Posts: 9
homeowners' associations. In regards to fines for violations, FS720.305(2)
states:
If the governing documents so provide, an association may suspend,
for a reasonable period of time, the rights of a member or a member's tenants,
guests, or invitees, or both, to use common areas and facilities and may levy
reasonable fines, not to exceed $100 per violation, against any member or any
tenant, guest, or invitee. A fine may be levied on the basis of each day of a
continuing violation, with a single notice and opportunity for hearing, except
that no such fine shall exceed $1,000 in the aggregate unless otherwise provided
in the governing documents.
However, our Declaration states:
In addition to all other remedies provided in this Declaration
(suspension of voting rights), the Board of Directors, in its sole
discretion, may levy a Special Assessment upon an Owner for failure of the
owner, his family, guests, or invitees, to comply with any provision in this
Declaration or the Articles, Bylaws, or Rules and Regulations of the
Association, provided that the following procedures are followed:
(i)
The Association shall notify the owner in
writing of the infraction or infractions. The Notice shall include the date and
time of the next Board of Directors Meeting at which the Owner shall have the
right to present testimony as to why the Special Assessment should not be
imposed.
(ii)
The noncompliance shall be presented to the
Board of Directors at the meeting described in the Notice. At such meeting a
hearing shall be conducted to obtain testimony as to the levying of a Special
Assessment in the event that it is determined that a violation has in fact
occurred. A written decision of the Board of Directors shall be submitted to the
owner no later than twenty-one (21) days after the hearing.
(iii)
The Board of Directors may impose the
following Special Assessments against the Owner of the
in the event a violation is found:
(A)
First Noncompliance for Violation. A Special
Assessment in an amount not in excess of $100.00
(B)
Second Noncompliance for Violation. A Special
Assessment in an amount not in excess of $500.00
(C)
Third and Subsequent Noncompliance for
Violation or Violations that are of a Continuing nature. A Special Assessment in
an amount not in excess of $1,000.00 for each violation
(iv)
A Special Assessment as provided in this
Article shall be due and owing not later than thirty (30) days after the written
decision is rendered as provided in Subsection (ii) above.
The Declaration also states:
The Board of Directors may also levy a Special Assessment against any
Member to reimburse the Association for costs incurred in bringing a Member and
such Member’s Lot, Unit or Parcel into compliance with the provisions of the
Declaration, any amendments thereto, the Articles, the By-Laws and the
Association rules and regulations, which Special Assessment may be levied upon
the vote of the Board after notice to the Member and an opportunity for a
hearing.
This seems to raise some serious questions. Is the "Special
Assessment" the Board levies really a fine? If so, it
would seem to be in violation of the Florida Statutes. If the Board levies a
$500 Special Assessment for a second noncompliance, that is above the $100
authorized by the Florida Statutes. In addition, the Declaration calls for the
Board to levy the Special Assessment whereas the Florida Statutes call for a
separate committee to fine.
Am I reading too much into this? My concern is if we start enforcing the deed
restrictions (we are a brand new community) according to the Declaration, we
will get sued by a homeowner that believes the Declaration is contradictory to
the Florida Statutes. Not that we live in constant fear of being sued, but the
enforcement of deed restrictions is one of the largest undertakings an
Association does. We want to be sure we are doing it correctly. Any thoughts?