Association Answers: Waiving Late Fees and Vacant Lot Maintenance

In Association Answers, KSN attorney Matthew Moodhe addresses frequently asked questions from community association board members and property managers. If you have legal concerns, please contact Matt or any of the attorneys at our law firm by calling 855-537-0500 or visiting www.ksnlaw.com/contact.

Q: When can a board waive or remove late fees on an owner’s account?

Late fees are typically imposed when an owner fails to pay assessments, fines, or other charges by the due date established in the governing documents or adopted collection policies. They are intended to encourage timely payment and to help offset the administrative burden and financial impact of delinquencies on the condominium, homeowner (HOA), or townhome community association.

Unless the association’s governing documents (ex. declaration, by-laws, amendments) specifically prohibit the board from waiving any late fees properly imposed against an owner’s account, the board has the authority and discretion to waive late fees whether related to unpaid fines, assessments, or other charges. However, it’s imperative that the board attempt to be as uniform and consistent when deciding on waiving or removing late fees from a delinquent account.

The board has a fiduciary duty to act in the best interests of the association. In doing so, it’s common for a board to consider waiving or reducing late fees to achieve a quick and fair resolution to a delinquent account. This is especially true when an owner is willing to bring their account current or has already paid all underlying fines or assessments and the only remaining balance consists of late fees.

Boards should work closely with the association’s attorney when establishing or applying any policy related to waiving late fees. Inconsistent or selective waivers can lead to owner disputes, claims of unfair or discriminatory enforcement, and potential challenges to the association’s collection practices. Legal counsel can help ensure that any waiver decisions align with the governing documents, applicable law, and the board’s fiduciary obligations, while also assisting in the development of policies that reduce risk and promote consistent enforcement.

Q: Does the association have authority over vacant lots, and can it require maintenance?

Vacant lots are fairly common in community associations. They may exist because:

• The lots were never sold during the developer’s initial sales period
• The lots were purchased by an owner but never built upon
• The lots were acquired through foreclosure or other property transfers

Regardless of the reason, these lots are typically still part of the association and subject to the community’s covenants, restrictions, and rules. If the governing documents require owners to maintain their property (ex, keeping grass cut and free of weeds or debris), those obligations generally apply equally to vacant lots.

As a best practice, boards should follow a consistent enforcement process. This typically includes providing written notice of the violation, giving the owner an opportunity to cure within a specified timeframe, and then pursuing enforcement options if the issue is not resolved. Depending on the governing documents and applicable law, enforcement may include fines, legal action, or, in some cases, the association performing the maintenance and charging the cost back to the owner.

However, requirements and enforcement authority can vary by state and by the specific language in the governing documents so it’s important to confirm with the association’s attorney.

Legal Resource

Do not hesitate to contact our law firm if your condominium, homeowner (HOA), or townhome community association has questions regarding board member responsibilities, owner disputes, or other legal concerns.

Please call 855-537-0500 or visit www.ksnlaw.com.

Since 1983, KSN has been a legal resource for condominium, homeowner, and townhome associations. Additionally, we represent clients in real estate transactions, collections, landlord/tenant issues, and property tax appeals. We represent thousands of clients and community associations throughout the US with offices in several states including Florida, Illinois, Indiana, and Wisconsin.

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