Estate and Succession Planning
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Back in Part 1 of this series, we noted that subtle distinctions exist between the rules regulating condominiums versus rules regulating homeowner’s associations. And, in keeping with that subtly, much of what has been discussed in Parts 2, 3, and 4, of this series is equally applicable to condo and homeowner’s associations. Here, however, it is important to note a few of those subtle distinctions. These are the differences between the laws applicable to condominium law and homeowner’s association law when it comes to collecting past due assessments and other fees, fines, and penalties.
As it pertains to past due assessments, both a condo association and a homeowner’s association have the right to file a claim of lien for assessments that have remain unpaid.[1] The more significant distinction arises with respect to fines and penalties – specifically, whether, if those fines and penalties remained unpaid, they may become liens against an association member’s property.
In the context of a homeowner’s association, the answer is, yes, an unpaid fine or penalty may become a lien against an association member’s property. Pursuant to Florida Statutes, Section 720.305, an association can levy reasonable fines for failure to comply with the association’s rules. The fines may continue for each day that the violation continues. The amount of the fine is limited to a maximum of $1,000.00 unless a different maximum is specified in the governing documents. The amount of the fine dictates whether the fine, if it remains unpaid, can become a lien against the property. To be a lien, the fine must be equal to or exceed $1,000.00.[2]
In the context of a condominium association, alternatively, fines cannot become liens. Section 718.303 permits a condominium association to levy fines. That section, however, specifically states that a “fine may not become a lien against a unit.”[3] As a further distinction, whereas the laws applicable to operations of homeowner’s associations permit fines in excess of $1,000.00, the laws applicable to condominium association operation limit the fines to $1,000.00 as a maximum.
This distinction is applicable to the members/unit owners of homeowner’s associations and condominium associations – in the context of knowing the extent of applicable condo and HOA fees to which they can be subject. The distinction, however, is likely more applicable to the board members who operate the condo or homeowner’s associations – in the context of understanding what tools they have available to try to collect any outstanding amounts due. Board members tend to presume that their association has the right to file a claim of lien for any outstanding unpaid amount – be it an outstanding fine, assessment, or otherwise. But, as noted above, that is clearly not the case. Thus, in determining the most appropriate action in dealing with a unit owner who refuses to comply with the rules of declaration, the board members of a homeowner’s association may be more apt to pursue fines or penalties as they can become a lien. Conversely, if the board of a condo association is dealing with a non-compliant unit owner, the condo board would be wise to consider all of its options prior to imposing financial fines – as they can be difficult to ultimately collect.
An alternative enforcement tool available to both condominium and homeowner’s associations is the ability to restrict a non-compliant owner’s use of the common areas during the period of non-compliance. In addition to granting the ability to levy fines, both Chapter 718 and Chapter 720 of the Florida Statutes (regulating condominium and homeowner association operation, respectively) allow the associations’ boards to recommend the suspension of the right of the non-compliant owner to use the common areas.[4] There are limitations, however, on the extent of the suspension.[5] For example, neither a condo association nor a homeowner association can suspend the right of an owner to use the ingress or egress roadways or otherwise forbid the means of access to an individual’s unit or home.
Whether it is a fine or suspension being imposed, it is important to note that a board is allowed only to recommend such a penalty. A fine or suspension can be imposed as a unit owner only after the delinquent homeowner has been given an opportunity to be heard by a committee specifically organized to confirm or reject the fine or suspension.[6]
These distinctions are subtle. But, they can have major impacts on board decision making. All board members should be aware of the type of association – be it a condo association or homeowner’s association – over which they have control and the restrictions set forth in the Florida Statutes as to the tools available to try to bring a non-compliant owner into compliance.
About the Authors:
Peter M. Dunbar is the chair of Dean Mead’s Government Relations and Lobbying Team. His practice focuses on governmental, administrative, and real property law. Drawing on a distinguished background of public service, he represents and advocates on behalf of a variety of private and public interests before the Florida Legislature and the Executive Branch departments and agencies of Florida state government. Currently, Mr. Dunbar serves on the inaugural committee for the Condominium and Planned Development Law Certification for The Florida Bar. He may be reached at pdunbar@www.deanmead.com.
Brian M. Stephens is an associate in Dean Mead’s Viera/Melbourne office. He represents businesses and developers in various aspects of commercial and residential real estate, leasing, financing, land use, title claims, growth management, community development and association management. He may be reached at bstephens@www.deanmead.com.
[1] The Law of Florida Homeowners Associations, Peter M. Dunbar, Esq. and Charles F. Dudley, Esq., 10th Edition pgs 67-68; See also, The Condominium Concept, Peter M. Dunbar, Esq., 14th Edition pg 138.
[2] Fla. Stat. Ann. § 720.305 (West)
[3] Fla. Stat. Ann. § 718.303 (West)
[4] Fla. Stat. Ann. § 718.303(3)(a) (West); Fla. Stat. Ann. § 720.305(2)(a) (West)
[5] Id.
[6] Id.
