Association fine is out of bounds
Posted on July 8th, 2011
I recently received a letter from the HOA, accusing me of violating the community covenants because my daughter’s vehicle is parked in my driveway. According to the letter, vehicles can only be parked in an individual driveway if all bays in a residence’s garage are being used to park vehicles. Garages can be used for other purposes, such as for storage, but only if no vehicles are parked outside in the driveway. The letter threatens me with a fine of $200 per day for every day I am not in compliance.
I do not want to willfully break rules, and I do not want to incur costly fines. On the other hand, I don’t want to get rid of my much-needed storage space or my refrigerator, especially when this is just a short-term situation. Finally, I am irked that the association acknowledges that, under certain circumstances, it is OK to park vehicles in driveways. Many of my neighbors are doing just that. What should I do?
— C.A., Venice
A:I cannot tell you what you should or should not do. I can tell you that it is common for HOA covenants to prohibit uses of garages for other than the parking of vehicles. Obviously, many garages are also used for storage or other similar purposes, but if these ancillary purposes, let’s say, have the effect of converting a two-car garage to a one-car capacity, or if the garage is converted to additional living space, this can be a problem because vehicles that would otherwise be kept in an enclosed space are now exposed to public view. Taken to an extreme, this can mean an eyesore to the community, over-population of the residence, or even a driving hazard if the excess vehicles are parked in or near driving lanes.
The restriction you describe is somewhat quirky because it seems to treat some residents differently than others. As I understand the restriction, using a garage for purposes other than parking is OK, provided that a vehicle is not also parked overnight in the driveway. In addition, it is acceptable to park in a driveway if more vehicles are parked on the property than would fit into the garage. If nothing else, I would think this would create an enforcement nightmare for the association.
A resident using part of his or her garage for something other than the parking of vehicles could fall in and out of compliance on any given day, based upon the number of vehicles parked overnight on the property, and the practical effect is that some vehicles are allowed to be parked overnight in driveways throughout the community anyway.
In other words, the restriction you reference probably could be re-drafted to better accomplish what I think was the intent, which was to prevent the proliferation of vehicles parked outside while serviceable garages are put to other uses. However, you could still be in the same situation, even presuming a successful clarifying amendment to the covenants.
Many factors apply when deciding whether the association can successfully enforce this restriction. Who is policing compliance? Was the restriction properly adopted, and has it been uniformly enforced? You may have some equitable defenses to the association’s demand.
I am more concerned about the association’s threat of a $200 per day fine. It simply cannot do that. Section 720.305(2), Florida Statutes, as amended effective July 1, 2011, provides that a homeowners’ association may levy fines of not more than $100 per violation against any association member or any member’s tenant, guest or invitee for failure to comply with the community restrictions or the association bylaws or rules.
The right to fine does not have to be specified in the covenants to be effective, and a separate fine may be levied for each day of a continuing violation. The cap on the total fine amount is determined by the terms of the covenants and may or may not be the subject of an association lien on the parcel.
You have the right to a 14-day notice and opportunity for a hearing before any fine can be imposed. Only one notice and hearing opportunity is available for a continuing violation. The association can also sue you for compliance, for damages, or for both, but it has to offer you an opportunity to mediate the dispute first (the imposition of a fine is not subject to a mandatory mediation offer).
If you unsuccessfully contest a fine or if the association prevails on the merits in a lawsuit against you, you may also have to pay the association’s attorney’s fees and costs. If you win, the opposite is also true.
You can ask the association for a variance for your short-term situation, but often even a willing association board is constrained out of a real concern that a variance of any kind could effectively prevent it from enforcing the covenant against others in the future. You can wait until the association makes good on its threat to fine you. It has to give you at least that 14-day notice before your hearing. You can permanently move the car and maybe render any potential legal action moot.
Time may be on your side if you do nothing at all in a temporary situation, but you take a risk by choosing that option.
Tamela Wiseman is a Florida Bar board-certified real estate attorney with more than 20 years’ experience. The subjects discussed in her column are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tew@lawbywiseman.com.
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