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Florida Condo & HOA Legal Blog News & Updates on Condo & HOA Laws & Legislation in the State of Florida

Summary of HB 73, Relating to Residential Properties

Posted in CALL Alert, Legislation

As noted in my CALL Alert of January 2, 2013, Representative Moraitis filed a bill for the 2013 Legislative Session that will impact community associations.  The bill (HB 73) makes numerous changes to the Condominium Act, the Cooperative Act and the Homeowners’ Association Act.  The following is a summary of HB 73 as originally filed.  As the bill moves through the various committees, you can expect amendments to be filed.  Stay up to date on the most recent version of the bill by continuing to read our CALL Alerts and blog posts and following me on Twitter (@YelineGoin_CALL).  If you are an annual retainer client of Becker & Poliakoff, P.A., you can also access the latest version of all the bills that CALL is tracking by logging into the CALL website (www.callbp.com) and looking under the “Legislation” tab.

Elevator Upgrades

  • Amends Section 399.02, Florida Statutes, to provide that updates to the Safety Code for Existing Elevators and Escalators, ASME A17.1 and A17.3, which require Phase II Firefighters’ Service on elevators may not be enforced until the elevator is replaced or requires major modification.  This will apply to elevators in condominium or multi-family residential buildings.  The current law requires that the upgrades be completed by no later than July 1, 2015.  This proposed change will allow the owner of the elevator to delay making upgrades until the elevator is replaced or requires major modification.

Board Member Terms

  • Amends Section 718.112(2)(d)2., Florida Statutes, to delete the requirement for an owner vote before the board members may serve two-year terms, as long as the association’s articles of incorporation or bylaws provide for two-year terms.  This would permit condominium boards to serve two-year terms (staggered or otherwise) as long as provided in the articles or bylaws.

Director Certification and Educational Certificates (Condominiums)

  • Amends Section 718.112(2)(d)4.b., Florida Statutes, to provide that the association secretary must retain a director’s written certification or educational certificate for five years after a director’s election or for the duration of the director’s uninterrupted tenure, whichever is longer.  The current law only requires that the written certification or educational certificate be kept for five years after the director’s election.

Elections (Timeshares)

  • Amends Section 718.112(2)(d)4., Florida Statutes, to provide that Section 718.112(2)(d)4., Florida Statutes, does not apply to timeshare condominium associations.  Therefore, the amendment would clarify that a timeshare condominium does not have to follow the condominium “two-notice” system.

Elections (Condominiums, Cooperatives, and Homeowners’ Associations)

  • Creates Section 718.112(2)(d)4.c., Florida Statutes, and amends Section 719.106(1)(d)1.a. and 720.306(9), Florida Statutes, to provide that any challenge to the election process must be commenced within sixty days after the election results are announced.

Recalls (Condominiums, Cooperatives and Homeowners’ Associations)

  • Amends Sections 718.112(2)(j), 719.106(1)(f), and 720.303(10),  Florida Statutes, to provide that if the board of directors fails to duly notice and hold the required meeting after being served with a recall petition, or fails to file a petition for arbitration challenging the recall, the unit owner representative may file a petition for arbitration pursuant to Section 718.1255 challenging the board’s failure to act.  The petition must be filed within 60 days after the expiration of the applicable 5 full business day period.  The arbitrator’s review of such a petition for arbitration is limited to the sufficiency of service on the board and the facial validity of the written agreement or ballots filed.
  • Amends Sections 718.112(2)(j), 719.106(1)(f), and 720.303(10), Florida Statutes, to provide that a board member who has been recalled may file a petition for arbitration pursuant to Section 718.1255 challenging the validity of the recall.  The petition for arbitration must be filed within sixty days after the recall is deemed certified.
  • Amends Section 718.112(2)(j), 719.106(1)(f), and 720.303(10), Florida Statutes, to provide that the Division may not accept a petition for recall arbitration regardless of whether the recall was certified, when there are 60 or fewer days until the scheduled reelection of the board members sought to be recalled or when 60 or fewer days have not elapsed since the election of the board members sought to be recalled.

Hurricane Protection (Condominiums)

  • Amends Section 718.113(5)(a), Florida Statutes, to allow the board of directors to install code compliant doors or other types of code-compliant hurricane protection.  A vote of the owners to install code compliant doors or other types of code-compliant hurricane protection is not required if the maintenance, repair and replacement of the code compliant doors or other type of code-compliant hurricane protection are the responsibility of the association pursuant to the declaration of condominium.  If hurricane protection or laminated glass or window film architecturally designed to function as hurricane protection that complies with or exceeds the current applicable building code has been previously installed, the board may not install code compliant doors or other types of hurricane protection except upon approval by a majority vote of the voting interests.

Note that the current statute permits the board to install hurricane shutters, impact glass, or code-compliant windows.  The intent of the change is to allow the board to install code-compliant doors or other types of hurricane protection, in the same manner as is currently allowed with respect to hurricane shutters, impact glass, and code-compliant windows.

  • Amends Section 718.113(5)(b) to provide that the association is responsible for the maintenance, repair and replacement of hurricane shutters, impact glass, code compliant windows or doors, or other types of compliant hurricane protection authorized by Section 718.113(5) if such property is the responsibility of the association pursuant to the declaration of condominium.
  • Amends Section 718.113(5)(c), Florida Statutes, to provide that the board may operate hurricane shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection installed pursuant to Section 718.113(5) without permission of the owners only if such operation is necessary to preserve and protect the condominium property or the association property.  The installation, replacement, operation, repair and maintenance of hurricane shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection in accordance with the procedure set forth in Section 718.113(5) are not a material alteration to the common elements or association property.
  • Amends Section 718.113(5)(d), Florida Statutes, to provide that the board may not refuse to approve the installation or replacement of hurricane shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection by a unit owner conforming to the specifications adopted by the board.
  • Amends Section 718.115(1)(e), Florida Statutes, to provide that the expense of installation, replacement, operation, repair, and maintenance of hurricane shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection by the board pursuant to Section 718.113(5) constitutes a common expense if the association is responsible for the maintenance, repair and replacement of the hurricane shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection pursuant to the declaration of condominium.  Otherwise, the cost of installation of the hurricane shutters, impact glass, code compliant windows or doors, or other types of compliant hurricane protection is not a common expense and shall be charged individually to the unit owners based on the cost of installation of the hurricane shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection appurtenant to the unit.
  • Amends Section 718.115(1)(e), Florida Statutes, to provide that a unit owner who has previously installed hurricane shutters in accordance with Section 718.113(5) that comply with the current applicable building code shall receive a credit when shutters are installed; a unit owner who has previously installed impact glass or code compliant windows or doors that comply with the current applicable building code shall receive a credit when the impact glass or code compliant windows or doors are installed; and a unit owner who has installed other types of code compliant hurricane protection that complies with the current applicable building code shall receive a credit when the same type of other code compliant hurricane protection is installed, and the credit shall be equal to the pro rata portion of the assessed installation cost assigned to each unit.  However, the unit owner remains responsible for the pro rata share of expenses for hurricane shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection installed on common elements and association property and remains responsible for the pro rata share of the expense of the replacement, operation, repair and maintenance of such shutters, impact glass, code compliant windows or doors, or other types of code compliant hurricane protection.

Suspension of Use Rights (Condominiums, Cooperatives and Homeowners’ Associations)

  • Amends Sections 718.303(3)(a) and 719.303(3)(a), Florida Statutes, to provide that when an association suspends the right of a unit owner, or a unit owner’s tenant, guest or invitee to use the common elements for failure to comply with any provision of the condominium or cooperative documents, or reasonable rules of the association, such suspension does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.
  • Amends Section 720.305(2)(a), Florida Statutes, to provide that when an association suspends the right of an owner, or an owner’s tenant, guest or invitee to use the common areas for failure to comply with any provision of the governing documents, such suspension does not apply to that portion of the common areas used to provide access or utility services to the parcel.  Further, a suspension may not impair the right of an owner or tenant to have vehicular and pedestrian ingress or egress from the parcel, including, but not limited to, the right to park.

Suspension of Voting Rights (Condominiums, Cooperatives and Homeowners’ Associations)

Amends Sections 718.303(5), 719.303(5), 720.305(4), Florida Statutes, to remove language added in 2011 stating that a suspended voting right may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under the statute or pursuant to the condominium, cooperative, or governing documents.

Phase Condominiums

  • Amends Section 718.403(1), Florida Statutes, to provide that all phases must be added to the condominium within 7 years after the date of recording the original declaration of condominium submitting the initial phase to condominium ownership unless an amendment extending the 7-year period is approved by the unit owners.
  • Provides that an amendment extending the 7-year period requires the approval of the owners necessary to amend the declaration of condominium consistent with Section 718.110(1)(a).  An extension of the 7-year period may be submitted for approval only during the last 3 years of the 7-year period.
  • Provides that an amendment extending the 7-year period must describe the time period within which all phases must be added to the condominium and such time period may not exceed 10 years after the date of recording the original declaration of condominium submitting the initial phase to condominium ownership.
  • Provides that an amendment extending the 7-year period is not an amendment subject to Section 718.110(4).

Creating a Condominium within a Condominium

  • Creates Section 718.406, Florida Statutes, to allow the creation of a condominium within an already existing condominium.
  • Provides definitions for “primary condominium”, “primary condominium association”, “primary condominium declaration”, “secondary condominium”, “secondary condominium association”, “secondary condominium declaration” “secondary unit”, and “subdivided parcel.”
  • Provides that unless otherwise provided in the primary condominium declaration, if a condominium parcel is a subdivided parcel, the secondary condominium association operating the secondary condominium shall act on behalf of the unit owners of secondary units in the secondary condominium and shall exercise all rights of the secondary unit owners in the primary condominium association, other than the right of possession of the secondary unit. The secondary condominium association shall designate a representative who shall cast the vote of the subdivided parcel in the primary condominium association and, if no person is designated by the secondary condominium association to cast such vote, the vote shall be cast by the president of the secondary condominium association or the designee of the president.
  • Provides that unless otherwise provided in the primary condominium declaration as originally recorded, no secondary condominium may be created upon any condominium parcel in the primary condominium, and no amendment to the primary condominium declaration may permit secondary condominiums to be created, unless the record owners of a majority of the condominium parcels join in the execution of the amendment.
  • Provides that if the primary condominium declaration permits the creation of a secondary condominium and a condominium parcel in the primary condominium is being submitted for condominium ownership to create a secondary condominium, the approval of the board of the primary condominium association is required.  Unless otherwise provided in the primary condominium declaration, the owners of condominium parcels in the primary condominium that will not be part of the proposed secondary condominium and the holders of liens upon such primary condominium parcels shall not have approval rights regarding the creation of the secondary condominium.  Approval is required for the execution of a secondary condominium declaration by the board of the primary condominium association, the owner of the subdivided parcel, and all holders of liens on the subdivided parcel.
  • Provides that the owner of a secondary unit is subject to both the primary condominium declaration and the secondary condominium declaration.
  • Provides that the primary condominium association may provide insurance for common elements and other improvements within the secondary condominium if provided in the primary condominium declaration.
  • Provides that unless otherwise provided in the primary condominium declaration, the board of administration of the primary condominium association may adopt hurricane shutter or hurricane protection specifications for each building within which subdivided parcels are located and govern any subdivided parcels in the primary condominium.
  • Provides for other provisions dealing with notice of foreclosure actions, conflicts between the primary condominium declaration and secondary condominium declaration, and collection of common expenses.

Condominium Ombudsman

  • Amends Section 718.5011, Florida Statutes, to provide that an officer or full-time employee of the ombudsman’s office may not actively engage in any other business or profession that directly or indirectly relates to or conflicts with his or her work in the ombudsman’s office.

Official Records (Cooperative and Homeowners’ Associations)

Cooperative Impacts

  • Amends Section 719.104(2)(c), Florida Statutes, to make more consistent with the Condominium Act with respect to records that are not accessible to unit owners.
  • Adds the following records to those that shall not be accessible to unit owners:
  • Any record protected by the lawyer-client privilege as provided in Section 90.502.
  • Personnel records of association employees, including, but not limited to, disciplinary, payroll, health, and insurance records.  The term “personnel records” does not include written employment agreements with an association employee or budgetary or financial records that indicate the compensation paid to an association employee.
  • Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, emergency contact information, any addresses of a unit owner other than addresses provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, and property address.
  • Any electronic security measures that are used by the association to safeguard data, including passwords.
  • The software and operating system used by the association which allows manipulation of data, even if the owner owns a copy of the same software used by the association.

Homeowners’ Association Impacts

  • Amends Section 720.303(5), Florida Statutes, to provide that personnel records of association or management company employees are not accessible for inspection by members or parcel owners.  The current statute does not mention management company employees.

Board Meetings (Cooperative Associations)

  • Amends 719.106(1)(c), Florida Statutes, to provide that the Board may hold closed meetings for the purpose of discussing personnel matters.

Mortgagee Consent for Amendments (Cooperatives and Homeowners’ Associations)

  • Creates Sections 719.1055(7) and 720.306(1)(d), Florida Statutes, to incorporate the mortgagee consent provisions adopted in the Condominium Act in 2007.
  • Provides for a streamlined method of obtaining mortgagee consent.
  • http://twitter.com/PRZMIAMI Jose Pazos

    I was told that the Florida Bar had added language to the bill pertaining to Management Firms and Managers not being allowed to complete estoppel letters any longer or capping the price to between $50-$150. Is this true of so where in the bill is this?

  • http://twitter.com/PRZMIAMI Jose Pazos

    I was told by several attorney’s that the bill HB 73 would include language brought forth by the Florida BAR pertaining to an LCAM’s or management firm’s ability to complete estoppel letters or capping the amount they can charge from $50 – $150. I think it was under the expansion of the unauthorized practice of law the BAR is trying to implement. Is this true?   

  • LagunaVB

    Our Condominium Documents say “There shall not be less than one (1) automobile parking space assigned to each Unit”. My condo’s listing said there was assigned parking. I’ve lived at this condo 3.5 years and no Board will assign a parking space. It would be a hassle for them, they do not want to be bothered. What can I do? Can Board’s “cherry-pick” what they want to follow in the documents, but not other items they do not? I did a search for assigned parking and it may not have been covered before in your blog, it is not covered in HB 73.