Becker & Poliakoff

“Summary of Legislative Changes for Community Associations 2021” – NEFL CAI’s The Community Connection

“Summary of Legislative Changes for Community Associations 2021” – NEFL CAI’s The Community Connection

Becker & PoliakoffAs if the social, medical, and technological changes associated with the COVID-19 pandemic were not enough for community association board and members to adjust to over the past year, as of July 1, 2021, there are also a host of new changes to the Condominium (Chapter 718, F.S.), Cooperative (Chapter 719, F.S.), and Homeowner Association Acts (Chapter 720, F.S.), (collectively referred to as “The Acts”) which have practical and immediate effects on how associations operate and how they enforce and amend their governing documents.

Below is a high-level summary of some of the main legislative changes affecting community associations this year. Note that associations should consult with their attorney to review the current language of their governing documents to determine what amendments may be required in order to remain consistent with the current language of the relevant Acts applicable to the association.

Legislative Changes Affecting Condominium Associations

  1. Official Records Request (s.718.111(12)(a), (b), (c), F.S., effective July 1, 2021) – These recent amendments expand a tenant’s right to inspect the declaration of condominium, bylaws and rules; requires bids for work to be maintained for at least one (1) year after receipt and prohibits the association from requiring a purpose or reason for a records request. Additionally, s. 718.501(1), F.S., (effective July 1, 2021) was also amended to expand the jurisdiction of the Department of Business and Professional Regulation, Division of Condominiums, Timeshares and Mobile Homes (“Division”) to investigate complaints related to the maintenance of and unit owner access to association official records.
  2. Assessment Notices (s. 718.111(12) (a) and (c), F.S.; s. 718.116(6)(b), F.S.; 718.121(4) and (5), F.S., effective July 1, 2021) – These amendments require an association to maintain as part of the association’s official records all affirmative acknowledgments made by owners if the association changes its method of delivery of assessment notices; increases the time frame for the required presuit Intent to Lien and Intent to Foreclose notices from 30 days to 45 days; and requires an additional Statement of Account and Notice of Late Assessment prior to the association turning over the owner’s account to the attorney.
  3. Notice of Meetings (s. 718.112(2)(d)3. & 4., F.S., effective July 1, 2021) – This change expands the ability of the association to post official notices to the membership on association property and requires notices of meetings to include an agenda; be mailed, hand delivered, or electronically transmitted to each unit owner (consenting to receive electronic notice); and be posted in a conspicuous place on the condominium property or association property within the timeframe specified in the association’s bylaws, or at least fourteen (14) days, if there is no timeframe specified.
  4. Insurance Subrogation (s. 627.714(4), F.S.; effective July 1, 2021) – This recent amendment provides that if a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide the right of subrogation against the condominium association.
  5. Board Term Limits (s. 718.112(2)(d)2., F.S.) and Board Recall (s. 718.112(2)(j), F. S.), (effective July 1, 2021) – These amendments clarify that when determining applicability of the 8-year board term limit added to the Condominium Act in July 1, 2018 the director’s service start date will be on or after July 1, 2018 and now director recall disputes may be filed in state court or as a petition for arbitration with the Department of Business and Professional Regulation, Division of Condominiums, Timeshares and Mobile Homes (“Division”).
  6. Transfer Fees (s.718.112(2)(i) F.S., effective July 1, 2021) – The amendment increases the statutory amount the association can charge for transfer fees from $100 to $150. Note that an association may be required to amend their documents in order to remain consistent with the new statutory increase.
  7. Technology – Condominium Websites and Apps (s.718.111(12)(g) F.S., effective July 1, 2021) – For condominiums with 150 or more units, an association may make certain required documents available through an application (“app”) that can be downloaded on a mobile device instead of posting copies of those documents on the association website.
  8. Alternative Dispute Resolution (Arbitration and Mediation of Disputes, (s. 718.112(2)(k), F.S effective July 1, 2021) – Instead of requiring associations and unit owners to arbitrate certain disputes with the Division, association and unit owners can now choose to attempt mediation of disputes if the association’s bylaws require alternative dispute resolution prior to filing a lawsuit.
  9. Electric Vehicle and Natural Gas Charging Stations – (s. 718.113(8) & (9), F.S.; effective July 1, 2021) – These new provisions expand an owner’s right to install an electric vehicle or natural gas charging station within an owner’s limited common element or association designated parking space subject to certain conditions.
  10. Conflicts of Interest – (s. 718.112(2)(p), F.S., effective July 1, 2021) – This amendment removes the prohibition against association contracts with a service provider that is owned or operated by a board member (or certain relatives with a financial relationship); however, note that other conflict of interests provisions may still apply.
  11. Board Emergency Powers – (s. 718.1265(1), F.S., effective July 1, 2021) – In light of the COVID-19 pandemic, this amendment expands the association board’s powers when there is an “emergency” now defined to include “any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results in or may result in substantial injury or harm to the population or substantial damage to or loss of property.”
  12. Payment of Fines (s. 718.303, F.S., effective July 1, 2021) – This amendment provides that a properly imposed fine for violations of the governing documents is due 5 days after notice of the approved fine is provided to the unit owner and, if applicable, to any tenant, licensee, or invitee of the unit owner.
  13. Removal of Discriminatory Covenants (s.718.111(1)(c) F.S., effective July 1, 2021) – Pursuant to s. 712.065, F.S., this amendment allows condominium association boards, without a vote of the owners, to remove discriminatory restrictions contained within an association’s governing documents, upon the request of a parcel owner.
  14. Multicondominiums (s. 718.405(5), F.S., effective July 1, 2021) – Multicondominium associations may adopt consolidated or combined declaration of condominium but cannot merge the condominiums or change the legal descriptions of the condominium parcels, unless accomplished in accordance with relevant law.

Legislative Changes Affecting Homeowners Associations

  1. Rental Agreements (s. 720.306(1)(h)1.F.S., effective July 1, 2021) – Similar to the already existing language in the Condominium related to amendments restricting or prohibiting rental agreement, the HOA Act now provides that, except as otherwise provided in s. 720.306(1)(h), F.S., any governing document or amendment to a governing document that is enacted after July 1, 2021, which prohibits or regulates rental agreements, applies only to a parcel owner who acquires title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or amendment. However, an association may amend its governing documents to prohibit or regulate rental agreements for a term of less than 6 months and may prohibit the rental of a parcel for more than three times in a calendar year, and such amendments shall apply to all parcel owners regardless of whether they vote or how they vote.
  2. Removal of “Rules and Regulations” from definition of “Governing Documents – (s. 720.301(8), F.S., effective July 1, 2021) – Board adopted rules and regulations are no longer statutorily defined as part of the association’s governing documents, meaning they no longer have to be recorded in the public records of the county.
  3. Official Records (s. 720.303(4), (5), F.S., effective July 1, 2021) – This change requires an association to maintain for at least 1 year after the date of the election, vote or meeting, the ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to the parcel owners’ voting. Additionally, any documentation obtained in a gated community in connection with guests’ visits to parcel owners or community residents are records not accessible to members or parcel owners upon request.
  4. Reserves (s. 720.303(6), F.S., effective July 1, 2021) – Reserves are now considered “mandatory” only if the declaration, articles or bylaws obligate the developer to create reserves or upon the affirmative approval of a majority of the total voting interests of the association. There were several other changes related to developer reserve funding which should be reviewed and discussed with the association’s attorney.
  5. Association Notice to Owners (s. 720.306(1)(g), F.S., effective July 1, 2021) – All official notices required by s. 720.306, F.S., must now only be sent to the mailing address in the official records of the association and no longer have to be sent to the address on the property appraiser’s website.
  6. Election Disputes (s. 720.306(9), F.S. effective July 1, 2021) – As of July 1, 2021, board of director election dispute must be submitted to binding arbitration with the Division or filed in state court.
  7. Association Turnover and Transition (s. 720.307(1)(a), F.S., effective July 1, 2021) – The HOA Act now provides that parcel owners other than the developer are entitled to elect at least a majority of the board of directors three months after 90 percent of the parcels in all phases of the community that will ultimately be operated by the homeowners’ association have been conveyed to members other than the developer.

The changes to the Condominium Act referenced above related to Posting of association documents on an association application (s. 720.303(2)(c)1., F.S.), Recall of board members ((s. 720.303(10), F.S.), Payment of Fines (s. 720.305(2), F.S.), Alternative Dispute Resolution Procedures (s. 720.311, F.S), Discriminatory Covenants (s. 720.3075, F.S.), and Emergency Powers (s. 720.316(1), F.S.) have also been amended in the above-referenced sections of the HOA Act.

Legislative Changes Affecting Cooperative Associations

  1. Definition of Cooperative “Unit” (s. 719.103(25),F.S., effective July 1, 2021) – The definition of “Unit” is amended to state that “an interest in a unit is an interest in real property.”
  2. Board and Committee Meetings (s. 719.106(1)(b)5., F.S., effective July 1, 2021) – A board or committee member participating in a meeting via telephone, real-time video conferencing, or similar real-time electronic or video communication now counts towards a quorum and such member may vote as if physically present.
  3. Official Records (s. 719.104(2)(c), F.S., effective July 1, 2021) – As is the case for condominium association unit owner records requests, an association may not require a member to demonstrate any purpose or state any reason in order to inspect the official records.

The same legislative changes to Chapter 718, Florida Statutes (The Condominium Act) referenced above were also amended in Chapter 719, Florida Statutes, with regard to: Director Recalls (s. 719.106(1)(f), F.S.), Alternative Dispute Resolution Procedures(s. 719.106(1)(l), F.S.), Discriminatory Covenants (s.719.106(3), F.S.), and Emergency Powers (s. 719.128(1), F.S.) Assessment Notices (s. 719.108(3)(b), F.S.).

The above summary is a non-exhaustive list of some of the legislative changes now applicable to community associations so be sure to consult further with your association’s counsel for a full review of the latest legislative changes, including an assessment of what may be required with regard to updating your association’s governing documents.

Please click here to read the original article on page 28 of NEFL CAI’s The Community Connection.

Shayla J. Mount focuses her legal practice on providing counsel and representation to homeowner and condominium associations throughout Central Florida. An experienced litigator, she has also served as general legal counsel for numerous homeowner and condominium association boards throughout Orange, Osceola, Seminole, Duval, and Sarasota Counties. To learn more about Shayla, please click here.