Imposing Fines
Question: I'm having difficulty understanding the differences in our Board's ability to impose fines of $50 for a "single offense", loud party, and $10 per day for a "continuing offense", a fence. One association used "remains uncorrected" instead of "continuing offense". Maybe more examples would help.
Response: That's a good question, and it sounds like you already have the right basic idea.
Condominium associations, under a section of the Condominium Act, are authorized to assess charges against owners for any violation of the condominium instruments or the rules and regulations, and property owners' associations, under the Property Owners' Association Act, are authorized to assess charges for any violation of the declaration or rules and regulations. It is important to note that the applicable instruments or rules and regulations must expressly authorize the association to assess these charges; if the documents are silent on this, the statutes do not provide independent authority.
Both statutes provide that the amount of any charges assessed shall not exceed fifty dollars for a single offense or ten dollars per day for any offense of a continuing nature. In interpreting this language, the first thing I note is that a "single offense" obviously differs from an "offense of a continuing nature." In other words, a single offense is one that is no longer continuing. So, these would include things like your example, a loud party, or perhaps parking one day on the common area lawn, smoking in the common area, or letting your dog run free, assuming each of these things are prohibited.
An offense of a continuing nature, on the other hand, might be maintaining an unpermitted fence (as you mentioned), having a front door of an unapproved color, or violating a rental cap by leasing your unit without obtaining approval.
Admittedly, the lines can get blurred. What if my governing documents prohibit smoking in the common area, yet I flaunt this restriction and do it every day? Is this a continuing offence subject to a $10 per diem assessment charge (for a maximum of 90 days under the statute)? Or, is this a series of single offenses, for which I am subject to being found guilty of multiple violations and the assessment of any number of $50 charges? In my opinion, this would be a series of single offenses because there is a break in between them, but I think reasonable minds could disagree. There is currently no Virginia case law deciding this particular point, so if in doubt associations will have to use their best judgment after consultation with counsel.
The statutes also contain important "due process" requirements that cover things like the necessity of a hearing and notice, and they both provide that the assessment of charges is suspended if a lawsuit is filed challenging the charges.
Steven L. Lauer, Esq.