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2021-2022 Legislative Update: What Passed?

Several bills that will impact community associations throughout the state were enacted into law this year. The following are summaries of community association-related bills that the Governor approved:

Senate Bill 72: Civil Liability for Damages Relating to COVID-19

Florida-legislature2-300x169The Florida Legislature made Covid-19 civil liability protections for businesses, healthcare providers, non-profits, and other organizations a major priority for the 2021 session, and on March 29th it became the year’s first bill signed into law by Gov. Ron DeSantis. With the enactment of Senate Bill 72, creating Section 768.38, Florida Statutes, businesses are now afforded protection from civil liability claims stemming from the Covid-19 virus as long as the business made a good faith effort to substantially comply with government-issued health standards or guidance at the time the cause of action would have accrued.

Individuals seeking to file claims for coronavirus-related injuries or death against covered entities will need to provide an affidavit from a medical professional asserting that they contracted the virus at the corresponding property. The claims must also demonstrate “clear and convincing evidence” of “gross negligence” in order to establish its validity. In order to prevail, plaintiffs will also be required to demonstrate in court that a defendant did not make a good faith effort to comply with public health guidelines.

The law also sets a one-year statute of limitations for the filing of lawsuits from either the date of death, hospitalization or the Covid-19 diagnosis involved in the claim, whichever is latest. The new law applies to claims that accrued before the enactment of the law and within one year following the Governor’s March 29 signing, but it does not apply to lawsuits that have already been filed.

Senate Bill 630: Community Associations

Section 627.714, Fla. Stat., has been revised to provide that if a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the condominium association.

Section 718.103, Fla. Stat., has been modified to clarify that bids related to work to be performed for the condominium association, or for materials, equipment or services are to be retained for a period of 1 year after receipt of the bid. Additionally, renters of units in a condominium have a right to inspect and copy the condominium’s declaration, in addition to the association’s by-laws and rules and regulations. Revisions have also been implemented to this statutory section specifying that condominium associations managing 150 units or more are to retain certain official records on a website or an application that can be downloaded on a mobile device.

Section 718.112, Fla. Stat., has been revised to add a right for the association to extinguish a discriminatory restriction as provided under Section 712.065, Fla. Stat. (a similar amendment was incorporated into Sections 719.106 and 720.3075, Fla. Stat., governing cooperatives and homeowners associations, respectively). Additionally, the previously enacted 8-year term limitation applicable to condominium association directors has been revised to clarify that such limitation applies only to board service that occurs on or after July 1, 2018. The limitation on the amount of transfer fees has been increased from $100 to $150, and such amount may be adjusted every 5 years in accordance with increases to the Consumer Price Index as further specified in the statute. The Association’s right to charge prospective lessees a common element security deposit may now be established in the Articles of Incorporation, in addition to the declaration or by-laws. As it relates to recalls, the statute has now been amended to allow for the filing of certain court action, as established in amendments to Section 718, 1255, Fla. Stat., in addition to the previous requirement that such actions take the form of arbitration actions. This statutory section has also been revised to provide for broader options of alternative dispute resolution pertaining to residential condominiums, as provided for in the revised Section 718.1255, Fla. Stat., instead of limiting same to mandatory nonbinding arbitration (similar amendments with regard to recalls and alternative dispute resolution have been incorporated into Section 719.106, Fla. Stat., as they relate to cooperatives, and to Section 720.303, Fla. Stat., as it relates to homeowners association recalls, and Section 720.311, Fla. Stat., with regard to alternative dispute resolution for homeowners associations). Lastly, the amendments have removed the provisions restricting the ability of an association to contract with a service provider owned or operated by a board member, or a 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.

Section 718.113, Fla. Stat., has been amended to include rights for the installation of natural gas fueling facilities or stations within condominiums, similar to those existing in such section with regard to electronic vehicle charging stations. Additionally, a provision has been added to this statutory section providing that the association may install or make available such charging or fueling stations in the common elements, and same shall not constitute a material alteration to the common elements.

Section 718.1255, Fla. Stat., has been revised to provide for additional options for resolution of disputes related to condominium associations. Revisions have been made to the statutory section to provide for alternative dispute resolution, including mediation and nonbinding arbitration. Additional revisions to such section include changes to the steps that are to be taken prior to the institution of court litigation related to a dispute – other than an election or recall dispute; such changes require the party to either petition the division of condominiums for nonbinding arbitration or presuit mediation (the parties may agree to binding arbitration).

Chapters 718, 719 and 720, Fla. Stat., have been revised to expand upon the Emergency Powers available to an association (see Sections 718.1265, 719.128 and 720.316, Fla. Stat., governing condominiums, cooperatives and homeowners associations, respectively). The amendments to such sections include expanding the circumstances in which associations may exercise emergency powers to include responding to injury caused by or anticipated in connection with an emergency as defined in Section 252.34(4), Fla. Stat. Revisions to the section further include authority to conduct committee meetings and elections by telephone, real-time videoconferencing, or similar real-time electronic or video communication. The changes further include authority for the board to declare certain portions of the condominium or association property to be unavailable for entry or occupancy, based upon advice of public health officials, as well as the other officials previously included within the statutory section. The board’s powers to contract to mitigate against damage are expanded to allow for action to contract for mitigation of injury or contagion. Similarly, the board’s emergency powers have been expanded to allow for the association to be able to contract, on behalf of the unit owners, for items or services for which owners would otherwise be individually responsible, but which are necessary to prevent further injury or contagion, including ability to provide for sanitizing of the condominium or association property. The amendments to this statutory section do include a new provision which restricts the association’s ability to prohibit unit owners, tenants, guests, agents, or invitees of a unit owner from accessing the unit and the common elements and limited common elements appurtenant thereto for the purposes of ingress and egress from the unit and when access is necessary in connection with the sale, lease or other transfer of title of a unit, or the habitability of the unit or for the health and safety of such person unless a governmental order or determination, or a public health directive from the Centers for Disease Control and Prevention, has been issued prohibiting such access to the unit.

Section 718.202, Fla. Stat., pertaining to sales or reservation deposits prior to closing, has been amended to further clarify the limited purposes for which developers may use such funds.
The provisions of Section 718.303, Fla. Stat., pertaining to the imposition of fines or suspension of use rights, have been amended to provide that a fine imposed pursuant to such section is due 5 days after notice of the approved fine is provided to the unit owner and, if applicable, to any tenant, licensee or invitee of the unit owner. Prior to the amendment, the due date was 5 days after the date of the committee meeting at which the fine is approved (a similar revision has been incorporated into Section 720.305, Fla. Stat., as it relates to homeowners associations).

Section 719.103, Fla. Stat., pertaining to cooperatives, has been amended to clarify that an interest in a unit is an interest in real property.

Section 720.301, Fla. Stat., has been revised to exclude the rules and regulations of a homeowners association from the documents that comprise the defined category of “Governing Documents”.

Section 720.303, has been amended to allow for the establishment of procedures for posting notice of board of director notices on the association’s website or an application that can be downloaded on a mobile device. The provisions of this section pertaining to official records for homeowners associations have further been amended to specify that ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, must be maintained for at least 1 year after the date of the election, vote or meeting. Additionally, with regard to official records to be maintained by homeowners associations, this section has been amended to provide that information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents is not accessible for inspection by members of the association or parcel owners. The provisions of this section were further amended to modify the nature of the disclaimer to be incorporated into a homeowners association’s financial reports with regard to whether the association’s budget provides for fully funded reserve accounts and to revise provisions regarding circumstances in which reserves are established by developers and the manner by which developers may be exempted from having to contribute to reserves, association operating expenses or other assessments related to the developer’s parcels during the period of time in which the developer has agreed to fund certain association budgetary deficits.

Section 720.306, Fla. Stat., has been revised to establish restrictions regarding the enactment of amendments prohibiting or regulating rental agreements adopted after July 1, 2021, in homeowners associations consisting of more than 15 parcels, providing that such amendments will only apply to parcel owners who acquire title to the parcel after the effective date of the governing document or amendment or to parcel owners who consent individually to the governing document or amendment. Notwithstanding the foregoing, an association may amend its governing documents to prohibit or regulate rental agreements for a term of less than 6 months and may prohibit the rental of a parcel for more than three times in a calendar year, and such amendments shall apply to all parcel owners. The amended provisions further clarify the types of “changes in ownership” that relate to the newly adopted statutory provisions. This act took effect on July 1, 2021.

Senate Bill 56: Community Association Assessment Notices

The new law makes changes to the notice requirements of foreclosure actions for condominiums. Specifically, the changes require associations to send a notice to owners of unpaid assessments before an account is sent to a law firm for collections:

d) An association may not require payment of attorney fees related to a past due assessment without first delivering a written notice of late assessment to the parcel owner which specifies the amount owed the association and provides the parcel owner an opportunity to pay the amount owed without the assessment of attorney fees. The notice of late assessment must be sent by first-class United States mail to the owner at his or her last address as reflected in the association’s records and, if such address is not the parcel address, must also be sent by first-class United States mail to the parcel address. Notice is deemed to have been delivered upon mailing as required by this paragraph. A rebuttable presumption that an association mailed a notice in accordance with this paragraph is established if a board member, officer, or agent of the association, or a manager licensed under part VIII of chapter 468, provides a sworn affidavit attesting to such mailing. The notice must be in substantially the following form:

NOTICE OF LATE ASSESSMENT

RE: Parcel . . . of . . . (name of association) . . .

The following amounts are currently due on your account to . . . (name of association) . . ., and must be paid within 30 days after the date of this letter. This letter shall serve as the association’s notice to proceed with further collection action against your property no sooner than 30 days after the date of this letter, unless you pay in full the amounts set forth below:

Maintenance due . . . (dates) . . . $. . .
Late fee, if applicable $. . .
Interest through . . . (dates) . . .* $. . .
TOTAL OUTSTANDING $. . .*Interest accrues at the rate of . . . percent per annum

Accordingly, community associations interested in sending delinquent accounts to collections must provide a copy of the ledger, deed and now also a copy of the above-described “Notice of Late Assessment” first issued by the association directly to the owner(s). Additionally, while condominium owners previously had thirty days from the issuance of a demand letter to bring their account current prior to an association proceeding on their account under Chapter 718, Florida Statutes, the new law now provides condominium owners with forty-five days – which is the same duration provided to homeowners under Chapter 720, Florida Statutes. This law became effective on July 1, 2021.

House Bill 463: Community Association Pools

This bill pertains to community association pools. More specifically, it, in large part, amends Chapter 514, Florida Statutes, which regulates public swimming and bathing facilities. The bill provides that pools serving homeowners’ and other property association that have 32 or fewer units or parcels, and which are not operated as public lodging establishments, are exempt from most supervision otherwise required by the Department of Health and Chapter 514, Florida Statutes. However, such exemption does not apply to the supervision necessary from the Department of Health to ensure water quality, and safety features, does not remove the Department of Health’s authority to deny, suspend or revoke permits, or to seek an injunction, for certain violations of Chapter 514, Florida Statutes. This bill became effective as Florida law on July 1, 2021.

Senate Bill 1966: Department of Business and Professional Regulation

This bill amends certain board eligibility requirements for condominium association, budgetary requirements for condominium and cooperative associations, and authorizes the Division of Florida Condominiums, Timeshares, and Mobile Homes to adopt rules regarding the submission of complaints against a condominium association.

With regard to board eligibility, the financial eligibility to be a candidate for a condominium association board, as listed in Section 718.112, Florida Statutes, has been modified, such that candidates for the board cannot be delinquent in assessments to the association. As such, a candidate’s delinquency in fines or other monetary obligations owed to the Association can no longer be a determining factor for eligibility to serve on the board. Further, the bill clarifies that a candidate is considered delinquent in the payment of assessments to the association if payment is not made by the assessment’s due date, as specifically identified in the declaration of condominium, bylaws, or articles of incorporation. If a due date is not listed within such governing documents, then the due date is to be the first day of the assessment period. It is worth noting that this bill did not amend the standard for officers or directors who are required to abandon their office in light of delinquency; officers or directors who are more than 90 days delinquent in the payment of either assessments or monetary obligations to the association remain required to vacate their office on the board.

With regard to budgetary modifications, the bill clarifies that condominium and cooperative associations must now adopt their annual budgets at least 14 days before the start of the association’s fiscal year. Further, if the board fails to do so for a second time, it shall be deemed a minor violation and the prior year’s budget shall continue in effect until a new budget is adopted.

House Bill 649: Petition for Objection to Assessment

House Bill 649 was approved by the Governor, amending Section 194.011, Florida Statutes, to affirm the standing of a condominium, cooperative or mobile homeowners association (not homeowners associations governed by Chapter 720, Florida Statutes) to challenge ad valorem tax increases on behalf of its members in a single joint filing if approved by the Board of Directors. Additional statutory amendments through this Bill include specifying requirements for the content, delivery, and posting of certain association notices, provide for judicial review by certain associations, appealing decisions, and representing unit or parcel owners in certain proceeding, as well as other related procedural and substantive changes. The Bill was signed into law on June 29, 2021, and became effective as of July 1, 2021.

House Bill 483: Electronic Legal Documents

House Bill 483 was signed into law amending Florida Statutes Chapter 117, regarding Notaries Public, among other statutes. The amendment modifies the definition of “Online notarization” to include the performance of a notarial act using electronic means in which any witness appears before the notary public by means of audio- video communication technology. Last year the statute was amended to provide procedures by which signatories could appear online before a notary via audio-video communication technology. The statute now provides that supervising the witnessing of an electronic record by an online notary public is a notarial act, and clarifies that an online notary public may supervise the witnessing of electronic records by complying with the required online notarization procedures, and using the same audio-video communication technology used for online notarization by a principal. The statute previously did not specify that the witnesses were subject to the same procedures as the principal. The amendment clarifies that certain procedures are required if fewer than two witnesses are in the presence of the principal signatory in certain circumstances, and revises the statutory form for a number of legal documents to include the means of notarization. The revised statutory forms include: the form of affidavit for acceptance of and reliance upon a power of attorney (s. 709.2119, F.S.); the notice of election relating to the descent of homestead property (s. 732.401, F.S.); the self-proof of a will or codicil (s. 732.503, F.S.); statutory forms relating to the disposition of certain assets at death (s. 732.703, F.S.), and the form of a petition of summary relief for the sale or transfer of certain property owned by an absentee (s. 747.051, F.S.). The bill was signed into law on June 29, 2021, and is remedially effective as of January 1, 2020.

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