Fining System going in without majority vote???

Started by NicholasT • 6 replies • 2167 views

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NicholasT (Florida)
Posts: 3

Posted:

Hello,

I am a volunteer and an HOA member for a St. John's county Florida HOA. I am not on the board of directors. I recently learned that our board of directors is putting in a fining system for violations. They have been "talking" about this for awhile, but no details were brought forward. Now, within less than a half an hour at the beginning of the past monthly meeting they "discussed" the new fining system among the handful of residents that actually showed up for the meeting.

Among other things, I learned that they intend to implement this fining system with no vote from the rest of the 400+ HOA members. They said they didn't need a vote. Also, they are trying to rush this thing by sending out mail notice to the entire community and putting it into place by January 2008. These codes say fines can accrue up to $2500 per violation!

As a HOA member, and a communications committee volunteer I am very concerned about this recent action by our board. Is this legal? If it is, what can or should I do about it? TIA for any help!

HaroldS (Arizona)
Posts: 906

Posted:

I think your state has a limit on dollar amount of fines - and $2,500 sounds excessive. They must also follow due process first before issuing any fine. I think your board probably has the power to do this if it is established in your documents. Courts usually refer to "reasonable" fines so yours could be challenged. You need to study your state laws which can over ride anything your board or documents say.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Nicolas,
There are some questions that you need to answer for us to begin with.
#1, Do your CC&Rs allow fining to be implimented against a member?
(CC&Rs) are your governing documents, including your Protective Covenants, Articles of Incorp and your ByLaws. If the answer is "Yes", that you have fining stated in them, then the answer is YES, your BOD can impliment fining. They do not need an approval from the membership to start to fine.

If there is no provision in the documents, then they will need to try and have that ability amended to the cc&rs and that has to be done with a membership approval thru a vote from the entire community.

But what you really need to do is to have them read Florida State Statute 720;305 (1-3) which spells out fining according to State limitations. I can promise you that they cannot and I mean CANNOT! fine anyone $2500.00 Print this out, talk to your Property manager ,copy the statute to all of the Board or whoever you know who can get this issue before the Board. They are not in compliance with any part of 720 as I see compared to what you have written. If that doesn't work, then get with the person being fined and get this stopped before this costs all of you alot of money.

NicholasT (Florida)
Posts: 3

Posted:

Thanks for the quick reply. The cap on the fines is confusing, and there was talk about a state cap on fines of $1000 per "violation". Either way, the fining system sounds (like most) to be something that could easily be abused.

What do you mean by "in the documents"? Is it that there needs to be some covenant in the current documents that states the HOA can implement a fining system? I'm trying to figure out the right questions to ask our current Board president, as I'll surely be snowed if I don't know exactly what to find out. I still can't believe this could be implemented without vote. No wonder there are so many problems with HOA's.

NicholasT (Florida)
Posts: 3

Posted:

Before I sent these Q's to the President, I notice that this fining system leads in with a bunch of "WHEREAS's" which seem to cite sections of the current CC&R's. However, these citations are very general. Perhaps it would be best just to type it with the name removed

WHEREAS, Section 5.1 of the (CC&R's) assigns the Board all powers and duties necessary to enforce the Covenants, all rule and regulations adopted pursuant to it, those established by the Architectural Review Committee or by ByLaws of the Association and states that Board may take such measures, in the judgement of the Board necessary to enforce the Covenants; and

WHEREAS, Section 4.12 of the (CC&R's) assigns the Board of Directors("Board") all powers and duties necessary for the administration of the affairs of the (HOA) and states that the Board may do all such acts and things, except thos matters that the Board is prohibited from doing by law or the governing documents; and

WHEREAS, Section 4.12 of the Bylaws provides that the directors shall exercise their powers and duties in good faith and in the best interest of the Association and its members;and

WHEREAS, the Board of Directors wishes to establish a Comliance Program that includes levying of fines <---

Here is where it seems they started to add their own stuff. Then the document goes on to state all the fining system stuff. Wow, what a lot of general legal"eze"! So, does this mean they can do whatever they want within the laws of the state?

MikeS1
Posts: 668

Posted:

They can probably implement the fine system without a vote of all the members,but they need to follow due process.

Found this on the web. " The 2007 Florida Statutes CHAPTER 720
The 2007 Florida Statutes
http://www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0720/ch0720.htm
http://ccfjedu.net/HOAFS720.305-2007.htm

CHAPTER 720
(2) 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. A fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court.

a) 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.

DonnaS (Tennessee)
Posts: 5,671

Posted:

Nicholas,
The #(2)paragraph from the above post states that NO fine may exceed $100.00 per day and may not exceed $1000.00 That's the law. I suggest that you copy this for your Board but I find it hard to believe that someone doesn't already know this.

It reads from your post that your documents already have "finig" allowed but you will need to follow the S.S.720 proceedure to be in compliance.

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