By Andrew S. Bennett
The primary purpose of an association is the operation of the condominium or com-munity. An association does this primarily through the implementation and enforcement of the governing documents, the covenants and rules that govern the association. While many members of condominium associations or homeowners associations (“HOAs”) are familiar with this basic structure, what they are less familiar with are the methods available to an association to enforce these governing documents. With the exception of litigation, a topic for another article, this article will outline some of the primary methods of enforcement available to condominium associations and HOAs.
Show me the Money
It is said that the wallet is the place where people are most sensitive, and in that spirit Florida law gives condominium associations and HOAs the power to issue fines for violations of the governing documents. The extent of this fining power depends upon both the type of association and the language in the association’s governing documents.
In condominium associations, a fine may not exceed $100 per violation, with each day of noncompliance counting as a separate violation. However, the total of all fines issued for a violation may not exceed $1,000. Furthermore, unpaid fines cannot become a lien against a unit. However, as will be discussed later, condominium associations have other methods available to try and collect fines.
HOAs have broader fining power. Until recently, the laws governing the amount of a fine in HOAs and condominium associations were the same—a fine could not exceed $100 per violation. However, following a recent amendment this July, an HOA may now levy fines in an amount exceeding $100 per violation, so long as permitted by its governing document. Furthermore, the total amount of fines issued by an HOA for a violation may exceed $1,000, so long as allowed by the governing documents. If the fines levied against a noncompliant member exceed $1,000, the fines may become a lien on the member’s property, which the HOA can seek to foreclose if not paid.
It is important for an association board to remember that it cannot issue a fine without giving a member notice and the opportunity to be heard. This means that no later than 14 days prior to issuing a fine, a board must give the member written notice of the alleged violation and the fine it is seeking to impose and the member must be allowed to appear before a committee (the members of which may not be related to, live with, or be a member of the board) to express his or her position. The decision whether to confirm or reject the fine lies with the committee, and the board must follow its decision.
Rock the Vote
The ability to vote in association matters is an important membership right, especially when one considers the decisive matters subject to member vote, such as the election of board members, as well as the potential impact a single vote can have in the relatively small association setting.
When a member owes a monetary obligation to his or her association (e.g. assessments or fees), the payment of which is more than 90 days past due, the association can suspend the delinquent member’s voting rights. This suspension stays in effect until all outstanding amounts are paid in full. Furthermore, unlike fines, the notice and hearing requirements are not applicable to the suspension of voting rights. It is important to note that fines are a monetary obligation owed by a member to his or her association, and as such an association may follow the use of its fining power with its ability to suspend voting privileges in order to further promote compliance and payment of outstanding fines. This method is of particular importance in a condominium association, where unpaid fines are not a lien against the delinquent member’s unit.
One of the main draws of community associations are the membership benefits such as access to pools, clubhouses, golf and workout facilities, etc. An association may suspend a member’s right to access or use association common elements/areas and facilities for failure to comply with provisions in the governing documents, or when a monetary obligation owed to the association is more than 90 days past due. An association is not required to give notice or hold a hearing prior to suspending a member’s use/access rights. These suspensions also apply to the delinquent member’s tenants and guests. This is important for member’s leasing their property because if action or inaction by the member results in suspension of the tenant’s privileges, the owner may also be facing a tenant dispute.
One instance where an association will employ this suspension power is to deactivate a member’s electronic gate access pass (where applicable), thereby requiring the member to check in with the gatehouse each time he or she desires to enter the community. However, while an association may use this method to slow a member’s access to his or her unit or property, it cannot take action to prohibit the member’s access to his or her unit or property. That is, it cannot suspend use of the common element/area roads, parking spaces, stairs and elevators.
The foregoing is a general summary of key methods of enforcement in the community association setting. Members and board members alike can benefit from understanding the applicable methods of enforcement, and in doing so should consult the governing documents of their respective association.
Andrew S. Bennett, Esq.
– Real Estate
– Real Property Law