In many sections of Chapter 718, Florida Statutes, also known as the Florida Condominium Act, the statute requires an “affidavit.” An affidavit is a written declaration or statement of facts, made voluntarily and confirmed by sworn oath or affirmation in the presence of a notary public or other officer having authority to administer an oath.
The Florida Condominium Act requires affidavits in certain, enumerated situations. Primarily affidavits are used to provide proof that statutory notices were properly and timely sent. For example, Section 718.112(2)(c)1., Florida Statutes, requires an affidavit attesting to proper notice being provided to owners for Board of Director meetings where a non-emergency special assessment or amendments to rules regulating unit use are considered. Likewise, an affidavit attesting to the proper mailing or delivery of notice for the annual meeting or for special membership meetings is required per Section 718.112(2)(d)4., Florida Statutes.
An affidavit must be executed attesting to the transmittal of the annual budget to each unit owner at least 14 days prior to the budget meeting, per Section 718.112(2)(e), Florida Statutes. Each year the condominium association must provide or make available its annual financial report to unit owners within statutory time limits. An affidavit is required for proof of compliance of transmittal of the financial report per Section 718.111(13)(a), Florida Statutes.
An affidavit of proper notice is required for the membership meeting at which owners will vote to forego retrofitting of fire sprinkler systems. Sect. 718.112(2)(n)1., Fla. Stat.
Typically, these affidavits of proof of notice are executed by the manager, board member, or other authorized agent of the association who sends or supervises the sending of the notices to the unit owners.
For those condominiums subject to the Structural Integrity Reserve Study (SIRS) requirements, an officer or director of the association must sign an affidavit acknowledging receipt of the completed SIRS study, per Section 718.112(2)(g)(10), Florida Statutes.
An affidavit must be recorded in the public records for all Declaration amendments that require mortgagee consent. Sect. 718.110(11)(e), Fla. Stat. There are affidavit requirements for the developer during the turnover process (Sect. 718.301, Fla. Stat.); and affidavits required in foreclosure actions of secondary condominium units (Sect. 718.406, Fla. Stat.).
There are also affidavit requirements in Chapter 617, Florida Statutes, (the Florida Not-for-Profit Corporation Act); and in Chapter 61B, Florida Administrative Code, which associations should review. There are other times during litigation when the association’s attorney may require or request affidavits be executed.
There are occasions when the Association is not required by statute to execute an affidavit, but may choose to execute an affidavit. For example, a board member, officer, licensed manager, or agent of the Association can provide an affidavit of mailing of the Notice of Late Assessment, to constitute a rebuttable presumption that the association mailed the notice in accordance with the statute. Sect. 718.121(5), Fla. Stat. Likewise, for the new statutory provision allowing voting in condominium elections by email, the proper agent of the association can execute an affidavit that all voting email folders were reviewed up to the time of the election to capture all emailed votes. Section 718.128(7)(e), Fla. Stat.
Voluntary affidavits may be useful to prove compliance with notice requirements that are dependent upon postmarks. A recent rule adopted by the United States Post Office defines “postmarks” as confirming only when the mail piece was first accepted by an automated processing facility, and not the date the mail piece was deposited into the U.S. mail. In many cases, a mail piece is not accepted at a processing facility until a day or days after the mail piece was deposited into the U.S. Mail. The association manager or other agent can execute an affidavit of mailing for notices, letters, demands, fining notices, and the like that must be sent on or by a certain date, in order to attest to the date the notice was deposited into the US Mail.
Affidavits become a part of the condominium association’s official records (Sect. 718.111(12)(a)(20), Fla. Stat.); and must be posted on the association’s website if a website is required (Sect. 718.111(12)(g)2(r), Fla. Stat.).
Because an affidavit is sworn testimony, your attorney should draft your form affidavits or review any affidavits that will be executed.
