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2023 Legislative Update

CONDOMINIUM SAFETY

Milestone Inspection Deadlines

The following portions of the original law have been modified and now only relate to residential condominiums (including mixed use), that are three (3) stories or higher per FL Building Commission:

  • A building that is three (3) stories or more in height, as determined by the Florida Building Code, and that is subject to the condominium or cooperative form of ownership, must have a milestone inspection performed by December 31st of the year in which the building reaches thirty (30) years of age based on the date the certificate of occupancy, and every ten (10) years thereafter.
  • If a building has reached thirty (30) years of age before July 1, 2022, the building’s initial milestone inspection must be performed by December 31, 2024.
  • If a building reaches thirty (30) years of age on or after July 1, 2022, and before December 31, 2024, the building’s initial milestone inspection must be performed before December 31, 2025.
  • The local enforcement agency may determine that local circumstances, including environmental conditions such as proximity to saltwater, require that a milestone inspection must be performed by December 31st of the year in which the building reaches twenty-five (25) years of age.
  • Structural integrity and condition inspection reports prepared before July 1, 2022, may be accepted by the local enforcement authority, if the inspection and report substantially comply with milestone inspection requirements.
  • If an inspection was performed within the past five (5) years for a similar local government requirement, and meets the requirements required for the milestone inspection, such inspection may be used in place of the visual inspection portion of the structural integrity reserve study.
  • If the certificate of occupancy date is not available, Condominium can use the date of occupancy evidenced in any record of the local building official as the certificate of occupancy date.
  • Provides that the local enforcement authority can extend the inspection deadline with a showing of “good cause”.

Governmental Notice of Phase One Inspection Requirement

  • A local enforcement agency must provide written notice of the required inspection to the association by certified mail, return receipt requested.
  • The association must provide notice to the unit owners of the required milestone inspection within fourteen (14) days after receipt of the written notice and provide the date that the milestone inspection must be completed.
  • Phase one of the milestone inspection must be completed within one hundred and eighty (180) days after written notice was received from local government.

Phase Two Milestone Inspection

  • Within one hundred and eighty (180) days after submitting a phase one inspection report, the expert performing the required phase two inspection must submit a phase two progress report to the local enforcement agency.

Post Inspection Requirements

  • The engineer or architect performing the inspections must submit a sealed copy of the inspection report with the material findings and recommendations to the condominium association.
  • Within forty-five (45) days after of receipt, the association must:
    1. distribute a copy of the summary of the inspection report to each owner;
    2. post a copy of the inspector prepared summary in a conspicuous place on the property; and
    3. publish the full report and inspector prepared summary on the association’s website.

Local Ordinances

  • Local governments may adopt ordinances requiring associations subject to the milestone report requirements to commence repairs for substantial structural deterioration within a specified time frame after the local enforcement agency receives a phase two inspection.
  • Repairs must be commenced no later than 365 days after receiving the report.
  • If the owner of the building fails to submit such proof, then local government must review and determine if the building is unsafe for human occupancy.

Structural Integrity Reserve Study (“SIRS”) Deadlines

  • The structural integrity reserve study may recommend that reserves or replacement costs do not need to be maintained for any item with an estimated remaining useful life of greater than twenty-five (25) years, but the study may recommend a deferred maintenance expense amount for such item.
  • An Association existing before July 1, 2022, must have a structural integrity reserve study completed by December 31, 2024.
  • If an association is required to complete a milestone inspection on or before December 31, 2026, it may complete the structural integrity reserve study simultaneously with the milestone inspection period, however, in no event may the structural integrity reserve study be completed after December 31, 2026.

SIRS Exemptions

  • The requirement to have the structural integrity reserve study does not apply to:
    1. buildings less than three (3) stories in height;
    2. single family, two (2) family or three (3) family dwellings with three (3) or fewer habitable stories above ground;
    3. any portion or component of a building that has not been submitted to the condominium form of ownership;
    4. or any portion or component of a building that is maintained by a party other than the association.

Waiving and Reducing Reserves 

  • For budgets adopted on or after December 31, 2024, the association may NOT vote to waive or reduce reserves for the items required to be included in the structural integrity reserve study.
  • For budgets adopted on or after December 31, 2024, the association may NOT vote to use reserve funds for any other purpose for the items required to be included in the structural integrity reserve study.

Developer Requirements 

  • The developer requirement to provide the structural integrity reserve study as a part of turnover has been deleted and replaced with a requirement that the developer must have a turnover inspection report in compliance with §718.301(4)(p) & (q), Fla. Stat.
  • The turnover inspection report must attest to the required maintenance, condition, useful life and replacement costs of the following, applicable to the condominium property:
    1. Roof;
    2. Structure, including load bearing walls and primary structural members, and primary structural systems as those terms are defined in §627.706, Fla. ;
    3. Fire proofing and fire protection systems;
    4. Plumbing;
    5. Electrical systems;
    6. Waterproofing and exterior painting;
    7. Windows and exterior
    8. Elevators;
    9. Heating and cooling systems;
    10. Swimming pool or spa and equipment;
    11. Seawalls;
    12. Pavement and parking areas;
    13. Drainage systems; and
    14. Irrigation systems.
  • Developer disclosures are required to initial buyers of condominium at least fifteen (15) days prior to execution of the purchase and sale agreement, including a copy of the milestone inspection report, most recent structural integrity reserve study and, if not completed, then notice to the buyer explaining why they are not completed.
  • The purchase and sale agreements must include a clause that the agreement is voidable fifteen (15) days after the date of execution of the agreement by the buyer and receipt of the milestone inspection report. Contracts that do not conform are voidable at the option of the purchaser, prior to closing.

Unit Owner Disclosures

  • Unit owners are required to provide prospective buyers copies of the milestone inspection report and structural integrity reserve study at least three (3) days prior to execution of the purchase and sale agreement.
  • If the reports are provided, thereafter, the buyer has a three (3) day right of recission from the time such reports are Purchase and sale agreements that do not conform are voidable at the option of the purchaser prior to closing.

HOA BILL OF RIGHTS

Effective as of October 1, 2023

 Board Meeting Notices

  • Board meeting notices must identify all agenda items, except for emergencies.

Official Records

  • An association is now required to maintain the designated mailing addresses of the members, which is the property address, unless written notice to the association requesting a different mailing address be used for all required notices.
  • The association must also maintain e-mail addresses and facsimile numbers designated for receiving notice.

Fines

  • The 14-day fine hearing notice to the owner must be sent to the member’s designated mailing or e-mail address.
  • The notice must include a description of the violation, the action required to cure the violation, and the date and location of the hearing.
  • An owner has the right to attend the hearing by telephone or other electronic means.
  • The committee must provide written notice of the committee’s findings, any fines or suspensions approved or rejected, and how the owner may cure the violation.
  • The committee’s actions must be approved by majority vote of its members.

No Commingling of Funds

  • If an association collects a deposit from a member for any reason it must be maintained separately and may not be commingled with any other association funds.
  • The deposit must be returned within thirty (30) days after receiving notice lease or project completion.
  • An association must provide an accounting of the deposit within seven (7) days of request.

 “Kickbacks” – Still a No-No

  • An officer, director, or manager may not solicit, offer to accept, or accept anything or service of value for their or their immediate family’s benefit without consideration from any person providing or proposing to provide goods or services to the association.
  • Any violation is subject to monetary damages under 617.0834, Fla. Stat.
  • If the board finds that the officer or director violated the aforementioned, the board shall immediately remove the officer or director from office.
  • An officer, director, or manager may continue to accept food to be consumed at a business meeting with a value of less than Twenty-Five Dollars and 00 Cents ($25.00) per person, or a service or good receipt in connection with the trade fair or education program.

Immediate Removal of a Director or Officer

  • An officer or director must be removed from office if charged by information or indictment with any of the following crimes:
    1. forgery of a ballot envelope or voting certificate used in the election.
    2. theft or embezzlement involving association funds or property, as provided in §812.014, Fla.
    3. destruction of, or the refusal to allow inspection or copying of, an official record of a homeowners’ association which is accessible to parcel owners within the time periods required by general law, in furtherance of any Such act also constitutes tampering with physical evidence, as provided in §918.13, Fla. Stat.
    4. obstruction of justice, as provided in §843, Fla. Stat.

Required Conflict of Interest Disclosures

  • Developer appointed officers or directors must disclose to the association their relationship to the developer each calendar year.
  • A developer’s appointment does not create a presumption a conflict of interest in and of itself.
  • Directors and officers must disclose any activity that may be reasonably construed to be a conflict of interest at least fourteen (14) days before voting on an issue or entering into a contract that is the subject of a conflict.
  • A rebuttable presumption of a conflict of interest exists if any of the following acts occur without prior disclosure to the association:
    1. a director or officer, or their relative enters into a contract for goods or services with the association.
    2. a director or officer, or their relative, holds an interest in a business entity that conducts business with the association or proposes to enter into a transaction with the association.

Fraudulent Voting Activities – Association Elections

  • Effective on October 1, 2023, the following acts are considered a fraudulent voting activity and a first-degree misdemeanor:
    1. willfully and falsely swearing to, or affirming at oath or affirmation, or willfully procuring another person to falsely swear to, or affirm an oath or affirmation in connection with or arising out of voting activities.
    2. perpetrating, or attempting to perpetrate, or aiding in the perpetration of, fraud in connection with a vote cast, to be cast, or attempted to be cast.
    3. preventing a member from voting or preventing a member from voting as he or she intended, by fraudulently changing or attempting to change a ballot, ballot envelope, vote, or voting certificate of the member.
    4. menacing, threatening, or using bribery or any other corruption to attempt, directly or indirectly, to influence, deceive, or deter a member when the member is voting.
    5. giving or promising directly or indirectly anything of value to another member with the intent to buy the vote of that member or another member or to corruptly influence that member or another member in casting his or her vote. However, this does not apply to any food served which is to be consumed at the election rally or meeting or to any item of nominal value which is used as an election advertisement including a campaign message designed to be worn by a member.
    6. using or threatening to use direct or indirect force, violence or intimidation or any tactic of coercion or intimidation to induce or compel a member to vote or refrain from voting in an election or on a particular ballot measure.

STORAGE OF ITEMS ON A LOT AND

ABILITY TO DISPLAY CERTAIN FLAGS

Effective on July 1, 2023

Installation, Display, and Storage of Items

  • An association may not restrict the installation, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.
  • The above prohibition applies regardless of any covenants, restrictions, bylaws, rules, or requirements of an association, and unless prohibited by general law or local ordinance.

Display of Flags

  • A homeowner may display up to two (2) of the following flags, in a respectful manner:
    1. The United States flag.
    2. The official flag of the State of Florida.
    3. A flag that represents the U.S. Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard.
    4. A POW-MIA flag.
    5. A first responder flag.
  • A homeowner may fly one United States flag and one flag from the list above from a freestanding flagpole.
  • September 11th, Patriot Day, is added to the list of days a condominium unit owner may display armed forces flags.

If you have questions regarding how these new laws or amendments to any existing laws will impact your Association, please feel free to contact our office for assistance.

Posted in Governing Documents, Legislation
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