Stacking fines; What constitutes a reasonable fine?

I'm looking for feedback on the legality or even morality of an HOA stacking fines for what may be the same offense. I have seen this discussed here before, but only as a side issue. From what I have researched, this is quite common with HOA’s., and this technique seems to be happening with more frequency in my community.

This particular situation involves overnight parking violations. For example, say a person who is visiting a resident parks their car on the street. Circumstances take on a life of their own and the car winds up parked there for three days.

A week later the homeowner gets a violation notice in the mail, listing three different parking violations-one for each day, all on the same form (if that means anything).
Flash forward to after the meeting with the homeowner and the Board.

Eventually, the Board levies fines for the event and uses an escalating schedule- $50 for day one, $100 for day two and $150 for day three. All together the fines equal $300 for the three days.

I think if the Board levies a fine of $50 for the incident that is appropriate. But to call each night a new violation seems un-reasonable.

Now the homeowner has filed a suit in small claims court to invalidate the fine. I think all parties will agree that the proper procedures (notification etc.) were followed; it is just the reasonableness of the fine.

The Board, in some cases, is even combining large time frames.

For example, another homeowner had a single overnight parking violation in March. Earlier this month (3 months later) they had another. There was only a warning letter the first time; now the Board is going back and using that as the first violation, adding this new one for a two night proposed stacking fine. ($50 for March, and now $100 for the new $150 total)

Has anyone out there successfully fought a stacking fine situation? Anyone know of a case law or regulation that can be cited? Thanks!

Does the HOA have a fine policy that is published to the homeowners? The fines you cited do not seem unreasonable for a continuing violation and I would think it would be difficult to convince a court that they are. I know in our HOA we warn on the first violation and if it reoccurs within a year the H/O is fined for both.

RZ,

First of all there is state law for planned communities which requires the h/o to have the opportunity to appeal (meet with the BOD) before a fine can be issued. Therefore, the first letter cannot include a fine.

Secondly, it's not illegal to raise the fine for repeated violations of the same restriction. And, it's not uncommon to call a violation of the same restriction that occurred several months apart the 2nd violation, but, IMO, that practice should be stated in the violation notice. My HOA does this but the member is told that if the same violation occurs w/i a 6 month period it will be considered a 2nd violation.

Your assn's fine policy should be mailed to each member of the assn. so the member's will know what to expect if they violate the restrictions.

FYI, this is how my HOA handles parking violations. A violation isn't sent unless the vehicle is parked on the street for several days. We give the member the benefit of the doubt that the vehicle may belong to a visitor. And, our PM does the parking inspections at 2 or 3 AM!!! The policy is to first send a "friendly reminder" and give the member so many days to cure. In the friendly reminder the member is told that they have a right to appeal the violation and may schedule a meeting with the BOD. Including this info in the letter gives the HOA the right to impose a fine if the violation is not cured w/i the time frame given. If they don't then a second violation is sent with a $50 fine levied. A third violation notice carries a $100 fine and a final notice informs the member that their account may be assessed $250 and be turned over for legal action if not cured w/i 7 days. I think this procedure for parking violations is very fair.

Copied below is the applicable HOA state law -- refer to section B.

------------------------------------------------------------------------------

33-1803. Penalties; notice to member of violation

A. Unless limitations in the community documents would result in a lower limit for the assessment, the association shall not impose a regular assessment that is more than twenty per cent greater than the immediately preceding fiscal year's assessment without the approval of the majority of the members of the association. Unless reserved to the members of the association, the board of directors may impose reasonable charges for the late payment of assessments. A payment by a member is deemed late if it is unpaid fifteen or more days after its due date, unless the community documents provide for a longer period. Charges for the late payment of assessments are limited to the greater of fifteen dollars or ten per cent of the amount of the unpaid assessment. Any monies paid by the member for an unpaid assessment shall be applied first to the principal amount unpaid and then to the interest accrued.

B. After notice and an opportunity to be heard, the board of directors may impose reasonable monetary penalties on members for violations of the declaration, bylaws and rules of the association. Notwithstanding any provision in the community documents, the board of directors shall not impose a charge for a late payment of a penalty that exceeds the greater of fifteen dollars or ten per cent of the amount of the unpaid penalty. A payment is deemed late if it is unpaid fifteen or more days after its due date, unless the declaration, bylaws or rules of the association provide for a longer period. Any monies paid by a member for an unpaid penalty shall be applied first to the principal amount unpaid and then to the interest accrued. Notice pursuant to this subsection shall include information pertaining to the manner in which the penalty shall be enforced.

C. A member who receives a written notice that the condition of the property owned by the member is in violation of the community documents without regard to whether a monetary penalty is imposed by the notice may provide the association with a written response by sending the response by certified mail within ten business days after the date of the notice. The response shall be sent to the address contained in the notice or in the recorded notice prescribed by section 33-1807, subsection J.

D. Within ten business days after receipt of the certified mail containing the response from the member, the association shall respond to the member with a written explanation regarding the notice that shall provide at least the following information unless previously provided in the notice of violation:

1. The provision of the community documents that has allegedly been violated.

2. The date of the violation or the date the violation was observed.

3. The first and last name of the person or persons who observed the violation.

4. The process the member must follow to contest the notice.

E. Unless the information required in subsection D, paragraph 4 of this section is provided in the notice of violation, the association shall not proceed with any action to enforce the community documents, including the collection of attorney fees, before or during the time prescribed by subsection D of this section regarding the exchange of information between the association and the member. At any time before or after completion of the exchange of information pursuant to this section, the member may petition for a hearing pursuant to section 41-2198.01 if the dispute is within the jurisdiction of the department of fire, building and life safety as prescribed in section 41-2198.01, subsection B.

I've lived in my community for 25 years never had a fine, violation, warning.
If you make yourself aware of the rules and abide by them and require your guests to do the same, who cares if your property stacks, double stacks or enforces a death penalty?

First thing I do when visitors arrive is ask. Where did you park your car? No assigned spots, visitors spot ok.

If your property doesn't escalate the fines how do you handle a repeat offender who continues to act in violation of the rules. Hold them to the original $50 fine and that's it?

As to parking violations in New York they can either cost you lots of money and they leave your car or lots of money and they tow your car to a place you never wanted to visit. And your car will never be the same..... Leave it parked illegally for three days I can assure you it won't be there when you get back.

I guess the term "Reasonable fine" is what is at play.

At what point does a fine become unreasonable?

In this case, the 14 year resident has never been fined for anything. So to hit him with $85 per night (effectively) to me seems unreasonable. I suppose I could see it if this was week after week of flagrant violations.

Also, if you follow the fine structure to its logical end (stacking fines per occurrence), each additional night would add $50 to the prior nights fine. So, if the car had remained for five nights, the fine would have been $200 for night 4 and $250 for night 5, making the fine $750.

If you looked at it on a weekly basis, the fine could equal $1400! Now that is clearly unreasonable. Just because the fine did not get to that point,it does not change the fine structure being used.

The HOA states that cars parked overnight will be towed (which they never do) so it seems like at some point the HOA has a legal obligation to mitigate their damages (assuming overnight parking is the damaging event). That actually is a part of tort law. Also, by not notifying the homeowner until a week later, they denied the homeowner a chance to mitigate his losses by towing the car himself.

If that is the fine schedule, that seems to be unreasonable on its face. Then, if as some suggest, six months later there is a new violation (and that is counted as an ongoing event), the fine would start at $300 (left off at $250 so the next goes to $300).

So the question remains, what is reasonable? I guess that is a matter of opinion, but when HOA's stack fines, it seems to me to be an unreasonable approach.

I don’t see how any Judge could find stacking of fines to be a fair way of assessing a sanction. I could be wrong...

Yes. Exactly. I would quite imagine that is incentive enough to park within the rules, wouldn't you?

The judge can go either way. Or part one way and part another way.

Although the HOA actions may be designed to gain compliance, unreasonable fines are still unreasonable fines.

I personally have never been fined, but if that were to ever occur, and the fine was reasonable, I would just pay it and move on. Kind of like getting a traffic ticket- you're guilty, you know it, so you just pay the fine and call it good.

The problem with oppressive fines is that at some point they become counter productive. Make them too oppresive and you bring on unecessary law suits and bad will toward the HOA.

At the end of the day, as someone here already said, "reasonable" is in the eye of the beholder.

One definition of reasonable I found:

REASONABLE(Fair), adjective aequus, conscionable, fit, fitting, judicious, just, modicus, not excessive, not extreme, proper, rationi consentaneus, restrained, suitable, temperate, tempered, tolerable, unextravagant, unextreme

RZ there was a court case in CA I read about a few years ago where a homeowner racked up in excess of $200,000.00 in fines and sued the Association over them. The judge ruled that the fines were not excessive because the homeowner could have stopped them anytime by simply complying with the CC&R's.

And here I thought there were no judges left with 1/2 a brain in the US.

Most I have dealt with have the brains of a carrot and work at a snail's pace.

I just wish we had a few clear thinkers like that here in NY.

How many violations do you need to commit to go up to $200,000. But they still didn't get it.

I wonder if the property ever collected?????

I bet the owner that was fined won't violate many other rules!

RZ,

The fines would never get to the point of being "oppressive" if the h/o would just pay the first fine levied! In fact, if the h/o would make a point of NOT violating the CCRs there would be no fine to pay -- oppressive or otherwise. When the h/o receives the first notice of violation; if they don't agree with it they should immediately contact the BOD, register an appeal and arrange to meet with the board to discuss it. The BOD should have the authority to waive any fines levied. My BOD has done this on occasion, depending upon the circumstances. An HOA should never levy fines as a means of collecting revenue; in fact fines should not be a budget line item. Fines should only be imposed as a means to get the h/o to cure the violation and hopefully be careful not to violate the rules again.

I like the idea of a boot! To me that makes sense, but I would worry about the liablity.
What does somthing like that cost?

I think a $100 one time fine and a $100 boot fine (if necessary) is reasonable and you are activly managing the no parking rules. If the car remained there, do you charge $100 per day? (if so, that would seem exessive to me)

Sounds like you're not a Charlie Crist fan?