Q: What is the “DBPR” and does it have authority over homeowners’ associations? (C.S., via e-mail)
A: The Florida Department of Business and Professional Regulation is an executive branch state agency in Florida. Its secretary is appointed by the Governor.
The DBPR is responsible for licensing and regulating various businesses and professionals, through its various “Divisions.” The Division of Florida Condominiums, Timeshares, and Mobile Homes specifically regulates condominiums.
The condominium regulation portfolio of the Division includes: approval of developer filings and disclosures for new condominiums; education of board members and owners; enforcement of the condominium statute against developers, owner-controlled associations, and board members; providing a group of attorneys that handles pre-litigation arbitration of certain association-owner disputes; and adopting formal administrative rules that supplement the statutes on a wide variety of topics, and which have the force of law to a certain degree.
For example, if a condominium unit owner believes their association has violated a law, they have the ability, as to certain violations, to file a complaint with the Division’s “enforcement” arm, and have the matter looked at without charge. Conversely, in general, if an owner in a homeowners’ association has a dispute with their board, they are usually required to hire an attorney and address the matter in court.
There has been a public policy debate over the past several decades as to whether HOA’s should be “under the Division” in the same manner as condominiums. There are reasonable points and counterpoints on both sides of the ledger. To date, the Legislature has not seen fit to subject homeowners’ associations to regulation in the manner that exists for condominiums.
There are a couple of exceptions which have brought HOA’s within the Division’s jurisdiction. The Division is authorized by statute to adjudicate disputes between members and associations regarding recalls and elections. In 2024, the Division was also tasked with administering a new program imposing mandatory education requirements on directors of homeowners’ associations.
Q: As the president of a condominium board for the past several months, I am navigating the challenges left by the previous board of directors. Recently, I discovered a board member who was late on their assessments for more than 90 days, and I was unaware that it affected their seat on the board due to my limited knowledge of the law. Although this member has since made regular payments and is now fully caught up, I am unsure whether they should still be removed from the board. Should this member be dismissed despite their efforts to settle their dues? (D.M., via e-mail)
A: Section 718.112(2)(p) of the Florida Condominium Act states that if a director or officer is more than 90 days delinquent in paying any monetary obligation owed to the association, they are considered to have abandoned their office. This creates a vacancy that must be filled according to the law.
By contrast, Section 718.112(2)(d)4.b. of the Florida Condominium Act states that a director who fails to file the required written certification and complete newly mandated educational requirements is “suspended” from the board until they comply.
Comparing these two statutes, one uses the term “has abandoned their office” and one uses the term “suspended”. One statute provides an opportunity to correct the problem, one doesn’t. On that basis, I would say that unless that director has been elected or otherwise seated to a new term than the one occupied during the time of their delinquency, they are “off the board” and there is a vacancy on their seat that should be filled. Interestingly, the statute would not appear to prohibit filling the seat with the same person, if they have cured their delinquency.
I would recommend that you seek formal written advice from your association’s legal counsel to confirm my interpretation, seek guidance on whether this person can be reappointed (if that is desired), and whether there is any benefit in the board ratifying its past actions that may have been approved when a person who was removed from the board as a matter of law presumably voted on board items of business.
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.