FLORIDA HOA’S: Issuing a Fine for Violating the Governing Documents

After I am retained to act as general counsel for a Homeowners’ Association (“HOA”), I generally request permission to review the Covenants and Restrictions, Articles of Incorporation, and Bylaws (collectively the “Governing Documents”) for issues to address with my client. One of the main things that I look at is the language and procedures related to issuing fines to HOA members who violate the terms of the Governing Documents. More times than not, I come across language that does not properly reflect what is required by the Florida Statutes. Generally, this is due to a change in the statutes that occurred in 2015 that added additional ‘steps’ to the fining process and the Governing Documents have just not been updated.

Prior to 2015, HOA fines were levied by a committee, which is typically referred to as a Violation Committee, after first giving a member a written warning of a violation of the Governing Documents with a notice of hearing on the violation. The HOA was required to provide at least 14-days’ notice of the hearing, which also stated the member would have an opportunity to be heard before any fine or fines were levied. The Violation Committee, after hearing all evidence, would then vote on whether or not to impose a fine for the violation, as well as determine the amount of the fine or fines to be imposed.

Starting in 2015, the Statutes created a two-step process, requiring the Board of Directors (“BOD”) to first hold a meeting to vote whether to fine the member and for how much and then the Violation Committee must hold a hearing, hear evidence, and then vote whether to approve or reject the fine(s) proposed by the BOD.

In a nutshell, the current process for imposing a fine on a member can be quickly summed up as follows:

Once it has been determined that a member is in violation of the Governing Documents, the first step is to provide the member a warning and the opportunity to cure the violation within a reasonable time (I recommend 30 days, but it ultimately depends upon the alleged violation). If the member fails to take corrective action, then the BOD must hold a duly noticed meeting to vote whether to impose a fine and set the amount of the fine not to exceed $100.00 per violation (unless your association’s governing documents provide otherwise). After the BOD votes to impose a fine or fines against a member and the amount to be levied, the fine is not considered valid and enforceable until the HOA provides the member with 14-days’ notice that the BOD has voted to impose a fine against the member and that the member has the opportunity to be heard before the HOA’s Violation Committee. This notice must clearly state the date, time, and place of the hearing and the reason for the hearing.

The Violation Committee must consist of at least three (3) members of the association who are not “officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee”[1] of the HOA. “The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board”[2] The notice of hearing for the violation should be posted in the same manner in which other HOA meetings are notice (see the HOA’s Governing Documents for reference). The notice of hearing on the violation should also be provided to the member via certified mail, return receipt requested, and regular first-class mail to ensure receipt and to prove same should it be necessary in the future. It is easier to argue the justification of a fine if the member has proper notice of the hearing prior to it being imposed. At the violation hearing, the Violation Committee shall review the evidence presented and the testimony of the parties in making a determination of whether to impose a fine or not. In order to impose the fine(s) on a member, the Violation Committee must vote to approve the fine(s) by majority vote. If the Violation Committee votes to impose the fine(s), then “the fine payment is due 5 days after the date of the committee meeting at which the fine is approved.”[3] The Statutes require that the HOA provide written notice of the imposed fine to the member after a finding is complete. As with any other notice to a member, I recommend the HOA send the member written notice via certified mail, return receipt requested, and regular first-class mail, that the Violation Committee voted to accept the BOD’s decision to impose the fine(s) against the member and payment is due 5 days from the date of the notice provided. The due date for the fine(s) can be changed via the Governing Documents.

A few other things that I believe are important regarding fines are as follows:

  • if a member continues to be in violation of the Governing Documents, the HOA has the ability to impose a fine for the violation (after it has been imposed by the Violation Committee) on a daily basis as long as the violation is ongoing. Please review the Governing Documents to determine your HOA specific requirements.
  • “A 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 the governing documents.”[4]
  • “A fine of less than $1,000 may not become a lien against a parcel.”[5] However, this can be changed in the Governing Documents of the HOA.
  • A member is not only responsible for his or her conduct but also that of the member’s tenants, guests, and invitees.

If you are not sure if your HOA governing documents comply with current statutes or you are uncertain about your HOA’s current practices, you should consult a knowledgeable attorney for assistance.

This article is for general information only and is not intended as and does not constitute legal advice or solicitation of a prospective client. It should not be relied on for legal advice in any particular factual circumstance.

 

[1] See Florida Statute §720.305(2)(b) (2020).

[2] See Florida Statute §720.305(2)(b) (2020).

[3] See Florida Statute §720.305(2)(b) (2020). NOTE: this language was added in 2018.

[4] See Florida Statute §720.305(2) (2020).

[5] See Florida Statute §720.305(2) (2020).

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