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IS THAT HOMEOWNERS’ ASSOCIATION FINE VALID?
By: David Berman, Esq. of Barry Miller Law, Offices Orlando.
Under Florida law, a homeowner is entitled to at least fourteen (14) days’ notice before a fine or suspension may be imposed by the board of administration of an homeowners’ association. § 720.305(2)(b), Fla. Stat.
In the case of Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc., 42 Fla. L. Weekly D1158 (Fla. 4th DCA 2017), a homeowner habitually received and ignored notices of violations of maintenance requirements as to his roof, driveway, or fencing. The homeowner would never respond to the HOA’s notices. Finally, the HOA sent a certified letter giving notice of a hearing before the HOA’s fine committee, which would take place in 13 days.
Of course, the homeowner ignored this HOA notice like all the previous notices sent by the HOA. At the hearing, the HOA imposed fines of $25 per day against the homeowner’s property for each of three violations. The HOA sent another letter advising the homeowner of its intention to record a lien of $8,135, representing accumulated fines and court costs. The HOA then filed a complaint for foreclosure and for money damages.
Although the court denied the HOA’s claim for foreclosure, the court awarded the HOA $7,500 under the money damages claim, on the basis that “the equities” lay in favor of the HOA.
The homeowner appealed the court’s decision, and was ultimately victorious. On appeal, the HOA argued that its 13-day notice constituted “substantial compliance” sufficient to permit it to impose fines. The Fourth District Court considered this in light of the language of § 720.305(2)(b), Fla. Stat., which provides that “[a] fine or suspension may not be imposed by the board of administration without at least 14 days’ notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee…”
The district court cited Florida Supreme Court rulings that liens such as mechanics’ liens are “purely creatures of statute,” requiring strict compliance to be enforceable, and that the language around the 14-day requirement lacked any ambiguity. Therefore the district court found proper notice has to be given by an HOA in “strict compliance” with the statutory requirements to perfect its entitlement to a lien. The district court reversed the lower court’s decision, and remanded the case for entry of final judgment in favor of the homeowner.
In other contexts, a procedural irregularity regarding notice that does not injure or harm the complaining party might not result in setting aside a claim. That is to say, documents and notice requirements are held to two varying standards in the State of Florida. Substantial compliance (such as the Florida Mortgage-Payoff Statute) require only that the person comply substantially with the terms of the Statute for the underlying action to be valid. This differs from statutory language requiring strict compliance (such as service of process statues) which requires that the statutes’ mandates be followed, without variation, and to the letter of the law, for the action to be valid. In the event someone fails to strictly comply with an obligation in a statute, their entire action, notice, or contract in some cases, may be annulled, invalidated, or terminated due to a failure to comply with applicable statutory mandates. For example, the 3-day notice as required by § 83.56, Fla. Stat., requires strict compliance. Courts will not uphold an eviction that does not strictly comply with this notice provision.
In regards to HOA fines, generally, notice provisions of a statute should be applied in a way to further the main purpose of those requirements; that is, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections and defenses at a hearing. While the “equities” in a case may favor the HOA, nonetheless an HOA is required to strictly comply with the dictates of § 720.305(2)(b), Fla. Stat., to perfect its ability to impose and collect fines.
Barry Miller Law is familiar with all aspects of Homeowners and Condominium Association Law. If you, or someone you know, has legal questions concerning real estate, contact Barry Miller Law for assistance at 407-423-1700 or email us at [email protected] for a free consultation.
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