“Understanding Cure Rights Under Florida HOA Fine Procedures” – News-Press
Q: I was recently fined by my homeowners’ association for violating the entry gate procedures. The hearing for the fine occurred more than thirty (30) days after the alleged event. I raised the issue of curing the violation as permitted by the statute and the committee stated that this type of violation was not subject to cure and imposed the fine. Can you explain how violations are cured so that owners may avoid being fined? (J.B., via e-mail)
A: For homeowners’ associations governed by Chapter 720, Florida Statutes, the Florida Homeowners’ Association Act, fines may not be imposed for violations that are subject to being cured, if the owner timely cures the violation as permitted by statute.
Section 720.305 of the Homeowners’ Association Act addresses the process for a homeowners’ association to impose fines, or common use right suspensions, against owners, their tenants, guests or invitees, for violations of the governing documents for the community or the rules of the association. Section 720.305(2) provides that, before a fine or suspension may be imposed, the board of directors must provide at least fourteen (14) days’ written notice of the owner’s right to a hearing before an impartial committee consisting of at least three (3) members appointed by the board. These committee members may not be officers, directors, or employees of the association, nor the spouse, parent, child, brother, or sister of such persons. The hearing notice must describe the alleged violation and, if applicable, provide the specific action required to cure the violation, together with the hearing date, location, and access information if the hearing is to be conducted virtually.
Within seven (7) days after the hearing, the committee must provide written notice to the person being fined of the committee’s findings regarding the alleged violation, whether any fine or suspension has been approved or rejected, how they may cure the violation, if applicable, and the date by which any approved fine must be paid.
The statute further provides that if the violation has been cured before the hearing, or in the manner specified in the written notice sent after the hearing, a fine or suspension may not be imposed.
As such, there are several references in the statute requiring the association to advise an owner, or other person to be fined, how a violation may be cured, “if applicable.” However, the statute does not further define which types of violations are subject to cure.
It would appear that certain types of violations cannot be cured for purposes of avoiding a fine or suspension. Examples may include violations based on specific discrete conduct, such as certain parking violations, violations of gate access procedures, or other behavioral violations tied to a particular act or occurrence. By contrast, other violations are subject to cure, such as failing to properly maintain a lawn, architectural control violations such as painting a home an unauthorized color, or similar violations that can be corrected through affirmative action by the owner.
However, there is no additional guidance in the statute, and it does not appear that these provisions have been addressed in a published appellate court decision in Florida. Therefore, associations seeking to impose fines or common use right suspensions should review their procedures with its legal services provider to ensure compliance with the statute’s notice requirements and to determine whether a particular violation is subject to cure before a fine or suspension may be imposed.
It is important to note that these provisions apply to homeowners’ associations governed by Chapter 720. Chapter 718, Florida Statutes, the Florida Condominium Act, does not contain similar language regarding a unit owner’s ability to cure a violation to avoid the imposition of a fine or suspension procedure.
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.
