HB 1593 / SB 2062

Relating to Homeowners' Associations

 
 

RED ALERT

 

SB 2062 -- Last Action: 05/06/2005 S Died in Committee on Community Affairs

HB 1593 --  Last Action: 05/06/2005 S Died in Messages

HOUSE COMMITTEE ON INSURANCE

The House Bill HB 1593 was severely amended during the meeting of the House Committee on CIVIL JUSTICE on Wednesday, March 30, 2005. 

The complete paragraph of the bill that would (quote): "authorizes condominium
association board to exercise specified emergency powers during emergency created by catastrophic event; provides immunity for acts taken by board in good faith" was removed and the Condo Advisory Council was directed to hold public hearings and prepare a report to the Legislature. (SEE BELOW)

So far, so good!  We really don't need any more power given to board members, especially dictatorial power that would open the door to more shenanigans, kickbacks and wasted funds!

 

But then the bomb dropped! Somebody sneaked in a little amendment -- a few words -- that would effectively reverse much of the reforms the HOA Task Force created in 2004. 

 

See how a few words can change a whole meaning (see: Green, Underlined):

FS 720.305 (2)  If the governing documents so provide, an association may suspend, for a reasonable period of time, the rights of a member or a member's tenants, guests, or invitees, or both, to use common areas and facilities and may levy reasonable fines, not to exceed $100 per violation, against any member or any tenant, guest, or invitee. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing, except that no such fine shall exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine shall not become a lien against a parcel unless it is imposed for violations of use restrictions on the land. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court.

These few words would give attorneys again the right to file liens for fines -- and then foreclose on a family's home.  In 2004 homeowners all over Florida had celebrated this as a great victory for property rights.  But here are again the attorneys at work pleading to restore their cash cow!  Attorney Paul Wean (Community Associations Institute - LAC) made a great plea claiming how important it is to restore this right for the welfare of the associations and owners. Wean absolutely forgot to mention that the only ones to really benefit from this change would be these specialized attorneys.  

It is getting really boring to hear always the same platitude from these same attorneys. And - funny enough - these same attorneys' names are always mentioned when the media reports about abusive lawsuits! Isn't it time -- even for attorneys -- to be honest with our legislators and admit that the real reason for this renewed attempt to revive the attorneys' cash cow is money?

We hear so much about asking lobbyists to reveal the details of their spending!
How about a law requiring attorneys to tell the actual truth - not twisted interpretations to serve their own advantage?

AMENDED VERSION HB 1593
1 The Civil Justice Committee recommends the following:
2
3      Council/Committee Substitute
4      Remove the entire bill and insert:
5
A bill to be entitled
6 An act relating to community associations; directing the
7 Advisory Council on Condominiums to hold public hearings
8 and prepare and present a report to the Legislature
9 regarding certain issues relating to the powers of
10 condominium associations during catastrophic windstorm
11 events and the recovery and rebuilding following such
12 events; amending s. 720.305, F.S.; providing that a fine
13 levied by a homeowners' association against a homeowner
14 shall not become a lien against a parcel unless it is
15 imposed for violations of use restrictions on the land;
16 amending s. 720.311, F.S.; providing that the failure of a
17 party to make payment of fees and costs or appear for a
18 mediation session or arbitration proceeding acts as an
19 impasse in the proceeding and entitles the other party to
20 proceed in court and to receive and enforce an award of
21 costs and fees associated with the mediation or
22 arbitration; deleting the training hours required for
23 certification of mediators and arbitrators; providing that
24 qualifications for certification as a mediator or
25 arbitrator will be established by the Florida Supreme
26 Court; deleting a provision requiring the initial costs of
27 educating homeowners and other parties about homeowners'
28 associations and the use of alternative dispute resolution
29 techniques to be paid from moneys and filing fees
30 generated by the arbitration of recall and election
31 disputes and by the mediation of those disputes; amending
32 s. 718.112, F.S.; extending a period in which condominium
33 common areas do not have to be retrofitted with sprinkler
34 systems; creating s. 712.11, F.S.; providing for the
35 revival of certain declarations that have been
36 extinguished; providing an effective date.
37
38 Be It Enacted by the Legislature of the State of Florida:
39
40      Section 1.  The Advisory Council on Condominiums is
41 directed to hold public hearings, study available options and
42 proposals, and prepare a report to the Legislature, including
43 recommended legislation, dealing with the protection and
44 preservation of condominium property at the time of anticipated
45 catastrophic windstorm events and the recovery and rebuilding
46 following such events. Recommendations should consider the
47 communication options with condominium owners in times of
48 anticipated and declared emergencies, financial planning for
49 protecting and rebuilding condominium property following such
50 events, and the powers and responsibilities of unit owners and
51 the board of directors of the condominium association before,
52 during, and after such occurrences.
53      Section 2.  Subsection (2) of section 720.305, Florida
54 Statutes, is amended to read:
55      720.305  Obligations of members; remedies at law or in
56 equity; levy of fines and suspension of use rights; failure to
57 fill sufficient number of vacancies on board of directors to
58 constitute a quorum; appointment of receiver upon petition of
59 any member.--
60      (2)  If the governing documents so provide, an association
61 may suspend, for a reasonable period of time, the rights of a
62 member or a member's tenants, guests, or invitees, or both, to
63 use common areas and facilities and may levy reasonable fines,
64 not to exceed $100 per violation, against any member or any
65 tenant, guest, or invitee. A fine may be levied on the basis of
66 each day of a continuing violation, with a single notice and
67 opportunity for hearing, except that no such fine shall exceed
68 $1,000 in the aggregate unless otherwise provided in the
69 governing documents. A fine shall not become a lien against a
70 parcel unless it is imposed for violations of use restrictions
71 on the land. In any action to recover a fine, the prevailing
72 party is entitled to collect its reasonable attorney's fees and
73 costs from the nonprevailing party as determined by the court.
74      (a)  A fine or suspension may not be imposed without notice
75 of at least 14 days to the person sought to be fined or
76 suspended and an opportunity for a hearing before a committee of
77 at least three members appointed by the board who are not
78 officers, directors, or employees of the association, or the
79 spouse, parent, child, brother, or sister of an officer,
80 director, or employee. If the committee, by majority vote, does
81 not approve a proposed fine or suspension, it may not be
82 imposed.
83      (b)  The requirements of this subsection do not apply to
84 the imposition of suspensions or fines upon any member because
85 of the failure of the member to pay assessments or other charges
86 when due if such action is authorized by the governing
87 documents.
88      (c)  Suspension of common-area-use rights shall not impair
89 the right of an owner or tenant of a parcel to have vehicular
90 and pedestrian ingress to and egress from the parcel, including,
91 but not limited to, the right to park.
92      Section 3.  Paragraphs (b) and (c) of subsection (2) and
93 subsection (3) of section 720.311, Florida Statutes, are amended
94 to read:
95      720.311  Dispute resolution.--
96      (2)
97      (b)  If mediation as described in paragraph (a) is not
98 successful in resolving all issues between the parties, the
99 parties may file the unresolved dispute in a court of competent
100 jurisdiction or elect to enter into binding or nonbinding
101 arbitration pursuant to the procedures set forth in s. 718.1255
102 and rules adopted by the division, with the arbitration
103 proceeding to be conducted by a department arbitrator or by a
104 private arbitrator certified by the department. If all parties
105 do not agree to arbitration proceedings following an
106 unsuccessful mediation, any party may file the dispute in court.
107 A final order resulting from nonbinding arbitration is final and
108 enforceable in the courts if a complaint for trial de novo is
109 not filed in a court of competent jurisdiction within 30 days
110 after entry of the order. The failure of any party to make
111 payment of fees and costs within the time established by
112 department rule or to appear for a scheduled mediation session
113 or arbitration proceeding shall operate as an impasse in the
114 proceeding between the parties, entitling the other party to
115 proceed in court and to receive and enforce an award of costs
116 and fees associated with the mediation or arbitration.
117      (c)  The department shall develop a certification and
118 training program for private mediators and private arbitrators
119 which shall emphasize experience and expertise in the area of
120 the operation of community associations. A mediator or
121 arbitrator shall be certified by the department only if he or
122 she has met the qualifications for a mediator established for
123 circuit court mediators has attended at least 20 hours of
124 training in mediation or arbitration, as appropriate, and only
125 if the applicant has mediated or arbitrated at least 10 disputes
126 involving community associations within 5 years prior to the
127 date of the application, or has mediated or arbitrated 10
128 disputes in any area within 5 years prior to the date of
129 application and has completed 20 hours of training in community
130 association disputes. In order to be certified by the
131 department, any mediator must also be certified by the Florida
132 Supreme Court. The department may conduct the training and
133 certification program within the department or may contract with
134 an outside vendor to perform the training or certification. The
135 expenses of operating the training and certification and
136 training program shall be paid by the moneys and filing fees
137 generated by the arbitration of recall and election disputes and
138 by the mediation of those disputes referred to in this
139 subsection and by the training fees.
140      (3)  The department shall develop an education program to
141 assist homeowners, associations, board members, and managers in
142 understanding and increasing awareness of the operation of
143 homeowners' associations pursuant to this chapter and in
144 understanding the use of alternative dispute resolution
145 techniques in resolving disputes between parcel owners and
146 associations or between owners. Such education program may
147 include the development of pamphlets and other written
148 instructional guides, the holding of classes and meetings by
149 department employees or outside vendors, as the department
150 determines, and the creation and maintenance of a website
151 containing instructional materials. The expenses of operating
152 the education program shall be initially paid by the moneys and
153 filing fees generated by the arbitration of recall and election
154 disputes and by the mediation of those disputes referred to in
155 this subsection.
156      Section 4.  Paragraph (l) of subsection (2) of section
157 718.112, Florida Statutes, is amended to read:
158      718.112  Bylaws.--
159      (2)  REQUIRED PROVISIONS.--The bylaws shall provide for the
160 following and, if they do not do so, shall be deemed to include
161 the following:
162      (l)  Certificate of compliance.--There shall be a provision
163 that a certificate of compliance from a licensed electrical
164 contractor or electrician may be accepted by the association's
165 board as evidence of compliance of the condominium units with
166 the applicable fire and life safety code. Notwithstanding the
167 provisions of chapter 633 or of any other code, statute,
168 ordinance, administrative rule, or regulation, or any
169 interpretation of the foregoing, an association, condominium, or
170 unit owner is not obligated to retrofit the common elements or
171 units of a residential condominium with a fire sprinkler system
172 or other engineered lifesafety system in a building that has
173 been certified for occupancy by the applicable governmental
174 entity, if the unit owners have voted to forego such
175 retrofitting and engineered lifesafety system by the affirmative
176 vote of two-thirds of all voting interests in the affected
177 condominium. However, a condominium association may not vote to
178 forego the retrofitting with a fire sprinkler system of common
179 areas in a high-rise building. For purposes of this subsection,
180 the term "high-rise building" means a building that is greater
181 than 75 feet in height where the building height is measured
182 from the lowest level of fire department access to the floor of
183 the highest occupiable story. For purposes of this subsection,
184 the term "common areas" means any enclosed hallway, corridor,
185 lobby, stairwell, or entryway. In no event shall the local
186 authority having jurisdiction require completion of retrofitting
187 of common areas with a sprinkler system before the end of 2020
188 2014.
189      1.  A vote to forego retrofitting may be obtained by
190 limited proxy or by a ballot personally cast at a duly called
191 membership meeting, or by execution of a written consent by the
192 member, and shall be effective upon the recording of a
193 certificate attesting to such vote in the public records of the
194 county where the condominium is located. The association shall
195 mail, hand deliver, or electronically transmit to each unit
196 owner written notice at least 14 days prior to such membership
197 meeting in which the vote to forego retrofitting of the required
198 fire sprinkler system is to take place. Within 30 days after the
199 association's opt-out vote, notice of the results of the opt-out
200 vote shall be mailed, hand delivered, or electronically
201 transmitted to all unit owners. Evidence of compliance with this
202 30-day notice shall be made by an affidavit executed by the
203 person providing the notice and filed among the official records
204 of the association. After such notice is provided to each owner,
205 a copy of such notice shall be provided by the current owner to
206 a new owner prior to closing and shall be provided by a unit
207 owner to a renter prior to signing a lease.
208      2.  As part of the information collected annually from
209 condominiums, the division shall require condominium
210 associations to report the membership vote and recording of a
211 certificate under this subsection and, if retrofitting has been
212 undertaken, the per-unit cost of such work. The division shall
213 annually report to the Division of State Fire Marshal of the
214 Department of Financial Services the number of condominiums that
215 have elected to forego retrofitting.
216      Section 5.  Section 712.11, Florida Statutes, is created to
217 read:
218      712.11  Covenants and restrictions.--A homeowners'
219 association that is not otherwise subject to chapter 720 may use
220 the procedures provided in ss. 720.403-720.407 to revive a
221 declaration of covenants and restrictions that has been
222 extinguished by this chapter entitled Marketable Record Titles
223 to Real Property.
224      Section 6.  This act shall take effect upon becoming a law.

 

THIS WAS THE PART STRICKEN FROM THE INITIAL BILL

CODING: Words stricken are deletions; words underlined are additions. 
 

18 Section 1. Section 718.1265, Florida Statutes, is

19 created to read:

20 718.1265 Association emergency powers in catastrophic

21 events.--

22 (1) In addition to emergency powers granted to a board

3 by the declaration, articles, bylaws, or general law and,

24 notwithstanding any provisions to the contrary in such

25 documents, the board, during an emergency in connection with a

26 catastrophic event may:

27 (a) Declare any portion of the condominium property

28 unavailable for entry or occupancy by unit owners, family

29 members, tenants, guests, agents, or invitees in order to

30 protect the health, safety, or welfare of such persons;

 

                                                       PAGE 1 

 

1 (b) Determine whether the condominium property can be 

2 safely inhabited or occupied. However, such determination is 

3 not conclusive as to any determination of habitability 

4 pursuant to the declaration; 

5 (c) Mitigate further damage, including preventing or 

6 eradicating fungus, mold, or mildew by removing wet drywall, 

7 insulation, carpet, cabinetry, or other fixtures, even if the 

8 unit owner is obligated by the declaration or law to insure or 

9 replace such items, and removing personal property from a unit 

10 and storing it on or off-site or disposing of it. Unit owners 

11 are responsible for reimbursing the association for such 

12 costs; 

13 (d) Contract, on behalf of unit owners or owners 

14 responsible to reimburse the association, for services for 

15 which the owners are otherwise responsible and which are 

16 necessary to prevent further damage. Such services include the 

17 drying of units, boarding of broken windows or doors, and 

18 replacement of damaged air conditioners or air handlers to 

19 provide climate control in the units or other portions of the 

20 property; 

21 (e) Implement a disaster plan prior to, during, or 

22 after a catastrophic event, including shutting down elevators, 

23 electricity, water, sewer, security systems, or air 

24 conditioners; 25 (f) Appoint persons who are not directors or officers 

26 to act as agents for or assist any director or officer due to 

27 incapacity or unavailability. Such agents have the same 

28 authority during the emergency as the person to whom they are 

29 appointed to act for or assist; 

30 (g) Relocate the principal office or designate 

31 alternative principal offices; 

 

                                                 PAGE 2

 

1 (h) Conduct board meetings with notice given only to 

2 directors with whom it is practicable to communicate. Such 

3 notice may be given in any practicable manner, including 

4 publication or radio. The directors attending such meetings 

5 constitute a quorum, regardless of any other quorum 

6 requirements. Notice of board decisions may be communicated by 

7 posted signs, mailed notice to members, Internet postings, 

8 public service announcements, or any other means of 

9 communication which the board deems reasonable under the 

10 circumstances; 

11 (i) Cancel and reschedule any association meeting; 

12 (j) Suspend or modify notice requirements for board or 

13 unit owner meetings; 

14 (k) Use reserve funds for nonscheduled purposes, 

15 including pledging reserve funds as collateral for loans to 

16 meet association needs; 

17 (l) Levy special assessments; or 

18 (m) Borrow money and pledge association assets as 

19 collateral without unit owner approval. This paragraph does 

20 not limit the general authority of the association to borrow 

21 money, which may be exercised by the board pursuant to the 

22 declaration, articles, or bylaws. 

23 (2) As used in this section, the term "catastrophic 

24 emergency" means: 

25 (a) A state of emergency declared by civil or law 

26 enforcement authorities is in effect for the areas where the 

27 condominium is located; 

28 (b) A hurricane watch or warning is in effect for the 

29 area where the condominium is located; 

 

                                                      PAGE 3

1 (c) A partial or complete evacuation order from civil 

2 or law enforcement authorities is in effect for the area where 

3 the condominium is located; 

4 (d) The area where the condominium is located is 

5 declared a state or federal disaster area or is eligible for 

6 state or federal economic relief because of a disaster; or 

7 (e) A disaster or other event, whether natural or 

8 manmade, such as an earthquake, flood, tidal wave or surge, 

9 hurricane, tornado, environmental contamination, fire, 

10 explosion, war, civil unrest, or act of terrorism seriously 

11 damages, or threatens to seriously damage, the condominium 

12 property. 

13 (3) Acts by the board taken in good faith during a 

14 catastrophic emergency bind the association and create a 

15 rebuttable presumption of being reasonable and necessary. Any 

16 officer, director, agent, or employee of the association who 

17 acts with a reasonable belief that such actions comply with 

18 this section is immune from civil liability for such act, 

19 except in the case of willful misconduct. 


CODING: Words stricken are deletions; words underlined are additions. 

 
BACK TO
PRIORITY BILLS		 HOME BACK TO
NEWS PAGES