Associations have new enforcement mechanisms available – due process requires careful planning & paperwork for associations to take advantage of these new remedies effectively.
Â Condominium Associations:
Up until now condominium associations had to have authority to levy fines in the recorded governing documents and did not have the ability to tell delinquent owners to stay out of the pool or gym.Â That changes as a result of SB 1196.
After July 1, 2010Â (the effective date of the new law), condominium associations will be able to levy fines as a result of violations of the governing documents or rules.Â Of course the association must still provide 14 days written notice ofÂ the violationÂ and the opportunity for a hearing before a committee ofÂ unit owners before imposing any fines,Â Â The fine cannot be levied or imposedÂ if the committeeÂ does not agree.
Delinquent condominium owners have more to worry about than fines – the new laws will allow the association to suspendÂ voting rights and use of common, recreational facilities if they are more than ninety (90) days past due in paying aÂ monetary obligation.Â Â The term “monetary obligation” is not definedÂ – it could include non-assessment obligations such as late fees, fines, transfer approval or screening fees and the like.Â The association cannot suspend the use of limited common elements (such as the balcony attached to the unit), nor may it suspend portions of the property necessary to access the unit – such as hallways, elevators, parking spots, etc. Â The association cannot suspend utilities.
The new laws actually limit homeowners’ associations powers when it comes to suspensions.Â In the past, suspensions could be imposed in the HOA context for either use violations (violations of the governing documents or rules) or delinquencies.Â After July 1, 2010, suspensions may only be imposed by HOAs when a member is more than ninety (90) days past due.Â While it doesn’t make sense (especially since Section 720.3085 limits late feesÂ for delinquent assessments),Â the changes arguably limit fining as well. Â Fourteen (14) days written notice and an opportunity for a hearing before a committee is required in either case.Â If theÂ committee (by majority vote) does not agree with the fine or suspension, it may not be imposed.Â
HOAs cannotÂ suspend use of portions of the property necessaryÂ to access the parcel (roads,Â etc.) or utility services.Â
The law prohibits the HOA from filing a lien if the fine is less than $1,000 – does that mean that it can lien for fines of $1,000 or more?Â Well, that remedy certainly needs to be included in the governing documents – so check with counsel.Â If you’re governing documents limit the amount of the fine, now is a good time to consider amendments.
Fines and suspensions must be considered at a properly noticed meeting.Â Written notice of the fine orÂ suspension (voting or use)Â must be furnished to the owner (and occupant if applicable).
Will these new procedures and remedies work?Â Its hard to say, butÂ attempting to take advantage of these remedies without following the requiredÂ proceduresÂ is certainly likely to lead to disputes and may expose the association to liability.Â Proceed with caution.