Notice & Opportunity to be Heard

Over the past several weeks, we have dealt with many questions about the proper procedure to follow when issuing fines against owners who do not comply with association rules. One important requirement that many associations do not know about or understand is the obligation to give owners notice and an opportunity to be heard before assessing a fine against their unit.

RCW 64.34.304(k) applies to both “New Act” condos and “Old Act” condos. The statute states that an association has the power to fine owners who do not comply with the association’s governing documents. However, the statute also requires the association to take specific steps in order to properly exercise that authority.

Here’s what your association needs to know about fining owners for noncompliance:

1. A fine schedule must be adopted by the Board and published to the owners before the association can properly assess noncompliance fines. The fine schedule cannot leave the amount of the fine up to the Board’s discretion, but must specify the amount of the fines in advance.

2. The fines must be reasonable. This standard applies both to the amount of the fines generally, as well as to the assessment of the fines against an owner in particular.

3. The fines must be levied in accordance with the policies and procedures provided in the Declaration, Bylaws, or Rules and Regulations (including Fine Policy) for the association. For example, if your Fine Policy requires you to give a written warning without a fine for an owner’s first violation of a rule, you must comply with that requirement.

4. Before assessing any fine for noncompliance, the association must give the owner notice and an opportunity to be heard by the Board before the Board levies the fine. It is not enough for the association’s governing documents or fine policy to tell owners they have that right. The law requires that notice and an opportunity to be heard be given to an owner before each fine is assessed against their unit. The easiest way to comply with this requirement is to insert language into your violation letters notifying owners of their right and directing them to contact the association manager (or the board member handling the correspondence) to schedule a due process hearing.

5. If the owner requests a due process hearing, the Board may set reasonable parameters for the length of the hearing and any procedures the owner must follow.

6. Before deciding whether to assess a fine, the Board must listen to the owner’s remarks on the violation, and should also review any documentation provided by the owner that addresses the violation in question.

7. Once the hearing takes place (or if the owner fails to request a hearing), the Board must then decide if a violation took place and whether to assess a fine for the owner’s non-compliance. The Board must consider all available information on the violation and must make a reasonable decision based on that information.

If you would like to request some suggested language for your violation letters that will properly notify owners of their right to notice and opportunity to be heard, please let us know. And, if you have any questions we can answer, please feel free to leave a comment or contact us directly. We look forward to continuing this conversation with you in our future posts!