Does this drafting error in my communities’ CC&Rs negate the fine policy?
Regarding fines, my CC&Rs read as follows (and I quote):
‘Section 3 12 Fines
The Association, acting through its Board of Directors, shall have the right to adopt a schedule of fines for violations of any provision of the Project Documents by any Owner or such Owner’s licensees and invitees. No fine shall be imposed without first providing a written warning to the Owner describing the violation and stating that failure to stop the violation within no less than ten (10) days or another recurrence of the same violation within six (6) months of the original violation shall make the Owner subject to imposition of a fine. All fines shall constitute a lien on all lots owned by the Owner and shall be paid within thirty (30) days following imposition. Failure to pay any fine shall be subject to the Owner to the same potential penalties and enforcements as failure to pay any assessments under Article IV.”
“…failure to stop the violation within no less than ten (10) days…”
No LESS THAN? Don’t they mean no MORE THAN?
“No more than” 10 days means you have UP TO 10 days to correct the violation. So no “less than” means something entirely different. In fact, it’s completely the opposite. If “no more than” 10 days means you have from day 1 through day 10 to cure the violation to avoid a fine, “no less than” 10 days means you can’t do anything to cure the violation until AFTER 10 days. AFTER 10 days means anything from day 11 to day… infinity – there is no upper limit the way it is written. Bottom line, am I way off base to think that the way the section is written precludes the HOA from ever levying a fine under this section?
Any ideas? This is driving me nuts! 🤪
Thanks!
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Cami, I can see why that wording made you stop and think, but “no less than ten days” means the owner must be given AT LEAST ten days to correct the violation. It does not mean the owner has to wait ten days before correcting it. “No more than ten days” would actually mean the HOA could give ten days or less.
The more significant issue may be the later language stating that all fines automatically become liens and may be enforced the same way as assessments. Arizona law imposes its own notice and hearing requirements before monetary penalties may be imposed, regardless of what the CC&Rs say. And Dennis can tell you about the new law language regarding liens that will become effective this September.
For questions like this, it may help to run the full provision through an AI tool such as ChatGPT or Grok. They are not perfect, and legal conclusions should always be verified against the actual statute or with a (good) attorney, but they give instant answers and can be very useful for breaking down confusing language, spotting additional issues, and identifying the laws that may need to be checked.
Thank you so much for your reply! I appreciate you!
Cami,
The language in your document reads correctly. You have 10 days to correct the violation, or a fine will be applied. You can still correct the violation after 10 days, and you should do so to prevent additional fines.
The remaining provisions of the statement are actually invalid under Arizona Law. Fines are not automatically a lien; the association can make them a lien by suing you for a monetary judgment and then recording a lien. Even then, that lien cannot be treated like an assessment lien, cannot be foreclosed like an assessment lien, and is only effective when you sell your home. All of that is because judgment liens are subject to the homestead act that protects $400,000 of your home’s equity, and the judgment lien can only be applied to you at closing if the proceeds from your sale exceed the protected $400K. Not all homes are protected by the homestead act, but if it is your only home, it is.
Dennis