Editor’s note: Attorneys at Goede, DeBoest & Cross, PLLC, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: An owner in our HOA routinely leaves his trashcans by the curb for days. Our documents require the trashcans be stored on non-trash days. The Board fined him $1,000 but he is refusing to pay. What are our options?
-AD,Stuart
A: A homeowners’ association has a few options to enforce covenant violations. That being said, I am routinely approached by HOA clients with the same problem and where the HOA skipped procedural requirements in an effort to expedite the enforcement. Thus, the answer to the question really starts with a review of the procedural requirements and whether the Board is willing to “check” each box.
The Board has the right to fine the homeowner for each violation and has the right to suspend the right to use amenities. Although the statute today allows fine amount of $100 per day, some documents have self-imposed maximum fines of, for example, $50 per day.
Next, Florida Statutes section 720.305 provides that “A fine or suspension may not be imposed by the board of administration without at least 14 days’ notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee 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.” Some attorneys interpret this statute to provide that the Board must only provide an opportunity for an owner to request a hearing with the fine committee, and that the fine is levied and owing if the owner does not request a hearing. Other attorneys interpret this to require a hearing no matter what, and that the Board must provide at least 14 days’ notice to the owner of the date, time and location of the committee meeting. I subscribe to the later opinion and recommend that the Association conduct a fine committee hearing, even in the absence of a request from the homeowner. It is also critical to note that many governing documents will specifically require a hearing.
So, after the Board approves a fine and/or suspension, and if the committee approves the recommended fine and/or suspension, the next question is how to do you collect? In homeowners’ associations, a fine of $1,000 or more can become a lien against the home, so one option is to pursue the collection as instructed by your governing documents and lien the home. Obviously, a lien can be foreclosed if not paid, so this is a powerful tool. If the fine is less than $1,000, or if your documents specifically preclude lien arising out of a fine, then you would need to bring an action in small claims or county court to obtain a judgment on the fine amount. Most documents provide for prevailing party attorneys’ fees, so there is a good chance you would recover costs and attorneys’ fees to collect the fine. Depending on many factors, such as whether the home is the homestead residence, that judgment can be enforced and collected in different ways.
If you do not want to pursue the fining route, you have the option of pursuing relief in court. You could obtain an injunction in a lawsuit to stop a continuing violation. It is paramount to note that Florida law has a condition precedent to filing a lawsuit in this context to enforce a violation. Florida Statutes section 720.311 requires the homeowners’ association to offer to participate in pre-suit mediation before it can file a lawsuit in court. The policy is to provide an alternative dispute resolution process to keep the case out of court and mediation frequently resolves many disputes.
When a homeowners’ association is considering covenant enforcement options, it is very important that the association consult with counsel to ensure that it is following the procedural requirements. You do not want to jump right into a lawsuit over a violation and then lose the litigation because of a procedural hurdle that could have easily been cleared with preparation. It is also important to note that every community has different governing documents with different self-imposed enforcement requirements and that the answer to this question is different in condominium associations governed by a different statute.
John C. Goede Esq. is co-founder and shareholder of the Law firm Goede, DeBoest & Cross, PLLC. Ask questions about your issues for future columns send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.