Covenant Enforcement Options Violations and Fining

The thorniest and most frustrating aspect of community associationliving involves ensuring owners’ compliance with the rules as setforth in the Governing Documents. Recalcitrant owners often makea mission to shirk compliance based upon their own misbeliefs as totheir association related obligations. Whether it be painting theirhouse whatever color they so choose, the improper parking ofcommercial vehicles overnight, using their property for AirBNB/VRBO unauthorized purposes, excessively loud noises serving as anuisance to other residents, the list goes on as involving scenarios ofnon-compliance. The evaluation as to how to proceed starts andsometimes stops with how the Governing Documents of yourcommunity read. Clear strong language prohibiting the complainedof activity is crucial. Once established, how to deal with non-complianceis a function of many factors. Fines are a powerful tool at anassociation’s disposal by making folks suffer financial consequencesfor their misbehavior. However, the fine process has its limitations.First, an association must have an established “fine committee” inorder to be authorized to impose a fine. Without an establishedfunctioning fine committee, regardless of the seriousness of theviolation, no fine may be imposed. Fines also may not exceed$100.00 per violation and no more than $1,000.00 in the aggregatefor that same reoccurring violative activity. If more than one categoryof violation is taking place, multiple fines of up to $1,000.00 foreach set of violations can be imposed. Beyond fines, homeownersassociations also can institute legal action against an owner fornon-compliance. However, before such a lawsuit commences,pre-suit statutory mediation must be offered to the violating homeowner.If the homeowner refuses to participate in mediation or themediation occurs but no resolution is reached, the homeownersassociation could proceed with legal action typically seeking “injunctiverelief”. Injunctive relief is a request that a Court issue an Ordermandating certain behavior cease and/or compelling the violatingowner rectify previously unauthorized activity, such as forcing ahomeowner to re-paint their house a permitted color. There arelimited exceptions in cases of “emergencies” when a homeownersassociation could bypass the pre-suit statutory mediation process.For condominium associations no such pre-suit statutory mediationprocess exists, however the court system is not the initial venue tobring a covenant enforcement action. Instead an arbitration actionis to be brought in most circumstances with Florida’s Division ofCondominiums, Timeshares and Mobile Homes. Arbitration is aprocess similar but with many differences from traditional litigation.If unhappy with the outcome of an arbitration proceeding thenCircuit Court litigation could be pursued. Litigations and arbitrationstend to be an expensive and potentially lengthy processes, but necessary at times. The prevailing party in these proceedings is usually awarded its attorneys fees and costs. Thus, if the associationhas a strong supportable legal position based upon the provisions of its Governing Documents in relation to the misdeeds ofan owner, the association would obtain an order compelling owner compliance plus a monetary award of attorneys fees and costsincurred as part of those efforts.