“Pursuant to the New Legislation Effective July 1, 2015”
On July 1, 2015, new provisions which clarify the procedures for fining and use right suspensions for non-monetary violations became effective. The term “non-monetary violations” refers to such things as failing to pressure clean roofs and driveways, to remove dead trees, to bring in the garbage cans and to pick up after your pet, etc., and obviously excludes delinquent monetary obligations.
These new provisions were put into place to clarify the manner in which an association’s board of directors and its fining and suspensions committee coexist. Prior to these provisions, there were some who were unsure as to whether the fining and suspensions committee would first meet and then the board of directors would levy the fine, or if the board of directors would first meet, determine the amount of the fine, and then the fining committee would meet to provide the offending owner with the opportunity to be heard. Now, it is patently clear. The board must take action first.
According to these recent amendments to Chapters 718, 719 and 720 of the Florida Statutes, regarding condominiums, cooperatives and homeowners’ associations, respectively, an association’s board of directors must first levy the fine or enact a use right suspension for a non-monetary violation at a properly noticed board meeting. After, the person who is to be fined or suspended must then be provided with at least fourteen days’ notice and an opportunity for a hearing before the fining and suspensions committee. If the fining and suspensions committee does not exactly agree with the board, then the fine or use right suspension may not be enacted.
With that in mind, the role of the fining and suspensions committee is strictly limited to determining whether to confirm or reject the fine or use right suspension levied by the board of directors. The committee cannot make any changes whatsoever to the fine or use right suspension enacted by the board as any such change would constitute a rejection of the fine or use right suspension levied by the board.
As a matter of practicality, if the fining and suspensions committee rejects the fine or use right suspension, the board could start its decision making process anew or the fining and suspensions committee could make a recommendation to the board as to what it would approve. In either event, it begins the fining and use right suspension process anew. This means that the offending member should also be provided another fourteen days’ notice and opportunity to appear in front of the fining and suspensions committee before the recommended fine or use right suspension becomes effective.
Condominium and cooperative associations can only file a lawsuit seeking a money judgment in order to collect unpaid fines. While homeowners’ associations can also similarly seek a money judgment, if the homeowners’ association’s declaration provides for fines exceeding a total of $1,000.00 and also allow a fine to become a lien, then the homeowners’ association may use the foreclosure process to collect an unpaid fine. In all cases, in any action to recover a fine, the prevailing party is entitled to recover their reasonable attorneys’ fees and costs from the non-prevailing party, as determined by the court.
Fines apply to the owner and, if applicable, to any tenant, licensee or invitee of the owner. Use right suspensions apply to the property’s occupant, licensee or invitee, which includes tenants, and still applies even if the violation that resulted in the suspension arose from less than all of the multiple properties owned by a member. Also, the terms of the association’s declaration likely provides that the owner is ultimately responsible for the acts of their tenants, guests and invitees.
For condominium and cooperative associations, the fining and suspensions committee is comprised of unit owners who are neither board members nor persons residing in a board member’s household. For homeowners’ associations, the fining and suspensions committee is comprised of at least three members who are not officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee.