Is your Homeowners’ Association Considering Levying a Fine against an Owner?
Levying fines against an owner for a violation of the HOA’s governing documents can be the most difficult and controversial decision that a sitting Board of Directors (“Board”) will have to make. The alleged violations at issue are often times disputed and regularly lead to litigation. So, not only do you have neighbors pitted against one another in these situations, you have the very real possibility of expending costs and fees that exceed the amount of the fines. Despite this reality, Boards often times find themselves in a position where there is no choice but to levy fines against an owner who has violated, or is violating, the Association’s governing documents.
The Florida HOA Act at section 720.305(2)(b) provides that a fine may not be imposed until a fourteen day notice of an upcoming hearing relating to the alleged violation is sent to the Owner. There has always been a question as to whether strict compliance with the fourteen-day notice is required or whether substantial compliance satisfies the statutory requirement. A recent Florida District Court case helped clarify this issue in holding that strict compliance with the notice provision is a “necessary prerequisite” for an HOA to impose and enforce a fine.
In this case, the homeowners in question consistently failed to keep their roof and driveway clean and their fence in good conditions as required by the HOA’s governing documents. The HOA sent multiple notices of the violations over a number of years and the homeowners did not remedy the violations. The HOA sent the homeowners a notice on May 23, 2103 informing them of a hearing before the HOA’s fine committee that would take place thirteen days later on June 5, 2013. At this meeting, fines were imposed and a letter informing the homeowners was sent two days after the June 5, 2013 hearing.
The homeowners did not remedy the violations or pay the fines. As a result, the HOA sent the matter to its legal counsel who filed a claim of lien for the fine amounts plus fees and costs. The HOA’s counsel then filed a two-count complaint against the homeowners for foreclosure and for damages. The trial court denied the first count for foreclosure siting the HOA’s failure to comply with the fourteen notice contained in Florida HOA Act, but awarded the HOA damages under count two of its complaint.
The ruling was appealed to the District Court that upheld the trial court’s ruling on the foreclosure count and reversed on count two relating to damages. In its ruling, the District Court confirmed that Section 720.305(2) (b) “functions as a condition precedent to the attachment of a lien” and that the language of the statute is “clear and unambiguous” and must be “strictly construed.” The District Court rejected the HOA’s argument that it substantially complied with the notice requirement by providing a thirteen-day notice.
The takeaway from this recent case is that an HOA must provide a full fourteen-day notice of a hearing to a homeowner before fines imposed against that owner for violations of the HOA’s governing documents are valid and enforceable.
 Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc., (Fla. 4th DCA 2017).
This is not intended to be legal advice for any specific situation and the reader should consult their attorney regarding their situation.