hearing before the committee.
The committee’s sole decision is to either “confirm” or “reject” the fine levied by the board. If the committee rejects the fine, the matter is concluded. If the committee confirms the fine, the fine is deemed to be imposed. The association must provide written notice of the fine by mail or hand delivery to the owner and, if applicable, to any tenant or invitee of the owner. The fine becomes due five (5) days after written notice is given.
Unpaid fines are not secured by a lien in the condominium or cooperative context. In homeowners’ associations, the statute provides that a fine of one thousand dollars or more may be subject to a lien. Collection of fines typically requires a suit in small claims court, and the loser of the case would normally be responsible for the winner’s attorneys’ fees.
As you can see, the fining process is not simple, nor necessarily fast. I have found that it works well for certain types of violations, such as parking and speeding violations. For more serious or ongoing situations, such as an unapproved architectural change, it is often not effective.
The same statutes also permit suspension of certain common area use rights for document violations, and the same general procedures must be followed. The provisions of your association’s governing documents and the application of current laws is also an important issue, which should be addressed with the association’s attorney.
Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.