Article
Courtesy of The National Law Review
By Christopher I. Miller of Varnum LLP
Published November 19, 2023
With Florida legislation shifting frequently, condo and
HOA boards should be aware of the various new laws adopted by the State of
Florida that are likely to impact how their communities function or
otherwise operate. The following is a short summary of several of the
recently adopted bills that focus on governance in associations:
House Bill 919
Effective October 1, 2023, House Bill 919, also known as the “Homeowners
Association Bill of Rights,” introduces several provisions to the normal
operations of an HOA. Board meeting notices must now include specific agenda
items, except in the case of emergencies. Deposits that are collected from a
member for construction purposes must be kept separately and returned within
30 days after completion of the project, looking much more like the
requirements for security deposits in the rental of real property. Broad
protections have been added such as officers, directors and managers are
prohibited from soliciting or accepting anything of value without providing
consideration in return, except for minor food expenses or trade
fair-related goods or services. The immediate removal from office is now
mandated for officers or directors charged with specific crimes, including
forgery, theft/embezzlement, destruction of records and obstruction of
justice. Disclosure of conflicts of interest are required annually for
developer-appointed board members and officers, as well as for all directors
and officers before voting on matters that are influenced by the conflict.
HOAs that exercise their long-standing right to impose reasonable fines for
violations must hold mandatory hearings before the independent hearing
committee before the fine may be made due and owing. Additionally, a new
section, Section 720.3065, has been added to address fraudulent voting
activities and associated penalties, classifying them as first-degree
misdemeanors. These provisions aim to enhance transparency, accountability
and fairness within homeowners’ associations in Florida.
House Bill 437
Effective July 1, 2023, House Bill 437 introduces provisions that limit the
ability of HOAs in Florida to restrict the installation, display or storage
of certain items on parcels. Regardless of any association rules or
covenants, associations cannot prohibit parcel owners or tenants from
installing, displaying or storing items that are not visible from the
frontage or adjacent parcels, such as artificial turf, boats, flags and
recreational vehicles. This is likely to cause a lot of problems in HOAs,
especially for communities that have homes that abut a body of water and are
visible from the other side of the water. Finally, homeowners have the right
to display up to two flags, including the United States flag, the official
flag of Florida, military branch flags, the POW-MIA flag and first responder
flags, in a respectful manner, including on freestanding flag poles. While
the right to fly these flags is not new, its expansion to two flags and the
expanded list of flags that may be flown are substantial changes that every
HOA needs to be aware of.
Senate Bill 154
Senate Bill 154 introduces several changes and requirements for condominiums
and cooperatives in Florida. Several of the key provisions is the mandatory
structural inspection, now referred to as a “milestone inspection,” which
assesses the life-safety and adequacy of a building’s structural components
that have been changed or clarified in some way. The inspection must be
conducted by a licensed architect or engineer and identifies necessary
maintenance, repairs or replacements. Milestone inspections are required
every 10 years for buildings that are three stories or higher and reach 30
years of age. Additionally, the bill establishes deadlines, exemptions and
provisions for proximity to saltwater and acceptance of previous inspection
reports.
The bill also introduces updates to the definitions and requirements for the
Structural Integrity Reserve Study (SIRS) in condominiums and cooperatives.
The SIRS is a mandatory study conducted for buildings that are three stories
or higher as defined in the Florida Building Code, focusing on evaluating
various components related to the building’s structural integrity and
safety. The study identifies necessary repairs, replacements or maintenance
tasks for components such as the roof, structure, fireproofing, plumbing and
more. It establishes guidelines for reserve funding based on the findings of
the study and sets deadlines for completing the study. Certain components
are now exempt from the SIRS requirements while the limitation on waiving
SIRS funding has not changed. “Traditional” reserves (roof, painting and
paving) now require a majority vote of the total voting interests to reduce
or waive. The bill also addresses official records requests and the
distribution of inspection reports to unit owners. Finally, disclosure
guidelines have been added to ensure potential buyers of units are fully
apprised of the integratory of the building and provide the prospective
buyer with the opportunity to cancel or void the contract.
Overall, Senate Bill 154 introduces much needed clarification to the
regulations adopted last year as a means of ensuring the structural
integrity and safety of buildings in Florida. The requirement of milestone
inspections and SIRS to identify, address and ensure funding for necessary
repairs and maintenance for condominiums and cooperatives clearly remains at
the forefront of Florida politics.
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