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End of Session Legislative Update

The 2018 Legislative Session ended officially on Sunday, March 11, 2018.  It was extended for two days in order to give the House and Senate time to finish up the budget.

There were two community association bills that passed, which I will summarize below.  The next step is for the bills to be sent to the Governor for action.  He will either approve the bill, veto the bill, or allow it to become law without his signature.

HB 617, Relating to Covenants and Restrictions, by Rep. Edwards. The bill primarily involves the Marketable Record Title Act (MRTA).  The intent is to simplify the process for preserving covenants and restrictions of homeowners’ associations, and allow non-residential property owners’ associations to preserve covenants and restrictions. The bill will also allow non-mandatory homeowners’ associations to revitalize covenants and restrictions that have expired.  STATUS:  HB 617 was approved unanimously by the House and Senate.  It was sent to the Governor on March 14, 2018, and the Governor has 15 days to act.  If approved by the Governor, the effective date of the new law will be October 1, 2018. 

HB 841, Relating to Community Associations, by Rep. Moraitis.  As we noted previously, HB 841 was approved by the full House on 3/1/18.  However, the Senate companion bill was “stuck” in the Rules Committee, which was no longer meeting.  The bill was “saved” when it was withdrawn from the Rules committee, making it eligible to be considered by the Senate.  However, rather than approving the House bill, the Senate approved a number of amendments and sent the bill back to the House.

The Senate amendments removed the following provisions from the final bill, therefore, these provisions are NOT IN THE BILL THAT PASSED:

(1) Attorneys Representing the Association and the Association’s Management Company:  The House bill removed the language adopted last year which stated that condominium associations could not hire an attorney that also represents the association’s management company.  The Senate did not agree with that change, and therefore, amended the bill to keep the language in the bill.   In other words, condominium associations are still prohibited from hiring an attorney that also represents the association’s management company.

(2) HOA Rental Amendments:  The House bill included a provision stating that any HOA amendment that prohibits rentals or changes the minimum rental term may only be applied to those owners who purchase after the effective date of the amendment or those owners who vote in favor of the amendment, except if the amendment does the following:  (1) prohibits or regulates rentals for terms of less than 6 months; or (2) prohibits rentals more than three times in a calendar year.  The Senate removed this language from the bill.  Therefore, there will be no restrictions on HOA rentals.

(3)  Tax Assessment Challenges:  The House bill included provisions which would have empowered community associations to challenge tax assessments on behalf of unit owners.  The Senate removed this language from the bill.

After the bill was amended and sent back to the House, the House concurred with the Senate amendments and the bill was approved on the last day that the House was considering substantive bills.

The following is a summary of the final version of HB 841:

(1) Extends the amount of time that condominium associations must respond to a written records request from 5 business days to 10 business days;

(2) Extends the date that condominium associations must post a majority of its official records on a website to January 1, 2019 (the current deadline is July 1, 2018) and revises the documents that must be posted on the website;

(3)  Provides that if a condominium association fails to comply with the division’s request to provide a unit owner with a financial report, the association may not waive the financial reporting requirement for the fiscal year in which the owner’s request was mad e and the following fiscal year;

(4)  Requires condominium meeting notices to be posted on the condominium property (not association property);

(5) Provides that condominium and cooperative associations may, by rule, adopt a procedure for conspicuously posting meeting notices and the agenda on the condominium association’s website. Any rule adopted, in addition to other matters, must include a requirement that 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 unit owners whose e-mail addresses are included in the association’s official records;

(6) Amends the existing condominium association term limit language to provide that no board member may serve more than eight consecutive years, unless approved by an affirmative vote of two-thirds of the voting interests voting in the election or unless there are not enough eligible candidates to fill the vacancies;

(7)  Provides that a condominium or cooperative unit owner who consents to receive notice by electronic transmission is solely responsible for removing or bypassing filters that block receipt of mass emails sent to members;

(8)  Requires condominium recalls to be “facially valid” and permits a recalled board member to challenge the facial validity of the written agreement or the substantial compliance with the procedural requirements for the recall.  A board member who is successful in challenging a recall is entitled to recover reasonable attorney fees and costs from the respondents.  The arbitrator may award reasonable attorney fees and costs to the respondents if they prevail, if the arbitrator makes a finding that the petitioner’s claim is frivolous;

(9) Requires a vote of condominium unit owners to be taken before a material alteration or substantial addition;

(10)  Prohibits a condominium association from prohibiting any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking area, under certain circumstances;

(11)  Amends the condominium conflict of interest provisions (Sections 718.3026 and 718.3027) to remove redundant provisions;

(12)  Revises the condominium and cooperative fining provisions to require the fining committee to be composed of three members who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director or employee.

(13)  Amends the Condominium, Cooperative, and Homeowners’ Association Acts to provide that if the proposed fine or suspension is approved by the committee, the fine payment is due 5 days after the date or the committee meeting at which the fine is approved. The association must provide written notice of the 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.

(14) Removes the “sunset” date in the condominium “bulk buyer” law, thereby making the bulk buyer law permanent;

(15)  Amends the cooperative statute to provide that in a residential cooperative of more than 10 units, co-owners of a unit may not serve as members of the board of directors at the same time unless the co-owners own more than one unit or unless there are not eligible candidates to fill the vacancies on the board at the time of the vacancy;

(16) Amends the Cooperative Act and the Homeowners’ Association Act to provide that members of the board may use email as a means of communication but may not cast a vote on association matters via e-mail;

(17) Amends the Cooperative Act to provide that a director or officer more than 90 days delinquent in the payment of any monetary obligation due to the association shall be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law;

(18)  Amends the Cooperative Act to allow the association to enter into bulk contracts for communications services;

(19)  Amends the Homeowners’ Association Act to require that amendments be presented either with underlining and strike-throughs, or in a “substantial rewording” format.  Further, an amendment to a governing document is effective upon recording in the public records; an immaterial error or omission in the amendment process does not invalidate an otherwise properly adopted amendment; and a notice required pursuant to Section 720.306 must be mailed or delivered to the address identified as the parcel owner’s mailing address, or electronically transmitted in a manner authorized by the association if the parcel owner has consented in writing to receive notice by electronic transmission;

(20)  Amends the Homeowners’ Association Act to provide that if an election is not required because there are either an equal number or fewer qualified candidates than vacancies exist, and if nominations from the floor are not required, write-in nominations are not permitted and such qualified candidates shall commence service on the board, regardless of whether a quorum is attained at the annual meeting;

(21)  Amends the Homeowners’ Association Act to clarify that the application of payment (first to interest, then to any late fees, then to costs and reasonable attorney fees, and then to the delinquent assessment) applies regardless of any purported accord and satisfaction, or any restrictive endorsement, designation, or instruction placed on or accompanying a payment.

STATUS:  HB 841 was approved 35-1 by the Senate, and 100-1 by the House.  If approved by the Governor, the effective date of the new law will be July 1, 2018.

For a full list of the bills that we are tracking, please see our CALL Bill Report.  The CALL Bill Report includes a list of the bills that have been filed with the Florida Legislature that will directly impact community associations. The report includes the bill number, the bill sponsor, the title of the bill, a summary of the bill, and the last three actions taken on the bill. I have highlighted the bills that passed.

Yeline Goin

Yeline Goin

Contact: ygoin@beckerlawyers.com

Yeline Goin is a member of the Firm’s Community Association Practice Group and Government Law & Lobbying Group. She concentrates her practice on the law of community associations, primarily representing condominium, cooperative, and homeowners’ associations. She also represents local governments and other entities in Tallahassee as part of our State Lobbying Team.