IS YOUR FINING PROCESS FINE?

Prior to 2010 Florida law only allowed the association to fine for violations of the governing documents, if the authority to fine was contained in the declaration or bylaws. In 2010, the law changed and associations had the power to fine, even if the power to fine was not contained in the governing documents. There’s no question in my mind however that if your condominium or HOA was created before 2010 and does not have language authorizing fines, your association cannot fine the unit owners unless you also have the language in your governing documents that automatically adopts amendments to the association laws as they are amended from time to time by The Florida Legislature. So, before starting the fining process, make sure you actually have the authority to fine. If you don’t, amend your declaration first.

Let’s assume that the association has the right to fine. How does the process work? The fining process starts out at the Board level. For example……let’s say you want to fine Unit 107 for parking in Guest Parking for 8 days in a row. On the agenda for a Board meeting……you indicate as an agenda item “Fining of Unit 107” At the Board meeting, a Board member can make a motion to fine Unit 107 $100.00 per day for each of the 8 days that he parked in guest parking – meaning $800.00. The motion would need to be seconded. A majority would need to vote in favor. If they do – the fine has been levied – but not yet imposed.

The next step is that the Fining Committee, made up of at least three members 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, needs to send a letter to Unit 107, scheduling a hearing with at least 14 days advance notice. At the hearing, the role of the Fining Committee is very limited. They either impose the full amount of the $800.00 fine ………or they waive it completely. The committee has no authority to reduce the amount of the fine. If the fine is imposed by the fining committee, the statute now says the fine payment is due days after the date of the committee meeting at which the fine is approved.

Remember that the big difference between the power of a condo and the power of an HOA regarding fines is that in a condo, a fine can never become a lien on a unit. In an HOA however, once the fine hits $1,000.00 the association may lien the unit and proceed to foreclose.

Over the years I have heard mixed results when it comes to fining. Some Boards think they work well, while others believe the process is too cumbersome. What has been your experience?

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