It is safe to say that Spring has finally sprung here in Atlanta. While Atlantans are enjoying the many benefits of Spring, including warm temperatures, festivals and a bevy of blooms, I’m sure that we can all agree that Spring does have a few downsides. Pollen is one of them. And, for many community associations, the beginning of “violation season” is another. What I am referring to when I say “violation season” is the unfortunate fact that as temperatures rise and vegetation comes back to life, the gardening and lawn maintenance efforts of some owners will not keep pace with the growth of their yards’ plant life. The governing documents of most community associations require that owners maintain their property in a neat and attractive manner, and overgrown lawns, weeds and unkempt landscaping beds will constitute a violation of this requirement. Luckily, most owners eventually catch up and cure the violation, either on their own initiation or with a friendly reminder.
Inevitably, however, each season many associations will face one or more intransigent owners who, for whatever reason, refuse to take the required measures to bring their yards into compliance. For those associations whose governing documents provide them with the power to fine, fines are often the most effective enforcement tool an association has to get an owner’s attention and motivate them to correct the violation. However, whether the fines a Board levies against an owner would ultimately be collectible in court should the owner fail to correct the situation depends on many factors. One of the most important of these factors, and the one on which we most commonly see associations make mistakes when attempting to levy fines, is the requirement that the Association closely follow the fining procedure required by its governing documents prior to fining.
Although fining procedures vary between communities, generally, the fining procedure will be set forth in an association’s Declaration of Covenants or its By-laws, and will require an association send out at least one letter to the violator that 1) identifies the violation; 2) tells the violator how the violation can be corrected; 3) tells the Owner that the Association will assess fines against the violator if the violation is not corrected within a certain timeframe; 4) gives the amount of fines that will be charged; 5) gives the violator the date that the Association will begin to impose fines; and 6) gives the violator a certain time frame, usually ten or fifteen days, to request a hearing in front of the Board to contest the violation or the fines. If your association’s documents set forth such a fining procedure, you must make sure that your association’s fining letters include all information required by the fining procedure.
This fining procedure is intended to give the violating owner a right to “due process”, or in other words, the right to notice of the violation, the fines to be imposed, and the right to have a hearing before the Board to tell the Board why they do not believe they are in violation and/or why the fines should not be levied. Following the fining procedure in your association’s governing documents is extremely important, as generally a court will not enforce fines levied by an association unless all of the due process requirements have been followed to the letter by the association. In fact, even if your association’s documents do not contain a fining procedure or require that you give any prior notice of fines to a violating owner, it is a good idea for a Board to develop a fining procedure that gives the owner written notice of the violation, the fines to be imposed and an opportunity to request a hearing before the Board. This is because doing so will make the Association appear more reasonable to a judge if the association ends up in court to enforce its fines against the owner, and can thus increase the chances that the court will uphold the fines. It may also help to resolve the matter so that your association doesn’t end up in court at all, which I’m sure we can all agree is the best resolution.
To sum up, while fines can be helpful in getting owners to comply with the association’s maintenance requirements, whether fines levied by an association will hold up in court will depend upon a number of factors, including whether the association has followed proper fining procedure. For that reason, prior to fining, it’s essential to consult with your community association’s attorney to make sure that your association has the proper authority to fine (not all community associations do) and also to confirm that your Board is following all requirements set forth in your association’s governing documents for imposing fines.