Have you received a violation notice from your HOA that threatens a fine if a stated item is not corrected?
If said violation is not corrected by (time specified) you will incur a fine of $XX.XX per day up to $1,000 per violation. Is this fine legitimate? Yes, no, maybe, perhaps, etc. The fining process for Florida owners of lots, parcels and homes in Florida Subdivisions and Mobile Home Parks (where the parcel is owned) is a child of contract rights, Florida Not for Profit corporations, various Florida Statutes and the Governing Documents of your mandatory membership in a Florida Homeowner’ Association.
Who enforces the implementation of fines? The State of Florida gives the authority to fine, to the associations, and without recourse to any oversight by a State Agency. The Florida Legislature dumped the enforcement on the Courts.
720.302 Purposes, scope, and application. —
(1) The purposes of this chapter are to give statutory recognition to corporations not for profit that operate residential communities in this state, to provide procedures for operating homeowners’ associations, and to protect the rights of association members without unduly impairing the ability of such associations to perform their functions.
(2) The Legislature recognizes that it is not in the best interest of homeowners’ associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners’ associations.
The Attorneys in this industry seem to agree that the only way to solve HOA violation problems is through the Court System. The most impractical way to solve all but the most egregious of problems. There is a grass roots movement that HOAs do not have the right to fine, under the US Constitution and/or the State Constitution.
Some thoughts for your consideration:
- The fine notice should include -specifically- the section of the Governing Documents that are violated, not some ambiguous notice, i.e., keep your lawn in better shape, repaint your home, trim your hedges, brown grass in the swale. The owner being cited for a violation of the Governing Documents has the right to specificity of violation. After all the final authority, as to legitimacy, is the court system. If it is not specified in the documents, what has been violated? The managers view, some board member’s view, or a subjective committee member’s view?
- If you have received a violation notice, attend to it within the time stated! The changes in the statutes now allows your board of directors to set the fine with one single notice, without any further notice at a duly noticed board meeting. Bulk fining is the norm. The board is not required to hear from the owners.
- Once the board levy’s the fine, a minimum of a 14-day notice is sent to the “violator”, to appear before a fining committee, to review the fine imposed by the board. The committee is restricted to vote, after hearing testimony from the owner, to uphold the fine or deny the fine. Not to modify, forgive or increase the fine. If the owner fails to appear before the committee, the fine is usually imposed, although the committee still has the authority to deny the fine. Only a yes or no decision is legal.
- The irony of the NO vote is it may go back to the board for amendment of the violation notice. The other irony is the Board appoints the hearing committee.
- If the fine is not paid and the collection process is started, the owner may incur considerable add on fees to the fine and Florida law states “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”.
- If the fine is $1,000 or more, it is considered an assessment and a lien may be placed on your home and may result in a foreclosure action on your home.
It will be interesting to see how this plays out for Chapel Trail as the fines total in excess of $150,000 on the books.