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HB 319 is the primary condominium bill this session. It is neither anti-association nor pro-bank as some of its critics have said. In fact, it is one of the most pro-association bills we have seen in recent years. It protects associations from predatory collection agencies which are trying to take advantage of an association’s wish to be repaid fully once the foreclosure process is complete.  

Ask yourself one simple question to determine if HB 319 is pro or anti association: if the Legislature is going to increase a bank’s liability to an association, should the increased funds go to pay legal fees or go to reimburse the community for unpaid assessments?  In our view, any additional payments by made by banks MUST go back to the association.

Collection agency attorneys should not be incentivized to aggressively go after banks if the associations could be left with a large debt payable to the attorneys. We recently saw such a case where the collection attorney was demanding almost $14,000.00 to finalize the sale of a foreclosed unit.  The purchaser was left without any good choices. One option is to pay the fees (which is what the “aggressive” firms have counted on).  Another option is to go to court which can also be costly.  Another alternative is to simply cancel the deal – defeating the whole purpose.

Let's address the real problem by making the banks foreclose more quickly and pay the assessments due to the association, not by creating more financial opportunities for collection mill attorneys.

I have structured a Q&A below with the hope that it will better explain the real purpose of the bill and the problems that the bill is trying to fix.

Q:  What is the “safe harbor” provision?

A:  The “safe harbor” provision in the law means that when a bank takes title to a unit as a result of foreclosure, the bank is obligated to pay either 12 months of unpaid assessments or 1 percent of the original mortgage debt, whichever is less.  For example, if a condominium’s annual assessments are $3600, and the unit has a $250,000 mortgage, the bank will pay to the association $2,500.  The safe harbor provision has been in the law since 1992. Prior to 1992, a bank that took title to a unit through a foreclosure action paid the association ZERO in past due assessments. 

Q:  Do banks owe the association’s attorney’s fees and costs, in addition to the safe harbor amount?

A:  No.  There is no mention in the statute of other charges, such as attorney’s fees, becoming a bank liability after the foreclosure of the bank’s mortgage.  The vast majority of attorneys who practice community association law interpret the law to mean that the bank does not owe any additional amounts above the safe harbor amount.

Q: How does HB 319 affect the safe harbor provisions?

A:  HB 319 simply clarifies the law that has been in effect for 20 years so that it specifically states that the bank is responsible for 12 months past due assessments or 1% of the original mortgage debt, whichever is less, and does not have to pay unlimited attorney’s fees and costs above the safe harbor amount. 
 
Q:  Why is it necessary to clarify the safe harbor provisions?  Why not leave the law as is?

A:  There was never any uncertainty in the law until recently, when a cottage industry of collection agencies and collection lawyers, with no history of helping associations, came onto the scene and began to interpret the law differently.  This cottage industry (some refer to them as collection mills) claim that their interpretation of the statute is merely “aggressive” and they are willing to take liberties with their demands against first mortgagees that take title to condominium units.  So for example, if an association’s annual assessments total $3,600 and the amount of the loan was $250,000, rather than making a demand for $2,500, these firms and collection agencies have demanded outrageous sums of thousands of dollars, ten thousand dollars, fifteen thousand dollars and even more for routine mortgage foreclosure cases.   It is easy to see why these collection mills do not want HB 319 to clarify the safe harbor amount and are misleading the public into thinking that HB 319 is anti-association and pro-bank.  
 
Q:  Why not leave the law as is and let these collection mills try to get as much money as they can from the banks?

A:  Associations are being harmed, every day, by these predatory practices.  For example, when a lender does foreclose and looks for a new buyer for the home the parties must ask the association for an “estoppel letter”, which is a legally binding request for the association to state how much must be paid for the issuance of a clear title.  Although the bank has often already paid the safe harbor amount, the parties ready to close the deal (buyer, seller, lender, attorneys, realtors, and title companies) are all shocked to learn that demand is being made against them on behalf of an association for outrageous sums.  We recently saw one case where the collection attorney was demanding some $14,000.00.  When faced with a scenario like this, the choices are all bad.  One option is to pay the money, and that is what many of the “aggressive” firms have counted on.  Another option is to insist that the law be followed and go to court.  This is usually not a good economic choice for the parties.  Another alternative is to simply cancel the deal, which is happening more and more frequently.  In other cases, the lenders will pay, and then file lawsuits for refunds. 

Q:  What other problems are being caused by the “aggressive” interpretation of the law by the collection mills?

A:  Similar practices in Nevada led a subsidiary of Bank of America to file a class action lawsuit regarding collection practices in homeowners’ associations.  According to recent news reports, a couple of hundred Nevada associations have also recently been named as defendants in a new wave of class action lawsuits.  It is only a matter of time before a similar class action lawsuit is filed in Florida unless the Legislature acts to clarify the law.

Q:  Why not change the law so that banks have to pay the attorneys fees and costs, in addition to the safe harbor?

A:  We think the banks should be paying more, but if there is going to be a change in the law, it should be in the safe harbor amount (for example, 24 months or 2% instead of the current 12 months or 1%) so that we can be sure that the additional money paid by the banks is going to the associations and not to lawyers and collection agencies.  In addition, if the law is changed to require the banks to pay attorneys fees and costs in addition to the safe harbor amount, it would ignore the purpose of the original safe harbor law, which was so that a bank lending money would know upfront how much it would have to pay to the association if the borrower stopped paying his or her mortgage and the bank had to foreclose.   If the law was to be changed to say that the banks had to pay unlimited amounts of attorney’s fees and costs, the lending industry may decide to curtail borrowing in Florida or make it much more expensive to obtain a loan.

Q:  What is the Legislature doing to help associations?

A:  I believe that HB 319 helps associations by clarifying the safe harbor provision which will curtail the abuses explained in these Q&A’s.  In addition, there are a couple of bills pending in the Legislature (HB 213 and SB 1890) which will give associations more control over speeding up stalled foreclosure cases.  The greatest problem for associations is that the foreclosure actions drag on far too long.  Associations need to have these units sold, and a new owner holding title, so that the new owner can begin to pay assessments to the association.  Therefore, I would strongly urge you to contact your Legislator and ask them to support HB 319 and HB 213/SB 1890.

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CALL recently notified its members of changes to HB 319 which is the community association bill filed by Rep. Moraitis.  The changes were considered and approved by the House Civil Justice Subcommittee on December 7th.  The five (5) amendments:

1. Clarify that condo election procedures do not apply to timeshare condominium associations.
2. Clarify that mortgagees only have to pay 12 months of base assessments that accrued prior to acquisition of title (or 1% of the original mortgagee, whichever is less), but also clarify that other purchasers bear responsibility for all debts owed by the prior owner including collection costs and attorney's fees;  
3. Require a majority of condominium unit owners to approve creating a "condo within a condo", giving those owners a voice in determining the future of their community;
4. Conform the laws governing cooperative associations to be more consistent with condo laws.  This portion of the bill would allow co-ops to hold closed board meetings to discuss personnel matters; impose a deadline for challenging elections; require board member education or self-certification and otherwise mirror portions of the condo laws; 
5. Clarify mortgagee financial obligations in homeowners’ associations.

Future amendments to the bill will hopefully speed-up foreclosures and give judge’s more power to impose sanctions for delays.  There are efforts to relieve associations from liability for payment of past due amounts when title to property is acquired as a result of lien foreclosure.  

Look for more legislative updates directly from Tallahassee as this is just one of the bills being tracked by CALL.
 

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Representative George Moraitis, the sponsor of HB 1195, which became law on July 1, 2011, has filed a new community association bill, HB 319. HB 319 will be considered during the 2012 Legislative Session. HB 319 impacts condominium, cooperative, and homeowners’ associations. For a full summary of the impacts of HB 319, please go to www.callbp.com under “Latest Updates.”

The following is a list of the subjects covered by HB 319:

• Elevator Upgrades
• Director Certification and Educational Certificates (Condominiums,
• Cooperatives, and Homeowners’ Associations)
• Elections (Condominiums, Cooperatives, and Homeowners’ Associations)
• Recalls (Condominiums, Cooperatives, and Homeowners’ Associations)
• Hurricane Protection (Condominiums)
• Liability for Assessments (Condominiums and Homeowners’ Associations)
• Suspension of Use Rights and Voting Rights (Condominiums, Cooperatives and Homeowners’ Associations)
• Phase Condominiums
• Creating a Condominium within a Condominium
• Condominium Ombudsman
• Condominium Bulk Buyers
• Official Records (Cooperative and Homeowners’ Associations)
• Mortgagee Consent for Amendments (Cooperatives and Homeowners’ Associations)
• Community Association Manager Personal Information

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I recently had the pleasure of attending a ceremonial bill signing ceremony for HB 1195 at the Florida Capitol.  HB 1195 was the comprehensive community association bill that passed during the 2011 legislative session and became effective on July 1, 2011. The ceremony was held in Governor Rick Scott's office. 

To the right of Governor Scott is the bill sponsor, Representative Moraitis, myself, and CALL lobbyist, Travis Moore. We look forward to working with Representative Moraitis again during the 2012 legislative session on additional community association issues.  

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The Continental Group recently held informational sessions throughout the state to bring community association board members up to date on legislation passed during the 2011 Florida legislative session.  The next event is scheduled for Tuesday, August 30th in Highland Beach. 

Information regarding the event and registration information can be found in this PDF.  Board members and community leaders are welcome to join us to discuss the 'behind the scenes' legislative process and how these new laws impact your community association operations.   There will be ample time for questions during the presentation and immediately after wards.

Travis Moore devotes a substantial amount of his practice to community association issues.  He works with Community Associations Institute, a national organization with close to 30,000 members.  In 2011 work at both the national and local level in Florida helped preserve the community management profession throughout the state. By pooling their resources together, CAI, its Florida Chapters, The Continental Group, CALL and the Florida Bar were able to work with community leaders and legislators to prevent deregulation of community association managers.

We will discuss changes to statutes governing collection of rent from tenants, board member eligibility issues,  official records requirements and other association concerns.

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We continue to receive questions regarding HB 1195, the comprehensive community association bill that passed during the 2011 Legislative Session and became effective on July 1, 2011.  Therefore, I wanted to take an opportunity to answer some of the questions. 

QUESTION:  It appears to me that there is a conflict between a provision that was amended by HB 1195 and an existing Florida Statute. Specifically, HB 1195 amended Section 720.303(2)(b) regarding members’ rights to speak at board meetings. Doesn’t this conflict with Section 720.306, also dealing with the right of members to speak at meetings?

ANSWER:  The provision that was amended by HB 1195 is Section 720.303(2)(b), Florida Statutes, which deals with board of directors meetings.  Specifically, HB 1195 deleted the requirement that members must petition the board in order to speak at board meetings.  It further provided members with the right to speak at board meetings with reference to all designated items.  As you noted in your question, Section 720.306(6), Florida Statutes was not amended.  That section of the statute deals with owners’ meetings (for example, annual meetings of the owners and special meetings of the owners).  In order to speak at an owners’ meeting, an owner must submit a written request to speak prior to the meeting.  It does not require a “petition” like the old version of Section 720.303(2)(b).  Therefore, I do not believe there is a direct conflict between the two sections, although the procedures are a bit different if you want to speak at a board meeting versus at an owner’s meeting.

QUESTION:  Can a condominium association suspend the right to use common elements and/or suspend voting rights, if an owner is not paying his assessments to the condominium association, but is paying assessments to the master association? 

ANSWER:   If an owner is paying the master association assessments, but not the condominium association assessments, the condominium association can suspend the right of an owner to use the common elements of the condominium association, but cannot suspend the owner’s right to use the common areas of the master association. For example, if the pool is on master association common area property, the condominium association cannot suspend the owner’s right to use the common area pool. However, if the pool is located on the common elements of the condominium association, then the condominium association can suspend the owner’s right to use the pool. Likewise, the condominium association can suspend the owner’s voting rights, but such suspension would apply to meetings of the condominium association, not to meetings of the master association. Note that the suspension of use rights and voting rights only applies if an owner is more than ninety days delinquent in the payment of a monetary obligation due to the association. The association must impose the suspensions at a duly noticed board meeting and after provide written notice of such suspensions to the unit owner, and if applicable, the unit owner’s occupant, licensee, or invitee by mail or hand delivery.

QUESTION:  Can we send a letter to the owners telling them that if they do not want their phone numbers listed in the directory, they must let us know? Also, is a “members’ list” on the association’s website the same as a published directory?

ANSWER:   Regarding your first question, the answer is no. You cannot take the lack of response by an owner as an approval to include that owner’s contact information in a directory. In other words, you must obtain something in writing from the owners stating that they are consenting to their contact information being included in a directory. You cannot assume that they have consented based on their failure to respond to an association request. 

Regarding your second question, there is no prohibition in listing members’ names on a website.  The statutes do not prohibit the listing of names. Rather, it prohibits the disclosure of personal identifying information (i.e., telephone numbers, facsimile numbers, e-mail addresses, other mailing addresses, etc.). Therefore, a list of the members without any contact information included is permissible.

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Has your association collected rent from tenants when the landlord/owners fail to pay assessments?  If so, you should be aware that the 2011 Florida community association legislation (HB 1195) includes a form of letter to use when notifying a tenant to make rent payments to the condo or HOA.  The statute clarifies the obligation on the part of the tenant to divert rent payments to the association.  Section 718.116(11)(a), Florida Statutes provides, in relevant part, the following:

Pursuant to section 718.116(11), Florida Statutes, the association demands that you pay your rent directly to the condominium association and continue doing so until the association notifies you otherwise.  Payment due the condominium association may be in the same form as you paid your landlord and must be sent by United States mail or hand delivery to ...(full address)..., payable to ...(name)....  Your obligation to pay your rent to the association begins immediately, unless you have already paid rent to your landlord for the current period before receiving this notice. In that case, you must provide the association written proof of your payment within 14 days after receiving this notice and your obligation to pay rent to the association would then begin with the next rental period. Pursuant to section 718.116(11), Florida Statutes, your payment of rent to the association gives you complete immunity from any claim for the rent by your landlord for all amounts timely paid to the association. 
 

The 2010 statute already protected tenants against eviction by the landlord when payments were made to the condo or HOA as a result of the association's demand.  That didn't stop landlords from threatening eviction or otherwise intimidating tenants though.   There should be less and less resistance as more Florida residents become aware of the law - hopefully improving the association's bottom line!

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The 2011 community association legislation clarifies owner privacy rights and expands owner access to employee salary information, among other things.  Did you know?

Owner Privacy Rights/Directories:

The 2010 amendments to the statutes provided that owners’ telephone numbers, e-mail addresses and other “personal identifying information” could not be made accessible to other owners. This upset many association leaders and residents which publish owner directories, telephone books, e-mail group lists, and the like. The previous statute did not say whether or not personal identifying information could be published if the owner whose information was being published signed a waiver form. The new statute permits owners to authorize the disclosure of such information, provided that their consent is evidenced in writing.

Employee Salary Information:

The 2010 amendments to the condominium statute provided that “personnel records” for condominium association employees were not available for owner inspection, mirroring a provision already found in the homeowners’ association statute. HB 1195 provides that while “personnel records” are still protected from owner inspection, salary information regarding any particular employee, as well as any employee’s written employment agreement, are part of the “official records.”  Thus, employee salary information is available for inspection by owners in both condominiums and homeowners’ associations.

Closed Board Meetings:

HB 1195 amends the condominium statute to mirror the Homeowners’ Association Act. Now, under both laws, a board can hold closed meetings (prevent owner attendance and observation) regarding “personnel matters.” The law still permits association boards and committees to also meet in closed session with association legal counsel under certain circumstances.

Board Term Limits:

HB 1195 makes it clear that term limits for condominium association directors, if contained in the bylaws, are valid. There remains doubt as to whether term limits are effective in the HOA context for the time being.

Right to Speak at HOA Board Meetings:

The Homeowners’ Association Act has been amended to state that owners have the right to speak at meetings of the board with reference to “all designated items.” Under previous law, HOA members could only speak at board meetings as a matter of right if so provided in the bylaws, or if the owners called for a special board meeting by a complicated petition process. The condominium statute has, for decades, allowed unit owners to “participate” at board meetings with respect to all designated agenda items. Curiously, the new provisions in the Homeowners’ Association Act, while providing that members now have the right to
speak with reference to “designated items”, does not require the HOA board to publish an
agenda with its posted notice, as is the case in condominiums.

Board Eligibility:

The condominium statute has been amended to clarify that a candidate must be eligible to serve on the board at the time of the deadline for submitting a notice of intent (forty days before the election) in order for his or her name to be listed on the ballot. For example, if a unit owner is more than ninety days delinquent in the payment of assessments to the association at the time of deadline for submitting a self nomination, they would not be eligible to run for the board. Interpretations of the previous statute were that such a person would need to be placed on the ballot, on the theory that they could cure their ineligibility (for example, bringing their account current) prior to taking their seat on the board.
 

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David Muller

The Community Association Leadership Lobby (“CALL”), the lobby arm of Becker & Poliakoff, P.A., recently hosted a Legislative Webinar that focused on recent changes to Florida Law based on the 2011 Legislative Session.  We were honored to have State Representative George Moraitis, who sponsored HB 1195 (this year’s large community association bill), join us as a guest presenter during the Webinar.  We had a record number of attendees for the Webinar and we thank you for your continued support and interest.

The webinar can be viewed by clicking here.

We received several questions during the Webinar, including the following:

Question:  Are we allowed to send an e-mail to all owners?  Should the e-mail addresses be all entered as blind copy?

Answer:  Your question refers to the provisions contained in Section 718.111(12), Florida Statutes (condominium associations), and Section 720.303(5)(c), Florida Statutes (homeowners associations), which prohibit disclosing certain information, such as owner e-mail addresses, to other owners.  HB 1195, which will become effective on July 1, 2011, will allow for the release of certain “personal identifying information” if the subject owner consents in writing to the disclosure of this protected information.  Thus, the sending of mass e-mails to the owners is not specifically prohibited by this statute.  That said, unless you blind copy all of the owners (i.e. send the e-mail via the “bcc” feature), all of the owners will have the opportunity to view their neighbors e-mail addresses.  Unless the written consents of all of the owners have been obtained (per the new law), this could be viewed as a violation of the above-referenced statutes.  Therefore, the conservative approach would be to only send mass e-mails to the owners by using the blind copy feature.  

Question:  Can we send a letter to the owners saying that their personal identifying information (e.g. e-mail address, etc.) will be made available unless they specifically tell us not to disclose this information?

Answer:  The new statute cited above calls for an “opt-out” not an “opt-in” on this issue.  In other words, you must obtain the written consent of the owners to disclose this information.  The statute does not allow an association to proceed as you suggest above.  

Question:  Where can I find the new form “tenant collection letter” contemplated under Section 718.116(11), Florida Statutes (condominium associations), Section 719.108(10), Florida Statutes (cooperatives), and Section 720.3085(8), Florida Statutes (homeowners associations)?  Is this form available online?

Answer:  The new form letter you reference above is specifically included in the language of the above-referenced statutes, which will go into effect on July 1, 2011.  The form for condominium associations can be viewed by clicking here (which takes you to the text of HB 1195), beginning on page 30.

The form letter for cooperatives can be viewed on page 54 of this same link.  The form letter for homeowners associations can be viewed on page 71 of this same link.  Associations should consult with their attorneys regarding the new collection laws so as to ensure proper compliance.  

CALL has also prepared a comprehensive summary of the 2011 Legislative Session, which can be accessed by clicking here.


 

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We are pleased to announce that this year’s large community association bill, HB 1195, which previously passed out of the Legislature was formally signed into law yesterday by Governor Rick Scott. The effective date of HB 1195 is July 1, 2011.  You can view the full text of HB 1195 by accessing the CALL website (www.callbp.com). 

CALL has also prepared a comprehensive summary of HB 1195 and several other important bills that impact community associations. [PDF]

CALL worked closely with the sponsors of HB 1195 over the past year to ensure the best possible result for community associations. 

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Join Becker & Poliakoff's CALL team along with Special Guest Representative Moraitis, Jr., the sponsor of HB 1195.

Live Webinar — Monday, June 13, 2011
1:30 PM – 3:00 PM EDT

2011 FLORIDA LEGISLATIVE SESSION:
New Laws Affecting Community Associations

The 2011 Florida Legislative Session came to an end upon adjournment on Saturday, May 7.  House Bill 1195, sponsored by Rep. George Moraitis, Jr. (R-FL 91st District), passed during the Legislative Session and will soon be headed to the Governor for final action.  The CALL team of Ken Direktor,  David Muller and Yeline Goin, Co–Executive Directors of CALL, will be joined by Travis Moore, CALL’s lobbyist in Tallahassee, along with our Special Guest Rep. Moraitis, for an in-depth analysis of this bill as well as others that affect daily operations in your community.  Click on the register button below to sign up for this very important event!

Ken Direktor, Esq. West Palm Beach	David Muller Sarasota
Yeline Goin, Esq. Tallahassee, Ft. Myers	Travis Moore Tallahassee

Register today! You will  receive a confirmation email with information on how to participate from the convenience of your computer.

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Floridians Must be Aware of Major Impacts of SB 408 including:

• Changes to Citizens Property Insurance;
• The Imposition of New/Restricted Time Limitations for Hurricane & Sinkhole Claims;
• Granting Carriers Permission to Withhold Partial Payment of Insurance Proceeds; and
• Rate Change Procedures, Obligations of Public Adjusters, Changes in Notices of Cancellation or Terms of Coverage and much more ...

Governor Scott, insurance companies and agents are excited about what they consider positive changes for Florida's insurance market.  Governor Scott and proponents of the bill contended that  "burdensome regulations" on insurance companies increased costs and detracted new companies from offering products in Florida.  Some of the more significant changes are explained below:

1. Premiums can go up by up to 15 percent a year as a result of adjustments in reinsurance and other financing costs (including a profit margin on those costs), with less scrutiny;
2. Insureds only have two (2) years from when they knew or reasonably should have known about sinkhole losses to make sinkhole claims;
3. All hurricane claims (whether the initial, supplemental or reopened claim) must be filed within three (3) years after the hurricane first makes landfall or the windstorm causes covered damage (down from five years);
4. Insurance carriers can withhold full payment for home damage claims until the work is performed and expenses incurred - the carrier is only required to pay the actual depreciated cash value of the loss minus the deductible.  The insured will not be paid for the replacement costs until the costs are incurred, somewhat like a construction loan;
5. The Statute of Limitations to bring a breach of contract action against a carrier runs from the actual date of loss rather than the date of alleged breach;
6. Insureds will have to pay up to half of the cost of testing for sinkholes if the insurer denies the claim and its engineer determines there is no sinkhole;
7. Sinkhole coverage will likely be limited to coverage for the main building on a property - not any other structures or improvements (parking lots or structures, seawalls, tennis courts, etc.); and
8. Carriers can refuse to renew policies covering both a home and vehicle for any reason with at least 90 days advance notice.

There is a lot to digest in this 129 page bill and we will include more analysis, as well as comments regarding the potential impact on community associations, in future posts. 
 

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The Florida Legislature adjourned Sine Die at 3:35 a.m. on Saturday morning, May 7, bringing the 2011 Legislative Session to a close. As we announced previously, the main community association bill, HB 1195 (companion bill SB 530) passed and is headed to the Governor. CALL worked closely with the sponsors of that piece of legislation to ensure the best possible result for community associations.

CALL also worked hard to prevent some very bad legislation from passing including: (1) the language in the deregulation bill that would have eliminated state regulation of community association managers and the Division of Condominiums, Timeshares and Mobile Homes; and (2) the “design professionals” bill that would have protected design professionals (e.g. architects and engineers) that fail to properly carry out their professional duties. Overall, the 2011 Legislative Session was a good one for community association legislation.

The following is a summary of the bills impacting community associations that passed and did not pass.

BILLS THAT PASSED

HB 1195, by Rep. Moraitis Community Associations
The companion bill in the Senate was SB 530 by Senator Fasano. This is a summary of the issues CALL worked on and drafted language for which are contained within this bill.

• Official Records (Condominiums and HOAs)

  • Will clarify that owners are permitted to consent in writing to the disclosure of their protected contact information.

  • Will clarify that although personnel records are not available for inspection by owners, the owners will be permitted to inspect employment agreements and budgetary and financial records that indicate the compensation paid to employees.

• Open Meetings (Condominiums)

Will permit condominium boards the right to hold closed meetings (not open to unit owner observation) for “personnel” matters. Legal counsel need not be present. (This is already the law in the homeowners’ association context.)

• Attachment of Rents (Condominiums, Cooperatives and HOAs)

Will clarify that “future monetary obligations” includes all rent due from the tenant to the unit or parcel owner and must be paid to the association until all delinquent accounts are paid in full.

• Director Certification (Condominiums)

  • Will provide that condominium association directors may submit proof of educational course attendance (in lieu of signing the certification form) and such course must have been completed within 1 year before or 90 days after the date of the election or appointment. 

  • The written certification is valid as long as the director serves on the board without interruption.

  • Suspensions (Condominiums, Cooperatives, HOAs)

  • Will allow suspension of common element use rights for non-payment (no hearing is required) and for bad acts (hearing is required).

  • Will clarify that if voting rights are suspended, the suspended vote will not count towards quorum or vote required to approve an action.

  • Suspensions for non-payment will not require hearing, but will require board approval at properly noticed meeting.

HB 59, by Rep. Julien, Service of Process

Will allow process servers to have unannounced entry to the community, including the common areas and common elements, of condominiums, gated communities, or cooperatives to serve process on a defendant or witness who resides or is known to be within community.

SB 650, by Sen. Jones, Home Parks

• Will allow local governments to enforce violations of ss. 723.022 and 723.023, which contain the numerous legal obligations of mobile home park owners.
• Penalties against the mobile home owner shall not be levied for any duty or responsibility of the mobile home park owner under s. 723.022 or against a mobile home park owner for any duty or responsibility of the mobile home owner under s. 723.023.
• Will require certain notices to be provided to mobile home owners before the park owner can evict the mobile home owner because of a change in land use.

SB 408, by Sen. Richter, Property and Casualty Insurance

• Sinkhole coverage will be limited to structural damage for primary buildings.
• Will strictly define “structural damage” to minimize frivolous claims.
• Will reduce the window for filing hurricane and windstorm claims from five to three years after a storm.
• Will reduce the window for filing sinkhole claims from five years to three years.
• Will allow insurers to withhold full payment for a claim until policyholders sign a contract for repairs, and the repairs are made, except for homes that are destroyed.
• Will allow insurers to raise premiums by up to 15% per year for reinsurance costs.

HB 883, by Rep. Horner, Public Lodging Establishments

• Will replace the terms “resort condominiums” and “resort dwellings” with the term “vacation rental”.
• The term “vacation rental” will be defined as a unit or group of units in a condominium, cooperative, or timeshare plan or any individually or collectively owned single-family, two-family, or four-family house or dwelling unit that is also a transient public lodging establishment.

HB 849, by Rep. Davis Public Swimming Pools; Elevators

• Will adopt the pool retrofitting requirements in the federal Virginia Graeme Baker Pool and Spa Safety Act by requiring public swimming pool and spa drain covers and grates to be equipped with an anti-entrapment system or device.
• Will provide that if a public pool or spa constructed before June 1, 1993, has one main drain, the owner or operator of the pool must retrofit by choosing one of the following:
  
  
  • A safety vacuum release system;
  • A suction-limiting vent system;
  • A gravity drainage system with collector tank;
  • An automatic pump system; or
  • A device that disables the drain.
     
• The above referenced retrofitting methods are consistent with the federal law and expands state law to allow gravity drainage with collector tank as an acceptable retrofitting method.
• Will eliminate the requirement that multi-family dwellings, including condominiums, that are at least 75 feet high and contain a public elevator, have at least one elevator that can be powered by an alternate power source (for example, a generator). 
• Will eliminate the requirement that the operators of such buildings adopt an emergency operations plan.
• We will notify you when Governor Scott takes action on these bills. If you wish to contact Governor Scott regarding any of these bills, his contact information is listed below:

Governor Rick Scott
Phone :(850) 488-7146 Fax: (850) 487-0801
Email: rick.scott@eog.myflorida.com

BILLS THAT DID NOT PASS

SB 332/HB 173 - Sumberged Land Leases
Would have treated multi-family residences (including condominium associations) the same as single family residences with respect to the regulation of submerged land leases. Currently, multi-family residences are subject to the same regulation and fees as commercial, profit-making entities. This bill would have exempted multi-family residences from such regulations.

SB 646 - Mobile Home Parks
Would have required a mobile home park owner to notify the officers of the homeowners’ association created by ss. 723.075-723.079 of a bona fide offer for purchase.

SB 712 - Suspension of Cable and Internet
Would have specifically allowed cable and internet services to be suspended by a condominium association if the owner is delinquent in the payment of assessment.

SB 832/HB 583 - Mobile Home Parks

Would have required that the Division of Condominiums, Timeshares and Mobile Homes notify the homeowners’ association prior to approving any proposed amendments to the prospectus or offering circle.

Would have required a mobile home park owner to provide a prospective lessee with a “mobile home expense disclosure document.”

Would have defined the “market area or competitive area” for comparable mobile home parks to mean the county in which the mobile home park is located along with any contiguous counties.

SB 1112 - Rental Data to Property Appraiser
Would have required condominium and cooperative associations to annually provide the property appraiser with a list of units rented during the previous year, for the purpose of such would be to identify those units that are improperly receiving a homestead exemption. 

SB 1132 - Cooperative Associations
Would have prohibited immediate family members residing in the same unit from serving concurrently on the board of a cooperative association.

SB1288/HB 799 - Non-judicial Foreclosure of Commercial Property
Would have required non-judicial foreclosure for commercial real property, including commercial condominiums. 

SB 1516 - Condominium and Homeowners’ Associations
Some of the provisions in this bill passed in HB 1195. Some of the provisions that did not pass include:

Would have required insurance companies to notify all unit owners by certified and regular mail if an association having 50 or fewer units cancels or does not renew its required insurance coverage, and would have allowed a majority of the voting interests to agree in writing to direct the board to obtain substitute coverage.

Would have required “condo-style” elections for homeowners’ associations including a 60-day first notice, self-nominations 40 days in advance of the annual meeting, second notice, two-envelopes, secret ballots, etc.

Would have prohibited co-owners of a parcel in a homeowners’ association from serving as members of the board at the same time unless they own more than one parcel or unless there are not enough eligible candidates to fill the vacancies on the board.

Thank you to all of our CALL members who sent e-mails, wrote letters, made phone calls, etc. during this Legislative Session to ensure that positive community association was adopted and that onerous legislation was defeated. We could not accomplish our objectives and goals without your help. We also would like to thank the members of the Legislature that worked with CALL on positive community association legislation.

Very truly yours,

Yeline Goin and David Muller, Co-Executive Directors

Community Association Leadership Lobby (CALL) 

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As previously addressed in our prior CALL Alerts, many portions of SB 530 (the “glitch” bill) were primarily drafted by CALL, at the request of members of the Legislature, to clear up some of the confusion that arose from SB 1196 (the 2010 community association bill that became law). SB 530 was originally accompanied by HB 1035, and later by HB 1195. We are pleased to announce that HB 1195 passed out of the Legislature today and will now be sent to the Governor for action. We have no reason to believe the Governor will veto the bill, but final confirmation normally takes a matter of 3 or 4 weeks. We will keep you posted.

Here is a summary of the issues CALL worked on and drafted language for which are contained within this bill:

Official Records (Condominiums and HOAs)

• Will clarify that owners are permitted to consent in writing to the disclosure of their protected contact information.
• Will clarify that although personnel records are not available for inspection by owners, the owners will be permitted to inspect employment agreements and budgetary and financial records that indicate the compensation paid to employees.

Open Meetings (Condominiums)

• Will permit condominium boards the right to hold closed meetings (not open to unit owner observation) for “personnel” matters. Legal counsel need not be present. (This is already the law in the homeowners’ association context.)

Attachment of Rents (Condominiums, Cooperatives and HOAs)

• Will clarify that “future monetary obligations” includes all rent due from the tenant to the unit or parcel owner and must be paid to the association until all delinquent accounts are paid in full.

Director Certification (Condominiums)

• Will provide that condominium association directors may submit proof of educational course attendance (in lieu of signing the certification form) and such course must have been completed within 1 year before or 90 days after the date of the election or appointment.
• The written certification is valid as long as the director serves on the board without interruption.

Suspensions (Condominiums, Cooperatives, HOAs)

• Will allow suspension of common element use rights for non-payment (no hearing is required) and for bad acts (hearing is required).
• Will clarify that if voting rights are suspended, the suspended vote will not count towards quorum or vote required to approve an action.
• Suspensions for non-payment will not require hearing, but will require board approval at properly noticed meeting.
• The Bill also contains some provisions that were primarily advocated through other constituents and groups:

Collection of Rent from Tenants (Condominiums, Cooperatives, HOAs)

• Will provide a form letter to be sent to tenants explaining the tenant’s obligation to pay rent to the association.
• Will provide tenant with immunity from any claim by the landlord related to the rent timely paid to the association after the association has made written demand.

Elections and Staggered Terms (Condominiums)

• Will clarify that board member terms do not expire at the annual meeting if all of the member terms would expire at the annual meeting but there are no candidates.
• In those cases where the board member terms expire at the annual meeting, the board members may stand for reelection unless prohibited by the bylaws. (This suggests that term limits may be permitted, if provided in the bylaws).
• Will clarify that a candidate must be eligible to serve on the board at the time of the deadline for submitting a notice of intent (i.e., 40 days before the election) in order for his or her name to be listed as a proper candidate on the election ballot or to serve on the board.

Termination (Condominiums)

• Will provide for “partial” termination of condominiums and that amendments providing for same are not subject to s. 718.110(4).
• Plan of termination in a partial termination must reflect the remaining interests in the non-terminated portion of the condominium.
• Modifies distribution protocol and mortgagee participation to reflect partial termination.
• Will allow for termination because of economic waste or impossibility if a condominium includes units and timeshare estates where the improvements have been totally destroyed or demolished. Will require a plan of termination be filed in court by a unit owner seeking equitable relief.

Membership Agreements (Condominiums)

• Will provide for association acquiring membership agreements by vote of a majority of entire voting interests instead of reference to declaration and s. 718.113(2).

Management Fee Collection (Cooperatives)

• Will remove provision from 2010 statute allowing cooperative associations to lien for collection services for which the association has contracted.

Homeowners’ Associations/Bulk Television/Internet/Information (HOAs)

• Will create s. 720.309(2) to basically mirror condominium statute, as amended in 2010, regarding bulk purchase of information or internet services.
• Will prohibit homeowners’ associations from denying individual service to any resident from certificated or franchised provider.

Bulk Buyers/Bulk Assignees (Condominiums)

• Will amend definition of “bulk assignee” and “bulk buyer” to mean a person who acquires more than 7 condominium parcels in “a single condominium.”
• Will provide that bulk assignee is not liable for warranties under 718.203(1) or 718.618, except “as expressly provided by the bulk assignee in a prospectus or offering circular, or the contract for purchase and sale executed with a purchaser,” or for design, construction, development or repair work performed by or on behalf of the bulk assignee.
• Will provide that if, at the time the bulk assignee acquires title to the units and receives an assignment of developer rights, the developer has not relinquished control of the board, for purposes of determining the timing of transfer of control, a condominium parcel acquired by the bulk assignee is not deemed to be conveyed to a purchaser, or owned by an owner other than the developer, until the condominium parcel is conveyed to an owner who is not a bulk assignee.
• Will require filing with the division and certain disclosures to purchasers and lessees if bulk assignee or bulk buyer is offering “more than seven units in a single condominium” for sale or for lease for a term exceeding 5 years.
• Will provide that bulk assignee or bulk buyer are not required to comply with the filing or disclosure requirements if all of the units owned by the bulk assignee or bulk buyer are offered and conveyed to a single purchaser in a single transaction.
• Will provide that a person acquiring condominium parcels may not be classified as a bulk assignee or bulk buyer unless the condominium parcels were acquired on or after July 1, 2010, but before July 1, 2012.

Homeowners’ Association Board of Directors Eligibility and Meetings (HOAs)

• Will carry over the provisions in the Condominium Act regarding board eligibility. A person delinquent in the payment of any monetary obligation to the association for more than ninety (90) days, and convicted felons will not be eligible to serve on the board.
• Will allow members of a homeowners’ association to speak at meetings of the board with reference to all designated agenda items, and will no longer require a petition of the voting interests to speak at a board meeting.

Manual Fire Alarms (Condominiums and Cooperatives)

• Will clarify that a condominium, cooperative or multi-family residential building that is less than four stories in height and has an exterior corridor providing a means of egress is exempt from installing a manual fire alarm system. This corrects the glitch from last year when two different bills adopted different language. One bill referred to buildings less than four stories in height, and another bill referred to condominiums one or two stories in height.

Hurricane Protection (Condominiums)

• Will clarify that an association is permitted to install impact glass or other code compliant windows as hurricane protection.

Joint and Several Liability (Condominiums and HOAs)

• Will provide that an association that acquires title to a unit through foreclosure is not liable for unpaid assessments that came due before the association’s acquisition of title in favor of any other condominium association or homeowners’ association which holds a superior interest on the unit.

We will notify you as soon as Governor Scott takes action on this Bill. In the meantime, we encourage all of our CALL members to contact the Governor and urge him to sign HB 1195 into law. Governor Scott’s contact information is listed below:

Governor Rick Scott
Phone: (850) 488-7146
Fax: (850) 487-0801
Email: rick.scott@eog.myflorida.com

Very truly yours,

Yeline Goin and David Muller, Co-Executive Directors
Community Association Leadership Lobby (CALL)

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SB 530 / HB 1195, the community association “glitch” bill, was voted on by the House of Representatives on Friday, April 29, 2011.  We are pleased to inform you that the bill passed in the House by a vote of 113-1.   As advised, CALL has been actively involved in all aspects of working this bill through the legislative process, which will provide many positive changes for community associations throughout Florida, including the following, if it ultimately becomes law:

• Allows owners to consent in writing to the disclosure of certain protected information (e.g. e-mail address, out-of-state address, etc.);
• Clarifies the hearing and notice requirements regarding the suspension of use rights and the adoption of fines;
• Clarifies the board certification requirements for condominium association directors; and
   
• Clarifies that an association may collect all subsequent rental payments from a tenant to pay for delinquent assessments.  

A copy of the latest engrossed version of HB 1195 has been uploaded to the CALL website (www.callbp.com) for your review.  HB 1195 is the companion bill to SB 530, which is still being addressed by the Senate.

SB 530 / HB 1195 is now being sent to the Senate for consideration.  We will continue to keep you updated with further developments regarding the status of the glitch bill.  CALL is continuing our efforts to improve and clarify the language contained within the glitch bill.  With the Legislative Session scheduled to end on May 6, CALL anticipates the Senate will act on the legislation (SB 530/HB 1195) in the next few days.  As soon as the Senate votes on the bill, we will notify you and will provide you with a detailed summary regarding the final language contained within the bill.

Sincerely,

Yeline Goin and David Muller, Co-Executive Directors
Community Association Leadership Lobby (CALL)

Please visit our "CALL" Website at www.callbp.com  to view the full text of the bills "CALL" is tracking.

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We are very pleased to announce that the effort to deregulate Community Association Managers has been officially stopped. The House Committee on Economic Affairs, chaired by Rep. Dorothy Hukill of Ormond Beach, passed an amendment to HB 5005 this morning removing all references to Community Association Manager (“CAM”) deregulation and all references to the elimination of the Division of Florida Condominiums, Timeshares and Mobile Homes. By adopting this amended language, current law regarding these matters will remain unchanged. A copy of the amended version of HB 5005 can be read by accessing the CALL website (www.callbp.com). CALL will continue to monitor this Bill very closely as the Legislative Session continues, to ensure that troublesome amendments are not later added.

This tremendous victory has resulted from weeks of multiple meetings in Tallahassee with elected officials and their staff by CALL's Co-Executive Directors Yeline Goin and David Muller and our entire lobby team coupled with a deluge of calls and emails from common interest ownership communities statewide. All of our hard work is continuing to pay off. The voice of the community association populace continues to be heard loud and clear in Tallahassee!

Our CALL team has also been diligently working on a community association package to fix some of the items left unclear (or unworkable) by last Session's SB 1196. This year's Senate Bill, (CS/SB 530, sponsored by Senator Fasano) will be heard in its second committee (Senate Committee on Community Affairs) on Monday, March 28th at 1 p.m. The House Companion Bill, (HB 1195, sponsored by Rep. Moraitis) will be heard by the House Civil Justice Subcommittee very soon. At that hearing we anticipate that the language of CS/SB 530 will be adopted so both the House and Senate Bills will be identical as they continue moving through the legislative process. We are at the Capitol now working on this very important legislation and will keep you appraised as further details emerge.

Sincerely,

Yeline Goin and David Muller, Co-Executive Directors
Community Association Leadership Lobby (CALL)

Please visit our "CALL" Website at www.callbp.com to view the full text of the bills "CALL" is tracking.

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Many of you are following the progress of HB 5005. This "Deregulation Bill" proposes major changes to the Division of Florida Condominiums, Timeshares and Mobile Homes (the “Division”), eliminates the arbitration program as well as licensing requirements for Community Association Managers (CAMs).  HB 5005 repeals part of the Florida Statutes governing licenses and regulation of Community Association Managers (and management firms) and basically discharges the entire Regulatory Council of Community Association Managers.

I personally haven't heard anyone say any positive comments about this bill, but have read many negative comments by those in the industry, including CAMs themselves.  Marcy Kravit is a professional CAM with several national designations.  She recently advised legislators of notable disadvantages to deregulation.  She made the following points (paraphrased for space constraints):

• Prospective CAMs must undergo 18 classroom hours of instruction and achieve a score of 75 or higher to pass the exam. These minimum requirements help community associations comply with laws and regulations pertaining to association operations.
• The state disciplines any CAM that does not comply with the regulations set in place. Several CAM’s have had their licenses revoked or suspended as a result of unethical activity and conduct. This protects community associations.  If the licensing program is deregulated there is nothing to stop them from continuing to hurt others.
• Renewal of licenses requires 20 hours of continuing education every 2 years so CAMs keep up-to-date and learn new skills.  Many states, according to the Community Associations Institute have followed Florida’s requirements for licensing.   
• A Licensed CAM must be able to skillfully interact with a wide array of individuals, who often have challenging needs and agendas. This level of skill and service does not come without a price nor education.
• Licensed CAMs are responsible for overseeing millions of dollars of assets.

Marcy goes on to say that the license has raised the standard in the industry.

Managers must master a wide variety of professional, administrative and technical skills and learn from taking continuing education. Respect, recognition, consideration and appreciation can go a long way when hiring a Licensed Professional Community Association Manager in order for a community to flourish and prosper.  Professional Community Association Managers must have an understanding about new technologies, the aspects of new equipment and requirements, OSHA, Fire and Safety regulations, building codes, management, operations, human resources, Florida Statutes, Chapters 718, 719, & 720 (that seem to be changing every year), green buildings, energy efficiency, time management, trends in community associations, disaster planning, board/manager relationships and changes in financial and insurance matters- just to name a few.
 

With all the recent stories of loss, theft and mismanagement of association funds, is now the time to lower Florida's standards?  We will continue to provide you with information about this effort, as well as the status of other legislation impacting community associations.   

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State Regulations Up for Consideration in Addition to Federal Requirements.  Community Association Pools & Spas May Require Retrofits.  Exemptions Must be Renewed.

The Virginia Graeme Baker Pool and Spa Safety Act became effective on December 19, 2008.  It established mandatory federal requirements to mitigate entrapment hazards in public swimming pools and spas, and required the installation of drain covers that meet certain performance standards. While many associations have installed the compliant drain covers, many have not addressed the direct suction issue. The federal requirements apply to virtually any pool operated by a community association, and are independent of state permitting regulations.  Moreover, community association pools are often considered 'public pools' subject to regulation by Chapter 514, Florida Statutes.

In addition to the federal law, the state rules were amended in May of 2009 to provide that pools that qualify for a state permitting exemption are now required to renew their exemption every two years, starting July 2010. Historically, the exemptions were issued once, and never had to be renewed. These exemptions are only available to condominiums and cooperatives that adequately restrict or prohibit short-term rentals. Homeowners associations do not enjoy the same types of exceptions and therefore must comply with requirements governing public pools in Florida.

Renewal is tough and often denied if the association no longer adequately restricts rentals, creating a dilemma.  Should the association attempt to modify the governing documents to impose rental restrictions to qualify for the exemption?  Should it pursue the permit?  

Expensive remodeling of the pool might be necessary to meet the extensive construction and configuration requirements necessary to obtain the permit.

Florida legislators are also considering state safety regulations. SB1480/HB1409 would require an anti-entrapment system and many pools with a single drain would also need:

• A safety vacuum release system that ceases operation of the pump, reverses the circulation flow, or otherwise provides a vacuum release at a suction outlet when a blockage is detected, tested by an independent third party and found to conform to ASME/ANSI standards 
• A suction-limiting vent system with a tamper-resistant atmospheric opening.
• A gravity drainage system that uses a collector tank.
• An automatic pump shut-off system; or
• A device or system that disables the drain.

 Please consider the options available to the association and consult with counsel to ensure your community's pool remains available for use.

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We are very pleased to announce that the Senate’s Regulated Industries Committee today, by a vote of 8-4, voted down SB 288 (the “design professionals’ bill”).  SB 288, had it become law, would have protected design professionals (e.g. architects and engineers) that fail to properly carry out their professional duties.  Such a law would have limited the ability of Community Associations to recover damages when design professionals make mistakes.  By taking this action today, the Regulated Industries Committee has dealt a significant blow to SB 288 and we believe it is unlikely that the bill will resurface during this Legislative Session. 

We wish to thank the truly impressive number of CALL members who contacted their elected officials, both this week and over the past twelve months, and demanded that this bill be defeated.  Thanks to the hard work of the CALL team and our CALL members, the voice of the people was heard loud and clear in Tallahassee!
 

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Have doubts about the 2010 laws?  Can you cut off cable or not?  Does a tenant have to turn over the entire rent check?  Can you still publish a directory?  There are several bills impacting associations filed for consideration by the 2011 legislature - some clearing up unresolved ambiguities.  Here is a preview of the issues raised in bills tracked by the Community Association Leadership Lobby (CALL). 

SB 530/HB 1035:  This is the bill partially drafted by the CALL team.  If it becomes law it will:

• Enable owners to review employment agreements and see financial records that show compensation paid to employees.
• Clarify that owners may allow the association to publish a directory or other document with their phone numbers, email addresses and other contact information. 
• Allow condo boards to hold closed meetings to discuss personnel matters, without an attorney being present, just like homeowners’ association boards. 
• Enable condos and HOAs to pass management collection fees on to the delinquent owner.
• Make it perfectly clear that all rent shall be paid to the association until a unit owner's delinquency is paid in full.
• Clarify the procedure to suspend use and voting rights (when an owner is delinquent for more than 90 days), as well as some other issues.

SB 328/HB 59:  Specifically permitting process servers in to common areas of condominiums, gated communities, or any secured residential areas without notice when serving a summons or other process.

SB 332/HB 173:  Equalizing treatment of multi-family (i.e. condominiums) and single family residences with respect to submerged land leases. Currently, multi-family residences are treated like commercial, profit-making entities.

SB 476/HB 883:  Addressing public lodging establishments. Chapter 509 creates two classes:1) transient (allows rentals more than three times per year for periods of a month or less); and 2) non transient (rentals for a month or more). This bill raises the transient/non transient threshold from one month to six months.

SB 646:  Requiring a mobile home park owner to notify the officers of the homeowners’ association created by ss. 723.075-723.079 of a bona fide offer for purchase.

SB 650/HB 423:  Allowing local governments to enforce violations of certain mobile home statutes and requiring notice before a park owner can evict a mobile home owner because of a change in land use.

SB 712:  Making is perfectly clear that condo boards can suspend use of recreational facilities, meeting rooms, gyms, pools, cable television, internet service and valet service when an owner is more than 90 days delinquent.

SB 832/HB 583:  Requiring the Division to notify a mobile home homeowners’ association before approving changes to the prospectus or offering circular.  Prospective tenants will receive a “mobile home expense disclosure document.”  The bill also defines the “market area or competitive area” for comparable mobile home parks.

SB 1112:  Requiring condo and coop boards to provide the local property appraiser with a list of units rented during the previous year, so the property appraiser can investigate possible violations of homestead laws.

SB 1132:  Prohibiting immediate family members in the same unit from serving on the board of a cooperative association together.

SB1288/HB 799:  Adopting a non-judicial foreclosure process for commercial property, including commercial condos.

SB 1516/HB 1195:  For both condos and HOAs, this bill would:

• Require insurance companies to notify all owners (by certified and regular mail) if the board cancels or does not renew its required insurance coverage (50 units or less) and enable a majority of the voting interests to direct the board to obtain substitute coverage.
• Provides that associations may install impact glass or other code-compliant windows in certain circumstances. 
• Specify that rent paid to the association by tenants will apply to outstanding and future monetary obligations. 
• Relieve the association from joint and several liability when it takes title to a property by foreclosure or deed in lieu thereof.
• Give HOA owners the right to speak at board meetings on any agenda item (for at least 3 minutes) without a special petition.
• Require “condo-style” elections for homeowners’ associations (60-day notice, written self-nominations, second notice, two-envelopes, secret ballots, etc.).
• Prohibit co-owners in an HOA from serving as board members together unless they own more than one parcel or unless there are not enough eligible candidates to fill the vacancies on the board.
• Specify that anyone more than 90 days delinquent is not eligible for board membership.
• Prohibits convicted felons from serving on the HOA board unless their civil rights have been restored for at least 5 years as of the date on which such person seeks election to the board.

 Stay tuned for updates and progress on these and other bills during the session.  Look out for Capitol Conversation posts on this site as well.

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CALL was requested by members of the Legislature to assist in identifying areas where the intended reforms created in 2010 by SB 1196 could be better clarified in the law. As a result, CALL drafted language to be included in a “glitch bill” for the 2011 Legislative Session. The bill was filed this week by Senator Fasano, and it is Senate Bill 530 (SB 530). The bill is on the CALL website, at www.callbp.com. As with any legislation, SB 530 is a work in progress and there may be additional revisions as we work to refine the language.

SB 530 includes a number of provisions drafted by CALL on the subjects of personnel records, owner contact information, board meetings to discuss personnel matters, the right to lien for management fees related to owner delinquencies, collecting rent from tenants if owner is delinquent, and suspension of use rights and voting rights.

SB 530 also includes a number of provisions drafted by the Florida Bar’s Real Property Section on the subjects of condominium termination, condominium bulk-buyers, condominium association agreements regarding recreational facilities, and bulk contracts for communication services for homeowners’ associations.

We will continue to keep you updated regarding SB 530 through CALL Alerts and blog posts.

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If you've been a regular reader of this blog for a while, your probably already familiar with the 2010 effort to create new laws capping or limiting design professional (engineers and architects) liability for damages resulting from their negligence in connection with a project.  We addressed this issue in: Condos/HOAs Have a Lot to Lose if Design Professional Protection Bills Become Law.

We were happy to notify you that Governor Crist vetoed the bill after favorable vote from the legislature.   That information can be found in: Design Professional Liability and Property Insurance Bills Vetoed by Governor Crist.

Proponents of the bill haven't given up.  Firm shareholder and Board Certified Construction Lawyer Lee Weintraub posted information on the Florida Construction Law Authority blog a few days ago, specifically regarding the New Proposed Legislation [that] Would Immunize Design Professionals From Tort Liability.

In short, Senate Bill 288  provides that anyone who hires architects or engineers cannot sue them for negligence arising out of their defective design or other work.  Those opposed to the bill say this law would discourage engineers and architects from carrying insurance and eliminate most of the consequences of sloppy or careless design specifications - all of which increase costs to building owners, contractors, residents and tenants.

Do you agree?  If not, please tell your local senator or representative.

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The Community Association Leadership Lobby (CALL) Announced Last Week it is Working on a 'Glich' Bill to Clarify Several Community Association Rights and Remedies.

The purpose of the CALL bill is to make proposed changes to Chapters 718, 719 and 720, Florida Statutes to address certain “glitches” resulting from SB 1196.  Co-Executive Directors Yeline Goin and David Muller explained that any large piece of legislation is likely to have unintended consequences and need further clarification.
 

So far, the CALL bill proposes many important legislative items, such as:

• Allowing condo boards to meet in private to discuss personnel matters just like HOA boards;
• Allowing condos and HOAs to collect management company collection charges from delinquent owners and clarify the parameters of action on the part of management;
• Ensuring that rent collected from a tenant is applied to the oldest balance on the unit owner's account; and
• Ending any argument that cable or television programming is a “utility service” - authorizing immediate suspension when a unit owner is more than 90 days delinquent. 

The CALL team always entertains comment from its members.  If you are a member or would like more information, please visit www.callbp.com or email call@becker-poliakoff.com.
 

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• Can your association collect rent from tenants? 
• Can your association disable a key fob or entry device if an owner doesn't pay?
• High-rise building owners - are you familiar with changes to the fire sprinkler retrofit laws?
• Do your community documents give mortgagees a free ride after foreclosure?

We will answer these questions and more at Ironstone Bank on Tuesday, October 5, 2010 from 5:00 to 7:00 P.M. where I will discuss the 2010 Legislative Changes Impacting Condominium and Homeowners' Associations.

• Have you neglected major projects because of the economy?
• Do your common areas need updating?
• Would your residents enjoy new amenities?

 The presentation will also cover Capital Improvement Loans for Long Term Savings.  Interest rates have never been lower and many contractors are idle  - now just may be the perfect time to tackle that unsightly parking lot and entrance, update amenities and other projects.

The presentation is free and refreshments will be served.  To RSVP contact Rachael Chao at 954-771-6948 or rachael.chao@ironstone.com.

 Location:  Ironstone Bank, 6555 North Federal Highway, Fort Lauderdale

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SB 1196 Includes New Remedies for Collecting Money Owed to Associations.

Community leaders and managers have complained for years about investor owner delinquencies.  Why should the owner continue to collect rent from his or her tenant without paying maintenance fees and/or assessments?  Sure, both the Condominium and Homeowners Acts allowed the association to apply to the Court to request the appointment of a rent-receiver, but to take advantage of that provision it had to file the foreclosure lawsuit.  The law requires notices to the delinquent owner, preparation and recording of the claim of lien, filing and serving the foreclosure lawsuit - all before the association could ask the Judge for authorization to collect rent.  It could take several months to obtain the appropriate Court Order - all while the account remains delinquent. In some cases the tenant moves out before the association has the chance to collect any rent.  Of course there are costs and expenses involved with that whole process. 

Recently (as reported on this blog in Condo Receiver Helps Collect Assessments; Q&A: Condo Receivers; Collecting Rent from Tenants; Q&A: Collecting Rent from Tenants (revisited) ) the Courts have extended the law to allow 'blanket receiverships' for all units subject to foreclosure - and even more recently some Orders were entered authorizing the receiver to collect rent from tenants occupying units even before the association filed for foreclosure.

Well, in response to those cries for help the legislature included a 'self-help' procedure for associations.  The first paragraph of this portion of the new law says:

If the unit is occupied by a tenant and the unit owner is delinquent in paying any monetary obligation due to the association, the association may make a written demand that the tenant pay the future monetary obligations related to the condominium unit to the association, and the tenant must make such payment. The demand is continuing in nature and, upon demand, the tenant must pay the monetary obligations to the association until the association releases the tenant or the tenant discontinues tenancy in the unit. The association must mail written notice to the unit owner of the association’s demand that the tenant make payments to the association. The association shall, upon request, provide the tenant with written receipts for payments made. A tenant who acts in good faith in response to a written demand from an association is immune from any claim from the unit owner.
 

 The Association must follow a specific procedure to collect rent from tenants.  There are some pitfalls to avoid.  Its a good idea to discuss these issues with counsel or allow counsel to send the demands on your behalf. 

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Associations have new enforcement mechanisms available - due process requires careful planning & paperwork for associations to take advantage of these new remedies effectively.

 Condominium Associations:

Up until now condominium associations had to have authority to levy fines in the recorded governing documents and did not have the ability to tell delinquent owners to stay out of the pool or gym.  That changes as a result of SB 1196.

After July 1, 2010 (the effective date of the new law), condominium associations will be able to levy fines as a result of violations of the governing documents or rules.  Of course the association must still provide 14 days written notice of the violation and the opportunity for a hearing before a committee of unit owners before imposing any fines,  The fine cannot be levied or imposed if the committee does not agree.

Delinquent condominium owners have more to worry about than fines - the new laws will allow the association to suspend voting rights and use of common, recreational facilities if they are more than ninety (90) days past due in paying a monetary obligation.  The term "monetary obligation" is not defined  - it could include non-assessment obligations such as late fees, fines, transfer approval or screening fees and the like.  The association cannot suspend the use of limited common elements (such as the balcony attached to the unit), nor may it suspend portions of the property necessary to access the unit - such as hallways, elevators, parking spots, etc.  The association cannot suspend utilities.

Homeowners Associations:

The new laws actually limit homeowners' associations powers when it comes to suspensions.  In the past, suspensions could be imposed in the HOA context for either use violations (violations of the governing documents or rules) or delinquencies.  After July 1, 2010, suspensions may only be imposed by HOAs when a member is more than ninety (90) days past due. While it doesn't make sense (especially since Section 720.3085 limits late fees for delinquent assessments), the changes arguably limit fining as well.  Fourteen (14) days written notice and an opportunity for a hearing before a committee is required in either case.  If the committee (by majority vote) does not agree with the fine or suspension, it may not be imposed. 

HOAs cannot suspend use of portions of the property necessary to access the parcel (roads, etc.) or utility services. 

The law prohibits the HOA from filing a lien if the fine is less than $1,000 - does that mean that it can lien for fines of $1,000 or more?  Well, that remedy certainly needs to be included in the governing documents - so check with counsel.  If you're governing documents limit the amount of the fine, now is a good time to consider amendments.

Fines and suspensions must be considered at a properly noticed meeting.  Written notice of the fine or suspension (voting or use) must be furnished to the owner (and occupant if applicable).

Will these new procedures and remedies work?  Its hard to say, but attempting to take advantage of these remedies without following the required procedures is certainly likely to lead to disputes and may expose the association to liability.  Proceed with caution.

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The law isn't even effective yet and everyone wants to know where, when and whether they need the "board certification" required by the changes to §718.112(2)(d), Florida Statutes in SB 1196. 

All good questions but please let me clarify - condo directors elected after the effective date of the law either need to provide the association with a certificate containing various representations or evidence they have completed an education course. 

The statute says:

b. Within 90 days after being elected or appointed to the board, each newly elected or appointed director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. In lieu of this written certification, the newly elected or appointed director may submit a certificate of satisfactory completion of the educational curriculum administered by a division-approved condominium education provider. A director who fails to timely file the written certification or educational certificate is suspended from service on the board until he or she complies with this subsubparagraph. The board may temporarily fill the vacancy during the period of suspension. The secretary shall cause the association to retain a director’s written certification or educational certificate for inspection by the members for 5 years after a director’s election. Failure to have such written certification or educational certificate on file does not affect the validity of any action.

The 2008 amendments to Section 718.112(2)(d)3., of the condominium act required candidates for the board to submit a certification form (prepared by the Division) to the association along with their notices of intent.  This change now requires the elected directors (not candidates) to certify:

• they have read the governing documents & association's policies;
• they will work to uphold the documents & policies to the best of their ability; and
• they will faithfully discharge their fiduciary responsibilities.

Who is an approved education provider?  Well Becker & Poliakoff is of course!  We have provided education to board members, licensed property managers & industry representatives for more than thirty (30) years.  The Firm offers on-line education as well as live, interactive webinars for those who cannot take off work or devote a Saturday to course work.

There are other approved providers in the State of Florida - CAI (Community Associations Institute) is a provider and offers on-line courses in addition to live seminars (most of which are free).

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Thank you everyone for the thoughtful questions and comments regarding SB 1196.  I have literally received hundreds of questions and comments over the past week - either through this site or by email.  Since many of the questions relate to the same issues, I'd like to share some of the responses. 

QUESTION:  Rumor has it that the Governor has a bill before him that would raise the voting approval to 75% for apparently new Condo and/or HOA amenities. True or false?

RESPONSE: You may be referring to the new section 720.31, Florida Statutes. It says that HOAs can acquire leased property, memberships and other interests in lands or facilities (including country clubs, marinas, golf courses, etc.) more than a year after recording the Declaration if the governing documents contain that authority or if 75% of the members agree.

QUESTION:  Are cable TV services considered a utility? Our HOA pays approx. $50 per month per unit for basic services. Comcast has refused to cut the services for those people who have stopped paying their maintenance fees, even if we pay the monthly dues and pay for the service to shut off the service. Without cable TVs service, it might give those people who have refused to pay their maintenance fees, an incentive to do so.

RESPONSE: You hit the $64,000 question. Maybe Comcast will change its policy as a result of the new law. I understand Comcast (and perhaps some other providers) believed that suspending service to individuals constituted a violation of the telecommunications act and federal regulations. Check back in a few weeks - we will be sure to post something related to suspending cable/television programming and are planning a webinar devoted to telecommunication issues in light of SB 1196. 

(P.S.  If your community is paying $50 per month for basic bulk services it should attempt to renegotiate that deal.)

QUESTION: Please inform me if there is a new requirement for board members to take a class or an exam to run for the board otherwise the association will be null and void.
Is this something new? please let me know

RESPONSE: The new law (effective July 1) requires board members to provide the association with a certification or evidence of completion of an approved course within 90 days of being elected or appointed.

QUESTION: Does SB1196 say anything about the requirement of installing hard wired smoke detectors in condominium buildings that are less than 3 stories in height? Is it still a requirement in these buildings?

RESPONSE: SB 1196 contains a provision that allows buildings of less than 4 stories with outside access (catwalks) to avoid installing manual fire alarms.

QUESTION: The new law stipulates that upon foreclosure the lender must now pay up to 12 months of back hoa dues or 1% of loan balance vs 6 months. Is that effect immediately once the bill goes into effect regardless of when the loan was placed on the property?

RESPONSE: While it is hard to predict how the lenders will interpret the bill, many community association attorneys believe that the new law will apply to acquisitions of title by lenders that take place July 1, 2010 forward, if the original mortgage was recorded after April 1992 (the effective date of the "safe harbor").

Remember, this information doesn't constitute legal advice & these responses are general in nature. Please consult with counsel to determine how the new laws will impact your operations.

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Community association leaders and managers should become aware of changes to record inspection obligations now that SB 1196 has been signed into law.

Roster List (Condo):

The roster list is an important document.  Telephone numbers have traditionally been included in the roster list, despite objections over the years.  The roster list also includes email addresses of the members if they have consented (or requested) to receive notices and other association information by email.  SB 1196 says that the email addresses and telephone numbers of the members must be removed from the association's records if the owner revokes consent to receive notice by electronic transmission.  Please discuss modifications to the roster or creating a procedure for owner consent to include this information with association counsel, as many owners have come to rely upon the roster or directory to remain in contact with friends and neighbors.

Civil Penalties (Condo):

Last year the act was amended to authorize civil penalties against anyone (individuals - i.e. board members, manager, etc.) that knowingly or intentionally defaced or destroyed accounting records.  It also authorized civil penalties for knowingly or intentionally failing to create or maintain the accounting records.  SB 1196 now limits the civil penalties to the time period the records are required to be maintained.  Penalties are likewise not appropriate for failing to create or maintain these records unless there is a finding of intent to harm the association or one or more of its members.

Misuse of Information (Condo):

We know the association cannot publish debtor lists or use the delinquency records to embarrass or harass its members, but the board (or management) has little to no control over what happens to records once they are in the possession of a unit owner.  SB 1196 says the association is not responsible for misuse of records properly obtained in connection with an owner's rights to inspect and copy.

Personnel Records (Condo & HOA):

Personnel records for association employees such as payroll, disciplinary actions, health and insurance records are no longer accessible to members.  I know a few managers that are happy with this change.

Owner Information (Condo & HOA):

Private information such as email addresses, telephone numbers, emergency contact information, social security numbers, driver's license and credit card numbers of the owners are not accessible to members.

Condo and HOA owners are not entitled to obtain the association's passwords, electronic security records, software or operating systems that manipulate data.

Presumption (HOA):

In HOAs the presumption that the association willfully failed to make records available if the records were not available within 10 business days only arises if the request was sent via certified mail, return receipt requested.

Inspection Costs (HOA):

If the association does not have a copy machine at the record site, or the owner requests more than 25 pages of records, copies may be made by an outside vendor or management company personnel - in that case the association may charge for the actual costs of the copies and hourly charges for vendor or employee time to cover the administrative costs to the vendor or the association.

You may need to change your association's record retention and/or inspection policies in light of these changes.

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 Concern for Florida's Consumers Important in Decision to Veto SB 2044 (Property Insurance) and SB 1964 (Design Professional Liability).

Governor Crist vetoed SB 2044, despite support from the Florida Insurance Commissioner and other industry representatives.  The Governor expressed his concerns that increases in insurance premiums and changes to mitigation discounts would be especially hard on Florida's consumers during "these very difficult economic times".

Consumer protection was likewise a major factor with respect to the veto of SB 1964.  Governor Crist agreed with critics of the bill who argued design professionals are not entitled to avoid liability, effectively "removing a consumer's right to bring a tort action against them for economic damages caused by their negligence".  Shifting the burden of economic loss to consumers without sufficient alternative remedies was not acceptable to the Governor.

On the other hand, HB 965, relating to real property assessments, received the Governor's approval.  Owners of properties affected by Chinese drywall may be entitled to a downward adjustment of the assessed value of the property for tax purposes.   Contact your local Property Appraiser to request re-valuation - you may be entitled to a significant discount.

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SB 1196 contains significant changes for community associations.  

Governor Crist had until June 1, 2010 to act on SB 1196.  While I have included bullet point explanations of some of the changes, over the next few weeks please check for more in depth information about how these new provisions will impact your association's operations.

Community associations across the state are breathing a sigh of relief - many of them will not be required to retrofit the buildings with fire sprinklers or install fire alarms, both expensive propositions in light of the record number of foreclosures and budget shortfalls.  In most cases elevator upgrades can be put off for five (5) years - hopefully the residential market will gain stability in that time, making the costs associated with the elevator improvements easier to fund.

Attention:  If you are a non-paying, non-resident unit owner and lease your unit, the association may demand future payments of rent from the tenant to satisfy your financial obligations, without filing a lawsuit first. 

Legislators all over the state heard complaints about the repair, upkeep and staffing requirements associated with recreational facilities.  Paying unit owners were demonstrably upset (justifiably so) that non-paying owners could enjoy the use of the recreational facilities, in some cases precluding paying owners from use due to over-crowding.  Under this new law, associations can suspend the use of recreational facilities if assessments are more than ninety (90) days past due.  Of course, associations cannot suspend any utility services, parking spaces or means of access to the unit.  The effectiveness of suspending use rights remains to be seen, but the provision itself should make owners think twice before defaulting.

This bill also includes the "Distressed Condominium Relief Act".  While the act doesn't protect buyers that acquire title after July 1, 2012, it will impact condominium associations for a number of years with respect to warranty, construction, accounting claims and the like.

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On Wednesday, May 26th, Governor Crist signed two (2) bills of interest to community association leaders and managers into law. 

HB 713 relates to the Department of Business and Professional Regulation.  It authorizes distance learning courses to satisfy continuing education requirements for various professionals, including CAMs.  There are several programs already offered online as part of CAMP (Community Association Managers Program, not to be confused with the manager association of Community Association Management Professionals).

This bill also creates both home inspection and mold related services licensing programs.

HB 1035 relates to elevator safety.  It allows for variances from certain codes as a result of undue hardship, so long as there is a finding that the variance will not adversely affect public safety.  It also includes the phase-in period for compliance with the Phase II Firefighter's Service requirements if the certificate of occupancy was issued on or before July 1, 2008.  The building owner/operator is given a five (5) year grace period to upgrade the elevators solely for this purpose.  If the elevator is replaced or requires major modification before that time, the Phase II Firefighter's Service improvements must be completed at the same time.

HB 1035 describes penalties for unlicensed elevator work.  Citations may be issued to the building owner or operator, in addition to the person performing the work.  Penalties may amount to $1,000 per day of a continuing violation.  

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What impact will bulk buyers and/or bulk assignees have on your condominium?

SB 1196 creates new Sections 718.701 through 718.708 entitled the "Distressed Condominium Relief Act".   The intent of these provisions is to encourage investors to buy unsold developer inventory, with the goal of stabilizing the condominium market.  It also protects lenders from assuming the responsibilities of the developer when they take title to the units in connection with developer defaults.  If this provision becomes law (the bill has been presented to the Governor) it will only apply to purchases (or other acquisition of title) that take place before the law 'sunsets' on July 1, 2012.  A bulk purchase before the effective date of the statute will not protect any buyer considered an "insider" pursuant to §726.102(7), Florida Statutes or anyone with the intent to "hinder, delay or defraud any purchaser, unit owner, or the association".

What is a bulk assignee?  Basically any person or entity that acquires more than seven (7) units in a condominium where there is an assignment of rights from the original developer.

What is a bulk buyer?  Any person or entity that acquires more than seven (7) units but does not receive an assignment of rights other than:

• the right to conduct sales, leasing and marketing activities on property;
• the right to be exempt from the working capital contribution; and
• the right to be exempt from the association's rights of first refusal (transfer approval procedure).

The bulk buyer, however, must comply with the association's transfer approval procedures with respect to the units acquired in the bulk purchase.  

Bulk assignee's are not saddled with warranties covering work performed under the direction of the original developer and do not need to fund the unfunded portion of the previous developer assessment guarantee.  They are, however, required to supply the post transition association with an audit for the period of their control and warrant their own work.   

Floridians are sadly getting used to dark, empty buildings.  Hopefully these provisions will accomplish the desires objectives.

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A number of bills CALL tracked this session were sent to Governor Crist recently.  He has until June 1, 2010 to act (veto or sign) on the following bills:

• SB 1196, Relating to Community Associations
• HB 663, Relating to Building Safety
• HB 713, Relating to Department of Business and Professional Regulation
• HB 1035, Relating to Elevator Safety
• HB 1411, Relating to Timeshare Foreclosures

We've included bullet point summaries of SB 1196 on this blog, but refer you to the actual text of the bill for more complete information.  Community Update will outline the impact of important bills on community associations - Becker & Poliakoff''s association clients will receive the electronic version shortly.

The Governor's office is in the process of reviewing SB 1964.  We've included concerns about this bill before in Condos/HOAs Have a Lot to Lose if Design Professional Protection Bills Become Law.  In 1999, the Florida Supreme Court codified a long standing principle that design professionals should be held accountable for economic loss damages that they cause just like other professionals in Florida. Board certified construction law attorney Steve Lesser said the following:

[Design professionals] have an obligation to design to meet code and protect the health, life & safety concerns of consumers.  An error in design judgment can be devastating to a unit owner and homeowners that cause damages and in fact- economic damages.  An elevator that fails to operate at the appropriate speeds and breaks down results in loss of use which is an economic loss.  Imagine how this could impact elderly unit owners.  A parking garage that is not properly shored up based on engineering calculations can result in economic loss.  These consumers are largely lay persons that often sign agreements (presented by the professional) that contain limitation of liability clauses. 
 

Please contact the Governor's office to express your support or opposition to 2010 legislation.  Make your voices heard in Tallahassee. 

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Large Insurance Bill Addresses Fees & Advertising by Public Adjusters, Deadlines for Filing Windstorm/Hurricane Related Claims, Policy Terms and Payouts by Carriers. 

 CS for CS for SB 2044 is a rather large bill addressing many aspects of insurance.  It limits payments to public adjusters for supplemental or reopened claims to 20% of additional insurance proceeds obtained and prohibits public adjusters from charging more than 10% of proceeds paid by a carrier if the claim involves losses from events that are subject to a declaration of a state of emergency by the Governor.  While the bill goes on to regulate advertising or solicitation by public adjusters and the form of contract between the public adjuster and the insured, more attention is being paid to three new provisions that, if they become law, impact property owner obligations, the carrier's ability to change the terms of the contract upon renewal and payment of claims.

These portions of the bill pertain to residential (personal lines) coverage.  Policies issued to multi-family property owners/managers (the Association) are generally (if not always) classified as commercial policies.

One part of the bill purportedly bars homeowners from filing claims.  It says that the insured must provide notice of any claim (including supplemental or reopened claims) based on a windstorm or hurricane loss to the carrier within three (3) years of the date of the storm.  While it doesn't change the applicable statute of limitations for civil actions, in some cases homeowners do not have a full understanding of all the damages caused by the windstorm/hurricane until after demolition and reconstruction begins.  Thus, the three (3) year time frame may result in loss of insurance proceeds, depending upon whether the homeowner has the ability to attend to reconstruction after the storm.

Another section of the bill allows the insurance carrier to change the terms of the policy upon renewal by use of a notice entitled "Notice of Change in Policy Terms".  Payment of the renewal premium constitutes acceptance of the new terms.

Most importantly, the bill removes the prompt payment requirements on the part of carriers.  It only requires the carrier to pay "actual cash value" minus the deductible, regardless of whether the homeowner paid for replacement cost coverage.  The carrier then only pays additional amounts once a contract for reconstruction is in place and the costs are incurred (as the work progresses).  Critics argue that this provision disproportionately impacts lower income families that do not have funds available to pay for reconstruction (along with all the non-insured items) and/or replacement of personal property without insurance proceeds.

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"Florida-Friendly" Landscaping Found to Conserve Water and Prevent Pollution.  HOAs and Large Property Owners Also Realize Significant Savings.

I reviewed the annual budget for a large HOA master association recently and was surprised that maintenance of the grounds accounted for more than 40% of the association's annual expenses.  The budget included line items for various grounds maintenance such as:

The Manager explained that irrigation repair was a constant source of expense.  There is a school in the community and the pick-up waiting area formed over the association's landscape.  Pumps required constant maintenance and repair and the association uses a vendor to detect leaks or weaknesses in the system   Pest control became an enormous expense, due to white-fly and other insects.  It also became more expensive to thwart algae and plant growth in the lakes/ponds (which supply water for irrigation) due to all the nutrients from the fertilizer used to keep the lawn/turf areas green and lush.  All-in-all these costs amount to over $500,000 annually.

Wow - that is a lot of money.

The University of Florida reports that Ocean Gallery, a 42 acre community comprised of 439 condominiums saved $65,000 its first year after employing Florida-Friendly landscaping practices.

 The Ocean Hammock Community won awards. both within Florida and nationally.  In 2009, Ocean Hammock won an Award of Excellence for its landscape maintenance by the Florida, Nursery Growers and Landscape Association and it also won the Professional Landcare Network Environmental Improvement Grand Award. For a full case study of improvements and savings, click HERE.

Florida-Friendly landscaping is defined in the Statutes.  Section 373.185, Florida Statutes says, in part:

"Florida-friendly landscaping" means quality landscapes that conserve water, protect the environment, are adaptable to local conditions, and are drought tolerant. The principles of such landscaping include planting the right plant in the right place, efficient watering, appropriate fertilization, mulching, attraction of wildlife, responsible management of yard pests, recycling yard waste, reduction of stormwater runoff, and waterfront protection. Additional components include practices such as landscape planning and design, soil analysis, the appropriate use of solid waste compost, minimizing the use of irrigation, and proper maintenance.
 

Check back to this site for more resources and examples of significant savings gleaned from innovative thinking and planning.

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Take a well deserved bow. You did it! Today the Florida House of Representatives overwhelming passed CS/CS/CS/SB 1196 (passed on 4/16/2010 by the Florida Senate) sending it to Governor Crist for his signature. Please take a moment to contact the Governor (http://www.flgov.com/contact_governor) and urge him to sign the bill right away. This is very important given his veto of similar last year.

This bill is of SIGNIFICANT POSITIVE IMPACT to community associations. It addresses everything from mortgagee liability (foreclosure crisis) to elevators, to sprinklers, to renters, etc. CALL has sent out earlier alerts containing details and be on the lookout for another summary to be released via the CALL website soon. Please contact your Legislators (both Representative and Senator) and thank them for their support.  From your CALL team on the ground at the Capitol…..THANK YOU!

All your emails, calls, visits and involvement were invaluable. We are only as good as the rest of our team…YOU! Thanks for once again proving you are THE voice for good community association public policy. Attention has been paid.

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The Regular Session ends April 30th.  We've previously highlighted changes in SB 1196 and HB 561 that would impact Condos & Co-Ops, here is some information for HOA leaders and managers: 

Records Access:   §720.303(5)

• Owner entitled to presumption that Association willfully denied record access after 10 business days if owner submits request via certified mail, return receipt requested.  Doesn't address what happens if no one picks up the certified letter.
• Association may charge "reasonable costs" in addition to photocopy fees to reimburse it or a vendor for the lost employee time associated with duplicating the records.
• Personnel records for the association's employees will not be subject to inspection (including disciplinary, payroll, health, insurance).
• Personal identifying data of members (ss #, credit card #, emergency contact info, etc.) will not be subject to inspection, although the address used for association mailings is still part of the roster list and subject to inspection.
• Passwords used to safeguard data and software and/or operating systems will not be subject to inspection.

Budgets & Reserves:  §720.303(6)

• Disclosure in financial report must notify owners of vote necessary to mandate reserves.
• If budget does include 'voluntary reserves', financial report must disclose that the funds may be used for non-reserve purposes and not calculated by statutory method.
• 'Statutory' reserves are reserve accounts established by the developer or created by membership vote.

Director Compensation:  §720.303(12)

Salary or compensation is generally prohibited for performing services as director, officer or committee member unless:

• the financial benefit of a lawful board action will benefit all or a significant number of members;
• the payment is reimbursement for out-of-pocket expenses (each association should adopt procedures or protocols for expense reimbursement, limits and types of expenditures that will be reimbursed);
• the payment is for recovery of insurance proceeds;
• the salary or compensation is authorized by the governing documents;
• the fee, salary or compensation is authorized by membership vote in advance; and/or
• a developer appointee may benefit financially from service to the association.

Fines/Suspensions of Use Rights:  §720.305

• Fines & Suspensions authorized if the member is delinquent for more than 90 days;
• Fines less than $1,000 cannot become a lien (doesn't specifically say that liens are permitted for fines exceeding $1,000);
• Suspensions cannot apply to utility services or property used to access the parcel;
• Written notice to the person fined or suspended is required.

Voting for Directors by Secret Ballot:  §720.306(8)

Adopts 'condo-like' double envelope procedure.

Collecting Rent from Tenants:  §720.3085(8)

Association may demand rent directly from tenant if owner is delinquent.

Acquisition of Recreational Leaseholds or Other Property/Property Use Rights:  §720.31(6)

Similar to §718.114 (condo act).  Allows association to enter agreements to acquire leaseholds, memberships or other possessory or use rights in lands and facilities.  Must be fully described in the declaration or if the action is not taken within 12 months of recording, the declaration must authorize said action as a material alteration/substantial improvement or at least 75% of the members must vote in favor of the action.

Special Assessments by Developer (before turnover):  §720.315

Pre-transition, developer controlled association may not levy special assessments without the approval of a majority vote of non-developer interests.  Vote must take place at duly-called meeting at which a quorum has been attained.

These are just brief bullet points, please refer to the actual legislation for more detail.  Committee amendments are still being filed and considered.

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Although there are many positive developments for Associations in this legislative session, noted below, there is at least one piece of legislation that will adversely impact associations, and all consumers.

Architects, engineers, surveyors and other design professionals may be anxiously awaiting  Senate Bill 1964 and House Bill 701  to pass.

If these provisions become law it will limit liability for design professionals, as of July 1, by:

• cutting off liability, in tort, of design professionals that fail to properly carry out their professional duties.

• overruling Florida Supreme court cases and Appellate decisions from all over the state which protected consumers and the general public with necessary redress in tort for economic damages cause by design professionals.

• permitting design professionals to escape liability for their own negligent conduct, if insurance exists, and

• elevating design professionals above other professionals, such as lawyers, doctors, and accountants, who cannot limit their liability by contract.

Associations are constantly fixing their roofs, roads, performing balcony concrete restoration, seawalls, fire alarm electrical engineering renovation, elevator modernization and structural repairs. All of these renovations are designed by engineers, architects etc, and are required to meet building codes including life safety codes. Associations hire design professionals to issue drawings and specifications to accomplish these goals.   Design professionals are also retained to monitor construction activities and approve applications for payment on these projects. Shouldn't they bear responsibility for damages that result from mistakes, omissions, lack of attention to detail or otherwise?

An error in design judgment can be devastating to unit owners and homeowners. Improperly designed elevator repairs, concrete repairs, shoring of buildings, electrical renovations, fire protection system renovations or repairs all could result in economic loss to Associations and ultimately unit owners and homeowners.

Should design professionals be allowed to practice without accountability for their negligent acts at the expense of Florida’s consumers? It is simply unfair.

Florida’s consumers should call their representatives immediately to prevent these bills from becoming law.

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There are only a few short weeks left for Florida's elected officials to pass meaningful legislation and at this point in the session it seems that the HB 561/SB 1196 Bill Package is the most likely to pass. These bills are in a constant state of flux and the information below only highlights major points in the bills (as of April 15, 2010). We encourage you to review the full text of the bills by accessing the Senate’s website here for HB 561 and here for SB 1196 and likewise encourage CALL members to contact the appropriate legislators by using the Legislator Connect feature on its website (www.callbp.com).  Here are a few highlights from the bills:

Fire Alarm Systems: - Amending s. 633.0215, F.S. 

Buildings less than four stories with exterior means of egress and exterior corridors will not have to install a manual fire alarm system (per Section 9.6, Life Safety Code in the Florida Fire Prevention Code).

Fire Sprinkler Retrofit - Amending s. 718.112 and s. 719.1055(5), F.S

Full “opt-out” will be permitted with affirmative vote of two-thirds (2/3rds) of the entire membership. Will only permit reconsideration of opt-out vote once every three years at a special meeting called by a petition of 10% of the voting interests.

Extends deadlines for associations that don’t opt out to the end of 2019.

Elevators – Amending s. 553.509(2)  and 399.02, F.S., (Phase II Firefighters’ Service)

Allows for a five (5) year delay to retrofit with a special access key for elevators in condominiums and cooperatives unless the elevator is replaced or requires major modification.  Allows associations to "opt-out" of elevator operation by alternative power source with affirmative vote of majority of owners of condominium.

Designation of Limited Common Elements by Amendment - Creates s. 718.110(14), F.S. - only in SB 1196

Allows association to designate limited common elements by amendment, so long as the building component is designed for use by specific owners.

Official Records – s. 718.111(12), F.S.

• Individual director liability for failure to maintain or destruction of official records is limited to cases where there is intent to harm the association or one or more of its members.
• Association not liable for unit owner misuse of information obtained from official records.
• Exempts personnel records (disciplinary, payroll, health and insurance records) from unit owner access.
• E-mail addresses, telephone numbers, emergency contact information, and any unit owner contact information other than the addresses to send notices are exempt from unit owner access.
• Association’s electronic or computer security data, including passwords, software and operating systems are exempt from unit owner access.

Common Expenses - Amending s. 718.115(1)(d)1., F.S.

Communication services (as defined in Chapter 202), information services, and internet services obtained pursuant to a bulk contract shall be deemed a common expense. (In HB 561 contracts entered into for these services by the developer or prior to transition may be canceled within 120 days of the transition meeting.)

HB 561 also creates new §718.112(3), F.S. that allows the bylaws of umbrella organizations governing a minimum of 1000 units to employ a marketing firm for the community as a common expense.

Board Eligibility – Amending s. 718.112(2)(d), F.S.

Co-owners in condominiums with more than 10 units cannot serve together unless they own more than one unit or there are not enough volunteers to fill all slots. Does not apply to timeshare condominiums.

Requires directors to supply association with new certification form or take a state-approved education class. Directors are suspended until they comply.

Collections and Foreclosures – Amending s. 718.116 and s. 719.109(3), F.S

Changes mortgagee liability cap from 6 months to 12 months after acquisition of title by foreclosure (or deed in lieu) but retains 1% cap.

Association may demand a tenant pay rent to the association to satisfy delinquency for that condominium unit with written notice to the unit owner. Landlord/owner must provide tenant with credit for any amounts paid to association. Association can evict tenant that fails to comply.

Enforcement Mechanism – Amending s. 718.303, F.S.

• Allows suspension of use rights if owner is more than 90 days past due. Cannot suspend use of limited common elements, utility service, parking spaces, elevators or impede access to/from unit.
• Requires board to vote on suspension/fine at duly noticed board meeting and advance notification to the unit owner.
• Allows association to suspend voting rights after 90 days of non-payment.

Filling Vacancies on Board – Creating s. 719.106 (1) 6, F.S.

Vacancies are filled for remainder of the term by vote of majority of remaining directors, even if less than a quorum or only one director. In the alternative, the Board may hold an election to fill the vacancy.

There are many more provisions - click below for additional content and come back to this site for information on changes to the Homeowners' Association Act (Chapter 720, Florida Statutes) and updates directly from Tallahassee.

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This week marks the final three weeks of the 2010 Legislative Session. The Regular Session is scheduled to end “Sine Die” on Friday, April 30. This, folks, is when things get…how shall…I say it….uh, interesting.

Every Session about 3000 bills are filed and about 10 percent, or 300 bills are actually passed by the Legislature. Therefore, as Committee meetings shut down and bills are no longer being heard, Sponsors start looking for moving bills (or vehicles) which are heading to each Chambers’ Floor to amend their bill language onto. This is a two-edged sword. Nothing is ever really dead until that final gavel raps the Session’s end. So if you are a proponent of certain language you are trying to pass you can attempt to load it onto a germane bill but so can those trying to pass language you are opposed to. The CALL team is pouring over the many, many Floor amendments which are being filed to make certain the Legislature passes those things which are helpful to community association residents and the volunteers who serve their communities and doesn’t pass language deemed harmful.

The most important Community Association package CALL is diligently working with the Legislature and Governor on is SB 1196 and its companion bill, HB 561. Both bills have successfully passed several Committees and are still on track to head to each Chambers’ Floor in a timely manner. As is the manner of the “give and take” legislative process, the bills have changed since their initial introduction. The latest version can be found at  http://www.flsenate.gov/data/session/2010/Senate/bills/billtext/pdf/s1196c3.pdf and we urge you to visit the link and review the 102 pages in the coming days and provide your feedback. Language addressing mortgagee liability was added in the last Committee. As of this version, it increases the liability cap from 6 months to 12 months. Given the VIGOROUS opposition of the lending industry, this is a significant move in the right direction but CALL isn’t through pushing for even more fair and appropriate reforms. For example, removing the “or 1 percent of the mortgage debt, whichever is less” language found in current law, requiring lenders to pay for  necessary repair assessments, etc. The language pertaining to the fire sprinkler retrofit opt out appears to be acceptable to the Governor’s office. There is helpful language pertaining to elevators, fire alarms, etc. which are all helpful to association residents who have been called upon in recent years to bear higher retrofitting costs.

Please stay engaged as we make the final push. This is the most imperative, “volatile”, sensitive time. Don’t assume anything and don’t walk away from the process now. We aren’t.

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On March 2, 2010, Congress passed and the President signed H.R. 4691, which extended the National Flood Insurance Program (NFIP) through March 28, 2010.  Homeowners (including community associations) who have current flood insurance policies still have coverage; but NFIP cannot issue new policies, increase coverage on existing policies or issue renewal policies.  Since the extension expired, please refer to the NFIP guide titled “Recommendations/Guidance for Possible NFIP Authority Lapse and Hiatus”.  FEMA has advised that "any hiatus period should be brief and most of the nearly 5.6 million flood insurance policyholders nationwide will not be affected".

Congress is scheduled to reconsider H.R. 4851 entitled the "Continuing Extension Act of 2010", which extends several governmental programs, on April 12, 2010. Once Congress authorizes the NFIP program again, it’s expected to make it retroactive.  However, the hiatus may slow down or delay closings that were scheduled to take place in early April.

Since flooding can often lead to mold if not addressed immediately, the U.S. Environmental Protection Agency publishes helpful information including mold clean-up guidelines. 

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Representative Bogdanoff Explains Amendments in CS/CS/HB 561 at Becker & Poliakoff's Leadership Seminar.  Representative Sachs announces she will "continue to fight for fairness in foreclosures". 

Over 450 volunteer board members, professional community association managers and industry representatives listened intently to Representative Bogdanoff on Saturday at the Kravis Center during the Becker & Poliakoff Leadership Seminar.  They were pleased to hear that CS/CS/HB 561 includes provisions that would:

• delay enforcement of code mandated elevator improvements (specifically ASME 17.1 and 17.3) in condominiums or cooperatives where the Certificate of Occupancy was issued on or prior to July 1, 2008, for five (5) years or until the elevator is replaced or requires major modification (whichever happens first);
• eliminate any requirement for condominiums or cooperatives that are less than four (4) stories and has exterior corridors to install a manual fire alarm as required by §9.6 of the Life Safety Code (as adopted by the Florida Fire Prevention Code);
• clarify that in a condominium association with more than 10 units, co-owners of a unit cannot serve on the board together unless they own more than one unit and are not co-occupants of a unit;
• require board members to certify (in writing) that they have read the laws and governing documents, will work to uphold the documents and policies and faithfully discharge their fiduciary responsibilities (or submit a certificate of satisfactory completion of approved educational curriculum), failing which they are automatically disqualified from service;
• allow high-rise condominium and cooperative associations to vote to completely avoid any obligation to retrofit the buildings with a fire sprinkler system or engineered life safety system and extend the deadline for others to 2019; and
• authorize bulk contracts for communication services, information services or internet services.

Stay tuned for more legislative updates direct from Tallahassee as these (and other) changes are likely to substantially impact community association operations.

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This week marks the second week of the legislative session and things are getting downright hot inside the capitol as it relates to community association bills. While only mid-week, I have been involved with numerous meetings regarding SB 1196 and HB 561, the ca package getting the most attention by the Legislature. I have met with the sponsors…Sen. Fasano, Sen. Ring, Rep. Bogdanoff, Rep. Hudson…with interest groups ranging from bankers, managers, CPA’s, insurance agents, with committee staff, etc. Progress is being made on several fronts and as language is negotiated which provide workable solutions to real challenges, we will get that out via the CALL website (www.CALLbp.com) for your review and input.

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OPPAGA Report Finds that Insureds Received Larger Insurance Settlements when Public Adjuster Involved in Claim.  Florida Legislature Considers Additional Regulations Governing Solicitation by Public Adjusters. 

 The number of public adjusters in Florida increased by more than 300% over the last six (6) years - no doubt as a direct result of the catastrophic damages caused by hurricanes in 2004 and 2005.  As the deadline to file Hurricane Wilma claims becomes closer and closer, more homeowners, association leaders and building managers are being solicited to re-open old claims.  In the aftermath of Hurricane Wilma many distraught association leaders readily 'signed on the dotted line' after being told 'not to worry' about the association's insurance claim or repairs to the property. 

Did the use of a public adjuster make a difference?  The report issued by the Office of Program Policy Analysis & Government Accountability (OPPAGA) finds that claims took longer but payouts were higher when a public adjuster represented the insured.  In fact, Citizens Property Insurance Corporation paid insureds represented by public adjusters at least five time (5x) more than it paid insureds handling claims by themselves.

While Section 626.8795, Florida Statutes specifically prohibits the public adjuster from having anything to do with the repair or reconstruction of the damaged property, contractors and public adjusters often seemed interchangeable to association leaders.  The Department of Financial Services recently stepped-up enforcement efforts against contractors - including United Roofing Systems.    Moreover, solicitations became so intrusive that the Florida laws were amended in both 2008 and 2009 to impose restrictions:

• limiting hours of solicitation (in person or by telephone) from Monday through Saturday between 8:00 a.m. and 8:00 p.m.;
• prohibiting contact with policyholders until at least 48 hours after an event; and
• limiting fees to 10% of the claims related to declared emergencies and 20% for all other new claims.

 SB 2264, filed by Senator Bennett seeks to control solicitation by public adjusters even more and according to the Sun-Sentinel, industry groups are all for it, claiming that public adjusters lead to higher premiums.  Among other things the bill seeks to:

• prohibit solicitation in person or by phone (unless the insured is someone they know or a family member);
• require written communications to include the word 'ADVERTISEMENT' in red ink and be sent via regular mail (not certified or registered);
• prohibit mailers until 30 days after the insurable event takes place; and importantly
• cap fees at the 10%/20% limits for re-opened claims.

Contracts between insureds and public adjusters often result in disputes leading to expensive and protracted litigation.  It is therefore extremely important to consult with counsel before entering into any contract with a public adjuster or contractor after a casualty occurs.  For more information on disaster planning and recovery, please go to www.hurricane-recovery.com.

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Naples City Council Urged by CALL to Adopt Resolution in Support of HB 561 and SB 1222 to Extend Deadline for Compliance with Costly Fire Sprinkler Retrofit Requirements.  Collier County Commissioners Expected to Consider Resolution at Upcoming Meeting.

Representatives from the State Fire Marshal's Office presented information to City Council members and interested citizens regarding the improvements required for high-rise buildings (including condominiums and cooperatives) to comply with the Florida Fire Prevention Code.  A recent report of the Florida Department of Business and Professional Regulation pegged estimated compliance costs at up to $8,600 per unit. This, at a the time of an historic decline in property values and unprecedented association assessment delinquencies, all while the efficacy of the requirement has yet to be shown.

While Florida Statutes, Section 718.112(2)(l) provides that an Association may vote to opt out of the requirements to retrofit the units of a high-rise residential condominium, currently there is no way to avoid a partial retrofit of interior common areas in a high rise building (a building greater than 75 feet in height).   WZVN (Channel 7) reported about the "angry condo association presidents" and county leaders that hoped to extend the deadline or even change the law completely. 
 

On another note - we are proud to be nominated as a Best Blog in the Sun-Sentinel's Best of Blog Awards.  The voting process is already underway - click HERE to vote for Florida Condo & HOA Law Blog in the Business and Technology Category! 

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Amendments to the Florida Rules of Civil Procedure Largely Derived From Recommendations of the Task Force on Residential Mortgage Foreclosure Cases.

Some of the changes are as follows:

Verification of Mortgage Foreclosure Complaints:  This requires the Plaintiff (lender) to attest to the truthfulness of the allegations in the complaint.  It is intended to minimize erroneous filings, conserve judicial resources by reducing the number of cases with "lost note" issues and provide the court with greater authority to sanction lenders that make false allegations.

Changes the Affidavit of Diligent Search:  When the defendants cannot be served personally, the law allows the foreclosure case to proceed after publication of a notice.  This new form requires the person that conducted the search to sign the Affidavit (instead of the lender) and to provide more information about the search.

New Form - Motion to Cancel and Reschedule Foreclosure Sale:  Associations wait and wait for a lender to foreclose and then wait for the sale to bill the new owner (whether lender or third party) for the appropriate amount.  More importantly, Associations need the property to be sold to start collecting assessments from the new owner going forward.  The number of sales canceled at the last minute seems to be on the rise.  This new form requires the lender to explain why they want to cancel the sale.  It also directs the Court to set a new sale date, rather than keeping properties in an "extended limbo between final judgment and sale". [Quote from Task Force]

There are some slight changes to the Final Judgment of Foreclosure that weren't published before so interested persons have sixty (60) days to comment before they become final.  All of the other changes are final and in effect.

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First, a quick note of introduction. As stated above, my name is Travis Moore and for the last number of years I have had the privilege of advocating for the interests of CALL members before Florida's policy makers. This includes the Governor's Office and Executive Branch Agencies such as the Department of Business and Regulation which is charged with condominium oversight and the state Legislature. While decisions are being made in Tallahassee and around the state, it is vitally important the voice of each CALL member is heard by those holding sway over the deliberations. I am pleased to be a part of your team by pointing your megaphone in the most effective direction and being your eyes and ears as the debate affecting our community takes place.

Probably THE hot button issue facing community associations in Florida is mortgage foreclosures and the statutory limit of lender liability for assessments. The association is left maintaining the asset  - the burden on the backs of the units not in foreclosure, but many sliding that way. This added burden is just buttering the slope.

Up until recently, the lending lobby has offered no workable solutions. Now, they are circulating draft legislation creating a non-judicial foreclosure process. To date, no bill has been filed but we suspect it will and CALL will quickly analyze it and get it circulated for your input. Already, we are reviewing the draft so be looking for a CALL Alert soon.

As in any proposal to address this true crisis for associations, there are certain criteria which we will insist on. Obviously it must address the associations' ability to have owners and lenders meet their financial obligations to the association. What is rightfully owed to the association for maintaining the real estate must be paid.  It must be paid as quickly as possible. One of the main issues currently being faced by associations is the length of time it is taking for the property to be foreclosed, while the hard cap of 6 months (COA) and 12 months (HOA) is keeping the lenders' liability unreasonably low. 

It is imperative that any foreclosure process, including a non-judicial one, not put the entire process and timetable under the control of the lender.  The lenders have the most to gain by delay...a cap and avoidance of paying full assessments upon taking title...while leaving associations even further at their "mercy."

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A couple of CA bills of interest were heard by the House Civil Justice & Courts Policy Committee on Tuesday (February 4, 2010) morning. HB 329 by Rep. Robaina was debated and it was decided by the Committee to hold off on taking a vote due to some concerns with the provisions pertaining to the ability of associations to go after payment of assessments from renters when unit owner landlords aren’t paying.

HB 561, a omnibus CA bill which CALL is working on very closely with sponsors Bogdanoff and Hudson, was passed by the committee after adopting several amendments pertaining to the contentious sprinkler retrofit issue. It would move the date of compliance to 2019 from 2014 and say that if an association has voted to forego retrofitting that 10 percent of owners could petition to have a special meeting “re-vote” once every 3 years. CALL will continue to monitor this issue to make certain a workable solution is found which doesn’t jeopardize the bill.

There was also a discussion on the Florida Supreme Court’s administrative order re the mandatory mediation process for residential mortgage foreclosure cases. David Muller of CALL was asked by the Committee to testify and was able to provide helpful information on the foreclosure crisis many associations are facing and how this mediation process must not cause further delay and cost. This issue remains a top priority of CALL. We need you to let your Legislators know how your association is being impacted and ask for action.

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2010 looks like it will be another active year in the foreclosure reform area. According to Yeline Goin, Co-Executive Director of Becker & Poliakoff’s Community Association Leadership Lobby (CALL) “there are already several Bills in play which we expect to generate a lot of discussion in Tallahassee this year.”   Some of them include the following:
 

House Bill 115: This proposal states that during the pendency of a foreclosure action, if the unit is occupied by a tenant, the association may demand that the tenants pay rent directly to the association, with a right of eviction for non-compliance. This Bill would also permit the condominium association to suspend certain common element use rights for nonpayment, although utility services could not be suspended. Voting rights could also be suspended for delinquencies. Similar amendments are proposed in this Bill for Chapter 720, the Florida Homeowners Association Act.

Senate Bill 164: This proposal requires any mortgagee which has not completed its foreclosure within six months from filing its foreclosure lawsuit to pay the “statutory cap” (six months of past due assessments or one percent of the original mortgage debt, whichever is less) during the pendency of the lawsuit. This proposal would apply to condominiums only.

House Bill 329: This proposal would also allow the collection of rents directly from tenants, and permit suspension of certain common element use rights and voting rights. Significantly, this Bill also deletes the statutory cap and would require a foreclosing lender to pay all unpaid assessments if the foreclosure action is not completed within a year.

House Bill 337/Senate Bill 968: This Bill states that if an owner is delinquent in the payment of assessments, they can be restricted from running for office, holding office, serving on committees, leasing units, or using the common areas.

House Bill 419/Senate Bill 864: This Bill is similar to a couple of others already discussed regarding the right to demand payment of rents directly from tenants. This proposal also states that an association’s claim of lien can include the cost of collection efforts by management companies or licensed managers.

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