Q:Can my association's "Compliance Committee" report violations, levy fines, and then act as the review board? This seems to be acting as both judge and jury. Per my HOA, this new committee is creating its own bylaws, having the management company document and mail the violation notices and then assess the fines. An owner will then be able to address these violations to the committee, and the committee will decide whether to assess the fines.
The board has stated in writing that it is unable to interfere with the committee's ruling. It seems to me that this does not meet the spirit of the Florida Statutes for an unbiased hearing. Am I wrong? Do homeowners have rights in these matters? – M.L., via email
A:The situation you described does not seem fair or reasonable. Unfortunately, that does not make it technically illegal, either.
Community association boards usually have the authority to form and constitute both standing and ad hoc committees. Those committees can have a set of stand-alone operating rules or bylaws, and they should.
The board can delegate certain of its rights and powers to committees, including the authority to ferret out rule violations and to report them to management. A committee that investigates possible violations is sometimes called a "compliance committee." Such a committee cannot levy fines or suspend common-area use rights, although it can make recommendations to the board of directors.
The board is the only entity that can properly levy a fine or suspend use rights.
This is where it gets confusing, if it was not already. Once the board decides to levy a fine or suspend common-area use rights, it has to send a written notice to the alleged violator, who could be the owner, renter, guest or invitee of a unit or parcel. The party who has been charged has 14 days to challenge the allegation by requesting a hearing.
The hearing has to be held before a committee composed of at least three people who cannot be officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee.
This autonomous committee has the power to overrule the board. If this committee does not agree with the board's decision, a fine or suspension cannot be imposed. If the fine or suspension is not contested within the 14 days, it is automatically enforced. It is also enforced when the committee agrees with the board.
So, what happens if the people on a committee charged with recommending fines and suspensions to the board are the same people serving on a committee that oversees the board's authority to impose the fines and suspensions? As long as those people are not affiliated with management as described above, this probably passes legal muster, unless the association bylaws prohibit it.
The bylaws or board policy should prohibit it. Otherwise, you are right. The process is nothing more than a kangaroo court.
However, the board usually stacks such committees with supporters or, if I were being less charitable, I would say "cronies," so the possibility of being acquitted by this review board is usually nil anyway. That is not to say that I am recommending not taking advantage of the opportunity for a hearing. An owner should always work to build a record if he or she plans to mount a legal challenge to the board's actions.
Homeowners do have rights. One is to unseat board members who are not acting in accordance with the wishes of a majority of the members.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
