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Subject: Fine/Violation Policy
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Author Messages
SarahM7
(Tennessee)

Posts:4


07/28/2020 10:57 AM  
All-quick question. is a fine policy/procedure Have to be in place before you can start fining people? A little background-I came into a board who was not really enforcing anything. All of a sudden they want to start enforcing, which is fine. However I am a little weary about tacking fines on when residents have never seen a policy.
AugustinD


Posts:3683


07/28/2020 11:08 AM  
Posted By SarahM7 on 07/28/2020 10:57 AM
All-quick question. is a fine policy/procedure Have to be in place before you can start fining people? A little background-I came into a board who was not really enforcing anything. All of a sudden they want to start enforcing, which is fine. However I am a little [wary] about tacking fines on when residents have never seen a policy.


Is this for a condominium or a community of single family, stand-alone homes? I want to check Tennessee statutes on the subject.

Also what if anything do your hoa/condo's Declaration and Bylaws say about fines?

Nationwide when a HOA/condo seeks to enforce its covenats, the courts expect "due process." This means that the HOA/condo must play fair, which in turn means significant advance notice of any fines associated with enforcement. To to otherwise is legally foolish.
AugustinD


Posts:3683


07/28/2020 11:09 AM  
Also if this is a Tennessee condo was it established before Jan 1, 2009?
SarahM7
(Tennessee)

Posts:4


07/28/2020 11:15 AM  
It actually doesn’t say anything about fines, just the restrictions! This is for a 100 unit HOA. It was built in November 2010. So I guess I am wondering if a warning letter is the advance notice and that is all we need? As an owner, I would want to be notified of the policy, since it would be brand new, but if it is not illegal to not notify them of the new policy, then I suppose I will follow the boards expectations.
AugustinD


Posts:3683


07/28/2020 11:37 AM  
Posted By SarahM7 on 07/28/2020 11:15 AM
As an owner, I would want to be notified of the policy, since it would be brand new, but if it is not illegal to not notify them of the new policy, then I suppose I will follow the boards expectations.
If the owner takes the HOA to court because of a failure to give people advance notice of the fine schedule, I expect the owner will win. This is why I call a failure to give advance notice "illegal." To be blunt: It is dumb and unfair to do what your Board proposes. You are correct to be concerned.

Try to get the board to get the advice of a HOA attorney on this point.

This site indicates imposing fines is lawful in Tennessee: https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%209HOA.pdf

In some states, for fines to be lawful, among other things the Declaration or Bylaws have to be clear that fines are allowed. So far I do not think Tennessee is one of these states.
JohnC46
(South Carolina)

Posts:9678


07/28/2020 11:40 AM  
We mailed out our fining schedule just after we set it. Our basic fine is $25.00 and it doubles per repeat violation but this can be tricky.

Example 1: A car parked overnight on the street is a $25.00 fine. Left on the street two nights in a row, the fine for the 2nd night $50.00. They now owe a total of $75.00.

A repeat violation, regardless of time between violations is a repeat violation and doubles the fine.

Example 2: A car parked overnight on the street is a $25.00 fine. Left on the street overnight again say a week later, the fine for the 2nd night is $50.00. They now owe a total of $75.00.

We have given people great leeway before we fine. They are sent a letter explaining the violation and that fines will commence if not corrected. We do not want fine money. We want the violation cured ASAP.

We have one owner we are fining monthly (the only one we are fining) for a non-approved structure in their backyard. The structure is such that had he requested permission to build such, we would have denied it. This owner is also far behind in his dues so basically we consider him as a dead beat. We have filed a lien on him with the threat of foreclosure.
SarahM7
(Tennessee)

Posts:4


07/28/2020 11:59 AM  
Thanks! My next person is the attorney, unfortunately this board seems to be more after the money than people correcting the fine. The problem is, they hired us and immediately just thought they could throw whatever fine they wanted out there, even without giving notice “this guy has had a shed for two years, fine him”. We became the management in October. After almost every week of asking them to agree on a fine policy (and I even put in every email with the inspection report to please approve the fine policy so I could began fining some of the repeat offenders) They ignored that until March. When they finally agreed on the policy and it was sent out in early April, the board started talking about what fines were added since October. As a manager, ethically, I feel it is wrong. The owners didn’t have an active board going after violations for YEARS before us. While I understand all owners have constructive notice of the deed restrictions, bylaws etc and are expected to know what they are getting themselves into when they move into an HOA…some are elderly, some cannot read English, which is why I feel the more communication the better. I am really hoping a lawyer says it’s not legal without the policy, unfortunately no matter how wrong it is in my eyes as a professional, they will only listen if it comes from the lawyer.
SarahM7
(Tennessee)

Posts:4


07/28/2020 12:04 PM  
I did mail it, within a week after they finally approved. My problem is, they want to know how many fines have been added since October. Unfortunately, I have only been giving warning letter after warning letter because they failed to approve the fine policy the lawyer actually recommended. And just to be clear, I send an inspection report each month, and each time I sent that, I did discuss int he email to let me know when they approve the fine policy so I can began fining.

I should also add, he wants to fine every two weeks, so I walk the property every two weeks (sometimes drive). So that in itself can become messy, As he only wants to give four days to let owners remedy things, such as a boat in the driveway (which is not as unreasonable) but by the time I do the walk, get the inspection report together and send all of the letters, its almost impossible to give them four days unless I hand deliver the notice. Which brings me to my next point if anyone is a manager, or any of the board members have a stellar property manage, do you have any good templates for inspection reports? Currently I just put it into a numbers spreadsheet one by one and what I don’t put on it from the following month it is presumed to fall off...
AugustinD


Posts:3683


07/28/2020 12:12 PM  
Posted By SarahM7 on 07/28/2020 11:59 AM
The owners didn’t have an active board going after violations for YEARS before us.
As it sounds like you may be aware, this presents a whole other legal problem: Are some of the covenants technically now legally "abandoned" because of the lack of enforcement and open and notorious violation of the covenants for years?

In situations like this, I would advise HOA boards to go ahead and try to enforce the covenants. When a HOA member hires an attorney to argue that, say, certain covenants are abandoned, then have more discussions.
GenoS
(Florida)

Posts:3925


07/28/2020 1:59 PM  
Posted By SarahM7 on 07/28/2020 11:59 AM
... unfortunately this board seems to be more after the money than people correcting the fine.

That's not a good place to be starting from. The purpose of fines is to gain compliance, not to dish out punishment or raise revenue.
TimB4
(Virginia)

Posts:16850


07/28/2020 2:49 PM  
Unless it's a hazard, we give 30 days to correct with the initial warning.

We don't inspect everyday (everyone has a day job).


Except for our once a year inspection (that we give notice about) we don't go looking for violations. However, we will respond if someone reports a potential violation.



During the inspection, we allow time for large ticket item. For example: roof replacements need to be done within the next year or the issue receives same attention as a 30 day violation.
BenA2
(Texas)

Posts:758


07/28/2020 2:58 PM  
Not all HOAs have the authority to fine. If your CC&Rs don't give you the authority you probably can't do it without changing the CC&Rs. I would definitely check with an attorney before starting.
TimB4
(Virginia)

Posts:16850


07/28/2020 9:17 PM  
Typically, CC&Rs (covenants), specify that violations will be resolved through the courts.


In Virginia, there was a court case in VA which stated that the Board exceeded their authority when they imposed fines.

This case would be Farran, et al. v. Olde Belhaven Towne Owners Association

Such a ruling was supported by: Shadowood Condominium Association vs Fairfax County Redevelopment and housing authority

With the basis being:
Unit Owners Association of Buildamerica-1, A Condominium v. Harry F. Gillman


This is why many said to check with your attorney and read your governing documents.


Here is a link to a thread within this forum that also has links to previously posted court opinion on the farran case.

Subject: Examples of HOAs that lose court battles
MarshallT
(New York)

Posts:85


07/30/2020 5:58 AM  
Sorry you're in this tricky spot. If the fine schedule was available to residents and the board just didn't enforce rules, then there's nothing that prevents them from enforcing them now. However I would not advise issuing fines for infractions from years ago if there wasn't a schedule available until recently. If an issue goes to court, the homeowner will likely win.

The board may also need to be reminded that fines are about correcting unwanted or unsanctioned behaviours, not about making money.
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