HB 841 (MORAITIS): THE END OF PUBLIC BOARD MEETINGS AND CONDO RECALLS AS WE KNOW IT!

An Opinion By Jan Bergemann 
President, Cyber Citizens For Justice, Inc.

Published March 20, 2018

 

Last year the Florida legislature passed a bill trying to deal with the numerous complaints by Florida Home and Condo Owners. This year they voted in favor of a bill that destroyed many of the accomplishments.

 

These are the low-lights of the bill that will be effective July 1, 2018 if we can’t convince Governor Scott to veto this horrible bill.


HB 841 (CLICK HERE TO READ THE ACTUAL BILL) is the typical anti-owner bill filed by (soon former) State Representative Moraitis. The actual problems can be found in the actual wording of the bill – and the vague description of actions to take – or not to take.

 

The major problem of this bill: It will end public board meetings as we know it. Since it legalizes communication between board members by e-mail (without making these e-mails public record) only final voting has to be done in a public board meeting. All discussions prior to the final vote can be held behind closed door . This is the crucial wording in the bill:

 

FS 718.112(2) (c); FS 719.106 (1)(c); FS 720.303(2)(a):

Members of the board of administration may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail.

Let’s be honest: The legislature made a total mess of the condo recall provisions. Instead of improving the process – as it was the intention last year, the made a total mess of it. This is one of the cases where we wish they would have left it alone! The legislators added the words “facial validto the provisions without explaining what it really means. That alone will cause even more confusion. And now the Owners Voting For Recall are the party supposed to file for arbitration if the board “fails” to certify the recall. And the new language allows arbitrators to award legal fees if one party is found to have acted “frivolously.” Who decides what’s “Frivolous” in a recall?

Here is the actual wording:

FS 718.112(2)(j)4. If the board fails to duly notice and hold the required meeting or at the conclusion of the meeting determines that the recall is not facially valid, the unit owner representative may file a petition pursuant to s. 718.1255 challenging the board's failure to act or challenging the board's determination on facial validity. The petition must be filed within 60 days after the expiration of the applicable 5-full-business-day period. The review of a petition under this subparagraph is limited to the sufficiency of service on the board and the facial validity of the written agreement or ballots filed.

6. A board member who has been recalled may file a petition pursuant to s. 718.1255 challenging the validity of the recall. The petition must be filed within 60 days after the recall. The association and the unit owner representative shall be named as the respondents. The petition may challenge the facial validity of the written agreement or ballots filed or the substantial compliance with the procedural requirements for the recall. If the arbitrator determines the recall was invalid, the petitioning board member shall immediately be reinstated and the recall is null and void. A board member who is successful in challenging a recall is entitled to recover reasonable attorney fees and costs from the respondents. The arbitrator may award reasonable attorney fees and costs to the respondents if they prevail, if the arbitrator makes a finding that the petitioner's claim is frivolous.

 

Here is the “hidden” present made to so-called “bulk-buyers” by Moraitis: He added the “FOREVER” clause:

FS 718.707 Time limitation for classification as bulk assignee or bulk buyer.—A person acquiring condominium parcels 1085 may not be classified as a bulk assignee or bulk buyer unless the condominium parcels were acquired on or after July 1, 2010, but before July 1, 2018. The date of such acquisition shall be determined by the date of recording a deed or other instrument of conveyance for such parcels in the public records of the county in which the condominium is located, or by the date of issuing a certificate of title in a foreclosure proceeding with respect to such condominium parcels.

 

Moraitis didn't fail to add language to the fining process in the statutes (Remember: The US Constitution only allows government entities to fine its citizens!) that strengthen board dictatorships in our communities. Remember: No real proof required to levy such a fine! Added now is a due date for the fine -- just to make sure that the board can levy a fine against an "obnoxious" owner to make sure that he can't be a candidate for the next election without paying a $1,000 fine -- or even more? Why not just allowing boards to send unwanted owners to Siberia? You know: The owners asking for financial records and contracts?

 

The new language (Example HOA):

720.305(2)(b) A fine or suspension levied by the board of administration may not be imposed unless the board first provides at least 14 days' notice to the parcel owner and, if applicable, any occupant, licensee, or invitee of the parcel owner, sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, the proposed fine or suspension may not be imposed. The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the proposed fine or suspension levied by the board is approved by the committee, the fine payment is due 5 days after the date of the committee meeting at which the fine is approved. The association must provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.

See as well the same changes to FS 718.303(b) and FS 719.303(b)

 

Added to the bill was a provision to allow owners to install “Electric Vehicle Charging Stations.” The idea in itself isn’t bad, but it will create most likely serious problems for older condominiums. Many of the electrical circuits in these older buildings may not be strong enough to allow these high-powered charging stations to be installed without renewing the existing electrical circuits. That will get very costly. But the bill fails to supply a solution for this very high-priced problem. If the owner who wants a “power station” installed would have to pay for it, it will become a very costly endeavor. It will get very interesting – to say the least.

FS 718.113(8) The Legislature finds that the use of electric vehicles conserves and protects the state's environmental resources, provides significant economic savings to drivers, and serves an important public interest. The participation of condominium associations is essential to the state's efforts to conserve and protect the state's environmental resources and provide economic savings to drivers. Therefore, the installation of an electric vehicle charging station shall be governed as follows:

(a) A declaration of condominium or restrictive covenant may not prohibit or be enforced so as to prohibit any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner's limited common element parking area. The board of administration of a condominium association may not prohibit a unit owner from installing an electric vehicle charging station for an electric vehicle, as defined in s. 320.01, within the boundaries of his or her limited common element parking area. The installation of such charging stations are subject to the provisions of this subsection.

(b) The installation may not cause irreparable damage to the condominium property.

(c) The electricity for the electric vehicle charging station must be separately metered and payable by the unit owner installing such charging station.

(d) The unit owner who is installing an electric vehicle charging station is responsible for the costs of installation, operation, maintenance, and repair, including, but not limited to, hazard and liability insurance. The association may enforce payment of such costs pursuant to s. 718.116.

(e) If the unit owner or his or her successor decide there is no longer a need for the electronic vehicle charging station, such person is responsible for the cost of removal of the electronic vehicle charging station. The association may enforce payment of such costs pursuant to s. 718.116.

(f) The association may require the unit owner to:

1. Comply with bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property.

2. Comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards may not prohibit the installation of such charging station or substantially increase the cost thereof.

3. Engage the services of a licensed and registered electrical contractor or engineer familiar with the installation and core requirements of an electric vehicle charging station.

4. Provide a certificate of insurance naming the association as an additional insured on the owner's insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging station within 14 days after receiving the association's approval to install such charging station.

5. Reimburse the association for the actual cost of any increased insurance premium amount attributable to the electric vehicle charging station within 14 days after receiving the association's insurance premium invoice.

(g) The association provides an implied easement across the common elements of the condominium property to the unit owner for purposes of the installation of the electric vehicle charging station and the furnishing of electrical power, including any necessary equipment, to such charging station, subject to the requirements of this subsection.

 

This are the LOW-LIGHTS of the bill -- there is more confusing verbiage in other provisions.

 

Florida's home and condo owners can only hope that Governor Scott has common sense and vetoes this horrible bill.


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LEGISLATIVE SESSION 2018