One of the significant benefits of living in a Florida condominium or deed restricted community is the ability of the association to adopt and enforce community standards in order to maintain property values and avoid the problems associated with neighbors who allow their homes to fall into disrepair or fail to abide by the rules creating a nuisance for the entire neighborhood. When a violation is observed, in most instances a friendly letter from the association, typically from the community association manager, resolves the matter, but not always. In some instances the association must take further action to resolve the violation in order to maintain community standards. Available options include assessing fines, suspending member privileges and commencing legal action against the homeowner to enforce the governing documents. This article explores the requirements under Florida law to assess a fine. In particular, the recent amendments to the homeowners’ association and condominium acts are discussed.
The first step is for the board to adopt a policy determining which violations will trigger a warning letter and which violations upon initial discovery or in the event the warning letter is ineffective will trigger the assessment of a fine. The best practice is for the policy to be explicit and detailed as to which violations are actionable. For example, rather than a policy that simply states “if the yard is unkempt” a more exact policy might state “if the grass or ground cover as observed from the adjacent roadway appears to exceed 6 inches in height above the grade.” The policy should also specify the applicable grace period from the time a warning letter is issued until a fine is assessed unless a cure is effected in the interim.
In some communities the board may wish to adopt a policy of issuing an information-only courtesy letter prior to the issuance of a formal warning letter. For example, in the first instance of a violation of any sort by an owner, the board may direct that the manager simply send a letter advising the homeowner of the noticed violation, provide the homeowner with a copy of the applicable governing documents and offer guidance to the homeowner on how to bring the property into compliance. Some communities have found this friendlier first step with not even a threat of a fine to be more appropriate with an escalation if the educational approach proves unsuccessful.
The policy should function as a set of guidelines that explicitly cover the most common violations. A “catch all” provision should be included requiring any potential violation not specifically addressed by the standing guidelines to be brought to the board for instruction before enforcement action is taken. In addition, the policy should provide that the board should be consulted before taking action if the manager is uncertain whether a condition constitutes a violation.
The policy, once adopted, becomes the guide to the manager. Thereafter when the manger observes a violation the manager should prepare and deliver a courtesy “information only” letter, warning letter, or notice of fine assessment in accordance with the adopted policy. When the manager is faced with a possible violation, but is unclear how to apply the policy, the matter should be brought to the board’s attention for clarification and instruction.
Once a notice of fine is issued by the manger due to a violation, the fine is considered to be “assessed” by the association. It does not matter if the notice of fine is issued as an initial response or after prior warnings have been ignored. At this point the specific requirements allowing an association to fine members under Florida law and if applicable under the governing documents are implicated. This article presumes that there are no provisions in the governing documents which are contrary to the provisions in the statutes. Every association considering adopting or reviewing a fine policy should always confer with legal counsel and review its governing documents carefully to ensure that the policy complies both with the statues and the declaration.
For homeowner associations s. 720.305 Fla. Stat. governs fines, and for condominiums the applicable statute is s. 718.303 Fla. Stat. Both statutes allow an association to levy or assess “reasonable fines.” This article considers “levy” and “assess” to be synonymous. Condominium associations are restricted to assessing $100 per violation up to $1,000 in the aggregate. Homeowner associations are likewise limited to assessing $100 per violation; however, the maximum aggregate fine is $1,000 unless a different amount is specified in the governing documents.
When a fine is first levied or assessed it should not be treated as receivable, and no efforts should be taken to collect the fine, but the association can accept funds if the homeowner voluntarily pays. It is similar to the protocol for a speeding ticket. A driver does not immediately owe money when an officer issues a ticket. Rather the driver can choose not to contest the ticket and just pay the fine, or the driver can challenge the ticket. If the driver challenges the ticket, the fine is not due until a traffic judge hears the appeal and rules that the ticket was valid and that the fine must be paid. Under this example, if the traffic judge finds that the ticket was not properly issued, then the ticket is cancelled and the driver does not owe any fine.
When the fine is assessed, the homeowner must be advised that they have the opportunity to contest the fine to an appeal committee. The homeowner must be given 14 days to request an appeal from the date the fine is assessed.
If the homeowner does not request an appeal within the 14 day period, the fine becomes final and the association may “impose” the fine against the homeowner. Impose means that the fine becomes a receivable on the homeowner’s account and the association can properly take lawful steps to collect the fine. Note that s. 718.303(3) prohibits a fine from becoming a lien against a condominium unit, and that s. 720.305(2) prohibits a fine of less than $1,000 from becoming a lien for homeowner associations. Subject to these limitations, the association is free to take any lawful means to collect the fine from the homeowner including suspension of privileges and voting rights as may be permitted by law and under the governing documents.
In some communities, the board provides for review of every fine whether or not requested by a homeowner. This goes beyond the requirements of the statutes, but is often deemed a desirable safeguard before a fine is collected. It is akin to college football where every play is subject to review as opposed to professional football where a coach must request review of a contested play.
Whether an appeal is timely requested by a homeowner or granted automatically by the board, once an appeal is set the assessed fine should not be collected until the appeal committee makes a decision. The committee must be comprised of members who are independent of the board of directors. After the appeal is heard, the appeal committee can choose to impose the fine which was assessed or to cancel the fine. If the fine is cancelled the board cannot collect the fine, but other enforcement action for the violation may still be available. If the fine is imposed it becomes a collectible receivable due the association. Sometimes an appeal committee will defer ruling for a specific period of time to afford the homeowner an opportunity to cure the violation before deciding whether to impose the fine or not.
There is sometimes confusion as to who issues the fine and what the proper role of the appeal committee should be. It is our opinion that fines are levied by the association through the board of directors by means of a violation policy. The appeal committee’s role is limited to review of fines levied by the board. The manager—acting as an agent of the board—assesses the fine in the name of the board. The board working through the manager is analogous to a police officer who issues a speeding ticket, and the appeal committee is equivalent to a traffic judge reviewing the contested ticket. It would be obviously inappropriate for a judge to issue a warning or fine and then hear the appeal of the very same fine. Similarly, the appeal committee should never issue violation notices or assess a fine, or even issue a warning letter.
If a fine is imposed after waiver of the appeal or unsuccessful appeal, then the manager must notify the homeowner that the fine is imposed and must be paid. Often this triggers an appeal to the board of directors; however, it is our belief that absent exceptional circumstances the board should not reverse the imposition of a fine and does not have the authority to overrule the appeal committee where an assessed fine was not imposed. Rather the board’s discretion is limited to writing off a receivable on the account of the owner protests the imposition of the fine.
In our opinion the Florida legislature attempted to clarify the roles in 2015 when it passed House Bill 791, which became Chapter 2015-97, Laws of Florida. Among many other changes to the condominium and homeowner association laws, the legislature amended s. 718.303 and s. 720.305.
The pertinent changes are noted below:
718.303:
A fine may be levied by the board on the basis of each day of a continuing violation, 973 with a single notice and opportunity for hearing before a committee as provided in paragraph (b) . . .
The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board.
720.305:
A fine may be levied by the board for each day of a continuing violation . . .
The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board.
Some lawyers believe that these changes require the board to specifically review and vote to assessed a fine on each and every violation before the manager can issue a notice of violation and fine letter. While some associations may wish to adopt this practice, it is our opinion that the law simply clarifies the respective roles of the board and appeal committee without changing the existing protocol. Specifically, the revisions are meant to address the common practice of appeal committees participating in the assessment of fines, rather than simply hearing appeals of fines after they are levied by the board. Additionally, the revisions specify that the appeal committee’s role is limited to upholding or rejecting a fine after it is levied by the board. Accordingly, we believe that HB 791 made no substantive changes to the fine process, and that associations already following the law prior to HB 791 do not need to change their practices. There are no court cases addressing the revised law, but associations should recognize that the laws are frequently amended and should be sure to stay informed to ensure compliance.
