By Deborah Goonan, Independent American Communities deborahgoonan@gmail.com
As one of the top two states in terms of the sheer number of HOA-governed communities, and the site of last year’s sudden condo collapse, Florida is Ground Zero for legislative ’reform’ this year. But will several bills filed this year actually help homeowners, or do more harm than good?
Consumer advocates introduce bill to create an Ombudsman for property owners on homes in HOA-governed planned communities
Will Legislators bother to consider offering help for Florida single family homeowners?
SB 1296 — As introduced by Sen. Burgess
Track SB 1296 here.
Senator Burgess has introduced a bill to establish a Governor-appointed Ombudsman overseeing Homeowners Associations in Florida. This is a big deal — or it should be. That’s because, currently, an Ombudsman exists only to assist owners of property in Condominium and Cooperative Associations. But owners of single family homes and townhouse parcels in planned communities governed by HOAs have no similar resource.
Under the intent of the bill, the state would create an HOA Ombudsman, to fulfill several important duties.
The HOA Ombudsman would have the authority to assist owners and association board members in understanding their respective rights and responsibilities; would review complaints related to HOA election and meeting procedures, and refer substantiated cases to the Division (Department of Business and Professional Regulations Division (DBPR)) for enforcement; would recommend legislative amendments or remedies to recurring HOA problems and challenges; would be able to intervene and help to resolve disputes that are not under the jurisdiction of the DBPR; upon a formal petition submitted by 15% of all unit owners, would have the authority to appoint an election monitor.
So far, the bill has not been placed on the Senate calendar. However, a related bill is making progress in the House.
House version of HOA Ombudsman bill is less helpful for homeowners
Related bill HB 1033
As amended by committee substitute —
While this bill mirrors most of the language of SB 1296, with regard to creation of an Ombudsman for HOAs, it offers a somewhat more limited scope of authority to address a wide range of disputes between homeowners and their HOA. The original version of this bill redefined ”disputes,” limiting the authority of the Ombudsman to a few narrow issues.
The Committee Substitute version, adopted Jan. 20, 2022, strikes out that narrow definition of a dispute. But, it remains vague as to the ”applicable” types of disputes the Ombudsman would be able to help resolve. It also omits the language in SB 1296 that obligates the Ombudsman to refer cases to DBPR for enforcement of statutory provisions related to elections and meetings.
IAC agrees with advocates that point out that a law with no enforcement mechanism is generally ineffective at reining in abuse and corruption.
Notably, the house version of the Ombudsman bill also retains the power of HOAs to impose fines, with some minor tweaking of the HOA administrative hearing and appeal process. (As noted in a previous IAC post, two related bills that address the rights of HOAs to impose monetary fines have been introduced, but are not (yet) progressing.)
Another significant provision buried in HB 1033 would give unit owners the option of choosing non-binding arbitration OR presuit mediation. Attorney Eric Glazer, associated with Florida’s CCFJ homeowner advocacy agency, explains the difference between these two dispute resolution options in this post on The Florida HOA and Condo Blog.
Will perpetrators of condominium association fraud finally be brought to justice?
House Rep. gets serious about investigating fraud
HB 811 – As introduced by Rep. Fabricio
Finally! Here’s a bill that aggressively addresses embezzlement and fraud in the management of condominium associations. Proponents of this bold and assertive bill seek to create a Department of Law Enforcement (DLE) dedicated to investigating criminal complaints arising out of condo associations.
The DLE would be legally obligated to submit substantiated complaints to states attorneys for prosecution. The bill currently proposes the addition of at least 4 full-time law enforcement officers, with relevant training and experience to investigate criminal complaints of financial fraud filed by unit owners of residential condominium associations.
If enacted, state law would also require that Florida’s DBPR Division to refer applicable criminal complaints to the FDLE condo division for investigation.
Senator files a watered-down version of the House bill
Related bill SB 274 by Sen. Rodriguez
In a less assertive bill, the Senator proposes “creating the Condominium Fraud Investigation Pilot Program within the Department of Legal Affairs in the Office of the Attorney General.” The Pilot Programs would expire in October 2027, unless extended or made permanent by the state Legislature.
Unlike the House version, SB 274 would limit jurisdiction of the Pilot Program to only three Florida Counties: Broward, Miami-Dade, and Monroe. It would also allow the state to contract with private individuals, such as retired law enforcement officers with experience investigating financial fraud.
The author of the bill proposes the state hire 5 Law Enforcement Officers, plus 3 financial investigators, to accomplish its objectives of reining in fraud and embezzlement within residential condo associations.
All criminal complaints would have to be filed through the Condominium Ombudsman, who would then forward valid complaints to DLE. Non-criminal complaints would be funneled to DBPR’s Division.
Oddly, if the DBPR receives a complaint alleging criminal activity, it would have to forward that complaint to the Condo Ombudsman, not DLE.
Essentially, this bill would make the Condominium Ombudsman the gatekeeper for all criminal complaints involving residential condo associations. There are no provisions relating to Ombudsman support for owners of properties in planned communities governed by Florida’s HOA Act.
The Senate version would slightly expand the Ombudsman’s authority at the administrative level. Homeowners could ask the Ombudsman to void the results of an improper condo election and/or to appoint a Receiver to manage the association, as appropriate.
Source: NEW SHERIFFS IN TOWN? By Jan Bergemann, Published January 21, 2022
Real estate developers, home builders, and renovation contractors want to make it harder for homeowners to make legal claims for construction defects
SB 736 First engrossed, Feb 10, 2022
Track SB 276 here.
A bill written by and for real estate developers and insurance industry professionals is making its way through the FL Legislature. As reported by First Coast News (see source reference below), the bill reduces the amount of time an owner of a single family home would have to make a legal claim against developers, home builders, architects and contractors for construction defects in new builds or renovations.
Current state law states that an owner must make a claim within 10 years after taking occupancy of the home, or after the work is completed, whichever is later. SB 736, if enacted as currently written, would reduce the period of making a claim to 5 years, unless the owner can prove — with the help of expert inspectors — that the defect was ”latent” (hidden) from view, and that the parties involved in design, sales, or construction had knowledge of the defect, and deliberately concealed this information from the buyer or homeowner.
Critics agree that these additional limitations and conditions make it exceedingly difficult and costly for an owner to sue the people responsible for shoddy construction. The Senate has passed the bill by a vote of 26 in favor to 13 opposed. The votes fell along party lines, with most Republicans voting in favor of SB 736, and most Democrats opposed.
Despite the obvious attempt to reduce accountability for construction defects, there are a few bright spots in SB 736. The bill would increase accountability of homeowners and home sellers. The bill states that if a homeowner is awarded money to correct construction defects, then the repairs must be made, with the cash payable directly to contractors making the repairs. Likewise, a seller who knowingly fails to disclose construction defects can be sued by a homebuyer who then gets stuck with the cost of future repairs. These are common sense changes, but they certainly don’t make up for a homeowner’s reduced ability to recover financial losses due to construction defects caused by third parties. After all, a homeowner pays dearly for new home construction or repair and renovation projects, under the reasonable assumption that professionals will act in good faith to fulfill their contractual obligations.
The net effect of SB 736 would be to saddle homeowners, and private buyers, and sellers for financial costs and liabilities that rightfully belong to construction and renovation industry professionals who — knowingly or unknowingly — committed grave errors and omissions in doing their jobs.
Shame on the ”professionals” and legislators who put forth and enable this heinous piece of legislation.
Proposed by Northeast Florida Sen. Travis Hudson (R-St. Augustine), Senate Bill 736 dramatically reduces the time a home builder is responsible for construction defects. For single family homes, it cuts that time in half – from 10 years to five. It makes no exceptions for intentional fraud, or for violations of building and fire safety codes.
SOURCE: ‘Why are we protecting people who do this?’ Florida bill would reduce time for homeowners to file claims against builders — A bill by Northeast Florida Sen. Travis Hutson would sharply limit homeowners’ ability to file construction defect claims for hidden structural flaws. Source: FirstCoast News
As this post illustrates, there’s ample public pressure for Florida’s Legislature to take action to hold the HOA real estate industry accountable to homeowners and housing consumers. But it’s unclear whether the majority of elected officials truly represent the interests of millions of Florida homeowners.
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