Fines, Is it a Continuing or Non-Continuing Violation?

Fines, Is it a Continuing or Non-Continuing Violation?

By James C. Purcell

Utah Code Section 57-8a-208 and 57-8-37 identify two types of violations that may subject a lot owner to fines: (1) continuing violations; and (2) non-continuing violations.  However, determining whether a violation should be characterized as a continuing or non-continuing can often be difficult.  Nevertheless, proper characterization of the violation is important in making sure the proper procedures are followed in imposing a fine:

  • General Fine Process under Utah Code Section 57-8a-208.*
    • Strike One – Written Warning
      • Contain a description of the violation.
      • Contain a citation to the rule or governing doc. that the lot owner’s conduct violates.
      • If continuing violation – state that a fine may be issued if violation not cured within 48 hours, or longer.
      • If a non-continuing violation – state that a fine may issue if a similar violation occurs within 1 year after the date on which the board gives written warning.
    • Strike Two – Fine
      • Continuing violation – lot owner fails to cure the violation within the time period stated in the written warning = fine.
      • Noncontinuing violation – 2nd violation of same rule or provision within one year = fine.
    • Strike Three – Additional Fines Without Warning.
      • Continuing violation – allowing violation to continue for 10 days or longer after the 1st fine = additional fine every 10 days.
      • Noncontinuing violation – commits violation of same rule or provision within 1 year board assesses the fine = additional fine.

 

While the procedure for imposing a fine for a continuing violation versus a non-continuing violation is clear, as stated above, what constitutes a continuing violation versus a non-continuing violation is often less clear.  Is an owner who fails to close their garage door or who fails to bring their trash cans back from the curb (in violation of the governing documents) best characterized as a continuing violation or non-continuing?  Is a car that is parked in a non-parking zone best treated as a continuing violation or non-continuing?  What about dog owners who fail to pick up after their dog?

To avoid potential ambiguity and diminish the chance of the Association’s characterization of a violation from being challenged, an Association can and should consider adopting a Rule that clarifies the difference between continuing and non-continuing violations.  This clarification can save the Association time and money down the road and help ensure that the Association follows the proper steps in imposing a fine.

*This summary is for information purposes only as Utah Code Section 57-8a-208 and 57-8-37 may impose additional requirements or restrictions in imposing a fine.  Before imposing a fine or fine procedure it is important to review the governing documents of the Association, review relevant sections of the Utah Code and consult with an attorney.

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