Question: Our governing documents require that owners use gas grills, temporary pools, and patio sets in their backyards and that they not use them in their driveways. For years, there has been one owner that continually sets up shop in their driveway at the beginning of each summer, complete with a patio set, a grill and a blow-up pool.
Never on their back patio, because they like to congregate with the other neighbors! Not only is it unsightly for them to have an outdoor kitchen in the middle of their driveway, but it also violates the rules.
Last year, we started fining them for each week that the grill and patio set were out in violation of the documents. Not a lot, but $25 per week. It still didn’t deter them, and they now have a balance on their account. We have pictures to document each week it was out.
As the Board, were we within our rights to fine them? Can we increase the fines?
YES, as a Board, you are certainly within your rights to impose enforcement assessments (or fine) an owner who is violating rules or governing documents, provided that you comply with the enforcement provisions of the statutes. It sounds like you are on the right path—your Board has firm documentation of all the weeks that these owners had the outdoor furniture/grill in their driveway.
The statutes allow you to impose reasonable enforcement assessments for violations. However, how did you notify these owners of violations? Both R.C. 5311 (condo) and R.C. 5312 (HOA) require that the association do the following BEFORE assessing the owner with a fine for violating:
1. Send a letter to the owner that contains a) A description of the violation; b) the amount of proposed fine/assessment and frequency; c) statement that owner has a right to a hearing to contest the proposed charge; d) the manner in which to request a hearing (owner must deliver a hearing request to board within 10 days of receipt of letter); and e) a reasonable date by which the owner must cure a continuing violation to avoid the proposed charge or assessment, if such an opportunity is available.
2. If the owner requests a hearing within 10 days of the receipt of the letter, then the Board must notify the owner of the date/time/location of the hearing at least 7 days in advance of the hearing.
3. The Board cannot impose a fine until the hearing has been held, if the owner requested a hearing properly.
4. After the hearing, the Board must send a written notice of the decision as to whether to fine or not to the owner within 30 days.
So what happens if you already fined the owners but you did not follow the procedure required by the law?
Simple Answer: take the fines off the account. But, if the violations were recent enough in time, you can cure the issue by sending the proper letter, or by having our office send the proper letter, for the most recent violation.
What about violations that occurred last year?
Because the Association did not follow the proper process, it would be improper to assess fines for the whole last summer without ever giving the opportunity for a hearing. Start fresh this year.
Also, if the $25 is not a deterrent, try upping the fine to make these owners stop.
While a Court ultimately determines reasonableness of an enforcement assessment, you are probably okay to up the fines, to, let’s say, $100 per week, to try to get these owners to stop their violations. Once the enforcement assessments are properly placed, we can start collection on their balance, including filing a lien, foreclosure, or small claims action.
If your Association has any questions with regard to proper enforcement procedures, please do not hesitate to contact us.