Florida Condo & HOA Legal Blog : Florida Condo Lawyer & Attorney : Becker & Poliakoff Law Firm : Condominium & HOA Law Blog

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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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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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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