By Eric Glazer, Esq.

Published February 11, 2013

So what is an association to do if Sally plays her music too loud too often? What about if Joe fails to pick up after his dog? Or suppose Sam parked his unattended car again in the building's circular driveway for a few hours? Sure, we may be able to take all of these rule breakers to arbitration, or maybe even a court of law, but doesn't that take a long time? Doesn't it also cost a lot of money. Isn't a better idea to hit that rule breaker with a monetary fine instead? Hit them in the pocketbook where it huts? Maybe not.

In terms of condominiums, the statute says:

The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing. However, the fine may not exceed $100 per violation, or $1,000 in the aggregate. 

The same statute does give the condo owner some due process and states:

A fine or suspension may not be imposed unless the association first provides at least 14 days’ written notice and an opportunity for a hearing to the unit owner and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household. If the committee does not agree, the fine or suspension may not be imposed.

The condo statute and the HOA statute are basically the same, except for one DRAMATIC difference. Where the condo statute specifically says that no fine can become a lien on a unit, the HOA statute says otherwise. The HOA statute says:

A fine of less than $1,000 may not become a lien against a parcel. 

So in an HOA ---- if the fine imposed by the association equals $1,000.00, the association can file a lien against the unit, and if the lien isn't paid, the association can foreclose on that lien. That right does not exist in a condo.

And in terms of notice, the HOA statute says:

A fine or suspension may not be imposed without at least 14 days’ notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three 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. (The condo statute says: the committee must be made up of other unit owners who are neither board members nor persons residing in a board member’s household) 

The HOA statute also requires the association to provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner. There is no post decision notice required in a condo 

You may be thinking: why should there be a difference in how condos and H.O.A.'S treat fines? Why should one type of association be entitled to lien your home for failure to pay a fine --- but not the other? The answer is very simple. There is absolutely no justification whatsoever for the difference. It is ridiculous that fines are treated differently depending upon what kind of an association you live in. It's absurd that in one type of an association a person can be foreclosed upon for having too many guests at the pool, but not in the other.

The real question however is whether the fining process is something that seems to work at all in Florida community associations? I never thought that a fining committee was an effective way of getting people to comply with correcting violations. The attendees at our Board Certification courses overwhelmingly feel the same way. If the owner doesn't pay, and the fine is less than $1,000.00, there really isn't much an association can do to collect the fine, except to now file a small claims court lawsuit. On the flip side, if the fine is over a thousand dollars, I really don't want an owner facing the loss of their home because they failed to cut the grass for the first time. Arbitrators with the DBPR hear these types of cases all day long and are qualified to determine these disputes and entertain any defenses an accused owner may have. That independent arbitrator can force a rule breaker to comply with the rules and hit them with attorney's fees and costs. Furthermore, if the owner is found not to have broken the rules, the arbitrator will award the owner their fees and costs. 

As a practical matter, it's also difficult to find people who are willing to serve on the fining committee. It's certainly not the committee to join if you want to win friends and influence people. What's your experience with fines in your community association?