Repeat vs Continuing Violations
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REPEAT VS CONTINUING VIOLATIONS

QUESTION: If an owner is fined for a violation one month, then repeats the violation the following month, can we go straight to a fine or does the hearing process start over again?

ANSWER: Associations cannot discipline a member without due process. The accused gets an opportunity to contest each alleged violation. There is a difference, however, between repeat violations and continuing violations.

Repeat Violations. An example of a repeat violation is where an owner violates a rule by letting his dog off the leash. The board holds a hearing and fines him. The next month the owner's dog is off the leash again. That requires another hearing and another fine. The following month he does it again--a third hearing and another fine. The rules may allow for escalating fines, $50, $75, $100, but each incident requires a notice, a hearing, presentation of evidence, and a written decision.

Continuing Violations. A continuing violation is one that is not cured but continues to exist. For example, If an association limits owners to one dog of no more than 25 pounds (typical for dense condominium developments with elevators) and an owner moves in with a 200-pound Mastiff (scary for people in narrow hallways and tight elevators), the board may impose a daily fine against the owner until such time as the dog is removed from the property. The board holds one hearing and imposes a continuing fine for the continuing violation.

Carrot and Stick. I like the carrot and stick approach when using daily fines. The goal is to eliminate the violation not to make money. Once the fine is levied, the board should simultaneously offer to waive the fine if the owner complies within 30 days (or some other reasonable time period set by the board). Offering to waive the fine encourages compliance and eliminates trips to court. We include a provision for daily fines in our documents and I recommend that boards update their documents to allow for such fines.

Three Strikes Rule. As a rule of thumb, boards should not impose more than three fines for the same violation. Fines are imposed to deter bad behavior. If three fines haven’t done the job, then fines are not going to work and the board should take legal action against the owner seeing injunctive relief.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with issues affecting community associations, subscribe to the Davis-Stirling Newsletter.

 

 

Adams Stirling PLC