DO NEW LAWS PROVIDE UNINTENDED CONSEQUENCES?

Posted On: August 7, 2013 , By Roberto C. Blanch

The recent session of the Florida legislature produced a series of new laws affecting community associations in Florida. However, often times the creation of new laws have unintended consequences that could not be foreseen.
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One example of the foregoing relates to the provisions of Section 718.112(2)(d)2, Florida Statutes, governing the qualifications of candidates seeking to be elected to a condominium association's board, which were modified by HB 73. Prior to July 1, 2013, a candidate seeking to be elected to a condominium board was required to meet certain procedural thresholds established by the statute and statutory eligibility criteria included in the above-enumerated statute. Such eligibility criteria provided that the following individuals could not be listed on a ballot for a condominium election: (i) a person who has been suspended or removed from the board by the Division under Chapter 718, Florida Statutes; or (ii) a person who is delinquent in the payment of a fee, fine or special or regular assessment owed to the association for more than 90 days. However, after July 1, 2013, the second prong of the foregoing criteria was revised to preclude condominium election ballots from including the names of individuals who are delinquent in the payment of monetary obligations due to the association. Such legislative change broadened the scope of the types of debts that may disqualify an individual from being considered for condominium board election. Prior to July 1, 2013, a candidate would be ineligible if he was delinquent by more than 90 days in his obligation to pay the association a fee, fine or special or regular assessment. Now, the 90 day requirement has been eliminated and the debt has been expanded to include any "monetary obligation" owed to the association.

However, in those associations where there is no requirement for directors to be unit owners, it would be possible to have a non-unit owner - with no obligation to pay assessments to the association - run for election - whereas a unit owner who is delinquent in his monetary obligations to the association may not do so. Additionally, while a sitting director may not be considered disqualified from the board until he has been delinquent in his payment of monetary obligations to the association for more than 90 days, the tolerance for a candidate is significantly lower. The foregoing issues present interesting questions. For instance, in those condominiums with no requirement for directors to be unit owners, does it make sense to remove the requirement for unit owners to be current on their monetary obligations to the association? Additionally, would it not make sense to disqualify directors from the board the moment they become delinquent, as is the case with regard to the consideration of a candidate as ineligible for election to the condominium association board? Additionally, was it intended for all possible monetary obligations owed to the Association to serve as the basis for a potential disqualification from eligibility to run for election to the board? For instance, should the eligibility also extend to those owners that may have monetary judgments entered against them by the association, albeit not related to their assessments, fines or fees?

The foregoing illustrates that new laws may not always eliminate problems or questions related to condominium governance but may create a new line of issues or uncertainties. This result highlights the importance of seeking counsel from community association attorneys with regard to the new laws affecting your community association and the impact that such laws might have.