Legal Affairs – Richard D. DeBoest
Q: We have seen an increase in the number of violations and the owners are urging the board to impose fines and bans. None of these owners are willing to sit on a committee that votes on fines and suspensions. Can we get a fine without a hearing? JR, Naples
A: In my opinion no. When it comes to fines and suspensions, it should be noted that the law provides exceptionally little guidance. We know from court rulings that a critical requirement is that the association must ensure due process, but it is hard to tell when you will ensure adequate due process when the code of civil procedure does not apply, the rules of evidence do not apply, and there There are no applicable administrative regulations to provide guidance.
What we do know is that the articles of association state that no fine or suspension may be imposed without giving at least 14 days’ notice and an opportunity to be heard. Some lawyers have interpreted this provision so that you can fine you without a hearing as long as you can. In other words, part of the legal community believes that a hearing is not required until the owner has requested a hearing and that a fine is automatically imposed if no request is made within 14 days.
I can understand the reasoning and, most importantly, the efficiency of this interpretation, but I don’t think it meets the requirements of the law. The next sentences of the statute provide that the role of the committee is limited to approving or rejecting the fine imposed by the board and that a fine is due and payable after a vote of the committee. It can therefore be assumed that the task of the committee is not only to determine whether there has been an infringement, but also to determine whether the amount of the fine or the length of the suspension is reasonable. If a fine or suspension could be imposed solely by the owner not requesting a hearing, there will be no confirmation from an independent body that the amount of the fine and suspension is reasonable.
In addition, the answer to the question will also depend on your specific authoritative documents. I have seen many statements and statutes that clearly require a hearing every time or clearly require warnings and other self-imposed requirements that are not included in the statutes.
Therefore, I always recommend that a) a homeowners association (HOA) conduct the hearing as to whether this is requested or not; and b) consult with his or her legal advisor whether the relevant documents contain any additional procedural requirements necessary for the imposition of a fine or suspension. At the very least, the hearing will mitigate any future due process challenge to the process and the association may argue that the committee provided the owner with a place to defend, unlike the association which argues that due process was served by the Inaction by the party, subject to a fine or suspension.
Q: We have a number of owners who haven’t paid their second quarter dues and we can’t wait to see if they’ll pay the third quarter. If they fail to pay in the third quarter, we would like to start the collection process but are sensitive to privacy concerns and discuss the debt at board meetings. Do you have any suggestions? SB, Bonita Springs
A: This is a common question and most customers are surprised with the answer. In short, the association is a creditor and is not subject to many of the collection laws that apply to collection agencies. When our company sends a debt collection letter, it is subject to federal and Florida fair debt collection laws, but many of these legal requirements do not apply to an association letter to the defaulting owner. In addition, it is strongly preferred in the statutes that all general ledgers can be viewed by members. As a result, the financial books and delinquency reports are not classified documents.
Many of our customers only refer to the defaulting owner’s address or batch number. This practice is fine, but not necessary.
There are two additional points. First, there is a relevant debt collection law in Florida that prohibits the use of delinquency lists to intimidate defaulting owners. In particular, Florida Statutes Section 559.72 provides that no person “may publish or publish individual names or lists of names of debtors, commonly known as the deadbeat list, threaten to publish or publish, or cause or cause their publication or publication for the purpose enforcement or attempting to enforce consumer debt. ”As such, this information is not classified, but should not be used or promoted to enforce payments.
Second, it should be noted that there is a very new law, effective July 1, requiring the association to send a legal notice to defaulting owners before the association can initiate collection activities that require the owner to pay legal fees and costs related would oblige with the collection. In the event of overruns, we encourage you to consult your attorneys to determine how this new requirement will affect your overruns policies and procedures.
Q: I live on a golf course and my roof and pool cage are regularly pelted by stray golf balls. When I reached out to the HOA to try to contain this potential hazard, the association told me that this was not their problem. How can I force her to help me? General Practitioners, Naples
A: Unfortunately, the most likely answer is that you are on your own. Most golf course borders have wording in the agreements that includes capitalized disclaimers informing owners that the home is on a golf course and golf balls can get into the property. These documents usually also provide relief for your property so golfers can come into your yard and look for those stray golf balls. And if the house is about 220 to 250 yards from the tee and on the right side of the hole, the association would likely reply that you should expect this when buying a house on a golf course.
Another aspect of this problem is whether your association also rules the golf course. In many communities, the HOA that governs the homes in the community is not the same body that oversees golf membership and operations. If so, the association would be more correct in its position as the HOA has no jurisdiction over golfers or the golf club in general.
Ultimately, this topic depends on the language in the specific agreements that govern your community and golf course. To determine if you are filing an appeal against the association or golf club, I recommend that you use a licensed Florida attorney to review the applicable agreements.
Richard DeBoest, Esq., Is a partner / shareholder in the law firm Goede, DeBoest & Cross, PLLC. Visit www.gadclaw.com or to ask questions on your topics for future columns, send your request to: [email protected] The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create a mandate relationship between the reader and Goede, DeBoest & Cross or one of our lawyers. Readers should not act on or dispense with the information contained in this article without first consulting an attorney if they have any questions about any of the issues addressed here. Hiring an attorney is a decision that shouldn’t be based on ads or this column alone.