Is Your Association Utilizing All of The Tools Available To It?

Many times I receive calls from condominium and homeowners association board members and managers who are at their wits end with certain residents in their community who cannot seem to follow the rules. These are the residents who paint their homes without seeking and receiving approval, move tenants into their units under the cover of darkness, and have a Labrador Retriever in a no-pet building. They play their TVs and stereos too loud and too late at night. There’s one in every community.

Surprisingly, I have found that many associations are completely unaware of some of the tools that the legislature has given them to assist in the enforcement of their rules. Both the Condominium Act and the Homeowners Association Act contain similar tools for enforcing restrictions against non-conforming residents. However, associations must be careful when utilizing these tools, as failing to “dot your I’s” and “cross your T’s” may result in having all of your hard work go down the tubes.

Specifically, section 718.303, Florida Statutes, and Section 720.305, Florida Statutes, provide that associations may impose fines, suspend use rights, and suspend the voting rights of residents who fail to comply with any provision of the association’s governing documents or who become more than 90 days delinquent in paying any of their monetary obligations to the association.

Fines may be levied on the basis of each day of a continuing violation (for example, a resident leaves their bicycle out on the balcony — in violation of a no bicycle rule — for days on end). The fine may not exceed $100 per violation, or $1000 in the aggregate. What this means is that the association may fine the resident that leaves their bicycle out on the balcony up to $100 per day for every day that the bicycle is on the balcony – up to 10 days. The maximum amount of the fines for the bicycle on the balcony is $1000.

Imposing the fine or suspension, however, is the tricky part for associations, as they must provide the resident with at least 14 days’ written notice of a hearing to be held in front of a violation or fining committee. The members of the committee may not be board members or persons residing in a board member’s household. After providing 14 days’ notice, the committee conducts the hearing (somewhat like a mini trial) and then considers and decides whether a fine or suspension should be imposed and, if so, what should they constitute. IMPORTANT: if the committee does not agree with the imposition of a penalty, then the penalty may not be imposed!

pool 2.JPGAnother tool that associations may use is suspending a residents’ right to use the common areas or to vote due to their failure to comply with their monetary obligations to the association. An association may suspend a members’ voting rights or rights to use the common areas if the member is more than 90 days delinquent in any monetary obligation due to the association. Therefore, for the resident who has been fined for having his bicycle out on the balcony for days on end but continues to enjoy the use of the pool and fitness center, the association may suspend their right to use those common area amenities until the fines are paid.

Obviously, for some communities with particularly troublesome residents, these tools are just the first steps to be taken in order to gain compliance with the association’s governing documents. Failure by a resident to comply after fines and suspensions are imposed may result in the need to take further legal action, but many times the imposition of a suspension or a fine will do the job.

For those communities that have to take non-conforming residents to the next level, following the steps detailed above is crucial to winning their case against the unit owner, as the failure by the association to follow these procedures may result in losing a case or having a court find that the fine or suspension was not imposed according to the statute and is therefore unenforceable.

Of course, many of the tools that the legislature has provided are ones that associations may utilize on their own without the necessity of retaining counsel – which keeps costs and expenses down. However, it is recommended that you consult with your association’s attorney when getting started in order to ensure that your process comports with all of the statutory requirements.