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Service Animal and Emotional Support Animal Guide for Associations
While much has been written on Service Animals and Emotional Support Animals, our office routinely answers questions from associations seeking to enforce pet restrictions against owners and tenants requesting exceptions to pet prohibitions. The following is a refresher on the Fair Housing Act (FHA) as it relates to pet restrictions in homeowner and condominium associations. Additionally, this article acts as a guide to assist associations when a request for a pet restriction exemption is made.
The FHA is a Federal law that prohibits discrimination based on disability, race, color, national origin, religion, sex, and familial status. This law covers housing accommodations, and therefore it applies to associations. The FHA defines a disability as a physical or mental impairment which significantly limits a person’s major life activities. Both Service Animals and Emotional Support Animals are covered by the FHA.
A Service Animal is narrowly defined by the Americans with Disabilities Act as a dog that is individually trained to do work or perform tasks for a person with a disability. Emotional Support Animals and Assistance Animals perform work, provide assistance, or perform tasks for the benefit of the person with a disability, or offer therapeutic benefits that alleviate symptoms of a disability. While a Service Animal requires specialized training, an Emotional Support Animal requires no training, which is why animals are so often claimed under “emotional support.”
Service Animals and Emotional Support Animals are not considered pets under the FHA. This is why an association’s pet restriction will not apply. An exception to a pet restriction for a Service or Emotional Support animal must be made regardless of an association’s rules on breed, weight, or type of animal.
Regardless of whether an animal is claimed as a Service Animal or Emotional Support Animal, there is NO Federally recognized certification evidencing an animal as a Service Animal or Emotional Support Animal. Such certifications may be purchased online and have zero legal significance. An online certification alone will do nothing to qualify an animal as a Service Animal or Emotional Support Animal. Such a certificate may also be a red flag suggesting the animal is not legitimate.
When faced with an owner or tenant’s request for a Service Animal or Emotional Support Animal, associations are limited in the questions and documentation they may request. The U.S. Department of Housing and Urban Development (HUD) provided instruction on how to respond to such requests. After receiving a pet restriction exemption request, an association must consider, 1) whether the person seeking the pet restriction exemption has a disability, defined as a physical or mental impairment that substantially limits one or more major life activities, and 2) whether the person making the request has a disability-related need for the animal. In other words, HUD recommends associations consider if the animal will work, provide assistance, perform tasks, or provide emotional support that alleviates one or more symptoms of the individual’s disability.
If the answer to either question is “no,” the association may deny the request for Service Animal or Emotional Support Animal. If the answers to these considerations are “yes,” the animal must be exempted from pet restrictions. If the individual’s disability is not readily apparent or known, an association may ask the individual to provide “reliable” documentation of the disability and the individual’s disability-related need for the assistance animal. Additionally, if the disability is readily apparent but the need for the animal is not, the association may request additional information as to what the animal will do to address the disability. Documentation is “reliable” if it comes from a physician, psychiatrist, social worker, or other mental health professional. In no circumstance may access to an individual’s medical records be demanded.
There are exceptions to exceptions, and it may be possible to deny a Service Animal or Emotional Support Animal despite a disability. HUD states that a request may be denied if, 1) the specific assistance animal poses a direct threat to the health and safety of others that cannot be eliminated through reasonable accommodations, or 2) the animal in question would cause substantial physical damage to the property of others that cannot be reduced or eliminated through reasonable means. Such a determination must rely on objective evidence rather than mere speculation.
These requests may not be unreasonably denied, or conditioned on a fee or deposit, even if others with pets are required to pay such fees. A request for a Service Animal or Emotional Support Animal must be analyzed on a case by case basis. The Tankel Law Group cautions our clients to never deny a request without consulting with our office or a member of the Florida Bar.
Date: January 8, 2019
Collection of Delinquent Assessments During Owner Bankruptcies
Florida Statutes recognize the importance of homeowner and condominium association assessments to the vitality of a community and have enacted methods to enable associations to collect delinquent assessments. However, when an owner files for bankruptcy an association may be temporarily enjoined from seeking the delinquent assessments, or prevented from collecting past due assessments altogether. The following is a general breakdown of bankruptcies as they relate to assessments, and recommendations for associations wishing to protect their interests.
Bankruptcy laws are designed to help debtors obtain a “fresh start” after experiencing financial difficulty and inability to repay creditors. Chapter 7 and Chapter 13 bankruptcies are the primary methods owners will seek to discharge their debts. In Chapter 7 bankruptcies, the debtor’s personal assets are sold to pay creditors. In Chapter 13 bankruptcies, the debtor pays creditors over a three to five year period through a court approved payment plan.
Upon filing for bankruptcy, an “automatic stay” is triggered and prevents creditors from commencing or continuing acts against the debtor. The automatic stay affords a debtor opportunity to reorganize or liquidate assets in an orderly manner. It is strictly enforced as to all association attempts to collect a debt, and even prevents tangential attempts to collect a debt, such as suspending an owner’s use of certain common areas or recreational facilities. As a result, all association collection activity must cease upon a bankruptcy filing.
Typically, debts incurred prior to an owner filing for bankruptcy, including assessments, are discharged and cannot be collected. However, an association can protect itself by filing a lien for unpaid assessments before the owner files for bankruptcy. The association’s lien will (likely) enjoy a secured status and will not be stripped by the bankruptcy. Securing a lien is important for both Chapter 7 and Chapter 13 bankruptcies. If an association has a secured lien prior to a Chapter 7 bankruptcy, it will be free to press forward with a lien foreclosure provided the property is not underwater. With a secured lien prior to a Chapter 13 bankruptcy, the association can expect to be included in the payment plan. If an owner fails to abide by the plan, the association may continue the collection process and foreclose if necessary.
In Chapter 7 bankruptcies, assessments that accrue after filing for bankruptcy are non-dischargeable according to 11 U.S.C. § 523(a)(16), and therefore are still owed as they become due. Owners are required to pay for the continued benefits an association provides their home, unit, and common areas, which are derived from assessments. Owners who file Chapter 13 bankruptcies must also continue to pay assessments that accrue after filing for bankruptcy.
This discussion highlights the importance of an aggressive collections policy. Associations that drag their feet and delay pursuing liens for unpaid assessments are left with unsecured claims that may be discharged in bankruptcy. If an owner cannot afford to pay assessments, that owner may also have other debts which push the owner toward a bankruptcy filing. If the association neglected to pursue the collections process, it may never be able to recover those amounts due prior to bankruptcy. It therefore serves the association and its members to implement a uniform and strict assessment collections policy.
The Tankel Law Group routinely handles collections during owner bankruptcies, and will advise your association the best strategy to protect your community when facing a bankrupt owner.
Date: December 10, 2018
Condominium Association Board Member Terms Limits Changed (Again!)
As of July 1, 2018, a new law is in effect changing the term limits of board members for condominium associations. The previous statute limited board members to no more than four consecutive two-year terms unless approved by two-thirds of the entire voting interests. The new statute, 718.112(2)(d), clarifies the limit by stating that “a board member may not serve more than 8 consecutive years.”
The statute provides two alternatives for a board member to remain in their position in excess of the limits. The first exception allows a board member to remain if there are not enough eligible candidates to fill board vacancies. The second exception differs from the prior statute and allows the board member to remain if two-thirds of voting members approve the additional term. This differs from the statute’s prior language which required an affirmative vote of all members. Additionally, the statute clarifies that if the condominium’s declaration contains language allowing it, board members may be elected to serve terms longer than two-years.
The revision brings up a question as to applicability. Did the eight year term limit start on July 1, 2018? If a director was already serving for eight years, does the statute require the director to resign? Or, is the limit prospective so that all board members in office on that date start with a clean slate, allowing them to serve eight year terms?
The Department of Business and Professional Regulation, Division of Florida Condominiums, Timeshares, and Mobile Homes (the “Division”) recently issued a Declaratory Statement clarifying the matter. The Division advised that years of service which accrued prior to the effective date of the statute would count towards the eight year term limit. Therefore, the new language is retroactive. If at the time of the election a board member has served for eight or more years, that board member will not be eligible to serve again unless one of the two exceptions are met.
From an economic and political perspective, the imposition of term limits hurts good governance in condominium associations. It also raises costs. A director with eight years of service has a tremendous depth of knowledge that is lost by requiring her to step down. If the other directors are new, and management is new, a senior board member will be best suited to keep the association on track. The legislature’s decision to impose these limits may result in squandered talent in an attempt to mandate new blood on condominium association boards.
Date: October 23, 2018
Fining is an excellent method boards can use to enforce an association’s governing documents. However, if Florida Statutes are not precisely followed, the association risks levying unenforceable and uncollectable fines. The steps below are a useful guide to fining procedures in homeowner and condominium associations.
- Establish a Fining Committee – Both homeowner and condominium associations must establish an independent fining committee. In homeowner associations, the committee must consist of at least three individuals who may not be officers, directors, or employees, or be immediately related to anyone holding such a title. In condominium associations, committee members must be an owner, but cannot be board members or live with board members. Fining committees in condominium associations must be at least two individuals, though odd numbered committees are preferable.
- Prepare Courtesy Letter – Best practice is to issue a courtesy letter to the owner responsible for a violation of the governing documents or rules. This step is optional, but strengthens the association’s case when ultimately levying the fine. The letter should detail exactly what violation occurred, how much a fine may cost, and cite to the document where the restriction or rule is be found. The owner should be given a time frame to cure the violation.
- Board Levies a Fine – To levy a fine, the homeowner or condominium association board must meet at a duly-noticed meeting. Minutes of the meeting should succinctly document the process.
- 14 Day Notice of Appeal Letter – After the board meets to levy a fine, an appeal letter must be sent to the owner permitting the owner to appeal the fine before the fining committee. The letter must be issued at least 14 days prior to the hearing. In addition, the letter should make clear the owner has been fined, provide authority for the fine, and include the cost of the fine.
- Fining Committee Appeal Hearing – Regardless of whether the owner requests to meet before the fining committee at a hearing, it is best practice for the fining committee to meet and affirm the fine. If the owner does request a hearing, the fining committee should allow the owner to state their objection. The fining committee should then vote to confirm or reject the fine.
- Final Fine Letter – Once the fine is imposed, a final letter should be issued detailing the fine, the restriction or rule that was violated, the amount of the fine, and the deadline to pay. The fine may not be due sooner than five days after being imposed.
- Collecting Fines – Fines in homeowner associations are capped at $100 per violation, unless the governing documents specify more or less. Fines in condominiums may not exceed $100 per day. In both homeowner and condominium associations, total fines for a continuing violation may not exceed $1,000, although homeowner associations allow greater fines if the governing documents permit.
In homeowner associations, fines greater than $1,000 may be secured by a lien on the owner’s property. Condominium associations do not permit this remedy, but may suspend an owner’s use of common elements if the fine remains unpaid for more than 90 days. If an owner owes more than $1,000 in fines or other obligations at a condominium association, voting rights may be suspended. Homeowner associations may also suspend use of common elements and voting rights if a fine is unpaid for more than 90 days. In homeowner and condominium associations, a small claims court lawsuit may also be filed to obtain delinquent fines.
Associations must be mindful when levying a fine and carefully follow these steps. If fines were not previously levied for violations, the association should put the community on notice that moving forward fines will be used to enforce the governing documents. A written fining policy available to members will put the community on notice, and may even reduce the likelihood of future violations.
Date: October 8, 2018
Ontario Court Orders Owner To Sell Condominium Unit
In what appears to be a first, an Ontario Court ordered a unit owner to sell the condominium he owned. The owner’s behavior was apparently so egregious, that several injunctions and restraining orders were entered against him. The Court finally ordered this drastic remedy.
Prior to the Court order requiring the owner’s removal and sale of the property, the community suffered from his harassment, abuse, and threatening behavior. It was only after a lengthy period of well documented behavior that included violations of Court orders that the Condominium was able to have him successfully removed from the premises. Peel Standard Condominium Corporation No. 984 v. 8645361 Canada Limited, 2018 ONSC 4339 (CanLII).
A similar case in Florida involved a condominium owner named Beate Kittel-Glass. The Appellate Court found that “between 1986 and 1994, [Kittle-Glass] committed a multiplicity of disorderly acts on the condominium premises that included: indecent exposure, public intoxication, reckless display of a firearm, and assault and battery. Twenty-two police reports were presented detailing Kittel-Glass's misconduct. Evidence was also introduced that an Association subcommittee had found that Kittel-Glass violated 79 condominium rules and had assessed her a total fine of $3,950, calculated at $50 per violation. Kittel-Glass presented no witnesses at trial.” Kittel-Glass v. Oceans Four Condominium Assn., 684 So. 2d 827 (Fla. 5th DCA 1995).
The result of the trial was that she and her agents and guests were permanently enjoined from occupying or entering upon any part of the condominium premises. This was based in part on the Trial Court's finding that Kittel-Glass's misbehavior continued during the existence of the temporary injunction. On Appeal, the Court overturned the Trial Court’s ruling and stated that what essentially amounts to a judicially forced sale or lease of Kittel-Glass's unit is improper. The remedies for violation of Court orders only include fines, and possibly jail. See generally City of Ocala v. Nye, 608 So.2d 15 (Fla. 1992) (eminent domain power can only be exercised by governmental entities to which the state has delegated that power).
The takeaway from the Kittel-Glass case is that the law does not always produce satisfactory results despite lengthy litigation efforts. Even if Kittel-Glass was found in contempt, Courts are reluctant to jail individuals, and will only do so in extreme cases. To deal with nuisance owners who wreak havoc in a community, the Association will need to demonstrate the abusive owner has engaged in persistent, intolerable behavior that has deprived the other owners and/or the Association’s directors, employees, managers and agents of a sense of safety and security. Unfortunately for the Association, this is not a speedy process. Furthermore, Courts may be reluctant to act forcefully.
As more and more people move to Florida, Associations will increasingly need assistance as they take on more human management responsibilities, as opposed to building operation and maintenance. This presents a challenge the law has not given much consideration. Laws will need to evolve as the nature of the role of the Association changes. Given the difficulties in obtaining satisfactory results when faced with a nuisance owner, the Tankel Law Group strongly encourages Associations document the troubled behavior and take quick legal action.
Date: August 17, 2018
Is Your Community Ready for Electric Vehicles?
Recognizing the increasing popularity of electric vehicles (EVs), the Florida Legislature recently enacted a statute providing condominium owners limited independence to install charging stations. Is your Association ready for this evolving trend?
More than half a million plug-in EVs have been sold in the United States over the past ten years, and it is estimated annual sales will continue to drastically rise. EV use has presented a challenge for Association managers and boards who run Condominium and Homeowner Associations. As these vehicles become more mainstream, it is wise to be proactive and set clear policy standards for your EV owning members.
EV owners in Homeowner Associations do the majority of their electric charging at home. For EV owners with private garages and separate metering it’s simple – they plug directly into an outlet or install a charging station. But where do EV owners with a communal parking garage or assigned parking space charge where power is paid for by the community?
Florida’s recently enacted statute, Section 718.113(8), attempts to resolve potential issues that may arise when a member of a Condominium Association who owns an EV seeks to install a charging station on a limited common element, such as their personal parking space. The new law forbids a Condominium Association from prohibiting an owner from installing an EV charging station within the boundaries of the unit owner’s limited common element parking area. That being said, the Statute does allow an Association to adopt a number of rules and restrictions so as not to impair other unit owners’ rights, or force non-EV owners to pay for the expenses and electricity associated with the charging station.
Specifically, the Statute allows an Association to require the EV owner to adhere to applicable building codes, safety standards, and reasonable architectural standards. The placement of the EV charging station cannot cause irreparable harm to Association property, and the electricity consumed by the EV owner must be separately metered and charged only to that unit owner. The EV owner who installs the charging station will be responsible for costs of installation, repair, operation, and maintenance. Finally, the EV owner who installs the charging station will be liable for hazards caused by the station, and for liability insurance or any increases in the Association’s insurance policy as a result of the charging station.
Although we are still in the early days of electric-car adoption, Condominium Associations should be proactive and take advantage of the leeway provided by the Florida Legislature and regulate the use of EV charging stations within a community. Condominium Boards should enact reasonable rules requiring architectural approval, compliance with safety and building codes, and proper insurance.
Forward thinking Condominium Associations may want to consider installing their own charging stations. This would help to ensure uniformity and provide greater control over the location of the charging stations. Such a move would also serve as a high-end marketing point for Associations to portray themselves as environmentally friendly.
Date: August 7, 2018
Guidelines for Association Rules
The “Dog Days” of summer are officially upon us. Rainstorms, 90 degree weather, incessant humidity, and new Condominium and Homeowner Association (HOA) legislation are in full swing. New law is in effect, and worth reviewing for best practices in your community.
Beginning July 1, all changes to Rules and Regulation in HOAs regulated by Chapter 720 must be recorded. Note that this does not apply to Chapter 718 entities. The Legislature, in its infinite wisdom, chose only to require HOAs to record any rule changes. For reasons unknown, it does not require existing rules to be recorded, only new ones.
It is important to understand what is meant by a “Rule.” Generally, it means a restriction on use of the property imposed by the Board of Director, without a membership vote. In Condominium Associations, older communities may have a caveat in the Articles of Incorporation that Rules need to be approved by the members, so be on the lookout. Make sure to understand the basis of the authority to promulgate Rules before doing so. In HOAs, the power to make Rules is often limited to the Common Areas only. A Condominium Association intending to make Rules affecting unit use must mail/distribute and post notice, of the meeting of the Board at which the changes will be considered, at least 14 days in advance of the meeting.
Please note, Rules are separate and apart from Restrictions contained in an Association’s Declaration. It is bad practice to rephrase Restrictions found in an Association’s Declaration and incorporate them into a document called “Rules.” Restrictions in governing documents are voted on by the members and have a higher dignity than mere Rules adopted by a Board. Do not mix apples and oranges, they are two distinct types of regulations.
If your community wants an easy to distribute set of the Rules, and a document containing Restrictions found in the governing documents, separate the two. Create one document containing the Rules, and another document stating, “The following are excerpts from the Declaration, found in Article “X,” and are for quick reference only; see the Declaration for a full list of the Restrictions.”
An additional observation - in older Condominium Associations, the Bylaws occasionally contain a set of “House Rules.” It is not clear where these Rules stand on the hierarchy of enforcement, but if we adhere to the “legal fiction” that anything recorded in the Official Records puts the world on notice of its contents, they have a higher dignity than Board made Rules. The reasons being because these Rules were in place since the inception of the Condominium, and a membership vote is required to change them. Voting by members to impose limits on the behavior within a community will be given deference by Courts and Mediators/Arbitrators.
Date: July 9, 2018
Association Self-Help for Nuisance Dogs
Pets are a ubiquitous part of living in homeowner and condominium associations. While there was once a time when pets, primarily dogs, were highly restricted in associations, today many associations permit dogs as they have become more commonplace and communities have become more friendly to life with four legged friends. However, not all dogs are “good dogs.” When a dog (or cat or bird, see Hillsborough and Pasco County below) creates a nuisance, typically through incessant barking, homeowners and unit owners often turn to the Board of Directors for relief.
An association’s declaration will typically have provisions forbidding “nuisances.” Such a term is rarely defined and can be difficult to enforce. Though Florida Statutes have mediation and arbitration provisions which can be enforced through court orders, the process is slow and offers little relief to those suffering from non-stop barking.
To obtain peace and quiet, we recommend a multi-prong approach to dog barking, including self-help methods associations can take while the Tankel Law Group works to enforce the association’s declaration and rules.
Counties throughout the State have recognized the frustration of those forced to endure endless barking. Local government ordinances now include provisions to allow individuals to easily file complaints under certain circumstances. If the proper steps are taken, counties may impose fines of up to $500 for nuisance dogs. As an added benefit, putting the tools in individuals’ hands helps alleviate the pressure on Boards of Directors to solve barking dog problems. Those individuals seeking relief must be prepared to document the nuisance and file an affidavit attesting to the following:
• Hillsborough County - “A nuisance animal that barks, meows, whines, or howls non-stop for 20 minutes or longer with less than 20 seconds of interruption during that 20 minute time period.”
• Pinellas County - “Makes excessive noises, including, but not limited to, continued or repeated howling, barking, whining, or other utterances. Noises that, on at least two separate dates during a three-day period, are produced for more than one sustained period of at least 15 minutes over the course of eight hours, shall be considered excessive for the purpose of this definition.”
• Pasco County - “It shall be a violation of this chapter for any person who owns, keeps, or harbors a dog or bird, or any person charged with the care, custody, or control of any dog or bird to fail to exercise sufficient care and control of their dog or bird, to prevent it from becoming nuisance.”
“Frequent or continued barking, frequent or continued howling, or making frequent or continued sound or noise, between the hours of 11:00 p.m. and 6:00 a.m., with the exception of dogs housed at commercial businesses.” “Frequent or continued barking, frequent or continued howling, or making frequent or continued sound or noise for periods of ten minutes or more, at any time, with the exception of dogs housed at commercial businesses.”
• Duval County - “Barking habitually, or by making other objectionable animal noises habitually; or by doing any other thing habitually which is so offensive as to create a nuisance.” “At least two separate occurrences within a time period of no more than one month; except that barking habitually, or making other objectionable animal noises habitually, means making the sound persistently or continuously for at least 30 minutes occurring at least three separate times within a period of no more than eight hours. For the purposes of this Section, "persistently" or "continuously" shall mean nonstop utterances for 30 consecutive minutes with interruption of less than 30 seconds at a time during the 30 minute utterances.”
In addition to the barking time limit provisions, many counties require either multiple complaints by separate individuals, or video evidence to substantiate a violation. Affidavits may be found online for specific counties, and will need to be returned to the proper authority. Providing individuals self-help remedies conserves the associations time and resources, and may be just as effective as legal action.
In conjunction with the steps above, the Tankel Law Group recommends consulting with our office to review the association’s documents and ensure the declaration, rules, and regulations are sufficient to enforce legal action should it be necessary.
Tankel Law Group at BABA
The Tankel Law Group was featured at Become A Better Agent's (BABA) January 11, 2018 seminar at The Rusty Pelican in Tampa. Bob and Scott assisted real estate agents interested in buying and selling properties in homeowner and condominium associations. BABA is a real estate professional development program that offers bi-monthly seminars focusing on leading trends within the industry.
Is Speeding a Problem in Your Community? Try Law Enforcement
Like many community associations, you may have traffic issues which can include speeding, the disregard of stop signs and other types of careless and reckless driving. For the safety and enjoyment of your residents, it’s worth examining the options available to control dangerous drivers. Remedies may be different for communities with public streets versus gated communities with private roads, but they both involve the association taking direct action.
Communities with public streets can request local law enforcement to patrol more vigorously, with an increased presence of officers in your community at random times. Florida Statutes Sections 316.640(2)(a) and 316.640(3)(a) grant the sheriff’s office and municipal police departments jurisdiction to enforce the traffic laws on all public streets throughout the county (for the sheriff’s office) and throughout the city limits (for the municipal police department).
Additional sections of the Florida Statutes grant the sheriff’s office and municipal police departments jurisdiction to enforce the traffic laws on private or limited access roads, if there is a written agreement to do so between the community association and either the county or city. Sections 316.006(2)(b) and 316.006(3)(b) govern the written agreements between either the county or city and a community association. The written agreement for traffic control jurisdiction over the private road or roads encompassed by such agreement must provide for reimbursement for the actual costs, for liability insurance and indemnification by the association. Other terms and conditions may be included as well. The law specifically allows the board of directors of a homeowners association to contract to have state traffic laws enforced by local law enforcement agencies on private roads that are controlled by the association by majority vote of the board. Contact your local law enforcement office or community resource officer for more information.
2017 LEGISLATIVE UPDATE
The Legislature, like hurricane season, can have periods of high and low volatility. Just as this year experienced a busy hurricane season, the changes in law for condominium associations was similarly intense.
The Legislature was especially influenced by the actions of a Grand Jury in Miami, where criminal conduct occurred in a condominium, which resulted in changes for all condominiums. Additionally, laws which regulate the preparation and costs of Estoppel Certificates were approved. It remains to be seen whether the changes will improve the governance of such community associations or drive away otherwise qualified persons from volunteering to serve as directors.
The following is a summary of the laws passed during the 2017 Legislative Session which affect Florida condominium and homeowners’ associations.
HB 1237 - APPLIES TO CONDOMINIUM ASSOCIATIONS AS DOES MOST OF THE LEGISLATION
1. Criminal Penalties.
One effect of HB 1237 allows for application of criminal penalties for directors, officers, or managers who receive anything of value, or “kickbacks,” from any person providing goods or services to the Association. It also imposes possible felony charges for forgery of a ballot envelope or voting certificate used in a condominium association election; theft or embezzlement of association funds; and destruction of or refusal to allow the inspection or copy of an official record that is accessible to unit owners within time periods proscribed by law, if the destruction or refusal to permit access is in furtherance of a crime.
2. Legislature as Supreme Court; No More Joint Representation of Association & Management.
The Florida Supreme Court has a set of rules that regulate attorneys. They call for full disclosure when representing clients with possible conflicts of interest. The Legislature now approved a law which prohibits condominium associations from hiring an attorney who represents the association’s management company. This is likely an unconstitutional encroachment on the authority of the Supreme Court, but time will tell if challenged.
3. Official Records.
HB 1237 changed the law regarding access to condominium association official records. Bids for materials, equipment, or services will be considered official records that must be maintained by the association. Also, the law clarified that association members’ authorized representatives have the right to inspect and copy official records. Further, renters of units will have the right to inspect the association’s “bylaws and rules.”
4. Website and Electronic Records Requirement
By July 1, 2018, a condominium association with 150 or more units (the initial draft started with communities over 1000 units) that does not manage timeshare units must post digital copies of various official records on a website. The website must be Internet accessible and the association must ensure the records are password protected so as to only be accessed by unit owners and association employees. The documents must include: all governing documents and amendments; all management agreements, leases, and other contracts to which the association is a party; “summaries of bids” for materials, equipment, or services; the annual budget and any proposed budget; the financial report; and director certifications. In addition, associations must post meeting notices and agendas for membership and board meetings either on the front page of the website or on a separate subpage labeled “Notices.” The association must also upload a copy of any document to be considered or voted on by the members during any membership meeting. Note that while the records requirement part of the statute provides until July 1, 2018 for compliance, the obligation to designate a person or entity with a street or e-mail address on the association’s website for Estoppel Certificate requests commenced July 1, 2017.
5. Financial Reports.
Condominium associations that operate fewer than 50 units are no longer permitted (without a membership vote) to prepare a report of cash receipts and expenditures in lieu of financial statements based on the association’s annual revenue. In addition, unit owners may complain to the Division of Florida Land Sales, Condominiums and Mobile Homes if the association does not furnish a copy of the most recent financial report within 5 business days after receipt of a written request. If the Division finds that the association failed to deliver the financial report as required, it may require the association to provide a copy of the report to the owner within 5 business days. If the association fails to comply with the Division’s notice, it may not waive the financial reporting requirement (presumably for the following year). The change also has a requirement that an association provide an annual report to the Division containing the names of all financial institutions with which it maintains accounts and allows an association member to request that information from the Division.
6. Prohibition on Use of Debit Cards.
The law prohibits the use of a debit card issued in the condominium association’s name, or billed directly to the association for the payment of any association expense. Note, this law doesn’t regulate credit cards, which can result in greater liability due to availability of credit versus only what is in an associations’ bank account. If a person uses a debit card issued in the association’s name or billed directly to the association for payment of an expense that is not the association’s lawful obligation, he or she may be prosecuted for credit card fraud.
7. Director Term Limits.
Section 718.112 of the Condominium Act was amended to implement a term limit for association directors. The new legislation provides that a board member may not serve more than four consecutive 2-year terms (so a total of 8 consecutive years), unless approved by an affirmative vote of two-thirds of the total voting interest of the association, or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.
8. Recall of Directors.
Prior to the amendment, the condominium association’s board of directors were required to hold a meeting within 5 business days of receipt of a written recall petition or the meeting at which the members voted to recall the director to determine whether to certify the recall. If the board voted to not certify the recall, the association was required to file a petition for recall arbitration with the Division. A Division arbitrator would then determine whether the board’s decision to not certify the recall was proper.
The amendment deleted the portion of the statute which provided for the board’s determination to certify a recall. Now, it is unclear what the association must do if it deems a recall effort to be invalid. Does the Legislature intend for recall efforts to be presumed valid, and if a recalled director wishes to challenge the recall, he or she must file a petition for arbitration with the Division? The amendment provides little guidance as to what the board must do if it considers the recall effort to be invalid (for example, for failure to obtain a majority vote of the membership).
9. Conflicts of Interest.
Condominium associations are now prohibited from employing or contracting with a service provider that is owned or operated by a board member or officer, any person who has a “financial relationship” with a board member or officer, or a relative within the third degree of consanguinity by blood or marriage of a board member or officer. Relatives within the third degree of consanguinity include: children – great grandchildren; parents – great grandparents; siblings; aunts, uncles, nieces and nephews. First cousins are not within the third degree of consanguinity. The amendment includes an exception which states that it does not apply to any service provider for which the board member or officer owns less than 1 percent of the equity shares.
Additionally, directors and officers of a condominium association must disclose any activity that may reasonably be construed to be a conflict of interest. There is now a procedure for a director or officer to who may have a conflict of interest, which provides that the director or officer may make a presentation on the issue but must excuse himself or herself from the board’s discussion on the issue, and abstain from voting. If the director or officer fails to follow the required disclosure procedure, he or she is deemed removed from office and the contract (if any) may be terminated with the consent of 20 percent of the voting interests in the association.
The law eliminated the requirement for the Division to employ full-time attorney arbitrators and instead established a procedure for independent certified attorneys to preside over arbitration proceedings. Arbitrators are now required to conduct a hearing within 30 days of being assigned a petition unless the petition is withdrawn or a continuance is granted for good cause. Further, the arbitrator is required to render a written decision within 30 days after the hearing. Failure to do so may result in cancellation of the arbitrator’s certification.
11. Acquisition of Units in Foreclosure.
The law prohibits any party contracting to provide maintenance or management services to an association managing a residential condominium after transition of control of the association, and any officer or board member of such party, from purchasing a condominium unit or taking a deed-in-lieu of foreclosure of a lien for nonpayment of assessments.
12. Cancellation of Management & Maintenance Contract.
If 50 percent or more of the units in a residential condominium are owned by a party contracting to provide maintenance or management services to an association, or by an officer or board member of any such party, after transition of association control (turnover), the contract may be cancelled by majority vote of the unit owners other than the contracting party.
13. Voting Rights.
Prior to the amendment, a condominium association could suspend a member’s voting rights if he or she were 90 days’ delinquent in the payment of any monetary obligation due to the association. The amendment requires the monetary delinquency to exceed$1,000.00 and be more than 90 days’ delinquent. In addition, the amendment requires the association to provide proof of the obligation 30 days before the suspension takes effect. Further, the amendment provides that a receiver may not exercise voting rights of any unit owner whose unit is placed in receivership.
ESTOPPEL CERTIFICATE-APPLIES TO ALL ASSOCIATIONS
1. Estoppel Response Time & Designation of Address on Website.
The law requires the association to respond to an estoppel request within 10 business days after receiving a written or electronic request from a unit owner or mortgagee, or their representative. Under previous law, the estoppel certificate request had to be made in writing, and the association had 15 days to respond. The statute did not specify whether the days were business days or calendar days. The amendment also requires the association to designate on its website (if it currently has one) a person or entity with a street or email address for receipt of estoppel certificate requests. If the association fails to deliver an estoppel certificate within 10 business days after receipt of a request, it may not charge a fee for the preparation and delivery of the certificate.
2. Content of Estoppel Certificate.
Prior to the amendments, only limited information regarding the assessments and other charges due to the association was required to be included in the estoppel certificate. The amendment established a form and prescribes the content that must be included in all estoppel certificates. The law requires that the certificate include the following information: