By Michael J. Gelfand, Esq. / Published April 2020
Editor’s Note: As you read the section on the Legislative Update, please note that the regular session of the Florida Legislature has adjourned as of March 13, 2020. You can read updates to the bills in both the Senate and the House by visiting www.flsenate.gov/Session/Bills/2020.
This year’s Florida legislative session, which continued through mid-March, promises a roller coaster ride at best for Florida community associations. On one hand, with both houses of the Legislature and the Governor’s mansion occupied by the same party, there has been talk of unanimity, reducing the number of laws and restricting the role of the State. The overall message was that the Legislature was going to minimize regulation, removing State “interference” with individuals’ lives. The reality appears to be far different for associations. A tidal wave of new laws and regulations await approval.
Transient Rentals—HB 1011/SB 1108 seeks to re-label daily or transient rentals into “vacation rentals” and declares a previously unknown constitutional right to undertake transient renting and prohibit local restrictions on these transient rentals.
If a Florida community association desires to enforce any leasing restrictions, short/transient or longer-term, then the association is urged before this Bill becomes law to adopt their restrictions. A byproduct of unrestrained short-term leasing, in addition to the practical change in character of a community, may be becoming a place of public accommodation similar to an apartment building or hotel subject to licensing, the fire safety code, and Americans with Disabilities Act compliance, all at great expense.
If a Florida association is relying on a municipal or county leasing restriction, then that restriction will likely become unenforceable because of the bill’s assertion of a constitutional right of renting, creating yet another reason for the association to adopt its own restriction.
It is noted that at the end of the bill there is a statement that the law is not intended to impact Florida condominium, cooperative, and homeowners associations; however, a statement of intent would not necessarily nullify the stated existence of a constitutional right to rent.
General—HB 623/SB 1154 addresses a number of various subjects—some that have supporters, many that do not. These include clarifying director conflicts of interests, clarifying pool regulations, limiting the rights of unit owner insurance subrogation, and limiting the time which condominium associations must retain bids. Associations may renounce enforcement of provisions that violate the Equal Protection Clause of the 14th Amendment to the United States Constitution, intending to allow associations to confirm that covenants discriminating on the basis of race, color, creed, national origin, or religion will not be enforced. Member meeting requirements are clarified and allow less than 14 days’ notice if the bylaws permit.
Transfer fees may balloon, allowing the “actual costs of any background check or screening performed” in addition to the $100 per applicant fee which is to apply as one fee for spouses, parents, and dependent children. Associations must allow “natural gas fuel” installations for motor vehicles.
Mandatory pre-suit arbitration for condominiums is to be repealed, substituting mandatory pre-suit mediation similar to that for homeowners associations.
Cooperative associations are extended the opportunity to allow attendance by electronic means. Homeowner associations may use hyperlinks to distribute meeting agenda information.
Arbitration—HB 233/335 and SB 1446/1448 would require homeowners association disputes restriction and procedure disputes not resolved in mediation to proceed to arbitration before court.
Community Development Districts—HB 135/SB 1430 would require CDDs to obtain appraisals before most efforts to acquire property.
Construction Defects—HB 295/SB 1488 would require additional details in a notice of claims, including estimated repair costs and the identity of the claimant’s experts, deleting the extended time periods for association claims. Those liable for defects would only have to pay after there is a contract for repairs, and if the contract is for a price less than the judgment, then liability is similarly reduced, requiring a contract within 90 days after judgment or final order. Mandatory arbitration is required within 180 days after suit is filed, providing for limitations of actions based upon the arbitration award.
Construction Liens—HB 897/SB 1422 seeks a substantial revision to the Contractors Lien Law, rescinding the ability of those who do not have contracts with a property owner or lessee from asserting a lien.
Corporations—HB 495 and SB 838 impact the technical operations of associations that are Florida not-for-profit corporations, including clarifying corporate procedures and strengthening the role of the Department of State, Division of Corporation, by adding penalties.
Emotional Support Animals—HB 209/SB 1084 purports to define an emotional support animal and to allow landlords greater authority to regulate an ESA’s conduct, and it limits landlords’ liability for an ESA’s damages.
Energy Devices—HB 1351/SB 1824 would expand preemption of covenants limiting alterations, requiring associations to allow cool roofs and certain other renewable energy devices.
License Plates—SB 1280 seeks to prohibit homeowner associations from utilizing automated license plate recognition systems.
Money—HB 689/SB 660 would delete disqualification of a director because of non-payment of any monetary obligation, limiting disqualification to non-payment of an assessment and defining when a delinquency occurs. Condominium association annual budgets must be adopted no later than 30 days from the beginning of a fiscal year. The Condominium Ombudsman does not have to be located in Tallahassee.
MRTA—HB 733/SB 802 impacts homeowners association, clarifying which use restrictions survive the Marketable Record Title Act’s 30-year passage of time, excluding building and zoning codes and land development regulations from extinction. Illegal discriminatory impacts on race, color, national origin, religion, gender, and physical disability are not enforceable, providing a process for expungement.
Penalties, Records, and Websites—HB 1317/SB 1752 expands penalties against condominium association officers, directors, and managers, including criminal penalties for obtaining a kickback, for not prop-erly addressing official records issues, and for voting irregularities. Official records to be kept include bank statements, canceled checks, and credit card statements, as well as all receipts. Records must be maintained and made accessible as provided by Division rules. A complaint to the Division regarding records requires a condominium association to provide its checklist. By January 1, 2022, the threshold for requiring a website for condominium association records is reduced from a condominium with more than 150 units to a condominium association administering only 25 units.
Police Cars—HB 307/SB 476 would prohibit condominium, cooperative, and homeowners associations from restricting the parking of a vehicle because it is a law enforcement vehicle.
Recalls—HB 117/SB 1442 seeks to create the “Community Recall Act,” limiting homeowners association recall campaigns to 60 percent of the owners who have homesteads in the community and providing meeting procedures.
Swimming Pools—HB 229/SB 244 prohibits transfer of a residential property with a swimming pool unless the swimming pool meets safety requirements.
Taxes, Plus—HB 1255 seeks to rectify a condominium association’s ability to challenge real property tax levies, allowing condominium associations to bring and defend claims on behalf of all owners in one petition. Small associations, less than 32 parcels, are exempt from certain pool water quality requirements. Condominium associations must provide an owner requesting access to official records a checklist itemizing records delivered in response to the request; the Division of Condominiums’ authority for inspections relating to financial issues is to be expanded, including meeting procedures for adoption of budgets and allowing for Division rulemaking.
Unfortunately, violence has become all too common. Heated tempers often flair in community associations. How can you protect your community, and yourself, from someone you fear will cause you harm? Can you obtain an injunction against someone who has made repeated threats? The answer is “yes,” but only if certain conditions are met!
This rule of law arises from a Florida appellate court which recently ruled there was not enough evidence to grant an injunction for protection against repeat violence. The facts in Adamczyk v. Herman, 44 Fla. L. Weekly D 2958 (Fla. 4th DCA, December 11, 2019), indicate that in April 2018, a disagreement arose over the parking of a truck when Adamczyk allegedly “profanely” told Herman to get her truck off his property. Then, in March 2019, Adamczyk had a “short outburst” in the association office. Herman sought an injunction for protection against repeat violence pursuant to Section 784.046(2), Fla. Stat. (2019). The trial court granted the injunction.
The Florida appellate court found that there was no evidence of two acts of violence and reversed the injunction. The court noted that repeat violence is defined as follows:
[T]wo incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or the petitioner’s immediate family member.
Regarding the first incident, the court pointed out that the incident did not involve any touching. There was no evidence that Adamczyk threatened violence or took any action that could have created a fear that violence was imminent; thus, the first incident did not amount to “violence” under the statute.
As to the second incident, the court found that even though the incident qualified as an incident of violence under the statute, the court determined that incident did not amount to two separate acts of violence. The court noted that the angry conduct which occurred in the association office was a short outburst without separation “by time or distance.”
In other words, to support an injunction for repeat violence based on what is said, as opposed to physical touching, there must be two distinct acts of violence which happen at different times and places.
Michael J. Gelfand, Esq.
Senior Partner, Gelfand & Arpe, P.A.
Michael J. Gelfand, Esq., the Senior Partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar Board Certified lawyer in Condominium and Planned Development Law and in Real Estate Law, Certified Circuit and County Civil Court Mediator, Homeowners Association Mediator, an Arbitrator, and Parliamentarian. He is a past Chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at firstname.lastname@example.org or (561) 655-6224.