As community association attorneys, one of the problems we face quite often with our association clients is how to prevent violations of the governing documents and rules of the communities. How do we prevent the homeowner from painting their house pink? How do we prevent people from hanging towels outside on the common element rails and doing other things that really are violations of the rules and regulations and the governing documents? And what a lot of board members and managers don't realize is that associations are sort of mini-democracies. What does that mean, exactly?
There's a certain level of “due process” that associations must follow if they're going to fine somebody or if they're going to suspend somebody’s right to use the pool, or their right to use the tennis court. And one of the things that's common among both the Condominium Act and the Homeowners Association Act, is the fact that an association must establish a committee of non-board member owners who will hear complaints that the board has imposed regarding violations of the governing documents. This group serves as an independent body that decides whether they're going to uphold or approve the board's actions and decisions in relation to imposing fines and suspensions.
Furthermore, both Acts require that the owner who was in violation and subject to a board-levied fine or suspension be provided with at least 14 days’ notice as well as the opportunity to be heard before this committee to present their case. This gives the person in violation a chance to present their opinion and present their evidence of why they think that the fine and the suspension should not be imposed. Only then, when it's all said and done, can the committee ultimately decide whether to approve or reject the fine or suspension.
What we often face as association lawyers are situations where perhaps that procedure wasn't followed, where a board or managers just decided that this person violated the governing documents, and the violating party all of a sudden has a $1,000 fine on their account. When they come to us to try to collect the fine, unfortunately, we have to tell that client that we can't do that if they failed to comply with the statutory process and procedures.
Of course, there are some variations between the different statutes—the Condominium Act and the Homeowners Association Act. For example, in condominiums, a fine can never become a lien against a unit whereas for a homeowners association they can, depending on what is in their governing documents. If you are board member or manager that has a question as to the validity or enforceability of a fine or suspension, we would encourage you to reach out to us. When you contact us, please give us all the procedures and steps that were undertaken prior to trying to collect the fine and make sure you followed these important procedures first. As HOA attorneys, we can always try to correct any procedural deficiencies after the fact, but what we can't do is try to enforce a penalty against somebody when they haven't been provided with their due process rights that the statutes allow.
Author Brian T. Meanley is an Associate Attorney at Sachs Sax Caplan practicing within the Community Associations Practice Group.
He has handled a wide range of matters including interpreting and amending governing documents, litigating covenant enforcement cases, prosecuting lien foreclosure actions, reviewing and negotiating contracts, and all manner of general counsel work.