"GLITCH BILL" S 530 -- MORE HIDDEN CHAOS?

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published February 8, 2011

Last year's community association bill S1196 turned into a total disaster -- not creating more revenue for associations, but increasing the number of useless lawsuits that cost associations money they don't have.

If it was the goal of CALL (Community Association Leadership Lobby [Becker & Poliakoff]) to pit neighbor against neighbor by pushing this bill, they definitely succeeded. The war is on in many associations -- much to the pleasure of these association attorneys whose business is booming.

This new so-called glitch bill contains more of the same, more hidden problems for the owners who are desperately trying to resolve the financial misery. Glitch bills seem fashionable -- year after year we see the little changes these bills create. Favored are changes from "may be" to "must", from "must" to "shall" -- or vice versa. Shouldn't they have gotten it right by now? But it works perfectly for these attorneys: Each year the new wording creates lots of lawsuits -- and once the goal has been reached it's time to change the words again.

Last year it was: Membership roster without telephone numbers and e-mail addresses not accessible to unit owners, only to board members.
This year it is: Membership roster without telephone numbers and e-mail addresses only with consent of owners. What will it be next year?

Last year it was: No Personnel records whatsoever. It passed despite much protest.

This year it is: No Personnel records except employment agreements with an association employee or budgetary or financial records that indicate the compensation paid to an association employee. We had asked for that change last year, long before the bill passed the legislature. The provision made no sense whatsoever. What will it be next year?

For the fourth year in a row we see changes proposed to the language of the so-called Election Certificate and/or the Education Course. What's so difficult about it? Demand that every board member -- Condominium, Co-Op and Homeowners' Association -- satisfactorily completes the educational curriculum administered by division-approved education providers. PERIOD! Stop this stupid COP OUT allowing board members to sign a certification claiming that he/she "has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members." That certification is nothing but a joke!

Millions and millions of dollars are lost each year by board members who haven't the faintest idea about statutes, rules and regulations: "You want to serve, you want to be in charge of other people's money -- go to an education course first! It's free of charge in most cases -- don't go to the ones who want to charge for it -- and it's the minimum your neighbors can expect from you if you want to be in charge of their homes and lives!"

And the writers of the bill surely didn't forget to add some extra "collection" fees to the goodies for the service providers -- see FS 718.116 and FS720.3085(1)(a). Actually, these added provisions should be considered retroactive, since some law firms and management companies are already in the habit of charging "reasonable" expenses for collection services -- in the moment without authorization by the statutes. This change should now make it legal to fleece homeowners who have already fallen on hard times.

The provisions in this bill proposal also take care of discouraging any landlord from trying to catch up with late payments of association dues and/or continuing to pay the mortgage. Last year the renter was to pay only future monetary obligations -- after receiving notice. According to newly added language to FS 718.116(11), FS 719.198(10) and FS 720.3085(8) the renter now has to pay all rent due, leaving the landlord with no income whatsoever. It's really high time for the investor to abandon the property -- another unit empty with no dues being paid if the renter moves out. Who wants to live in a home knowing that you could get kicked out in a heartbeat?

Apropos: You knew what you were getting into when you signed the contract? Is that why the bill contains a strike-through in FS 720.305(4) -- like: ~~If the governing documents so provide,~~? In my opinion it clearly indicates changes to the original contract, wouldn't you agree? And then it gets even worse: Voting rights can now be suspended for non-payment of any monetary obligation, not just non-payment of regular assessments. That means that associations, that charge for legal fees for the association attorney writing a nasty letter, can now suspend your voting rights if you don't pay these (il)legal fees, even if charging these fees violates FS 720.305(2). The law clearly states that only the "prevailing party is entitled to reasonable attorney’s fees and costs from the nonprevailing party as determined by the court."

Ask House Representative Matt Gaetz how that works. I guess he will gladly explain it to you since associations, advised by the law firm he works for, levy such charges for legal fees -- without being the "prevailing" party.

But the bill contains as well a good provision: Supposedly it removes "Suspension by Ambush." [See as well FS 718.303(5)] No more owners appearing at the annual meeting being told in front of the neighbors: "You can't vote -- you owe the association money!"

This kind of ambush seems to have turned into a favorite pastime of sitting boards and managers.

THE ICING ON THE CAKE

The stepchildren of Florida's legislature, the "lucky" owners of homes in mandatory homeowners' associations (nearly double as many as condominium owners in condominium associations) are being rewarded in this bill with the ability of the board to contract for communication and information services, and add the cost for this bulk contract to the association's operating expenses [FS 720.309(2)]. After the horrible experience that have occurred in condominium associations with the payment for these bulk contracts -- neighbors had to pay for neighbors -- it's clear that the sponsors of this bill came up with this brilliant idea. They must be thinking: Why should the homeowners be better off than the condo owners? Let them taste as well the bitter medicine of bulk contracts! These owners knew as well what they were getting into when they signed on the dotted line -- according to Gary Poliakoff -- even if the governing documents didn't provide for such services. It seems to me that The Powers To Be expect these owners to be fortune tellers.

ANOTHER ASSOCIATION ATTORNEY RELIEF ACT

These are the HIGHLIGHTS of this bill that has been advertised as a glitch bill. The vague and ambiguous wording of this bill proposal is making sure that another glitch bill will have to be filed next year in order to hide some more provisions to increase the income of the service providers. Florida's community associations are on a slippery slope -- thanks to all these glitch bills that pop up year after year. But instead of improving the situation for associations and their owners, it makes it even worse -- much to the pleasure of the service providers and their bank accounts.

If this bill is enacted creating all the confusion as intended, please see the legal bills of our associations go up in a heartbeat! We are getting to the point where nobody knows any longer what is really right or wrong -- and our communities are regulated by statutes that create utter confusion instead of clear language that makes it easier for everybody to follow the rules.

Is that what the legislature has in mind when enacting all these bills?

  FS 718.116

  643 The association may

  644  also charge for any reasonable expenses for collection services

  645  incurred relating to the delinquent account. Any payment

  646  received by an association must be applied first to any interest

  647  accrued by the association, then to any administrative late fee,

  648  then to any expenses for collection services, then to any costs

  649  and reasonable attorney’s fees incurred in collection, and then

650 to the delinquent assessment.

FS 720.3085(1)(a)

 1463  The claim of lien also secures any

 1464  reasonable expenses for collection services relating to the

 1465  delinquent account which the association incurred before filing

1466 a claim.

  FS 718.116(11)

  691    (11)     If the unit is occupied by a tenant and the unit owner

  692  is delinquent in paying any monetary obligation due to the

  693  association, the association may make a written demand that the

  694  tenant pay all unpaid rent due to the association the future

  695  monetary obligations related to the condominium unit to the

  696  association, and continue to the tenant must make such payment

  697  until all monetary obligations of the unit owner related to the

  698  unit have been paid in full to the association. The demand is

  699  continuing in nature and, upon demand, The tenant must pay the

  700  rent the monetary obligations to the association until the

  701  association releases the tenant or the tenant discontinues

702 tenancy in the unit.

FS 719.198(10)

1199   (10) If the unit is occupied by a tenant and the unit owner

 1200  is delinquent in paying any monetary obligation due to the

 1201  association, the association may make a written demand that the

 1202  tenant pay all unpaid rent due to the association the future

 1203  monetary obligations related to the unit cooperative share to

 1204  the association and continue to the tenant must make such

 1205  payment until all monetary obligations of the unit owner related

 1206  to the unit have been paid in full to the association. The

 1207  demand is continuing in nature, and upon demand, The tenant must

 1208  pay the rent the monetary obligations to the association until

 1209  the association releases the tenant or the tenant discontinues

1210 tenancy in the unit.

FS 720.3085(8)

 1468    (8)  If the parcel is occupied by a tenant and the parcel

 1469  owner is delinquent in paying any monetary obligation due to the

 1470  association, the association may demand that the tenant pay all

 1471  unpaid rent due to the association the future monetary

 1472  obligations related to the parcel until all the monetary

 1473  obligations of the parcel owner related to the parcel have been

 1474  paid. The demand is continuing in nature, and upon demand, the

 1475  tenant must continue to pay the rent to the association the

 1476  monetary obligations until the association releases the tenant

 1477  or the tenant discontinues tenancy in the parcel. A tenant who

 1478  acts in good faith in response to a written demand from an

 1479  association is immune from any claim by from the parcel owner.

 1480  Any payment received from a tenant by the association must be

 1481  applied to the parcel owner’s most delinquent monetary

 1482  obligation.

FS 718.303(5)

   908     (5) An association may also suspend the voting rights of a

  909  member due to nonpayment of any monetary obligation due to the

  910  association which is more than 90 days delinquent. The

  911  suspension ends upon full payment of all obligations currently

  912  due or overdue the association. The notice and hearing

  913  requirements under subsection (3) do not apply to a suspension

  914  imposed under this subsection.

  915         All suspensions imposed pursuant to subsection (4) or (6)

  916  subsection (5) must be approved at a properly noticed board

  917  meeting. Upon approval, the association must notify the unit

  918  owner and, if applicable, the unit’s occupant, licensee, or

  919  invitee by mail or hand delivery.

 FS 720.305(4)

 1426         (4)(3) If the governing documents so provide, An

 1427  association may suspend the voting rights of a member for the

 1428  nonpayment of any monetary obligation that is more than regular

 1429  annual assessments that are delinquent in excess of 90 days

 1430  delinquent. The notice and hearing requirements under subsection

 1431  (2) do not apply to a suspension imposed under this subsection.

 1432  The suspension ends upon full payment of all obligations

 1433  currently due or overdue the association.

 1434        All suspensions imposed pursuant to subsection (3) or (5)

 1435  subsection (4) must be approved at a properly noticed board

 1436  meeting. Upon approval, the association must notify the parcel

 1437  owner and, if applicable, the parcel’s occupant, licensee, or

 1438  invitee by mail or hand delivery.

FS 720.3085(8)

 1468     (8)    If the parcel is occupied by a tenant and the parcel

 1469  owner is delinquent in paying any monetary obligation due to the

 1470  association, the association may demand that the tenant pay all

 1471  unpaid rent due to the association the future monetary

 1472  obligations related to the parcel until all the monetary

 1473  obligations of the parcel owner related to the parcel have been

 1474  paid. The demand is continuing in nature, and upon demand, the

 1475  tenant must continue to pay the rent to the association the

 1476  monetary obligations until the association releases the tenant

 1477  or the tenant discontinues tenancy in the parcel. A tenant who

 1478  acts in good faith in response to a written demand from an

 1479  association is immune from any claim by from the parcel owner.

 1480  Any payment received from a tenant by the association must be

 1481  applied to the parcel owner’s most delinquent monetary

 1482  obligation.

 Section 720.309(2)

 1523     (2)    If the governing documents provide for the cost of

 1524  communication services as defined in s. 202.11, information

 1525  services, or Internet services obtained pursuant to a bulk

 1526  contract shall be deemed an operating expense of the

 1527  association. If the governing documents do not provide for such

 1528  services, the board may contract for the services and the cost

 1529  shall be deemed an operating expense of the association but must

 1530  be allocated on a per-parcel basis rather than a percentage

 1531  basis notwithstanding that the governing documents provide for

 1532  other than an equal sharing of operating expenses. Any contract

 1533  entered into before July 1, 2011, in which the cost of the

 1534  service is not equally divided among all parcel owners may be

 1535  changed by a majority of the voting interests present at a

 1536  regular or special meeting of the association in order to

 1537  allocate the cost equally among all parcels.

 1538      (a) Any contract entered into may be canceled by a majority

 1539  of the voting interests present at the next regular or special

 1540  meeting of the association, whichever occurs first. Any member

 1541  may make a motion to cancel such contract, but if no motion is

 1542  made or if such motion fails to obtain the required vote, the

 1543  contract shall be deemed ratified for the term expressed

 1544  therein.

 1545     (b)    Any contract entered into must provide, and shall be

 1546  deemed to provide if not expressly set forth therein, that a

 1547  hearing-impaired or legally blind parcel owner who does not

 1548  occupy the parcel with a non-hearing-impaired or sighted person,

 1549  or any parcel owner receiving supplemental security income under

 1550  Title XVI of the Social Security Act or food stamps as

 1551  administered by the Department of Children and Family Services

 1552  pursuant to s. 414.31, may discontinue the service without

 1553  incurring disconnect fees, penalties, or subsequent service

 1554  charges, and may not be required to pay any operating expenses

 1555  charge related to such service for those parcels. If fewer than

 1556  all parcel owners share the expenses of the communication

 1557  services, information services, or Internet services, the

 1558  expense must be shared by all participating parcel owners. The

 1559  association may use the provisions of s. 720.3085 to enforce

 1560  payment by the parcel owners receiving such services.

 1561     (c)    A resident of any parcel, whether a tenant or parcel

 1562  owner, may not be denied access to available franchised,

 1563  licensed, or certificated cable or video service providers if

 1564  the resident pays the provider directly for services. A resident

 1565  or cable or video service provider may not be required to pay

 1566  anything of value in order to obtain or provide such service

 1567  except for the charges normally paid for like services by

 1568  residents of single-family homes located outside the community

 1569  but within the same franchised, licensed, or certificated area,

 1570  and except for installation charges agreed to between the

 1571  resident and the service provider.