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Subject: Florida 2018 HOA Fining Process. Watch out!
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Author Messages
AugustinD


Posts:4828


11/27/2020 10:21 AM  
GeorgeS21 is correct as far as I am concerned. The word "hearing" should be taken literally, or as pointed out recently, per the common sense meaning.
GeorgeS21
(Florida)

Posts:3602


11/27/2020 10:24 AM  
The entire purpose of the process is to ensure Boards don’t become monsters ...

Independent, non Board, unrelated committee members ... hearing to present and assess ... multiple step process to slow and ensure some modicum of justice.

HOA lawyers in FL have their own information sharing process ... this is pretty straightforward stuff.
SmartS
(Florida)

Posts:39


11/27/2020 10:38 AM  
I think that is common sense but there is always an HOA attny willing to take a try on it at the HOA and the homeowners gamble. Just wish Legislature would add the line and make it clear!!!
GeorgeS21
(Florida)

Posts:3602


11/27/2020 10:42 AM  
I believe it is clear.
AugustinD


Posts:4828


11/27/2020 10:57 AM  
Posted By GeorgeS21 on 11/27/2020 10:24 AM
The entire purpose of the process is to ensure Boards don’t become monsters ...

Independent, non Board, unrelated committee members ... hearing to present and assess ... multiple step process to slow and ensure some modicum of justice.

HOA lawyers in FL have their own information sharing process ... this is pretty straightforward stuff.
I also agree with all of the above, and that the statute is clear.

Regarding HOA attorneys --
Posted By SmartS on 11/27/2020 10:38 AM
I think that is common sense but there is always an HOA attny willing to take a try on it at the HOA and the homeowners gamble.
I agree there are ignorant HOA attorneys who might actually pull a stunt like this, telling Boards they need not hear the accused's side. Mostly because I think that, behind closed doors, these attorneys, liquor in hand, joke about how promoting dissension and arguments leads to more billable hours. If an attorney helps the Board deny an Owner her or his rights, then it's almost guaranteed there will be more billable hours for the attorney.

At this hearing or even better, in advance of it, please make sure you ask to present your side. If this dispute elevates, your having asked to present your side, and the board refusing to hear your side, will be important.
CathyA3
(Ohio)

Posts:1484


11/27/2020 11:16 AM  
Posted By GeorgeS21 on 11/27/2020 10:19 AM
Most of the definitions of hearing indicate the opportunity for both sides of an argument to present information, evidence, etc.




As George said. Hearings should allow a homeowner to dispute whether or not a violation has occurred - which is useful if the board's only "evidence" is claiming that someone observed something without providing any proof in the way of photos or the like. They don't allow homeowners to dispute whether or not a fine is appropriate for a particular violation, since that should be spelled out in the community's governing documents.

Boards should follow the fining schedule to the letter, even though that may appear hard nosed. If they don't, then they'll eventually run afoul of the "no selective enforcement" rule, since a fine could change depending on how good a story the homeowner can spin. In the latter case, homeowners can't rely on being treated fairly and impartially - and I'm not surprised that a lawyer would advise against that.
SmartS
(Florida)

Posts:39


11/27/2020 1:34 PM  
Good idea, I looked it up

https://dictionary.findlaw.com/definition/hearing.html

Hearing
hearing n

1 : a proceeding of relative formality at which evidence and arguments may be presented on the matter at issue to be decided by a person or body having decision-making authority compare trial NOTE: The purpose of a hearing is to provide the opportunity for each side of a dispute, and esp. a person who may be deprived of his or her rights, to present its position. A hearing, along with notice, is a fundamental part of procedural due process. Hearings are also held, as for example by a legislature or an administrative agency, for the purpose of gathering information and hearing the testimony of witnesses.

fair hearing
: a hearing that is conducted impartially and in accordance with due process and for which the defendant has reasonable opportunity to prepare, the assistance of counsel, the right to present evidence, the opportunity to cross-examine adverse witnesses, and often the right to a jury

SmartS
(Florida)

Posts:39


01/12/2021 10:29 AM  
Reading the fining statute, do you think the statute includes at the fining hearing the right for the Homeowner to produce evidence of why the fines are improper?

Also see text in Dworkin case about this issue. It is the last paragraph 2nd sentence in the case and begins with Generally.

https://caselaw.findlaw.com/fl-district-court-of-appeal/1861762.html
AugustinD


Posts:4828


01/12/2021 12:24 PM  
Posted By SmartS on 01/12/2021 10:29 AM
Reading the fining statute, do you think the statute includes at the fining hearing the right for the Homeowner to produce evidence of why the fines are improper?
The statute and case law have roughly the same authority. From my reading, the case law will support an argument that, at a hearing, of course the accused should have the right to (1) defend him- or herself; and (2) defending one's self includes being able to produce evidence of why the fines are improper.
CathyA3
(Ohio)

Posts:1484


01/13/2021 5:23 AM  
Posted By AugustinD on 01/12/2021 12:24 PM
Posted By SmartS on 01/12/2021 10:29 AM
Reading the fining statute, do you think the statute includes at the fining hearing the right for the Homeowner to produce evidence of why the fines are improper?
The statute and case law have roughly the same authority. From my reading, the case law will support an argument that, at a hearing, of course the accused should have the right to (1) defend him- or herself; and (2) defending one's self includes being able to produce evidence of why the fines are improper.




I agree that an owner should have the right to present evidence that fines are improper *in their particular case*. Fighting about whether the HOA has the right to fine for all similar violations should not be on the table, IMHO - that would amount to trying to rewrite the governing docs, which right belongs to the membership as a whole, not to a single member and the court.

I would guess that owners may be tempted to try for the latter approach when the details of their particular case don't favor them.
AugustinD


Posts:4828


01/13/2021 8:09 AM  
Posted By CathyA3 on 01/13/2021 5:23 AM
Fighting about whether the HOA has the right to fine for all similar violations should not be on the table, IMHO - that would amount to trying to rewrite the governing docs, which right belongs to the membership as a whole, not to a single member and the court.

I would guess that owners may be tempted to try for the latter approach when the details of their particular case don't favor them.
I am not sure I understand what CathyA3 is saying above. A few opinions from me:

-- If a member finds that his or her state's statutes only allows fines when the Declaration explicitly speaks of fining authority, and the HOA's Declaration mentions fines no where, then I think a member should be able to present this at a hearing.

-- If a member believes that a Board-written Rule or Regulation lacks a basis in the governing documents, then I think a member should be able to present this at a hearing.

-- I think there are more examples of allowable HOA Hearing Evidence that is (a) not unique per se to the member's case; but (b) certainly would be considered if this were in a court of law.
CathyA3
(Ohio)

Posts:1484


01/13/2021 8:54 AM  
Posted By AugustinD on 01/13/2021 8:09 AM
Posted By CathyA3 on 01/13/2021 5:23 AM
Fighting about whether the HOA has the right to fine for all similar violations should not be on the table, IMHO - that would amount to trying to rewrite the governing docs, which right belongs to the membership as a whole, not to a single member and the court.

I would guess that owners may be tempted to try for the latter approach when the details of their particular case don't favor them.
I am not sure I understand what CathyA3 is saying above. A few opinions from me:

-- If a member finds that his or her state's statutes only allows fines when the Declaration explicitly speaks of fining authority, and the HOA's Declaration mentions fines no where, then I think a member should be able to present this at a hearing.

-- If a member believes that a Board-written Rule or Regulation lacks a basis in the governing documents, then I think a member should be able to present this at a hearing.

-- I think there are more examples of allowable HOA Hearing Evidence that is (a) not unique per se to the member's case; but (b) certainly would be considered if this were in a court of law.




I probably wasn't clear.

What I meant was that an owner should be able to present evidence that the HOA erroneously charged a particular fine for a particular violation - eg, it exceeded the amount allowed by the published fining schedule.

I don't think that arguing a fining schedule is unjust or questioning the HOA's right to fine at all should be part of the hearing, since that would be a bigger issue beyond this one homeowner's violation. There are places for such a discussion, but this isn't it.

However, a homeowner who is holding a weak hand - the HOA has evidence of the violation and the fine was imposed in accordance with published rules and "due process" - may be tempted to argue the bigger issues because he would lose arguing his individual one.

Make sense?
AugustinD


Posts:4828


01/13/2021 9:11 AM  
Posted By CathyA3 on 01/13/2021 8:54 AM
I don't think that arguing a fining schedule is unjust or questioning the HOA's right to fine at all should be part of the hearing, since that would be a bigger issue beyond this one homeowner's violation. There are places for such a discussion, but this isn't it.
Thank you for clarifying. The reason I disagree with the above is because, where a HOA has no authority to fine, the next step is court, and if the HOA Board rules against the accused, IMO rightly so. For court, more likely than not, the HOA corporation will use its attorney. The accused may hire an attorney. Court time may be squandered because the issue in dispute might have been resolve-able at the HOA hearing level, with a competent HOA attorney keeping an eye on things.

Where I am and in a number of states, signs are that a valid defense in court, for a HOA member who has been accused of a violation, is that the Board is not following its own covenants and Rules and Regulations as they pertain to the violation. When A HOA's covenants and state statute do not authorize a HOA to fine, a HOA that does fine is not following its own covenants and rules. If the HOA brought suit to collect a fine from an accused member, where I am and in a number of other states, the signs are that the Court would dismiss the HOA's lawsuit.


However, a homeowner who is holding a weak hand - the HOA has evidence of the violation and the fine was imposed in accordance with published rules and "due process"
You and I seem to agree that not following the published rules and "due process" means the fine is not valid. Perhaps we still disagree about whether someone accused may legitimately argue, at a HOA hearing, that the covenants and statute give the HOA no fining authority.
CathyA3
(Ohio)

Posts:1484


01/13/2021 9:23 AM  
Posted By AugustinD on 01/13/2021 9:11 AM
... snip ...

However, a homeowner who is holding a weak hand - the HOA has evidence of the violation and the fine was imposed in accordance with published rules and "due process"
You and I seem to agree that not following the published rules and "due process" means the fine is not valid.


Perhaps we still disagree about whether someone accused may legitimately argue, at a HOA hearing, that the covenants and statute give the HOA no fining authority.




Hoping I nested these tags correctly....


I think we still disagree about arguing about the latter, but mostly for a pragmatic reason: it's unlikely that the board will be persuaded since presumably they already believe they have such authority. I think such an issue belongs in a court or other venue - you'll have knowledgeable people ruling on something that potentially affects all owners in a community.

One criticism of HOA hearings is absence of "second opinions" and I think that's a valid point.
AugustinD


Posts:4828


01/13/2021 9:35 AM  
Posted By CathyA3 on 01/13/2021 9:23 AM
Posted By AugustinD on 01/13/2021 9:11 AM
... snip ...

However, a homeowner who is holding a weak hand - the HOA has evidence of the violation and the fine was imposed in accordance with published rules and "due process"
You and I seem to agree that not following the published rules and "due process" means the fine is not valid.


Perhaps we still disagree about whether someone accused may legitimately argue, at a HOA hearing, that the covenants and statute give the HOA no fining authority.




Hoping I nested these tags correctly....


I think we still disagree about arguing about the latter, but mostly for a pragmatic reason: it's unlikely that the board will be persuaded since presumably they already believe they have such authority. I think such an issue belongs in a court or other venue - you'll have knowledgeable people ruling on something that potentially affects all owners in a community.

One criticism of HOA hearings is absence of "second opinions" and I think that's a valid point.-- I think we have narrowed where we disagree.

-- I am aware that courts have commented that they do not want private entities (or even public universities or governmental agencies) to have to hold hearings where everyone is lawyered up. I believe the courts have said that the official rules for such hearings may prohibit both sides using attorneys. Supposedly this would help keep disputes out of courts. I think this tends to support CathyA3's position.

-- In a state with no statute that authorizes fines, and with HOA covenants that does not expressly authorize fines, I would fear for a HOA member accused and fined who does not make an argument, at the HOA hearing, that fines are not allowed, per the covenants. I would be concerned this would be used against the member in court subsequently.

-- A HOA Board has to rule based on its understanding of the covenants and law. If it says it disagrees with the member's position (whatever this position may be), then so be it. But I do not think the HOA Board, at the hearing, should flatly disallow any such claim by a member.

-- Granted maybe such a claim is not evidence but instead, a legal argument. The Board has every right to reject such argument at hearing.


CathyA3
(Ohio)

Posts:1484


01/13/2021 9:39 AM  
-- A HOA Board has to rule based on its understanding of the covenants and law. If it says it disagrees with the member's position (whatever this position may be), then so be it. But I do not think the HOA Board, at the hearing, should flatly disallow any such claim by a member.

I agree about that. It may be a low-percentage shot, but the cost is also low.
FloridaC1
(Florida)

Posts:14


01/13/2021 3:40 PM  
None of you mentioned the fact t7hat by the time an owner goes to fine, they have usually not responded to a 30 day notice, nor a 14 day notice or even possibly a 7 day notice. Perhaps the reason should be brought up why people move into HOAs: to make sure that they don't live next to someone with a car lot, mechanics garage or forest in their front yard. With that being said, everyone agreed to the Use restrictions when they closed on their HOA home. The Hearing Committee is presented with all the notices and responses from the owner in question prior to the hearing for fining. If an owner has an extenuating issue that prevented the non-compliance from being cleared and informed the association manager "in writing" per the violation notice, do you not think that this is taken into consideration and same thought for the owner who ignored every notice and claimed they never received the letters?

Old thread but great topic because it really hits home to owners who don't follow the use restrictions.
AugustinD


Posts:4828


01/13/2021 7:32 PM  
Posted By FloridaC1 on 01/13/2021 3:40 PM
None of you mentioned the fact t7hat by the time an owner goes to fine, they have usually not responded to a 30 day notice, nor a 14 day notice or even possibly a 7 day notice.
I try to address only the issues the OP raised and not go too far afield.

The hypotheticals one could raise in these threads numbers infinity.
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