What Did the 2014 Legislative Session Bring for Your Community Association, Part 1

by Donna DiMaggio Berger, ESQ. / Published August 2014

Editor’s Note: This is Part I of a two-part series. Part II will be published in the September issue of FLCAJ.
Florida’s shared ownership statutes are often seen as the gold standard by other states looking to expand the statutory protections for their community association populace. How did the Sunshine State achieve this enviable status? Several decades, a very significant number of associations, and motivated stakeholders all contributed to our comprehensive statutory protections. Still, each year our legislators are confronted with additional proposals seeking to further tweak Chapters 718, 719, and 720 with the occasional attention given to Chapters 721 and 723 as well.
This year was no different, and we saw a community association bill pass, which brought about changes for condominiums, cooperatives, and homeowners associations in addition to other bills, which also impact community associations both directly and indirectly.

COMMUNITY ASSOCIATIONS
SB 798 (Sen. Ring) and HB 807 (Rep. Moraitis), Relating to Residential Property, resulted in the following changes:

1. Timeshares: The amended language distinguishes timeshares from the broader category of “vacation rentals.”
2. Marketable Record Title Act: This Florida Bar initiative clarifies the notice requirements when a homeowners association is preserving covenants and restrictions. Specifically, it provides that the HOA or clerk is not required to provide additional notice by publishing notice in a newspaper regarding the MRTA preservation pursuant to Section 712.06(3).
3. Abandoned Units: Creates a new provision (Section 718.111(5)(b)1.), to provide that in addition to Section 718.111(5)(a), which gives the association the irrevocable right of access to each unit during reasonable hours and regardless of whether authority is provided in the declaration or other recorded condominium documents, an association, at the sole discretion of the board, may enter an abandoned unit to:
   • Inspect the unit and adjoining common elements;
   • Make repairs to the unit or to the common elements serving the unit, as needed;
   • Repair the unit if mold or deterioration is present; and
   • Turn on power for the unit or otherwise maintain, preserve, or protect the unit and adjoining common elements.

   This new language also provides criteria for determining when a unit can be presumed abandoned and requires certain notice be provided to the owner(s).

4. Insurance: Amends Section 718.111(11)(j) to clarify that if an item is damaged by something other than an insurable event, the repair or
   replacement of that item will be dictated by the provisions in the association’s declaration or bylaws.
5. Official Records: Amends Chapters 718, 719, and 720 to require an outgoing board or committee member to relinquish all official records and property of the association in his or her possession or under his or her control to the incoming board within five days after the election. It authorizes the Division to impose a civil penalty against an outgoing board or committee member who willfully and knowingly fails to relinquish such records and property. This new language mimics the existing language in 718, which requires recalled board members to turn over records in their possession. This section also clarifies that owners can consent to the publication of other contact information in a social directory.
6. Board Meetings: Provides that a condominium, cooperative, or HOA board or committee member’s participation in a meeting by a telephone, real time video conferencing, or similar, real time electronic or video communication counts toward a quorum, and such member may vote as if pysically present. This new language brings our statutes up to speed with the fact that there are other means to attend a meeting in addition to the old, standard speakerphone!
7. Communicating by E-mail: States that a board or committee member may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. This new language will undoubtedly require boards to consider passing protocol relating to the use of e-mail.
8. Assessments: Provides that a condominium or cooperative association, which acquires title through foreclosure or by deed in lieu of foreclosure is not considered a previous owner for joint and several liability purposes. This provision is perhaps one of the most important in the bill as it removes the argument some third-party purchasers at lenders’ foreclosure sales were making to avoid paying outstanding amounts owed on the properties they purchased at auction. HOAs previously received this clarification in the 2013 Session.
9. Bulk Buyers: Extends the sunsetting of the bulk buyer law from July 1, 2015 to July 1, 2016.
10. Financial Reporting for Cooperatives: Amends the Cooperative Act to incorporate provisions currently in the Condominium Act regarding financial reporting thresholds.
11. Board Member Eligibility for Cooperatives: Amends the Cooperative Act to add certain provisions from the Condominium Act regarding board member eligibility. Specifically, a person who has been suspended or removed by the Division or who is delinquent in the payment of any monetary obligation to the association is not eligible to be a candidate in a cooperative election. It also disqualifies a director or officer who has been indicted with felony theft or an embezzlement offense involving the association’s property.
12. Emergency Powers for Cooperative and Homeowners Associations: Just in time for our hurricane season, the bill incorporates the current emergency powers provisions in the Condominium Act into the Cooperative Act as well as the Homeowners Association Act.
13. Homeowners Association Amendments: Amends Section 720.306(1)(b) to allow the association to provide notice of adopted amendments by e-mail, if the owner has given permission for electronic notice. Also, if the association had previously provided a copy of the amendment prior to an owner vote on the amendment, the association can notify the owners that the amendment passed and provide the Official Records book and page number or instrument number of the amendment and advise that a copy of the amendment is available at no charge to the owners, in lieu of providing an actual copy.
14. Community Association Living Study Council: Repeals Section 718.50151, Florida Statutes, which created the Community Association Living Study Council.
15. HOA Meetings: Amends Sections 720.303(2)(a) and 720.306(1)(a) to require that HOA board meetings and owner meetings be held at locations, which are accessible to physically handicapped persons, but only if a request is made by a physically handicapped person who is entitled to attend the meeting.
16. Optional Condominium Termination: Amends Section 718.117(9) to provide that if a plan of optional termination fails to receive the required approval, the plan shall not be recorded and a new attempt to terminate the condominium may not be proposed at a meeting or otherwise for 180 days after the date that such failed plan of termination was first given to all unit owners. All of the foregoing provisions became effective on July 1, 2014.

DONNA DIMAGGIO BERGER, ESQ., BECKER & POLIAKOFF
Donna DiMaggio Berger is a Shareholder with Becker & Poliakoff and has represented all types of shared ownership communities throughout Florida. She is a member of the College of Community Association Lawyers (CCAL), a prestigious, national organization, which acknowledges community association attorneys who have committed themselves to high standards of professional and ethical conduct. Berger has worked with legislators on behalf of shared ownership communities. She has testified before the Florida Legislature and frequently appears on radio talk shows and in print media discussing association issues. She can be reached at (954) 364-6031 or at dberger@bplegal.com.