Legislation

2024 Florida Community Association Legislative Update

Posted on by Gerstin

-By Joshua Gerstin, Esq.

click here for .PDF of this article

“A butterfly flaps its wings in Africa, and a hurricane lands in Florida six months later.” The same can be said about community associations. A few bad actors in one part of the state are caught, and six months later, an entirely new regulatory scheme for community associations is passed.

Known as “Condo 3.0,” the recently passed legislation affecting condominium associations is extensive. Plan ahead to avoid issues, the legislation goes into effect on July 1, 2024.

Although not as extensive as the condominium association legislation, homeowner associations were not spared extra regulation. The legislation affecting homeowners associations goes into effect on July 1, 2024.

CS/CS/CS/HB 1021 — Condominium Associations Effective July 1, 2024.

Click here for the full text of the bill

Community Association Managers

The bill requires community association managers (CAMs) and CAM firms to return all community association records in their possession within 20 business days of termination of a services agreement or a written request whichever occurs first, with license suspension and civil

penalties for noncompliance, except that the time frames applicable to timeshare plans apply to the records of a timeshare plan.

The bill provides conflict of interest disclosure requirements and a process for associations to follow when approving contracts with CAMs and CAM firms, or a relative, that may present a conflict of interest. The requirements are similar to the conflicts of interest provisions for condominium associations and their officers and directors, including:

  • Providing that, if the association receives and considers a bid to provide a good or service that exceeds $2,500, other than community association management services, from a CAM or CAM firm, including directors, officers, persons with a financial interest in a CAM firm, or a relative of such persons, the association must also solicit multiple bids from other third-party providers of such good or service.
  • Requiring that the proposed activity that may be a conflict of interest must be listed on, and all contracts and transactional documents related to the proposed activity must be attached to, the board’s meeting agenda and entered into the meeting minutes.
  • Requiring the board must approve the contracts with a potential conflict of interest, and all management contracts, by an affirmative vote of two-thirds of all directors present.

Milestone Inspections

Currently, single-family, two-family, and three-family dwellings are exempt from the milestone inspection requirements. The bill exempts four-family dwellings with three or fewer habitable stories above ground.

Official Records – Condominiums

Regarding access to the official records of a condominium association, the bill:

  • Provides that, if records are lost or destroyed, there is a good faith obligation to obtain and recover the records as is reasonably possible.
  • Allows e-mail addresses and facsimile numbers to be accessible to unit owners if consent to receive notice by electronic transmission has been provided.
  • Prohibits the sale or sharing of such personal information to third parties.
  • Effective January 1, 2026, decreases from 150 units to 25 units the threshold requirement for an association to maintain specified records available on the association’s website or on a mobile device.
  • Requires official records to be provided to the unit owner at no charge if the Division of Condominium, Timeshares, and Mobile Homes (division) within the Department of Business and Professional Regulation (DBPR) subpoenas records an association has failed to timely provide in response to a unit owner’s written request.
  • Requires associations to maintain additional financial records (e.g., invoices and other documentation that substantiates any receipt or expenditure).
  • Requires associations to respond to a records request with a checklist of all records provided.
  • Authorizes the division to request access to an association’s website to investigate complaints related to unit owner access to official records on such website.

Criminal Violations – Condominiums

The bill provides the following criminal penalties related to condominium associations, and the official records of the association:

  • Second degree misdemeanor for any director or member of the board or association to knowingly, willfully, and repeatedly violate (two or more violations within a 12-month period) any specified requirements relating to inspection and copying of official records of an association;
  • First degree misdemeanor for knowingly and intentionally defacing or destroying required accounting records, or failing to create or maintain required accounting records, with the intent of causing harm to the association or one or more of its members;
  • Third degree felony to willfully and knowingly refuse to release or produce association records, with the intent to avoid or escape detection, arrest, trial, or punishment for the commission of a crime, or to assist another person with such avoidance or escape;
  • Third degree felony for an officer, director, or manager of a condominium association to knowingly solicit, offer to accept, or accept a kickback; and
  • First degree misdemeanor for engaging in specified fraudulent voting activity, and knowingly aiding, abetting, or advising a person in the commission of a fraudulent voting activity related to association elections.

The bill provides that officers and directors charged with a criminal violation under ch. 718, F.S., are deemed removed from office and a vacancy declared.

Budgets, Financial Reporting, and Reserves – Condominiums and Cooperatives

Regarding condominium association budgets, financial reporting, and reserves, the bill:

  • Prohibits associations from reducing the required type of financial statement (compiled, reviewed, or audited financial statements) for consecutive years.
  • Requires associations to provide unit owners with a notice that the structural integrity reserve study (SIRS) is available for inspection and copying within 45 days of completion of the study. The notice may be provided electronically.
  • Allows associations to temporarily pause the funding of reserves or a reduce reserve funding if the entire condominium building is uninhabitable due to a natural emergency, as determined by the local enforcement agency, upon majority approval of the members.

Condominium and cooperative associations must notify the division within 45 days after the SIRS is completed. By January 1, 2025, the division must create a database of associations that have completed the SIRS. After December 31, 2024, the division must include in its annual report a list of all associations that have completed the SIRS.

Meetings of Condominium Associations

The bill requires:

  • Associations of 10 or more units to meet quarterly and four times each year the agenda must allow members to ask questions concerning the status of construction or repair projects, revenues and expenditures, and other condominium issues; and
  • The notice for meetings on assessments must include the cost and purpose of assessments and a copy of any proposed contract.

Director Education – Condominiums

The bill provides education requirements for the officers and directors of condominium associations to require:

  • Newly elected or appointed directors to submit both the written certification that they have read the association’s governing documents, will work to uphold the documents to the best of their ability and faithfully discharge their duties, and submit a certificate of completion of an approved condominium education course;
  • Four hours of training which includes instruction on milestone inspections, SIRS, elections, recordkeeping, financial literacy and transparency, levying of fines, and meeting requirements;
  • Directors to annually complete at least one hour of continuing education about recent changes to the condominium laws and rules during the past year; and
  • Association directors, excluding directors for a timeshare condominium, to certify, on a form provided by the division, that all directors have completed the required written certification and educational certificate requirements.

Voting in Condominium and Cooperative Associations

Regarding voting in condominium and cooperative associations, the bill:

  • Requires associations to notify a condominium unit owner or member that his or her voting rights may be suspended due to non-payment of a fee or other monetary obligation at least 90 days before an election.
  • Allows cooperative and condominium owners to consent to electronic voting in elections by using an electronic means of consent.
  • Provides that if the cooperative and condominium board authorizes online voting, the board must honor a unit owner’s request to vote electronically at all subsequent elections, unless the unit owner opts out.

Hurricane Protections – Condominiums

The bill revises the requirements for the installation of hurricane protection in a condominium building, including:

  • Creating a uniform definition for “hurricane protection;”
  • Requiring condominium declarations to delineate the responsibilities of unit owners and associations for the costs of maintenance, repair, and replacement of hurricane protections, exterior doors, windows, and glass apertures;
  • Providing a uniform procedure for approval of hurricane protection; and
  • Providing that unit owners are not responsible for the cost of removal and reinstallation of hurricane protection if the removal is necessary to repair condominium property.

SLAPP and Defamation Suits

The bill revises the prohibitions against “strategic lawsuits against public participation” or “SLAPP suits,” which occur when association members are sued by individuals, business entities, or governmental entities for matters arising out of a unit owner’s appearance and presentation before a governmental entity on matters related to the condominium association.

The bill includes condominium associations in the SLAPP suit prohibition, and protects unit owners who report complaints to government agencies or law enforcement, or make public statements critical of the operation or management of an association by prohibiting associations from:

  • Retaliating against unit owners, by increasing assessments, threatening to bring an action for possession or other civil action; and
  • Spending association funds in support of defamation, libel, or tortious interference actions against a unit owner.

Condominium Officers and Directors

The bill provides that the attendance of an officer or director at a meeting of the board is sufficient to constitute a quorum for the meeting and for any vote taken in his or her absence when the director is required to leave the room during the discussion and the taking of a vote on a contract in which the director, or his relative, has an interest.

Division of Condominium, Timeshares, and Mobile Homes

The bill expands the division’s post-turnover jurisdiction to include:

  • Procedures and records related to financial issues, including annual financial reporting, assessments for common expenses, fines, and commingling funds;
  • Elections, including election and voting requirements, and recall of board members;
  • The maintenance of and unit owner access to association records;
  • The procedural aspects of meetings, such as unit owner meetings, quorums, voting requirements, proxies, board of administration meetings, and budget meetings;
  • Disclosure of conflicts of interest;
  • Removal of a board director or officer under ch. 718, F.S.;
  • The procedural completion of structural integrity reserve studies; and
  • Any written inquiries by unit owners to the association.

In addition, the bill:

  • Requires that the division must refer to local law enforcement authorities any person it believes has engaged any criminal activity.
  • Provides that the division and the office of the condominium ombudsman may attend and observe any meeting of the board or any unit owner meeting, for the purpose of performing the duties of the division or the office of the ombudsman.

The division must submit findings by January 1, 2025, to the Governor, the President of the Senate, and the Speaker of the House of Representatives, of its review and recommendations of the website or application requirements for official records.

Condominium Ombudsman

The bill provides for the appointment of the Condominium Ombudsman by the DBPR secretary instead of the Governor, and deletes the requirement that the ombudsman must be an attorney.

Limitations on Actions by Condominium and Cooperative Associations

The bill provides that the statute of limitations and statute of repose for certain actions available to a condominium association or a cooperative association, will not begin to run until the unit owners have elected a majority of the members of the board of administration.

Pre-Sale Disclosures and Requirements

The bill revises the form in which the prospective purchaser of a condominium unit acknowledges receipt of specified documents to include a copy of the most recent annual financial statement and annual budget of the condominium association.

Effective October 1, 2024, the bill also:

  • Includes the annual financial statement and annual budget of the condominium association among the documents a nondeveloper seller of a unit must give to a prospective purchaser of a unit.
  • Allows developers of nonresidential condominiums the option of delivering to the escrow agent a surety bond or an irrevocable letter of credit with specified conditions, and
  • Revises escrow requirements for developers.

Condominiums Within a Portion of a Building or Within a Multiple Parcel Building The bill revises the definition for the term “condominium property” to mean “the lands, leaseholds, improvements, any personal property, and all easements and rights appurtenant

thereto, regardless of whether contiguous, which are subjected to condominium ownership.”

Effective October 1, 2024, the bill provides disclosure requirements for the creation of condominiums within a portion of a building or within a multiple parcel building. The association of a condominium created within a portion of a building or within a multiple parcel building has the right to inspect and copy the books and records upon which the costs for maintaining and operating the shared facilities are based and to receive an annual budget with respect to such costs.

Florida Building Commission – Water Intrusion Study

The bill also requires the Florida Building Commission to submit a report by December 1, 2024, to the Governor, the President of the Senate, the Speaker of the House of Representatives, and the chairs of the legislative appropriations committees and appropriate substantive committees with jurisdiction over ch. 718, F.S., of its review of the standards to prevent water intrusion through the tracks of sliding glass doors.

CS/CS/HB 1503 — Condominium Association Insurance Effective July 1, 2024.

Click here for the full text of the bill.

The bill relates to using surplus lines of insurance for non-homesteaded homes (second homes).

  • HB 1503, will allow surplus lines carriers to make takeout offers on Citizens’ policies that cover second homes that are non-homesteaded. Some lawmakers had said this change would provide more options for snowbirds and others with vacation homes that have struggled to find affordable coverage and would take those properties off Citizens’ book of business.

HB 1029— Condominium Associations My Safe Florida Home

Effective July 1, 2024.

Click here for the full text of the bill.

This bill creates a Condominium Pilot Program within the very popular My Safe Florida Home Program(Opens in a new window) that continues to be available to single family homes. Single family homeowners may get the free inspection and apply for their grant now. After July 1, 2024, the site will be updated to include condominium associations.

For condo associations to participate they must meet the following criteria:

  • Be located within 15 miles of a coastline.
  • To apply for a FREE state inspection, the condominium association must receive approval by majority vote of the board of directors or a majority vote of the total voting interests of the association.
  • To apply for a grant, an association must receive both of the following:

Approval by a majority vote of the board of directors or a majority vote of the total voting interests of the association to participate in a mitigation inspection.

A unanimous vote of all unit owners within the building that is the subject of the mitigation grant.

  • The votes required may take place at the annual budget meeting or at a unit owner meeting called for the purpose. Before a vote may be taken, the association must provide the unit owners a clear disclosure of the program on a form created by the department.
  • The president and treasurer of the board must sign the disclosure form indicating that a copy of the form was provided to each unit owner of the association. The signed disclosure form and the minutes from the meeting at which the unit owners voted to participate in the program must be maintained as part of the official records.
  • Within 14 days after an affirmative vote to participate in the program, the association must provide written notice to all unit owners of the decision.

CS/CS/HB 1203 — Homeowners’ Associations Effective July 1, 2024.

Click here for the full text of the bill.

The bill relates to the governance of homeowners’ associations and the practice of the community association managers who manage those communities.

Community Association Managers

Regarding community association managers (CAMs) and CAM firms, the bill requires CAMs and CAM firms to:

  • Annually attend at least one member meeting or board meeting of the association;
  • Provide to community association members certain information, including the contact person, contact information, and the hours of availability;
  • Provide the community’s members upon request a copy of the contract between the association and the CAM or CAM firm;
  • Annually complete at least 10 hours of continuing education; and
  • Biennially complete at least five hours of continuing education that pertains to homeowners’ associations, three hours of which must relate to recordkeeping.

Official Records

The bill requires homeowners’ associations to:

  • Effective January 1, 2026, associations with 100 or more parcels, maintain a digital copy of specified official records for download on the association’s website or through an application on a mobile device.
  • Provide a copy of records or otherwise make the records available that are subpoenaed by a law enforcement agency within five days of receiving a subpoena.
  • Maintain official records for at least seven years, unless the governing documents of the association require a longer period of time.

Criminal Violations

The bill provides the following criminal penalties related to homeowners’ associations:

  • Second degree misdemeanor for any director or member of the board or association to knowingly, willfully, and repeatedly violate (two or more violations within a 12-month period) any specified requirements relating to inspection and copying of official records of an association with the intent of causing harm to the association or one or more of its members;
    • First degree misdemeanor for knowingly and intentionally defacing or destroying required accounting records, or knowingly and intentionally failing to create or maintain required accounting records, with the intent of causing harm to the association or one or more of its members;
  • Third degree felony to willfully and knowingly refuse to release or otherwise produce association records, with the intent to avoid or escape detection, arrest, trial, or punishment

for the commission of a crime, or to assist another person with such avoidance or escape; and

  • Third degree felony for an officer, director, or manager of a condominium association to knowingly solicit, offer to accept, or accept a kickback.

The bill also expands the current criminal prohibitions against fraudulent voting activity to provide it is a first degree misdemeanor for:

  • Knowingly aiding, abetting, or advising a person in the commission of a fraudulent voting activity related to association elections.
  • Agreeing, conspiring, combining, or confederating with at least one other person to commit a fraudulent voting activity related to association elections.
  • Having knowledge of a fraudulent voting activity related to association elections and giving any aid to the offender with intent that the offender avoid or escape detection, arrest, trial, or punishment.

·

Any officer or director charged with a criminal violation under ch. 720, F.S., must be removed from office and a vacancy declared.

Assisting Law Enforcement

The bill requires associations, if subpoenaed, to provide a copy of the requested records within five business days of receiving the subpoena and to assist law enforcement in any investigation to the extent permissible by law.

Financial Reporting

The bill:

  • Requires associations with 1,000 or more parcels to have audited financial statements; and
  • Prohibits associations from reducing the required type of financial statement (compiled, reviewed, or audited financial statements) for consecutive years.

Requirement to Provide Accounting

The bill allows association parcel owners to make a written request for a detailed accounting of any amounts owed to the association. If the association fails to provide the accounting within 15 business days of a written request, any outstanding fines of the requester are waived if the fine is more than 30 days past due and the association did not give prior written notice of the fines. It also prohibits parcel owners from requesting another detailed accounting within 90 days of such a request.

Education – Officers and Directors

The bill revises the education requirements for the directors of homeowners’ associations to:

  • Require a newly elected or appointed director to, within 90 days after being elected or appointment to submit a certificate of having completed the educational curriculum.
  • Require that the educational curriculum include training relating to financial literacy and transparency, recordkeeping, levying of fines, and notice and meeting requirements.
  • Require a director of an association that has:
    • Fewer than 2,500 parcels to complete at least four hours of continuing education annually.
  • 2,500 or more parcels must complete at least eight hours of continuing education annually.

Enforcement of Covenants and Rules

The bill requires associations or an architectural, construction improvement, or other similar committee to:

  • Provide written notice to the parcel owner of the rule or covenant relied upon when denying the request for the construction of a structure or other improvement;
  • Not place limits on the interior of a structure or require review of HVAC, refrigeration, heating, or ventilating system not visible from a parcel’s frontage, an adjacent parcel, common area, or community golf course, if a substantially similar system has been previously approved; and
  • Not prevent a homeowner from installing or displaying vegetable gardens and clotheslines in areas not visible from the frontage or an adjacent parcel, an adjacent common area, or a community golf course.

Fines, Suspensions, and Liens

Associations must have a hearing before a committee to review a fine or suspension issued by the board, and the bill:

  • Requires the 14-day notice of the parcel owner’s right to a hearing to be in writing;
  • Requires the hearing to be held within 90 days of the notice of hearing;
  • Allows the committee to hold the hearing by telephone or other electronic means;
  • Requires written findings related to the violation to be provided within seven days of the hearing, the date the fine must be paid or the suspension fulfilled;
  • Requires the date by which the fine must be paid to be at least 30 days after delivery of the written notice of the committee’s decision; or
  • Prohibits attorney fees and costs based on actions taken by the board before the date set for the fine to be paid;
  • Allows that, if a violation and the proposed fine or suspension is not cured or the fine is not paid, reasonable attorney fees and costs may be awarded to the association, but may not begin to accrue until after the payment date of the fine or the appeal time has expired.

The bill prohibits homeowners’ associations from issuing a fine or suspension for:

  • Leaving garbage receptacles at the curb or end of the driveway less than 24 hours before or after the designated garbage collection day or time.
  • Leaving holiday decorations or lights up longer than indicated in the governing documents, unless such decorations or lights are left up for longer than one week after the association provides written notice of the violation to the parcel owner.

The bill also provides that homeowners’ associations may not prohibit a homeowner or others from parking:

  • A personal vehicle, including a pickup truck, in the property owner’s driveway or in any other area where they have a right to park.
  • A work vehicle, which is not a commercial motor vehicle, in the property owner’s driveway.
  • Their assigned first responder vehicle on public roads or rights-of-way within the homeowners’ association.

In addition, the governing documents may not prohibit a property owner from:

  • Inviting, hiring, or allowing entry to a contractor or worker on the owner’s parcel solely because the contractor or worker is not on a preferred vendor list of the homeowners’ association or does not have a professional or occupational license.
  • Operating a vehicle in conformance with state traffic laws, on public roads or rights-of- way or the property owner’s parcel, unless the vehicle is a commercial motor vehicle.

Electronic Voting

The bill allows members of a homeowners’ association to consent to electronic voting by using an electronic means of consent. Current law requires written consent to vote electronically.

Assessments

The bill permits only simple interest, not compound interest, to accrue on assessments and installments on assessments that are not paid when due.

ACT NOW!

Stay one step ahead of new legislation, recent case law, and new developments that may impact your community association by subscribing to the Gerstin & Associates newsletter.

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New Federal Law Mandates Community Association Disclosures!

Posted on by Gerstin

By: Joshua Gerstin, Esq.

 (click here for .PDF version)

On January 1, 2024, a new Federal law known as the “Corporate Transparency Act” (“Act”) went into effect. The Act requires community association directors (and others) to disclose significant private personal information to the United States government by January 1, 2025.

Although the ACT was designed to pierce “shell” corporations in search of sex trafficking, money laundering, and other crimes, its overly and unnecessarily broad drafting ensnares community associations as not-for-profit corporations.

The ACT requires all corporations to report beneficial ownership information to the U.S. Treasury Department’s Financial Crimes Enforcement Network (FinCEN). Individuals who willfully fail to report the following information are subject to civil and criminal penalties:

•           Association name.

•           Board members’ names, birthdates, home addresses, and identifying information from a driver’s license, government-issued identification, or valid passport. 

•           Names, birthdates, home addresses, and identifying information from a driver’s license, government-issued identification, or valid passport of individuals with substantial control. Whether or not this requirement includes property managers is unknown.

Additionally, the federal government has to be notified within thirty days if any of the information already submitted changes (e.g., new directors or property managers). Currently, efforts are underway to exempt community associations from the ACT. However, considering this law was passed over a presidential veto and the inability of Congress to pass legislation, hopes are dim that the law will be changed before compliance is required. For more information or to prepare, below is the link to the website for submission of information for the ACT.

Beneficial Ownership Information Reporting | FinCEN.gov

(click here for .PDF version)

Act Now!

Stay one step ahead of new legislation, recent case law, and new developments that may impact your community association by subscribing to the Gerstin & Associates newsletter.

Click Here to Subscribe to the Gerstin & Associates Newsletter

Update. Florida Vacation Rental Bill SB1128 Amended to Protect Community Associations

Posted on by Gerstin

No longer do Florida’s homeowner and condominium associations have to worry they are losing the ability to regulate vacation rentals. The ability of homeowner of condominium associations to limit or restrict vacation rentals such as Airbnb and VRBO is reestablished in a recently filed and approved amendment to SB1128 with the addition of the following provision:

“ The application of this act shall not supersede any current or future declaration or declaration of condominium adopted pursuant to chapter 718, Florida Statutes, cooperative documents adopted pursuant to chapter 719, Florida Statutes, or declaration of covenants or declaration adopted pursuant to chapter 720, Florida Statutes.”

Click here to read the original bill and click here to the recent amendment.   SB2118 remains in committee and has a long way to travel before it reaches the Governor’s desk.

 

Avoiding an Election Do-Over, Understanding Florida Condominium Association Director Term Limits.

Posted on by Gerstin

Having to Re-Do Your Condominium Association’s Election is Embarrassing, Costly and Avoidable (most of the times).

By: Joshua Gerstin, Esq.

(Click here for this article in .pdf)

 

As Florida’s condominium association election season nears, two distinct groups of condominium owners will emerge with each claiming a totally opposite meaning and application of Florida’s condominium director term limit statute (Florida Statute §718.111 (2)(d)2):

  1. Condominium associations struggling to attract candidates to serve on its board of directors will claim the statute does not apply retroactively. Therefore, candidates that have served the eight-year consecutive maximum can continue to serve.
  1. Condominium associations with boards stacked with so-called “lifers” will claim the statute applies retroactively and those that already served or are about to serve (if they win) more than eight consecutive years are prohibited.

Florida’s legislature provided little help when it amended Statute §718.111 (2)(d)2) without indicating whether the statute applies retroactively or proactively.  Ordinarily, unless a statute expressly states it is to be applied retroactively, the statute is applied only to circumstances arising after its enactment. However, Florida’s condominium laws are anything but ordinary and sometimes new statues are applied retroactively depending on whether the retroactive application impairs a “right”.  If so, the statute is only applied proactively.

This above calculation of a statute’s retroactive application versus impaired rights changes again if a condominium association declaration contains the magic language known as the “Kaufman language”.  The Kaufman language is verbiage in a condominium association’s declaration that automatically incorporates and retroactively applies new statutes by expressing the declaration follows Florida law as “it is amended from time to time”.

Recently, The State of Florida Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares and Mobile Homes (“Division”) somewhat clarified this issue with its arbitration decision in Glantz v. Hidden Lake of Manatee Owners’ Association, Inc. Case No.: 2019-01-5048 (click here for the case). In Glantz, the condominium association declaration did not have the magic Kaufman language. Without Kaufman language in its declaration the Division held the condominium association members were “. . . not subject in any way to the term limit provision in the 2018 amendment to Section 718.111 (2)(d)2. because the Declaration does not contain “Kaufman language”.

Whether the Division concludes a declaration actually containing the Kaufman language will cause the term limit statute to be retroactively applied, remains to be seen.  For now, condominium associations are advised to check their Declaration for the Kaufman language for a determination of a candidate’s eligibility (and consult with their attorney).

 

 

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Fax this completed page to (561) 750-8185 or email the above information to: joshua@gerstin.com

 

 

If You Only Read One Article About Community Associations and Solar Panels, Read this One.

Posted on by Gerstin

Regulating Solar Panels the Right Way

By Seth Amkraut, Esq.

Click here for .pdf version of this article

With its never ending sunshine and our nation’s collective desire to reduce greenhouse gas emissions, it is little surprise residents in our “Sunshine State” are eager to install solar panels. Unfortunately, solar panel designers did not consider engineering solar panels that match the aesthetics of a home or community.  Often times, these “ugly” solar panels result in misguided efforts by community associations to strictly regulate or ban them outright.

Florida law guarantees owners the right to install solar panels on their roofs and community associations are not allowed to ban them. Therefore, trying to enforce either strict rules or an outright solar panel ban invites an expensive lawsuit the association has little chance of winning.

Although outright bans are unenforceable, community associations do have some authority to regulate solar panels. In fact, as long as a community association restriction does not impair the effectiveness of solar panels the restriction will be enforceable.  One such restriction often implemented by Florida’s community associations is requiring solar panels to have a southward orientation or within 45 degrees of due south.

In addition to the above, community associations are allowed to conduct due diligence and require documents from owners such as: proof of the contractor’s license and insurance, images or diagrams showing the proposed location and orientation of the solar panels.  Additionally, although your community associations may be obligated to repair and maintain your owners’ roofs, owners can be required to maintain and repair their solar panels (as well as any damages they cause to a roof).

Every community association is different and drafting legally compliant solar panel rules is difficult.  Therefore, the best way to get started is to speak with your community association’s attorney.  Gerstin & Associates can assist your community with drafting a solar panel policy to allow for maximum regulation without running afoul of Florida and federal law. Contact our office today for a free consultation.

 

Stay Informed, Subscribe to the Gerstin & Associates Newsletter

 Subscribe to the Gerstin & Associates Newsletter!

Name: _________________________________________________

Mailing address: ________________________________________

E-mail address: _________________________________________

Community name: ________________________________________

Position on board, if any: __________________________________

Fax this completed page to (561) 750-8185 or email the above information to: joshua@gerstin.com

Hurricane Dorian & the Statutory Emergency Powers of Florida’s Community Associations.

Posted on by Gerstin

By Joshua Gerstin, Esq.

Click here for a .pdf of this article

Many community associations are trying to determine whether an emergency special assessment can be levied to pay for the cost of cleanup and damage repairs from Hurricane Dorian. Luckily, Florida has learned a thing a two from past weather disasters and has enacted has special emergency provisions for the operation of homeowner (F.S. §720.316) and condominium associations (F.S. §718.1265).

Based upon an emergency as described in the statute, a condominium or homeowner association can levy an emergency special assessment for, amongst other items, the mitigation of further damage and debris cleanup. Although the usual 14 day notice for a special assessment is not required, associations are still required to give the members some notice. Further, steps may have to be taken to ratify the emergency action taken once normal operations resume. Therefore, before proceeding, consult with your association’s attorney or the attorneys at Gerstin & Associates.

Although the emergency provisions contained in Florida law are broad, not all semblance of order is suspended. For example, statutory emergency special powers do not allow a condominium or homeowner association to “borrow” from a reserve fund to pay for an emergency without the required owner notice and vote. However, it may be possible to levy a special assessment without the required fourteen-day notice to members. Below are the statutory emergency powers available to Florida’s condominium and homeowner associations:

718.1265 Condominium Association emergency powers.—

(1) To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.

(b) Cancel and reschedule any association meeting.

(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.

(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.

(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.

(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.

(2)The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

720.316 Homeowner Association emergency powers.—

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the association property, or any other means the board deems appropriate under the circumstances.
(b) Cancel and reschedule an association meeting.

(c) Designate assistant officers who are not directors. If the executive officer is incapacitated or unavailable, the assistant officer has the same authority during the state of emergency as the executive officer he or she assists.
(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the association property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(i) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the association property.

(j) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declaration or other recorded governing documents, levy special assessments without a vote of the owners.

(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the declaration or other recorded governing documents.

(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.

 

Stay Informed, Subscribe to the Gerstin & Associates Newsletter

Stay Informed, Subscribe to the Gerstin & Associates Newsletter

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Mailing address: ________________________________________

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Community name: ________________________________________

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Fax this completed page to (561) 750-8185 or email the above information to: joshua@gerstin.com

2019 Florida Condominium & Homeowner Association Legislative Update

Posted on by Gerstin

 

2019 Florida Condominium & Homeowner Association Legislative Update

Click here for .pdf version of this article

Based on the seemingly low media profile of recently passed legislation pertaining to community associations, many people wrongfully assume the latest session of Florida’s legislature will have little or no impact on their community association.  To the contrary, although lacking in “name plate” legislation, the following recently passed legislation goes into effect on July 1, 2019 (unless otherwise noted) and will have a meaningful impact on Florida’s condominium and homeowner associations:

HB 829 – Attorney Fees in Challenges to Local Ordinances.  Thanks to HB 829 it is now easier for your community association to “fight city hall”.  Attorneys’ fees awards are available to prevailing parties in lawsuit brought against a local ordinance that allegedly violates state or Federal preemptions.  Click here for a copy of the new law.

HB 1159 – Tree Trimming.   Other than mangrove trees, local governments cannot require a permit for pruning, trimming and removal of vegetation and trees, if the tree or vegetation is certified as presenting a danger by the International Society of Arboriculture.  Local governments are also forbidden from requiring the removed trees or vegetation to be replanted.  A property owner year-round can request an electric utility maintain vegetation on property adjacent to the electric utility’s right-of-way without notice or permission from the local government. This would only apply to situations when it is necessary for power restoration or when the vegetation is threatening to cause a power outage.  Click here for a copy of the new law.

SB 82 – Vegetable Garden Preemption.  Local governments are prohibited from regulating vegetable gardens on residential property. This prohibition does not apply to general regulations that are not specific to vegetable gardens, such as ordinances regulating fertilizer, water use and invasive species.  Click here for a copy of the new law.

SB-1666 – Anchoring & Mooring.  The legislation directs the Florida Fish & Wildlife Commission to study impacts of long term storage of vessels anchored and moored outside of mooring fields; create “no-discharge zones” for sewage dumping near certain waterbodies near rural areas; require boater safety identification cards for boats 10 horsepower and above; and designate a portion of registration fees collected by counties for the Marine Resources Conservation Trust Fund.  Click here for a copy of the new law.

HB 7103 – Sprinkler Retrofitting. Allows condominium associations to continue to vote to waive fire sprinkler system retrofitting requirements until January 1, 2024, at which time local authorities may require a condominium association to retrofit fire sprinkler systems or install an engineered life safety system.  Click here for a copy of the new law.

HB 369 – Sober Homes.  The bill continues to tighten up sober home standards and address unintended consequences of previously passed legislation. The bill exempts “Oxford Homes” from certification requirements, strengthens patient brokering and deceptive practices statutes, provides for certification and background checks of peer specialists, expands background check requirements for recovery residence administrative personnel and expands violations eligible for exemption, and covers residences that have day/night treatment centers. Click here for a copy of the new law.

SB- 182 Medical Marijuana.   If it’s for medical purposes, does it fall under the ADA? If so, does your community association have to allow marijuana smoking where cigarette smoking is permitted?  The legislation permits the use of smokable medical marijuana. The bill allows minors to smoke medical marijuana if they are terminally ill and smoking marijuana is approved by a second physician. Patients are limited to 2.5 ounces every 35 days, unless the Department of Health approves an increase at a patient’s request.  Click here for a copy of the new law.

HB-311 Autonomous Vehicles.  Is your community association “drone and autonomous vehicle ready”? Click here to obtain our report on how your community association can maximize the inevitable onslaught of drones and autonomous vehicles.  The new law requires seeks to have Florida lead the country in autonomous vehicle technology by establishing: minimum insurance thresholds, a prohibition on levying of fines or fees by local entities (with the exception of seaports and airports), minimum driving conditions for the use of any automatic driving systems and on-demand autonomous networks. Click here for a copy of the new law.

 

Stay one step ahead of new legislation, recent case law and new developments that impact your community association.

}   Name:                                                                                          

}   Mailing address:                                                                         

}   E-mail address:                                                                           

}   Community name:                                                                         

}   Position on board, if any:                                                              

 

}    Fax this completed page to (561) 750-8185 or email the above information to joshua@gerstin.com.

2018 Florida Community Association Legislative Update

Posted on by Gerstin

Click here for .pdf version

The following will become law on July 1, 2018.

 

Fines and Suspensions – Condominiums § 718.303
Now mirrors Florida HOA law- A condominium association’s committee of unit owners who determine whether to confirm or reject a fine or suspension levied by the board must be made up of at least three members who are appointed by the board, and are not officers, directors, or employees of the association, or a spouse, parent, child, brother, or sister of an officer, director, or employee of the association. §718.303(3)(b). Fla. Stat.

Now mirrors Florida HOA law – A condominium association’s committee of unit owners who determine whether to confirm or reject a fine or suspension levied by the board must approve the fine or suspension by majority vote, otherwise the association may not impose the fine or suspension. §718.303(3)(b). Fla. Stat.

Now mirrors Florida HOA law- The condominium and cooperative association must provide written notice of any fine or suspension by mail or hand delivery to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner. §718.303(3)(b) Fla. Stat.

A fine approved by the committee of a condominium association is due 5 days after the date of the committee meeting at which the fine is approved. § 718.303(3)(b).

Fines and Suspensions – HOAs §720.305(2)(b), Fla. Stat.
A fine approved by the committee of an HOA, condominium, or cooperative association is due 5 days after the date of the committee meeting at which the fine is approved. § 718.303(3)(b). HOA Elections – § 720.306

If an election is not required because there are fewer or an equal number of candidates than vacancies, and nominations from the floor are not required, then write-in nominations are not permitted and the candidates will commence service on the board of directors, regardless of whether a quorum is attained at the annual meeting.

Payment of HOA Assessments – § 720.3085
The application of payments in HOA law (first to the interest accrued, then to any administrative late fee, then to any costs and reasonable attorney fees, and then to the delinquent assessment) applies notwithstanding the Uniform Commercial Code’s regulations on restrictive notations placed on or accompanying a payment. 720.3085(3)(b), Fla. Stat. This is intended to clarify existing law.

HOA Amendments to Governing Documents – § 720.306
A proposal to amend the governing documents of an HOA must contain the full text of the provision to be amended, with underlining of proposed new language and striking of proposed deleted language, unless the proposed change is so extensive and then a notation must be inserted indicating that the proposed amendment has substantial rewording. This is similar to condominium association law.

An amendment is effective when recorded in the public records of the county in which the community is located.
An immaterial error or omission in the amendment process does not invalidate an otherwise properly adopted amendment.

Required notices for amendments to the governing documents must be mailed or delivered to the parcel owner’s mailing address on the property appraiser’s website, or electronically transmitted if the parcel owner has consented in writing to receive notice by electronic transmission. 720.306(1)(g), Fla. Stat.

Communication by HOA Board Members –§ 720.303(2)(a).
Members of an HOA’s board of directors are allowed to use e-mail as a means of communication. However, a board member may not cast a vote on an association matter via e-mail. This mirrors condominium association law.

Notice of Board Meetings – Condominiums §718.112, Fla. Stat.
Condominium associations are allowed to adopt rules for noticing all board and unit owner meetings and meeting agendas on a website if the time requirements for physically posting the board meetings are met. Any rule adopted for website notice must include a requirement the association send an electronic notice in the same manner as a notice for a meeting of the members, which must include a hyperlink to the website where the notice is posted, to all unit owners whose e-mail addresses are part of the official records. Notice by website must be in addition to the other notice requirements. §718.112(2)(c)1, §718.112(2)(d)3. Fla. Stat.
A condominium unit owner who consents to receiving notice by electronic transmission is responsible for removing or bypassing any filters that block receipt of mass e-mails sent to members on behalf of the association for the purpose of giving notice. §718.112(2)(d)6. Fla. Stat.

Notice of Board Meetings – Homeowner Associations §718.112.
An HOA is allowed to give notice by electronic transmission to any parcel owner who provided written consent and a fax number or e-mail address to the HOA for such purpose. 720.303(2)(c)1., Fla. Stat.

Official Records of Condominiums § 718.111.
The deadline for condominium associations to make records available to unit owners is extended from 5 working days to 10 working days. §718.111(12)(b), Fla. Stat.
Electronic records relating to voting is included in the list of official records that must be kept by condominium and cooperative associations. §718.111(12)(a)12, Fla. Stat.
A condominium association must permanently maintain the following documents from the inception of the association (instead of just for at least 7 years):
A copy of the articles of incorporation, declaration, bylaws and rules of the association;
Meeting minutes; and A copy of the plans, permits, warranties, and other items provided by the developer at turnover. 718.111(12), Fla. Stat.

Condominium Board Members – § 718.112.
The provision that condominium association board members may not serve more than four consecutive 2-year terms is repealed. Condominium association board members may not serve more than 8 consecutive years, unless approved by an affirmative vote of unit owners representing two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill the vacancies. Board member terms are 1 year unless a longer term is permitted by the bylaws or articles of incorporation. 718.112(2)(d)2., Fla. Stat.

A cooperative director or officer is deemed to have abandoned their office if the officer or director is more than 90 days delinquent in the payment of any monetary obligation to the association. 719.106(1)(m), Fla. Stat. This mirrors condominium association law.

In residential cooperatives of more than 10 units, co-owners of a unit may not serve as members on the board at the same time unless the co-owners own more than one unit or there are not enough eligible candidates to fill vacancies on the board. 719.106(1)(a)1., Fla. Stat. This mirrors condominium association law.

Condominium Board Member Recall – § 718.112.
A board must hold a meeting within 5 business days of the unit owners’ vote or receiving a written agreement, in order to determine if the vote or written agreement is facially valid. If the board determines the vote or written agreement is facially valid, the recall becomes effective upon the conclusion of the board meeting. 718.112(2)(j), Fla. Stat.

If the board determines that the recall is not facially valid, the unit owner representative may file a petition for arbitration with the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (the “Division”), challenging the board’s determination on facial validity. 718.112(2)(j)4.

A recalled board member may challenge the facial validity of the written agreement to recall, the ballots filed, or the substantial compliance with the procedural requirements for the recall, by filing a petition with the Division. 718.112(2)(j)6.

If an arbitrator determines a board member’s recall is invalid, the recall is null and void and the board member must be immediately reinstated. A board member who successfully challenges a recall is entitled to reasonable costs and attorney fees from the respondents. An arbitrator may award reasonable costs and attorney fees to the respondents if the arbitrator determines a recalled board member’s request for arbitration is frivolous. 718.112(2)(j)6., Fla. Stat.

Condominium Websites – § 718.111.
The deadline for condominium associations to post certain documents to its website is extended from July 1, 2018 to January 1, 2019.

A condominium association’s failure to post required documents does not invalidate any action or decision of the board or its committees. 718.111(12)(g)4.

After bidding for materials, equipment, or services has closed, a condominium association must post on its website a list of bids received within the past year.

Summaries of bids for materials, equipment, or services must be posted on the website only if they exceed $500. A condominium association may post the complete copies of the bids in lieu of summaries of the bids.

Instead of posting on its website proposed financial reports to be considered at a meeting, the association must post any monthly income or expense statement to be considered at a meeting.

A condominium association or its agent is not liable for disclosing protected or restricted information unless the disclosure was made with a knowing or intentional disregard of the protected or restricted nature of the information.

Condominium Financial Reporting – § 718.111.
If a condominium association fails to comply with a request from the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (the “Division”) to provide, within five business days, a copy of the association’s financial report to the Division and to a unit owner who reports the association’s failure to provide a copy of such report within the required time, the association may not waive the annual financial reporting requirements for the fiscal year in which the unit owner’s request was made and the following fiscal year.

Alterations or Additions to Condominium Property – § 718.113.
If a condominium’s declaration does not provide a procedure to approve material alterations or substantial additions to condominium property, then approval by 75 percent of the voting interests must be obtained before the material alterations or substantial additions to the condominium property begin. This applies to condominium associations existing on July 1, 2018. 718.113(2), Fla. Stat.

Condominium Bulk Assignees and Bulk Buyer – § 718.707.
The time limit on acquisition of parcels for classification as a bulk assignee or bulk buyer is removed, extending the applicability of the bulk assignee and bulk buyer provisions indefinitely.

Electric Vehicles in Condominium Associations – § 718.113, § 718.121.
A condominium association may not prohibit a unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area. Notwithstanding, the installation of an electric vehicle charging station is subject to a number of restrictions in the statute.
The installation of an electric vehicle charging station may not be the basis for filing a construction lien under Chapter 713, Florida Statutes, against the association, but a construction lien may be filed against the unit owner.

HB 7087

Inter-spousal Transfers: Exempts the transfer of homestead property between spouses from documentary stamp tax charges.

Multi-Parcel Ad Valorem Taxation: Among its provisions is the multi-parcel ad valorem tax initiative permitting the vertical subdivision of real property, and it also includes an abatement of taxes for residential improvements rendered uninhabitable by hurricanes during the 2017 season.

Stay one step ahead of new legislation, recent case law and new developments that impact your community association.

Name: _________________________________________________

Mailing address: ________________________________________

E-mail address: _________________________________________

Community name: ________________________________________

Position on board, if any: __________________________________
Fax this completed page to (561) 750-8185 or email the above information to joshua@gerstin.com.

2017 Florida Condominium and Homeowner Association Legislative Update

Posted on by Gerstin

2017 was a big legislative year for community associations, especially condominium associations.  Following is an overview of the 2017 legislation directly impacting Florida’s condominium and homeowner associations.

Click here for the .pdf version.

Condominium & Homeowner Associations

Financial Reporting Requirements

HB 6027, full text of the law can be found here.  Law goes into effect July 1, 2017.

The exemption for condominium associations with less than 50 units and homeowners associations containing less than 50 parcels from providing yearend financial statements prepared by an independent accountant has been eliminated.

Condominium associations with fewer than 50 units and homeowner associations of less than 50 parcels can no longer opt to prepare a report of cash receipts and expenditures in lieu of financial statements.  These associations must comply with financial reporting requirements based upon the association’s revenues.

The prohibition on condominium associations waiving financial reporting requirements for more than three (3) years was eliminated.

 Estoppel Certificates

SB398, full text of the law can be found here.  Law goes into effect July 1, 2017.

Associations have 10 business days to issue an estoppel certificate after receiving a written or electronic request from an owner, mortgagee or their designee. A fee cannot be charged if the estoppel certificate is not delivered within ten business days.

Estoppel certificates must be returned to the requestor (mailed, email or fax) on the day they are issued.

If an estoppel certificate is hand delivered or sent by electronic mail it has to be valid for 30 days; estoppel certificates sent by regular mail have to be valid for 35 days.

-Only board members, authorized agents or representatives (attorneys, accountants, etc.) of the association or the association’s management company can issue an estoppel letter.

The association’s website must list the designated person or entity, with a street or e-mail address, for the receipt of estoppel requests.

Association’s are permitted to amend their estoppel certificates but they cannot charge for the amended estoppel certificate.

Associations cannot collect any money owed in excess of the amount specified in the estoppel certificate.

The Association’s ability to demand the payment of the estoppel certificate fee prior to the anticipated closing of a real estate transaction remains in effect.

Associations can charge up to $400 for the preparation and delivery of an estoppel certificate if, on the date of issuance, delinquent amounts are owed to the association. Otherwise, the Association cannot charge more than $150.00.  Upon request for an expedited estoppel certificate, an additional $100.00 can be charged if the expedited estoppel certificate is produced within three business days.

The statute lists a sliding scale of estoppel certificates charges for owners with multiple units.

The following information is required to be in an estoppel certificate:

  • date of issuance;
  • name(s) of unit/parcel owner(s);
  • unit/parcel designation and address;
  • parking or garage space number;
  • attorney’s name and contact information if the account is delinquent and has been turned over to an attorney for collection;
  • the fee for preparation and delivery of the estoppel certificate;
  • name of the requestor; and
  • assessment information and other information, including:
      • regular periodic assessment amount and frequency;
      • date for which the regular periodic assessment is paid through;
      • next installment due date and amount;
      • itemized list of all assessments, special assessments, and other money currently owed or to become due after issuance of the estoppel certificate;
      • other fees, such as capital contribution fees, resale fees, transfer fees, etc.;
      • whether there are any open violations of rules or regulations;
      • whether association approval of transfer of the unit/parcel is required and, if so, whether the board has approved the transfer;
      • whether there is a right of first refusal and, if so, has the right been exercised;
      • list and contact information for any other associations of which the unit/parcel is a member;
  • contact information for all insurance maintained by the association; and signature of an officer or authorized agent of the association.

Condominiums Only

HB 1237, full text of the law can be found here.  Law goes into effect July 1, 2017.

Directors.

Unless approved by an affirmative vote of two-thirds of the total voting interests of the association or there are not enough eligible candidates to fill the vacancies on the board, a board member may not serve more than four consecutive 2-year terms.

Recalls.

Boards are no longer required to certify a recall or initiate arbitration proceedings for not doing so.  Boards are required to a meeting within 5 business days after receipt of a written recall agreement.

Recalled board members must turn over to the association all records and property of the association within 10 business days after the recall vote.

Voting Rights.

Only monetary obligations more than 90 days delinquent totaling more than $1,000 can an association suspend a member’s voting rights. The delinquent member must be provided 30 days notice accompanied by proof of the delinquency before such suspension takes effect.

Receiver cannot vote on behalf of a unit owner if the owner’s unit was placed in receivership to protect/benefit the association.

Conflicts of Interest.

An association cannot hire an attorney who also represents the association’s management company.

Board members, the property manager and the property management company are prohibited from purchasing a unit at an association foreclosure sale or accepting a deed in lieu of foreclosure.

Associations are prohibited from hiring service providers owned (at least 1% of equity shares) or operated by a board member, any person who has a financial relationship with a board member, or a close relative of a board member.

Officers and directors must disclose to the board any activity that may be construed as a conflict of interest. A rebuttable presumption of a conflict of interest exists if a director, officer, or relative of a director or officer enters into a contract for goods or services with the association or holds an interest in a business entity that conducts business with the association or proposes to enter into a contract with the association.

Any proposed activity that may be a conflict of interest must be subject to a board vote. The meeting notice agenda for such vote must list the proposed activity and all transactional documents (contracts) related to the proposed activity must be attached to the meeting agenda.

If the board votes against the proposed activity, the director or officer must notify the board in writing of his or her intention not to pursue the proposed activity or to resign from the board. If the board finds that an officer or a director has violated this provision, the officer or director is automatically deemed as being removed from office.

Official Records.

Bids for materials, equipment or services are considered part of an association’s official records.

In addition to unit owners, designated representatives of unit owners may inspect and copy condominium documents and records. Tenants may inspect and copy only the association’s rules and by-laws.

Associations with 150 or more units must post copies of certain specifically designated official records on its website, be inaccessible to the general public.  Does not go into effect until July 1, 2018.

Websites.

Condominium association with 150 or more units must maintain a secure website containing the following items:

  • Owner password and login.
  • The secure portion of the website must contain all condominium documents, rules and regulations, management and other agreements to which the association is a party, annual budget and proposed annual budget, financial reports and board certifications.
  • The ability to post on the front page of the website, or a separate subpage labeled “Notices”, which is linked to and visible from the front page. Documents to be considered or voted upon by the board or the owners must also be posted.

Financial Reports.

Condominium associations with less than 50 units are no longer exempt from the financial reporting requirements applicable only to larger condominiums.

Unit owners are entitled to the most recent financial report within 5 business days after the receipt of a written request.

Annually, associations are required to report to the DBPR all of the financial institutions at which it maintains accounts.  A copy of the submission is obtainable upon receipt of a written request by a member.

Criminal Penalties added to F.S. §718

Association officers, directors or manager may not solicit or accept kickbacks from vendors.

Voting certificate or ballot envelope forgery is now considered a crime.

Destroying official records or hindering their access in furtherance of a crime is punishable as a crime in F.S. § 918.13 or as obstruction of justice pursuant to Florida Statutes, Chapter 843.

An office or director charged with one of the above crimes must be removed from office and cannot be appointed, elected or have access to the association’s official records without a court order.  If the charges are resolved without a finding of guilt, the officer or director must be reinstated for the remainder of his or her term of office, if any.

Debit Cards.

Associations and their officers, directors and employees are prohibited from using a debit card issued in the name of the association, or which is billed directly to the association, for the payment of any association expense. Using a debit card in violation of this law, for a non-association expense, can be prosecuted as credit card fraud (confusing, poorly drafted statute)

Ombudsman.

If necessary to assist with an investigation of election misconduct, the Ombudsman can open and review ballots that are otherwise supposed to be cast in secret.

Condominium Terminations

SB 1520, full text of the law can be found here.  Law goes into effect July 1, 2017.

Provides for termination of a condominium when the community is no longer economically viable;

Requires affirmative vote of 80% or more of the owners and negative vote of no more than 5% of the voters;

Requires approval of the termination by the Division;

Requires a waiting period of 24 months to propose a subsequent plan of termination after rejection of a previous plan;

Requires the identity of the person or entity that owns or controls 25% or more of the units;

Requires the identity of the natural persons who own 10% or more of the entity which owns or controls 25% or more of the units;

Carries an effective date of July 1, 2007 – 10 years before the legislation was passed and signed into law.

Noteworthy Veto
Condominium Fire Sprinklers

Under current law, local governments are barred from requiring sprinkler retrofitting of condominium buildings (three stories or more) before the end of 2019.  Owners can also vote to opt-out of retrofitting sprinklers, but are not able to opt out of  the installation of alternative fire safety systems known as “engineered life safety systems”.  The legislation vetoed by Governor Scott would have postponed the retrofitting requirement until 2022 and would have allowed owners to opt-out of both retrofitting sprinklers and the installation of “engineered life safety systems”.

Stay Informed, Subscribe to the Gerstin & Associates Newsletter

  • Name: _________________________________________________
  • Mailing address: ________________________________________
  • E-mail address: _________________________________________
  • Community name: ________________________________________
  • Position on board, if any: __________________________________

Fax this completed page to (561) 750-8185 or email the above  information to: joshua@gerstin.com.

 

 

2017 Pending Florida Community Association Legislation

Posted on by Gerstin

Click here for PDF version of this article

The weather outside is cool in Florida, but the heat is surely on community associations, their directors, officers and property managers in Florida’s 2017 legislative session.

 

SB 294 (Condos, Cooperatives, HOAs)

The bill requires associations with less than 50 units to prepare a financial report based on the association’s annual revenues. In addition, if an association fails to provide the financial report to the owners if requested, the owners are prohibited from waiving the financial report for three (3) consecutive years and must file a copy with the State for those three (3) years.

  • This bill eliminates the option for associations with fewer than 50 units and more than $150,000 in annual revenue to submit less comprehensive annual financial statements.
  • Penalizes association with enhanced financial reporting requirements if they fail to provide owners with annual financial reports upon request.

HB 295 (HOAs)

  • Increases penalties for not providing access to official records to $500 per day for up to 30 days.
  • Imposes financial liability on property managers for failing to provide proper access to association official records.
  • Revises the timeframe for members to take control of the board of directors from the developer.
  • Provides for binding arbitration of disputes involving assessments, official records, and enforcement of covenants, rules, and restrictions.
  • Requires home sellers to provide prospective buyers with the association’s governing documents and operating budget at least 7 days before closing, and allows buyers to terminate the contract within 3 days after receipt of the documents.

SB 318 (HOAs)

  • This bill provides for a new, alternative procedure for homeowners associations to preserve their governing documents under Florida’s Marketable Record Title Act.
  • At the first board meeting following each annual meeting of the members, the board of directors must consider whether to preserve the association’s governing documents under Florida’s Marketable Record Title Act.
  • At least every 5 years, homeowners association must record a notice in the public records containing specific information including, the name and address of the association, a list of its recorded governing documents, contact information for the current property manager, and a legal description of the community.

SB 398 (Condos, Cooperatives, HOAs)

  • Requires estoppel letters to be issued within 10 days of a request, and caps fees at $200 An additional $100 may be charged if the estoppel letter is requested on expedited basis (3 business days). An additional $200 may be charged if the owner is delinquent.
  • Creates a maximum fee schedule for multiple estoppel letter requests.
  • Requires estoppel letters to include a long list of various information beyond standard financial information.
  • Association must publish on their website the name and address/email address of person responsible for receiving estoppels requests.

 SB 744 (Condos, Cooperatives, HOAs)

Condos

  • Requires bids for work to be performed be maintained in the official records for 1 year.
  • Eliminates the July 1, 2018 deadline to be classified as a bulk buyer or bulk assignee.

Cooperatives

  • Prohibits co-owners from serving on the board simultaneously in communities with more than 10 units, unless there not enough eligible candidates to fill all board vacancies.
  • Allows board members to communicate via email, but prohibits voting via email.
  • Directors and officers who are over 90 days delinquent in any monetary obligation to the association are deemed to have abandoned their position.

Condos & Cooperatives

  • Includes electronic records relating to unit owner voting in the list of official records of the association.
  • Eliminates the option for associations with less than 50 units to prepare a report of cash receipts and expenditures in lieu of complete financial statements.
  • Removes a restriction prohibiting associations from waiving certain financial reporting requirements for more than 3 consecutive years.
  • Authorizes the board to adopt a procedure for posting meeting notices and agendas on the association website.
  • Clarifying that associations under 75 feet high are not required to undergo fire sprinkler/life safety retrofitting and do not need to conduct an opt-out vote.
  • Extends the deadline to opt-out or apply for a permit for fire sprinkler/life safety retrofitting to December 31, 2018, and extends the deadline to complete fire sprinkler/life safety retrofitting to December 21, 2021.
  • Clarifies certain rules and procedures for fire sprinkler/life safety retrofitting.

HOAs

  • Allows board members to communicate via email, but prohibits voting via email.
  • Requires the annual budget to include reserve accounts for capital expenditures and deferred maintenance which the governing documents require the association to undertake and which exceed $10,000.
  • Allows a developer to waive reserves until the end of the second fiscal year after the declaration is recorded, after which, only a majority of non-developer owners can waive reserves.
  • Revises certain voting procedures and calculations for reserve accounts.
  • Imposes certain limitations on adopting budgets that exceed the prior year budget by more than 15%.
  • Prohibits write-in nominations at an annual meeting when no election is required because the number of candidates does not exceed the number of vacancies, unless nominations from the floor are required by the bylaws.

SB 950 ( HOAs)

  • Prohibiting fines from being imposed on a home for 6 months after the death of the owner.
  • Prohibiting late fees and interest on delinquent assessments for the first year after the death of the parcel owner.
  • If a fine is imposed against a home after the owner dies, the association must provide written notice to the executor of the owner’s estate at least 5 times by certified mail.

 SB 1186 ( HOAs)

  • Specifies procedures for amending the declaration.
  • States that declaration amendments restricting rentals only apply to owners who consent to the amendment, or who purchase their home after July 1, 2017.

SB 1258 (Condos)

  • Imposes fines on board members and officers who knowingly violate any association bylaw or the Condominium Act: $250 for the first violation, $500 for the second violation, and $1,000 for third and subsequent violations. After 3 or more violations, the Department of Business and Professional Regulation may issue an order recalling the director or officer.

SB 1520 (Condos)

  • This bill makes it more difficult to terminate a condominium association.
  • Increases the minimum threshold for approving termination a condominium from 80 percent to 90 percent of the total voting interests.
  • Lowers the threshold for rejecting condominium termination from 10 percent to 5 percent of the total voting interests.
  • Expands the definition of owners who are entitled to receive fair market value for their condominium unit.

SB 1650 (HOAs)

  • Allows disputes relating to amendments of the governing documents to be resolved by mandatory arbitration in lieu of presuit mediation.

 SB 1652 (HOAs)

  • Creates specific election procedures for communities with 7500 or more homes.

SB 1682 (Condos)

  • Prohibits attorneys from representing both an association and its management company.
  • Prohibits board members and management companies from acquiring units at a foreclosure sale arising from the association’s foreclosure of the unit, or via deed in lieu of foreclosure.
  • Adds bids for materials, equipment, or services to the list of association official records.
  • Allows tenants and authorized representatives of members to inspect association official records.
  • Any board member who knowingly, willfully, and repeatedly refuses to comply with a valid request to inspect the official records is guilty of a second degree misdemeanor
  • Any person who knowingly or intentionally defaces or destroys accounting records, or who fails to create or maintain required accounting records in order to harm the association or any member, is guilty of a first degree misdemeanor.
  • Any person who knowingly and willfully refuses to release or produce association official records to facilitate a crime or to prevent a crime from being discovered, is guilty of a third degree felony.
  • Requiring associations with over 500 units to post many types of official records on its website, including the governing documents, financial statements, contracts with third parties, documents to be considered at membership meetings and notices of such meetings.
  • Allows board members to serve 2-year terms only if permitted in the bylaws or articles of incorporation. Prohibiting board members from serving more than 4 consecutive 2-year terms unless approved by an affirmative vote of 2/3 of the entire membership
  • Modifies director recall procedures.
  • Restricts association from contracting or employing service providers in which a board member has a financial stake.
  • Makes it a felony to engage in fraudulent voting activities, aid another person in committing fraudulent voting activities, or help someone avoid being caught for committing fraudulent voting activities.
  • Prohibits any party who provides maintenance or management services to the association from owning more than 50% of the units and purchasing any property subject to a lien of the association.
  • Sets forth detailed disclosure requirements for directors with possible conflicts of interest
  • A unit owner who is 90 days delinquent can be suspended from voting only if the delinquency exceeds $1,000 and requires 30-day notice.

 

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