“Impact of 2022 Legislative Summary on Community Associations” – FCAP Managers Report

“Impact of 2022 Legislative Summary on Community Associations” – FCAP Managers Report

The 2022 session of the Florida Legislature was statistically slightly above average with 1700 bills considered in its 60-day session. A total of 238 bills were passed by both houses and will be presented to the governor for his signature. Thirty bills were filed that could have impacted community associations. For residents of condominiums, the most significant impact of this legislative session is found in what did not pass.

In October 2021, the 2022 Florida Legislature was handed a 179-page comprehensive report and recommendations imposed by a blue-ribbon panel of Florida lawyers that was convened following last June’s catastrophic collapse of the Champlain Towers South Condominium in Surfside. That report by The Florida Bar Real Property Probate and Trust Law Condominium Law and Policy Life Safety Advisory Task Force considered inspection standards, reserve studies, reserve funding, and suggested several significant statutory changes. A bill approved by the Florida House would have included requirements for “milestone” inspections of aging condominiums near the Florida coastline and included a strict legislative regimen on funding reserves for new structural reserves. That bill would have made it more difficult for some condominium associations to waive full funding of reserves. The corresponding bill passed by the Florida Senate also included mandatory inspections, but a late filed amendment removed the mandatory funding of new reserves for structural elements of a condominium. Both bills dealt with issues of transparency, inspections, and maintenance. In the end, those bills could not be reconciled, and neither was passed.

Our clients are already being faced with this issue from a more direct and, in some instances, more immediate impact. Specifically, insurance carriers writing policies for high-rise condominiums have been requiring an evaluation within the last five years by a structural engineer and certification by the board of directors that the building is sound. The federal loan programs, Fannie Mae and Freddie Mac, have each required similar reports by structural engineers, completed within the last five years, and completion of a form by the condominium association attesting to the structural integrity of the condominium and funded reserves. Lenders are also requesting copies of six months of minutes as they look for special assessments and discussions of maintenance and repair issues. Those forms have been met with a mixture of concerns regarding potential liability and whether there is a legal obligation to respond to such questions. Florida condominiums are not alone in these concerns. Each condominium association and association manager would be well-advised to confer with association counsel for each specific community prior to taking action or not taking action regarding these issues.

Four bills of interest did ultimately pass the legislative session, and it is likely that the governor will sign each of the following into law:

  • CS/SB 1380 regarding property rights. This bill covers two real property issues: first, as to the Marketable Record Title Act, it clarifies that certain covenants, restrictions, zoning requirements, building, or development permits may be extinguished by the Marketable Record Title Act. However, a comprehensive plan or plan amendment, zoning ordinance, land development regulation, building code and similar regulations and covenants and restrictions which indicate on the first page that it has been accepted by governmental entity as part of the comprehensive plan, building code, building permit, or development order is not invalidated. The same bill allows the owner or operator of private property used for motor vehicle parking to establish rules and rates that govern private persons parking motor vehicles on such property. The rules and rates may include parking charges for violating the property owner’s or operator’s rules and must be posted and clearly visible to persons parking motor vehicles on such property. The charges issued under this statute would include a statutory disclosure that the invoice is not issued by a governmental authority and is not subject to criminal penalties. Both components are stated to be intended to clarify existing law and remedial in nature, meaning that these laws may be applied retroactively.
  • SB 352 regarding construction liens. This is a narrow bill amending Section 713.135 of the Florida Statutes relating to the determination as to whether certain direct contracts to repair or replace an existing heating or air-conditioning system are exempt from the requirements of a notice of commencement and the applicability of lien requirements for authorities issuing building permits.
  • CS/SB 438 regarding United States Space Force. This bill revises the definition of the term “Uniformed Service” to include the United States Space Force. Similarly, it revises the Armed Forces Officers authorized to take or administer specified oaths, affidavits, or acknowledgements to include the United States Space Force, among other changes to Florida laws relating to the armed forces and the specific inclusion of the United States Space Force. In the context of a community association, Sections 718.113 and 720.304 of the Florida Statutes have been amended to include the official flag that represents the United States Space Force as a flag that may be displayed by an owner in a condominium or by a homeowner.
  • CS/SB 518 regarding property rights to prune, trim, and remove trees. This bill revises conditions under which a local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property. Residential property is defined as a single-family, detached building located on a lot that is actively used for single-family residential purposes. The bill further indicates that a tree poses an unacceptable risk if removal is the only means of practically mitigating its risk below moderate, as determined by the tree risk assessment procedures outlined in Best Management Practices—Tree Risk Assessment, Second Edition (2017).

Two bills of limited interest to community associations, that also passed, should be noted: CS/HB 1571 prohibits picketing and protesting near a dwelling with intent to harass or disturb a person and provides for potential criminal penalties. CS/SB 1556 provides for golf course best management practices and exempts a person certified in golf course best management practices from ordinances relating to water and fertilizer use restrictions, unless a state of emergency has been declared.

A controversial bill did not pass this year, CS/CS/CS/SB 736, regarding construction defects. This bill would have reduced the statutory period within which actions founded on design, planning, or construction of an improvement to real property may be brought. The bill would have made other changes to Section 558 of the Florida Statutes regarding claims for defective construction. This issue is worth following in the next legislative session, as it is likely to resurface.

There is no doubt that 2022 being an election year did influence the outcome of this Florida legislative session. As of this writing, the governor has requested a special session of the Florida legislature to address the unfinished business relating to condominiums as referenced above and regarding insurance. To date, the Speaker of the Florida House has refused to call that special session. We will let you know if that standoff is resolved. We should take this time to meet with our representatives and to let our concerns and preferences be known so that we are best represented in the 2023 Legislative Session.

To read the original FCAP Managers Report article, please click here.

Steven Mezer is a Shareholder in Becker’s Community Assoication practice, and has extensive experience in all aspects of community association operations and community association law.