After failing to pass a condominium safety bill after the Surfside tragedy during the regular legislative session, Florida’s legislators agreed to a special legislative session. Surprisingly, Florida’s House and Senate agreed upon a compromise version of the bill in an extended legislative session. Governor DeSantis signed the bill into law on May 26, 2002.
Although the bill takes effect immediately, its major provisions do not begin to take effect until 2024. While 2024 might seem far into the future, the changes caused by this bill will require all condominiums to begin preparing now.
Following are some highlights of the new condo-safety bill (a copy of the bill can be found here):
Boards will be prohibited from waiving reserve requirements for structural repairs or from using money in those reserves for other purposes.
Structural safety inspections would be required for buildings three stories or higher by the year the building turns 30 and every 10 years afterward.
For buildings constructed before July 1, 1992, the first structural inspection must be performed before Dec. 31, 2024.
Buildings within three miles of the coast must be inspected before the building reaches age 25 and every 10 years afterward.
A report of the inspection’s findings must identify any substantial structural deterioration, whether the deterioration is dangerous or unsafe, and whether remedial or preventive repairs are recommended.
Condo associations or governing boards must distribute copies of the report to all unit owners.
County governments may require commencement of repairs within specified timeframes if a report identifies substantial structural deterioration.
Every 10 years, condominium boards must produce studies of the reserve funds required for future repairs of structural integrity components.
When a unit is sold, buyers must be told about the history of the condominium association, the reserve requirement, and the present status of the reserve fund.
Developers of new buildings will have to fund reserves before transferring control to condominium boards.
All structural inspection reports and reserve studies are to be part of the associations’ Official Records and must be provided to potential purchasers of a unit.
It is a breach of an officer or director’s fiduciary duty if the Association fails to complete a Structural Integrity Reserve Study, as necessary.
There are more than 1.5 million condominium units in Florida operated by nearly 28,000 associations, according to a legislative analysis conducted earlier this year, Of those, more than 912,000 are older than 30 years and are the home to more than 2 million residents. However, there are currently only 650 inspectors certified to perform the required inspections. The state’s Division of Florida Condominiums, Timeshares, and Mobile Homes will enforce the bill’s new requirements.
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Congratulations on your recent election to your community association’s board of directors. Most likely, you scheduled or already attended your required director’s certification class. Certainly, your certification class was stimulating and covered important topics. However, unlike your certification class, this letter is not based on the law and probably more helpful in your day-to-day life as a new director (or incumbent). Following is a brief review of some observations I made during my twenty-plus years of representing community associations that most new and incumbent directors will find useful.
1. No Good Deed Goes Unpublished.
The maxim “no good deed goes unpublished” holds true for community association directors. Directors are elected to make both easy and difficult decisions for the community. Do not abstain from difficult votes or push difficult decisions down the road because these items only get worse over time. It is a dereliction of your duty to abstain from a decision solely because it is a tough decision to make. Although you may not have created the situation failing to act is failing as a director.
2. Favoritisim is Bad
Favoritism is Bad. Do not show favoritism. It is human nature to be kinder to those you know. In the context of a community association, this can get you, and the association sued. Although your friend who did not obtain prior approval for a standard paint color may not be a significant problem, the owner down the street wants his house purple also without approval is lurking. Playing favorites is a sure-fire way to a lawsuit and disastrous results as a director.
3. Avoid Populist Proposals.
Associations can only make decisions at a duly noticed and held Board meeting. Board members can request the placement of items of interest on a meeting’s agenda before it is posted. Having an item on the agenda allows for the particular item to be discussed and possibly voted on at a Board meeting. The Board is typically not allowed to vote on items that are not on the agenda. Non-agenda items can be discussed during a meeting’s “new business” portion and put on the next Board meeting agenda. As a director, I strongly suggest not reaching out to association members and rallying support for an item before bringing the matter properly before the Board to discuss. For example, rallying support from your neighbors for a clubhouse renovation before the Association has an opportunity to learn and inquire about the costs and other limitations is a waste of time and energy. Such efforts are premature, lead to a Board’s failure to act, and cause all those involved to get false hopes followed by bitterness about the lack of progress.
4. Know How and When to Contact the Attorney.
New Board members are expected to have questions. How you approach asking those questions will determine whether you will be an asset or distraction to your Association. The Association and its attorney should have a procedure for contacting the association’s attorney. Successful community associations utilize a legal liaison approach to save money (contact me for more details). Understand and work within this framework so you do not inadvertently incur attorney’s fees for legal opinions of no interest to the association as a whole. Engaging in personal “pet projects” is fine. Using your association’s resources to fund those projects without prior association approval is not.
Another big year for legislation impacting Florida’s community associations. Now is the time for associations to contact their attorneys for guidance. The following items will become law on July 1, 2021, unless vetoed by the Governor. Following is a summary of the highlights. For complete coverage, please click on the various links below to see the bill’s entire text:
Condominiums- SB 630 (available by clicking here):
1. **Collections have changed. See below for important information. Similar to homeowner associations. Condominium association collections require two forty-five-day notices from an attorney compared to the prior two thirty-day notices (SB 56available by clicking here).
2. Renters have the right to inspect and copy only the declaration of condominium, by-laws, and rules.
3. Requiring members to demonstrate any purpose or state any reason for a record inspection is prohibited.
4. Documents required to be posted on a website can be made available via a mobile application (applies only to condominiums with 150 or more units).
5. For condominiums with 150 or more units, instead of posting copies of certain required documents to a website, the association may make those documents available through an application on a mobile device.
6. Discriminatory restrictions in governing documents (e.g., restrictions pertaining to race, color, national origin, religion, gender, or disability) can be amended by the Board without the necessity of a vote by the members.
7. Board member term limits are clarified as beginning on or after July 1, 2018.
8. If condominium association policies do not allow for subrogation against an owner, an owner’s policy cannot allow for subrogation against an association. This bill may have unintended and expensive consequences in the form of higher insurance rates if association insurers cannot recoup losses against a negligent owner.
9. Bids have to be maintained by an association for only one year.
10. Transfer fee maximum amount is increased from $100.00 to $150.00 and will have a CPI adjustment every five years.
11. Recall disputes may go directly to court or arbitration, mediation is no longer an option.
12. Contracts with a service provider owned or operated by a board member (or other relatives with a financial relationship) are no longer prohibited.
13. Associations cannot prohibit the installation of a natural gas fuel station. However, the installation must comply with all federal, state, and local laws.
14. An association can install, operate and charge for an electric vehicle charging station or natural gas fuel station on the common elements or association property. The installation of an electric vehicle charging station or natural gas fuel station will not constitute a material alteration or substantial addition to the common elements or association property.
15. The Division now has jurisdiction to investigate complaints related to association records.
16. Fines are due five days after notice to the violator compared to five days after the Fining Committee approved the fine.
17. Based on the advice of emergency management officials, licensed professionals retained by the association or public health officials, the Board may limit entry or occupancy of any portion of the condominium or association property to protect the health, safety, and/or welfare of the members, tenants, guests, and invitees.
18. During an emergency, the Board may use heightened sanitation protocols and remove debris to mitigate the spread of fungus, mold, or a contagion. In addition, the Board may contract for services or items that assist with the mitigation of damage, further injury, or the spreading of a contagion.
19. Emergency powers are limited to only the amount of time reasonably necessary to protect the health, safety, and/or welfare of members, guests, and invitees, mitigate further damage or injury or make necessary repairs.
20. An association no longer has to wait for a problem to occur. Emergency powers can be used in response to anticipated damage or injury. The term “contagion” was added to the types of emergencies.
21. An association’s emergency powers cannot be used to prohibit owners, tenants, guests, agents, or their invitees from accessing a unit, common elements, and limited common elements if access is necessary to facilitate the sale, lease, or transfer of title to the unit.
22. In response to a records request, condominium associations must provide the owner a certified and itemized list of records produced.
23. Fourteen days’ notice is required for all member meeting notices unless other stated in the association’s by-laws.
24. Service provider conflict of interest provisions have been deleted.
25. Fines are due 5 (five) days after notice from the association.
26. Unpaid fines are no longer considered a type of financial delinquency that would bar an owner from becoming a candidate for a directorship (SB 1966, available by clicking here).
Homeowner Associations- SB 630 (available by clickinghere)
1. **Collections have changed. See below for important information.
2. Similar to condominium associations, amendments to homeowner association governing documents that prohibit or regulate rentals will apply only to owners acquiring title after the amendment is passed or to the existing owners that consent. Rental restrictions in a governing document amendment will not apply to owners that do not vote on the amendment or that vote no. Instead, the rental restrictions would apply only after the home is sold. A home transferred to an affiliated entity in which the beneficial ownership remains the same, or a home devised (transferred) through a will, does not give rise to the imposition of a rental restriction amendment. This new law does not apply to governing document amendments seeking to prohibit or regulate rentals for terms of less than six (6) months or seek to limit rentals to no more than three times a year. The new law also does not apply to a homeowners’ association with less than sixteen homes.
3. Records or other information obtained by a community association when a guest visits an owner or resident (security check at gated communities, etc.) are not accessible to members.
4. Rules & Regulations are no longer included in the definition of “governing documents.” The inclusion of Rules and Regulations in the definition was the reason homeowner associations started recording them. Considering the flip-flop nature of the legislature and that most Rules and Regulations have now been recorded, continuing to record new Rules and Regulations makes sense.
5. Sign-in sheets, ballots, voting proxies, and all other records pertaining to parcel owners’ voting must be maintained for one year after the vote.
6. If governing documents do not obligate the developer to create reserves, no reserves are accounted for in the budget, and the association is responsible for the repair and maintenance of
capital improvements for which a special assessment may be necessary, financial reports for the preceding year must contain disclosure language in conspicuous type.
7. Reserves are to be considered mandatory only if the governing documents obligated the developer to provide reserves or the reserve(s) are approved by a majority of the association’s total voting interests.
Applicable to both condominium and homeowner associations
1. **Collections SB 56 (available by clicking here):
An association may not require payment of attorney fees related to a past due assessment without first delivering a written notice of late assessment to the unit owner which specifies the amount owed to the association and provides the unit owner an opportunity to pay the amount owed without the assessment of attorney fees. The notice of late assessment must be sent by first-class United States mail to the unit owner at his or her last address as reflected in the association’s records and, if such address is not the unit address, must also be sent by first-class United States mail to the unit address. Notice is deemed to have been delivered upon mailing as required by this subsection. A rebuttable presumption that an association mailed a notice in accordance with this subsection is established if a board member, officer, or agent of the association, or a manager licensed under part VIII of chapter 346 468, provides a sworn affidavit attesting to such mailing. The notice must be in substantially the following form:
NOTICE OF LATE ASSESSMENT
RE: Unit …. of …(name of association)…
The following amounts are currently due on your account to …(name of association)…, and must be paid within 30 days of the date of this letter. This letter shall serve as the association’s notice of its intent to proceed with further collection action against your property no sooner than 30 days of the date of this letter, unless you pay in full the amounts set forth below:
Maintenance due …(dates)… $…..
Late fee, if applicable $…..
Interest through …(dates)…* $…..
TOTAL OUTSTANDING $…..
*Interest accrues at the rate of …. percent per annum.
2. Covid-19. SB 72 (available by clicking here). If community associations follow safety guidelines properly, they may be immune to COVID-19 related lawsuits. The hurdles for a plaintiff to prove a COVID-19 infection was the fault of an association are sharply increased.
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Stay one step ahead of new legislation, recent case law, and new developments that impact your community association by subscribing to the Gerstin & Associates newsletter.
SB 630 unanimously passed both the House and Senate. A copy of the first engrossed version bill is available by clicking here. The bill will be sent to the Governor for signature and has an effective date of July 1, 2021.
There are also many other amendments to Florida law and newly drafted laws expected to be passed by the legislature that will impact Florida’s community associations. Check back here often for additional legislation as each one passes. When all of the legislation impacting community associations is passed in their final form, we will distribute a complete analysis of each new and amended Florida statute.
As the COVID-19 vaccine rollout begins to spread across the country two opposing sides are emerging, individuals refusing to get vaccinated and others hoping to refuse them service. Board members across Florida are wondering whether their community association can and should require anybody residing in and/or entering their community to be vaccinated. In short, the answer is not clear. Dealing with a novel virus-induced pandemic brings novel legal challenges without clear answers.
According to the Appellate Court in the case of Hidden Harbour Estates, Inc. v. Norman:
“It appears to us that inherent in the condominium concept is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property. Condominium unit owners comprise a little democratic sub-society of necessity more restrictive as it pertains to use of condominium property than may be existent outside the condominium organization. . .”
Hidden Harbour Estates, Inc. v. Norman, 309 So.2d 180 (Fla. 4th DCA 1975).
The Hidden Harbour Court went on to hold the test to determine a rule’s validity is “reasonableness”. Only if a board of directors has the power to adopt a rule, the rule is reasonable, and the rule does not conflict with some other right contained in a superior governing document, can the association adopt it. In this instance, rules requiring members to be vaccinated may conflict with the easements granted to owners to enjoy the common areas (a superior governing document). In addition to possibly conflicting with a member’s easement to enjoy the common areas, vaccines are not yet available to everyone and members will present religious and medical accommodations. As anyone dealing with emotional support animals in a no animal environment will readily explain, there are many easy-to-find medical providers ready, willing, and able (for a fee) to attest to an ailment or affliction to assist a member avoid a rule. Despite their often-dubious attestations, requiring a vaccine and refusing an accommodation based on a medical or religious exemption is difficult and expensive for community associations to fight. Adding the proverbial fuel to the fire is Florida’s lack of a Covid-19 vaccine mandate and pending legislation to strip the Florida Department of Health’s authority to implement a COVID-19 vaccine mandate (HB 6003).
Another problematic issue is increased association liability. In addition to the ever-increasing “HIPPA type” liability that comes from storing health records, community associations will be placing themselves as the weak (and liable) link in a chain if an unvaccinated member sneaks in. Further stoking potential community liability is the science (many people seem to ignore), vaccinated people can catch and transmit COVID-19. Community associations promoting the safety of mingling in their clubhouse or similar area with only vaccinated people may find themselves in a lawsuit from a person infected in an area promoted as safe.
What can a community association do?
Although requiring members to be vaccinated may not be the best approach, requiring individuals other than members to be vaccinated may be a position worth exploring. Depending on a community association’s governing documents, passing rules requiring all vendors for the common areas and elements to be vaccinated is a good first step. Association’s that rent clubhouse rooms or common elements (tennis, bocce, pickleball, etc.) to groups in which outsiders are allowed to participate may also want to consider a vaccine requirement for the outsiders. However, for the reasons expressed above related to members, it is doubtful a community association can prohibit an unvaccinated guest of a member who is not part of a member-group renting an area from using the area with a member.
Until the emergency declaration by Governor DeSantis expires, Florida’s community associations will have extended leeway to propose rules limiting the spread of COVID-19. However, an emergency declaration is not going to overcome the multiple religious and medical accommodations that will be presented in response to a vaccine mandate. Combined with potential liability in storing medical records and the implied notion a common area with only vaccinated people will be 100% safe, community associations looking to require vaccinations should look outward towards their groups that rent common areas and vendors. Combined with this outwardly focus should be a relentless effort on behalf of every community association to educate and promote to its members through easy-to-understand and readily available information the use of the COVID-19 vaccine.
Due to the increase of information available online, criminals have been fraudulently recording deeds and stealing or refinancing people’s homes without their knowledge. Recently, the Palm Beach and Broward County Clerks have each established programs to alert residents when a deed to their property has been transferred, for free!.
No free or paid service, despite promises to the contrary, can stop a County Clerk from recording a deed, even a fraudulent one. These services do not prevent the fraud from happening. Instead, the rightful owners are alerted within 24 hours by email if there is a problem that needs to be addressed before it is too late.
Residents in Palm Beach and Broward can sign up for this free fraud prevention program as follows:
Palm Beach County community associations interested in having their community as a Point of Distribution (“POD”) for the CVOID-19 vaccine should send a letter of request to (see email and telephone contact information at the end of this post):
Mr. Philip Dulmage Office of Public Health Preparedness Florida Health – Palm Beach County 800 Clematis Street West Palm Beach, FL 33401
The letter should include the following:
* A demographic description of the community
* The number of residents in the community, and the number of residents aged 65+
* A specific request for a mobile unit to service the community
Once received, your community will be placed in the queue for vaccine distribution, as vaccine becomes available. The source of this information is Rep. Emily Slosberg, the PBC Legislative Delegation and the Alliance for Delray Residential Associations.
The following contact information was located online:
Philip J. Dulmage Jr. Cities Readiness Initiative Coordinator SE FL Reg. 7 AHIMT – RESL Division of Performance Improvement & Preparedness Florida Department of Health Palm Beach County 800 Clematis Street West Palm Beach, Fl 33401 (561) 671-4016 office Email: Philip.Dulmage@flhealth.gov
As The State of Florida emerges from the COVID-19 pandemic, the year 2020 will live on in infamy. During the past year of sadness, chaos, and hope many trends emerged that are likely to stay with us long after COVID-19 is gone. Some of these trends, such as increased communication and video conferencing, will be welcome. Other trends, such as the need for increased collection efforts and renewed leasing and sales restrictions, may not be as welcome. Following are the top ten most pressing issues for community associations in the new year.
1. ZOOM Meetings for Members. For most community associations, offering a video conferencing option for the members to participate in a Board meeting or count towards a quorum in member meetings after the emergency declarations are lifted will require the promulgation of well-drafted Rules. For some community associations, the more arduous process of amending the declaration or by-laws may be required.
2. ZOOM Meetings for Directors. In addition to members participating in board meetings via video conferencing, directors may want to participate via videoconferencing as well. Allowing directors to participate via video conference after the emergency declarations are lifted will require a thorough review of a community association’s governing documents. A quorum of the board attending board meetings via video conferencing after the emergency declaration subsides will most likely not survive a challenge.
3. Recording ZOOM Meetings. If a ZOOM meeting is recorded, the recording is an Official Record likely requiring the Association to make the recording available to others to watch for the next seven years. Deciding not to record video conference meetings inevitably causes the loss of evidence necessary to confirm a quorum if challenged. Consider establishing a video conference recording policy.
4. Mandating Vaccines for Common Area Access. Can a community association mandate proof of COVID-19 vaccination before allowing members or their guests access to common areas?
5. Working from Home or Running a Home-Based in Community Associations. The pandemic normalized working from home and in many instances newly laid-off workers are starting home-based businesses. Working from home is different from having a home-based business with pickup, deliveries, and the occasional customer. However, most governing documents do not recognize the difference between the two, rendering most existing work at home/ home-based business restrictions useless.
6. The Mass Yankee Migration, Leasing & Sales Restrictions. The pandemic amplified an already existing trend, more people are moving to Florida than ever before. Many community associations recently made an unsettling discovery, their leasing and sales restrictions enforced for years are either outdated or do not exist at all! Fair Housing Act complaints are brutally expensive and may not be covered by your community’s insurance. Check and validate your leasing and sales restrictions before it is too late.
7. Getting Involved in Neighbor v. Neighbor Disputes. As the pandemic raged, so did people’s tempers. Community associations that misunderstood their role and scope of authority are now finding themselves spending time and money handling neighbor v. neighbor disputes. To avoid unnecessary liability and the wasting of precious resources, community associations need to know “when to hold and when to fold em’”.
8. Increased Collection, Bankruptcies, and Foreclosures. The financial strain of the pandemic will be felt throughout community associations long after the pandemic is over. Many community associations have out-of-date collection policies. Other community associations improperly “follow their gut” or make up rules as they go. Community associations need to examine their collection policies now. Lawsuits over improper collection activity are expensive and damaging. Community associations can be compassionate, while at the same time avoid costly deficits.
9. Governing Document Enforcement. Many community associations were lax in enforcing their governing documents as the pandemic raged. Finding a kindly, gentler way to now enforce your governing documents before it is too late and your community’s restrictions are “waived” and lost forever is vital for many community associations.
10.Pets, Pets & More Pets. During the pandemic pet adoptions skyrocketed. Many community associations found themselves without the ability to limit pets and have no system in place to track pets. Other community associations improperly allow or deny emotional support animals leading to increased liability.
One thing is known for certain, community associations that act proactively will be better positioned to meet their obligations in the year 2021. Form a committee, gather the Board, and call your association’s attorney, the time is now to plan ahead.
The Alliance of Delray Residential Associations and Gerstin & Associates are pleased to announce a virtual board of directors certification course for both condominiums and HOAs will be held:
Date: January 14, 2021.
Time: 6 PM to 8 PM.
All attendees will be emailed a Certificate of Completion illustrating Florida’s certification requirement for new directors has been met.
To register, please email vinikoor@bellsouth.net or message Delray Alliance Exec. VP Lori Vinikoor at 561-715-1530.
Although the course is free, registration is required and is limited so please register now.
"The purpose of law is to prevent the strong from always having their way."
