Based on a recent opinion from the Second District Court of Appeals, Community Associations should consider self-help/abatement rights to cure violations before filing a lawsuit for injunctive relief.
On April 13, 2022, the Second District Court of Appeal decided Mauriello v. Prop. Owners Ass’n of Lake Parker Estates, Inc., 337 So. 3d 484 (Fla. 2d DCA 2022). In Mauriello, the association sought an injunction against property owners to remedy a violation of the Association’s declaration of covenants for failing to maintain their lawn and landscaping. At the trial court, the property owners unsuccessfully argued the association was not entitled to an injunction because it had an adequate remedy at law, citing to the declaration provision allowing the association itself to remedy the violation and assess the cost of the remediation to the property owners.
Continue reading “Client Alert: Community Associations Self-Help Rights or Injunctive Relief”
The Florida Department of Business and Professional Regulation (“DBPR”) released the first 5-year adjustment to Estoppel Certificate Fees permitted under Section 718.116(8)(f), Florida Statutes, of the Condominium Act and Section 720.30851(6), Florida Statutes, of the Homeowners’ Association Act, for the maximum amount an association, or its authorized agent, may charge for preparation and delivery of an estoppel certificate. Continue reading “Client Alert: DBPR Increases Association Estoppel Certificate Fees”
Please find available here for download a “Condominium and Cooperative Milestone Inspection, Structural Integrity Reserves, and Mandatory Reserve Checklist” and “Condominium and Cooperative Milestone Inspection, Structural Integrity Reserves, and Mandatory Reserve Worksheet” for use in complying with new Florida statutory amendments to Chapters 553 and 718, Florida Statutes, enacted by Senate bill 4-D (2022) in response to the Champlain Towers South Condominium collapse.
For additional information relating to the Milestone Inspection, Structural Integrity Reserves, and Mandatory Reserve requirements, see our prior blog post or contact us directly.
Join us in-person or from the comfort of your own home for the Condominium and HOA Board of Directors Training Course. Shumaker is a division-approved education provider and this class will satisfy the requirements of Fla. Stat. §§ 720.3033 and 718.112 if completed within 1 year before or 90 days after being elected or appointed to the board.
- July 21 | Virtual |6:30 – 9:30 p.m.
- August 25 | Maggiano’s Little Italy | 6:30 – 9:30 p.m.
- September 22 | Maggiano’s Little Italy | 6:30 – 9:30 p.m.
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On May 26, 2022, Florida Governor DeSantis signed Senate Bill 4 into law, imposing substantial new structural safety and reserve requirements on Florida condominiums and cooperative associations. The law is effective immediately and is intended to prevent further disasters like the Champlain Towers South collapse in Surfside, Florida. The new requirements include:
- Milestone Inspections. Creation of Fla. Stat. Ch. 553 and amendment of Ch. 718/719, requiring submission to local building official of periodic “milestone inspections” of load bearing walls, structural members, and structural systems, sealed by a licensed architect or engineer, for any building three or more stories in height, except for a three story building with three or fewer single-family units.
- For pre-turnover condominiums and cooperatives, the developer must obtain and provide the association with a milestone inspection at turnover.
- For post-turnover condominiums and cooperatives with buildings with certificate of occupancies issued prior to July 1, 1992, the initial milestone inspection is due December 31, 2024, and every ten years thereafter.
- For post-turnover condominiums and cooperatives with certificates of occupancy issued July 1, 1992 or after, milestone inspection due by December 31 of the year in which the building reaches:
- 25 years of age, for buildings within 3 miles of coastline, or
- 30 years of age, for buildings not within 3 miles of coastline
- And every 10 years thereafter
- Upon notification from enforcement agency of past-due milestone inspection, the association must submit the inspection report within 180 days.
- Willful and knowing failure to obtain milestone inspections constitute a breach of officers and directors’ fiduciary duties.
- The association must post (physically and on web site, if applicable) and provide a copy of the milestone inspections to each unit owner, regardless of findings.
- Allows local enforcement agencies to prescribe timelines and penalties with respect to compliance with the requirements.
- Repairs recommended pursuant to milestone inspection must commence within the earlier of 1) 365 days from submission of the report; or 2) such sooner period of time as designated by the applicable Board of County Commissioners. Failure to perform repairs within the mandated time period requires the local enforcement authority to conduct a review to determine if the building is unsafe for human occupancy.
Continue reading “Florida Enacts Major New Reforms for Condominiums and Cooperatives in Response to Champlain Towers South Collapse “
Chapter 712, Florida Statutes, the Marketable Record Title Act (“MRTA”), presents a mortal risk to Florida homeowners association, potentially rendering them unable to levy and collect assessments or otherwise enforce their governing documents. Generally, MRTA extinguishes interests in a parcel of real property which are older than the “root of title” for the parcel – defined as the first deed or other instrument transferring ownership of the parcel which is at least thirty years old – unless an exception applies. Since a homeowners association developer typically records the declaration of covenants and restrictions and then begins to deed individual parcels to owners, a homeowners association’s declaration of covenants and restrictions is at risk of expiring beginning thirty years after the initial deed from the developer, unless an exception applies.
There are several exceptions to MRTA commonly applicable to prevent extinguishment of declarations of covenants and restrictions for homeowners associations. An exception arises where the root of title or subsequent deeds or other muniments of title identify the declaration of covenant and restrictions by book and page. An exception also arises where, subsequent to July 1, 2018, a homeowners association records a properly adopted amendment to its declaration of covenants and restrictions prior to extinguishment. Finally, an exception arises where the homeowners association records notice of preservation in accordance with Sec 712.06 or Sec 720.3032(2), Florida Statutes, prior to extinguishment. The simplest option for filing a notice of preservation is compliance with Sec 720.3032(2), which allows a duly authorized officer of the Association (i.e., pursuant to board vote) to record a notice of preservation containing basic information relating to the community specified in the statute, such as the legal name and address of the association, names of affected subdivisions, and identification of the recording location of the covenants, without limitation. See Sec 720.3032(2) for complete requirements. Continue reading “Homeowners Associations and the Marketable Record Title Act (“MRTA”)”
In the wake of the tragic condominium collapse in Surfside last year, lawmakers are working to update the state’s condo regulations, many of which have remained unchanged for upwards of 60 years. SB 1702 and SB 7042 seek to update regulations on condos to include mandatory minimum structural inspections and other inspection requirements relating to the building’s age, size, and proximity to the coastline. Both bills were unanimously approved by the Senate Regulated Industries Committee on Tuesday, and have one remaining committee stop. Similar measures in the House have yet to be considered in committee. Read more here.
Join us from the comfort of your own home for the Condominium and HOA Board of Directors Training Course. Shumaker is a division-approved education provider and this class will satisfy the requirements of Fla. Stat. §§ 720.3033 and 718.112 if completed within 1 year before or 90 days after being elected or appointed to the board.
October 6 | 6:30 – 9:30 p.m.
November 11 | 6:30 – 9:30 p.m.
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On June 16, 2021, Governor Ron DeSantis signed Senate Bill (SB) 56, adding new requirements to various sections of the Florida Statues relating to condominium, homeowners, and cooperative associations, with an effective date of July 1, 2021.
SB 56 increases the period of time a condominium or cooperative unit owner has to pay a monetary obligation under current statutory lien notices from 30 to 45 days, synchronizing the time frames with homeowners associations.
Additionally, SB 56 adds an additional mandatory notice for condominium, cooperative, and homeowners associations as part of the assessment collection process: the association must provide owners with written notice of a past due assessment before it may require payment of attorney fees by an owner in connection with the past due assessment. The association must send the notice by first-class mail to the owner at his or her last known address reflected in the association’s records in addition to the unit address in substantially the following form for condominium, cooperative, and homeowners associations:
Continue reading “Client Alert: 2021 Changes to Florida Statutes: SB 56 Creates New Delinquent Assessment Collection Time Limits and Notice Requirements for Condominium, Cooperative, and Homeowners Associations”
On June 16, 2021, Governor Ron DeSantis signed Senate Bill (SB) 630 into law, which enacts numerous amendments to the Condominium Act (Chapter 718, Florida Statutes), the Cooperative Act (Chapter 719, Florida Statutes), and the Homeowners Association Act (Chapter 720, Florida Statutes). The list below summarizes the primary effect of SB 630, but is not exhaustive. We suggest that you review the legislation and check with counsel if you have questions or comments.
CONDOMINIUM ACT, CHAPTER 718, FLORIDA STATUTES
- Amends § 718.111, Florida Statutes to:
- Limit the time required for keeping competitive bids in the condominium association’s official records to one year.
- Establish a right of tenants to access a copy of the Declaration, in addition to Bylaws and Rules and Regulations, but clarify that those are the only records accessible to tenants.
- Prohibit condominium associations from requiring unit owners to state a purpose for accessing official records.
- Allow condominium association to make its documents available through a mobile device or posting on a web site.
- Amends § 718.112, Florida Statutes to:
- Provide that a majority vote of a condominium association may extinguish a discriminatory restriction as provided in § 712.065, Florida Statutes.
- § 712.065, Florida Statutes allows the Board of Directors to amend governing documents by majority vote to remove provisions which are discriminatory towards “any natural person on the basis of a characteristic that has been held, or is held after September 4, 2020, by the United States Supreme Court or the Florida Supreme Court to be protected against discrimination under the Fourteenth Amendment to the United States Constitution or under s. 2, Art. I of the State Constitution, including race, color, national origin, religion, gender, or physical disability.”
- Clarify that only board service that occurs on or after July 1, 2018 may be used when calculating term limits.
- Defer to the condominium association’s Bylaws for the required time period for special members meetings, but requires 14 days if the Bylaws are silent. The prior version of the statute required 14 days for the special members meetings regardless of the Bylaws. At least a 14-days notice is still required for annual meetings.
- Require the Association to send the second election notice not less than 14 days and not more than 34 days prior to the election.
- Increases the maximum transfer fee condominium associations may charge from $100 to $150 initially, and thereafter provides for the Department of Business and Professional Regulation (DBPR) to publish a maximum fee increase according to Consumer Price Index (CPI).
- Allow condominium associations and management companies to use the same legal counsel, which was prohibited under prior versions of the statute.
- Establish rights for installation of natural gas vehicle fueling stations similar to current requirements for electric vehicle charging stations.
- Allow the Board of Directors to establish electric vehicle charging stations and natural gas fueling stations on the common elements and provide that such installations are not material alterations or substantial additions.
- Amends § 718.121, Florida Statutes to clarify that notices of intent to lien meeting the statutory requirements are deemed delivered upon mailing.
- Amends § 718.121, Florida Statutes to replace mandatory nonbinding arbitration with an option for either 1) pre-suit mediation, or 2) non-binding arbitration. However, election disputes are excluded from pre-suit mediation and may be arbitrated or filed in court.
- Amends § 718.1265 to provide additional emergency powers to condominium associations to conduct all meetings remotely to expressly allow the condominium association to close parts of the property and take other actions in mitigation of contagious disease. However, the association may not prohibit ingress and egress to the unit by the owner or in connection with a sale, lease, or other transfer of the unit.
- Amends § 718.202 to include additional details regarding permissible and prohibited costs for which a developer may use certain portions of initial purchase deposits.
- Amends § 718.405 to codify law allowing for multi-condominium to adopt consolidated governing documents if compliant with § 718.104.
- Related to the condominium act, amends § 627.14, Florida Statutes to provide that a unit owner’s insurance policy may only provide for subrogation against the condominium association if the condominium association’s policy provides for subrogation against the unit owner.
COOPERATIVE ACT – CHAPTER 719, FLORIDA STATUTES
- Amends § 719.104 to prohibit cooperative from requiring unit owners to state a purpose for accessing official records.
- Amends § 719.106 to provide that:
- Cooperative directors appearing at meetings remotely by any means count towards quorum.
- Cooperatives may delete discriminatory provisions from their governing documents pursuant to § 712.065.
- Amends § 719.128 to provide additional emergency powers to cooperative associations to conduct all meetings remotely to expressly allow the cooperative association to close parts of the property and take other actions in mitigation of contagious disease. However, the association may not prohibit ingress and egress to the unit by the owner or in connection with a sale, lease, or other transfer of the unit.
HOMEOWNERS ASSOCIATION ACT – CHAPTER 720, FLORIDA STATUTES
- Amends § 720.301 to eliminate homeowners association board-adopted rules and regulations from the statutory definition of “governing documents.”
- Amends § 720.303 to:
- Allow additional options for electronic notification using an app or website in conjunction with email.
- Explicitly require keeping of election materials, including ballots, sign in sheets, proxies, and all other records, for one year from the election.
- Exclude records relating to gate entry systems from official records accessible to owners.
- Amends § 720.303 to allow a developer the option to establish reserves or not, and if established to deficit fund assessments for reserves along with operating expenses. Legislation provides that this provision applies to all associations, including those formed prior to adoption.
- Amends § 720.311 to provide that election disputes may be arbitrated or filed in court.
- Amends § 720.305 to provide that fines are due five days from the date the association provides notice to the owner or tenant (previously ran from the date of committee meeting).
- Amends § 720.306 to provide, in homeowners associations of more than 15 parcels, that amendments to governing documents prohibiting or regulating rental agreements generally apply only to parcel owners who acquire ownership after adoption or who consent to the amendment. Notwithstanding the general rule, the association may adopt a six month minimum rental period and a prohibition against renting more than three times in a calendar year and apply such requirements against all owners.
- Amends § 720.3075 to provide that a homeowners associations may delete discriminatory provisions from their governing documents pursuant to § 712.065.
- Amends § 720.316 to provide additional emergency powers to homeowners associations to conduct all meetings remotely to expressly allow the homeowners association to close parts of the property and take other actions in mitigation of contagious disease. However, the association may not prohibit ingress and egress to the unit by the owner or in connection with a sale, lease, or other transfer of the unit.
A complete PDF copy of SB 630 is available at this link.
Continue reading “Client Alert: Governor DeSantis Signs SB 630 Into Law, Containing Significant Amendments to Florida’s Condominium Act, Cooperative Act, and Homeowners Association Act”