Q: Our HOA board wants to establish a fine committee to address violations.
What do we need to do? Who is supposed to go/walk or drive around to check on properties? Do those people have to have insurance, and what education do they have to have to be inspectors? Do homeowners or renters have to be notified that their properties are to be inspected, or can anyone enter the property without notice in a non-emergency situation?
How effective are fining committees in general?
— C.P., Palmetto
A: A “fine” committee, as referenced by Florida’s condominium and HOA statutes, refers to the committee formed by the board of directors when the board wants to levy fines or suspend common-area use rights against owners, occupants and others entering and using the property.
The law provides that no fine or suspension can be levied until the party to be penalized has a reasonable opportunity for a hearing before a committee of other unit owners who are neither board members nor persons residing in a board member’s household. The notice of the hearing must be provided in writing at least 14 days in advance. If the committee does not agree with the fine or suspension, the fine and/or suspension cannot be imposed.
A fine process can be useful, but not always. Limits exist on the amount of fines and, in all condominiums and in many HOAs, a fine cannot become a lien on a property. By its nature, a fine or common-area suspension does not cure the underlying violation. A violator may ignore the fine, and legal action may still be necessary to secure a permanent solution to the problem.
Based on your question, though, it seems that your board wants its “fine” committee to have additional functions, such as actually going out to investigate potential violations and report back to the board.
This is usually permissible, but I have some cautions.
When we are little, we learn to clean up after ourselves and that tattling on others is likely to subject the tattler rather than the violator to punishment. Why do those ideas learned in kindergarten get turned on their heads sometimes in community living?
I am not a fan of boards sending volunteers to ferret out violations. Some members of those committees get carried away.
We all remember the case of Trayvon Martin being shot and killed by “neighborhood watchman” George Zimmerman. Regardless of the facts of that case, it seems clear to me that a volunteer exceeded his authority and that allowing law enforcement officials to handle the matter might have resulted in a different and better outcome.
If a board does establish a “violation” or “enforcement” committee, the association bylaws should first be reviewed to make sure the authority exists to do so.
No committee member should trespass on private property or engage in direct personal confrontations with alleged violators.
The only requirements or qualifications for membership on such a committee would normally be what the board imposes, and the board should consult with its insurance carrier on what volunteer activities are covered by the association’s liability policy.
I remember having to get involved when one association director insisted on driving through the community in the maintenance man’s golf cart in the middle of the night, wearing night vision goggles in order to catch violators.
He was held at gunpoint and almost shot trying to get a photo of a boat, allegedly parked illegally in a fenced backyard. He had entered that property and scaled the fence. Although a disaster was averted, it highlights the risk of volunteers using “self-help” remedies instead of pursuing recourse through lawful channels.
HOAs vs. bunnies
A Colorado HOA is under fire for a plan designed to rid the community of rabbits that are allegedly destroying common landscaping by eating it. The plan is to trap and exterminate them. During Easter, no less.
A community resident was quoted as saying that one appeal of the neighborhood is the wildlife that lives on the nearby open space, including coyotes, owls, eagles, hawks, and, of course, rabbits. She was dismayed about having to explain to her granddaughter that the HOA board killed the rabbits because they ate “our” flowers.
Oh my gosh, not “Thumper!”
Association representatives insist that less-drastic measures failed. That is probably true, but the way rabbits reproduce, I am not sure this plan makes sense either. Plus, when development expands into rural areas, which is the trespasser, the humans or the wildlife?
Anyway, what’s certain is that the story created a public-relations nightmare for that community, but maybe the board can pull something out of its hat to diffuse the situation.
Oh — wait. Never mind.
Tamela Eady is a Florida Bar board-certified real estate attorney with more than 25 years’ experience, concentrating her practice on community association and real estate legal matters. 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.
