Final Report of the Select Committee

March 4, 2008

Select Committee on Condominium & Homeowner Association Governance

Representative Julio Robaina, Chairman

Representative Kevin C. Ambler

Representative Luis R. Garcia

Representative Joseph A. "Joe" Gibbons

Representative Richard "Rich" Glorioso

Representative Jimmy Patronis

Representative Yolly Roberson

Representative Franklin Sands

Representative Juan C. Zapata

Executive Summary

Condominiums, cooperatives, and homeowners associations are associations that collect assessments from neighbors and utilize those assessments for the common good of the association. Many citizens have commented that current Florida law does not adequately govern such associations. The Select Committee met throughout the state to listen to citizens and make recommendations for change. In brief, the Select Committee recommends that:

• The Department of Business and Professional Regulation be required to increase enforcement activities, including increased use of subpoenas.
• Association board members must attend training.
• Associations be prohibited from employing related service providers.
• The Florida Department of Law Enforcement create law enforcement training programs focusing on association theft crimes.
• The Legislature increase the budgetary authority for the regulation of condominiums and cooperatives from existing trust funds.
• Regulatory funds currently held in the Division of Land Sales, Condominiums and Mobile Homes Trust Fund should not be transferred to the General Revenue Fund.
• There be additional grounds for disqualification of a board member.
• Associations may not waive an audit for more than two consecutive years.
• Homeowners' associations should be regulated by the state, similar to the current regulation of condominium and cooperative associations.
• That every five years there be a Community Association Living Study Commission.
• The Select Committee be recreated this summer to continue its work.

Final Report of the Select Committee

on Condominium and Homeowners Association Governance

On January 11, 2008, Speaker Marco Rubio created the Select Committee on Condominium and Homeowners Association Governance. Representative Julio Robaina was appointed chair and Representatives Kevin C. Ambler, Luis R. Garcia, Joseph A. Gibbons, Richard "Rich" Glorioso, Jimmy Patronis, Yolly Roberson, Franklin Sands, and Juan C. Zapata were appointed to the committee. The Speaker's charge to the Select Committee was:

The purview of the select committee shall be limited to the governance of condominiums, cooperatives, and homeowners associations, to include accounting, budgeting, audits, theft by officers and directors, elections, and access to records, the state regulation of condominiums and cooperatives by the Department of Business and Professional Regulation.

The committee met five times to hear public testimony about associations. Those meetings were in Pembroke Pines (January 26, 2008), Miami Beach (February 9, 2008), Orlando (February 16, 2008), Tampa (February 23, 2008), and Tallahassee (March 1, 2008). In total, 529 persons filled out appearance cards at such meetings, more attended that did not fill out an appearance card.

Background

A condominium is a "form of ownership of real property created pursuant to ch. 718, F.S., which is comprised entirely of units that may be owned by one or more persons, and in which there is, appurtenant to each unit, an undivided share in common elements".1 A condominium is created by recording a declaration of condominium in the public records of the county in which the condominium will be located.2 A declaration is like a constitution in that it:

strictly governs the relationships among condominium units owners and the condominium association. Under the declaration, the Board of the condominium association has broad authority to enact rules for the benefit of the community.3

A declaration may include covenants and restrictions concerning the use, occupancy, and transfer of the units permitted by law with reference to real property.4 A declaration of condominium may be amended as provided in the declaration. If the declaration does not provide a method for amendment, it may generally be amended as to any matter by a vote of two-thirds of the units.5

A cooperative association is very similar to a condominium. A cooperative is a "form of ownership of real property wherein legal title is vested in a corporation or other entity and the beneficial use is evidenced by an ownership interest in the association and a lease or other muniment of title or possession granted by the association as the owner of all the cooperative property."6

Homeowners' association means a Florida corporation responsible for the operation of a subdivision in which voting membership is made up of parcel ownership and in which membership is a mandatory condition of parcel ownership and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel.7 Homeowners' associations are regulated under chapter 720, F.S.

As of December 31, 2007, there were 1,394,467 condominium units in Florida, and 77,609 cooperative shares (units).8 Homeowners' associations are not regulated by the state, and it is unknown how many homes are subject to a mandatory homeowners' association. The Department of Business and 

1 Section 718.103(11), F.S. 2 Section 718.104(2), F.S. 3 Neuman v. Grand View at Emerald Hills, 861 So.2d 494, 496-497 (Fla. 4th DCA 2003). 4 Section 718.104(5), F.S. 5 Section 719.103(12), F.S. 6 Section 718.103(11), F.S. 7 Section 720.301(9), F.S. 8 Email correspondence from DBPR, received February 6, 2008.

Professional Regulation (DBPR) regulates condominium and cooperative associations. In 2007, DBPR received 2,482 complaints about condominiums and cooperatives.9

Significant Association Problems 

While there were a wide variety of problems that these citizens discussed with the committee, the following problems were the most prevalent and problematic: 

Access to Records.

Complaints regarding member access to association records were the most prevalent complaint heard by the committee. Current law provides that any member of an association has the right to inspect the association records at reasonable times.10 In practice, it appears that some associations fail to comply with that law.11 Danille Carroll, the current Condominium Ombudsman12, testified that the biggest complaint she hears about is regarding access to records.13 DBPR received 120 alleged violations in regard to access of records between October 1, 2007 and December 31, 2007, which constituted 19.83% of all alleged violations received during that time.14 The Select Committee heard from a number of unit and parcel owners who testified about the difficulty they had in obtaining records from their board of directors. In regard to the access to records issue, the Committee decided to investigate the difficulties that associations have in obtaining records firsthand. The Committee endeavored to obtain association records on its own to see how hard it is to obtain such records and to look into conduct regarding a financial review.

10 Official records of the association are open to inspection at all reasonable times and must be made available to a unit owner within 5 working days, if it is a condominium association, or a parcel owner within 10 working days, if it is a homeowners' association, after receipt of a written request made by the unit or parcel owner to the board. See Section 718.111(12), F.S.; Section 720.303(5), F.S. 11 Failure of an association to provide records within 10 working days after receipt of a written request to do so creates a rebuttable presumption that the association willfully failed to comply. A unit or parcel owner is entitled to actual damages or minimum damages up to $500 when this occurs. See Section 718.111(12)(c), F.S; Section 720.303(5) (a), (b), F.S. 12 The Office of the Condominium Ombudsman's was created in part to be a resource to condominium associations and members and to act as a liaison between the division, unit owners, boards of directors, board members, community association managers, and other affected parties. See Section 718.5012, F.S.; See http://www.myflorida.com/condos/. 13 Select Committee on Condominiums & Homeowners Association Governance, Meeting at Florida Real Estate Commission, Orlando, Florida (February 16, 2008). 14 The quarter is from October 2007- December 2007.

Association Management Problems

The committee heard from a number of owners who provided examples of management problems in their associations. Many such problems related to maintenance and repair contracts. Examples included contracts related to major repairs after recent hurricanes and contracts with entities related to a manager or a board member. 

Perceived Lack of Enforcement by the

Department of Business and Professional Regulation (DBPR).15 

Condominium and cooperative associations are regulated by DBPR. DBPR reports that they received 8,284 complaints since July 1, 2004. Of those, 5,234 complaints were resolved within 90 days, and 2,651 (32%) exceeded 90 days. Numerous speakers at the hearings discussed their perception of DBPR delay and inaction.

15 The Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation has the ability to enforce and ensure compliance with the provisions of ch. 718. Section 718.501, F.S.

Recommendations 

The members of the committee, after hearing the testimony and discussing the issues, recommend that the Legislature adopt the following legislative changes. These recommendations are categorized for simplicity, and thus the order of the list should not be considered as the Committee's priority: 

Increase DBPR Enforcement Tools for Condominiums and Cooperatives

Current authority for DBPR to enforce condominium and cooperative law can be found at s. 718.501, F.S., and s. 719.501, F.S. As noted above, DBPR does not regulate homeowners' associations. Upon receiving a complaint, DBPR is required to acknowledge receipt of the complaint and determine whether DBPR has jurisdiction over the complaint within 30 days, and is required to take action upon the complaint within 90 days. DBPR is authorized to investigate any complaint within its jurisdiction and may subpoena witnesses and compel the production of documents in furtherance of an investigation. If DBPR finds that a board member or the association has violated association law, it first offers education and guidance to the association or board member, and only resorts to fines and punishment after repeated violations. An individual board member is not subject to a fine if he or she complies with legal requirements within 10 days of notice of the violation.16

16 Section 718.501(1)(d)4., F.S. 

In response to complaints, representatives of DBPR commented about how they were sometimes restricted under current law from taking strong enough action regarding violations of the law. Currently, if a condominium association does not comply, then DBPR may do one or more of the following: send a letter to the association telling them to cease and desist what they are doing, impose fines to exceed no more than $5,000 per violation, or request an order of compliance from the circuit court if the association fails to comply with DBPR's investigation. If the association still does not comply, then DBPR may pursue an action in circuit court against the association.17 DBPR may administer oaths and subpoena and compel the attendance of witnesses, take evidence, and require the production of relevant information, including the existence and description of books or documents. DBPR has the legal authority to issue a subpoena to compel a condominium or cooperative association to produce books and records,18 although the power is rarely used.19 

The Select Committee recommends that the subpoena power be used to assist owners of some of the most recalcitrant associations who continuously deny access to records. The Select committee, therefore, recommends that ss. 718.501 and 719.501, F.S., be amended to require that DBPR subpoena books and records of the association upon a showing that the association has failed to provide access to two disparate owners on at least two disparate occasions in the previous year. Where such a subpoena is required, the association shall be required to provide a copy of the subpoenaed documents to the complainant without charge. The Condominium Ombudsman pointed out several deficiencies in the laws related to the Ombudsman. One such deficiency is that the Ombudsman has no authority to assist a member of a cooperative association. The Select Committee finds that this was an oversight. Accordingly, the Select Committee recommends that the Ombudsman be granted the same authority to assist cooperative unit owners as the Ombudsman has to assist a condominium unit owner.

Current law requires an association to allow all members of the association to attend meetings of the association.20 Current law also allows the chairman of an association board of directors to exclude from any meeting any person other than the members of the association. Accordingly, an association may exclude DBPR employees and the Condominium Ombudsman from association meetings. Where an invitation was not made or the directors refused to allow attendance, Ombudsman employees have been refused entry into meetings, and thereby had difficulty in helping owners. The members of the Select Committee believe that regular meetings of an association should be open to state employees who are acting in furtherance of their duties. The Select Committee recommends that associations must allow a DBPR investigator, or an employee of the Ombudsman, to attend any meeting of the association that is open to members of the association. 

Mandatory Training for Board Members.

Associations are more than a group of neighbors; they are a business that must be competently run. Associations range in size from a small homeowners' association with only a few members, to a large condominium tower with a multi-million dollar budget, to an association running multiple communities that is larger than some cities. Currently, DBPR provides information regarding condominium law and management on its website.21 Since 2001, DBPR has also provided voluntary training for condominium board members through a contract with Community Associations Institute (CAI). During the 2006-2007 fiscal year, 2,211 unit owners attended training courses. Training courses for the most recent quarter had 271 participants.22 In that there are approximately 22,000 condominium associations in Florida, at best only 10% of the boards had one board member attend a condominium training class in the past year.

17 Section 718.501, F.S. 18 Section 718.501, F.S. 19 Nine subpoenas were issued in calendar year 2007.

20 Section 718.112(d)(6), F.S. 21 See http://www.myflorida.com/dbpr/lsc/condominiums.html . 22 October 1, 2007- December 31, 2007.

A consistent theme in the testimony before the committee was that board members do not follow the law because they do not know the law and that they continue poor management practices because they do not understand good business practices.

The Select Committee recommends that every member of the board of directors of a condominium or cooperative association should be required to attend an education class that covers legal requirements and basic good business practices. The Select Committee further believes that the cost of such training should be covered by the State through the annual fees currently paid by condominiums and cooperatives. The Select Committee does believe that an exception may be warranted for smaller associations (under 25 units) because of their smaller budget and the possible difficulty of finding board members willing to serve. The Select Committee further believes that the burden of assuring compliance should be on the associations and not on DBPR, unless a complaint is filed.

Due to time constraints, the Select Committee was unable to reach a consensus on the form and minimum requirements of the required training program. The Select Committee discussed, but did not reach consensus, on whether training programs should be mandatory for homeowners' associations.

Prohibit Employment of Related Service Providers

A common complaint in the public testimony was insider contracts. Insider contracts were found in two forms. One common form was where a management company would employ a related firm at an inflated price to provide ordinary maintenance and repairs. The other common form was where an officer of a director of a non-profit association would have the association enter into contracts with for-profit corporations owned in part or in whole by the director. The Select Committee was surprised to learn that s. 617.0802, F.S., allows these apparent conflicts of interest. The section reads:

The Select Committee recommends that s. 617.0802, F.S., should not be applicable to condominium associations, cooperative associations, and homeowners associations. The Select Committee recommends amending association law to prohibit an association from employing a service provider that has a financial relationship with a member of the board of directors.

The Select Committee also believes that Community Association Managers and their employers should manage associations, and similarly should not provide services such as maintenance and landscaping services.

Law Enforcement Relationship to Associations

In the past year, Miami-Dade County law enforcement agencies have formed a unit to investigate and prosecute embezzlement of condominium association funds. They have had great success, making several high-profile arrests of condominium officers and managers. The Select Committee would like to see more law enforcement agencies follow the lead of Miami-Dade County. Accordingly, the Select Committee recommends that:

• Local law enforcement agencies create an association fraud investigation unit.
• DBPR turn over suspected fraud and embezzlement cases to local law enforcement.
• That the Legislature appropriate funds so that the Florida Department of Law Enforcement may create a special training program that will teach law enforcement personnel how to investigate and prosecute association theft crimes.

In order to assist local law enforcement agencies with investigation of associations, the Select Committee recommends that:

• Local law enforcement agencies have the same rights as an owner to examine the records of any association.
• The failure of a condominium or cooperative association to comply with a request for inspection of records by a law enforcement agency is a violation that may give rise to disciplinary action by DBPR.
• Florida law specifically provides that no association and no individual has any reasonable expectation of privacy in the books, records and papers of any condominium association, cooperative association, or homeowners association.

DBPR Budget 23

During fiscal year 2006-2007, the Division of Land Sales, Condominiums and Mobile Homes (the Division) received $17,086,980 in revenue in part from fees, licenses, and penalties. Condominium and cooperative associations are assessed a fee of $4 per unit per year to fund the regulatory and educational services provided by the Division, a figure that was set in 1992.24 The total unreserved fund balance as of June 30, 2007 was $25,891,754. Revenues from condominiums accounted for $11,861,201 (almost 46%) of the unreserved balance. The chart below shows selected fiscal budget information for the Division.

23 The Chairman allowed Michael Cochran, division director of the Division of Land Sales, Condominiums, and Mobile Homes, and Danielle Carroll, Ombudsman, to provide advice and input to the Select Committee regarding all of the issues before the Select Committee. Mr. Cochran and Ms. Carroll did not participate in the discussions regarding the DBPR budget. 24 Section 718.501(2), F.S.

25 Transfers to Education subtracted from Compliance and Enforcement Total 26 Transfers to Mobile Home Relocation Corporation subtracted from Standards and Licensure Total

Condominium unit owners testified before the Select Committee about the lack of enforcement by DBPR, with some unit owners testifying that their complaints have been pending for over a year. The Select Committee felt that funding of the Division has lagged behind inflation and behind the explosion in the number of condominium and cooperative association units in Florida. The Select Committee finds that the budget amount authorized by recent General Appropriations Acts may have been insufficient to fully fund the education and enforcement functions required to protect condominium and cooperative owners. Accordingly, the Select Committee recommends that the budgetary authorization of the Division be increased. The Select Committee also found that the Ombudsman provides a valuable service and that this service should be expanded. Accordingly, the Select Committee recommends that the budgetary authority of the Ombudsman also be increased.

The recommendation that budgetary authority be increased is based in part on the knowledge that there is a large unreserved balance in the trust fund. That is, the condominium and cooperative owners have paid for these services, and so these services should be provided at an adequate level from those monies already paid. The Select Committee was informed, however, that the Governor's proposed budget for FY 2008-2009 proposes no increase in services and proposes to sweep $20 million from the Trust Fund into General Revenue. The Select Committee recommends that the Legislature not sweep any condominium regulatory funds from the Division of Florida Land Sales, Condominiums, and Mobile Homes Trust Fund. Disqualification of Board Members

Current law requires condominium, cooperative and homeowners associations to allow any member to be on the board of directors. There is only one exception to this rule. Condominium law provides that a person may not serve on a condominium association board of directors if the person has been convicted of a felony, unless the person has had his or her voting rights restored.27 This restriction does not apply to cooperative associations or homeowners associations. The Select Committee heard several presenters who suggested that all convicted felons should be disqualified from serving on a board of directors. Related to the condominium fraud arrests in Miami-Dade County, the Select Committee noted that the board members arrested for theft from their association remained on the board of directors.

The Select Committee also heard of directors who were delinquent in their assessments, yet continued to serve on the board of directors. Leaders are expected to lead by example. An association board member that is delinquent in payment of monies owed to his or her association is setting a poor example. Also, an association board member delinquent on assessments has a possible conflict of interest in that he or she should be voting to collect on the assessment.28 Current law does not allow an association to provide for suspension of a board member who is delinquent. The Select Committee recommends the following changes to law related to disqualification of a person from serving on an association board of directors:

27 Section 718.112(d)(1), F.S., provides: "A person who has been convicted of any felony by any court of record in the United States and who has not had his or her right to vote restored pursuant to law in the jurisdiction of his or her residence is not eligible for board membership." 28Section 718.116, F.S.; Section 720.3085, F.S.

• As to a person who has been convicted of a felony that is a violent crime or a crime of moral turpitude, that person should not be allowed to serve on a board of directors.
• As to any person who is alleged to be a convicted felon, that person has the burden of proving that he or she is entitled to serve.
• Felony convictions from any jurisdiction will serve to disqualify a person from serving on a board, not just ones from the United States.
• A director arrested for a felony theft or embezzlement of the association's funds shall be suspended pending the outcome of the case.
• A director more than 90 days delinquent in the payment of any fee or assessment should be suspended from office until the delinquent assessment is paid in full.
• A director more than 180 days delinquent in the payment of any fee or assessment should be deemed to have abandoned the office, creating a vacancy in the office to be filled according to law.
• The law regarding disqualification to serve as a member of the board of directors should be made uniform for condominiums, cooperatives, and homeowners associations.

Election Reform 

The Select Committee heard a number of complaints about election procedures in associations. The problems seemed to be more significant in recall elections. While many citizens complained of election problems, few made any suggestion on how to improve the current law. The Select Committee discussed various ideas for election reform but were unable to come to a firm consensus on how to resolve the numerous problems related to elections. Accordingly, the Select Committee recommends that the DBPR examine recent election disputes and recommend statutory changes to election procedures before the next legislative session. Additionally, the Select Committee recommends that the Community Association Living Study Commission examine election law in its first cycle. 

Association Financial Matters

Current law requires a condominium or homeowners' association to provide its members with various levels of financial statements based on the revenues of the association.29 Those current levels are:

• An association with revenues less than $100,000 must prepare a report of cash receipts and disbursements.
• An association with revenues between $100,000 and $200,000 must prepare compiled financial statements.
• An association with revenues between $200,000 and $400,000 must prepare reviewed financial statements.

• An association with revenues more than $400,000 must prepare audited financial statements.

Current law also allows the members of an association to increase or waive the financial reporting requirements.30 The levels of review above $100,000 require outside review by an accounting professional. Many associations prefer to waive outside review in order to lower the administrative costs of the association. When outside review of financial statements is waived for many years, however, instances of fraud, theft and mismanagement may not be discovered. DBPR receives more complaints about financial mismanagement of condominium associations than any other category of complaint.31 The Select Committee finds that the danger of missing instances of fraud, theft and mismanagement exceeds the value of the cost savings provided by allowing waiver of outside review. The Select Committee recommends that no condominium or homeowners association with revenues in excess of $100,000 may waive outside review for more than two consecutive years.

Every condominium and cooperative association must obtain and maintain adequate insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. The persons who must be covered include the president, secretary, and treasurer of the association. The association must pay the cost of bonding.32 There is no corresponding requirement in homeowners associations. The Select Committee recommends that homeowners associations similarly must obtain surety bonding to protect association funds. Several citizens complained of their homeowners' association paying members to serve the board of directors. The Select Committee recommends that no association may pay a board member, or waive assessments in part or in full, unless the authority to pay or waive assessments is specifically in the declaration or covenants.

29 Sections 718.111(13), and 720.303(7), F.S. 30 Id. 31 158 complaints in the most recent quarter (26.12% of all complaints) 32 Sections 718.111(11)(d) and 719.106(1)(k), F.S.

Regulation of Homeowners Associations

As noted above, while condominium and cooperative associations are subject to state regulation, there is no regulatory body for homeowners associations. At every meeting of the Select Committee, numerous members of homeowners associations asked that they be regulated like condominium and cooperative associations. The Chairman usually asked if he or she would be willing to pay the same $4 per unit per year fee that condominiums and cooperatives pay, every person who was asked replied yes. The Select Committee finds that regulation of homeowners associations is in the best interests of association, residents, and the state. According, the Select Committee recommends that homeowners associations be regulated like condominiums and cooperatives through DBPR, subject to thesame $4 per home per year fee. The Select Committee then discussed implementation of this recommendation. As the members of the Select Committee were uncertain regarding the number and scope of homeowners associations and the burden that regulation will invariably have on DBPR, the Select Committee recommends that the Legislature fund a study that would report to the Governor, President of the Senate, and Speaker of House by January 1, 2009 to suggest how to phase in regulation of homeowners associations.

Study Commission

The members of the Select Committee believe that the issues and laws regarding association living must be constantly monitored in order that such laws keep pace with changes in society and in community living. The Select Committee recommends creation of a Community Association Living Study Commission to meet every five years to study issues and laws related to community associations. The first such commission should be convened in the Fall of 2008.

Future of the Select Committee

The members of the Select Committee believe that they have made a positive impact on Florida law. The members further believe that the process of compelling associations to appear before the committee has had a positive impact on the committee's understanding of the law and the problems that citizens have dealing with their associations. The process has also helped constituents who have, in some cases, spent years trying to get help with their association. The Select Committee recommends that the committee be reconvened this summer to further investigate association law and the associations that are governed by it.