By Deborah Goonan, Independent American Communities
Florida
Several bills have been proposed in the Sunshine State, and some of them are gaining traction in the Legislature (noted as Active), while others are not (noted as inactive) as of the date this post.
HB 377 (FL) (Inactive)
This bill would amend the Homeowners Association Act (FL 720). It features several consumer-friendly provisions include prohibiting the HOA from legal representation by the same attorney that represents the association’s management company, creating a $500 per day statutory penalty (up to 30 days) for failure of the association or manager to provide timely access to records, and removing the right of an HOA to file a lien on a property for unpaid fines exceeding $1,000. The bill would also expand the duties of Department of Business and Professional Regulation (DBPR) to arbitrate certain disputes between associations and homeowners.
http://www.flsenate.gov/Session/Bill/2018/00377
HB 841 / SB 1274 (ACTIVE)
Even as consumer advocates have tried to promote HB 377 and HB 873 / SB 1238, the community association industry is working hard to undo most of the consumer friendly amendment to the condo statutes last year. (See HB 1237 from 2017)
The bill’s proponents seek to remove conflict of interest provisions prohibiting an association from being represented by the same attorney that represents their management company. The bill proposes giving the association 10 days, instead of 5 days, to produce records, and would allow board members to communicate about association business by e-mail rather than at an open board meeting. Voting must still take place at a meeting, but owners in attendance would lose the benefit of hearing a discussion or making comments prior to the vote.
The industry also seeks to make the Distressed Condominium Relief Act permanent. (It is set to expire as of July 1, 2018). The DCRA allows “bulk buyers” to assume all the rights of the former or original developer, but without assuming any liabilities, such as the obligation to correct construction defects or to make up for deficient reserve accounts that should have been funded by the previous developer. Although promoted as a way to “save” struggling condo associations, the effect of DCRA is to create perverse incentives for scavengers seeking to capitalize on termination, conversion, or redevelopment of troubled condo associations.
Although HB841 is also intended to “clean up” vague and “flawed” provisions in last year’s HB 1237, the amendments noted above are troublesome for condo owners.
The bill faces opposition from a consumer advocacy group in South Florida, The Naranjitas of Reform Florida’s Future.
Jan Bergemann’s opinion on HB 841 amendments.
http://www.flsenate.gov/Session/Bill/2018/01274
HB 873 / SB 1238 (Last actions Jan 9 and Jan 11, 2018)
This bill is intended to mirror last year’s HB 1237, he “Condo Crime Bill,” that is now the law in Florida. It would extend similar consumer protections for residents of homeowners’ associations (HOAs) which are governed under Statute 720. The bill creates criminal penalties for certain offenses, such as failure to produce access to official records of the association, engaging in kickback schemes, or tampering with election ballots.
Likewise, the bill proposes prohibiting the HOA from legal representation by the same attorney that represents the association’s management company, and creates disclosure requirements for conflicts of interest involving board members and service contractors for the HOA.
http://www.flsenate.gov/Session/Bill/2018/01238
HB 617 / SB 266 (Last actions Feb 1, 2018 and Jan 11, 2018)
These companion bills are being promoted by community attorneys who want to keep the party going when it comes to deed restricted communities. The bill continues to chip away at the Marketable Record Title Act (MRTA), a law that has been amended several times to make it easier for HOAs to preserve or revitalize Covenants and Restrictions (CC&Rs).
Current law allows an HOA to renew its CC&Rs prior to the expiration date, subject to a two-thirds vote of the board. The vote must take place at an open meeting, with advance notice to all members. Members are not authorized to vote on the matter. (In a previous version of MRTA, a membership vote was also required.)
The current bills would do away with a board vote and advance notice to members. It would simply require the board to annually review the status of their covenants, and then, if they wish to extend them, to file a standard form with the County noting the HOA’s intent to continue their CC&Rs for another 10 years.
The bill would also allow non-HOA communities and commercial HOAs to revitalize expired Covenants by obtaining a simple majority vote of property owners in favor of the CC&Rs, and filing applicable paperwork and forms with the County.
Both bills create serious Constitutional issues with regard to private property rights, especially for owners and residents that actively sought to reside in a non-restricted community. Concerned citizens should contact their state legislators and committee members and urge them to reject these bills.
For the history of MRTA, see previous post here.
https://www.flsenate.gov/Session/Bill/2018/00617
http://www.flsenate.gov/Session/Bill/2018/00266
HB 625 / SB 1768 (Inactive)
This bill would effectively privatize DBPR’s oversight of condominium and homeonwers’ associations, by creating an Office of Community Association Hearings, and allowing the Division to certify “community association hearing officers” that would not be agency staff members or state employees.
Critics fear that the use of non-employed hearing officers would create a market for associations to shop for dispute resolution professionals that tend to favor the rights of repeat clients. (Homeowners and condo associations)
http://www.flsenate.gov/Session/Bill/2018/00625
HB 123 / SB 1366 (Inactive)
The “Stand Up for Seniors Act” would require 55+ associations to take steps to investigate and impose penalties upon a person who engages in bullying or harassment.
While this bill appears to be well-intentioned, it creates a role for the association board that is akin to a fair housing agency. Putting volunteer homeowners (or worse, a developer controlled board) in the position of evaluating complaints and enforcing policies would put the association in the position of a state actor, yet without judicial due process requirements.
Thus, granting an association unchecked, unilateral authority to impose penalties for harassments would create a private community environment ripe for abuse.
http://www.flsenate.gov/Session/Bill/2018/01366
SB 1400 / HB 773 Florida Vacation Rental Act (ACTIVE – Last action Feb. 14, 2018)
Proponents seek to override all local ordinances regulating or prohibiting vacation rentals. Instead, they want a state law that requires licensing for vacation rental properties.
A very controversial bill.
http://www.flsenate.gov/Session/Bill/2018/01400
HB 1061/SB 1432 Condominium Fire and Life Safety Systems (Last action FEb 5, 2018)
Community Association advocates seek to further delay the deadline for older condominium associations to install — or upgrade to current code requirements — fire and life safety systems (sprinklers). It also provides a procedure whereby 2/3 of total voting interests can choose to opt-out of a retrofit.
Although the high cost of retrofit for older housing projects remains difficult for owners of older condo associations, critics point out that the retrofit process has already been delayed for years, putting lives in danger, especially for older adults with limited mobility.
http://www.flsenate.gov/Session/Bill/2018/01061
Legal References:
2018 Florida Legislative Session Update – Community Association Related Bills
Homeowners Association and Condominium Association Related Bills