Background and Florida Statute

Cross-posted from AnonNews

March 1, 2013

The background is our CC&R's (Covenants, Conditions and Restrictions) DO NOT PROVIDE AUTHORITY for fining a homeowner and, in addition, this issue has been ballotted and DEFEATED several times in the past. Clearly, owners do NOT want to give the HOA the authority to conduct Rules Patrols and levy fines!

Up until 2011, state statutes deferred on this matter to the documents and said "Whatever the homeowners want to do is OK with the State, but if your Documents permit fines, here is how they MUST be handled". With the 2011 legislative session, this provision was changed and the clause deferring to the documents was removed, GIVING ALL HOA'S THE AUTHORITY TO LEVY FINES REGARDLESS OF WHAT THE HOMEOWNERS WANT! This opened the door for leadership to begin the process of fining homeowners in our community!

Now, we are beginning to see the implementation of the fining process to comply with state law. BOD wants a "workshop" on setting up a state-mandated Committee. This "workshop" is just a spin on what will really happen; the BOD will appoint 3 cronies to serve as the Violations Committee who will rubber stamp anything BOD wants to enforce. This process was supposed to have already happened, but reportedly has been delayed for some unknown reason. There have already been a number of the required "Notice of Violation" letters mailed to owners, specifically on dog violations.

We are seeing common property suddenly littered with signs, paid for out of your assessments, as if a sign were a valid rule. Management is trying to force compliance to its wishes through intimidation.

This is the sequence of what is supposed to happen according to statute:

Def of Violations Committee: Also sometimes known as Compliance or Complaint Committee and consists of three or more homeowners chosen by the BOD. The statutory purpose of the violations committee is to sit as an appeal panel if a violator desires to contest a fine or a Notice of Violation. Statutes prohibit an HOA from fining anyone unless a violations committee is in place. A violations committee person cannot simultaneously hold a Board position. Their purpose is NOT to comb a subdivision for violations. (According to leader statements, all homeowners should be vigilant for rules violations, tattle on their neighbors and "support" their enforcement activities.)

Once a violations committee is appointed by the HOA Board of Directors, the HOA may begin levying fines. When violations are observed, homeowners must be notified in writing, usually in-person or by snail mail. At least 14 days must be allowed for a violation to be corrected. If corrected, there is no fine.

When an "intent to fine" letter is sent for an uncured violation, a homeowner must be allowed an opportunity to appear before the violations committee. If a majority of the violations committee agrees with the fine, it stands. If not, no fine is imposed.

The state permits up to $100 for each violation and that may be levied each day the violation continues. The HOA can S u e an owner for the fines if not paid. If the fines are $1000 in total, the HOA can place a lien on the property. (Fines over $1000 must be specifically permitted in the governing documents.)

A homeowner who is unhappy with a Violations Committee decision may pursue further action. A lawsuit may be filed. There may be opportunity for mediation but it is unclear to me at this point how that is accessed; perhaps that is required by the State to try to avoid clogging the courts. If the issue cannot be resolved, an attorney experienced in community management litigation should be hired. The losing party must pay the winners attorney fees; so having a strong legal presence is advisable. If you have a well-prepared case, the HOA will likely wind up paying your attorney and legal costs. The attorney can help determine if your case is weak legally and might subject you to paying HOA legal fees if you lose.

There is separate problem with Rules Violations in this community; there was a huge number of new rules supposedly passed and recorded in the 2000's. I cannot find anyone who remembers lots of new rules being balloted and passed but regardless, there were tons of new rules not only recorded, but certified by the BOD and notarized.

It is unknown if or how many of those rules were simply adopted and passed along to members as being valid. I strongly suspect that many of the rules in here were never approved by due process ie 50% affirmative vote on the ballot. This would be the first defense for anyone with a rules violation; ie the Board must produce proof that the rule was balloted and affirmed. That would require a copy of the Minutes of the Ballot or meeting at which the rule was ratified because the mere recording of a Board-adopted rule may have been done "in error".

Yeah, right. An error.