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Bill Summary
By Milena Macias, Esq.
CCFJ Director for Legislative Affairs
Milena Macias, Esq.
HB
395 + SB 556
ANALYSIS OF SB 556 and HB 395
Hurricane Protection for Condominium Associations
This
analysis relates to proposed bills SB 556 and HB 395 and is
officially filed as “Hurricane
Protection for Condominium
Associations.” SB 556 was filed by Senator
Ed
Hooper,
and
HB
395 was filed
by
(General Bill by Tuck, co-sponsor) and Representative Vicki Lopez
with an effective date as of July 1, 2023.
We
should support these bills, but two of my concerns need further
clarification.
1. If a board fails to record the [voting] certificate for
hurricane protection, it will not affect the validity or
enforceability of the vote of the unit owners. (emphasis added.)
In my view, this is nonsense. Boards have a fiduciary duty to its
members. Failure to record the voting certificate by the Board (or
the attorney for the association) violates not only the duty owed to
members, but may violate public policy on transparency to unaware
prospective buyers.
2. The cost of such installation may be funded by the
association’s budget, including the use of reserve funds.
Frankly, the association budget is the vehicle to be used for the
cost of installation of hurricane protection. Allowing Boards to
use reserve funds as a cookie jar, may be an easy invitation to
Boards to set aside items projected in reserves. In so doing,
actual costs of hurricane protection may not be realized, and
monies set aside in reserves for repairs are diminished.
SB 556 and HB 395 bills are remarkably similar.
The bills relate to Hurricane Protection for Condominium
Associations. The bills amend definitions in s. 718.103, Florida
Statutes, to add a new subsection (18) entitled "Hurricane
Protection," to include hurricane shutters, impact glass,
code-compliant windows or doors, and other code-compliant hurricane
protection products used to preserve and protect the condominium
property or association.
The bills amend s. 718.104(4) F.S., with a new subsection (p)
requiring a Declaration to specify whether the unit owner or the
association is the entity responsible for the installation,
maintenance, repair, replacement of hurricane protection.
The bills amend s. 718.113(5), Florida Statutes and applies to all
residential and mixed-use condominiums regardless of when the
condominium is created pursuant to the declaration of
condominium. In addition, the word "require" is deleted and is
replaced by "authorize" Boards, relating to certain hurricane
protection specifications.
Moreover, verbiage was added to clarify uniformity: [t]o protect
the health, safety, and welfare of the people … in this state and to
ensure uniformity and consistency in the hurricane protections
installed by condominium associations and unit owners …" Actions
relating to hurricane protection are not considered to be a
material alteration or substantial addition to the common elements.
If responsibility of hurricane protection rests upon the association
pursuant to the declaration of condominium as originally recorded or
as amended, or if the unit owners are required to install hurricane
protection pursuant to the declaration of condominium as originally
recorded or amended, no vote is required.
If a vote by unit owners is required for installation of hurricane
protection measures, then (i) a certificate attesting to such vote,
(ii) to include the date that the hurricane protection must be
installed, (iii) record the certificate in the public records of the
county where the condominium is located, and (iv) copies of the
recorded certificate must be mail or and delivered to the unit
owners at the owners' address as reflected in the records of the
association, or by electronic transmission to unit owners who
previously consented to receive notice by electronic transfer.
In addition, if a board fails to record the certificate, it will not
affect the validity or enforceability of the vote of the unit
owners.
The bills provide that the board may operate for shutters, impact
glass, code-compliant windows or doors, or other types of
code-compliant hurricane protection installed pursuant to this
subsection without permission of the unit owners only if such
operation is necessary to preserve and protect the condominium
property /or association property.
The bills are amended to provide that a unit owner may be
responsible for the cost of any removal or reinstallation of
hurricane protection if the unit owner installed the hurricane
protection and its removal is necessary for the maintenance, repair,
or replacement of the condominium property or association property
for which the association is responsible. Expenses for the
installation, replacement, operation, repair, or maintenance of
hurricane protection on common elements and association property are
common expenses.
In addition, certain expenses are to be enforceable as
assessments. For example, if the association charges the unit
owner for the removal or installation of hurricane protection, such
charges are enforceable as an assessment and may be collected in the
manner provided under s. 718.116, Florida Statutes.
Moreover, the bills require that certain unit owners are to be
excused from certain assessments or to receive a credit for existing
hurricane protection, and the amount of credit that a unit owner
must receive. The credit to a unit owner must be equal to the
amount of the cost of installation for the unit.
The cost of such installation may be funded by the association’s
budget, including the use of reserve funds. The unit owner
remains responsible for the pro rata share of the expense of the
replacement, operation, repair, and maintenance of such shutters,
impact glass, code-compliant windows or doors, or other types of
code-compliant hurricane protection. Such expenses for the
installation, replacement, operation, repair, or maintenance of
hurricane protection on common elements and association property are
deemed common expenses.
EFFECTIVE
JULY 1, 2023
ORIGINALLY FILED
VERSION OF HB 395
ORIGINALLY FILED
VERSION OF SB 556
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