How can the board enforce these rules and regulations without a fining system or some means of penalty for a violation?

By May 3, 2019 News, Questions & Answers

Q: A couple weeks ago there was an article asking how to stop commercial vehicles or vehicles with commercial markings on them from parking in homeowner’s driveways when the HOA by-laws say it is not permitted.  Your answer at that time was that the board and property manager has a legal obligation to enforce the rules and regulations of its documents.  That’s good I agree with that, but the one thing that I did not see is how do you do that?  The POA that I have where I live has the same requirements in our documents but find it hard to enforce them because we do not have a fining system to enforce the rules and regulations we have.  How can the board enforce these rules and regulations without a fining system or some means of penalty for a violation.  Can we send letters to the violators with a warning about the rules and saying if not abiding by the rules that your vehicle will be removed by the POA and they will have to pay to get it back. What would you suggest ?

– D.F., Stuart, FL

A: Thank you for your question, and I have good news for you.  Even though your community’s governing documents do not have a procedure for fining owners that violate the covenants, 720.305(2), Fla. Stat. gives the association the right to levy reasonable fines, as well as suspend use rights and voting rights.  Pursuant to such statute, a fine may not exceed $100 per violation, and the 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 your governing documents.  Any fine that is $1,000 or more can become a lien against the owner’s property, and the association may foreclose that lien in the same manner as a mortgage.  Further, an association may suspend, for a reasonable period of time, the right of a owner, or an owner’s tenant, guest, or invitee, to use common areas and facilities for the failure of the owner or its occupant, licensee, or invitee to comply with any provision of the association’s governing documents.  Please note that a suspension may not prohibit an owner or tenant of a parcel from having vehicular and pedestrian ingress to and egress from their home, including, but not limited to, the right to park.

With regard to the procedure to levy a fine, a fine cannot be imposed unless the board first provides the owner (and, if applicable, any occupant, licensee, or invitee of the owner) with at least 14 days’ notice with an opportunity for a hearing before a committee of at least 3 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, the proposed fine may not be imposed. The role of the committee is limited to determining whether to confirm or reject the fine levied by the board. If the proposed fine levied by the board is approved by the committee, the fine payment is due 5 days after the date of the committee meeting at which the fine is approved, and the association must provide written notice of such fine or suspension by mail or hand delivery to the home (and, if applicable, to any tenant, licensee, or invitee of the owner).

Another tool that the association can utilize is found in 720.305(3) and (4), Fla. Stat., which subsections provide that if an owner is more than 90 days delinquent in paying any fine, fee, or other monetary obligation due to the association, the association may suspend, until the fine, fee, or other monetary obligation is paid in full: (a) the rights of the owner, or the owner’s tenant, guest, or invitee, to use common areas and facilities, and (b) the owner’s voting rights.  Please note that (i) a suspension may not prohibit an owner or tenant of a parcel from having vehicular and pedestrian ingress to and egress from their home, including, but not limited to, the right to park, and (ii) the 14 day notice and hearing requirements as stated above are not applicable to a suspension imposed where an owner is more than 90 days delinquent in paying any fine, fee, or other monetary obligation due to the association.  Also note that all suspensions for use rights and voting rights must be approved at a properly noticed board meeting, and upon approval, the association must notify the owner and, if applicable, the home’s occupant, licensee, or invitee, by mail or hand delivery.

Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross.  Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

 

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law.  The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.

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