Community associations in Florida contending with fraudulent emotional support animal (ESA) requests may get some relief. Governor DeSantis signed SB 1084 into law on June 23, 2020. The new law prohibits discrimination from housing providers to someone requiring an ESA, but also prohibits health care practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.
While the 2020 Florida Legislative session was positioned to be a very active one, the COVID-19 pandemic seems to have affected the number of bills passed by the legislature. Below we have provided brief summaries of the bills passed by the Florida Legislature which impact Florida community associations. It is important to note that at this time only a couple of the adopted bills have been signed by the Governor.
SB 476: Law Enforcement Vehicles. The approved bill includes provisions which preclude a condominium, cooperative, and homeowners’ associations, respectively, from prohibiting a law enforcement officer from parking his or her assigned law enforcement vehicle in certain areas. The effective date of this bill is 2/21/2020.
SB 140: Fireworks. The approved bill relates to the use of fireworks and defines the term “designated holiday”. The bill provides for an exemption for the use of fireworks solely and exclusively during a designated holiday and prohibits homeowners’ associations from promulgating certain rules or regulations restricting same. The effective date of this bill is 4/8/2020.
This year’s legislative session is well underway, and there are a handful of bills that community associations should keep an eye on. Our firm is tracking the following bills that may have an impact on community associations, if passed:
HB 209 /SB 1084: Emotional Support Animals
Similar to federal law, Florida law requires reasonable accommodations for those individuals with service animals, but fails to provide guidelines for other assistance animals, such as emotional support animals (ESA). This bill amends Florida’s Fair Housing Act by prohibiting discrimination in housing against individuals with a disability or a disability-related need who require an ESA. The bill also prohibits housing providers from charging additional fees pertaining to an ESA. The bill specifies that the individual requiring the ESA is liable for any damages to the premises or to another person resulting from the ESA. This bill also allows a housing provider to request supporting information regarding the individual’s disability or disability-related need for the ESA, and creates a new cause for disciplinary action against a health care practitioner’s license for providing supporting documentation for an ESA to those whom they haven’t treated. Finally, the bill creates criminal liability for providing false or fraudulent documentation in support of an accommodation request for an ESA. If passed, this bill will be effective July 1, 2020.
This legislation proposes a vast amount of modifications to Chapters 718, 719 and 720, Florida Statutes. In part, the bill allows for the removal of outdated language in community association governing documents, confirms when board member term limits are considered to begin to run, and clarifies that owners need not provide a reason for inspecting association official records. If passed, this bill will be effective July 1, 2020.
The issue of fraudulent emotional support animal requests is drawing significant attention at both the state and federal levels with the Florida Legislature and the U.S. Department of Housing and Urban Development.
As this year’s legislative session gets underway in Tallahassee, HB 209 seeks to protect individuals with legitimate disability-related needs for emotional support animals from discrimination or having to pay extra fees. However, if passed, it would also authorize landlords to request certain written documentation and prohibit the falsification of written documentation or other misrepresentations.
The bill, which is currently undergoing committee review, would make it a second-degree misdemeanor for the falsification of written documentation for an emotional support animal or the willful misrepresentation of qualifications for an ESA. It addresses the criteria for the written documentation that must be submitted from healthcare providers in support of ESA requests, and would also require the state’s Department of Health to adopt rules regarding the format of the required written documentation. Significantly, the bill would also mandate that the treatment provided must go beyond merely writing a letter.
The Florida law mandating condominium association websites went into effect at the start of 2019. By now, all condominium associations with 150 units or more (excluding timeshares) should have launched a website that complies with the new law. Those that have not already created their website should do so immediately in order to avoid any potential repercussions.
Under the new law, password-protected condominium websites for the exclusive access by association members must include the recorded declaration of condominium and bylaws along with any amendments to each, the articles of incorporation filed with the state, and the association’s rules and regulations. The website must also include a list of all executory contracts and transactions to which the association is a party or under which the association or unit owners have an obligation.
After bidding for related materials, equipment or services, the website must include a list of bids received by the association within the past year. Summaries of bids in excess of $500 received from vendors during the past year for materials, equipment or services must be maintained on the website for one year. In lieu of summaries, however, the association may post complete copies of those bids.
The firm’s Nicole R. Kurtz authored an article that was featured as the guest commentary column in today’s edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper. The article, which is titled “New Laws Spurring Florida Community Associations to Implement E-Voting, Websites,” focuses on the recent changes in state law allowing community associations to implement electronic voting and requiring condominium associations with 150 units or more to have a website containing digital copies of certain official records. Her article reads:
. . . The condominium association website laws mandate that compliant websites should have been operational as of Jan. 1 of this year. The laws call for association websites that are accessible only to unit owners and employees where certain notices, records and documents are posted. These must include the declaration of condominium, bylaws, articles of incorporation, rules and regulations of the association, as well as all executory contracts or documents to which the association is a party, or under which the association or unit owners have an obligation or responsibility.
Condominium association websites must also feature the association’s annual budget and proposed annual budget; financial reports; monthly income or expense statements; copies of bids, or summaries of bids, exceeding $500; association meeting notices, and board member certification forms.
HB 153 – Landlords and Tenants – § 83.51, Fla. Stat.:
- Requiring landlords to provide their tenants with a physical copy of any restrictive covenants governing the premises and occupancy of the premises at the time the landlord and tenants execute a rental agreement.
- Requiring landlords to provide their tenants with written notice by certified mail of any changes to the covenants or the enforcement of the covenants within 10 business days.
- If passed, this law would become effective July 1, 2019.
HB 155 – Homeowners’ Association Recalls – § 720.303, Fla. Stat.:
- Adding a qualification for recalls, whereby directors may be recalled and removed from office by a majority of the total voting interests who physically reside in the community. Previously, the requirement to physically reside in the community was not in place.
- If an association’s declaration, articles of incorporation or bylaws specifically provide that members may also recall and remove directors by a vote taken at a meeting, such special meeting of the members may be called by 10 percent (10%) of the voting interests who physically reside in the community. Previously, the requirement to physically reside in the community was not in place.
- If passed, this law would become effective July 1, 2019.
As the 2019 Florida legislative session gets underway, all indications are that this will be a very busy year for new legislation affecting the more than 48,000 community associations in the state. Here are some of the bills that my fellow community association attorneys at our firm and I will be monitoring very closely:
HB 153 – Requires landlord to provide physical copy of any restrictive covenants that govern premises to tenant at specified time; requires written notice be provided to tenant of any changes to covenants within specified time.
HB 155, known as the Community Recall Act – Amend Section 720.303, F.S. to require owners living in an HOA to physically reside in the community in order to vote to recall a member of the board of directors.
HB 565 – Removes housing discrimination as cause of action for relief & damages stemming from violations of Florida Civil Rights Act of 1992; revises timeframe & conditions under which aggrieved person may commence civil action to enforce specified rights; authorizes, rather than requires, civil action after alleged discriminatory housing practice; authorizes civil action regardless of whether aggrieved person filed complaint with commission; prohibits aggrieved person from filing specified action in certain circumstances; provides exception.
HB 647 – Requires certain associations to post certain signs or symbols on buildings; requires State Fire Marshal to adopt rules governing such signs & symbols; provides for enforcement; revises provisions relating to evidence of association compliance with fire & life safety code; revises provisions related to retrofitting.
The Florida Marketable Record Title Act (MRTA) requires HOAs to reaffirm and renew their covenants and restrictions 30 years after they were originally recorded in the local county records. MRTA was created to extinguish claims to property which are at least 30 years old in an effort to stabilize property law by clearing old defects from the chains of title to real property, limiting the period of record searches, and clearly defining marketability by extinguishing old interests of record.
One of the unintended consequences of the Act is that the declarations of covenants, conditions and restrictions recorded by HOAs may be set to expire after 30 years of the date in which they were recorded. Keep in mind that for most HOAs, if the residents are no longer compelled to act in accordance with the community’s declaration, the results could be catastrophic for the associations’ administration and finances.
The Florida legislature passed a law earlier this year to update the process for HOAs to renew and preserve their covenants and restrictions under MRTA in order to keep them in place after the 30-year term. Under the new law, which is now in effect, at any time during the 30-year period following the effective date of the title for the covenants and restrictions of a community association, the association may preserve and protect those covenants or restrictions from extinguishment by following more simplified filing procedures which include the following:
Earlier this year the Florida legislature passed an important update to the new condominium association website requirements that the state’s lawmakers codified during the 2017 legislative session. The most important change was to extend the deadline for associations to launch their websites from July 1, 2018 to Jan. 1, 2019, providing condominiums and their property managers with an additional six months to develop and launch their sites.
In addition, the new website requirement no longer applies to multi-condominium associations with combined totals in excess of 150 units if none of individual condominium properties operated by the association contains 150 or more units.
The 2018 statutory amendments also changed some of the posting requirements to allow for the posting of summaries of certain documents rather than the documents themselves. The official records that must be posted in the new websites also now include monthly income or expense statements as well as all bids in excess of $500 received from vendors during the past year for materials, equipment or services.