fines

Started by CharlesG5 • 17 replies • 2648 views

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CharlesG5 (Florida)
Posts: 60

Posted:

We are in the process of holding our first Hearing Committee. Some on the committee think we should have different fines for different violations and other feel the fine should be the same regardless of the violation

Our By-Laws state that the HOA can fine up to $100 a day and not exceed $1,000 for the violation.

The question is, when the Hearing Committee imposes a fine Is the fine the same for each non-complying homeowner regardless of the violation or different for each violation?

BrianB (California)
Posts: 2,820

Posted:

Your fine committee should practice transparency and consistency. Fines should be the same for similar trangressions. the process used to make decisions should be written and followed each time, and open for input and inspection by any member. This prevents discrimination, favoritism, and forgetfullness.

anything less is setting up the HOA for failure (at best) and lawsuits (at worst).

PeterB1 (Florida)
Posts: 257

Posted:

Charles,

I'm confused by your term 'Hearing Committee'. We have a 'Compliance Committee' that sees the violation and assesses a fine. They determine the fining amount (within the parameters of Florida law).

According to Florida Statutes Chapter 720.305(2):
A fine or suspension may not be imposed without notice of at least 14 days 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. If the committee, by majority vote,
does not approve a proposed fine or suspension, it may not be imposed."

So the person receiving the fine may appeal to our Appeals Committee - they have the power to overturn the fine (or perhaps, adjust it).

Have you an 'appeals committee" ?

MaryA1 (Arizona)
Posts: 7,043

Posted:

Charles,

I don't think there is a set rule regarding the amount of the fine and whether fines for all types of violations should be of the same amount. Normally the fines are set by the BOD, but if your Hearing Committee has that authority then I would say it would be whatever they think is just. In my HOA the fines are the same for all violations. Whatever you decide to do, IMO, you should have a Fine Schedule that is sent to all members of the assn. One other thing, when the committee meets with a h/o to discuss an appeal the best procedure is to hear the appeal and let the h/o know they will be notified in writing of the committee's decision. This is a much better procedure than having the h/o listen to the committee's deliberation of the appeal.

BTW, besides stating that the member has a right to be heard, doesn't your violation notice also state how much the fine will be if the violation isn't cured w/i a certain period of time? It seems to me the fines should have been set long ago instead of waiting until an appeal is to be heard.

BarbaraP3 (Maryland)
Posts: 90

Posted:

To MaryA
You stated: "In my HOA the fines are the same for all violations."
We currently have the same policy. But we just had 5 members put in blacktop driveways without prior ARC approval. I am now in heated discussion with the other board members about fining those 5 members. Our fine is $25 per violation and will double for continuing or repeated same violation within one year. I feel that $25 for illegal parking or riding a bike at night without a light would justify a $25 fine. But a blatent violation of the ARC rules or Declarations should carry a stiff fine....i.e. $100 or $200. How do you handle those types of violations?
Thanks,
Barb

CharlesG5 (Florida)
Posts: 60

Posted:

Thanks for replying and next time I will give more details.
Our Hearing Committee is the same as the Appeals Committee.
We send a letter to the non-complying homeowner and give them thirty days to correct the violation. If not, then a fourteen day letter to appear before the Hearing Committee. Our BY-Laws state the non-compliance homeowner to pay a fine not to exceed $100 for each day and not to exceed $1000. The Hearing Committee can give extra time before the fining starts. The fine is $100 a day for any violation. It keeps the homeowners in compliance. This is our first Hearing Committee meeting since 1996. It works.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Barbara,

Although our fines are the same for every violation they do increase with each violation notice. The first notice is a friendly reminder and the owner is given 10 days to cure. The second notice is the statutory notice which means it advises the member of their right to appeal the violation and also carries a $50 fine if not cured w/i 10 business days. The third notice carries a $100 fine if not cured w/i 10 days. The final notice warns the members that their account may turned over to our attorney in which case a fee of $250 will be charged if not cured w/i 7 days. Our violation policy also states that if you do not obtain prior approval you may be charged a one-time fine of up to $1,500 whether the work is approved or disapproved after the fact. It's up to the BOD to determine the amount based upon the type of work done w/o approval.

It's always a good idea to remind members of the requirement to obtain prior approval in the HOA newsletter. Ours comes out quarterly, but I know some HOAs have a monthly newsletter.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Charles,

My HOA leaves it up to the member as to whether or not they wish to appear before the BOD to appeal the violation. Although some members choose not to pay the first fine and some even go the distance and the case is turned over to our attorney (meaning they've have racked up $400 in fines), very few choose to appeal the violation. I think that's because they know they've violated the restrictions; they just thought they could get away with it! Why do you schedule a hearing if the member hasn't asked for one? AZ state law only requires the member to be told they have a right to be heard; the law does not say we must schedule a hearing. But, I'm glad to hear your system works!

BarbaraP3 (Maryland)
Posts: 90

Posted:

The current bod only wanted to address rules and regulation fines. I wanted to include ARC and Declaration fines of $1,000....but they didn't want to address it. Now we have 5 people we could/should be fining the $1,000 and they will now only get a $25 fine.....big deal for a $2,000 driveway contracted and done the same day. We have a meeting on Aug 21 and I will present your policy. Hope I can now get them to include this fine in our fine policy.
Thank you!
Barb

MaryA1 (Arizona)
Posts: 7,043

Posted:

Barbara,

Our fine policy applies to violations of the covenants, architectural guidelies and rules. Can't imagine why you would want to have different fines for violations of different rules. IMO, you also need to have a fine for not obtaining prior approval otherwise there is no incentive to jump through this hoop. And we all know there will be some who think they don't have to obey the rules such as the 5 members you mention. Are your board members afraid of offending someone; are they too concerned with being "nice"??? IMO, you can't be that way and effectively serve on the BOD.

BarbaraP3 (Maryland)
Posts: 90

Posted:

I really would not like to have different fine amounts. I like the wording you have included in your fine policy..."Our violation policy also states that if you do not obtain prior approval you may be charged a one-time fine of up to $1,500 whether the work is approved or disapproved after the fact." I will present this statement to our board and hope I can get a consensus for adoption.
The killer regarding the 5 driveways is that 2 of the 5 are previous BOD members!!!!
The fine for these 5 is a moot point right now, since we do not have an "ARC" violation fine statement and will have to follow our current fine procedure which will only fine them $25.
Thanks for all your input.
Barb

BarbaraD6 (Florida)
Posts: 347

Posted:

Mary,

According to Florida Statutes Chapter 720.305(2):
A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members

Our community schedules a meeting(none have ever shown up)with the offender, the committee makes a decision on the fine and then its sent to the board for a final vote. I think we are doing it wrong but we too have only started the process a few months ago.

Barbara

MaryA1 (Arizona)
Posts: 7,043

Posted:

Barbara,

Our CCRs give the A/C the authority to send the violation notices w/o a vote of the BOD. Our PM performs the inspections and sends the violation letters. If a fine is to be imposed, per our violation policy, she does this. The BOD does not have to vote on it beforehand. AZ state law requires a member to be given the opportunity to be heard (meaning they can appeal to the BOD and ask for a hearing)before a fine can be imposed. If the member does not respond to the second violation notice an automatic $50 fine is added to their account. We do not schedule a hearing unless the member appeals the violation. The "hearing" is held at the next regularly scheduled board meeting.

BarbaraD6 (Florida)
Posts: 347

Posted:

Peter,

Can you please explain how your entire procedure works?

Our manager see a violation and sends a letter to cure it in x number of days

HO doesn't cure a 2nd letter is sent telling them that they have a meeting in front of the covenants committee( fining committee)

The committee holds the meeting and votes to fine or not( members usually don't come for their hearing)

At the next board meeting the board votes on the recommendation from the committee, and the homeowner is sent the decision.

I think the homeower has to come to the meeting to appeal it. LThis whole process has been confusing to all involved and would like to know the process other communities are using.

thanks
Barbara

Barbara

PeterB1 (Florida)
Posts: 257

Posted:

Barbara,

We have been thru the multiple notice, certified letters, etc. They were expensive, confusing and not very effective. So we simplified.

Our Compliance Officer (fancy name) must observe the violation - dirty roof, unkempt lawn, etc.). Depending on the violation, a corrective time frame is determined. We don't call on multiple members of the Compliance Committee unless there is a questionable call - is that roof really dirty?

A letter goes to the homeowner (Certificate of Mailing obtained). The letter sets the corrective date. After the date has passed, weekly fines begin. It goes on to say there will be no other notices. Finally, it says if the Homeowner wants to appeal (per 720) they can read the procedures on our web site.

We have had one appeal. We have had a few fines. We have had a lot of whining and a good amount of compliance. The Board of Directors has never gotten involved - and we try to keep it that way!

BarbaraD6 (Florida)
Posts: 347

Posted:

Peter,

The committee doesn' vote on the fine? Do you have a fining schedule, and that fine amount is already on letter #1 and #2?
Our manager said we can't fine until after the homeowner is given a hearing( they don't ask or come to it)and then the board has to vote on it.
Did your attorney verify you are acting within the florida statutes?

thanks
Barbara

CharlesG5 (Florida)
Posts: 60

Posted:

Barbara,

I live in Florida

Our documents were redone by Becker and Poliakoff last year which included up-to-date statutes(2009).

Enforcement Committee sends a letter to the non-complying HO. He is given 30 days to comply and if they don't then they are given a 14-day letter to appear before the Hearing Comittee(also known as the Appeals Committee). The Hearing Committee is five ho's who hear the case presented by the HOA and the non-complying ho. They decide the case, not the board. Their decision is final. If they rule in the HOA's favor a letter is sent to the ho as to the date the fine starts. The ByLaws state the fine is up to $100.00 a day and can not exceed $1,000. All violations are treated the same as to the fining process. All letters except the thrity day letter are sent certified. If the Hearing Committee wants to give additional time to correct the problem it can do so. Any homeowner can go to the office and fill out a Concern Form. Then the Enforcement Committee looks into the concern. No form - no look

PeterB1 (Florida)
Posts: 257

Posted:

Barbara,

Please read Florida Statutes Chapter 720.305(2). You will then know more than your property manager.

peter

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