Liens are Fine, but Fines are Not Liens

When owners choose to live in a community with an association, they implicitly agree to comply with all of the provisions contained in their association’s governing documents.  In those documents there are almost always restrictions on certain things such as the size and type of pets they are allowed to have, the color of paint they can use for exterior surfaces and even the type of vehicles that can be parked in their driveway.  Break one of these rules by say, parking a semi truck in their driveway, and they should expect to hear about it from their association by way of a violation notice and subsequent fine.

Once a violation has been issued and a resulting fine has been approved, the next obstacle from the association’s standpoint, especially in these challenging economic times, is how to actually collect on the fine.  The question has recently been raised as to whether an association can place a lien on an owner’s property for accrued fines as an association has the ability to do for unpaid assessments.  The simple answer to this inquiry for associations in Florida is generally, no.

Florida Statute 718.303(3), which governs condominium associations sets forth quite concisely that:

  • The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit.

Florida Statute 720.305(2) which governs homeowners associations sets forth in relevant part that:

  • The association may levy reasonable fines of up to $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may be levied for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel.

Based on these cited provisions, the only instances where a fine may be able to become a lien is when a homeowners association fine is equal to exactly $1,000 (see additional commentary below) or where a homeowners association’s governing documents specifically provide that fines can exceed $1,000 in the aggregate.  Absent such language, it would be contrary to statute for a condominium association or homeowners association in Florida to lien an owner’s property due to unpaid fines.  So, while liens (for assessments) are fine, fines (for violations) are not liens.

Daniel Wasserstein

E-mail: danw@wassersteinpa.com

561-288-3999

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12 comments on “Liens are Fine, but Fines are Not Liens

  1. Carl says:

    I purchased a home over 2 years ago in a deed restricted community. I subsequently screened my entry way and did not run it through the HOA. Fast forward to one month ago I get a notice of a violation because it was not approved. Evidently another home owner had the same enclosure and didn’t have it approved either. A thrird homeowner requested the ability to enclose and was denied so we then have to remove ours. My question is the HOA docs do not say you can’t enclose your entryway it just says any modifications have to be approved. Can they make a blanket denial without specifics in the docs?

    • Carl,

      If your community has an architectural committee the governing documents may very well provide them (or if no committee, the Board) with general authority to determine certain aspects of the community and to create specific rules and restrictions on exteriors, aesthetics and materials. For example, your governing documents likely do not indicate the color pallet for the community, but I am sure your architectural committee or Board has adopted such.

  2. Joy Ann Coll says:

    Excellent article! We have fined an absentee homeowner exactly $1,000 due to the poor condition of his home/property. If we can’t lien his property, what are the options for an HOA with an abandoned home? Thank you…

    • Your governing documents may very well give you the right to enter the premises (after attempting to provide notice) to effectuate the work needed to properly maintain the property and to then charge those costs back to the owner, which if unpaid may be lienable and foreclosable the same as an unpaid assessment. That being said, since the home is abandoned, it is likely that the owner is not paying their assessments, which would also allow you the right to lien and foreclose. The best thing would be to get a new owner into the home who would have pride of ownership and foreclosure is the way to go. I would make sure to have a community association attorney review your documents to let you know all of your options.

  3. CJ Michael says:

    Can a fine be totaled and then changed into a HOA special assessment? it exceeds $5k! I never had a hearing because they said if i wanted i had to pay for it – a 50.00 hearing fee- I think there is something wrong

  4. Donald L Brown says:

    There has been a lien for foreclosure placed on my house for unpaid dues/assesments. Two days ago the HOA filed to proceed on the lien. The dues was only about $450 and I paid this amount specifically noting on the check that it was for payment of dues. (as it happened my check didn’t clear and I immediately handed cash replacement for the check with the receipt from the manager noting the payment was for dues). The problem is they have charged me with fines totaling $600 plus $50 interest plus $700 in legal and “administrative fees. The problem is I refused to pay $100 parking fines for cars parked in front of my house overnight, when they were not. So they apply my payments to the fines and fees and not for the dues so effectively they circumvent the “no lien for fines” as you stated above. The big stick now is that they say I will be forced to pay $3500 in legal fees on top of the $1400 owed. Using this heavy hand for undeserved fines is awful. I have owned this house for over twenty years living exactly the same with no problem and now suddenly this Gestapo treatment. What do I say to the judge?

  5. Robert Pilkington says:

    A fine of less than $1,000 may not become a lien against a parcel

    If the statute means what is says and says what it means then wouldn’t fines totaling exactly $1,000 be grounds for a lien?

    • It is certainly a reasonable reading of the statute that a fine of $1,000 or a continuing violation that totals a fine of $1,000 could be the basis for a lien. However, the owner would have a viable defense in arguing that the intention of the statute was to disallow the filing of liens based upon fines that are equal to or less than the statutory cap of $1,000. Unlike the payment of assessments which is purely objective (the owner either paid or they did not pay), the definition of what constitutes a violation, the resulting fines and amounts thereof are largely subjective determinations and this has seemingly made the legislature wary of allowing associations the ability to lien an owner’s property for unpaid fines. The legislature’s sentiment on the issue is further evidenced by the condo statute which flatly disallows liens based upon fines regardless of amount, so an owner may have a strong argument against the propriety of such a lien.

      Conversely, fines are sometimes rendered ineffective without the ability to lien the property for the unpaid amounts. While the association may take away an owner’s amenity access and voting rights due to unpaid fines, and may demand that the owner’s tenant (if they have one) pay rent directly to the association to satisfy unpaid fines, these remedies are certainly not as powerful as the ability to lien.

      While there may be a reasonable statutory basis (and utilitarian need) for a homeowners association to lien a property for an unpaid fine of exactly $1,000, the association should just be aware of the potential defenses before taking such action.

  6. Paul Bachow says:

    What is a continuing violation? It seems that every day an owner drives his big tractor trailer (like the one in your picture), out his driveway and then parks it again at night is a new violation. To read the law otherwise would be to say no one has to follow any rule if they are willing to pay a $1,000.00 fine.

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