You’re not the boss of me…
In Part 1 and Part 2 of this series, we learned what it means to live in a common interest community, generally, and what documents are used to establish the community – looking specifically at homeowners association controlled communities (“HOAs”). In this Part 3, we’ll consider the HOA rules – and what can happen if those rules aren’t followed.
As mentioned in Part 2, the rules of any particular HOA will vary from community to community, based on the needs of the particular community. Those rules are typically contained in the community declaration (a/k/a, the “CCR” or “Covenants and Restrictions”) and/or a document specifically entitled “Rules and Regulations.” And, the operation of the community, including the enforcement of the community rules, is supported by the collection of assessments – i.e., HOA fees.
So, what’s the cost when you, thinking that your HOA board is off its rocker, decide to not follow the rules or pay your assessments? Depending on how vigilant your HOA board is, the answer could be: much more than you think.
A HOA is not a governmental entity. You are not “breaking the law” per se when you don’t adhere to the HOA rules or pay your HOA fees. Failure to do either of those, however, can still result in serious consequences – e.g, fines, prohibitions on using the community facilities, and, ultimately, the establishment of liens on your home.
Florida Statutes Chapter 720 dictates that if a member of the association is more than ninety (90) days late on any HOA fee or other monetary obligation due to the association, then the board of directors for the association may suspend the rights of a member to use the common areas and recreational facilities until the past due funds are paid. Similarly, when a member breaks an association rule (for example, by parking on the grass if the HOA rules forbid such action), the association board may levy a fine on that member. The fine may continue for each day of the violation, provided, however, that the fine may not exceed $1,000.00 unless otherwise specified in the association’s governing documents.
Prior to being able to impose a fine or suspension, the alleged violator has a right to be heard on the issue. The hearing will be held in front of a committee appointed by the board made up of at least three (3) members who are not officers, directors, or employees of the board or significantly related to any of the same. A majority affirmative vote of this committee is required to impose the fine or suspension. Any suspension, however, cannot include a restriction of the right of ingress and egress to and from the community.
Ultimately, if the HOA fees or assessments remain unpaid long enough, the HOA may file a lien on the delinquent member’s home. Prior to filing such lien, however, the HOA must follow a certain procedure laid out in Chapter 720, Florida Statutes. To start, the HOA Board must send a so-called “45-day notice” to the delinquent member. The notice must be sent by certified mail and make a demand that all amounts due to the association be paid within forty-five (45) days. If the member fails to pay the amount due within that window, the association may then file a “claim of lien” with the appropriate recording officer in the county where the property is located. With the lien filed, the association may continue to press forward by filing a lawsuit to foreclose on the lien. Competent legal counsel must be consulted to ensure that the proper foreclosure procedures are followed.
In the end, the property owners who live in a HOA should be careful to follow all of the rules set forth by the governing documents and the HOA – including making prompt payment of all HOA fees. If you don’t like the rules, don’t ignore them. There are ways to have the rules changed. Simply ignoring the rules can prove costly.
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. Mr. Dunbar began his long career in Florida government in 1967 as a staff director in the Florida Legislature. He served as the Pasco County attorney and later served for 5 terms as a member of the Florida House of Representatives. Upon leaving the Legislature, he held the posts of General Counsel and Director of Legislative Affairs for Governor Bob Martinez and later served as the General Counsel at the Department of Financial Services. Mr. Dunbar served as Chief of Staff during the transition from the Martinez administration to the administration of Governor Lawton Chiles, and he is former Chairman and 2-term member of the Florida Ethics Commission. 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 firstname.lastname@example.org.
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 (321)259-8900 or by email at email@example.com.
 The Law of Florida Homeowners Associations, Peter M. Dunbar & Charles F. Dudley, 10th Edition 2014-2015, pg 79-80, Pineapple Press.
 Id. at 54-55.