Preemptive Fines?

My HOA had sent out notices months ago stating there was a mandatory maintenance assessment. The notice also mentioned that the assessment would not be considered delinquent until March 1st.

On February 12th, they drafted and sent out a letter stating that the payment was late and subject to late fees and administrative fees totaling 28 dollars.

This is 16 days before the payment would actually be delinquent according to their own notice.

Is it possible for a Board to preemptively fine homeowners for an action that technically has not occurred yet? And for all those who like governing documents...

Here are all that pertain to Fining and Enforcement from the Covnenants:

Section 2. Enforcement.Failure of the Owner to comply with such restrictions, covenants, or Rules and Regulations shall be grounds for action which may include, without limitation, an action to recover sums due for damages, injunctive relief, or any combination thereof, including costs and attorneys’ fees incurred in bringing such actions, and if necessary, costs and attorneys’ fees for appellate review. The Association shall have the right to suspend use of Common Areas for any Owner violating these Covenants and Restrictions for a period of time which is the longer of sixty (60) days or the term of continued violation.

Section 3. Fining. In addition to all other remedies, the Association may impose a fine or fines upon an owner, tenant, guest, invitee or employee for failure to comply with this Declaration, or any rule or regulation promulgated hereunder, provided the following procedures are adhered to:

(a) Notice: The Association shall notify the owner or other party of the infraction or infractions. Included in the notice shall be the date and time of a special hearing at which the fine or fines will be addressed. Such notice shall be provided to the offending party at least fourteen (14) days prior to such hearing.
(b) Hearing: The hearing as set forth above shall be before a committee of at least three (3) members of the Association 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 of a proposed fine or suspension, it may not be imposed.
(c) Penalties: The Association may impose a fine against the offending party in an amount not to exceed $100.00 per violation. 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 $1,000.00 in the aggregate.
(d) Payment of Penalties: Fines shall be paid not later than five (5) days after notice of the imposition of the fine.
(e) Nonexclusive Remedy: These fines shall not be construed to be exclusive, and shall exist in addition to all other rights and remedies to which the Association may be otherwise legally entitled.

This is from the By-Laws:
If the Assessment is not paid, the Association may at any time thereafter bring an
action and/or a suit on the personal obligation against the Owner. There shall be added to the amount of such Assessment all costs associated with the collection of the Assessment(s), including reasonable attorneys’ fees. No Owner may waive or
otherwise escape liability for the Assessments provided herein by non-use of the
Common Property or abandonment of his Lot.

I would have to check with my neighbors to see if they received a letter, but I will contact the BOD to let them know of their error.

Kevin,

Are you saying your are a non-member in a voluntary assn? If so, you are not liable to paying assessments so cannot be in violation. You cannot be fined for anything because you are not a member of the assn. The assn rules and restrictions only apply to the members of the assn. The only obligation you have is to abide by any deed restrictions that might be made against your property. The assn may have the authority to send violations notices to you for violating a deed restriction and ultimately take you to court over it, just as you have that same authority to do to any other property owner who violates a deed restriction.

Oh... and yes, I am saying that I am a non-member in a voluntary association.

Even though their covenants read as follows:

Section 1. Membership. Every record owner taking fee simple title to a Lot subsequent to the date of the recording of this Amended and
Restated Declaration in the Public Records shall automatically be deemed a member of the Association assuming all rights, obligations and benefits of
said membership. Any record owner who has taken fee simple title to a Lot prior to said recording date shall not automatically be deemed a member of
the Association unless or until said Owner has agreed to join the Association pursuant to the terms of the Association’s Bylaws as then in effect. Any
change in record title ownership of a Lot shall subject the Lot Owner to membership upon the recording of the transfer deed.

There website contains a FAQ and says the following:

Question 4: Will this make the *Neighborhood Name Here* HOA a Mandatory Association?

Answer: NO. This does NOT change the statutory nature of the Association. For existing property owners there will be no requirement to become a member of the Association. Current members will automatically belong. Those that are non-members when the ARD is adopted will still need to agree to join the HOA before they can participate as a member. Once the ARD is adopted, each new owner of a property will automatically become a member of the HOA, upon transfer of the title to the property. (See Article III Section 1)

They are full of contradictions and I have taken the advice of this board to be very helpful...

Even with this assessment and fees they are trying to impose, according to the new covenants they made, they are required to establish a committee to review the infraction and determine whether fines are in order, but they skipped that phase in the notice they sent out and went to charging an amount that comes to 30% of the amount due stating "late fees" and "administrative fees". I have yet to hear back from other homeowners who have not paid to see if they too received the same letter.

Because I am not a member, the BOD won't answer questions regarding their documents, their adoption of the covenants, their budget, or anything else that a member is entitled to know. I understand that I do not get a vote but logically, if they want money from me, I want information in return. The only thing I was told was that we were required to pay and that their lawyer will take us to collections if we do not.

When the the HOA's volunteers went door to door for signatures, they came to my door and asked for a signature. My family declined to join the HOA and we were told by this volunteer (who was rather rude and confrontational) that we will have to pay eventually. The BOD wrote the new covenants without input from the neighborhood, and they had never held a vote regarding the matter. They just collected signatures over 3 years until they had enough, and I assume they worded their covenants the way they did to get around having 100% of the homeowners agree to a mandatory association... The only problem is that the majority of the homeowners who signed their covenants failed to read them and are very apathetic. I have tried, as well as my family, to get more people involved but it is like pulling teeth!

Now I understand the frustration from these posts I read about neighbor involvement. I will draft a letter to the HOA expressing their mistake regarding these fines and see what happens from there.

Thank you for your opinion.

Kevin,

Unless the courts were to rule that a mandatory vote is not required to convert a voluntary assn into a mandatory, since you are not a member I really can't see how they can require you to pay assessments. Perhaps this will have to end up in court. Do you know if their attorney is a well known HOA attorney; but more importantly do you really know their attorney said you were required to pay the assessment? Many boards like to put the "blame" for their stupidity on their attorney!

Kevin,

Sad to say, but it sounds like this may only be resolved in court! If the HOA attorney is claiming nonmembers must pay then he's probably advising the BOD to send violation notices. If you continue to not pay, then they most likely will file a lien, etc.,etc. If it was me, I would NOT pay assessments to an HOA that I was not a member of -- PERIOD! The only stumbling block is if the courts in your state have ruled that a majority vote is NOT required to convert a voluntary assn to a mandatory assn. Do you know if this is the case?

Correction. There is one thing in their By-Laws that state fines:

Section 3. Fining. In addition to all other remedies, the Association may impose a fine or fines upon an owner, tenant, guest, invitee or employee for failure to comply with this Declaration, or any rule or regulation promulgated hereunder, provided the following procedures are adhered to:

(a) Notice: The Association shall notify the owner or other party of the infraction or infractions. Included in the notice shall be the date and time of a special hearing at which the fine or fines will be addressed. Such notice shall be provided to the offending party at least fourteen (14) days prior to such hearing.
(b) Hearing: The hearing as set forth above shall be before a committee of at least three (3) members of the Association 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 of a proposed fine or suspension, it may not be imposed.
(c) Penalties: The Association may impose a fine against the offending party in an amount not to exceed $100.00 per violation. 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 $1,000.00 in the aggregate.
(d) Payment of Penalties: Fines shall be paid not later than five (5) days after notice of the imposition of the fine.
(e) Nonexclusive Remedy: These fines shall not be construed to be exclusive, and shall exist in addition to all other rights and remedies to which the Association may be otherwise legally entitled.

there notice contained none of this!

Kevin,

My interpretation of the section you posted is that the fines only pertain to violations of the CCRs. To state "comply with this Declaration," usually means the restrictions contained in the declaration and the "rules and regulations" would be those adopted by the board. At least that's my interpretation.

Kevin,

How do they define members differently than owners? An owner is automatically a member of the HOA. If a property is occupied by a husband and wife but only the husband is an owner, then only he is a member because only he is an owner. The only way I could logically see that members and owners are different is if the docs allow non-owners to be members. In the example I gave, both the husband and the wife would be members, but only the husband is an owner.

Kevin, Perhaps the following will help you understand.
1) In a manditory association assessments are charged to the property and the owners are automatically members of the association.

2) In a voluntary association dues are paid by those homeowners who chose to join the association and only those who join are members.

3) It appears you belong to an association which is in the transition from being voluntary to being manditory. The signatures they were collecting were probably a written vote. If sufficient approval of the amendments to the Covenants were obtained and filed with the County Clerk then they are enforcable. It is not prudent for the HOA Board to try to fine or charge non members who did not agree to become manditory.

4) When this transition process is used it is best to grandfather those homeowners who chose not to commit to manditory assessment. Instead an amendment can be stated so as to require a property to encounter manditory assessment when there is a title transfer.

5) All owners are subject to the Covenants whether or not they are members of the association. The HOA has the right to enforce the Covenants against all owners, whether they are members or not. The Covenants run with the property and when you purchased the property you agreed (covenant). This has nothing to do with whether the HOA had manditory assessments or voluntary HOA dues.

6) The Covenants may be amended as specified in the current Covenants and existing amendments. This requires a specified percentage of all homeowners - not just the HOA members.

7) HOA members have rights which do not have to be extended to owners who are non members. However, I would prefer these owners who are not members not be stonewalled.

Michele,

There may have been covenants attached to his property which he must abide by whether or not he joins the HOA. Many properties have deed restrictions (covenants) but there is no HOA to enforce them. In this case the property owners enforce them individually in small claims court. I'm thinking the properties already had deed restrictions and eventually a voluntary assn was formed which then became a mandatory one. Of course I may be wrong.

There were covenants before, and it allowed for the creation of a HOA and it also allowed for a HOA or other owner to enforce those covenants. The new covenants eliminate the ability for the homeowners to enforce the covenants.

Also, in these new covenants, the HOA states they are voluntary and non-members will not be considered members until a title transfer or they voluntarily join.

Separate from the membership covenant is the assessment covenant.

So even though they have grandfathered my property as being a non-member, they are still charging assessments... the only thing that I could think of is that according to Florida Statute 617, it states that members can be made liable to a corporation in the form of fees, dues, or assessments. Since I am not a member, they can assess me according to their documents but I am not obligated to pay unless I join.

The signatures collected were joinders to accept the amended covenants. And they were filed with the county last year. In my area, out of 100 homes, they collected 51. They had never requested a meeting of the homeowners to determine the wants. When a member requested the new covenants needed some change before they went to the homeowners, the BOD told them they worked real hard on writing them and it would cost too much to change them. They mailed a form to every homeowner asking to sign the joinder and accept the new covenants... out of my section, only 3 people signed (out of 100). It wasn't until 3 years of walking around the neighborhood until they got a majority to sign, and once they did, they stopped and filed with the county.

Technically, this HOA is not even my HOA. They are a neighboring HOA and had their own separate covenants. They rewrote in their covenants that they are in charge of my geographical region, as well as several others. They are attempting to become a master association.

Because of their stonewalling, a lot of homeowners are upset... before the transition, membership was falling to the low 40% high 30% range. Even after they declared parts of the neighborhood mandatory, they lost membership (considering mandating sections netted them an approximate 100 more members). I had finally heard back from several homeowners in a "mandated" section and they too are not paying an assessment. Of those who are that I talked to, they do not like the rules but do not want to deal with the hassle of either attending a meeting or deal with enforcement.

To me, it appears as the majority of people don't like the association, but are apathetic. I would collect proxies and use them at a meeting, but there are two things... the HOA won't let me in their meetings because I am not a member and the HOA wrote in their rules that only proxies can be issued to the BOD. Not to mention, at every meeting, to pass business, the BOD states they collected enough proxies to have a quorum and a majority.

Kevin, I believe in manditory HOAs because I think they help maintain property values and quality of life for their homeowners. Therefore, I would be proactive in trying to help rather than hinder the Board's efforts. That being said if I did not agree to go manditory I could chose not to pay and doubt that any reasonable court would find against me. The same goes for the HOA trying to include properties which are not under their Covenants. Only your side of this has been posted so it is not fair to jump to conclusions without knowing the rest of the story. Some of your examples suggest a Board that needs serious help. Does the association have a management company which could provide some guidance?

Kevin,

If I'm not mistaken, IAW FL HOA statutes, they MUST hold open meetings!

Kevin,

I thought the declaration had already been amended turning the voluntary assn into a mandatory one. It sounds like this board is extremely mixed up!!! I'm thinking more and more, court is the only way to solve this problem.