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KANGAROO COURT – OR JUDGE, JURY AND EXECUTIONER?
By
Jan Bergemann
Published
February 15, 2013
Honestly,
there was a reason that our Constitution only allows government
entities fining power over citizens. And since our community
associations are not government entities, they shouldn’t have
fining power in the first place.
Supreme
Courts of two states already recognized this and ruled that
fines levied by associations are unconstitutional: Virginia
and Rhode
Island.
Florida
association law still allows associations to levy fines against
their members. In HOAs a fine of $1000 – or more -- can even
become a lien (meaning possible foreclosure) against the
property.
Remember,
in 2004 the HOA Task Force bill S
1184
removed this provision. But some association attorneys
quickly added some new provisions in the following years.
Don’t forget: “Fining”is a huge source of income for these
attorneys, because the process often ends in huge lawsuits, with
lots of billing hours. Allowing associations to levy fines
against its members creates many lawsuits, it’s one of the
most litigated issue in HOA lawsuits.
The
members of the HOA Task Force heard myriads of horror stories
during the meetings of the HOA TASK FORCE in 2003/2004. That’s
why the member agreed to put language into the Task Force bill
that would disallow fines becoming liens (like it always was –
and still is in condominiums [FS718]).
The
language that was added to FS
720.305(2) to change it again is very tricky, because
you need to read it more than once before you understand the
full power of it:
(2)
The association may levy reasonable fines of up to $100 per
violation, against any member or any member's tenant, guest, or
invitee for the failure of the owner of the parcel or its
occupant, licensee, or invitee to comply with any provision of
the declaration, the association bylaws, or reasonable rules of
the association. A fine may be levied for each day of a
continuing violation, with a single notice and opportunity for
hearing, except that the fine may
not exceed $1,000 in the aggregate unless otherwise
provided in the governing documents. A fine of less
than $1,000 may not become a lien against a parcel. In
any action to recover a fine, the prevailing party is entitled
to reasonable attorney's fees and costs from the nonprevailing
party as determined by the court.
Make
sure you understand what this language really says: The
association can levy fines not to exceed
$1,000, but can levy a fine that is exactly in the amount of
$1,000. Then it continues: “A fine of less than $1,000
may not become a lien” – meaning a fine in the amount of
$999 can not become a lien, but a fine in the amount of exactly
$1,000 (the amount allowed by law) can
become a lien.
The
so-called protection of homeowners against the abuse of fining
power sounds great, but is pretty useless since it allows the
board to appoint their “buddies” to the FINING (Grievance)
COMMITTEE. There is
lots of language used to explain who the board can’t appoint
to the committee, but it sure leaves plenty of room to appoint
their “friends” and like-minded neighbors.
Make
no mistake: These provisions allow board members to be accuser,
judge, jury and executioner – all in one. These powers go as
far as allowing a power-hungry board to throw a family out of
their home, even for trumped-up charges. There are no checks and
balances – and there is definitely no due process built into
these provisions.
Our
Florida
law gives KANGAROO COURTS the power over neighbors whose only
fault may have been that they criticized board members for not
allowing them to inspect the records as required by law. A few
brown spots on the lawn can always easily be found, considering
our weather and the irrigation restrictions during times of
drought, especially in communities that demand
St. Augustine
grass as the only allowed kind of lawn.
We
always hear that fining is an easy method to make a homeowner
comply with the rules and deed-restrictions of the community. In
reality, it’s not! If the homeowner who was fined fails to pay
the fine voluntarily, attempted enforcement of payment will have
to be done by litigation – one way or the other. Latest the
lien or foreclosure process will cause the homeowner to fight
the fine – and the association will have to proof that
everything was done according to rules, deed-restrictions and
statutes. And many judges have already disagreed with the
decisions of boards to fine the owners. Make no mistake, if the
owner wins, the association will have to pay for the cost of the
court proceedings. We have seen court rulings where associations
lost big time, having to pay all the legal fees of the owner
they tried to fine. Believe me, in some cases the association
had to fine 30 or 40 more neighbors with the highest fine
allowed just in order to recover the cost of that litigation.
And all these fined owners had to pay voluntarily.
Considering
the downfall of possible litigation over fines, why not going
after the owner with “serious” violations with litigation
directly?
Honestly,
our “Land
of the Free” should not have legalized kangaroo courts
and allow power-hungry, untrained board members to be accuser,
judge, jury and executioner!
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