February 19, 2010

This week's tip addresses two common problems: lazy owners and the need for additional revenue.

Can you kill two birds with one stone by financially penalizing owners who don't attend meetings, vote, or volunteer by imposing a "nonparticipation" fee on them?

Sadly, our experts in several states say that you probably can't, but the issue ultimately depends on your own state's law and your governing documents.

"I'd have a hard time recommending to a board to impose fines for lack of voluntary participation unless there's something in the governing documents that requires a mandatory stay on the board or a committee every few years," says Daniel Zimberoff, a shareholder-attorney at Barker Martin PS in Seattle, says of Oregon and Washington law, where his firm exclusively represents community associations.

"I believe that would be outside the authority of the board to impose fines," Daniel told us. "You can't mandate voluntarism."

It's also impermissible under Florida law, says Lisa A. Magill, a shareholder and association attorney at Becker & Poliakoff PA in Fort Lauderdale, Fla. And it's a bad idea, to boot.

"Regardless of whether the authority is there, I think it's a horrible idea," she says. "Your rights as an association member are similar to your rights as a citizen of a city, state, or the federal government. There's no mandate for you to vote. It's one of your rights and privileges, but nothing requires you to do so. Can you imagine the government fining taxpayers for not voting in mayoral elections?"

If a fine on owners who fail to pull their weight isn't an option in your state or under your governing documents, all hope is not lost. For more detail on other state's laws, more discussion of the pros and cons, and positive ways to get more owners to volunteer at your association, see our new article, Can Your HOA Impose "Nonparticipation" Fees on Complacent Homeowners?

Best regards,
Matt Humphrey
President