Are Daily fines allowed

JenniferB14 (Colorado)
Posts: 148

Posted:

Our covenant and fine policy is compliant with CO state law and to me seems quite clear on the process that each violation and/or subsequent violations will receive a violation letter and opportunity for hearing, and each violation may result in a fine of $100. After the third violation the process may be turned over to an attorney. and any other enforcement means allowed by law may be imposed. In your experience, wouldn't the fine policy have to be very crystal clear allowing for the imposition of daily fines in order for the board to impose such fines? I would appreciate any insight to other associations and what their fine policy states to allow for daily fines. The fine policy PDF is too large to attach to this apparently. Is there any other way to incorporate the policy so you all can read it?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jen

A fine schedule should be the amount of fine and the timing of the fine. Courts frown fast accumulating fines, such as daily.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By JenniferB14 on 10/20/2021 7:21 AM
The fine policy PDF is too large to attach to this apparently. Is there any other way to incorporate the policy so you all can read it?

Try splitting it into sections that are under the size limit (200 kb per attachment?). Use free online software like https://www.ilovepdf.com/split_pdf

Thank you for offering to post the fine policy. Doing so helps readers enormously as they, in turn, try to help.

MaxB4
Posts: 3,513

Posted:

This is a case handed down in the State of New York on September 22 of this year. It is Ives_v._Fieldpoint_Cmty._Assn

I will only include on part which I believe to be relevant in your case:

The appellate court also found that the fines of $20.00 per day imposed on Owners were null and void because they were not properly authorized. The evidence showed that the amendment to Association’s bylaws pursuant to which the daily fines were assessed was passed as a resolution that was never incorporated into an amendment to Association’s declaration which was thereafter recorded in compliance with the provisions of a state statute. The evidence further showed that under the “pre-amendment bylaws,” Association was only authorized to impose a one-time fine of $50.00 for any violation of a rule or regulation adopted by Association’s Board of Directors, or the breach of any bylaw. Accordingly, the appellate court found that the fines of $20.00 per day were null and void.

JenniferB14 (Colorado)
Posts: 148

Posted:

I think I figured it out- attached is the policy included below.

📎 Attachments (2):

⏸ Downloads temporarily unavailable

📄1102043988971.pdf(1.1 MB)

📄1102043996754.pdf(1.1 MB)

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jen

I see repeat violations are referenced but at the discretion of the BOD. I have said courts have found that to often is ruled against. Also, when set by the BOD this could open the door to selective enforcement.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Jen

What you showed is a Fine Procedure, not a Fine Schedule. A Fine Schedule shows the Offense, the fine amount, the repeat fine time.

Example: Trash barrel left out overnight. $10 First Offense. Fine doubles for each offense*. Fines are weekly as the trash is picked up weekly.

Repeat offenses do not have a time limit.

JenniferB14 (Colorado)
Posts: 148

Posted:

John, I am confused about what you are saying. The fine policy is both the covenant enforcement policy/procedure as well as the only fine policy we have. It doesn't matter what the violation is, the fine is $100. The point I am making is that the policy does not state that daily fines may be charged, but that as part of the procedure, a letter must be sent prior to each violation or continuing violation, with opportunity for hearing. Essentially, the way my attorney and I read this is that you may be charged up to $200 and then the matter can be turned over to the HOA attorney for additional enforcement which could include lien, eventual forclosure, or lawsuit. According directly to the officer at DORA, the regulatory agency for HOAs, the policy must outline all aspects of the fine/fee process, including amounts and frequency, which must be outlined in the association's policy. The discretion you refer to is not allowed by law because CO state law actually states that the association must FOLLOW the policy as it is written. If there was discretion within the policy to suddenly charge a different amount, or a daily rate etc. then the association would not be following their written policy for implementation of the fines.

Still looking for more insight and review of our policy by others to see if the thought is different from my own.

MaxB4
Posts: 3,513

Posted:

I am utterly confused by many things in the document you provided and also the governing documents on your associations website. I am amused by the color coding of the Rules and Regulations, state is listed in purple, county in green, covenants in red, HOA in blue and ARC in black. I would be putting the person who wrote those in the first funny farm I could find.

A certain regular poster may think I am an asshole, and maybe I am, but I have been managing all different types of associations for thirteen years and not one of them have ever had any legal action taken against them. In addition, no association I have represented in that time frame has even take legal action against an owner or vendor. The only action ever taken is for past due assessments. I have sent many warning letters to residents about violations of an association's Rules and Regulations, but as of today, no fines have ever been issued. Don't know what it is but it seems people happen to just comply when asked.

I've written many Rules and Regulations and Architectural Guidelines for associations that had none. They're not written in legalese, but just plain old English, simple and easy to follow. Yours, in my opinion, are a hot mess.

I also have an issue with an association having the legal right to lien and then possibly foreclose on a property for fines. I have seen rogue management companies write violations like they were writing tickets and having a quota to fulfil. If I were ever to live in an HOA again (doubt it) it would never be in one that had that kind of rogue authority.

I'm attending a law seminar in Northern California first week of February next year and one of the items always discussed is new case law. The case from New York was mentioned and I am guessing guidance will be offered in how Fine Schedules are written and do they need to be amended to possibly eliminate the language of daily fines.

MaxB4
Posts: 3,513

Posted:

Here is another court case in which the association lost their case of imposing a daily fine.

It is terrifying when HOA's think they are as powerful as the IRS or even more so.

https://www.hoamemberservices.com/hoa-assessment-court-case/?mc_cid=91bec29724&mc_eid=80a997f96e

BobS38 (Oregon)
Posts: 57

Posted:

Quote:

Posted By MaxB4 on 10/27/2021 7:02 PM
Here is another court case in which the association lost their case of imposing a daily fine.

It is terrifying when HOA's think they are as powerful as the IRS or even more so.

https://www.hoamemberservices.com/hoa-assessment-court-case/?mc_cid=91bec29724&mc_eid=80a997f96e

here's a non-paywalled version:
https://law.justia.com/cases/georgia/court-of-appeals/2021/a21a1090.html

from what I can tell, the HOA did not lose their case of imposing daily fines. The HOA was denied the $80k billing because it was not reasonable. The Trial Judge (and the Appeals Judge) found that the HOA could have simply fixed the mailbox and billed the Homeowner, rather than fining him daily for 5 years.

You might think this is nitpicking, but there is important detail and nuance here. This ruling does not say anything about daily fines not being allowed.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By BobS38 on 10/29/2021 12:07 PM

Posted By MaxB4 on 10/27/2021 7:02 PM
Here is another court case in which the association lost their case of imposing a daily fine.

It is terrifying when HOA's think they are as powerful as the IRS or even more so.

https://www.hoamemberservices.com/hoa-assessment-court-case/?mc_cid=91bec29724&mc_eid=80a997f96e

here's a non-paywalled version:
https://law.justia.com/cases/georgia/court-of-appeals/2021/a21a1090.html

from what I can tell, the HOA did not lose their case of imposing daily fines. The HOA was denied the $80k billing because it was not reasonable. The Trial Judge (and the Appeals Judge) found that the HOA could have simply fixed the mailbox and billed the Homeowner, rather than fining him daily for 5 years.

You might think this is nitpicking, but there is important detail and nuance here. This ruling does not say anything about daily fines not being allowed.

Rules and Regulations are to be Fair and Reasonable, so the court stated:

. The court found that the Association had failed to show that the $80,225 in fines for maintenance violations was “reasonable,” as required by the Bylaws. “For example, the [trial c]ourt [found] it unreasonable that [the Association] ha[d] chosen to fine [Brown] $25 per day for almost five years for failure to clean and repaint a mailbox rather than simply having the work done and assessing him for the cost.”

I think the uses of the daily fines contributed to the final outcome.

BobS38 (Oregon)
Posts: 57

Posted:

Quote:

Posted By MaxB4 on 10/29/2021 12:19 PM

Posted By BobS38 on 10/29/2021 12:07 PM

Posted By MaxB4 on 10/27/2021 7:02 PM
Here is another court case in which the association lost their case of imposing a daily fine.

It is terrifying when HOA's think they are as powerful as the IRS or even more so.

https://www.hoamemberservices.com/hoa-assessment-court-case/?mc_cid=91bec29724&mc_eid=80a997f96e

here's a non-paywalled version:
https://law.justia.com/cases/georgia/court-of-appeals/2021/a21a1090.html

from what I can tell, the HOA did not lose their case of imposing daily fines. The HOA was denied the $80k billing because it was not reasonable. The Trial Judge (and the Appeals Judge) found that the HOA could have simply fixed the mailbox and billed the Homeowner, rather than fining him daily for 5 years.

You might think this is nitpicking, but there is important detail and nuance here. This ruling does not say anything about daily fines not being allowed.

Rules and Regulations are to be Fair and Reasonable, so the court stated:

. The court found that the Association had failed to show that the $80,225 in fines for maintenance violations was “reasonable,” as required by the Bylaws. “For example, the [trial c]ourt [found] it unreasonable that [the Association] ha[d] chosen to fine [Brown] $25 per day for almost five years for failure to clean and repaint a mailbox rather than simply having the work done and assessing him for the cost.”

I think the uses of the daily fines contributed to the final outcome.

the court found it unreasonable to let this issue fester for 5 years rather than just fix it and bill the homeowner. The court did not comment about the reasonableness of daily fines themselves.

MaxB4
Posts: 3,513

Posted:

Quote:

Posted By BobS38 on 10/29/2021 1:17 PM

Posted By MaxB4 on 10/29/2021 12:19 PM

Posted By BobS38 on 10/29/2021 12:07 PM

Posted By MaxB4 on 10/27/2021 7:02 PM
Here is another court case in which the association lost their case of imposing a daily fine.

It is terrifying when HOA's think they are as powerful as the IRS or even more so.

https://www.hoamemberservices.com/hoa-assessment-court-case/?mc_cid=91bec29724&mc_eid=80a997f96e

here's a non-paywalled version:
https://law.justia.com/cases/georgia/court-of-appeals/2021/a21a1090.html

from what I can tell, the HOA did not lose their case of imposing daily fines. The HOA was denied the $80k billing because it was not reasonable. The Trial Judge (and the Appeals Judge) found that the HOA could have simply fixed the mailbox and billed the Homeowner, rather than fining him daily for 5 years.

You might think this is nitpicking, but there is important detail and nuance here. This ruling does not say anything about daily fines not being allowed.

Rules and Regulations are to be Fair and Reasonable, so the court stated:

. The court found that the Association had failed to show that the $80,225 in fines for maintenance violations was “reasonable,” as required by the Bylaws. “For example, the [trial c]ourt [found] it unreasonable that [the Association] ha[d] chosen to fine [Brown] $25 per day for almost five years for failure to clean and repaint a mailbox rather than simply having the work done and assessing him for the cost.”

I think the uses of the daily fines contributed to the final outcome.

the court found it unreasonable to let this issue fester for 5 years rather than just fix it and bill the homeowner. The court did not comment about the reasonableness of daily fines themselves.

I take then you like daily fines?

BobS38 (Oregon)
Posts: 57

Posted:

Quote:

Posted By MaxB4 on 10/29/2021 1:22 PM

Posted By BobS38 on 10/29/2021 1:17 PM

Posted By MaxB4 on 10/29/2021 12:19 PM

Posted By BobS38 on 10/29/2021 12:07 PM

Posted By MaxB4 on 10/27/2021 7:02 PM
Here is another court case in which the association lost their case of imposing a daily fine.

It is terrifying when HOA's think they are as powerful as the IRS or even more so.

https://www.hoamemberservices.com/hoa-assessment-court-case/?mc_cid=91bec29724&mc_eid=80a997f96e

here's a non-paywalled version:
https://law.justia.com/cases/georgia/court-of-appeals/2021/a21a1090.html

from what I can tell, the HOA did not lose their case of imposing daily fines. The HOA was denied the $80k billing because it was not reasonable. The Trial Judge (and the Appeals Judge) found that the HOA could have simply fixed the mailbox and billed the Homeowner, rather than fining him daily for 5 years.

You might think this is nitpicking, but there is important detail and nuance here. This ruling does not say anything about daily fines not being allowed.

Rules and Regulations are to be Fair and Reasonable, so the court stated:

. The court found that the Association had failed to show that the $80,225 in fines for maintenance violations was “reasonable,” as required by the Bylaws. “For example, the [trial c]ourt [found] it unreasonable that [the Association] ha[d] chosen to fine [Brown] $25 per day for almost five years for failure to clean and repaint a mailbox rather than simply having the work done and assessing him for the cost.”

I think the uses of the daily fines contributed to the final outcome.

the court found it unreasonable to let this issue fester for 5 years rather than just fix it and bill the homeowner. The court did not comment about the reasonableness of daily fines themselves.

I take then you like daily fines?

absolutely not, and that's an offensive and unfounded assumption to make. I was just pointing out the details and legal conclusions that you err'd on.

MaxB4
Posts: 3,513

Posted:

Sounded very much like you were defending the fines. I understand the HOA maybe should have fixed the mailbox, but stated the fines were unreasonable. Read into it what you might.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

The court was saying the fine was unreasonable and that is what BOD's have to understand. The court did not say anything about how often the fine was rendered. To many people on BOD's figure well we have the person over the barrel. Let's just keep sticking them.