Fine/Violation Policy

All-quick question. is a fine policy/procedure Have to be in place before you can start fining people? A little background-I came into a board who was not really enforcing anything. All of a sudden they want to start enforcing, which is fine. However I am a little weary about tacking fines on when residents have never seen a policy.

Also if this is a Tennessee condo was it established before Jan 1, 2009?

If the owner takes the HOA to court because of a failure to give people advance notice of the fine schedule, I expect the owner will win. This is why I call a failure to give advance notice "illegal." To be blunt: It is dumb and unfair to do what your Board proposes. You are correct to be concerned.

Try to get the board to get the advice of a HOA attorney on this point.

This site indicates imposing fines is lawful in Tennessee: https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%209HOA.pdf

In some states, for fines to be lawful, among other things the Declaration or Bylaws have to be clear that fines are allowed. So far I do not think Tennessee is one of these states.

Thanks! My next person is the attorney, unfortunately this board seems to be more after the money than people correcting the fine. The problem is, they hired us and immediately just thought they could throw whatever fine they wanted out there, even without giving notice “this guy has had a shed for two years, fine him”. We became the management in October. After almost every week of asking them to agree on a fine policy (and I even put in every email with the inspection report to please approve the fine policy so I could began fining some of the repeat offenders) They ignored that until March. When they finally agreed on the policy and it was sent out in early April, the board started talking about what fines were added since October. As a manager, ethically, I feel it is wrong. The owners didn’t have an active board going after violations for YEARS before us. While I understand all owners have constructive notice of the deed restrictions, bylaws etc and are expected to know what they are getting themselves into when they move into an HOA…some are elderly, some cannot read English, which is why I feel the more communication the better. I am really hoping a lawyer says it’s not legal without the policy, unfortunately no matter how wrong it is in my eyes as a professional, they will only listen if it comes from the lawyer.

As it sounds like you may be aware, this presents a whole other legal problem: Are some of the covenants technically now legally "abandoned" because of the lack of enforcement and open and notorious violation of the covenants for years?

In situations like this, I would advise HOA boards to go ahead and try to enforce the covenants. When a HOA member hires an attorney to argue that, say, certain covenants are abandoned, then have more discussions.

Unless it's a hazard, we give 30 days to correct with the initial warning.

We don't inspect everyday (everyone has a day job).

Except for our once a year inspection (that we give notice about) we don't go looking for violations. However, we will respond if someone reports a potential violation.

During the inspection, we allow time for large ticket item. For example: roof replacements need to be done within the next year or the issue receives same attention as a 30 day violation.

Typically, CC&Rs (covenants), specify that violations will be resolved through the courts.

In Virginia, there was a court case in VA which stated that the Board exceeded their authority when they imposed fines.

This case would be Farran, et al. v. Olde Belhaven Towne Owners Association

Such a ruling was supported by: Shadowood Condominium Association vs Fairfax County Redevelopment and housing authority

With the basis being: Unit Owners Association of Buildamerica-1, A Condominium v. Harry F. Gillman

This is why many said to check with your attorney and read your governing documents.

Here is a link to a thread within this forum that also has links to previously posted court opinion on the farran case.

Subject: Examples of HOAs that lose court battles