The 2023 Legislative Session brought significant changes for community associations in Florida. In this issue, we aim to provide you with a thorough review and understanding of these new laws. From multifamily property safety to the preparation and response of natural disasters, we provide practical tips to help you understand these new changes. Don’t miss our featured podcast episode, “Keeping Cool with Jane Gilbert, Miami-Dade’s Chief Heat Officer.”
This summer, we have experienced the hottest days in modern history. Looking for ways to cope? Donna DiMaggio Berger offers some helpful insight to protect yourself and your association in, “Preparing for Extreme Heat: The New Natural Disaster.”
In 1989, Miami-Dade County adopted an ordinance making it illegal for residents to own or keep any dog whose characteristics closely resemble those of the pit bull breed. Lilliana M. Farinas-Sabogal addresses the movement against breed specific regulations in, “Breed-Specific Dog Bans.”
Some judges and arbitrators have found that second-hand smoke can be a nuisance. Elizabeth A. Lanham-Patrie discusses some options for your association in, “Part 2: Can an Association Prohibit Smoking in Its Condominium?”
Many people often think that the respective community association statute is the only law that applies to the association. This is incorrect. Jay Roberts emphasizes this important lesson in, “THIS CASE: Iezzi Family Limited Partnership v. Edgewater Beach Owners Association, Inc.”
The word “hot” has many connotations: it can reveal anger when you say someone is “hot around the collar”; it can invoke personal appeal or desirability “he’s so hot”; it can refer to a disorganized person or situation, hence the description as “a hot mess”; and can also be used to describe an emotional issue or topic as a “hot button”. However, since the earliest of times, the word hot has been used to describe the temperature and we’ve been hearing this word a lot lately in many parts of the US given the ongoing heat waves.
In 1989, in the wake of a series of serious injuries caused by pit bulls, most notably the mauling of a 7-year-old girl and her mother, Miami-Dade County adopted an ordinance making it illegal for residents to own or keep an American Pit Bull, American Staffordshire Terrier, Staffordshire Bull Terrier, or any other dog whose characteristics closely resemble those of the pit bull breed.
As mentioned in Part 1, published in last month’s community update, an association can prohibit smoking in the common elements/common areas by adopting a Rule. An association may also want to prevent smoking on balconies and patios. If the balconies and patios are limited common elements, then just like the common elements, the association can adopt a Rule prohibiting smoking in those areas. However, an association must carefully review its Declaration of Condominium and the boundaries of a unit because sometimes the balconies or patios are part of the unit.
Iezzi Family Limited Partnership v. Edgewater Beach Owners Association, Inc.
254 So.3d 584 (Fla. 1st DCA 2018)
An association is also a corporation is at the heart of THIS CASE. A unit owner filed a 27-count lawsuit against its condominium association and seven current and former directors, which, if proved would be common claims for all members of the association. The trial court dismissed the lawsuit for failure of the plaintiff to comply with the corporate derivative pre-suit requirements. On appeal, the plaintiff argued that it was not required to complete the pre-suit derivative requirements because the lawsuit was brought pursuant to Section 718.303(1), Florida Statutes.
The appellate court began its opinion by explaining that the association is Florida not-for-profit corporation, and therefore is governed by Chapter 617, Florida Statutes (the Not-For-Profit Corporation Act), in addition to Chapter 718, Florida Statutes (the Condominium Act). Section 617.07401, Florida Statutes, restricts the ability of members to bring lawsuits “in the right of” their non-for-profit corporation. Members must bring their complaints to the board of directors to allow the corporation to conduct investigations and initiate a lawsuit. If the corporation proves that it has conducted an independent and reasonable investigation, and determines in good faith that a lawsuit is not in the best interests of the corporation, a court may dismiss the proceeding. The plaintiff argued that the foregoing provision of Chapter 617, Florida Statutes, conflicts with Section 718.303(1), Florida Statutes, which, if true, would mean that Section 718.303(1), Florida Statutes, must control. F.S. 617.1703.
The appellate court stated that, when possible, statutes must be read in harmony to avoid conflict. With respect to claims that would be common as to all members of the association (e.g. mismanagement of common funds, improper common element maintenance, etc.) the court held that the Section 617.07401, Florida Statutes, pre-suit derivative investigation must occur prior to a member exercising its rights under Section 718.303(1), Florida Statutes, to bring a lawsuit against the association and its directors.
So why does THIS CASE matter? Many people often think that the respective community association statute is the only law that applies to the association. This is incorrect. There are various statutes that relate to the rights and obligations of community associations, including the one discussed in THIS CASE. If your association is ever faced with claims of legal wrongdoing, it is critically vital that you involve the association’s counsel early to discuss the best way to proceed.
2023 LEGISLATIVE REVIEW
There are changes from the 2023 Legislative Session that will affect your community association. Becker Shareholder Joseph Adams breaks down a new law that can protect you from liability if a criminal act is committed and what security measures must be in place.
Joseph Adams reviews additional relevant legislation from the 2023 Legislative Session, including the Homeowners’ Association Bill of Rights, the display of flags in community associations, and other statutory provisions that have relevance to community associations.
APPLICATION OF NEW SECTION 768.0701, FLORIDA STATUTES, REGARDING MULTIFAMILY PROPERTY SAFETY TO CONDOMINIUM ASSOCIATIONS
FCAP Managers Report
By: James Robert Caves, III
Every year community associations watch for legislative changes to the general statutes that govern community associations, including Chapter 718, Florida Statutes, for Condominium Associations; Chapter 719, Florida Statutes, for Cooperative Associations; and Chapter 720, Florida Statutes, for Homeowners’ Associations. However, changes to other parts of the Florida Statutes can have important, substantive effects on community associations as well. Section 8 of HB 837, creating Section 768.0701, Florida Statutes, is one such change.
Community association boards and managers should ensure that their communities have adequate disaster planning measures in place as hurricane season approaches. To help you in weathering the storm, check out Becker’s Hurricane Guide which provides important tips and information to help protect your community.
For more information, contact your Becker attorney.
CALLING ALL BOARD MEMBERS AND COMMUNITY MANAGERS
As leaders in Community Association Law, we not only helped write the law – we also teach it.
Did you know Becker provides over 200 educational classes per year throughout the State of Florida on a variety of topics ranging from board member certification to compliance, and everything in between? Our most popular classes are now available online!
To view our entire class roster, visit: beckerlawyers.com/classes
UPCOMING CLASS OFFERING:
- Dealing with Difficult People
08/03/23 – 12:00PM – Registration Coming Soon
- Do’s and Don’ts of the Building Certification Process
08/10/23 – 11:00AM – Registration Coming Soon
- Take A Bite Out of Fraudulent Assistance Animal Requests
08/17/23 – 11:00AM – Registration Coming Soon
- Condo Terminations: Unthinkable No Longer
08/24/23 – 11:00AM – Registration Coming Soon
- Proper and Effective Board Meetings
08/31/23 – 10:00AM – Registration Coming Soon
“Every presentation from Becker is invaluable to me as a condominium association Board member. From conflict resolution to Board member certification – they’re an invaluable resource. I highly recommend that anyone in an Association (owner or Board member) watch these online presentations.”
~ Eric Hanson, Sides Moreno Point West Owners Association
Can They Do That?
Becker’s “Can They Do That” video series tackles some of the unique problems that homeowners and renters face today. We answer your questions, no matter how far-fetched they may seem. From service animals to nudists in your community, we get to the bottom of it and let you know – “Can They Do That?”
Becker Steps Up to the Mic with Podcast,
‘Take It To The Board with Donna DiMaggio Berger’
Think you know what community association life is all about? Think again. Residents must obey the rules, directors must follow the law, and managers must keep it all running smoothly. Take It To the Board explores the reality of life in a condominium, cooperative or homeowners’ association, what’s really involved in serving on its board, and how to maintain that ever-so-delicate balance of being legally compliant and community spirited. Leading community association attorney Donna DiMaggio Berger acknowledges the balancing act without losing her sense of humor as she talks with a variety of association leaders, experts, and vendors about the challenges and benefits of the community association lifestyle. Don’t have a streaming app? You can now find all episodes on YouTube! Click here to listen now.
- Navigating the Negative Impacts of Sea Level Rise with Professor Harold R. Wanless and Dr. Esber Andiroglu
- Donna DiMaggio Berger Celebrates 50th Episode with Business Attorney and Husband, Michael Berger
- Guns, God, and Gab – A Constitutional Analysis with Jay Roberts, Esq.
- Why Local Government Matters Most with Vice Mayor Sarai “Ray” Martin of Lauderhill
- Surviving the Storm: A Journey Through Hurricane Ian and Beyond with Joseph E. Adams, Becker & Poliakoff
- Is Truth Stranger Than Fiction Particularly When It Comes to the Community Association Lifestyle? with Marvin Nodiff, Former Community Association Attorney and Author
- Examining the Challenges Community Association Attorneys Face and the Corporate Responsibility Community Associations Shoulder with Marcia Narine Weldon, Law Professor
Featured Episode: Keeping Cool With Jane Gilbert, Chief Heat Officer, Miami-Dade County
It’s common knowledge that Florida is one of the hottest markets in the U.S. – whether you’re considering a personal lifestyle upgrade or a new environment for your business. But that influx of people and industry, coupled with the state’s numerous sunny days, is a recipe for an extreme heat event and can spell disaster for an unprepared infrastructure.
Host Donna DiMaggio Berger and featured guest Jane Gilbert – the world’s first Chief Heat Officer – explore the dangers posed by extreme heat in highly urbanized areas and discuss how municipalities around the world are collaborating on solutions to protect both present-day and future communities.
FLORIDA GOVERNOR SIGNS SB 250 INTO LAW
On June 28, 2023, the Florida Governor Ron DeSantis signed into law Senate Bill 250 (see Chapter 2023-304, Laws of Florida), which makes various amendments throughout the Florida Statutes regarding the preparation and response activities of state and local governments when natural emergencies impact the state. Supporters of Senate Bill 250 (the “Bill”) believe the Bill will help Florida to better recover from Hurricanes Ian and Nicole and be better prepared for future natural emergencies. For convenience, we have summarized material sections of this Bill below.
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DID YOU KNOW?
Becker Grows Florida Community Association Practice with New Bradenton Office; Adds Mary R. Hawk and Bryony G. Swift
Becker is proud to announce that Mary R. Hawk and Bryony G. Swift have joined as shareholders in the firm’s Florida community association practice. They will both be based in Becker’s new Bradenton office, the firm’s 12th location in Florida, which is expected to open in September 2023.