Condo Media - October 2022 - 45

restrictions can only be enforced if contained
in the Declaration, not the rules.
In other cases, minor violations or exceptional
or exculpatory circumstances
may lead a board to decline enforcement
efforts under what is known as
the Business Judgment Rule. Other rule
violations occur because unit owners
have dementia, Alzheimer's, or other
mental disorders. These situations are
very difficult to deal with. Encouraging
participation from family members,
friends, or mental health professionals
may be an appropriate first step.
Boards should scrutinize the basis
of their authority. In doing so, they can
consider whether other unit owners
did similar acts, whether the association
consistently went after them for
the violations, and whether attempted
enforcement is sufficiently important.
Finally, they should consider whether
the collateral damage to the community
caused by pitting neighbor against
neighbor is worth the effort. The closest
analogy is a police officer stopping a
motorist for speeding. However, officers
do not issue tickets to every motorist
who speeds. They have the discretion to
issue warnings instead. Prosecutors do
the same thing.
Again, failure to enforce in a particular
instance usually does not mean
that the association cannot enforce
that provision against others. The
frequently expressed claim by those
accused of violations that others have
also violated the rule is rarely a good
defense, except in rare circumstances
(such as proof of selective enforcement
or widespread violations).
OPPORTUNITY TO BE HEARD
Before imposing a fine, Maine law
requires the board to give a unit owner
an " opportunity to be heard. " No fines
imposed by the board are enforceable
without it. This process also serves
another purpose; it adds due process
protection that takes the sting out of
the common belief by unit owners that
they have been mistreated.
Associations commonly omit the
opportunity to be heard or soften their
effectiveness by announcing a fine
before giving the notice. This leaves the
unfortunate impression that the result
is preordained and that the opportunity
to be heard is just a formality. The best
practice is to provide a notice to the
owner stating what the board believes
the violation is, state that the board is
considering a fine, and invite the owner
to come to explain things from their
point of view in an informal meeting
with the board at a stated time, date,
and place. Frequently, the owner will
not show up, at which point the board
can consider the matter and the owner
has no good claim that the board would
not listen to him.
REASONABLENESS STANDARD
Fines must be " reasonable. " Just what
is reasonable may ultimately be determined
by a judge who is not familiar
with condominium living. The board
should consider the reasonableness
of proposed fines and exercise its collective
good judgment about what is
appropriate in a particular case.
The board can impose a per diem
fine in appropriate cases. It can also
escalate fines for repeat offenses.
Some boards find it convenient to establish
a schedule of fines for common
offenses, and this has the benefit of
predictability and evenhandedness.
All of these are useful.
AFTER ASSESSING FINES
Fines, when assessed, are a lien attached
to the unit (and stay attached
even if the unit is sold or transferred).
The lien is subordinate only to real estate
taxes assessed against the unit and
to the lien of first mortgages. Liens are
treated like assessments for payment of
common expenses, so they are subject
to accrued interest of up to 18 percent if
not paid. Maine law sets the time limit
for the lien at six years. Many associations
believe it's necessary to record
a notice of lien in the county registry
of deeds. Legally, recording the lien
notice makes no difference. The lien is
effective whether or not the association
records a notice.
Some unit owners may ignore
fines and continue violating the rules.
In these cases, the board can consider
legal action to collect the fines - foreclosure
(similar to a bank foreclosure),
injunctions, or other remedies. In any
court action involving the collection of
fines, Maine law increases the stakes
for both the association and the unit
owner by requiring the losing party to
pay the other party's attorney's fees.
This is known as the " prevailing party "
rule. Attorney's fees frequently exceed
the amount of fines.
CAN BOARDS FINE TENANTS?
Generally, no. In appropriate cases,
the board can demand that the unit
owner alleviate the tenant's violations
and fine the unit owner for failure to
remedy the violation.
LONG-TERM
NON-ENFORCEMENT
Rules are not automatically unenforceable
because they haven't been
enforced. The board can decide to start
implementing previously unenforced
rules, but it's unfair to do so retroactively.
If the board wishes to start
enforcing previously unenforced rules,
it should give prior notice to owners of
its intent to do so.
The board can consider grandfathering
existing rule violations. For
instance, if pets are not allowed but the
board starts enforcing its no pets rule,
it's perfectly acceptable to provide that
the current pet can stay, but replacements
are not allowed. The board
could also adopt a policy of not pursuing
non-compliant improvements
made before a new enforcement
policy becomes effective.
Rule enforcement is essential to a
well-functioning condominium community.
Common sense in exercising
it is essential.
n JOSEPH G. CARLETON, ESQ., CCAL
IS WITH THE LAW FIRM JENSEN BAIRD
AND A FELLOW OF THE CAI COLLEGE
OF COMMUNITY ASSOCIATION
LAWYERS (CCAL).
October 2022 CONDOMEDIA 45
Condo Media - October 2022

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