How to Levy a Fine – New Statutory Changes

THIS IS HOW UTAH’S NEW HOA LAWS REGARDING FINES SHOULD BE HANDLED.

I’LL SIMPLY LIST A STEP BY STEP FORMULA BELOW.  As always, this is for general education & information only.  Please contact me directly for application of the new law (this or others) to your specific fact pattern.

  1.  YOU CREATE A SCHEDULE OF FINES WHICH ALSO ARTICULATES THE AMOUNT AND BEHAVIOR SUBJECT TO A FINE.  THE LAW STATES THAT A FINE SHALL ONLY BE LEVIED FOR A VIOLATION OF A RULE COVENANT, CONDITION OR RESTRICTION THAT IS IN THE ASSOCIATION’S GOVERNING DOCUMENTS (WHICH ALSO MEANS YOUR SET OF RULES & REGULATIONS).
  2. AN OWNER COMMITS A VIOLATION AND THE BOARD FEELS THAT A FINE IS APPROPRIATE TO CORRECT BEHAVIOR.  SUCH A FINDING IS DULY VOTED ON AT A BOARD MEETING – BUT THAT IS NOT THE END OF THE PROCESS – JUST THE BEGINNING.
  3. BEFORE ASSESSING THE FINE, THE BOARD SENDS A WRITTEN WARNING TO THE “ALLEGED” OFFENDER WHICH:
    1. DESCRIBES THE VIOLATION;
    2. IDENTIFIES WHICH RULE OR PROVISION OF THE CCRS OR BYLAWS WAS VIOLATED;
    3. ALSO THE WRITTEN WARNING MUST STATE THAT PURSUANT TO UTAH CODE (either Title 57-8 if a Condo or 57-8a if not a Condo), THE BOARD MAY ASSESS A FINE AGAINST THE OWNER IF A CONTINUING VIOLATION IS NOT CURED BY “X DATE” (YOU PICK THIS DATE) WHICH MUST BE AT LEAST 48 HOURS FROM RECEIPT OF THE WRITTEN WARNING OR  THAT THE BOARD MAY LEVY A FINE FOR  SIMILAR REPEAT VIOLATIONS THAT OCCUR WITHIN ONE YEAR AFTER THE DAY ON WHICH THE NOTICE OF VIOLATION IS RECEIVED.
  4. YOU DO NOT PUT THE FOLLOWING IN THE WARNING LETTER BUT PLEASE KNOW:  THAT AFTER THE WARNING LETTER IS SENT AS DESCRIBED ABOVE, THE BOARD MAY ASSESS A FINE AGAINST A LOT OWNER (AKA UNIT OWNER) IF THE LOT OWNER COMMITS ANOTHER VIOLATION OF THE SAME RULE IDENTIFIED IN THE ORIGINAL WARNING WITHIN 1 YEAR OF THE ORIGINAL WARNING.  YOU MUST PUT LANGAUGE IN YOUR RULES THAT STATES IN CASE OF REPEAT OFFENSES, AND AFTER THE ORIGNAL WARNING IS GIVEN AND THE VIOLATION OCCURS AGAIN, THAT NO ADDITIONAL NOTICE IS REQUIRED IF THE SAME VIOLATION OCCURS WITHIN ONE YEAR FROM THE ORIGINAL NOTICE.   THEY KEY PIECE HERE IS THAT YOU MUST HAVE THIS IN YOUR WRITTEN RULES ABOUT HOW YOU WILL HANDLE REPEAT VIOLATIONS AND THAT NO FUTURE NOTICE WILL BE GIVEN UPON THESE CONDITIONS BEING MET.  IN OTHER WORDS, NO MORE WARNING LETTERS – YOU CAN JUST GO TO YOUR FINE SCHEDULE FOR EACH AND EVERY VIOLATION THAT OCCURS DURING THE NEXT 12 MONTHS AND LEVY FINES WITHOUT WARNING (BUT AGAIN THIS STATEMENT NEEDS TO BE IN YOUR RULES).
  5. REMEMBER, #4 IS ADDRESSING “NON CONTINUING” VIOLATIONS – SUCH AS A POOL VIOLATION (if the pool violation happens again, this is a repeat violation)…  A POOL VIOLATION OCCURS, YOU SEND WARNING AS MENTIONED ABOVE, BUT BECAUSE THIS HAPPENED ON A SATURDAY (FOR EXAMPLE), YOU DO NOT NEED TO GIVE AT LEAST 48 HOURS TO CURE.  YOU HAVE SENT YOUR WARNING.  IF IT HAPPENS AGAIN, IN THE NEXT 12 MONTHS, YOU CAN FINE WITHOUT FURTHER WARNING OF ANY KIND IF YOUR RULES ARE WRITTEN PROPERLY.
  6. REMEMBER, THE 48 HOUR REQUIREMENT APPLIES TO CONTINUING VIOLATIONS.
  7. I REALIZE THAT A “REPEAT VIOLATION” AND A “CONTINUING VIOLATION” MAY BE BLURRY SOME TIMES.  A CLASSIC CONTINUING VIOLATION IS SOMEONE WHO PARKS THEIR CAR IN GUEST PARKING IN VIOLATION OF THE RULES AND LEAVES IT THERE.  YOU MUST GIVE THEM A WARNING LETTER AND 48 HOURS TO CURE.  IN YOUR WARNING LETTER FOR A CONTINUING VIOLATION, GIVE AT LEAST 48 HOURS FOR THEM TO CURE/STOP THE VIOLATION AND TELL THEM WHEN THEY MUST COME INTO COMPLIANCE.  IF THE OFFENDER DOES NOT COME INTO COMPLIANCE, YOU MAY ASSESS A FINE BASED ON YOUR FINE SCHEDULE.  AFTER YOU’VE DONE YOUR WARNING AND CURE LETTER, IF THE VIOLATION CONTINUES FOR 10 DAYS OR LONGER, THEN YOU DO NOT HAVE TO GIVE ANY ADDITIONAL WARNINGS AND CAN GO SIMPLY TO YOUR FINE SCHEDULE, AS DRAFTED BUT THE 10 DAYS OF A CONTINUAL VIOLATION MUST OCCUR IN ORDER TO GOT TO THE NEXT LEVEL OF FINES IN YOUR SCHEDULE.  (REMEMBER, CONDOMINIUMS ARE CAPPED AT $500/MONTH)IF MUSIC IS PLAYING FOR A PERIOD OF TIME, STOPS AND STARTS AGAIN, THEN PLEASE FOLLOW THE RULES IN #4 ABOVE.  IF NON-CONTINUAL BEHAVIORAL VIOLATIONS OCCUR, STOP, AND REPEAT AGAIN, THEN PLEASE FOLLOW #4 ABOVE.  IF, HOWEVER,  A CAR IS PARKED CONTINUALLY IN THE WRONG PLACE, OR IF A VIOLATION OF AN ARCHITECTURAL NATURE IS CONTINUING, THEN FOLLOW THE MINIMUM 48 HOURS TO CURE RULE, SEND THE WARNING LETTER, AND IF THE VIOLATION CONTINUES FOR 10 DAYS, YOU CAN STOP SENDING WARNINGS AND FOLLOW YOUR FINE SCHEDULE.  IF THE VIOLATION CONTINUES FOR AN ADDITIONAL 10 DAYS (AFTER THE FIRST 10 DAYS), YOU CAN FINE AGAIN WITHOUT WARNING.

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