Fines & Enforcement Considerations
Imposing an enforcement assessment, commonly referred to as a “fine,” on an unruly owner or property is a popular and usually effective mechanism for enforcing rules within a condominium or subdivision. Fines alone, however, cannot address all scenarios and must be imposed in accordance with applicable laws. Community association boards must carefully follow proper procedures and should have a comprehensive enforcement policy in place to ensure their enforcement efforts are not wasted and are efficiently achieving the desired results.
Issuing a fine for a rule violation is generally the go-to mechanism for a homeowner or condominium association board when attempting to enforce the rules of a community. Before issuing fines, however, association boards should review or develop an overarching enforcement policy both to ensure they are issuing fines appropriately and to ensure there is not a better enforcement mechanism available to deal with whatever situation the board is facing. In Ohio, a board’s specific enforcement authority will be set forth in the association’s governing documents and in either R.C. 5311.081 for condominiums or 5312.11 if the community is a subdivision. Each of these statutes imposes a similar set of procedures that a board must follow to properly levy a fine against an owner. Generally, these statutes require an association to inform an owner of the nature of a violation and the amount of the proposed fine, provide a date by which the owner can cure the violation and avoid the fine (if possible), and provide the owner with at least ten days to request a hearing before the board to discuss or otherwise contest the fine. If an association issues a fine without complying with each of the statutory requirements set forth in R.C. 5311.081 or R.C. 5312.11, it does not matter how clear-cut the underlying violation is, the association’s failures will give the owner valid grounds to challenge and potentially invalidate the fine in court.
In addition to ensuring an association is levying fines in a procedurally proper manner, having a well-thought-out enforcement policy can also help ensure the board does not overuse fines. While a warning letter or initial fine is sufficient to get most owners to address the underlying violation, some violations can be so severe and some owners so stubborn that fines alone simply will not resolve the issue. In these situations, fines can only get the Association so far, and in some instances can even create issues that will only make enforcement more difficult. Indeed, I have frequently seen associations attempt to deal with serial violations by issuing daily fines (which are often not levied in accordance with the statutory requirements and, thus, uncollectable) or by repeatedly leveling fines for the same violation—even though those fines are not leading to any true results. In these situations, having an enforcement policy and knowing how to use other enforcement mechanisms is crucially important. Generally, in addition to being able to levy fines, most associations have the ability to also take direct corrective action or initiate legal action to address ongoing or recurring violations. Further, in most scenarios, many costs incurred by an association in pursuing these enforcement actions can be assessed back to the property and/or property owner. As such, these alternative enforcement mechanisms are powerful tools that should have a place in your community’s enforcement procedures.
As with most things dealing with community association law, the correct approach for dealing with any specific scenario must be determined by a review of the underlying facts and a review of your community’s governing documents. Accordingly, we strongly encourage board members, especially those dealing with enforcement issues, to reach out to their counsel to make sure the association has a well-rounded and legally compliant enforcement policy. Please feel free to reach out to one of the attorneys at Williams & Strohm, LLC if you have questions about enforcement procedures at (614) 228-0207.
Mr. Kanitz has been practicing law since 2008 with experience in civil litigation, creditor’s rights, landlord/tenant, and otherwise representing clients in a wide array of matters, including zoning issues affecting community associations. Read Jesse Kanitz's full bio.