By David Swedelson, Partner at SwedelsonGottlieb, Community Association Attorneys
If you thought that the laws in other states regarding condos and HOAs were the same as ours, you were way wrong. And that is certainly the case when it comes to fining and/or penalizing owners for violations. On July 1, 2015, new provisions which clarify the procedures in Florida for fining and use right suspensions for non-monetary violations became effective. An article by Florida community association attorney Jeffrey Rembaum describes this new law.
The term “non-monetary violations” refers to violations such as failing to pressure clean roofs (seriously?) and driveways, to remove dead trees, to bring in the garbage cans and to pick up after your pet, etc., and excludes penalties for delinquent payment of assessments.
According to Rembaum, “[t]hese new provisions were put into place to clarify the manner in which an association’s board of directors and its fining and suspensions committee coexist. Prior to these provisions, there were some who were unsure as to whether the fining and suspensions committee would first meet and then the board of directors would levy the fine, or if the board of directors would first meet, determine the amount of the fine, and then the fining committee would meet to provide the offending owner with the opportunity to be heard. Now, it is patently clear. The board must take action first.”
Wow. A separate “fining and suspensions committee.” We cannot get owners to serve on the board much less a fining committee. I did see an article a few months ago that asked if these committees can be anonymous. Enough said.
Rembaum goes on to say that according to these recent amendments to the Florida Statutes, “an association’s board of directors must first levy the fine or enact a use right suspension for a non-monetary violation at a properly noticed board meeting. After, the person who is to be fined or suspended must then be provided with at least fourteen days’ notice and an opportunity for a hearing before the fining and suspensions committee. If the fining and suspensions committee does not exactly agree with the board, then the fine or use right suspension may not be enacted.”
“… the role of the fining and suspensions committee is strictly limited to determining whether to confirm or reject the fine or use right suspension levied by the board of directors. The committee cannot make any changes whatsoever to the fine or use right suspension enacted by the board as any such change would constitute a rejection of the fine or use right suspension levied by the board.”
“As a matter of practicality, if the fining and suspensions committee rejects the fine or use right suspension, the board could start its decision making process over or the fining and suspensions committee could make a recommendation to the board as to what it would approve. In either event, it begins the fining and use right suspension process anew. This means that the offending member should also be provided another fourteen days’ notice and opportunity to appear in front of the fining and suspensions committee before the recommended fine or use right suspension becomes effective.”
I just do not see this process working in California. I, for one, would not serve on the fining and suspensions committee just to hold a hearing to approve or not approve the fine levied by the Board.
In California, the Board does it all. It notices and holds the hearing and then levies the fine. In the old days before our legislature clarified things, many associations did it like cities do when issuing parking tickets, for example. The fine was levied, and the person cited could seek a hearing. In California, our Civil Code Section 5855 requires that before the board decides on a fine or penalty, it must first give the owners notice and a hearing.
As in California, Florida condominium and cooperative associations can only file a lawsuit seeking a money judgment in order to collect unpaid fines.
But interestingly, Florida treats planned developments differently. (Note that Florida’s definition of a “homeowners’ association” is limited to what we in California refer to as a “planned development”.) According to Rembaum, homeowners’ associations can also similarly seek a money judgment – if the homeowners’ association’s CC&Rs provide for fines exceeding a total of $1,000.00 and also allow a fine to become a lien, then the homeowners’ association may use the foreclosure process to collect an unpaid fine. We do not have this power in California.
In Florida, “fines apply to the owner and, if applicable, to any tenant, licensee or invitee of the owner. Use right suspensions apply to the property’s occupant, licensee or invitee, which includes tenants.” And, as in California, the terms of the association’s CC&Rs likely provide that the owner is ultimately responsible for the acts of their tenants, guests and invitees.
Rembaum tells us that [f]or condominium and cooperative associations, the fining and suspensions committee is comprised of unit owners who are neither board members nor persons residing in a board member’s household. For homeowners’ associations, the fining and suspensions committee is comprised of at least three members who are not officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee.”
As I said in the introduction, the laws regulating community associations are not the same across the country.
David Swedelson is a condo lawyer and HOA attorney. David can be contacted via email: email@example.com