Companion bills in FL House and Senate remove statutory provisions enabling homeowner associations to enforce covenants and restrictions with fines. If enacted, it would be a significant first step at reining in HOA abuse of power.
By Deborah Goonan, Independent American Communities deborahgoonan@gmail.com
On IAC, I have been writing about HOA problems and abuses since 2015. And, after seven years a clear pattern has become apparent. It’s abundantly clear that the majority of HOA lawsuits begin when a property owner disputes one or more fines imposed by their HOA.
Some of the more egregious examples of HOA abuse of their statutory rights to fine have been the topic of dozens of blogs here on IAC. Here are a few highlights.
Flags, flowerpots, and little white crosses
In one highly publicized Florida dispute, townhouse owner and retired Veteran, Larry Murphree, was repeatedly fined for displaying a small American flag in a flower pot on the front porch of his condominium townhouse in the Sweetwater community. That innocuous and patriotic gesture spawned a 12-year legal battle with his HOA, which Murphree eventually ’won’ in 2021. But it wasn’t exactly a decisive victory that held the developer-controlled Sweetwater HOA accountable. The court awarded the homeowner — who has since moved out of the community where the dispute started — a measly $1,223. (See this post on Florida’s CCFJ website for the source article.)
Also in Florida, at The Villages, a world-famous large scale HOA-governed community, Wayne and Bonnie Anderson amassed $4,800 in fines in 2019 and 2020, imposed by their sub-HOA, the Village of Tamarind. Their violation: displaying a small white cross on their property. The HOA industry continues to push the envelope by violating basic First Amendment rights, including one’s right to display religious symbols in their own front yard.
But the abuse of the HOA power to fine unit owners is not limited to the Sunshine State.
Condo owner fined for alleged ’obnoxious’ behavior
For example, an Illinois condo owner, Michael Boucher, a former board member, was fined $500 for his alleged ’obnoxious’ behavior. The unit owner attempted to defend himself before a condominium hearing committee, where the HOA provided no evidence of his ’obnoxious’ behavior, but fined him anyway.
After years of litigation, an Appellate Court eventually ruled in the owner’s favor, after his legal counsel successfully argued that the condo board of 111 East Chestnut Condominium Association provided no due process in its hearing procedure, and that the condo board was likely retaliating against his client for vocally criticizing the board’s management decisions. The condo association later settled that case for $125,000, a mere fraction of the owner’s actual accumulated losses during the protracted legal battle.
Parking and landscape violations lead to expensive HOA lawsuits
In 2019, Indiana was the setting for another outrageous case that began with HOA fines. In one case, the Lakes at Hayden Run HOA fined small business owner and homeowner Jenn Kampmeier for parking her catering van in her driveway and running her off-site mobile catering business out of her home. Although the owner agreed to stop parking her van in the driveway, the HOA sued her anyway, and, incredibly, won in court. That left Kampmeier on the hook for $45,000, to include the HOA’s attorney fees and legal costs. The family eventually sold and moved out of the community.
In an affluent planned community of older adults in Olathe, Kansas, The Avignon Villas HOA sued homeowner Jim Hildenbrand over an architectural violation: his installation of a 12 to 18-inch retaining wall around some foundation plant beds surrounding his home. (Ironically, Hildrenbrand is a retired landscape architecture consultant.) The HOA fined, then sued the homeowner, who then countersued the HOA. As reported by the Kansas City Star in 2016, the legal battle’s cost ballooned to more than $400,000. In 2019, I opined here on IAC about the Wall Street Journal’s report that the cost of the legal fight had grown to $1 million dollars.
HOAs have doubled down on fines in the midst of COVID pandemic, historic droughts, and state efforts to tackle effects of climate change
More recently, in 2020, at the height of COVID pandemic lockdowns and stay at home orders, HOAs doubled down on enforcement of mostly aesthetic rules and restrictions, fining owners for minor offenses. Those include fining a Conroe, Texas family for allowing their children to decorate their home’s windows with their artwork, citing Peoria, Arizona, homeowners after their children created chalk art in their driveway, and prohibiting a Venice, FL, homeowner’s legal right to hang their laundry on a clothesline.
HOAs have even abused their power to fine property owners who were trying to do the right thing. For example, during the past several years, state Legislators in California were prompted to enact laws prohibiting an HOA from fining owners who were not watering their lawns in the midst of an historic drought.
Several other states, including Utah and Colorado, enacted laws that stop an HOA from enforcing restrictions that prohibit or prevent homeowners from installing solar panels on their properties. Similar legislation is in the works in states across the U.S. for these issues, as well as requiring HOAs to allow electric car charging stations, and installation of drought tolerant and native plant landscapes.
As you can see, HOAs have a very strong tendency to enact and enforce unpopular restrictions and rules against homeowners, regardless of where they fall on the political spectrum. And most HOAs rely primarily upon fines as a way to punish or bully property owners into compliance with their onerous, vague, and arbitrary rules.
In HOAville USA, Selective enforcement seems to be the norm
Worse yet, many IAC readers write to me, complaining that their HOA engages in selective enforcement. HOA boards, often aided by management companies and attorneys, tend to direct their powers of enforcement to owners they dislike. The outspoken owners. The owners who question the rules. The owners who ask to review financial records. The former board members with dissenting opinions about how to manage the community.
A typical defensive reaction to being fined by one’s HOA: patrolling the community snapping photos of dozens of other HOA rule violations by one’s neighbors, including HOA board members. In many cases, the HOA isn’t even adequately maintaining the common grounds or shared spaces in multifamily buildings. But pointing out the obvious irony almost never changes the HOA board’s stance on YOUR violation.
To many inexperienced board members, HOA fines are mistakenly perceived as an easy way to get homeowners to comply with restrictions and rules, a way to avoid taking the matter to court. In fact, HOA fines tend to breed anger and distrust of property owners in the community.
Some homeowners will begrudgingly pay the fine. Others will stand up and fight the HOA, resulting in expensive HOA lawsuits, at costs way out of proportion to relatively minor rule violations.
But what about the truly hard cases? Well, typically, fines of a few hundred or a few thousand dollars do little to change the behavior of the truly difficult homeowner who is responsible for serious health, safety, or nuisance violations.
The owner with the barking or vicious dog, the overgrown landscape with a three-foot high lawn, and the condo or homeowner that earns high revenue from renting to rowdy travelers through Airbnb or VRBO will simply ignore fines, and the HOA’s effort to collect them. In these cases, an HOA finds the only chance of stopping the bad behavior is to take the property owner to court.
In short, even with the best of intentions, HOA fines offer very minimal benefit to homeowners and residents. On the contrary, as noted earlier in this post, the power to fine is often abused. The only true winner in HOA lawsuits that unfold from disputed fines are the HOA attorneys. In most cases, their legal fees get paid, no matter who wins.
That’s why IAC strongly supports state legislation that revokes the power of HOA boards to impose monetary fines against homeowners.
Legislative summaries (Florida)
Bills explicitly revoking the power to fine, for HOAs governing planned communities
SB 1364 – Introduced by Sen. Torres
Track SB 1364 here. See also identical bill HB 6103, filed by Rep. Arrington
This legislative proposal is near the top of every HOA homeowner (consumer) advocate’s wish list: A bill that would essentially revoke the authority of homeowners associations to levy fines against owners. Currently, state laws in Florida, and across the U.S., allow HOAs to impose fines as a supposed remedy for violations of covenants, restrictions, rules or regulations.
In Florida, these companion bills would amend statute 720, pertaining to planned communities. It’s important to note that neither SB 1364 or HB 6103 would revoke fining authority for condominium or cooperative associations in the Sunshine State, at least not as the bill is currently written. If the bill makes progress, it theoretically could be amended to include similar removal of authorities for condominium and cooperative associations.
Also, HOA boards would still retain some limited rights to enforce covenants, restrictions, rules or regulations by filing a legal action against a homeowner, or suspending the owner’s (or tenant’s or guest’s) use of common amenities, following notice and an opportunity to attend a hearing.
Bills that would attempt to prevent HOA fines from becoming liens against the owner’s property
Admittedly, HOA industry lobbies, particularly Community Associations Institute (CAI), will vehemently oppose any attempt to revoke the powers of HOA board members. After all, the more power an HOA attorney’s client has to enforce Covenants, Restrictions, and Rules, the more likely it is that the HOA will prevail in lawsuits. That translates into increased revenue for HOA attorneys, as well as management agents who hunt down violations in the first place. (Either by driving or walking the community with smart phone camera in hand or by responding to neighbors who snitch on one another.)
If state legislators won’t consider removing powers of HOA boards to fine, then they might consider amending state law to prohibit HOA fines from turning into property liens. In other words, it might be easier to sell legislators on an amendment to prevent an owner from losing their home at the HOA’s foreclosure auction, due to an unpaid fine of $1,000 or more.
Related bills HB 1039 and SB 1362 (Also filed by Arrington and Torres) are, in effect, watered down consolation prizes for homeowner-consumer advocates. These alternative bills would delete a small phrase in HOA statute that allows fines over $1,000 to become a lien against a unit owner’s property.
Be aware that the Florida Legislature has added and subtracted this more-than-$1,000-fine-can-become-a-lien loophole to HOA statute several times in the past several years. See the following screenshot for reference to the section of the HOA Statute pertaining to fines, as most recently amended in 2018:
Note the sentence, “A fine of less than $1,000 may not become a lien against a parcel.”
As it stands, combine this small phrase allowing $1,000 fines to become a lien with the notorious priority of payment scheme — where an owner’s regular assessment payments can be legally applied to attorney fees and late fees before the actual assessment — and Florida HOA Statute has the perfect recipe for abuse.
In several previous legislative sessions, committee members in the House and Senate have attempted to strike (remove) the phrase ”of less than $1,000” from the statute. That would change the sentence to read, “A fine may not become a lien against a parcel.” Obviously, this would change the meaning of the current draconian provision entirely! And that’s exactly what this year’s HB 1039 and SB 1364 attempt to do.
Suggestions: How FL Legislators could improve bill proposals regarding HOA fines
First, SB 1364 and HB 6103 could be amended to revoke the board’s power to fine owners of property in condominium and cooperative community associations, as well as homeowners associations governing planned communities.
Second, both bills could strengthen homeowner-consumer protections by adding an affirmative provision explicitly prohibiting all three types of community associations (HOAs, condominium and co-op associations) from re-enabling HOA boards with either future statutory authority or overriding contractual (CC&Rs) amendments to impose monetary fines of any kind.
If advocates for consumer protections must settle for the weaker proposals (SB 1362 and HB 1039), then it is even more important to add language to the statute that clearly prohibits fines in any amount from becoming a property lien. In addition, Florida statute’s payment provisions must clarify that full or partial payment of regular or special assessments can never be diverted to cover unpaid fines or its related late fees, thus triggering an assessment delinquency that begins the HOA collections-lien-foreclosure process.
Bottom line
The governing body of HOA communities of all types — including planned communities, condominiums, and cooperatives — already have broad powers to enforce declarations of covenants, restrictions, rules and regulations through a variety of civil actions. HOA boards also have the authority to restrict or suspend access to certain common areas and amenities in the community.
State legislation currently enables HOA boards to impose monetary fines for a variety of minor, mainly aesthetic violations. Although the statute requires an internal hearing process, in practice, HOA hearings by co-owners and neighbors, who are appointed by the board, lacks truly impartial due process. As a result, HOA fines are highly likely to create an adversarial relationship between property owners and board members. A significant percentage of these disputes wind up in expensive and time-consuming litigation, impacting the owner in violation of rules, the Association and all of its property owners.
In the case of serious community health, safety, and nuisance violations that adversely impact co-owners and the association, HOA fines are practically ineffective at bringing the owner into compliance. The HOA is almost always forced to sue the property owner for real damages that far exceed limitations on fines, currently capped at $1,000. A variety of legal remedies, from mediation and arbitration to small claims and civil court, provide property owners and HOAs with due process by impartial third parties, with opportunity to appeal to a higher court.
Not only are HOA fines abrasive and relatively ineffective, but they also tend to be selectively enforced, and abused as a weapon to punish unpopular or disliked co-owners.
Florida legislators should support SB 1364 and HB 6103, and fully revoke and prohibit HOA boards from imposing monetary fines as an enforcement remedy against property owners. At a bare minimum, legislators must definitively and permanently bar any HOA fine from becoming a lien against an owner’s property.
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