While there has been a lot of buzz about changes made in the 2023 Florida Legislative Session to laws affecting our Association clients, one potentially important change has been largely overlooked. The seemingly innocuous flag bill – House Bill (HB) 437 — creates the new Florida Statute 720.3045 prohibiting homeowners’ associations from regulating certain backyard storage.
As originally proposed, HB 437 increased the number and types of flags a homeowner could fly within a Homeowners Association, as well as increased the list of holidays during which a condominium owner could fly a second flag. In early April, HB 437 was amended to create a new statute – Florida Statute 720.3045 — that allows for displays beyond flags, including storage of “any items” not visible from the parcel’s frontage or an adjacent parcel. The final bill signed by the Governor included this new storage statute.
HB 437 Revises Several Statutes, And Creates a New Storage Statute:
Florida Statute 718.113 was amended to add Patriot Day to the list of holidays for which a condominium unit owner may fly an additional portable removable flag. Patriot Day is September 11th.
Florida Statute 720.304 was amended to allow the flying of two flags, regardless of any provision in the Association governing documents to the contrary, and to expand the list of flags allowed by statute. A variety of first responder flags are now included in the list of flags a homeowner may fly, including the thin-blue-line flag; but this expanded list of flags is not applicable to condominiums. Florida Statute 720.3075 was amended to increase the number of flags a homeowners’ association cannot prohibit, from one to two.
Of particular importance to homeowners’ associations, Florida Statute 720.3045 was created to prevent an association from regulating the installation, display, and storage of “any items” not visible from a parcel’s frontage, from an adjacent parcel, or prohibited by local ordinance. The new section allows a homeowner or their tenant to store “any items” including, but not limited to, boats, RVs, and artificial turf, so long as such items are not visible from the frontage of the parcel, or visible from an adjacent parcel, or prohibited by local ordinance.
The term “parcel” is defined in Florida Statute 720.301(11) to include a subdivision of real property within a community, capable of separate conveyance, as described in a declaration, for which a parcel owner must be a member of an Association and pay assessments which could result in a lien. Because F.S. 720.3045 uses this already-defined term to delineate where storage cannot be visible — and a parcel is not a drainage pond, a navigable waterway, a roadway, common greenspace, and usually not a golf course — an association is prohibited from regulating backyard storage only visible over a drainage pond, across a waterway, from a golf course or a community park. Because only stored items visible from the frontage of a parcel or an “adjacent parcel” may be objected to by the Association under this new statute, we expect significant complaints about stored items that are visible:
- From a roadway abutting a corner lot
- Across a drainage pond
- From a community park
- From a golf course
- From a navigable waterway
- From a multi-story home not directly contiguous to the parcel storing items
Does new Florida Statute 720.3045 Apply to your Declaration?
The new storage statute purports to apply to homeowners’ associations regardless of the restrictions contained within their covenants or other governing documents. But does it?
Most laws are prospective, so they apply going forward from the date they become effective. The Constitution of the State of Florida, Article I, Section 10 prohibits the enactment of any law impairing the obligation of contracts, such that some Associations may be able to avoid the harm of this new storage statute. However, if your governing documents contain language that incorporates the Florida Statutes as they become amended into the entirety of your declaration, your declaration now allows backyard storage.
Article 1, Section 10 of Florida’s Constitution prohibits a substantive law from impairing a previously existing obligation of contract. Over time, Florida’s constitutional protections for the right to contract have led to a body of caselaw law explaining how and when a new statute can be imposed to change rights and obligations contained within a previously recorded declaration. One of the most well-known cases in this body of caselaw is Kaufman v. Shere, the case that explains the legal impact of the language: “Florida Statutes as amended from time to time.” Kaufman v. Shere, 347 So. 2d 627(Fla. 3d DCA 1977). As a Florida contract, a declaration is deemed to include the law as it exists on the date the contract is created. The phrase “as amended from time to time” or some variation of those words can be used to incorporate all future changes to the Florida Statutes into the previously existing declaration. In Kaufman v. Shere, the declaration at issue included the Florida Condominium Act as it existed on the date the contract was entered into, but also included the Condominium Act “as it may be amended from time to time”. The courts interpret that language, which came to be known as Kaufman language, as incorporating future statutory changes into a declaration.
For many years after Kaufman was decided, it was common practice for attorneys drafting declarations to include Kaufman language, “as amended from time to time,” into the very definition of the law controlling the declaration, thereby bringing all future changes to the statutes into every section of the declaration. But, in recent years such a broad use of Kaufman language has begun to fall out of favor.
When I draft a declaration, I am careful to incorporate future statutory changes into the document only in the sections where I expect future changes would be beneficial to the Association. My service on several committees involved in legislation helps me to make informed decisions, but there is still some element of speculation. One cannot know with certainty what the legislature will do in any legislative session. For example, no one could have foreseen this new storage statute.
Looking at the storage statute, F.S. 720.3045, and considering Kaufman v. Shere: Florida Statute 720.3045 is substantive in that it changes a substantive right when it prohibits the Association from enforcing a power granted to the Association within its declaration, thereby giving an owner or tenant the right to store items where they previously did not have the right to store items. As such, Article 1, Section 10, of the Constitution of the State of Florida would protect a preexisting homeowners association declaration from having this new substantive statute imposed, unless the declaration incorporates the Florida Statutes as amended from time to time. If the declaration contains Kaufman language in a way that incorporates all future statutory changes into all sections of the declaration, then your homeowners’ association is obligated to allow backyard storage of any item, so long as that item is not visible from the frontage or an adjacent parcel or prohibited by local ordinance.
If you would like to amend your declaration, to remove a broad use of Kaufman language in favor of a narrower approach to incorporation of future statutory changes, please contact me at firstname.lastname@example.org.