By Ryan M. Aboud / Published April 2021
One of the questions we are routinely asked is, may a homeowners association fine members who violate the governing documents? It has been several years since the Florida Homeowners’ Association Act was amended to provide associations with the authority to fine members. Previously, a homeowners association would be authorized to fine its members solely if the governing documents authorized fining. Currently, the Homeowners’ Association Act itself authorizes a homeowners association to fine a member who violates the governing documents up to $100 per violation for each day of a continuing violation up to an aggregate of $1,000; however, if the association desires to impose fines in excess of the $1,000 aggregate statutory limit and/or the association desires to lien for fines, that authority would need to be contained in the governing documents. If an association prevails in an action to recover fines, it would also be entitled to recover its prevailing party attorney’s fees and costs.
While the HOA Act’s amendment certainly makes it easier for a homeowners association to fine members without having to amend its governing documents to provide for basic fining authority, whether levying fines is worth the time, effort, and expense necessary is something each association will need to evaluate. Unless fines are subject to a lien that may be foreclosed in the same manner as a lien for delinquent assessments, small claims court may be the only avenue to collect unpaid fines.
Often, during the fining and collection process, the alleged violation persists. The law requires that the alleged violator be provided with 14 days’ notice of a hearing before at least three members of a committee who are not officers, directors, or employees of the association (or the spouse, parent, child, brother, or sister of an officer, director, or employee). If the committee does not, by a majority vote, approve the fine, a fine may not be imposed. It is also not unusual for a fining committee to change or reduce the fine at the hearing; however, the law does not support such behavior. The role of a fining committee is limited solely to confirming or rejecting the fine imposed by the board.
An association that wants to put teeth into its fining process may want to consider amending its governing documents to provide it with the authority to lien for fines and to impose fines in excess of the aggregate statutory amounts. Often, pursuing covenant enforcement by serving the member with a demand for compliance and a demand to participate in mandatory presuit mediation is a more effective way to compel an owner’s compliance.
Ryan M. Aboud
Partner, Backer, Aboud, Poliakoff & Foelster LLP
Ryan M. Aboud is a partner at Backer, Aboud, Poliakoff & Foelster LLP and represents clients in Broward, Miami-Dade, and Palm Beach Counties from the firm’s Boca Raton office. Mr. Aboud provides general, covenant enforcement, foreclosure, bankruptcy, and litigation counsel to the firm’s community association clients and supervises the firm’s collection and foreclosure department. Mr. Aboud also defends bankruptcies on behalf of the firm’s community association clients to protect their rights as creditors. Mr. Aboud obtained his bachelor of commerce in business management from Concordia University in Montreal, Canada and his J.D. from Nova Southeastern University. For more information about his firm, visit www.bapflaw.com.