Every condominium association’s Declaration of Condominium and Bylaws incorporate rules and regulations that homeowners (and their tenants and guests) are obligated to follow. Further, most association Governing Documents allow for Boards of Directors to establish additional reasonable rules and regulations (through a Board vote at a properly called meeting) so long as they do not conflict with anything in the Governing Documents. The Governing Documents are often very long, a bore to read, and confusing for many homeowners. Add to that the variety of different rules the Board adopts and it is not surprising that most homeowners don’t know all the rules they are supposed to follow.
While there is no specific Florida Statute that outlines how rules and regulations adopted by the Board must be communicated, I strongly recommend that each association consider a method for routinely and thoroughly communicating the rules to homeowners and other residents. My preferred method of accomplishing this is by drafting a comprehensive Rules and Regulations document that is accompanied by a Violation Policy, outlining how violations are identified, the consequences of a violation, and the means of appealing a violation. We will go into more detail about the Violation Policy later in the post.
There are several reasons why drafting a current Rules and Regulations document with an associated Violation Policy is so important:
1. Residents are more likely to follow rules if they know them.
2. Residents are more likely to follow rules if there are consequences associated with violating them.
3. For associations that are professionally managed, the Violation Policy provides a clear outline for the management company to follow when identifying violations, sending violation letters, etc. This transfers the control of rule enforcement from the manager to the Board, which is essential as management companies often fail to customize policies such as these to each property they manage.
4. For self-managed associations, the Violation Policy provides the Board a consistent way to enforce the association’s rules, helping to avoid homeowner/ resident claims of personal bias.
The Rules and Regulations along with the Violation Policy should be (1) updated anytime a new rule is passed, (2) reviewed at least annually by the Board, (3) included on the association’s website, (4) provided to new homeowners and residents, and (4) disseminated to the homeowners and residents (via email or snail mail) at least annually but also every time a change has been made.
Components of the Violation Policy
At a minimum, the Violation Policy should include the following sections:
1. Fines Associated with Rule Violations: Often, Boards will choose to have increasing fines for multiple infractions. For example, the first violation may just be a warning, the second a $25 fine, and the third and subsequent violations a $50 fine. The fine can be determined by the number of violations of a unique rule committed by a homeowner/ resident, or by the aggregate number of total violations committed by a homeowner/ resident. It’s up to the Board. However, it is imperative that any fines issued by the Board comply with the association’s Governing Documents and the Florida Statutes. Certain Governing Documents do not allow for fines or have specific rules regarding the issuance of fines.
Florida Statute Rule Regarding Fine Amounts: According to Florida Statute 718.303(3), the Board may issue fines for violations of the association’s rule and regulations. A fine may not exceed $100 per violation; however, an additional fine up to $100 may be levied for each day a violation continues. Fines for a particular violation may not exceed $1,000 in aggregate. Florida Statute 718.303(3)(a) allows the association to suspend a resident’s common elements (i.e., amenities) use rights for a “reasonable period of time” as consequence for failing to abide by the rules and regulations.
2. Corrective Action Time Frame: If a violation requires corrective action on the part of the resident (e.g. a resident’s window shades are not an approved color so the resident will receive a fine AND must remove the shades), the Violation Policy should specify how long the resident has to correct the violation before a subsequent fine is assessed. Further, the policy should outline the action the association may take if a violation requiring corrective action continues for an extended period of time (e.g. the resident refuses to take down the shades). Florida Statute 718.303(1) allows the association to bring legal action against a homeowner or other resident for failure to comply with the rules and regulations.
3. Violation Identification Process: How a violation must be identified and documented should be detailed. These rules should be drafted to eliminate any possibility of bias against a specific homeowner/ resident as well as “he said, she said” situations. A detailed and consistently implemented violation identification process reduces the likelihood of appeal. Sometimes the Governing Documents, often for violations relating to pets or noise, will have a process pre-established; however, in most instances this is not the case and it is up to the Board to create reasonable guidelines. Here are a few recommendations:
a. For visible violations (e.g., storing unapproved items on a balcony), a violation should be captured through a clear photograph of the violation for the association’s records (the ideal way), or by written confirmation that the violation exists by TWO designated persons (i.e., the property manager and the Board). I personally recommend that only the property manager or a Board member be allowed to identify visible violations. If a homeowner/ resident notices a violation, they should inform the property manager and/ or Board member(s) for verification.
b. For noise violations (e.g., loud music, dog barking), a sound recording of the noise should be taken by a designated person (or by the complaining homeowner/ resident) for the association’s records (the ideal way). If this is not possible, written confirmation of the noise should be obtained by TWO persons (i.e., the property manager, the Board members, or residents).
4. Non-Homeowner Residents: The policy should specify how violations are handled when they are committed by non-homeowner residents (e.g., tenants, guests). It is my recommendation that the policy clarify that all non-homeowner residents are required to abide by the rules and regulations of the Association and may be assessed fines if they fail to do so. To encourage homeowners to thoughtfully select non-homeowner residents, and to encourage homeowners to inform them of the rules and regulations, the policy should specify that homeowners are ultimately responsible for any unpaid fines incurred by their non-homeowner residents.
5. Violation Appeal Process: The policy should outline the process homeowners must follow to request an appeal of a violation. This process should include whether or not non-homeowner residents are entitled to request an appeal or if requests must be made by homeowners.
Florida Statute Rule Regarding Fine Appeals: According to Florida Statute 718.303(3)(b), the association must provide homeowners 14 days written notice prior to imposing a fine during which time the homeowner may request an appeal. An Appeals Committee must be established for the purpose and no Board members may be on the committee. If the Appeals Committee does not agree with the proposed fine, the association may not impose it.
6. Violation Letter Template: To ensure consistency, the Board of Directors may wish to draft a violation letter that the property manager, administrative assistant or Board member responsible for issuing violations should use to communicate all violations.
7. Failure to Pay a Fine: The consequences for failure to pay a fine should be outlined in the policy. Per Florida Statute 718.303(3), the Association may not lien a unit if a homeowner fails to pay a fine; however, the association does have the ability to suspend a homeowner’s (and non-homeowner resident’s) common element use rights and voting rights. Further, the association may choose to use a collections agency to collect past due fines. Lastly, so long as the Governing Documents do not prohibit such action, the association may prevent the homeowner from renting their unit if past due fines have accrued.
Florida Statutes Rule Regarding the Suspension of Voting Rights and Common Elements Use Rights: Pursuant to Chapter 718.303(4) and 718.303(5), the association may suspend the voting rights and common elements use rights of any homeowner that is more than 90 days past due in any monetary obligation due to the association. These suspensions must be approved at a Board meeting and the homeowner must be notified in writing of the suspension.
Once the association has begun issuing violation letters and associated fines, the association should maintain a violation log to keep track of violations, fines, appeal status, fine due date, and date of fine payment.
I hope this information has been helpful. As always, I recommend all policies be reviewed by the association’s attorney prior to implementation.
Emily
Emily Shaw is a condominium homeowner in Tampa, Florida and a Director of VERA Property Management, a full-service community association management and consulting firm serving the Tampa Bay Area.
