Kansas HOA fine rules

The Kansas Uniform Common Interest Owners Bill of Rights Act requires no notice before an association fine. Every section of the act was reviewed and none prescribes a notice, a procedure or a standard for imposing a fine; the act's only reference to the subject is the board's discretion whether to act at all: "The board of directors may determine whether to take enforcement action by exercising the association's power to impose sanctions or commencing an action for a violation of the declaration, bylaws, and rules, including whether to compromise any claim for unpaid assessments or other claim made by or against it" (K.S.A. 58-4608(b)). The notice provisions the act does contain run to rules and to meetings. Before changing a rule, "the board of directors shall give all unit owners notice of: (1) Its intention to adopt, amend, or repeal a rule and provide the text of the rule or the proposed change; and (2) a date on which the board of directors will act on the proposed rule or amendment after considering comments from unit owners," and after acting "the association shall notify the unit owners of its action and provide a copy of any new or revised rule" (K.S.A. 58-4617(a), (b)). Where the declaration provides for construction, design and aesthetic standards, "the association shall adopt procedures for enforcement of those standards and for approval of construction applications, including a reasonable time within which the association must act after an application is submitted and the consequences of its failure to act" (K.S.A. 58-4617(c)). How any required notice is delivered is set by K.S.A. 58-4618(a): "an association shall deliver any notice required to be given by the association under this act to any mailing or electronic mail address a unit owner designates," and otherwise may deliver by hand delivery to each unit owner; hand delivery, United States mail postage paid, or commercially reasonable delivery service to the mailing address of each unit; electronic means if the owner has given an electronic address; "or any other method reasonably calculated to provide notice to the unit owner." Any notice due before a fine comes from the declaration, bylaws and rules rather than from the act.

The Kansas Uniform Common Interest Owners Bill of Rights Act fixes no cure period before a fine. Its fixed day counts run to records and meetings instead — records must be made available "upon 10 days' written notice reasonably identifying the specific records of the association requested" (K.S.A. 58-4616(b)(2)), and "Notice of any meeting at which a budget will be considered must be given to unit owners at least 10 days prior to the meeting date" (K.S.A. 58-4620(a)). What the act supplies in place of a cure period is a set of limits on the board's enforcement discretion: the board "does not have a duty to take enforcement action if it determines that, under the facts and circumstances presented: (1) The association's legal position does not justify taking any or further enforcement action; (2) the covenant, restriction, or rule being enforced is, or is likely to be construed as, inconsistent with law; (3) although a violation may exist or may have occurred, it is not so material as to be objectionable to a reasonable person or to justify expending the association's resources; or (4) it is not in the association's best interests to pursue an enforcement action" (K.S.A. 58-4608(b)), and while a decision not to enforce in one case does not prevent enforcement in another, "the board of directors may not be arbitrary or capricious in taking enforcement action" (K.S.A. 58-4608(c)). Any opportunity to cure comes from the declaration, bylaws and rules.

The Kansas Uniform Common Interest Owners Bill of Rights Act sets no dollar cap on an association fine. No section of the act, K.S.A. 58-4601 through 58-4623, caps the amount of a fine or prescribes a notice, a procedure or a standard for imposing one; the amount comes from the recorded declaration, bylaws and rules rather than from the act. The limits the act does impose run to the board's enforcement discretion rather than to the amount: the board "may determine whether to take enforcement action by exercising the association's power to impose sanctions or commencing an action for a violation of the declaration, bylaws, and rules," has no duty to enforce in the four situations listed in K.S.A. 58-4608(b), and "may not be arbitrary or capricious in taking enforcement action" (K.S.A. 58-4608(c)). Every rule "must be reasonable" (K.S.A. 58-4617(h)).

Kansas gives unit owners a statutory inspection right. The association or its agents must retain, for five years unless otherwise provided, the eleven categories listed in K.S.A. 58-4616(a), including "Detailed records of receipts and expenditures affecting the operation and administration of the association and other appropriate accounting records"; minutes of unit owner and board meetings other than executive sessions; the names of unit owners and the addresses at which the association communicates with them; the organizational documents, bylaws and all rules currently in effect; "all financial statements and tax returns of the association for the past three years"; "copies of current contracts to which it is a party"; and "records of board of directors or committee actions to approve or deny any requests for design or architectural approval from unit owners." "Subject to subsections (c) through (g), all records retained by an association must be available for examination and copying by a unit owner or the owner's authorized agent: (1) During reasonable business hours or at a mutually convenient time and location; and (2) upon 10 days' written notice reasonably identifying the specific records of the association requested" (K.S.A. 58-4616(b)). Records may be withheld to the extent they concern the eight categories in K.S.A. 58-4616(c), among them personnel, salary and medical records; commercial transactions currently being negotiated; "existing or potential litigation or mediation, arbitration, or administrative proceedings"; "existing or potential matters involving federal, state, or local administrative or other formal proceedings before a governmental tribunal for enforcement of the declaration, bylaws, or rules"; attorney-client privileged communications and work product; "records of an executive session of the board of directors"; and "individual unit files other than those of the requesting owner." "An association may charge a reasonable fee for providing copies of any records under this section and for supervising the unit owner's inspection" (§ 58-4616(d)), copies may be received "by photocopying or other means, including copies through an electronic transmission if available upon request by the unit owner" and "may be used for any reasonable purposes other than for commercial purposes" (§ 58-4616(e)), and "An association is not obligated to compile or synthesize information" (§ 58-4616(f)).