Spring 2013 Community Law Newsletter

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Unintended Consequences of Association Action in the Context of Violation Hearing The law of unintended consequences is an adage that actions of people and governments always have effects that are unanticipated and often undesirable. The law of unintended consequences is always at work and everywhere, even in community associations.

The Florida Statutes governing condominiums under Chapter 718 and homeowners associations under Chapter 720 both allow an association to impose fines against owners (their tenants, guests, and invitees, if applicable) and to suspend the right to use common areas after at least 14 days written
notice and an opportunity for a hearing before an independent committee (“violation hearings”).
We recently encountered a situation where an association adopted a long list of burdensome
policies and procedures in addition to the minimum requirements of Florida law for conducting violation hearings. Particularly noteworthy were the requirements to have an independent mediator
preside over the hearing and enforcement of the Florida Rules of Evidence. Presumably, these policies and procedures were enacted to ensure fairness to all parties. Instead of fostering fair and efficient hearings, however, the real consequences of these additional policies and procedures were
delays, inefficiencies, and a board hesitant to conduct hearings due to confusion over what evidence was admissible at the hearing. Rules of evidence can be difficult for laymen without any legal background to understand. It is certainly understandable why the association adopted these policies and procedures since fairness to all parties in violation hearings is of critical importance.

However, this is an example of the law of unintended consequences at play. The unanticipated outcomes were not the ones intended by the association’s purposeful actions. In spite of the above example, fines and the suspension of common area use rights can be a useful tool to compel compliance with your association’s governing documents. In many cases, the offending owner will respond to the notice and attend the hearing before the association’s violations hearing committee. Although the association should demonstrate fairness, the association serves not only the role of prosecutor and judge, but also the jury. It is important to keep in mind that a violation hearing is not a formal
court of law where all rules of evidence and procedure are strictly applied, nor is there a requirement that an association hire an independent mediator to preside over the hearing.

In fact, one of the strong benefits an association has is the ability to fine and suspend in a tribunal without being burdened by the technical rules as to the admissibility of evidence. Florida law affords associations this advantage and your association should be careful not to take any action that may complicate or unintentionally burden the process of conducting a fining or suspension hearing. There are few statutory rules to be followed in the actual process of conducting fining or suspension hearings. This is a good thing. The legislature, in crafting the law, recognized the ability of associations to conduct hearings without having to comply with a complex set of rules. It is our opinion that it would be neither wise nor prudent to impose any additional rules or restrictions which could cause unintended burdens on your association. Our office can provide your association with guidance to ensure that your violation hearings are conducted properly, efficiently and in accordance with Florida law.

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