HOA Violations
fines, and selective enforcement
If you violate a rule of the HOA, your HOA may threaten to fine you. Unlike assessments, an HOA cannot foreclose over fines or penalties. The only way the HOA can collect fines from you is if you voluntarily pay them, or if the HOA files a lawsuit against you to collect them.
Under Arizona law, an HOA may not issue a fine until it first offers you a hearing before the board of directors. If the HOA fails to provide you an opportunity for a hearing before the fine is imposed, the fine is illegal and not enforceable. Arizona law also requires that fines be reasonable. What is a reasonable fine? It might be easier to answer what constitutes an unreasonable fine. The following are some examples of what arguably might make a fine unreasonable:
The failure of the HOA’s board of directors to properly adopt a fine policy.
—Was it passed in an open meeting or in secret?A fine that is inconsistent with the Declaration of Covenants, Conditions and Restrictions (“CC&Rs”).
—Do the CC&Rs impose restrictions on fines or other limitations?The lack of a published fine policy.
—Have you ever received a copy? Is it on a website?A fine that appears to be arbitrary, random, or “ad hoc.”
—Does the board or committee decide the fine in response to the violation?A fine that is unrelated to correcting the violation.
—Does the punishment not fit the “crime”?A fine for a violation that others are committing.
—Are you the victim of selective enforcement?Is there even a violation?
—If no violation, then no fine.
The above list is not intended to be exhaustive. Whether a fine is reasonable is often a fact-intensive question. Whether a violation exists, likewise, is another question that is not as black and white as your HOA will suggest it is. Consider the example of weeds sprouting after the rain. If it rains on Saturday and your yard has a handful of weeds by Tuesday, is that a violation? If you pull those weeds but new weeds grow, does it justify a $25.00 or $50.00 fine for a “continuing violation”?
Closely related to the topic of violations and fines is selective enforcement. An HOA has an obligation to treat all owners fairly and equally. It cannot give a free pass to one owner or board member but fine other owners for the same condition.