Community Association Legislative Update 2021 – Part II
Florida’s 2021 Legislative Session is almost concluded. There are again a number of proposed bills relating to community associations currently being considered in Tallahassee. We are keeping a close eye on proposed legislation relating to or of interest to community associations. If passed and signed into law, these bills would impact community operations throughout the state. In Part I of this Community Association Legislative Update, we discussed the many statutory changes proposed in Senate Bill 630.
The below list is not all-inclusive of the other bills affecting or of interest community associations, and the bills will certainly change in number and substance before the end of the regular session. However, below is a snapshot summary of the currently pending legislation which impacts Florida condominiums and homeowner associations:
HB 7 / SB 72 – Civil Liability for Damages Relating to COVID-19 –
- Provides entities relief from liability for Covid -19 related claims, including not-for-profit corporations such as community associations.
- Provides a plaintiff’s complaint must be plead with particularity and must include an affidavit signed by a Florida licensed physician attesting that within a reasonable degree of medical certainty that the plaintiff’s Covid – 19 related claims occurred as a result of the defendant’s acts or omissions.
- Provides that the court must determine as a matter of law whether the defendant made a good faith effort to substantially comply with authoritative or controlling government issued health standards for guidance at the time the cause of action accrued.
- Provides evidence at this stage of the proceeding is limited to evidence tending to demonstrate whether the defendant made such a good faith effort.
- Provides that if the defendant made a good faith effort the defendant is immune from civil liability. If the defendant did not make such a good faith effort the case may proceed.
- Provides claims must be proven by a clear and convincing evidence of gross negligence for the defendant to be liable.
- Provides the statute of limitations for bringing a COVID-related claim is one year of the claim arising.
SB 56 – Community Association Assessment Notices –
- Provides if an association changes the method of delivery of invoices for assessments, the association must provide the owner written notice of the change of delivery method 30 days before issuance of the invoice.
- Provides an owner must affirmatively acknowledge the change in delivery method before it can be implemented.
- Provides an association must provide an owner with a late notice before attorney fees can be assessed to an account. The bill provides a proposed form notice that must be substantially complied with.
HB 872 – Homeowners’ Associations –
- Provides any governing document, or amendment to a governing document, that is enacted after July 1, 2021, and that prohibits or regulates leasing applies only to a parcel owner who acquires title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or
- Provides that notwithstanding the above, an association may amend its governing documents to prohibit or regulate rentals for a term of less than 6 months and to prohibit rentals more than three times in a calendar year.
HB 1259 / SB 1688 – Homeowners’ Association Recalls –
- Provides the statutory recall process supersedes an association’s governing document recall process.
- Provides for a recall of a director with a signed petition by 60% of the parcel owners whose parcels are their homesteads.
- Provides once 60% of homestead parcel owners sign the petition, the association must hold a meeting within 30 days to conduct a vote on the recall.
- Provides the recall is successful if a majority of the votes cast at the meeting support the recall.
SB 1966 – Department of Business and Professional Regulation –
- Removes delinquency of “any monetary obligation” (g., fines) as a disqualifier to be a board candidate.
- Provides instead that a potential candidate would have to be delinquent in the payment of an “assessment” to be disqualified from board service.
- Provides an owner is delinquent in payment of an assessment if payment is not made by the due date as specifically identified in the declaration of condominium, bylaws or articles.
- Provides the condominium association’s annual budget must be adopted no later than 30 days before the beginning of the fiscal year.
SB 1998 – Condominium Associations –
- Permits a condominium association to file a single joint petition for a tax appeal.
- Provides for additional rights of owners pertaining to value adjustment board decisions and disputes with the association. Should the association initiate such a challenge, by way of this legislation, the affected association members are not necessarily considered indispensable parties to the action.
- Provides any officer director or manager who knowingly solicits, offers to accept or accepts anything or a service of value commits a felony of the 3rd degree.
- Adds all bank statements, cancel checks and credit card statements, all invoices transaction receipts, deposit slips or other underlying documentation that substantiate any receipt or expenditure of funds by the association as an “official record.”
- Provides that all official records must be maintained in a manner and format prescribed by DBPR rule so that they are easily accessible for inspection.
- Requires associations operating twenty-five (25) or more units to maintain a website on which their official records must be posted.
- Provides that the association may fulfill its obligations of providing access to the official records by directing the individual to the association’s website if the records are posted on the website.
- Provides that in response to a statutorily compliant written request to inspect records, the association must simultaneously provide an itemized list to the requester of all records made available for inspection and copying and provide a sworn affidavit in which the person facilitating the association’s compliance with the request attest to the veracity of the itemized list. The itemized list must also identify any of the association’s records not made available. This list must be maintained by the association for seven years.
- Provides that any director or member of the board or manager who knowingly, willfully, and repeatedly violates the aforementioned requirements will commit a 2nd degree misdemeanor. Repeatedly means two or more violations within a 12 month period.
- Moreover, any person who willfully and knowingly refuses to release or otherwise produce association records with the intent to avoid or escape detection, arrest, trial or punishment for the commission of a crime or to assist another person with such avoidance or escape commits a 3rd degree felony punishable by up to five years in jail.
- Provides a person commits theft if they use an association debit card for anything other than what has been properly preapproved by the board and which approval is reflected in the meeting minutes or the written budget.
SB 1490 – Investments by Condominium Associations –
- Provides unit owners vote to authorize the investment of operating and reserve funds with an investment advisor.
- Provides the association must annually develop and adopt a written investment policy statement and select an investment adviser who is registered under s. 517.12 and who is not related to a board member or unit owner.
- Provides the investment adviser shall act as a fiduciary to the association in compliance with the standards set forth in the Employee Retirement Income Security Act of 1974.
HB 649 / SB 996 – Petition for Objection to Assessment –
- Provides a process to allow condominium and cooperative associations to seek a joint petition on behalf of their unit owners to appeal property taxes with the value adjustment board.
- Provides unit owners can opt out within fourteen (14) days of receipt of the association’s notice.
- Provides that if requested by a unit owner, the tax collector shall accept payment of the estimated amount in controversy, as determined by the tax collector, as to that unit whereupon the unit shall be released from any lis pendens.
HB 21 – Construction Defects –
- Provides that a person or party may not bring a cause of action for a material violation that exists within a completed building structure unless the party has submitted a claim for the alleged material violation under an applicable warranty.
- Provides a “material violation” means a violation that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in personal injury to a person or significant damage to the performance of a building or its system.
- Provides that the party must provide access to the property for an inspection within 30 days after serving a written warranty claim.
- Provides if the warranty provider offers to repair the material violation after an inspection, the party has 30 days after the inspection to provide written authorization to proceed with the repair and allow access.
- Provides that if written authorization is not provided by the party to the warranty provider, the party is barred from filing a cause of action under this section.
- Provides if the party gives written authorization and access to the property to repair the alleged material violation, the warranty provider has 120 days after the inspection to complete the repair or offer another remedy.
- Provides that if the warranty provider denies the claim, does not complete the repairs or offers a remedy that is unsatisfactory to the party, the party may file a cause of action under Ch. 558.
- Provides a claimant may not file any action relating to construction defects if the person served with 558 notice offers to remedy the alleged construction defect at no cost to the claimant and the claimant either rejects the offer or fails to respond to the offer within 45 days after receiving it.
- Clarifies applicability of Ch. 558 dispute resolution provisions.
- Clarifies content requirements for 558 notices.
SB 76 / HB 305 – Property Insurance –
- Reduces the time a property owner has to make an insurance claim from three years to two years.
- Disincentivizes attorneys from handling claims against insurance companies by limiting the amount of an award of attorney fees for a claim arising under a property insurance policy.
- Limits how much money an insured can recover for roof damage by allowing an insurer to provide a reimbursement schedule which provides in part for roof reimbursements of no less than:
- Seventy percent (70%) for a metal roof type;
- Forty percent (40%) for a concrete tile and clay tile roof type;
- Forty percent (40%) for a wood shake and wood shingle roof type; and
- Twenty-five percent (25%) for all other roof types.
- Provides cash value coverage may not apply to a roof if there is a total loss to a primary structure.
SB 522 – Vacation Rentals –
- Prohibits a local government from passing a law, ordinance or regulation prohibiting the regulation of vacation rental advertising on advertising platforms.
- Prohibits a local government from passing a law, ordinance or regulation prohibiting or regulating the duration of vacation rentals.
- Exempts condominium, cooperative and homeowner association restrictions from this law.
- Provides the owner or operator of a vacation rental offered for transient occupancy through an advertising platform must also display the vacation rental license number, the applicable Florida sales tax registration number, and the applicable merchant business tax receipt or tourist development tax account number under which such taxes must be paid for each rental of the property as a vacation rental.
- Provides additional requirements for advertising vacation rentals on advertising platforms.
SB 1638 – Condominium Fraud Investigation Pilot Program –
- Provides for a new condominium fraud investigation pilot program to be created by DBPR to investigate condominium related to fraud and corruption in Broward, Miami-Dade, and Monroe counties.
- Requires DBPR to hire three financial investigators, five investigators with law enforcement experience and three clerical employees.