Policing Requires Strict System of Notification, Reinforcement, Fines
Byline: Jordan I. Shifrin
The First Man says, "I can't believe I got a parking ticket." The Second Man responds, "Well, isn't there a sign?" and the First Man says, "Yeah, it says 'FINE FOR PARKING,' so I parked there.
What does a board of directors do when an owner violates the rules? The infraction is not serious enough to warrant legal action and the owner has ignored the standard warning letter.
Section 18.4(l) of the Condominium Property Act requires:"...after notice and an opportunity to be heard (the board may) levy reasonable fines for violations of the declaration, by- laws and rules and regulations of the association."
In considering the adoption of a policy for punitive fines, a board of directors is required to establish certain uniform guidelines and procedures. The assumption of "police power" automatically compels a board to initiate a system which incorporates constitutional protections for association member and provides for due process of law.
The following must be adopted prior to levying of fines:
- Hearing procedure
- Schedule of fines
- Opportunity for re-hearing
First, a board of directors cannot be in a position of "shoot first and ask questions later," when it comes to taking punitive action. Based upon statutory authority, it is clear that a "pre- fine" notice must be sent to the accused prior to board action.
Most declarations have guidelines for notice to its members, either by mail or personal delivery for any meetings of members. These requirements should be followed with the notice of potential punitive action.
After a homeowner or the manager advises the board of a rule infraction, that owner who is the subject of the complaint should be notified in writing. In addition, the accused homeowner should be advised as to the following:
- The nature of the offense.
- Time and place of hearing (or in the alternative, a deadline in which a hearing must be requested.)
- The right to present a defense, evidence and even a right to counsel
- Failure to either request a hearing or appear might result in an adverse finding.
The requirements of the Illinois Condominium Property Act and the Illinois General Not for Profit Corporation Act are that all meetings of the board be open to the members, with the exception of "to discuss violations of rules and regulations of the association..." (Section 18.4(a)(9) Illinois Condominium Property Act).
Therefore, a hearing should be conducted, preferably by a hearing committee or the board or a board subcommittee at a closed session. Sometimes, for more serious infractions, an association will have its attorney attend the meeting in order to give the proceedings an aura of formality. A homeowner, property manger or other party making the accusation of a rule violations should be present, in addition to all other witnesses. …