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Becker’s Washington Weekly: Week of March 4

Posted on by Marie Nganele

Shutdown Averted(?)

Lawmakers from both Chambers return to Washington this week after passing another extension of short-term “laddered” government funding to March 8th and 22nd, all before reaching a final agreement on FY24 appropriations for those bills falling under the new March 8th deadline.

Over the weekend, Members released the text of a partial appropriations bill that would fully fund – among others – the Departments of Transportation, Justice, Interior, and Energy through September, thus closing out a prolonged FY24 due to a series of stopgap measures after lawmakers previously failed to reach a full-funding agreement.

If passed, the bill would also include congressionally directed spending, or “earmarks,” providing line-item funding for projects in Members’ districts, such as bridge replacements, law enforcement equipment purchases, and transit expansion.

The bill also omits certain policy “riders” limiting the spending of funds that Members from both parties typically find objectionable. However, the bill would ban sales from the U.S. Strategic Petroleum Reserve to China, as well as monitor foreign purchases of U.S. farmland.

However, an agreement has not yet been reached for the remaining FY24 appropriations bills set to expire on March 22nd. Once that is done, the appropriations cycle will be complete, and Members can proceed to the FY25 cycle.

In addition to appropriations, House lawmakers will also vote on several homeland security and healthcare-related bills under expedited procedures this week, in addition to cybersecurity legislation affecting National Telecommunications and Information Administration operations.

Members will also participate in several committee hearings this week, including the following:

  • The House Transportation & Infrastructure Committee will hear testimony from transportation grant recipients
  • The Senate Judiciary Committee will discuss human rights in housing
  • The House Foreign Affairs Committee will examine China’s influence on the United Nations
  • The Senate Health, Education, Labor and Pensions Committee will discuss healthcare for seniors

“Owner Questions Board’s Contracting Authority” – News-Press

Posted on by Marie Nganele

Q: Recently, my condominium association authorized a major construction project. The contract for the work is several million dollars in value. The board of directors voted to move forward with their preferred contractor and authorize the president to sign. Isn’t this the type of contract that must be voted on by the owners? (O.V., via e-mail)

A: Probably not. The Florida Condominium Act provides that the association may contract to exercise its powers it powers and duties. Most condominium documents provide that the board of directors acts on behalf of the association, except where a membership vote is specifically required either by law or the condominium documents.

Some condominium documents require unit owner approval prior to adopting an assessment in excess of a certain amount. If a special assessment is required and the documents require that to be approved, then a vote would be required, but not for the contract itself.

If the work involves material alterations or substantial additions to the common elements or association-owned real property, most declarations of condominium will require owner approval if the dollar amount of the contract exceeds a specific level. Conversely, if the work does not involve material alterations or substantial additions or if the cost does not exceed a dollar limit stated in the documents, then no owner vote is required. Certain material alterations or substantial additions, regardless of cost, can be authorized by the board if the work constitutes “necessary maintenance,” as that term has been defined in Florida appeals court decisions.

Section 718.3026 of the Florida Condominium Act requires most contracts to be subject to competitive bidding when the value of the contract exceeds five percent of the total annual budget of the association, including reserves. There is no requirement that the association select the lowest bid, only that “competitive bids” be obtained, which means at least two bids.

The rules for homeowners’ associations are similar. However, the Florida Homeowners’ Association Act establishes the competitive bidding threshold at ten percent of the association’s annual budget, and there is no statutory regulation on material alterations or substantial additions, that issue will be guided solely by the provisions of the governing documents.

Q: Recently, my condominium association held its election for directors, and some questions came up about how to treat certain ballots. Several ballots were returned in the proper signed outer envelopes. However, some ballots were not enclosed in an unsigned inner envelope, they were just loose in the outer envelope. In other cases, the voter also signed their ballot. Questions came up as to whether such ballots should be counted. What is the answer? (W.K., via e-mail)

A: The Florida Condominium Act provides that the election of directors must be by secret ballot and further provides that the Division of Florida Condominiums, Timeshares, and Mobile Homes shall adopt rules consistent with the statute for the election of directors.

Pursuant to the Division rules, the secret ballot for the election of directors is to be placed inside an unsigned inner envelope, and the inner envelope is to be placed inside a larger outer envelope. The outer envelope is to be sealed and signed by the unit owner. This process ensures the secrecy of the unit owner’s ballot when the ballots are counted. However, it is not uncommon for owners to fail to place their ballots inside the unsigned inner envelope or to mark the ballot, otherwise indicating who the unit owner voter was.

There are arbitration decisions issued by the Division that have found that when such ballots are received by the association and are received inside valid signed outer envelopes, ballots may be counted. While the unit owner is entitled to secrecy if they fail to protect the secrecy of their vote by failing to place the ballot inside an inner envelope properly, it waives their secrecy but does not invalidate the ballot. The association should review specific questions regarding the validity of a ballot with its attorney.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

“Pending New Laws” – FCAP Managers Report

Posted on by Marie Nganele

The 2024 Florida Legislative Session ended Friday, March 8th, and it was one of the busiest sessions in memory in terms of producing new community association legislation. Please remember that these bills do not become law until they have been sent to the Governor who then has fifteen (15) days to sign a bill, veto a bill, or allow a bill to pass into law without his signature.  As such, we may not know the final outcome for some bills until later this May or June.

HB 1021 is known colloquially as the Condo 3.0 bill but it goes well beyond the scope of its predecessors, SB4D and SB 154, by, among other items, expanding the enforcement jurisdiction of the Division of Condominiums; creating new standards for CAMS; imposing new funding and notice requirements related to structural integrity reserve studies (SIRS); imposing mandatory board member educational requirements; imposing new penalties for voting fraud; and requiring associations who manage 25 or more units to maintain an association website where specific association documents must be posted.

HB 1029 creates the “My Safe Florida Condominium Pilot Program” within the Department of Financial Services (DFS). This legislation will create a state-funded inspection program to determine mitigation measures that hopefully will reduce a property’s vulnerability to hurricane damage and provide for mitigation grants to retrofit the condominium property.

HB 293 requires HOAs to adopt specifications for hurricane protection and prohibits HOAs from denying an owner’s installation or replacement of certain hurricane protections including storm shutters, metal roofs, erosion controls, and other forms of hurricane protection.

HB 59 amends Section 720.303, F.S. to require an HOA to provide digital copies of the governing documents and rules to every new member of the association and provide all members with amendments to the covenants and rules.

HB 1203 was passed as a response to the massive Hammocks HOA fraud case in Miami-Dade County. Among its many provisions, this bill imposes mandatory educational requirements for HOA directors; limits an HOA’s ability to regulate parking and commercial vehicles, limits the function of an HOA’s architectural control committee, imposes stiff penalties for the denial of records access to owners; requires websites for associations with 100 parcels or more and further revises the fining process in a less than helpful manner.  

HB 1645 provides that HOA covenants may not prohibit the types of fuel sources that serve customers in the community, including natural gas utilities and liquefied petroleum gas (aka propane) dispensers, and also provides that the HOA covenants may not preclude appliances using those energy sources. It is troubling to note that HOA residents must now be allowed to install EV charging stations and propane gas/natural gas; let’s hope installers for each take proper safety precautions. 

SB 1420 modifies the language in Section 720.406, F.S. regarding the meeting procedures when homeowners’ association covenants are being revitalized. 

SB 280 limits the ability of local government to regulate short-term vacation rentals but does permit occupancy limitations. The legislation provides for the DBPR’s Division of Hotels & Restaurants to regulate vacation rental platforms. The good news is that the legislation specifically does not preempt or supersede community covenants. 

Remember, none of the above bills go into law until they have been sent to the Governor who then has fifteen (15) days to sign a bill, veto a bill, or allow a bill to pass into law without his signature.  We expect many, if not all, of these new bills to be approved by the Governor or he will allow to pass into law.  

Of course, you will need to consult with your association attorney for information on how these new bills, once they go into law, will affect your association. 

To read the original FCAP article, please click here.

Howard J. Perl is a member of Becker’s Community Association practice and has been involved in all aspects of community association law, including transactional, collections, mediation, arbitration, construction defects and litigation. He is Florida Bar Board Certified in Condominium & Planned Development Law and is certified by the State of Florida as a facilitator for continuing education credit courses for Community Association Managers.

Involved Versus Committed: Does My Community Association Need a Social Media Policy?

Posted on by Marie Nganele

Across the green from Becker’s Morristown office is a delightful restaurant named “The Committed Pig.” When you walk in the door, a sign on the wall explains the restaurant’s interesting moniker:

  • the best way to describe the difference between involvement and commitment is “bacon & eggs”
    the chicken is involved, but the pig is committed

Like the chicken and the pig, community associations can either be involved or committed when it comes to utilizing social media. However, an association takes a risk when it is just involved with social media as a passive participant. If an association is determined to protect itself from the potential pitfalls and legal risks of using social media, it must be committed.

Social media can encompass a multitude of online activities, including hosting websites or blogs, or using well-known platforms like, Facebook, X (formerly Twitter), or Nextdoor. To some extent, all forms of social media have the ability to facilitate communication between an association and its members, provide real-time updates, and offer the ability for members to contact the board or management to report any issues. Conversely, such communication can also open the door for abuses such as cyberbullying, invasion of privacy, or defamation.

Association board members have a fiduciary relationship with both the association and its members. That fiduciary relationship requires adherence to and compliance with the association’s governing documents and the law, and each board member must act in good faith to promote the health, safety, and welfare of the entire community. Adopting a clear, comprehensive social media policy allows an association board to fulfill that fiduciary responsibility as well as to control and monitor online content, minimize abusive practices, and – most importantly – protect the association from potential liability. With that backdrop, here are some best practices for associations who are committed to using social media:

  1. Have a Plan – Before jumping headfirst into social media, an association board needs to agree on the association’s goals for using any social media platform. Is the goal to disseminate information? Are we creating an avenue for members to contact the board or management? It may be useful to first survey the members to determine how they would like to receive information and/or interact with the board and management. In some cases, a password-protected website with access to necessary documents may work best. In other situations, a private Facebook group may be preferable. Thoughtful consideration should be given to what the association wants to achieve through its use of social media before creating an online presence.
  2. Protect / Promote the Association’s Reputation – A good social media policy will set parameters and spell out what is appropriate for associations to post / disseminate. The policy should have clear guidelines to help members understand ways they can use social media to achieve the association’s goals. However, when it comes to individual social media use by members (or board members), controlling what may be posted can be next to impossible. In particular, board members who post on social media need to understand that online comments might be construed as representing the board’s position or undermining previous decisions. Board members posting on social media should be reminded of their fiduciary duty to the association and, for those associations with a confidentiality agreement/code of conduct, requirements regarding social media should be added to those documents.
  3. Control / Moderate / Limit Content – Information published on either an association website or other forms of association-related social media should be open only to members, monitored / controlled by the board, and, to the extent possible, limited in scope. Content should be reviewed for grammar, tone, and to guard against privacy concerns (for example, meeting minutes, budget and financial information, or personally identifiable information (“PII”) should not be available or accessible to the public).Content should benefit the community but be careful not to create an opportunity for the members to air grievances about the association, the board, management, or their neighbors. While a moderated “bulletin board” may be beneficial, the information posted must flow through a designated moderator(s) who can reject questionable, offensive, or possibly unlawful material. In addition, the association should require that every member who wants to post on the association’s social media agree to an Acceptable Use Policy (“AUP”), which would require (among other things) that: (1) the posting of defamatory, obscene, harassing, discriminatory, or otherwise unlawful material and/or comments is prohibited; and (2) the association reserves the right to remove any posts that it deems to violate the AUP and/or reserves the right to restrict/terminate access to any person who does not abide by the posting policy.
  1. Engage the Community – If a board is prepared to take on the risks that social media presents, the association should do its best to reap the benefits that come with a positive social media presence. Engagement of the community requires both consistency in posting and variety of content. Content should be aimed to engage members with information that matters to them at regular intervals. Along with a strong blend of administrative information (meeting dates and times, rule and policy updates, etc.), the association should attempt to add other information (community projects, member spotlights, and local events).

Use of social media is fraught with risk for associations and its members. However, when utilized correctly, it can be an effective communication tool, and a thorough social media policy can ameliorate some of those risks and attempt to minimize abusive practices. As always, before entering the social media world, associations should consult with both legal counsel and its insurance professionals to discuss possible cyber-liability insurance.

So, when it comes to social media, are you just involved or are you committed?

Editor’s Note: This article was adapted from a longer article originally published in June 2020 in Community Trends. You can read the original article here: https://beckerlawyers.com/wp-content/uploads/2023/05/Social-Media-Policy.pdf

John S. Prisco Named CAI NJ’s “Speaker of the Year”

Posted on by Marie Nganele

We are thrilled to announce Becker shareholder John S. Prisco has been named “Speaker of the Year” by the Community Association Institute’s New Jersey Chapter. John earned this recognition for leading a November 2023 webinar, “Preparing for the Future—Continuity Planning for Community Associations.”  In his discussion, John shared his insights on disaster preparedness and the process for developing, creating, and implementing critical plans and procedures to protect your community before disaster strikes.

In February, John’s presentation at the Institute of Real Estate Management’s Tri-State Conference and Expo in Atlantic City drew a full house. His presentation focused on artificial intelligence and its impact on community association management.

John is based in Becker’s Morristown, New Jersey office. His practices include Community Association, Construction Law & Litigation, and Business Litigation. He frequently presents and writes on a broad range of community association topics and has presented at the New Jersey Cooperator and IREM’s Tri-State Expo and Conference. He is a Community Associations Institute (CAI) Advocacy Ambassador, an Educated Business Partner, and serves on the CAI-NJ Business Partner Committee. John is also an active member of the Institute of Real Estate Management (IREM) and serves on the IREM-NJ Industry Partner Committee.

The Impact of the New Department of Labor Rule on Worker Classification and Ensuring Proper Classification of Workers

Posted on by Jamie B. Dokovna
In the early 2000s, employers and established businesses rarely sought out the work of independent contractors. Now decades later this has changed significantly as employers are relying more and more on independent contractors instead of employees. While using independent contractors can have certain benefits, there can also be certain risks especially when it comes to classification.

Addressing Burdensome Records Requests via the Rule-Making Power of Condominium Associations

Posted on by Casey Amaya
Records requests can become quite daunting when a board of directors is faced with a high volume of demands from unit owners asserting their right of inspection of the association’s official records. Section 718.111(12)(c)(1) of the Florida Condominium Act (“Act”) permits condominium associations to “adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections . . . .” The Act, however, stops short of defining the limitations on “frequency” and “time”; two terms that have been the subject of arbitration disputes.

So, You Received a Written Inquiry

Posted on by Nicolas M. Jimenez
Your community association has just received, by certified mail, a letter from a unit owner with several questions about the operation of the Association. What do you do next? First and foremost, you should always ensure that your community association’s legal counsel is promptly notified of such inquiries because receipt alone may trigger time sensitive legal obligations that can expose the association to penalties if the correct steps are not taken.

Not In My Backyard! Regulating Short-Term Vacation Rentals with Texas Attorney David Schwarte

Posted on by Marie Nganele

For more episodes of Take It To The Board, click here!

It’s a complex issue that is reshaping neighborhoods and communities across the country. We are talking about Airbnb, a homestay rental experience that has quickly become a major disruptor in the global hospitality industry. It’s also become a major security concern in many private residential communities, with reports of “party houses” and even crime. Host Donna DiMaggio Berger looks at the consequences for residential communities with guest David Schwarte, Texas attorney and co-founder of the Texas Neighborhood Coalition, an organization that tackles the problems associated with short-term rentals.

Together, they share insights into the vacation rental trend, its impact on housing affordability, and the rise in community activism in response. David shares how he worked to persuade local government officials to exclude short-term rentals from residential neighborhoods and how he assisted community associations in using their restrictive covenants to preserve their private residential lifestyle.

Donna and David explore the legislative maze that governs these rentals in Texas and beyond, drawing parallels with the situation in Florida where state-level preemption looms large. The importance of community involvement cannot be overstated, and through tales of town hall meetings and city council persistence, they spotlight the successful grassroots victory that led to change for residential neighborhoods in Arlington, Texas. Learn about the importance of strong, interconnected communities and the efforts needed to protect and fortify them.

Conversation highlights include:

  • The impact of private residential zoning laws on Airbnb
  • Arguments of economic benefits for homeowners and local businesses
  • Claims of a constitutional right to monetize properties
  • The role of local governments in regulating short-term rentals
  • How Airbnb model impacts affordable housing
  • How Community Associations can draft covenants to combat short-term rentals

About Take It To The Board

Think you know what community association life is all about? Think again. Residents must obey the rules, directors must follow the law, and managers must keep it all running smoothly. Take It To The Board explores the reality of life in a condominium, cooperative or homeowners’ association, what’s really involved in serving on its board, and how to maintain that ever-so-delicate balance of being legally compliant and community spirited. Leading community association attorney Donna DiMaggio Berger acknowledges the balancing act without losing her sense of humor as she talks with a variety of association leaders, experts, and vendors about the challenges and benefits of the community association lifestyle.

If you’ve got a question, Take It To The Board with Donna DiMaggio Berger – We Speak Condo & HOA!

Episodes are available for subscription on iTunes, Amazon Music, Spotify, YouTube, or listen through any podcast streaming app. You can also click here for the full archive.

From Developer to Homeowners: A Brief Overview of Transition in New Jersey Community Associations

Posted on by Marie Nganele

Congratulations on becoming homeowners in your new community! As you settle in and start to personalize your spaces, an important milestone awaits: the transfer of control from the developer to the unit owners. This process, known as “transition,” marks the moment when you and your fellow residents take the reins of your community, shaping its future and ensuring its smooth operation. To help you and your community begin this process, here is a quick overview of the key information about community association transitions in New Jersey:

What is transition?

It’s the process by which developers gradually relinquish control of the condominium association’s executive board to elected unit owners.

The Governing Statutes: 

Pursuant to the Planned Real Estate Development Full Disclosure Act (“PREDFDA”), N.J.S.A. §45:22A-21 et seq., a developer of a proposed condominium development that is subject to the registration requirements of PREDFDA must establish an association responsible for the management of the common elements and facilities of the proposed condominium development.  N.J.S.A. §45:22A-43.  The developer is required to organize the association prior to the filing of the master deed or declaration of covenants and restrictions.  The association may be established as a for-profit or nonprofit corporation, unincorporated association, or any other form permitted by law.  No matter the nature of the association, the responsibility of the association is the same – “the administration and management of the condominium and condominium property, including but not limited to the conduct of all activities of common interest to the unit owners.”  New Jersey Condominium Act (the “Condo Act”), N.J.S.A. §46:8B-12.  The powers of the association are vested in an executive board that is responsible for carrying out the responsibilities of the association.  Upon the formation of the association the developer will appoint representatives of the developer to sit on the executive board and carry out the functions of the association.  However, as the developer begins to sell units in the condominium development, pursuant to PREDFDA and the Condo Act, the developer is required to surrender control of the executive board to unit owners elected by the members of the association.  This process is known as “transition.”

Why is it important?

Transition ensures homeowner control, fostering a sense of community and accountability, and enabling residents to make decisions that best suit their needs and preferences.

Key milestones:

  • At 25% unit sales: At least 25% of the board must be elected owners.
  • At 50% unit sales: At least 40% of the board must be elected owners.
  • At 75% unit sales: Full board control transitions to elected owners.

What happens after transition?

  • The unit-owner-controlled board assumes responsibility for managing the community, including finances, maintenance, and enforcement of rules.

Responsibilities as a Homeowner:

  • Electing board members: Choose qualified individuals who represent your interests and have the skills to effectively manage the community.
  • Actively participating in meetings and voting: Stay informed about important decisions and have your say on matters that impact your community.
  • Serving on committees: Contribute your talents and expertise to specific areas like landscaping, security, or social events.
  • Following community rules and regulations: Ensure a harmonious and well-maintained living environment for all residents.

Taking control of your community association is an empowering experience. By understanding the transition process, your rights and responsibilities, and actively engaging in your community, you can collectively shape a vibrant and fulfilling living environment for yourselves and future residents.

However, navigating the transition process can be complex, involving legal intricacies and crucial decisions. To ensure a smooth and successful transition, it is critical that newly elected unit owner-controlled community association boards seek the guidance of an experienced community association attorney. By partnering with a qualified attorney, you can empower your community to make informed decisions and navigate the transition with confidence.  Contact John S. Prisco, Esq., at Becker to learn more about the transition process and how Becker can successfully guide your community from transition and beyond.

Becker’s Washington Weekly: Week of February 26

Posted on by Marie Nganele

Shutdown Showdown

House and Senate lawmakers return to Washington this week, cutting short their President’s Day recess in an attempt to pass a full appropriations bill ahead of a partial government shutdown this Friday (and a full shutdown next Friday). 

The leadership of both parties will meet with President Joe Biden this week at the White House to negotiate the appropriations package in addition to dueling Ukraine-Israel-Taiwan aid House and Senate proposals.

House lawmakers are also set to take up additional bills this week under expedited procedures, including a short-term extension of Federal Aviation Administration operations, and several Small Business Administration program and certification related legislation.

Members from both Chambers will also participate in several committee hearings this week, including the following:

  • The Senate Foreign Relations Committee will examine security issues in the Red Sea
  • The House Homeland Security Committee will discuss cyber security issues at U.S. ports
  • The Senate Environment and Public Works Committee will discuss projects and priorities under the Water Resources Development Act of 2024
  • The House Science, Space, and Technology Committee will discuss the risk of EV fires for first responders

Becker’s State Lobbying Update: Week 7, February 19 – February 23, 2024

Posted on by Marie Nganele

“Where Are We in the Process?”

As the legislative session approaches its conclusion, it’s a critical time for many bills that are still in the pipeline. The 50th Day, a significant milestone in the legislative calendar, is on Tuesday, February 27th. This day marks a period when the focus sharpens on advancing bills through the necessary committee hearings to have a chance at becoming law. However, the reality is stark for many pieces of legislation.

With several bills still requiring multiple committee hearings and the fact that many committees have stopped scheduling new meetings, it seems inevitable that a substantial number of bills will not progress further in this session. The fact that over 700 general bills remained unheard by the past weekend highlights the scope of proposed legislation that is still at risk of not progressing forward.

Budget

One thing that the Legislature is responsible for is enacting a balanced budget. Although negotiations (conference) haven’t begun at this point, they are scheduled to occur in the eighth week.  The deadline to finalize the budget is set for Tuesday, March 5th, in adherence to the required “72-hour” cooling-off period.

Tax Package

HB 7073 – Taxation by Ways & Means Committee

SB 7074 – Taxation by Finance and Tax Committee

HB 7073 by Representative McClain increases Florida’s Strong Families Tax Credit cap, revises definitions and provisions related to taxes, and establishes various tax holidays.  The bill was amended to require insurers to give homestead property owners a deduction on their residential property insurance premiums in the amount of 1.75% of the policyholder’s total premium.  This applies to policies with coverage for 12 months effective October 1, 2024, and before September 30, 2025. HB 7073 favorably passed its only committee of reference, Appropriations, with a vote of 25 Yeas and 4 Nays.  It has now been placed on the calendar for a second reading.  Its Senate Companion, SB 7074, includes a proposal by Governor DeSantis that would give homeowners a one-year lull on state taxes and assessments charged on flood insurance policies enacted or renewed after July 1. The 1.75% tax credit on insurance rates for homes under $750,000 for one year, would save homeowners$363.2 million over the next two years. The bill favorably passed its first committee of reference, Finance and Tax, with a vote of 6 Yeas and 0 Nays. It was later referred to its final committee, Appropriations, and is scheduled to be heard on Wednesday, February 27th, at 9:00 am.

Property Insurance Package

HB 1503 – Citizens Property Insurance Corporation by Representative Esposito

SB 1716 – Citizens Property Insurance Corporation by Senator Boyd

HB 1503 establishes new provisions and revises existing ones for Citizens Property Insurance Corporation. This bill introduces a requirement for the corporation to secure flood insurance as a condition of coverage for personal lines residential risks, implementing flood coverage requirements based on dwelling replacement cost value and property location. The bill revises the implementation schedule for flood coverage requirements, delineating specific dates and coverage values for adherence.  The bill unanimously passed in its final committee, Commerce, and is awaiting to be heard on the House floor for a second reading. SB 1716, amends Florida Statute Section 627.351, enhancing the operating framework of the Citizens Property Insurance Corporation and revising requirements for policyholder eligibility, insurance coverage provisions, and depopulation strategies. SB 1716 is scheduled to be heard in its final committee, Fiscal Policy on Tuesday, February 27th at 9:00 am.

HB 1149 – Policy Cancellations and Non renewals by Property Insurers by Representative Botana

SB 1104 – Policy Cancellations and Non renewals by Property Insurers by Senator Bradley

HB 1149 by Representative Botana restricts property insurers from canceling or not renewing policies for dwellings damaged by covered perils until repair completion or one policy renewal, with exceptions. The bill mandates a 45-day advance written notice for nonrenewal and lists valid reasons for nonrenewal. The bill also allows cancellation or nonrenewal before repair under specific conditions such as nonpayment of premium, no insurable interest by the insured, material misstatement, or fraud related to the claim. This bill unanimously passed its final committee, Commerce, and is now waiting to be scheduled on the House floor.  SB 1104, is scheduled to be heard in its final committee, Rules, on Monday, February 26th at 2:00 pm.

HB 1611 – Insurance by Representative Stevenson

SB 1622 – Insurance by Senator Trumbull

HB 1611 by Representative Stevenson revises insurance regulation, focusing on market conduct examinations, reporting requirements, rules for nonrenewal of policies, requirements for self-insurance funds, prohibitions on policy cancellation or nonrenewal under certain conditions, rate filing specifications, and introduces rules for reciprocal insurers and their operations.  This bill would also cap property insurance rates for Citizens policyholders who are forced into the state-backed last-resort insurance pool. This bill unanimously passed in its final committee, Commerce, and is now waiting to be heard on the House floor.  SB 1622, is scheduled to be heard in its final committee, Fiscal Policy, on Tuesday, February 27, 2024, at 9:00 am.

Children and Families

HB 1 – Social Media Use for Minors by Representative (s) Sirois and McFarland

HB 1 aims to protect minors online by regulating social media and online content distribution, defining various terms, and establishing verification methods to prevent minors’ access to harmful materials. The bill requires social media platforms to prohibit children under the age of 16 from creating an account and to verify the age of new account holders using either anonymous or standard age verification methods. The bill also requires social media platforms, that have existing accounts belonging to minors under the age of 16, to terminate the account, allow an account holder or confirmed parent or guardian to terminate the account, and permanently delete all personal information held by the social media platform relating to the terminating account. The bill would allow 16- and 17-year-olds to continue to have social media accounts, but the platforms would be required to provide them with certain disclosures, disclaimers, and other information. The bill also authorizes the Department of Legal Affairs to enforce violations under the Florida Deceptive and Unfair Tade Practices Act, with penalties up to $50,000 per violation and provisions for punitive damages. A House Speaker priority, the bill passed favorably through all assigned committees and passed the House floor in a vote of 106 Yeas and 13 Nays. After being referred to Fiscal Policy and passing that committee, it moved to the Senate floor, where it was read a third time and passed with a vote of 23 Yeas and 14 Nays. It was immediately certified and is in returning messages for the House. HB 1 passed favorably again on the House floor with a vote of 108 Yeas and 7 Nays.  It has now been signed by presiding officers and presented to the Governor.  The Governor must act on this bill by Friday, March 1, 2024.  The bill is effective on July 1, 2024.

HB 1471 – Public Employees by Representative Black

SB 1746 – Public Employees by Senator Ingoglia

HB 1471 by Representative Black aims to modify the collective bargaining power for public employees in Florida. Exemptions from “certain requirements” apply to a bargaining unit with many employees eligible for representation employed as law enforcement officers, correctional officers, correctional probation officers, firefighters, 911 safety telecommunicators, emergency medical technicians, or paramedics. For mass transit employees, the due deduction exemption may only be applied to those who submit a membership authorization form to their employer as part of the authorization for dues deduction. This bill removes the requirement that an employee organization submit an audited financial statement and instead requires financial statements to be prepared by an independent CPA. The financial statement submitted with a registration renewal application must include the employee organization’s disbursements reported by category for the preceding fiscal year. This bill has favorably passed each committee of reference and is waiting to be placed on the calendar for a reading. Its Senate companion, SB 1746, by Senator Ingoglia, was read a third time and immediately certified. It is now in Messages and headed to the House floor.

Commerce

SB 1420 – Department of Commerce by Senator Burgess

HB 1419 – Department of Commerce by Representative Tuck

SB 1420 by Senator Burgess makes several changes that impact the Department of Commerce (DCM). The bill extends the repayment period of the Local Government Emergency Revolving Bridge Loan Program from 5 to 10 years and directs the DCM to amend the existing loans executed before February 1, 2024, to increase the loan term to a total of 10 years from the original date of the execution. As for the department itself, it is required to establish a direct support organization (DSO) and create a Supply Chain Innovation Grant Program within the department. This bill has favorably passed each committee of reference and has been placed on the calendar for a second reading.  Its House companion, HB 1419, by Representative Tuck, has favorably passed two committees of reference and is waiting to be heard in its final committee, Commerce.

HB 471 – Valuation of Timeshare Units by Representative Fine

SB 886 – Valuation of Timeshare Units by Senator Gruters

HB 471 by Representative Fine outlines the process for appealing a property appraiser’s valuation of timeshare units. To determine whether the number of timeshare unit resales is sufficient for an appeal of a property appraiser’s valuation of timeshare units with more than 300 units, the taxpayer should provide a reasonable number of resales within the same timeshare development that is supported by the latest standards established by the Uniform Standards of Professional Appraisal Practice. This bill was read a third time on the floor and favorably passed with a vote of 82 Yeas and 33 Nays. It is now in Messages and has been referred to the Appropriations Committee. Its Senate companion, SB 886, by Senator Gruters, has passed two committees of reference and is awaiting scheduling in its final committee, Appropriations.

Infrastructure

SB 742 – Public Works Projects by Senator Grall

HB 705 – Public Works Projects by Representative Shoaf

SB 742 by Senator Grall revises the definition of a “public works project” as an activity that is paid for with any local or state-appropriated funds, and that consists of the construction, maintenance, repair, renovation, remodeling, or improvement of certain infrastructure projects owned in whole or in part by any political subdivision. This excludes the provision of goods, services, or work incidental to the public works projects in specific occurrences. This bill prohibits the state or any political subdivision from preventing a certified contractor from participating in the bidding process based on the geographic location of the contractor’s headquarters or office if the project is paid solely with local funds. The bill has favorably passed each committee of reference and is waiting to be read on the floor. Its Senate companion, HB 705, by Representative Shoaf, has favorably passed each committee of reference and has been placed on the calendar for a second reading.

Local Administration

HB 1177 – Land Development by Representative Duggan

SB 1110 – Land Development by Senator DiCeglie

HB 1177 by Representative Duggan grants counties the power to hear final decisions made by municipal historic preservation boards. This bill prevents local governments from requiring specific approvals or fees before allowing the modification or clearing of a tree on property designated for the construction of a veteran’s healthcare facility. Local governments are required to implement transportation concurrency, which entails providing credit for the fair market value of any dedicated land and allowing fees based on a cumulative analysis of previously unanalyzed stages or phases of trips. The bill also revises the application of credits against local impacts for the Development of Regional Impacts (DRIs). DRIs are developments that significantly impact the health, safety, or welfare of citizens of more than one county due to their character, magnitude, or location. The bill has favorably passed each committee of reference and has now been placed on the calendar for a second reading. Its Senate companion, SB 1110, by Senator DiCeglie, was referred to three committees of reference and has yet to be heard.

SB 438 – Term Limits by Senator Ingoglia

HB 57 – County Commissioner Term Limits by Representative Salzman

SB 438 by Senator Ingoglia establishes term limits for county commissioners in Florida, including provisions for referendum elections concerning term limits.  This bill will prohibit a person from seeking reelection as a county commissioner if, by the end of their current term, they will have served 8 consecutive years. The bill also disallows a person from qualifying for a different district seat or an at-large county commission seat until 2 years after their initial 8-year term. The new term limit will apply to counties not already subjected to term limits by county charter, and to terms of office beginning on or after November 5, 2022, except that more restrictive term limits already imposed by county charter are not extended.  Charter counties holding referendums are mandated to do so during the 2024 general election, asking voters if they support limiting county commissioner terms to 8 consecutive years. SB 438 is scheduled to be heard in its final committee, Rules, on Tuesday, February 26th at 2:00 pm. Its House companion, HB 57 by Representative Salzman has passed favorably in all three committees of reference and has now been placed on the calendar for second reading.

SB1638 – Funding for Environmental Resource Management by Senator Hutson

HB 1417 – Funding for Environmental Resource Management by Representative Buchanan

SB 1638 by Senator Hutson allocates funds from the gaming compact with the Seminole Tribe for conservation, resiliency, and water infrastructure.  This bill provides $100 million to support the wildlife corridor, $100 million for the management of uplands and the removal of invasive species, and $100 million to the Department of Environmental Protection (DEP) to the Resilient Florida Trust Fund. This bill also creates the Local Trail Management Grant Program within the Department of Environmental Protection to assist local governments with trail operation and maintenance costs. $150 million was provided to the South Florida Management District for operations and maintenance and to conduct a study of the health of Lake Okeechobee.  The bill passed unanimously on the Senate floor and is now in Messages awaiting to be heard on the House floor.  Its House companion, HB 1417, passed favorably in all committees and has now been placed on the calendar for second reading.

Election Law

SAC6 – Elections by House State Affairs Committee

SAC6 is a proposed committee bill by the House State Affairs committee that was aimed to reintroduce runoff elections in Florida for the first time since 2000, a move that could extend election seasons in the state.  The bill would create a two-primary runoff system in the state, with the first primary election serving as a nomination or elimination election and the second primary serving as a nomination election only.  The bill mandates that the first primary election occur 20 weeks before the general election and, if no candidate garners a majority of all votes cast in the first primary, a second primary election will occur 10 weeks later. SAC6 was scheduled to be heard in State Affairs on Wednesday, February 21st but was temporarily postponed by the committee.  There was no Senate Companion filed.

Criminal Justice

HB 1181 – Juvenile Justice by Representative Jacques

SB 1274 – Juvenile Justice by Senator Martin

HB 1181 by Representative Jacques amends several statutes relating to the Department of Juvenile Justice (DJJ), the juvenile justice system, and juvenile firearm possession and use.  The bill revises penalties for minors making a first illegal firearm charge for a juvenile a felony instead of a misdemeanor.  The bill also establishes conditions for holding a child in secure detention before an adjudicatory hearing for specified offenses, presuming the child poses a risk to public safety. The bill was amended to authorize DJJ staff to utilize canine units on the grounds of a juvenile detention facility or commitment program to locate and seize contraband and ensure security within such a facility or program.  HB 1181 passed favorably on the House floor with a vote of 83 Yeas and 29 Nays.  The bill has now been referred to Fiscal Policy.  Its Senate Companion, SB 1274, passed favorably in its final committee, Fiscal Policy, with a vote of 12 Yeas and 5 Nays.  It has now been placed on the calendar for a second reading.

Education

HB 1473 – School Safety by Representative Trabulsy

SB 1356 – School Safety by Senator by Senator Calatayud

HB 1473 by Representative Trabulsy addresses school safety through various measures, revisions, and new provisions related to school guardian programs, school safety reporting, drone operation restrictions over schools, and requirements for emergency procedures and school safety instruction.  The bill assigns private schools the responsibility for covering costs linked to school guardian programs while allowing sheriffs to waive these costs.  The bill establishes penalties for drone operation over public and private schools, including potential criminal charges for unauthorized video recording. The bill also mandates district school boards and charter schools to provide instruction on the use of a mobile suspicious activity reporting tool to students each school year. This bill unanimously passed on the House floor and has now been referred to Fiscal Policy. Its Senate Companion, SB 1356, passed favorably in its final committee, Fiscal Policy, and has been placed on the calendar for second reading.

“Term Limit Law Still 2 Years Away” – News-Press

Posted on by Marie Nganele

Q: My condominium association will be having its annual meeting soon, which will include an election for members to the board of directors. Some of our board members have served for numerous years, and I understood that there are now term limits on the number of years a board member could serve. What is the current status of term limits for condominium associations? (J.A., via e-mail)

A: You are correct. The Florida Legislature amended the Florida Condominium Act in 2018 to impose an eight-year term limit for board members. Section 718.112(2)(d)2. of the statute now states that a board member may not serve more than eight consecutive years unless either approved by a vote of the unit owners representing two-thirds of all votes cast in the election or unless there are not enough eligible candidates to fill all vacancies on the board at the time of the election. The statute goes on to provide that only board service that occurs on or after July 1, 2018, may be used when calculating a board member’s term limit.

Therefore, no statutory term limit would apply to an election this year. However, this will be an issue that associations will have to address for elections that occur after July 1, 2026.

Q: We are confused about the new condominium association reserve law. Our association consists of two-story buildings. Some of the owners seem to think our association will need to have fully funded reserves. Some of the owners seem to think our association reserve does not need to be fully funded because our building is only two stories. Any information you could give us about this situation would be greatly appreciated. (K.M., via e-mail)

A: The short answer is that “nothing has changed” on reserves for one and two-story condominiums, with one big exception. That exception is that it will now be more difficult to waive or reduce the full funding of statutory reserves or to authorize the use of reserves for an alternate purpose.

The 2022 amendments to the statute did not do a good job of distinguishing between buildings of three stories or more and one and two-story properties. Those ambiguities were largely eliminated with a “glitch bill” passed in 2023.

One and two-story buildings do not legally require a “structural integrity reserve study,” commonly called the “SIRS.” Further, the new law, which prohibits any waiver of “SIRS Reserves” for budgets adopted after December 31, 2024, does not apply to your community.

Your community must reserve accounts for roof replacement, building repainting, pavement resurfacing, and any item with a replacement or deferred maintenance expense exceeding ten thousand dollars. The reduction or waiver of that funding is still permissible by a vote of the unit owners, but this is where the law has changed.

Under previous law, a waiver vote could be approved by a majority of those who vote at a meeting where a quorum is established, often called the “majority of the quorum” standard. Under the new law, which is in effect now, the required vote is a majority of all units, not just those who vote. This assumes one voting interest is assigned to each unit, which is almost always the case.

The new law also requires a vote of a majority of all units to authorize use of the reserve money for a purpose other than that for which it was budgeted and collected.

All other legal requirements, such as the timing and manner in which reserve schedules must be presented, rules on the frequency of depositing assessment monies into reserves, and rules on pooling, have not been changed for one- and two-story condominiums. For condominiums of three stories or more, the changes are significant.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

Becker Spotlight: Martin Cabalar on Developer Transition, Construction Defects, & New Jersey’s Structural Integrity and Reserve Funding Law

Posted on by Marie Nganele

Recognized by New Jersey Super Lawyers as a ‘Rising Star,’ if you spend a few minutes with Martin Cabalar, you’ll realize it’s true. Cabalar, a shareholder in Becker’s New Jersey office, is part of the firm’s community association and construction litigation practice groups. He wears several hats, from serving as General Counsel for community associations to guiding communities through the developer transition process and representing homeowners and associations in construction defect litigation. “I love what I do because I get to help community associations make good business decisions. It’s a win-win,” says Cabalar.

And he knows a thing or two about winning. In 2023 alone, guided by Martin, Becker’s New Jersey team obtained more than 33 million dollars in settlements. Notable achievements over the past 7 years include:

  1. $20 million verdict in a landmark construction defect case that was particularly unique because the parent company of the developer was found to have used its subsidiary to perpetrate an injustice.
  2. $13 million settlement on the eve of trial for a condominium located along the Hudson Waterfront/New Jersey Gold Coast that experienced excessive settlement and water infiltration due to improperly installed building components.
  3. Eight-figure settlement for a large northern New Jersey condominium community in Passaic County, the case is still pending.
  4. Eight-figure settlement for a condominium in New Jersey, located on the Hudson Waterfront, that experienced excessive settlement and other construction defects due to improperly designed and constructed site and building components.
  5. $7.3 million in settlement for an Essex County townhome community experiencing water infiltration through the building envelope.
  6. $7-million-dollar settlement for a Hudson County waterfront condominium experiencing water infiltration and geotechnical soil settlement issues.
  7. $5.3 million settlement for a high-rise Jersey City condominium that experienced damage to its parking garage, building façade, balconies, windows, doors, and interior building components because of issues associated with design and construction.
  8. $1.1 million-dollar settlements for a condominium in Red Bank, New Jersey experiencing water infiltration through the roof, building façade and balconies into the residential units of the condominium building.

Cabalar focuses much of his efforts on working with communities through the “transition” phase. This period occurs after the developer transfers control of the association’s governing board to the community owners. “There is a period of due diligence that follows the transition election that the board goes through. This includes hiring various professionals–usually management, legal, accounting, engineering—to be sure the developer met its legal obligations to the community. My role is to serve as the ‘quarterback’ to guide them down the field through what is otherwise a very unfamiliar process for most volunteer board members,” says Cabalar. That includes making sure construction and site elements are built to code, the approved design plan is without defects, and the developer represented and managed the association’s finances properly during the time it controlled the association. Cabalar also makes sure the developer made adequate representations relative to the association’s reserve funding and met those obligations. On the issue of proper reserve funding, he says, “if there are discrepancies or deficiencies, I work with the governing board to monetize them.”

Cabalar recommends obtaining an attorney to guide a community through transition shortly after the transition election. If you’re wondering why an association may need an attorney that early in the process, he says it’s more than the obvious of coordinating with the engineer and the accountant, so they know what the legal obligations of the developer are when preparing their reports and negotiating any claims. More importantly, Cabalar says, is to protect the association if the association cannot resolve claims with the developer and should end up in litigation. “Our role at that point is to serve as counsel and give advice to the board on how to negotiate these claims and try to come to a resolution with the developer. If they are unsuccessful and need to resort to litigation, they will not have unknowingly harmed any of their legal claims having involved counsel from the very start.” Cabalar says that all too often communities make decisions not realizing they are negatively impacting the likelihood of success in recovering on their transition related claims.

In addition to providing counsel to community associations, Cabalar represents homeowners and contractors in complex construction, land use and development, and contractual disputes. And with a recent construction boom—particularly along the Hudson waterfront, in Jersey shore towns, and the Southern New Jersey/Mt. Laurel area, he believes the number of construction defect claims may continue to rise. “Many HOAs, particularly the 55+ and active lifestyle communities, are experiencing deficient design or installed site elements such as drainage basins, issues with their clubhouses and water infiltration into condominium units. These can be a huge expense for a community association to correct.”

Right now, Cabalar is also helping his clients prepare for changes under the recently signed structural integrity and reserve funding law aimed to address condo safety and adequate reserve funding law. S2760/A4384 requires all community associations to bolster their reserve funds and many others to adhere to stricter inspection rules. “Associations are going to need to prepare for some additional expense for previous underfunding of their reserves and structural inspections on their buildings, if applicable. A lot of it depends on the type of structure, community, and age of their building. They should be getting their ducks in a row now, discussing with their legal counsel to map out the appropriate plan and timeline to meet these new obligations.”

Cabalar has been with Becker since 2012. He says Becker stands out among the competition for several reasons, but most notably for clients, “You are getting a firm that understands how to start, and more importantly, how to successfully finish a transition, should you need to get to the point of litigation. Bottom line, we know how to successfully litigate these claims. And because we know how to litigate, and we consistently do it well, we’re more often able to have success without litigation in the first place.”

Becker’s State Lobbying Update: Week 6, February 12 – February 16, 2024

Posted on by Marie Nganele

40-Day Count Down

We have now completed 40 days of the 60-day 2024 Legislative Session. The focus is now shifting to bills being heard on the floor as opposed to committee meetings. For those bills that have been assigned to committees but have not been heard, the likelihood of them passing this session is minimal.

There are currently 709 general bills out of 1,932 filed bills that have not been heard in any of their committees of reference. Currently, 22 bills have been enrolled and 6 have been signed into law by Governor DeSantis.

Budget

As lawmakers embark on the last three weeks of the 2024 Legislative Session, allocations for each budget silo have yet to be released putting into question when budget negotiations will begin.  The hope is that allocations will be released this week and negotiations will begin this weekend.  The General Appropriations Act requires a 72-hour “cooling off” period.  Per this requirement, the budget negotiations should be completed by March 5th.

Tax Package

HB 7073 – Taxation by Representative McClain

SB 7074 – Taxation by Finance and Tax Subcommittee

HB 7073 by Representative McClain is aimed to save businesses and consumers in Florida $728.1 million over the next two fiscal years.  For sales taxes, the bill creates a 14-day “back-to-school” tax holiday, in July and August 2024, for certain clothing, school supplies, learning aids and puzzles, and personal computers; two 14-day “disaster preparedness holidays in June and parts of August and September 2024 for specified disaster preparedness; a “Freedom Month” tax holiday has been trimmed from three-months down to one month, July 2024, for specified recreational items and activities; and a seven-day “Tool Time” tax holiday in September for tools and equipment needed in skilled trades.  The bill reduces the business rent tax to 1.25% for a year, saving businesses about $339.6 million.  Relating to corporate income tax, this bill creates a corporate income tax credit for businesses that hire persons with disabilities.  In addition, for property taxes, this bill expands the ad valorem tax benefits for renewable energy source devices.  HB 7073 was referred to one committee, Appropriations, and is scheduled to be heard on Tuesday, February 20th at 1:00 pm. Its Senate Companion, SB 7074, decreases insurance premium taxes and increases an allowance for small businesses remitting sales taxes.  Familiar provisions such as sales tax holidays are included however, the cut to premium insurance and business rent tax are not included in the SB 7074.  The bill is scheduled to be heard in its only committee of reference, Finance and Tax on Tuesday, February 20th at 1:30 pm.

Agriculture

HB 1613 – Hemp by Representative Gregory

SB 1698 – Food and Hemp Products by Senator Burton

HB 1613 by Representative Gregory modifies the definition of “hemp” and clarifies that it excludes both naturally and synthetically occurring versions of controlled substances, such as delta-8 THC. This measure aims to prevent the marketing of hemp products to children and prohibits the use of packaging featuring animals, toys, unique shapes, animations, or promotional characters. The bill also tightens the regulations for the sale or manufacturing of hemp extract by prohibiting event organizers from promoting non-compliant products. Additionally, the bill appropriates $2 million in non-recurring funds to buy testing equipment. The bill has passed three committees of reference and is scheduled to be heard in its final committee, Appropriations, on Tuesday, February 20th at 1:00 pm. Its Senate companion, SB 1698, by Senator Burton, unanimously passed the Senate floor on Thursday, February 15.  It was immediately certified and is now in Messages and headed to the House floor.

Local Administration

SB 812 – Expedited Approval of Residential Building Permits by Senator Ingoglia

HB 665 – Expedited Approval of Residential Building Permits by Representative McClain

SB 812 by Senator Ingoglia requires counties with more than 75,000 residents and municipalities with 30,000 residents or more to create a program to expedite the issuing of residential building permits based on an introductory plat and to issue the number of building permits by October 1, 2024. Local governments must update their expedited building permit program with the increased number by December 31, 2027. This requirement must conform to the Florida Building Code and require a local building official and a local governing body to mail a signed, certified letter with specific information to the Department of Business and Professional Regulation and the Department of Commerce. It has favorably passed in each committee of reference and has been placed on the calendar for a second reading. Its House companion, HB 665 by Representative McClain, provides that any city that does not have 25 acres of contiguous land designated by the local preliminary for residential development or agricultural purposes does not have to create the new preliminary plat process (previously exempted those cities under 30,000 residents).  The bill also defines who a qualified contractor is and requires a local government body to publish a list of at least 3 qualified contractors they may use to help with staffing and approve an expedited application for a preliminary plat.  This bill passed favorably in each committee of reference and has been placed on the calendar for a second reading.

HB 433 – Employment Regulations by Representative Esposito

SB 1492 – Employment Regulations by Senator Trumbull

HB 433 by Representative Esposito prohibits local governments from preferring contractors based on their wages or employment benefits. The bill removes the local government’s authority to enforce a minimum wage for specific employees under a contract. The state has been given the power to regulate employment terms and conditions and regulate workplace heat exposure requirements. However, local governments can still provide workplace heat exposure requirements for their employees, and the preemption of workplace heat exposure requirements does not apply if compliance will prevent the local government from receiving federal funds. The bill has favorably passed its second committee of reference, State Affairs, with a vote of 14 Yeas and 6 Nays. It is waiting to be scheduled for its final committee, Commerce. Its Senate companion, SB 1492, by Senator Trumbull, has favorably passed through two committees of reference, and it is waiting to be scheduled for its final committee, Rules.

HB 609 – Local Business Taxes by Representative Botana

SB 1144 – Local Business Taxes by Senator DiCeglie

HB 609 by Representative Botana regulates how local governments levy business taxes. The local business tax is a fee charged by the local government for businesses operating in its jurisdiction. The bill proposes a cap on the amount of revenue that a government can receive from these taxes based on the revenue earned during the fiscal year ending September 30, 2023, or the fiscal year ending September 30, 2024, whichever is greater. If a local government earns more revenue from local business tax than it did in the base year, it must proportionally reduce tax rates and issue refunds to taxpayers. Annual financial reports are required, including an affidavit attesting to compliance. If compliance is not met, then tax rates must be reduced, and refunds will be issued.  HB 609 was amended to not apply to fiscally constrained counties or a municipality located in a fiscally constrained county. The bill has favorably passed its last committee of reference, State Affairs, with a vote of 12 Yeas and 7 Nays. It is waiting to be placed on the calendar for a 2nd reading. Its Senate companion, SB 1144, by Senator DiCeglie, was referred to three committees of reference and has yet to be heard.

HB 791 – Development Permits and Orders by Representative Esposito

SB 1150 – Development Permits and Orders by Senator Perry

HB 791 by Representative Esposito revises the procedures for counties and municipalities to issue development permits and orders. A development permit is any official action of a local government that allows land development, including building permits, zoning permits, subdivision approval, rezoning, etc. A development order is issued by a local government and grants, denies, or grants with conditions an application for a development permit. This bill requires counties and municipalities to specify in writing the minimum information that must be sent in specific development applications, confirm receipt of an application within five business days, and issue a refund of application fees if specific deadlines are not met. The bill has favorably passed in each committee of reference and has been placed on the calendar for a second reading. Its Senate companion, SB 1150, by Senator Perry, has favorably passed its first committee of reference, Community Affairs, with a vote of 7 Yeas and 1 Nay. It is waiting to be scheduled for its second committee, Judiciary.

SB 648 – License or Permit to Operate a Vehicle for Hire by Senator DiCeglie

HB 377 – License or Permit to Operate a Vehicle for Hire by Representative Borrero

SB 648 by Senator DiCeglie relates to the licensing or permitting of a vehicle for hire.  Specifically, this bill prohibits a county or municipality from requiring a person to obtain an additional license from such county or municipality when that person holds a valid, active license or permit to operate a vehicle for-hire.  Similar to the statutory law for Uber/Lyft drivers, the bill currently contains an exemption for airports and  seaports.  The bill has favorably passed all three committees of reference and has now been placed on the Special-Order calendar for Wednesday, February 21st.  Its House companion, HB 377, favorably passed off the House floor with a vote of 118 Yeas and 1 Nay.  It has now been referred to Rules.

HB 7013 Special Districts by Representative Persons-Mulicka

SB 1058 Special Districts by Senator Hutson

HB 7013 by Representative Persons-Mulicka revises provisions relating to special districts which are units of local government created for a particular purpose, with jurisdiction to operate within a limited geographic boundary. The bill creates a 12-year term limit for elected members of governing bodies of most types of independent special districts unless the district’s charter provides for more restrictive terms of office.  The bill provides that the boundaries of an independent special district may only be changed by general law or a special act. Also, the bill adds additional criteria for declaring a special district inactive.  The bill unanimously passed off the House floor with a vote of 114 Yeas.  It has now been referred to Rules.  Its Senate companion, SB 1058, unanimously passed its final committee, Rules, with a vote of 17 Yeas.  It has now been placed on the calendar for a second reading.

Transportation

HB 1301 Department of Transportation by Representative (s) Abbott and Berfield

SB 1226 Department of Transportation by Senator DiCeglie

HB 1301 by Representative (s) Abbott and Berfield addresses matters related to transportation.  The bill provides that the Florida Department of Transportation (FDOT) may not expend state funds approved through the General Appropriations Act (GAA) to support a project or program of a public transit provider, certain transportation authorities, a public-use airport, or a port until they comply with s. 381.00316, F.S.  As it relates to public transit, the bill requires that any lane elimination or lane repurposing, recommendation, or application relating to public transit projects must be approved by a two-thirds vote of the transit authority board in a public meeting with a 30-day public notice.  The bill passed favorably in its final committee of reference, Infrastructure Strategies, with a vote of 17 Yea and 8 Nays. Its next stop will be the House floor.  Its Senate companion, SB 1226, is scheduled to be heard in its second committee, Appropriations Committee on Transportation, Tourism, and Economic Development, on Tuesday, February 20th at 1:30 pm.

“Association ‘Sunshine Laws’ Questioned” – News-Press

Posted on by Marie Nganele

Q: I was recently elected to the board of my condominium association. I thought we had to follow Florida’s sunshine laws, but our long-time president said this is not true. She claims we can meet whenever we want as long as no votes are taken, or assessments are not going to be made. Is this correct? (F.S., via e-mail)

A: Technically, yes, but as a practical matter, no. Chapter 286 of the Florida Statutes is called the Florida Government in the Sunshine Law. It does not apply to associations. However, Florida’s housing statutes have their own “sunshine laws.” These statutes are Chapter 718 of the Florida Statutes for condominiums, Chapter 719 for cooperatives, and Chapter 720 for homeowners’ associations.

These laws define a meeting as “any gathering of a quorum for the purpose of conducting association business.” A “gathering” is a majority of the board members together in person or remotely (audio and/or video) or any combination of remote/in-person presence. “Conducting business” is engaging in actions or discussions in furtherance of the purposes of the association. A vote does not need to be taken for “business” to be “conducted.”

All board meetings are open to all owners to attend in person, with certain exceptions. There is no owner right to attend by video link or audio call-in, although the board may permit it. The two exceptions to the open meeting requirements are meetings of the board with legal counsel regarding pending or proposed litigation, and meetings of the board regarding “personnel” (employee) matters.

Notice of all board meetings must be posted in a conspicuous place on the condominium, cooperative, or community property, as designated by board rule, 48 hours before the meeting, except in the event of an emergency.

Certain board meetings require 14 days actual notice to owners, plus 14 days posted notice. Special assessment meetings and meetings to adopt rules regulating the use of units/parcels are subject to the 14-day notice requirement.

An agenda for the meeting must be included with the posted notice. For condominiums and cooperatives, the board may not take up any item not on the agenda unless a majority of the board plus one determines that the matter is an emergency, and the action must be ratified at the board’s next meeting and the item must be on the agenda.

Owners have the right to speak at board meetings to all designated agenda items. The board is permitted to adopt rules regarding owner statements at board meetings. Most rules require the owners to sign up to speak at the beginning of the meeting or allow the chair to call on people who raise their hands. Usually, each owner is given a set time to speak (3 minutes is standard), and then the board closes the floor to owner’s comments and discusses and votes on the subject agenda item.

Owners have the right to video or audio record board meetings. Again, the board may adopt rules setting forth the required procedures for recording.

Except for meetings where 14 days’ actual notice is required, there is no requirement to give owners personal notice of board meetings, such as e-mails, nor digital notice, such as posting on a website. An exception to this rule is that there is a website requirement for any condominium association that governs a condominium of 150 or more units. In those situations, website posting is required.

Chance or informal encounters of a majority of the board are a “meeting” if association business is discussed. A majority of the board may be together and not conduct business, such as playing golf or attending an education seminar together.

The application of these rules to committees is a bit complicated. For condominiums and cooperatives, the same “sunshine laws” apply to any committee empowered to take final action on behalf of the association or make recommendations regarding the budget. Other committees do not need to comply if exempted by the bylaws, otherwise they must comply. For homeowners’ associations, committees empowered to approve architectural requests or expend association funds are required to follow these requirements. Other committees are not unless required by the governing documents.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

Mental Health and Wellness Committee: 2023 Year-In-Review

Posted on by Marie Nganele

Becker’s Mental Health and Wellness Committee would like to share our 2023 Year-in-Review video and thank everyone who participated in our many events, including our Speaker Series, Hydration Challenge, Nutrition Challenge, Meditation Challenge, and Gratitude Challenge.

At Becker, we’re not just about legal expertise – we prioritize mental health education. From insightful guest speakers to on-the-clock meditation and invigorating fitness challenges, we’re excited to showcase a glimpse of our Mental Health and Wellness initiatives from 2023.

Stay tuned for an exclusive sneak peek of what’s on the horizon for 2024 at the end of this video!

Wishing you wellness always.

Navigating Defamation Lawsuits and Non-Compete Clauses with Keith Grumer, of Grumer Law

Posted on by Marie Nganele

For more episodes of Take It To The Board, click here!

The topic of defamation has become more prevalent as civil discourse has eroded. Unfortunately, sometimes it is the rare board member and/or manager who has not been subject to some form of potential slander or libel throughout their course of community association service.

Host Donna DiMaggio Berger sits down with the highly respected litigator Keith Grumer of Grumer Law, to guide you through the complex legal terrain surrounding defamation as well as the ubiquitous non-compete clauses managers face throughout their careers. With their help, you’ll learn the differences between libel and slander, understand statutory damages in cases of libel and slander per se, and identify crucial communication strategies to avoid potential legal disputes. Donna and Keith also tackle non-compete provisions, providing insights into how these clauses bind both management professionals and the communities they serve.

Donna and Keith talk about the emotional toll board members often face when slander strikes. They examine alternatives to litigation, like the power of an apology. They also outline the critical distinction between opinion and accusation, helping board members discern when it’s time to defend their reputation and when it might be wiser to let cooler heads prevail.

Finally, they dive deep into the psychological battleground of legal disputes, offering practical advice to mitigate the stress and toxicity that often accompany them. Donna and Keith emphasize the importance of maintaining a healthy lifestyle and the power of community support to stay afloat during these trying times. With a thoughtful approach to litigation, they arm you with the tools for a resilient and strategic response to the challenges that come with defending your integrity in the face of adversity.

Conversation Highlights Include:

  • Various forms of defamation
  • Difference between libel and slander
  • How damages in a defamation claim are determined and recovered
  • Defenses to a defamation claim, including board members’ status as limited-purpose public figures
  • Elements of a non-compete clause for community association managers
  • Non-competes under Florida law vs. other states
  • President Biden’s proposed ban on non-competes
  • Advice for potential plaintiffs and defendants
  • Bonus: Find out what the Blue Pencil Rule is!

About Take It To The Board

Think you know what community association life is all about? Think again. Residents must obey the rules, directors must follow the law, and managers must keep it all running smoothly. Take It To The Board explores the reality of life in a condominium, cooperative or homeowners’ association, what’s really involved in serving on its board, and how to maintain that ever-so-delicate balance of being legally compliant and community spirited. Leading community association attorney Donna DiMaggio Berger acknowledges the balancing act without losing her sense of humor as she talks with a variety of association leaders, experts, and vendors about the challenges and benefits of the community association lifestyle.

If you’ve got a question, Take It To The Board with Donna DiMaggio Berger – We Speak Condo & HOA!

Episodes are available for subscription on iTunes, Amazon Music, Spotify, YouTube, or listen through any podcast streaming app. You can also click here for the full archive.

Becker’s State Lobbying Update: Week 5, February 5 – February 9, 2024

Posted on by Marie Nganele

Halfway Mark

The legislative session reached its “halfway” mark, Day 30, on Wednesday, February 7th.  Legislators are now heading into the second half of the 2024 session with both chambers having passed only 12 bills thus far.  Many of those bills are technical statutory revision bills required each year to make updates and delete provisions superseded by new laws.  By comparison, 19 bills passed through both Chambers during the first half of the 2023 session.  As the legislature continues to move forward, here are some of the top priority pieces of legislation that your Becker team is watching:

HB 1 – Social Media Use for Minors – Representative(s) Sirois, McFarland, and Rayner

SB 1788 – Social Media Use for Minors- Senator Grall

HB 1 requires a social media platform to prohibit children under the age of 16 from creating an account and to perform reasonable age-verification methods to verify that the age of a person attempting to create an account is 16 years of age or older.  The bill also requires social media platforms, that have existing accounts belonging to minors under the age of 16, to terminate the account, allow an account holder or confirmed parent or guardian to terminate the account, and permanently delete all personal information held by the social media platform relating to the terminating account. A House Speaker priority, the bill passed favorably through all assigned committees and passed the House floor in a vote of 106 Yeas and 13 Nays.  It has now been referred to Fiscal Policy. Its Senate companion, SB 1788, narrows the scope of the bill by revising the definition of “social media platform” to make the bill apply only to those platforms that have addictive features that are designed to cause account holders to use them excessively or compulsively. This bill also requires that reasonable age verification methods be conducted by nongovernmental and independent third parties that are not affiliated with the social media platform.  Passing its first committee with a vote of 7 Yeas and 2 Nays, this bill is waiting to be heard in its final committee Fiscal Policy.

SB 280 – Vacation Rentals by Senator DiCeglie

HB 1537 – Vacation Rentals by Representative Griffits

SB 280 by Senator DiCeglie revises the regulation of short-term vacation rental platforms like Airbnb and Vrbo.  Current law does not allow local laws, ordinances, or regulations that prohibit vacation rentals or to regulate the duration or frequency of the rental of vacation rentals.  The bill preempts the regulation of advertising platforms to the state and also defines “advertising platform”.  In addition, under this bill, a local government may require vacation rentals to be registered and they may charge a reasonable fee for registration.  If there is an issue with that registration, the owner could be fined up to $500.  The bill also states that the maximum overnight occupancy of a vacation rental cannot exceed two persons per bedroom, plus an additional two persons in one common area, or more than two persons per bedroom if at least 50 square feet per person.  The bill also gives the property owner up to 15 days to cure a problem before issuing a fine.  Passing favorably on the Senate floor with a vote of 27 Yeas and 13 Nays, the bill is now waiting to be heard by the House.  Its House companion, HB 1537, is waiting to be heard in its final committee of reference, Commerce.

Education

SB 1356 – School Safety by Senator Calatayud

HB 1473 – School Safety by Representative Trabulsy

SB 1356 by Representative Calatayud expands on protections first provided in the Marjory Stoneman Douglas High School Public Safety Act. This bill will allow sheriffs to waive specific requirements for the Chris Hixon, Coach Aaron Feis, and Coach Scott Beigel Guardian Program if the candidate has at least two years of law enforcement experience and has held an active law enforcement certificate within the past five years. School principals must provide instructions on FortifyFL annually and explain the consequences of a threat or a false report. The district school board must advertise FortifyFL on the school district website, on school campuses, and through other publication methods. For children taken into custody and suspected of a crime of violence or an offense that would be a felony, law enforcement agencies must notify the superintendent of schools. The superintendent must notify the chief of police or the public safety director of the postsecondary institution within 24 hours of the notification. It passed its second committee of reference, Criminal Justice, with a vote of 8 Yeas and 0 Nays. It is now waiting to be scheduled for its final committee of reference, Fiscal Policy. Its House companion, HB 1473, by Representative Trabulsy, has passed its second committee of reference, Appropriations, with a vote of 23 Yeas and 0 Nays. It is waiting to be scheduled for its third and final committee, Education & Employment.

Local Administration

SB 104 – Municipal Water and Sewer Utility Rates by Senator Jones

HB 47 – Municipal Water and Sewer Utility Rates by Representative Robinson

SB 104 by Senator Jones revises how municipalities can charge their customers based on location within and outside the municipality’s boundaries. Any municipality operating a water or sewer utility may charge the same rate, fees, and charges as consumers inside the municipal boundaries. The municipality may add a surcharge of no more than 25 percent to the consumers outside the boundaries. All rates, fees, or charges may not exceed 50 percent more than the total amount the municipality charges customers served within the municipality for the corresponding service. These rates may not be fixed until a public hearing allows consumers, tenants, and others interested to be heard concerning the rates. This bill has been amended once. The bill passed its first committee of reference. It passed its second committee, Community Affairs, with a vote of 8 Yeas and 0 Nays. It is now awaiting scheduling for its final committee, Rules. Its House companion, HB 47, by Representative Robinson, has passed two committees of reference with a vote of 16 Yeas and 0 Nays. It is now awaiting scheduling for its final committee, Commerce.

HB 1195 – Millage Rates by Representative Garrison

SB 1322 – Millage Rates by Senator Ingoglia

HB 1195 by Representative Garrison prohibits any increase in millage rates unless approved by a two-thirds vote of a governing body of a county, municipality, or independent special district unless a higher vote threshold is already required under current law. The bill passed favorably in its first two committees of references. It passed its final committee, State Affairs, with a vote of 13 Yeas and 4 Nays. It has been placed on the calendar for a second reading. Its Senate Companion, SB 1322, by Senator Ingoglia, passed its first committee of reference and its second committee, Finance and Tax, with a vote of 4 Yeas and 2 Nays. It is waiting to be scheduled for its final committee, Appropriations.

SB 684 – Residential Building Permits by Senator DiCeglie

HB 267 – Building Regulations by Representative Espositio

SB 684 by Senator DiCeglie requires governing bodies with 30,000 or more residents to create a program that expedites issuing building permits for residential subdivisions before a final plat is registered with the circuit court clerk by August 15, 2024. Local jurisdictions must reduce their permit fee by 75 percent if a private provider is retained for plan review or building inspection services. This bill shortens timeframes for the submittal, process, and review of applications for a building permit. The law allows an applicant to contract to sell a residential structure but not transfer ownership of a residential structure in the preliminary plat before the final plat is approved. The bill passed its first committee of reference, Community Affairs, with a vote of 5 Yeas and 3 Nays and is waiting to be scheduled for its second committee, Fiscal Policy. Its House Companion, HB 267 by Representative Esposito reduces the time frame that a local government must approve, approve with conditions, or deny a building permit application following the receipt of a completed and sufficient application unless the applicant waives such limitation in writing.  In addition, this bill requires local governments to approve applications for multifamily projects within 60 business days and to review completed applications for sufficiency within 10 business days.  This bill is waiting to be heard in its last committee, Commerce, it has not been scheduled yet.

SB 812 – Expedited Approval of Residential Building Permits by Senator Ingoglia

HB 665 – Expedited Approval of Residential Building Permits by Representative McClain

SB 812 by Senator Ingoglia requires counties with more than 75,000 residents and municipalities with 30,000 residents or more to create a program to expedite the issuing of residential building permits based on an introductory plat and to issue the number of building permits by October 1, 2024. Local governments must update their expedited building permit program with the increased number by December 31, 2027. This requirement must conform to the Florida Building Code and require a local building official and a local governing body to mail a signed, certified letter with specific information to the Department of Business and Professional Regulation and the Department of Commerce. It has passed favorably in its first committee of reference. It passed its second committee, Regulated Industries, with a vote of 6 Yeas and 0 Nays. It is now scheduled to be heard in its final committee, Rules, on Wednesday, February 14. Its House companion, HB 665 by Representative McClain, has made progress in committee by passing favorably in its first two committees of reference. It passed its third and final committee, Commerce, with a vote of 12 Yeas and 5 Nays. It is now waiting to be placed on the Special Order calendar to be heard on the House floor.

SB 1366 – My Safe Florida Condominium Pilot Program by Senator DiCeglie

HB 1029 – My Safe Florida Condominium Pilot Program by Representative Lopez (V)

SB 1366 by Senator DiCeglie establishes the My Safe Florida Condominium Pilot Program within the Department of Financial Services (DFS). This program will only be implemented if included in the annual legislative appropriations. This program aims to reinforce the protection of condominiums from hurricane damage by allowing eligible condominium associations to apply for hurricane mitigation inspections and grants. To be eligible, condominium associations must receive approval from a majority vote of the board of administration or a unanimous vote of all unit owners. The DFS must contract with wind certification entities, or an association may hire its own contractor. These contractors must qualify under a strict set of guidelines. A quality assurance program is implemented to ensure the mitigation improvements are completed to the standards set by the program. The bill passed its first committee of reference, Banking, and Insurance, with a vote of 11 Yeas and 0 Nays. It is awaiting scheduling for its second committee, Appropriations. Its House companion, HB 1029, by Representative Lopez (V) passed its first committee of reference, Insurance and Banking, with a vote of 18 Yeas and 0 Nays. It is awaiting scheduling for its second committee, State Administration & Technology Appropriations.

HB 95 – Yacht and Ship Brokers’ Act by Representative LaMarca

SB 92 – Yacht and Ship Brokers’ Act by Senator Hooper

HB 95 by Representative LaMarca requires the Florida Department of Business and Professional Regulation, precisely the Division of Florida Condominiums, Timeshares, and Mobile Homes to regulate yacht and ship brokers and salespersons. A “yacht” is any vessel exceeding 32 feet in length that is propelled by sail or machinery. If a person conducts business as a broker or salesperson in another state as their primary profession and carries out the purchase or sale of a yacht under this act, they are not required to obtain a license. However, this exemption only applies if the entire transaction is executed with a licensed broker or salesperson. A person can only qualify as a broker if they have obtained a salesperson license and can prove that they have directly participated in four transactions that resulted in the sale of a yacht or if they have completed at least 20 education credits approved by the division. This bill has passed favorably in its first two committees of reference. It passed its final committee, Commerce, with a vote of 17 Yeas and 0 Nays. It is waiting to be placed on the calendar. Its Senate companion, SB 92, by Senator Hooper, has passed favorably in each committee and has been placed on the Special-Order Calendar on Wednesday, February 14.

Criminal Justice

SB 796 – Combatting Human Trafficking by Senator Avila

HB 7063 – Anti-human Trafficking by Representative Overdorf

SB 796 by Senator Avila is an all-encompassing bill that updates the information to combat human trafficking. It diversifies the membership for the direct-support organization (DSO) board of directors for the Statewide Council on Human Trafficking. It replaces the human trafficking hotline with the Florida human trafficking hotline to better provide support for Floridians. It requires public lodging establishments to provide human trafficking awareness training to all state employees. Nongovernmental entities (NGOs) will be required to renew or extend a contract with a governmental entity that contains a declaration of facts attesting that they do not use coercion for labor or services. The bill passed its second committee of reference, Criminal Justice, with a vote of 8 Yeas and 0 Nays. It is now awaiting scheduling in its final committee, Fiscal Policy.  Its House companion, HB 7063 by Representative Overdorf has been placed on the calendar, for a Second reading.

Becker’s Washington Weekly: Week of February 12

Posted on by Marie Nganele

Congress Back in Town

The House and Senate return to Washington this week with a packed legislative agenda before leaving town for their Presidents Day week-long recess.

The majority of House bills set for the week will be taken up on expedited procedures and deal with international issues, including human rights abuses in China, Indo-Pacific partnerships, and combatting human and fentanyl trafficking. Legislation moving through regular order would repeal a Biden Administration rule pausing liquified natural gas import and exports.

Senators will return later in the week to continue debating a Ukraine-Israel aid package after advancing it over the weekend. This follows a failed attempt to pass another version of the bill with added immigration reform provisions.

Lawmakers will also hold several hearings this week, including the following:

  • The House Committee on Energy and Commerce will examine state utility regulators’ challenges in providing affordable electricity
  • The House Transportation & Infrastructure Committee will discuss disaster resources and FEMA
  • The House Homeland Security Committee will examine fire hazards in lithium ion batteries
  • The House Ways & Means Committee will hear testimony from IRS Chief Daniel Werfel

“Statute Of Limitations Apply to Associations” – News-Press

Posted on by Marie Nganele

Q: My homeowners’ association recently sent me a notice stating that I had to remove a number of tree stumps in my back yard. The stumps are from trees that were removed following Hurricane Irma. Nothing has changed since those trees were cut down over five years ago. I don’t understand why my association is bringing this issue up now. Isn’t there an outside limit on how long the association can wait to deal with something like this? (R.V., via e-mail)

A: Legal time limits regulating when actions can be brought against another party are known as the statute of limitations. Chapter 95 of the Florida Statutes contains the general statute of limitations laws in Florida.

The general statute of limitations in Florida for legal wrongs, generally known as “torts,” as well as violations of statutes is 4 years, while the statute on “contracts” is 5 years. That is a very general statement and there are many exceptions and legal interpretations.

The Florida courts have held that legal claims based on enforcing community association documents carry a 5-year statute of limitations based on the “contract” provisions of the statute. However, the statute of limitations does not begin to run until the “cause of action accrues,” which is a matter of significant legal debate in many lawsuits.

It is also important to understand that certain types of violations in the community association setting can reasonably be characterized as “ongoing” violations, meaning that there is basically no statute of limitations against the association taking legal action. Many “nuisance” type claims fall into that category, and I would expect that to be an argument your association would make if things came to that.

Q: Can you please explain the difference between common elements and association property in condominiums? (J.K., via e-mail)

A: Practically, it is usually a distinction without a difference, though that is not always the case.

The common elements are property subjected to condominium ownership by the declaration of condominium and not included within the units. The roof of a multi-story building is usually a common element. Every condominium (at least each one that I know of) has common elements. Legal title is held by the unit owners in “undivided shares” as “tenants in common.”

Association property is property where title is held by the association, rather than the unit owners as tenants in common. Most associations own some kind of personal property (such as pool furniture) which is technically association property. Most associations do not own land in the association’s name, it is usually held as common elements.

By and large, the statute attempts to treat common elements and association property that is real property the same. The rule on “material alterations” is one example; both common elements and association real property are treated the same. Permissible places for the posting of association notices is another example where the two types of property are treated the same.

The most significant difference between the two is that association real property can generally be sold with 75 percent approval of the members, unless the declaration contains a different requirement. Conversely, common elements generally cannot be sold without approval of all owners since they hold the legal title to it and would be required to sign a deed or other instrument to convey legal title.

Correction

Due to a typographical error which I missed, my February 4, 2024 column requires correction. Chapter 617.0802 of the Florida Not-For-Profit Corporation Act does not require a person desiring to run for a community association board to be a member of the organization. Requirements for membership as a condition of board eligibility must be contained in the governing documents for the community.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.

Becker Advises the Quick Group on Yachting Marine Service Acquisition

Posted on by Marie Nganele

New York, NY, February 9, 2024 – Becker & Poliakoff’s Corporate and International Practice Group acted as U.S. counsel to Quick S.p.A., and its wholly-owned subsidiary Quick USA, Inc., on its acquisition of Yachting Marine Service.  Gatti Pavesi Bianchi Ludovici Studio Legale, led by corporate partner Andrea Giardino and associate Gianmarco Melillo, represented Quick S.p.A. on matters of Italian law. Quick S.p.A. is owned by investment funds, Fondo Italiano d’Investimento SGR S.p.A. and Armònia SGR S.p.A., and the Marzucco family. The transaction closed on January 31, 2024.

The new company will become a service hub for Quick USA’s planned growth and expansion in the US, one of the largest and most important nautical markets in the world.

Quick USA represents all Quick Groups brands and lines which include thrusters, stabilization and motion control systems, boilers, carefully designed and engineered anchoring systems, lighting, deck equipment, furniture, ladders, catwalks, and much more.

Yachting Marine Service, based in Florida, specializes in assistance for superyachts and the main pleasure boating brands.

Becker Corporate Shareholder and Europe & Latin America Practice Group Chair Gabriel Monzon Cortarelli led the US law aspects of the transaction with assistance from corporate associate Valeria Angelucci and partners Jamie Dokovna (Labor and Employment matters) and Michael Burwick (Corporate Tax matters).

For more information on Becker’s International Practice Group, visit https://beckerlawyers.com/practices/international-services-europe-latin-america/.

About Becker

Becker is a multi-practice commercial law firm headquartered in Fort Lauderdale, Florida, with professionals at offices throughout the U.S. For more information, visit www.beckerlawyers.com.

“A ‘CliffsNotes’ Guide for New Condominium Board Members” – FCAP Managers Report

Posted on by Marie Nganele

The election is over, and you have earned a coveted seat on your condominium association’s board of directors. Now what? This helpful guide will provide you with a “CliffsNotes” version of important things to remember as you embark on your journey as a director.

What exactly does a member of the board of directors do? The board is the decision-making authority of the association; the directors are the captains of the ship. You are responsible for the administration and operation of your association, and you will be communicating with unit owners, association managers, and professionals retained to provide services, guidance, and advice to the board. The board is granted all of the corporation’s powers and duties and is tasked with making important decisions that will impact the owners and community. Directors must be very familiar with the association’s governing documents, hold meetings, prepare budgets, fund reserves, and maintain association property. Directors have a fiduciary relationship to the unit owners and must keep the interests of the association above their personal interests. Directors shall act honestly, in good faith, and in the best interest of the condominium all while exercising due care, diligence, and skill that a reasonably prudent person would exercise in similar circumstances. You are probably thinking that this sounds like an overwhelming list of responsibilities; however, there is a wealth of resources and professionals that you can (and should) rely on to help guide you in your new role.

Do Your Homework

If you have not done so already, you should take the time to review your association’s articles of incorporation, declaration of condominium, and bylaws (known as the “governing documents”), and you should understand what role each of these documents play in the operation of the association. The articles of incorporation establish the corporation. The declaration is the “guidebook” that regulates the use, appearance, and maintenance of the property. Can an owner park a commercial vehicle in the association’s parking lot? Can a unit be rented for periods of less than 30 days? Who is responsible for replacing windows and screens? The answer to all of these questions is found in your declaration. The bylaws contain the rules and procedures regarding the operation and governance of the association. The bylaws define how elections are held, when meeting notices must be posted and/or mailed, the responsibilities of the officers, how board vacancies are filled, and much more.

Schedule and Notice Board Meetings

The board conducts all association business and operations through scheduled board meetings. Any time that a quorum of the board is present discussing association business, it is considered a board meeting. All board meetings must be properly noticed and, with limited exceptions, are open to all unit owners. Notice of regular board meetings must specifically identify agenda items and must be posted conspicuously on the condominium property at least 48 hours before the meeting. However, there are certain board meetings, such as meetings at which a special assessment will be considered or where the board will adopt rules regarding use, that require notice to be delivered to owners and posted at least 14 days prior to the meeting. As a director, it is important to know when notice of meetings must be given to owners and how notice must be given, what meetings are “open” to unit owners, and when it is proper to hold and notice a “closed” board meeting.

Maintain the Property

The board of directors has a duty to maintain, repair, and replace property when necessary. In order to carry out these duties, directors must understand who is responsible for maintenance and repairs. The parties’ obligations are detailed in the declaration. Typically unit owners are responsible for the interior of their units, and the association is responsible for maintaining the common elements (areas outside the boundaries of the physical unit). Notwithstanding this general rule, directors must also understand the maintenance responsibilities for limited common elements such as balconies, garages, and lanais. Determining maintenance responsibilities can be  complicated, and some obligations may change if certain factors exist. As such it is prudent to consult with the association’s legal counsel to get a clear understanding as to maintenance responsibilities to avoid potentially costly issues now and in the future.

Directors should also understand that there are times when maintenance, repairs, and replacements are necessary due to events other than routine maintenance issues. When the property is damaged by a casualty event, the provisions in the declaration no longer dictate the parties’ responsibilities; the Condominium Act, Chapter 718, Florida Statutes, applies, and the association should report the claim to its insurance carrier.

Protect the Property

Every residential condominium in Florida is required to maintain adequate property insurance for full insurable value, replacement cost, or similar coverage that is based on the replacement cost of the property as determined by an independent insurance appraisal at least once every 36 months. The deductible is determined by the board and may be based on industry standards and the practice for communities of similar size and age, and having similar construction and facilities in the locale where the property is located. The insurance policy must provide primary coverage for all portions of the condominium association as originally installed or replacement of like kind and quality, in accordance with the original plans. The association’s coverage must exclude certain components that are the unit owners’ responsibility to insure, such as personal property within units or limited common elements, appliances, built-in cabinets, floor coverings, etc. An insurance professional familiar with condominium associations can assist in ensuring that your coverage complies with Florida law.

Budget, Plan, and Reserve

Inevitably, money issues are frequently a hot topic in condominiums. With insurance premiums skyrocketing and the cost of living increasing, there may be a temptation to keep assessments low. It is important to keep in mind that fiscal responsibility and financial management does not mean keeping the fees low by putting off necessary maintenance, repairs, and replacement. For certain associations, the law requires the association to undertake a reserve study (i.e., structural integrity reserve study); however, whether or not your condominium is required to commission a structural integrity reserve study, it is prudent to obtain a reserve study (and to update it regularly) to adequately budget and reserve for maintenance, repairs, and replacements.

Budgets must include estimated revenues and expenses. The budget also must include reserves for roof replacement, building painting, pavement resurfacing, and any other item of deferred maintenance or replacement cost exceeding $10,000.  Associations that are required to have a structural integrity reserve study (generally, associations that have buildings on the condominium property that are three stories or higher) must also maintain reserves for specific components identified in the Condominium Act that are related to the structural integrity of the building. Proposed budgets must include fully funded reserves; however, funding of certain reserve components (i.e., nonstructural integrity components) may be waived or reduced with a vote of a majority of all members. When it comes to preparing a budget and reserve funding, board members should work with qualified professionals to ensure that the association’s funding requirements are met.

Serving as a director of a condominium association does not have to be a daunting task. By familiarizing yourself with the association’s governing documents and the Condominium Act, educating yourself on important community association issues, and  surrounding yourself with professionals and qualified consultants that can provide advice and guidance when needed, your term as a director will be more effective, efficient, and beneficial to your community. And, who knows, it may evolve into a rewarding experience.

To read the original FCAP article, please click here.

Jennifer Biletnikoff is a Board Certified Specialist in Condominium and Planned Development Law and represents condominium, cooperative, mobile home and homeowners’ associations located throughout Southwest Florida including Collier, Lee, Sarasota and Charlotte Counties. She has particular experience in covenant enforcement and foreclosure law, and has also practiced in the areas of commercial, business and tort litigation.

Michael Gongora Recognized in Florida Legal Awards by the Daily Business Review

Posted on by Marie Nganele

Becker is proud to announce Michael Gongora, a community association Shareholder at our Miami office, has been named as a finalist in The Daily Business Review’s 2024 Florida Legal Awards. Michael is an honoree in the diversity and inclusion category.

Michael is a political trailblazer as the first openly gay Hispanic to win elected office in Florida. He also passed a Charter Amendment to protect everyone from discrimination in housing, employment, and public accommodations in Miami Beach while he was Miami Beach City Commissioner.

The Daily Business Review hosts its annual Professional Excellence Awards to recognize distinguished members of the Florida legal community in assorted areas of the law. Michael and other finalists were selected by The Daily Business Review’s editorial staff, as well as distinguished members of the Florida legal community. Winners will be announced at an awards ceremony in April.

Law.com subscribers can read the full list of honorees here.

Michael Góngora is the lead Community Association Litigator in the Miami office. His experience representing community associations includes handling various contracts, association declarations, litigation, and disputes that may arise from these and other issues.

Take It To The Board Podcast Ranks in the Top 10% of Most Popular Podcasts by Listennotes.com

Posted on by Marie Nganele

Becker is thrilled to announce our Take It To The Board podcast ranks in the top 10% of most popular podcasts globally by podcast search engine and database, ListenNotes.com.  Additionally, the podcast’s listen score, a metric that shows the estimated popularity compared to all public podcasts in the world, ranks 28. There are more than 3 million podcasts and 187 million episodes in the world, according to Listen Notes.

Take It To The Board, with more than 18,000 downloads, explores the reality of life in a condominium, cooperative, or homeowners’ association, what’s really involved in serving on its board, and how to maintain that ever-so-delicate balance of being legally compliant and community spirited. Leading community association attorney Donna DiMaggio Berger acknowledges the balancing act without losing her sense of humor as she talks with a variety of association leaders, experts, and vendors about the challenges and benefits of the community association lifestyle.

Episodes are available for subscription on iTunes, Amazon Music, Spotify, YouTube, or listen through any podcast streaming app. You can also click here for the full archive.