The Hearing an Owner Gets Before a Fine Is Imposed

A violation letter is not a fine. Between the letter and the charge sits a procedure that most statutes describe in detail, and the procedure is where most fines are actually defeated. Owners who argue about whether the shed is really visible from the street usually lose. Owners who show that the notice arrived four days before the meeting usually do not.

What the notice must say and when it must arrive

A representative statute provides that when the board is to meet to consider or impose discipline on a member, or to impose a monetary charge to reimburse the association for repairing damage caused by a member or their guest or tenant, the board must notify the member in writing at least ten days before the meeting. The notification must contain, at a minimum, the date, time and place of the meeting, the nature of the alleged violation or the damage, and a statement that the member has a right to attend and may address the board.

Other states use a longer period and add content requirements. One provides that a fine or suspension may not be imposed unless the board first gives at least fourteen days written notice of the owner's right to a hearing, delivered to the designated mailing or email address in the association's records, and that the notice must include a description of the alleged violation, the specific action required to cure it if applicable, and the hearing date, location and access information where the hearing is held electronically.

Delivery matters as much as content. Statutes specify how notice is given, and an association that sends it by a method the statute does not authorize has not given notice at all.

The committee that the board may not sit on

In several states the decision is taken away from the board. A fine or suspension levied by the board may not be imposed unless a hearing is held before a committee of at least three members appointed by the board who are not officers, directors or employees of the association, or the spouse, parent, child, brother or sister of an officer, director or employee.

The committee's role is deliberately narrow. It is limited to determining whether to confirm or reject the fine the board levied. If the committee does not approve the proposed fine or suspension by majority vote, it may not be imposed. The committee cannot raise the amount, add a violation or negotiate.

Timing and follow-up are prescribed too. One statute requires the hearing to be held within ninety days after the notice is issued, permits it to be held by telephone or other electronic means, gives the owner the right to attend that way, and requires the committee to give written notice of its decision within seven days after the hearing.

Where the amount comes from

A board cannot invent a figure at the hearing. Fines are almost always authorized by the declaration or the bylaws and set by a schedule the board adopts and publishes to members in advance. A fine imposed without a published schedule, or at an amount above the schedule, is vulnerable regardless of how sound the underlying violation was.

Several statutes cap the amount, either per violation or in the aggregate for a continuing violation, and some distinguish between a single fine and a daily fine for a violation that persists. Where a daily fine is authorized, the statute usually requires the notice to say so and to identify the date from which it will run, so an owner learns the exposure before it accumulates.

Escalation should also be traceable. Boards that fine progressively for repeat conduct need a schedule that says so, because a second fine at triple the first looks arbitrary without a written basis. That documentation is also what protects the directors under the standard described in the article on the standard a volunteer board is held to.

Closed session, and what goes in the minutes

Member discipline is a matter most statutes allow, and sometimes require, to be taken in executive session. One provision directs the board to adjourn to or meet solely in executive session to discuss member discipline if the member who is the subject of the discussion requests it, and entitles that member to attend.

Confidentiality is not total. The general rule is that any matter discussed in executive session must be generally noted in the minutes of the next open meeting, which means the fact of the discipline appears without the details. The full scope of what may be closed is set out in the article on board business done behind closed doors.

Selective enforcement and the other real defenses

Selective enforcement is the defense owners most often name and least often document. The argument is that the association has not enforced the same covenant against others in comparable circumstances, so enforcing it here is arbitrary. Proving it requires the association's own records: violation logs, architectural approvals, hearing results and correspondence for other units, obtainable under the rules in the article on inspecting association records.

Three other defenses do steady work. The covenant may not authorize the rule being enforced, which is a question of hierarchy addressed in the article on why the declaration binds a buyer who never signed it. The conduct may have been approved, which is the point of the article on when a review committee misses its deadline. Or the procedure may simply have been skipped.

Some states add an administrative route. One requires the association, on receiving a member's certified mail response within twenty-one days of a violation notice, to reply within ten business days with the provision allegedly violated, the date of the violation or observation, the name of the person who observed it, and the process for contesting the notice, and bars enforcement action while that exchange is pending.