Waiving late fees

Due to an alleged misunderstanding about where payments should be sent, a homeowner sent their check for the full annual fee amount to a mailbox whose owners were away for several months. Instead of demanding a new check be immediately sent to the correct address, our former treasurer chose to wait for the absent owner to return and check their mail, intending to waive the late fee if the check was present in that mailbox (it was).

Through a records access request, a former board member (president) discovered this and went through the roof at the last board meeting, asserting that our HOA lawyer had advised us that Florida law forbade us from waiving late fees. As a result of this bullying, the former treasurer and former president resigned from the board, leaving me as the sole director (I was appointed to fill a vacancy during that same meeting). I have spent the past two days rebuilding the board, appointing new volunteers to the vacant positions, and am feeling my way through the mess I inherited.

But the former has already started pressuring me to collect the late fees and interest that he insisted was due to us - his reasoning was that waiving fees would leave us open to charges of selective enforcement, making it impossible to collect late fees in the future (the sky is falling, right?). He forwarded me a copy of the letter that the HOA attorney had sent during his term on the board. It was in response to a challenge from a homeowner to our right to collect late fees, asserting selective enforcement.

Here is an excerpt:



I have attempted to read the case he cited and I frankly fail to see the relevance to our situation. But even if it is relevant, I question the conclusion. I think he's basing the "requirement" he cites on the use of "shall" in our covenants. I do intend to discuss it with him next week after the new board is successfully installed. But I'd like to get your take on it before then.

I am worried that since the homeowner was told that the late fees would be waived, any attempt to reinstate them would lead to a lawsuit from this owner, who I am informed is a hothead with deep pockets and a history of using his lawyers to enforce his grudges. Defending a lawsuit is not how I envisioned spending my first month on the job.
Thanks for any input.

just tell the former board member the payment was on time. no late fee was waived. clerical errors were made by the hoa officers.

good advice from Steve.

Bob that case cited that Assocaitions governing documents which specified that a late charge shall be added.
You need to check your governing documents to see how late fees are addressed.

If your governing documents use the word "may" vs "shall" then the board has the option of imposing, not imposing or simply waiving late charges.

Translation: Are late charges a requirement within your Association or simply an option?

But person wasn't late paying... The HOA was late in picking up and cashing in the payment...

So he has a point. So do you to let it go. Is it really worth the few extra dollars of the late fee would make?

Are we reading the same case? Goodwin v Blu Murray was an employee-employer dispute. Just in case, I checked all the cited cases and the only one that involved an association was the Pelican Island case that involved deed restriction violations.

I agree end of discussion.

Thank you. I'm still curious as to what Tim saw. But I am feeling better about my decision not to attempt to reinstate the late fees that were, rightly or wrongly, waived by our former treasurer.