Bill Summary By
CCFJ Director for Legislative Affairs
Milena Macias, Esq.
SB 630
Florida Statute Chapter 718 "CONDOMINIUMS”
F.S.718.1255 (4)-(7) --
Alternative Dispute Resolution
Other than elections and recall disputes, mandatory nonbinding
arbitration through the Division of Condominium no longer necessary
for disputes. Instead, either the unit owner or the Association has
the option having arbitration with the Division and/or pre-suit
mediation. This mirrors F.S., Chapter 720, demonstrating uniformity
and at the same time, provide an an avenue in in Court if the matter
is not settled in mediation. If all the parties agree, the
arbitration ruling is final and binding.
F.S.718.1265 -- Emergency Powers
Emergency powers are now expressly applicable to an emergency
declared due to a public health crisis such as Covid-19. The powers
can now be used to prevent harm “anticipated” to be caused in
connection with the emergency not just after the harm or damage has
occurred. During a declared state of emergency, in addition to Board
meetings, members meetings, committee meetings and elections can be
held in whole or in part virtually via telephone, real-time video
conferencing or similar real-time communication. The emergency
powers CANNOT prohibit unit owners, tenants, guests, agents or
invitees of a Unit Owner from accessing the Unit or the Common
Elements or Limited Common Elements for the purpose of ingress and
egress from the Unit when access is necessary in connections with
(a) the sale, lease, or transfer of title of a unit or (b) the
habitability of the Unit or for the health and safety of such
persons unless a governmental order or public health directive from
the CDC has been issued prohibiting such access to the unit.
However, such access is subject to reasonable restrictions adopted
by the association. The “disaster plan or emergency plan” can now be
implemented “during” the emergency rather than just before or after
the emergency. In determining to close or limit access to the
Condominium Property the Board can now rely on the advice of “public
health officials” not just an emergency management official or other
licensed professional.
F.S.718.202(3) -- Developer Pre-Sales Deposits
The law has long provided that purchase deposits can used for the
“actual” construction of the condominium. The term is expanded to be
“actual costs incurred by the developer” and the term “actual costs”
is defined to include but not be limited to “expenditures for
demolition, site clearing, permit fees, impact fees, and utility
reservation fees, as well as architectural, engineering, and
surveying fees that directly relate to construction and development
of the condominium property.”
F.S.718.303(3)(b) -- Fines and Suspensions
Payment of a fine approved by the fining committee is due 5 days
after the “notice of the approved fine is provided to the unit owner
or tenant” instead of 5 days after the date of the fining committee
meeting.
In addition, materials, equipment, or services must be kept for at
least 1 year after the receipt of the bid, rather than the the
current legislation, which requires that the bids be kept for at
least 7 years.
F.S. 718.5014 Ombudsman’s Office
This provision is confirmation that the Ombudsman’s office is no
longer must be located in Leon County.
F.S. 718.501(1)
Two or more condominiums existing DOC
can be put into a single document, without merging the Condominium
into a single.
This provision clarifies the existing law that two or more
Condominiums can merge their Declarations of Condominium into a
single document without merging the Condominiums into a single
Condominium.
After turnover, the Division has the authority to investigate
complaints regarding the failure of the Developer to maintain or
keep official records as required by law. This allows the Division
to investigate financial issues, elections, and unit owner access to
records, but also the Developers failure to maintain records.
F.S. 627.714(4) -- Condominium Insurance Subrogation
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 rights of subrogation against the
condominium association.
Florida Statute
Chapter 719 “CO-OPERATIVE”
F.S.719.103(25) “Cooperative”
This provision confirms that an interest in a Cooperative Unit is an
interest in Real Property.
F.S.719.104(2)(c) Official Records
This provision removes any requirement for an Owner to demonstrate
the need or purpose, for any reason when they request official
records. In addition, a new official record has been added to the
list - “all affirmative acknowledgements made pursuant to F.S.
719.108(3)(b)3”, which is discussed below, but the “affirmative
acknowledgment” is also added to the list of protected official
record not available to Owners per 719.104(2)(c)8.
F.S.719.104(2)(c) Virtual Board Meetings
This provision includes a new official record with an owners
affirmation acknowledgment and permits holding meetings in real time
by video conferencing and and vote.
F.S.719.106(1)(f)4 Recalls
This provision conforms to Chapter 718 to ensure uniformity among
all community associations, and to conform with hapter 718 recall
disputes allowing them to be filed in Court as well as arbitration
through Division.
F.S.719.106(1)(j) -- Annual Budget
This provision allows the Board to the annual budget at least 14
days prior to the start of the association’s fiscal year, and if the
Board fails to timely adopt the annual budget a second time, it
should be deemed a minor violation pursuant to the Division of
Condominiums and the prior year’s budget shall continue in effect
until a new budget is adopted.
F.S. 719.106(1)(j)1 - Illegal
Discriminatory Restrictions
This provision allows the board an to remove illegal discriminatory
restrictions contained in the governing documents without an owner
vote per F.S. 712.065.
F.S.719.128 -- Emergency Powers
Emergency powers are now expressly applicable to an emergency
declared due to a public health crisis such as Covid-19. The powers
can now be used to prevent harm “anticipated” to be caused in
connection with the emergency not just after the harm or damage has
occurred. During a declared state of emergency, in addition to Board
meetings, members meetings, committee meetings and elections can be
held in whole or in part virtually via telephone, real-time video
conferencing or similar real-time communication. The emergency
powers CANNOT prohibit unit owners, tenants, guests, agents or
invitees of a Unit Owner from accessing the Unit or the Common
Elements or Limited Common Elements for the purpose of ingress and
egress from the Unit when access is necessary in connections with
(a) the sale, lease, or transfer of title of a unit or (b) the
habitability of the Unit or for the health and safety of such
persons unless a governmental order or public health directive from
the CDC has been issued prohibiting such access to the unit.
However, such access is subject to reasonable restrictions adopted
by the association. The “disaster plan or emergency plan” can now be
implemented “during” the emergency rather than just before or after
the emergency. In determining to close or limit access to the
Condominium Property the Board can now rely on the advice of “public
health officials” not just an emergency management official or other
licensed professional.
This provision conforms to the
uniformity of Chapter 718 and allows Boards and Committees to hold
F.S.719.202(3) -- Developer Pre-Sales Deposits
At present, the law provides that purchase deposits can used for the
“actual” construction of the condominium. The term is expanded to be
“actual costs incurred by the developer” and the term “actual costs”
is defined to include but not be limited to “expenditures for
demolition, site clearing, permit fees, impact fees, and utility
reservation fees, as well as architectural, engineering, and
surveying fees that directly relate to construction and development
of the condominium property.”
F.S.719.303(3)(b) -- Fines and Suspensions
Payment of a fine approved by the fining committee is due 5 days
after the “notice of the approved fine is provided to the unit owner
or tenant” instead of 5 days after the date of the fining committee
meeting.
Florida Statute Chapter 720
“HOMEOWNER ASSOCIATIONS”
F.S.720.301(8)(c) Board Adopted
Rules
Board adopted rules and regulations have been removed from the
definition of “Governing Documents” so that amendments to the Rules
no longer have to be recorded in the public records. The Governing
Documents are now defined to include only the Declaration, the
Articles of Incorporation, and the Bylaws.
In addition to any of the authorized means of providing notice of a
meeting of the Board, the association may adopt a procedure for
conspicuously posting the meeting notice and the agenda on the
association’s website or an application that can be downloaded on a
mobile device for at least the minimum period of time for which a
notice of a meeting is also required to be physically posted on the
association property. Any rule adopted must, in addition to other
matters, include a requirement that the association send an
electronic notice to members whose e mail addresses are included in
the association’s official records in the same manner as is required
for a notice of a meeting of the members. Such notice must include a
hyperlink to the website or such mobile application on which the
meeting notice is posted.
F.S.720 -- Official Records
This provision removes any requirement for an Owner to demonstrate
the need or purpose, for any reason when they request official
records. In addition, a new official record has been added to the
list - “all affirmative acknowledgements made pursuant to current
law, but also the “affirmative acknowledgment” is also added to the
list of protected official record not available to Owners per
current law.
In addition, ballots, sign in sheets, voting proxies, and all other
papers relating to voting by parcel owners are official records and
must be maintained for at least 1 year after the date of the
election, vote, or meeting.
Further, a new official record has been added to the list “all
affirmative acknowledgements made pursuant to F.S. 720.3085(3)(c)3
and the “affirmative acknowledgment” is also added to the list of
protected official record not available to Owners per
720.303(5)(c)8.
F.S.720.303(4)(l) Official Records
This provision allows information an association obtains in a gated
community in connection with guests’ visits to parcel owners or
community residents to be protected official records and cannot be
inspected and copied by Owners making official records requests.
F.S.720.303(6)(C))(l) HOA Reserves and the Year End Financial
Report
The term “governing documents has been added so if the HOA does not
maintain Statutory reserves or the governing documents do not
obligate the developer to create reserves, this must be noted on the
year-end financial report with a bold all caps disclaimer.
In addition, statutory reserves are only if they are mandated by the
governing documents or by a vote of the members. Statutory reserves
used to be established in three ways: (a) The developer initially
established them prior to turnover in the Budget, (b) The governing
documents as drafted by the Developer mandate reserves or (c) The
members voted to establish them after turnover. The new law removes
type (a) and Statutory Reserves are now only created if they are
mandated in the governing documents or a vote of the members.
Moreover, a new official record has been added to the list to
confirm with Chapters 718 and 719 indicating that all affirmative
acknowledgements made pursuant to F.S. 720.3085(3)(c)3”, and that
such the “affirmative acknowledgment” is also added to the list of
protected official record not available to Owners per
720.303(5)(c)8.
F.S.720.303(6)(i)1-2 HOA Developer Reserves and Deficit
Funding
While a developer is in control of a homeowners’ association, the
developer may, but is not required to, include reserves in the
budget. If the developer includes reserves in the budget, the
developer may determine the amount of reserves included. The
developer is not obligated to pay for: (a) Contributions to reserve
accounts for capital expenditures and deferred maintenance, as well
as any other reserves that the homeowners’ association or the
developer may be required to fund pursuant to any state, municipal,
county, or other governmental statute or ordinance; (b) Operating
expenses; or (c) Any other assessments related to the developer’s
parcels for any period of time for which the developer has provided
in the declaration that in lieu of paying any assessments imposed on
any parcel owned by the developer, the developer need only pay the
deficit, if any, in any fiscal year of the association, between the
total amount of the assessments receivable from other members plus
any other association income and the lesser of the budgeted or
actual expenses incurred by the association during such fiscal year.
This law applies to all homeowners’ associations existing on or
created after July 1, 2021.
F.S.720.303(10)(b)3 -- Recalls
Recall disputes may now be filed not only for arbitration, but also
can be filed with the Division or in a Court. Mediation is no longer
required.
F.S.720.305(2) – Fines.
This provision allows payment of a fine approved by the fining
committee to be due 5 days after the “notice of the approved fine is
provided to the parcel owner or tenant” instead of 5 days after the
date of the fining committee meeting. will now require a “courtesy”
“Notice “of Late Assessment “prior to the notice of intent to lien.
In addition, prior to any change of delivery instructions, an
invoice for assessments or the statement of the account, the
association must deliver a written notice of such change to each
unit owner. This written notice requires at least 30 days before the
association sends the invoice for assessments or the statement of
the account by the new delivery method.
Moreover, a unit owner must affirmatively acknowledge either
electronically or in writing, their understanding of the association
revised delivery instructions.
An association cannot require payment of attorney fees relating to
any past due assessment without first delivering a written notice of
late assessment to the unit owner which specifies the amount owed to
the association and provides the unit owner an opportunity to pay
the amount owed without the assessment of attorney fees.
In addition, the presumption is that an association mailed the
notice in accordance with with current statute and can can be
established by a licensed manager (LCAM), board member, officer, or
agent of the association, providing a sworn affidavit attesting to
such mailing.
The form for the notice that must be used is contained in the
statute.
F.S.720.306(1)(G) NOTICE OF AMENDMENTS
This provision removes the requirement that notice of an adopted
amendment being recorded must be mailed to the Owner’s address as
listed on the property appraisers’ website. or the notice may now be
mailed to the mailing address the Association has listed in the
Association’s official records.
F.S.720.306(6)(h)1-5 -- Rental Restriction Amendments
This provision states that any governing document, or amendment to a
governing document, that is enacted after July 1, 2021, and that
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.
The new law also provides that notwithstanding the foregoing, an
association may amend its governing documents to prohibit or
regulate rental agreements for a rental term of less than 6 months
and may prohibit the rental of a parcel more than three (3) times in
a calendar year. Such amendments shall apply to all parcel owners.
However, the grandfathering aspect of an existing owner will be lost
when the parcel is sold and there is a change of ownership, a change
of ownership does not occur when a parcel owner conveys the parcel
to an affiliated entity, when beneficial ownership of the parcel
does not change, or when an heir becomes the parcel owner. The term
“affiliated entity” means an entity that controls, is controlled by,
or is under common control with the parcel owner or that becomes a
parent or successor entity by reason of transfer, merger,
consolidation, public offering, reorganization, dissolution or sale
of stock, or transfer of membership partnership interests. For a
conveyance to be recognized as one made to an affiliated entity, the
entity must furnish to the association a document certifying that
this subparagraph applies and provide any organizational documents
for the parcel owner and the affiliated entity which support the
representations in the certificate, as requested by the association.
For purposes of this paragraph, a change of ownership does occur
when, with respect to a parcel owner that is a business entity,
every person that owned an interest in the real property at the time
of the enactment of the amendment or rule conveys their interest in
the real property to an unaffiliated entity.
F.S.720.306(9)(c)1-5 and F.S.720.311(6)(h)1-5 - Elections
Election disputes may now be filed with the DBPR for binding
arbitation.r in the Court arbitration or a Court in the local
jurisdiction. No pre-suit mediation is required prior to filing.
F.S.720.3075
The Board may eliminate illegal discriminatory restrictions in the
governing documents without a vote of the owners.
Emergency Powers – F.S.720.316
Emergency powers are now expresly applicable to an emergency
declared due to a public health crisis such as Covid-19. The powers
can now be used to prevent harm “anticipated” to be caused in
connection with the emergency not just after the harm or damage has
occurred. During a declared state of emergency, in addition to Board
meetings, members meetings, committee meetings and elections can be
held in whole or in part virtually via telephone, real-time video
conferencing or similar real-time communication. The emergency
powers CANNOT prohibit unit owners, tenants, guests, agents or
invitees of a Unit Owner from accessing the Unit or the Common
Elements or Limited Common Elements for the purpose of ingress and
egress from the Unit when access is necessary in connections with
(a) the sale, lease, or transfer of title of a unit or (b) the
habitability of the Unit or for the health and safety of such
persons unless a governmental order or public health directive from
the CDC has been issued prohibiting such access to the unit.
However, such access is subject to reasonable restrictions adopted
by the association. The “disaster plan or emergency plan” can now be
implemented “during” the emergency rather than just before or after
the emergency. In determining to close or limit access to the
Condominium Property the Board can now rely on the advice of “public
health officials” not just an emergency management official or other
licensed professional.
In addition, such powers can be used to prevent harm “anticipated”
to be caused in connection with the emergency not just after the
harm or damage has occurred. During a declared state of emergency,
in addition to Board meetings, members meetings, committee meetings
and elections can be held in whole or in part virtually via
telephone, real-time video conferencing or similar real-time
communication. The emergency powers CANNOT prohibit parcel owners,
tenants, guests, agents or invitees of a parcel owner from accessing
the parcel or the Common Areas or facilities for the purpose of
ingress and egress from the parcel when access is necessary in
connections with (a) the sale, lease, or transfer of title of a
parcel or (b) the habitability of the parcel or for the health and
safety of such persons unless a governmental order or public health
directive from the CDC has been issued prohibiting such access to
the unit. However, such access is subject to reasonable restrictions
adopted by the association.
The “disaster plan or emergency plan” can now be implemented
“during” the emergency rather than just before or after the
emergency. In determining to close or limit access to the Property
the Board can now rely on the advice of “public health officials”,
not just an emergency management official or other licensed
professional.
EFFECTIVE
JULY 1, 2021
ENROLLED FILED VERSION
OF SB 630
|