Whether your association is a condominium, a cooperative, or a homeowners’ association, chances are that, at one point or another, it has had to deal with a resident who just can’t seem to abide by your governing documents. We all have had that one neighbor who insists on blaring music at odd hours of the night, but what can your association do about it?
Fortunately, Florida law may authorize your association with the ability to fine or suspend the common element or common area use rights of such troublemakers for violations of your governing documents. While there are other actions that your association may take to enforce your governing documents, fines and suspensions are often the most practical and economical option for associations because the legal procedures to implement fines and suspensions have been codified by the Florida legislature as part of the Florida Statutes. However, is your community association ready to fine or suspend?
Chapters 718, 719, and 720 of Florida Statutes, which govern condominium, cooperative, and homeowners’ associations, respectively, all contain similar sections that are expressly dedicated to fines and suspensions. For example, consider section 718.303 of Florida Statutes, which governs condominiums, and provides in pertinent part as follows:
718.303 Obligations of owners and occupants; remedies.—
….
(3) 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 by the board on the basis of each day of a continuing violation, with a single notice and opportunity for hearing before a committee as provided in paragraph (b). However, the fine may not exceed $100 per violation, or $1,000 in the aggregate.
(a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. This paragraph does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.
(b) A fine or suspension levied by the board of administration may not be imposed unless the board first provides at least 14 days’ written notice to the unit owner and, if applicable, any tenant, licensee, or invitee of the unit owner 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 role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the committee does not approve the proposed fine or suspension by majority vote, the fine or suspension may not be imposed. If the proposed fine or suspension is approved by the committee, the fine payment is due 5 days after notice of the approved fine is provided to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner. The association must provide written notice of such fine or suspension by mail or hand delivery to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner.
As reflected in the above statute, once a violation is identified, a condominium association, via its Board of Directors, may decide at a duly noticed meeting to either levy a fine or a suspension against the violator. All that is seemingly required beyond that is 14 days’ written notice to the appropriate parties and an opportunity for a hearing before a committee that will either confirm or reject the proposed fine or suspension. Once the fine or suspension is levied, confirmed, and imposed, the association must provide written notice of same to the appropriate parties.
Sounds like a fairly simple and straightforward process, right? Nevertheless, your association should always consult its legal counsel before attempting to fine or suspend, as there is more than meets the eye when it comes to fines and suspensions. To begin with, does your association even have the power to impose fines or suspensions?
Notice that this article began with the statement that “Florida law may authorize your association with the ability to fine or suspend”. That is because, arguably, your association may only invoke the fining and suspension procedures of Florida Statutes if your governing documents authorize your association to do so in the first place.
In fact, some governing documents may even contain their own fining and suspension procedures, some of which may conflict with the procedures laid out in Florida Statutes. In that case, should the association follow the procedures of the governing documents or that of Florida Statutes? Other governing documents do not contain any reference to fines and suspension whatsoever – what does the association do then? These are questions that your association must resolve with its legal counsel and before the association invokes any fining or suspension procedures, if it all.
Furthermore, assuming your association is authorized to exercise the fining and suspension procedures of Florida Statutes, has it established the appropriate committee to review proposed fines or suspensions? A resident that is the subject of a fine or suspension may very well decide to exercise their right to “an opportunity for a hearing before a committee”. Establishing such a committee is not a matter that should be left for last minute or done casually. In addition to complying with the relevant statutory requirements, the Board of Directors should also take its time to ensure that the members they appoint are ready to accept the responsibility and pressures of deciding whether or not their fellow residents should be fined or have their use rights suspended.
Another issue of concern is that of evidence – is your association ready to present evidence to, for example, a Court, that there was, in fact, a violation of the governing documents? Are the violations in question documented in writing? What about witnesses or audio or video? While not addressed in any of the Florida Statutes that govern fines and suspensions, an association should never attempt to impose a fine or suspension without determining the strength of the evidence supporting such action. Improper fines and suspensions can be the basis for an expensive lawsuit against the association and the association should always consider that, at one point, the evidence supporting a fine or suspension can and will be scrutinized.
Lastly, what if your association decides to impose a fine and the violator refuses to pay? What does the association do then? As always, it depends on a number of variables that need to be analyzed by your association’s legal counsel well before a fine is imposed in the first place. For example, section 718.303 of Florida Statutes quoted above makes clear that, “[a] fine may not become a lien against a unit.” Yet, section 720.305 of Florida Statutes, the statute governing fines and suspensions in homeowners’ associations, only provides that “[a] fine of less than $1,000 may not be come a lien against a parcel.”
Ultimately, this article is not intended to serve as an exhaustive list of issues and concerns that your association may need to resolve in fining or suspending. Rather, this article is intended to emphasize that your association must be ready to fine or suspend before it attempts to do so, which necessarily means that your association must work with its legal counsel well before fining or suspension is even necessary in your community.
Top photo by iStockphoto.com/weiyi zhu
Nico Jimenez
Attorney at Law, Becker
Miami | bio
