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Dear Poliakoff,
You recently talked about condominium fines. So did I understand correctly? In a condominium, the maximum fine is $100 per violation, $1,000 maximum for a continuing violation, and no liens are allowed on the property. So basically violation, fines and therefore the rules of a condo are unenforceable and mean nothing if someone just wants to blow up the council as well as their neighbors.
Signed, BH
Dear Poliakoff,
The aggregate fine for a continued violation of the rules and documents for a single violation is $1,000 by state law. But then what? The violator pays their $1,000 and can pursue the violation without penalties or future consequences other than not being able to use the common areas “for a reasonable time?”
Signed, NG
Dear BH and NG,
Your questions are directly related, so I wanted to answer them together. BH, while you have the specific limits correct, but I think you’re looking at the rest too narrowly. And NG, paying a fine does not excuse the behavior.
It is true that, in a condominium, fines are limited to $100 per violation, up to $1,000 for a continuous violation, without the possibility of a lien on the unit for non-payment of the fine. But this does not mean at all that the fine is not collectible, it just means that only one collection tool (lien and foreclosure) is not available. The association can always sue the owner in Small Claims Court to collect a fine – we have done this on several occasions for clients. It could cost thousands in legal fees to go through the small claims process, and a judge might not reimburse 100% of those costs to the association if it wins, so it is possible that the lawsuit for the fine be lost. However, this will be a major inconvenience to the owner and they are unlikely to avoid the fine entirely; and if the association is willing to show it’s serious about collecting fines, it could make owners think twice about violations in the future. So even without a lien or foreclosure as a collection tool, I think it’s ultimately important for condos to enforce their fines. Furthermore, as NG notes, in the event of non-payment of a fine for more than 90 days, the association may suspend the right to use the common elements of this owner or resident until full payment of the fine. fine. It is therefore an additional motivational tool to get owners to pay.
Above all, the fact that a fine is imposed, whether it is paid or not; or the fact that a suspension is imposed; does not in any way mean that the owner must not respect the violated rule. Even outside of fines and suspensions, the association still has the option of taking the owner to court (sometimes after participating in arbitration or sending a request for mandatory mediation) and asking a judge to issue a court order. prohibiting the behavior. This court order would then be enforceable, and a judge could even hold a landlord in contempt for continuing to violate the terms or rules. The main obstacle I find for associations pursuing violations in court is the cost of enforcement, which can be considerable; but the association is entitled to recover much of its legal costs if it prevails in a lawsuit, and that is ultimately only part of an association’s business – enforcing rules is part of the duties of the association, and there are only a limited number of enforcement tools available.
Thus, the limitations on fines do not condemn a syndicate of co-ownership to ignore its offenders. Fines are only one piece of the puzzle, and the association should consider using all available tools to curb bad behavior.
Note that, for those who live in communities governed by HOAs, while there is also a $100/$1,000 limit in HOA law, these limits only apply if the governing documents do not authorize upper (or zero) limits. So you will sometimes see an HOA where the fine is well over $100 and the overall fine is infinite. I will say that I would be very skeptical of a judge approving a huge HOA fine ($50,000 or $100,000, for example), but it gives the HOA even more leeway. And, because fines of $1,000 or more in an HOA can be subject to lien and foreclosure, it gives HOAs an additional and more effective collection tool.
Ryan Poliakoff, Partner at Backer Aboud Poliakoff & Foelster, LLP, is a Certified Specialist in Condominium and Planned Development Law. This column is dedicated to the memory of Gary Poliakoff, a pioneer in the community association legal industry, tireless advocate and author of treatises, books and hundreds of articles. Ryan Poliakoff and Gary Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Send your questions to [email protected]. Please be sure to include your location.
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