In this week's tip, we chew on a columnist's claim that she was fined $500 after a security camera identified her guest eating a sandwich at her HOA's pool, where there's a no-food rule. Her beef: the condo has no fining schedule, so she doesn't know if
$500 is reasonable or not.
Neither does Cary Devorsetz, a partner at Alderman, Devorsetz & Hora PLLC in Washington, D.C., who for nearly 20 years has been representing condos, HOAs, and co-ops in the district. “It does seem like
something has been left out from that new report,” he says. “It could be an unreasonable fine.
“Or it could be that this writer is a repeat offender,” Devorsetz suggests. “Or there could be some seriousness in this situation that we're not
aware of, like someone was eating something at the pool that made another person, like a person with a peanut allergy, very sick. The optics in this report are horrible, but we could be missing something important.”
True enough. So what
about the columnist's frustration that she has no idea the financial risks of breaking any particular rule? In fact, there's a split among condo and HOA lawyers on whether creating a strict, detailed, and published fining schedule is best practice or whether it's better to leave discretion to your powers that be.
In Virginia, where Danielle Wang, of counsel at the law firm of Sands Anderson PC in Williamsburg and Richmond, Va., and the leader of its community associations team, advises clients, the law regarding condo and HOA fines is quite strict.
“It caps fines,” she explains. “By statute, we're capped at $50 per violation for a single offense and $10 per day for a violation of continuing nature for up to 90 days. It's low that I don't see a big point in a fining schedule.
“For transparency, a schedule may be nice,” adds Wang. “But in Virginia, you have to go to a due process proceeding before you can even assess a fine. We have a situation where you have to give notice of a potential violation, the homeowner has to appear before the board and can lay out evidence and bring their own counsel, and at the end of that process, the fine is assessed.
“It's already a very transparent process and capped by statute,” she notes. “So doesn't seem like there would be a huge boost in transparency to have a fining schedule. But the board could adopt one for that reason.”
“There are definitely different factions on this issue, even within my office, because our lawyers don't fully agree on what's more beneficial, having a fining schedule or not,” says Devorsetz.