Proceedure for Imposing Fines

I am President of a new HOA in Montana and our Declaration or Bylaws do not state any proceedure to be followed if a Homeowner is in violation of the Rules and Regulations. Neither document mentions fines, so I'm assuming the Board can estabilish a proceedure( letter sent, timeline to correct situation, etc.) as well as set the amount for fines??

they can, and should. It should be documented and then included in the amendments to your CC&R's. It should be recorded as well. the important thing is that every current owner gets notice/copy of the new rules, and every FUTURE owner gets to see them before they purchase.

Watch your state laws, some states limit the amount or percentage that HOAs can charge or fine, others don't.

i would have to say I can see no use in having an appeals process if the process is denied the ability to actually do anything.

Why bother? If you can't reduce a fine, why have the appeals comittee?

It SHOULD be in the comittee charter. I would bet, however, that no charter was ever made (it's a bit of business that takes time and effort to do, so many places ignore it, which leads directly to this type of problem).

Linda, just curious as to whether your appeals committee the same as what I refer to as Hearing committee? I am not aware of the reason for two different committees. I guess an appeals committee could handle appeals of owners requesting modifications to the exterior of their property which have been turned down by the Architectural committee. In which case a Hearing committee would only hear testimony on potential violations of restrictions.

The Hearing committees I am aware of decide, for owner contested alledged violations, if there is a violation or not. If there are established Rules on Enforcement of Covenants which include fine schedules then the Hearing committee has no authority to modify the schedule of fines.

Linda, your BOD have it backwards. Due process requires a Hearing, if requested, before imposing a fine. It appears that what you refer to as an appeals committee is the same as what in Colorado is called a Hearing committee. That committee's responsibility is to decide on guilt or innocense. That committee has no authority beyond that unless authorized. Do your By-laws list the powers and duties of the Board? Do they include such items as listed in the following example?

POWERS AND DUTIES OF THE BOARD

The Board of Directors shall act in all instances on behalf of the Association, except as provided in the Nonprofit Corporation Act, the Colorado Common Interest Ownership Act, the Declaration, or these Bylaws. The Board shall have, subject to the limitations contained in these said documents, the powers and duties necessary for the administration of the affairs of the Association, including the following powers and duties:

a) administer and enforce the covenants, conditions, restrictions, easements, uses, limitations, obligations and all other provisions as set forth in the Nonprofit Corporation Act, the Colorado Common Interest Ownership Act, the Declaration, these Bylaws, and the Rules and Regulations;
...
c) adopt and publish rules and regulations governing the use of the Lots, the Common Areas, the Common Interest Community, or any portion thereof, and any facilities thereon and the personal conduct of the Members and their guests thereon, and to establish penalties for the infraction thereof;
....
g) as more fully provided in the Declaration, to:
1) determine the amount of the annual assessment against each Lot, from time to time, in accordance with the Association operating and reserve budgets, and revise the amount of the annual assessment when necessary if such budget is rejected by the Owners;
2) collect all assessments as levied by the Board of Directors from the Owners as are authorized in the Declaration and foreclose the lien against any Lot for which assessments are not paid within one hundred eighty (180) days after the due date, or bring an action at law against the Owner personally obligated to pay the same;
3) impose late charges and interest for late payment of assessments, recover reasonable attorney fees and other costs for collection of assessments and other actions to enforce the power of the Association, and, after Notice and Hearing, levy reasonable Individual Assessments and Fines for violations of the Declaration, Bylaws, and Rules and Regulations of the Association in accordance with the Declaration;
....
k) supervise all officers, agents and employees of the Association, and see that their duties are properly performed;
l) provide for Architectural Design Review and approval of all modifications within The Planned community and for the enforcement of restrictions as set forth in the Declaration and Rules and Regulations;
.....
n) institute, defend, or intervene in litigation or administrative proceedings in its own name on behalf of itself or an Owner on matters affecting The Properties;
.....
q) exercise all other powers necessary for the proper governing and operation of the Association.

The full extent of these powers shall not be restricted by implication, nor shall any enumeration or description of powers, obligations, duties or procedures, or any other provision of the Declaration, Articles, Bylaws, Rules and Regulations or other applicable documents, limit or restrict the full extent of the powers unless expressly and specifically identified as such a restriction or limitation.

For an example of a community that seems to have it together go to http://www.unionmills.com/ and click on Policy Resolutions and check out Due Process Procedure.

I downloaded it and am working on converting it for our condo community.