SB 630

Florida Statute Chapter 718 "CONDOMINIUMS”
 

F.S.718.1255 (4)-(7) -- Alternative Dispute Resolution
Other than elections and recall disputes, mandatory nonbinding arbitration through the Division of Condominium no longer necessary for disputes. Instead, either the unit owner or the Association has the option having arbitration with the Division and/or pre-suit mediation. This mirrors F.S., Chapter 720, demonstrating uniformity and at the same time, provide an an avenue in in Court if the matter is not settled in mediation. If all the parties agree, the arbitration ruling is final and binding.

F.S.718.1265 -- Emergency Powers
Emergency powers are now expressly applicable to an emergency declared due to a public health crisis such as Covid-19. The powers can now be used to prevent harm “anticipated” to be caused in connection with the emergency not just after the harm or damage has occurred. During a declared state of emergency, in addition to Board meetings, members meetings, committee meetings and elections can be held in whole or in part virtually via telephone, real-time video conferencing or similar real-time communication. The emergency powers CANNOT prohibit unit owners, tenants, guests, agents or invitees of a Unit Owner from accessing the Unit or the Common Elements or Limited Common Elements for the purpose of ingress and egress from the Unit when access is necessary in connections with (a) the sale, lease, or transfer of title of a unit or (b) the habitability of the Unit or for the health and safety of such persons unless a governmental order or public health directive from the CDC has been issued prohibiting such access to the unit. However, such access is subject to reasonable restrictions adopted by the association. The “disaster plan or emergency plan” can now be implemented “during” the emergency rather than just before or after the emergency. In determining to close or limit access to the Condominium Property the Board can now rely on the advice of “public health officials” not just an emergency management official or other licensed professional.

F.S.718.202(3) -- Developer Pre-Sales Deposits
The law has long provided that purchase deposits can used for the “actual” construction of the condominium. The term is expanded to be “actual costs incurred by the developer” and the term “actual costs” is defined to include but not be limited to “expenditures for demolition, site clearing, permit fees, impact fees, and utility reservation fees, as well as architectural, engineering, and surveying fees that directly relate to construction and development of the condominium property.”

F.S.718.303(3)(b) -- Fines and Suspensions
Payment of a fine approved by the fining committee is due 5 days after the “notice of the approved fine is provided to the unit owner or tenant” instead of 5 days after the date of the fining committee meeting.
In addition, materials, equipment, or services must be kept for at least 1 year after the receipt of the bid, rather than the the current legislation, which requires that the bids be kept for at least 7 years.

F.S. 718.5014 Ombudsman’s Office
This provision is confirmation that the Ombudsman’s office is no longer must be located in Leon County.

F.S. 718.501(1)

Two or more condominiums existing DOC can be put into a single document, without merging the Condominium into a single.

This provision clarifies the existing law that two or more Condominiums can merge their Declarations of Condominium into a single document without merging the Condominiums into a single Condominium.

After turnover, the Division has the authority to investigate complaints regarding the failure of the Developer to maintain or keep official records as required by law. This allows the Division to investigate financial issues, elections, and unit owner access to records, but also the Developers failure to maintain records.

F.S. 627.714(4) -- Condominium Insurance Subrogation
If a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the condominium association.

Florida Statute Chapter 719 “CO-OPERATIVE”
 

F.S.719.103(25) “Cooperative”
This provision confirms that an interest in a Cooperative Unit is an interest in Real Property.

F.S.719.104(2)(c) Official Records
This provision removes any requirement for an Owner to demonstrate the need or purpose, for any reason when they request official records. In addition, a new official record has been added to the list - “all affirmative acknowledgements made pursuant to F.S. 719.108(3)(b)3”, which is discussed below, but the “affirmative acknowledgment” is also added to the list of protected official record not available to Owners per 719.104(2)(c)8.

F.S.719.104(2)(c) Virtual Board Meetings
This provision includes a new official record with an owners affirmation acknowledgment and permits holding meetings in real time by video conferencing and and vote.

F.S.719.106(1)(f)4 Recalls
This provision conforms to Chapter 718 to ensure uniformity among all community associations, and to conform with hapter 718 recall disputes allowing them to be filed in Court as well as arbitration through Division.

F.S.719.106(1)(j) -- Annual Budget
This provision allows the Board to the annual budget at least 14 days prior to the start of the association’s fiscal year, and if the Board fails to timely adopt the annual budget a second time, it should be deemed a minor violation pursuant to the Division of Condominiums and the prior year’s budget shall continue in effect until a new budget is adopted.
 

F.S. 719.106(1)(j)1 - Illegal Discriminatory Restrictions
This provision allows the board an to remove illegal discriminatory restrictions contained in the governing documents without an owner vote per F.S. 712.065.
 

F.S.719.128 -- Emergency Powers
Emergency powers are now expressly applicable to an emergency declared due to a public health crisis such as Covid-19. The powers can now be used to prevent harm “anticipated” to be caused in connection with the emergency not just after the harm or damage has occurred. During a declared state of emergency, in addition to Board meetings, members meetings, committee meetings and elections can be held in whole or in part virtually via telephone, real-time video conferencing or similar real-time communication. The emergency powers CANNOT prohibit unit owners, tenants, guests, agents or invitees of a Unit Owner from accessing the Unit or the Common Elements or Limited Common Elements for the purpose of ingress and egress from the Unit when access is necessary in connections with (a) the sale, lease, or transfer of title of a unit or (b) the habitability of the Unit or for the health and safety of such persons unless a governmental order or public health directive from the CDC has been issued prohibiting such access to the unit. However, such access is subject to reasonable restrictions adopted by the association. The “disaster plan or emergency plan” can now be implemented “during” the emergency rather than just before or after the emergency. In determining to close or limit access to the Condominium Property the Board can now rely on the advice of “public health officials” not just an emergency management official or other licensed professional.
 

This provision conforms to the uniformity of Chapter 718 and allows Boards and Committees to hold

F.S.719.202(3) -- Developer Pre-Sales Deposits
At present, the law provides that purchase deposits can used for the “actual” construction of the condominium. The term is expanded to be “actual costs incurred by the developer” and the term “actual costs” is defined to include but not be limited to “expenditures for demolition, site clearing, permit fees, impact fees, and utility reservation fees, as well as architectural, engineering, and surveying fees that directly relate to construction and development of the condominium property.”

F.S.719.303(3)(b) -- Fines and Suspensions
Payment of a fine approved by the fining committee is due 5 days after the “notice of the approved fine is provided to the unit owner or tenant” instead of 5 days after the date of the fining committee meeting.

 

Florida Statute Chapter 720 “HOMEOWNER ASSOCIATIONS”
 

F.S.720.301(8)(c) Board Adopted Rules
Board adopted rules and regulations have been removed from the definition of “Governing Documents” so that amendments to the Rules no longer have to be recorded in the public records. The Governing Documents are now defined to include only the Declaration, the Articles of Incorporation, and the Bylaws.

In addition to any of the authorized means of providing notice of a meeting of the Board, the association may adopt a procedure for conspicuously posting the meeting notice and the agenda on the association’s website or an application that can be downloaded on a mobile device for at least the minimum period of time for which a notice of a meeting is also required to be physically posted on the association property. Any rule adopted must, in addition to other matters, include a requirement that the association send an electronic notice to members whose e mail addresses are included in the association’s official records in the same manner as is required for a notice of a meeting of the members. Such notice must include a hyperlink to the website or such mobile application on which the meeting notice is posted.

F.S.720 -- Official Records

This provision removes any requirement for an Owner to demonstrate the need or purpose, for any reason when they request official records. In addition, a new official record has been added to the list - “all affirmative acknowledgements made pursuant to current law, but also the “affirmative acknowledgment” is also added to the list of protected official record not available to Owners per current law.

In addition, ballots, sign in sheets, voting proxies, and all other papers relating to voting by parcel owners are official records and must be maintained for at least 1 year after the date of the election, vote, or meeting.

Further, a new official record has been added to the list “all affirmative acknowledgements made pursuant to F.S. 720.3085(3)(c)3 and the “affirmative acknowledgment” is also added to the list of protected official record not available to Owners per 720.303(5)(c)8.

F.S.720.303(4)(l) Official Records
This provision allows information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents to be protected official records and cannot be inspected and copied by Owners making official records requests.

F.S.720.303(6)(C))(l) HOA Reserves and the Year End Financial Report
The term “governing documents has been added so if the HOA does not maintain Statutory reserves or the governing documents do not obligate the developer to create reserves, this must be noted on the year-end financial report with a bold all caps disclaimer.

In addition, statutory reserves are only if they are mandated by the governing documents or by a vote of the members. Statutory reserves used to be established in three ways: (a) The developer initially established them prior to turnover in the Budget, (b) The governing documents as drafted by the Developer mandate reserves or (c) The members voted to establish them after turnover. The new law removes type (a) and Statutory Reserves are now only created if they are mandated in the governing documents or a vote of the members.

Moreover, a new official record has been added to the list to confirm with Chapters 718 and 719 indicating that all affirmative acknowledgements made pursuant to F.S. 720.3085(3)(c)3”, and that such the “affirmative acknowledgment” is also added to the list of protected official record not available to Owners per 720.303(5)(c)8.

F.S.720.303(6)(i)1-2 HOA Developer Reserves and Deficit Funding
While a developer is in control of a homeowners’ association, the developer may, but is not required to, include reserves in the budget. If the developer includes reserves in the budget, the developer may determine the amount of reserves included. The developer is not obligated to pay for: (a) Contributions to reserve accounts for capital expenditures and deferred maintenance, as well as any other reserves that the homeowners’ association or the developer may be required to fund pursuant to any state, municipal, county, or other governmental statute or ordinance; (b) Operating expenses; or (c) Any other assessments related to the developer’s parcels for any period of time for which the developer has provided in the declaration that in lieu of paying any assessments imposed on any parcel owned by the developer, the developer need only pay the deficit, if any, in any fiscal year of the association, between the total amount of the assessments receivable from other members plus any other association income and the lesser of the budgeted or actual expenses incurred by the association during such fiscal year. This law applies to all homeowners’ associations existing on or created after July 1, 2021.

F.S.720.303(10)(b)3 -- Recalls
Recall disputes may now be filed not only for arbitration, but also can be filed with the Division or in a Court. Mediation is no longer required.

F.S.720.305(2) – Fines.
This provision allows payment of a fine approved by the fining committee to be due 5 days after the “notice of the approved fine is provided to the parcel owner or tenant” instead of 5 days after the date of the fining committee meeting. will now require a “courtesy” “Notice “of Late Assessment “prior to the notice of intent to lien. In addition, prior to any change of delivery instructions, an invoice for assessments or the statement of the account, the association must deliver a written notice of such change to each unit owner. This written notice requires at least 30 days before the association sends the invoice for assessments or the statement of the account by the new delivery method.

Moreover, a unit owner must affirmatively acknowledge either electronically or in writing, their understanding of the association revised delivery instructions.

An association cannot require payment of attorney fees relating to any past due assessment without first delivering a written notice of late assessment to the unit owner which specifies the amount owed to the association and provides the unit owner an opportunity to pay the amount owed without the assessment of attorney fees.

In addition, the presumption is that an association mailed the notice in accordance with with current statute and can can be established by a licensed manager (LCAM), board member, officer, or agent of the association, providing a sworn affidavit attesting to such mailing.
The form for the notice that must be used is contained in the statute.

F.S.720.306(1)(G) NOTICE OF AMENDMENTS
This provision removes the requirement that notice of an adopted amendment being recorded must be mailed to the Owner’s address as listed on the property appraisers’ website. or the notice may now be mailed to the mailing address the Association has listed in the Association’s official records.

F.S.720.306(6)(h)1-5 -- Rental Restriction Amendments
This provision states that any governing document, or amendment to a governing document, that is enacted after July 1, 2021, and that prohibits or regulates rental agreements applies only to a parcel owner who acquires title to the parcel after the effective date of the governing document.

 
The new law also provides that notwithstanding the foregoing, an association may amend its governing documents to prohibit or regulate rental agreements for a rental term of less than 6 months and may prohibit the rental of a parcel more than three (3) times in a calendar year. Such amendments shall apply to all parcel owners.

However, the grandfathering aspect of an existing owner will be lost when the parcel is sold and there is a change of ownership, a change of ownership does not occur when a parcel owner conveys the parcel to an affiliated entity, when beneficial ownership of the parcel does not change, or when an heir becomes the parcel owner. The term “affiliated entity” means an entity that controls, is controlled by, or is under common control with the parcel owner or that becomes a parent or successor entity by reason of transfer, merger, consolidation, public offering, reorganization, dissolution or sale of stock, or transfer of membership partnership interests. For a conveyance to be recognized as one made to an affiliated entity, the entity must furnish to the association a document certifying that this subparagraph applies and provide any organizational documents for the parcel owner and the affiliated entity which support the representations in the certificate, as requested by the association. For purposes of this paragraph, a change of ownership does occur when, with respect to a parcel owner that is a business entity, every person that owned an interest in the real property at the time of the enactment of the amendment or rule conveys their interest in the real property to an unaffiliated entity.

F.S.720.306(9)(c)1-5 and F.S.720.311(6)(h)1-5 - Elections
Election disputes may now be filed with the DBPR for binding arbitation.r in the Court arbitration or a Court in the local jurisdiction. No pre-suit mediation is required prior to filing.

F.S.720.3075
The Board may eliminate illegal discriminatory restrictions in the governing documents without a vote of the owners.

Emergency Powers – F.S.720.316
Emergency powers are now expresly applicable to an emergency declared due to a public health crisis such as Covid-19. The powers can now be used to prevent harm “anticipated” to be caused in connection with the emergency not just after the harm or damage has occurred. During a declared state of emergency, in addition to Board meetings, members meetings, committee meetings and elections can be held in whole or in part virtually via telephone, real-time video conferencing or similar real-time communication. The emergency powers CANNOT prohibit unit owners, tenants, guests, agents or invitees of a Unit Owner from accessing the Unit or the Common Elements or Limited Common Elements for the purpose of ingress and egress from the Unit when access is necessary in connections with (a) the sale, lease, or transfer of title of a unit or (b) the habitability of the Unit or for the health and safety of such persons unless a governmental order or public health directive from the CDC has been issued prohibiting such access to the unit. However, such access is subject to reasonable restrictions adopted by the association. The “disaster plan or emergency plan” can now be implemented “during” the emergency rather than just before or after the emergency. In determining to close or limit access to the Condominium Property the Board can now rely on the advice of “public health officials” not just an emergency management official or other licensed professional.

In addition, such powers can be used to prevent harm “anticipated” to be caused in connection with the emergency not just after the harm or damage has occurred. During a declared state of emergency, in addition to Board meetings, members meetings, committee meetings and elections can be held in whole or in part virtually via telephone, real-time video conferencing or similar real-time communication. The emergency powers CANNOT prohibit parcel owners, tenants, guests, agents or invitees of a parcel owner from accessing the parcel or the Common Areas or facilities for the purpose of ingress and egress from the parcel when access is necessary in connections with (a) the sale, lease, or transfer of title of a parcel or (b) the habitability of the parcel or for the health and safety of such persons unless a governmental order or public health directive from the CDC has been issued prohibiting such access to the unit. However, such access is subject to reasonable restrictions adopted by the association.

The “disaster plan or emergency plan” can now be implemented “during” the emergency rather than just before or after the emergency. In determining to close or limit access to the Property the Board can now rely on the advice of “public health officials”, not just an emergency management official or other licensed professional.

EFFECTIVE JULY 1, 2021

ENROLLED FILED VERSION OF SB 630