SB 2062 / HB 1593

Relating to Homeowners' Associations



Just when we just thought the bill creating board dictatorships was dead…The House Committee on Civil Justice amended the bill and suggested that the Condo Advisory Council should hold public hearings before re-submitting this bill for consideration.  But here it is again -- a bill, which in some people’s opinion is plainly a license to steal -- this time proposed by Senator Aronberg.  We remember Senator Aronberg from 2004 when he tried to support the condo commandos in his district and promised them support.   Now here we are with a bill that opens every door to kickbacks and even worse.  The House sneaked in a quick sentence that would have killed a lot of progress made during last year's session.  Using liens and foreclosures for fines levied by kangaroo courts!


There have been good intentions in this bill, but the way the House added the sentence into House Bill 1593: 

69                                                           A fine shall not become a lien against a
70 parcel unless it is imposed for violations of use restrictions
71 on the land

and now Senator Aronberg trying to revive the dictatorship bill. This bill should be doomed.


The attorneys that wrote this bill should have learned in law school: "Disaster invites rescue and rescue invites disaster!"


Please ask the Senators on the Committee hearing this bill on Monday, April 25, to vote "NAY" or make sure that these two amendments will be finally killed. The welfare of many constituents is at stake!


Senator Aronberg's Proposed Amendment

Florida Senate - 2005                      COMMITTEE AMENDMENT
Bill No. SB 2062
Barcode 402878
                                                      CHAMBER ACTION
                                             Senate                                House
1                                 .                                     .                    
2                                 .                                           .                    
3                                 .                                      .                    
4  ______________________________________________________________
10  ______________________________________________________________
11  The Committee on Regulated Industries (Aronberg) recommended
12  the following amendment:
14         Senate Amendment (with title amendment)
15         On page 1, line 26, through
16            page 4, line 25, delete those lines
18  and insert:  
19         Section 1.  Section 718.1265, Florida Statutes, is
20  created to read:
21         718.1265 Association emergency powers.--
22         (1) To the extent allowed by law and unless
23  specifically prohibited by the declaration, the articles, or
24  the bylaws of an association, the association may, in response
25  to a state of emergency declared in accordance with s.
26  252.36(2) or a mandatory evacuation order issued by civil or
27  law enforcement authorities for the locale in which the
28  condominium is located, exercise the power to:
29         (a) Conduct board meetings and membership meetings
30  with notice given as is practicable. Such notice may be given
31  in any practicable manner, including publication, radio, U.S.
                                               PAGE 1
 1  Mail, the Internet, public service announcements, conspicuous
 2  posting on the condominium property, or some other means the
 3  board deems reasonable under the circumstances. Notice of
 4  board decisions also may be communicated as provided in this
 5  paragraph;
 6         (b) Cancel and reschedule any association meeting;
 7         (c) Name as assistant officers persons who are not
 8  directors, which assistant officers shall have the same
 9  authority as the executive officers to whom they are assistant
10  during the state of emergency, to accommodate the incapacity
11  or unavailability of any officer of the association;
12         (d) Relocate the association's principal office or
13  designate alternative principal offices;
14         (e) Enter into agreements with local counties or
15  municipalities to assist with debris removal.
16         (2) Consistent with the standards of s. 617.0830, the
17  association may:
18         (a) Implement a disaster plan, including, but not
19  limited to, shutting down or off elevators, electricity,
20  water, sewer, security systems, or air conditioners;
21         (b) Declare any portion of the condominium property
22  unavailable for entry or occupancy by unit owners, family
23  members, tenants, guests, agents, or invitees in order to
24  protect the health, safety, or welfare of such persons;
25         (c) Order the evacuation of the condominium property
26  in the event of a mandatory evacuation order in the locale in
27  which the condominium is located. If any unit owner or other
28  occupant of a condominium fails or refuses to evacuate the
29  condominium property upon such an order, the association is
30  immune from liability for injury to persons or property
31  arising from such a refusal;
                                            PAGE  2
 1         (d) Determine whether the condominium property can be
 2  safely inhabited or occupied. However, such determination is
 3  not conclusive as to any determination of habitability
 4  pursuant to the declaration.
 5         (3) To the extent allowed by law and unless
 6  specifically prohibited by the declaration, the articles, or
 7  the bylaws of an association, and consistent with the
 8  provisions of s. 617.0830, the association may, in response to
 9  damage caused by an event for which a state of emergency is
10  declared in accordance with s. 252.36(2) in the locale in
11  which the condominium is located, exercise the power to:
12         (a) Mitigate further damage, including taking action
13  to prevent or mitigate the spread of fungus, including but not
14  limited to mold, or mildew, by removing and disposing of wet
15  drywall, insulation, carpet, cabinetry, or other fixtures,
16  even if the unit owner is obligated by the declaration or law
17  to insure or replace those fixtures and to remove personal
18  property from a unit;
19         (b) Contract, on behalf of unit owners and with unit
20  owners being responsible for reimbursing the association, for
21  items or services for which the owners are otherwise
22  responsible, but which may be necessary to prevent further
23  damage. Without limitation, such items or services may include
24  the drying of units, boarding of broken windows or doors, and
25  replacement of damaged air conditioners or air handlers to
26  provide climate control in the units or other portions of the
27  property;
28         (c) Levy special assessments; or
29         (d) Borrow money and pledge association assets as
30  collateral to fund emergency repairs and carry out the duties
31  of the association when operating funds are insufficient,
                                  PAGE 3
 1  without unit owner approval. This paragraph does not limit the
 2  general authority of the association to borrow money, which
 3  may be exercised by the board pursuant to the declaration,
 4  articles, or bylaws.
 5         (4) Use of the special powers of the association
 6  authorized under this section is limited to those times and
 7  circumstances in which such use is reasonably necessary to
 8  protect the health, safety, and welfare of the association,
 9  the unit owners, their family members, tenants, guests,
10  agents, or invitees and reasonably necessary to mitigate
11  further damage and make emergency repairs.
12         Section 2.  Paragraphs (f) and (l) of subsection (2) of
13  section 718.112, Florida Statutes, are amended to read:
14         718.112  Bylaws.--
15         (2)  REQUIRED PROVISIONS.--The bylaws shall provide for
16  the following and, if they do not do so, shall be deemed to
17  include the following:
18         (f)  Annual budget.--
19         1.  The proposed annual budget of common expenses shall
20  be detailed and shall show the amounts budgeted by accounts
21  and expense classifications, including, if applicable, but not
22  limited to, those expenses listed in s. 718.504(21). A
23  multicondominium association shall adopt a separate budget of
24  common expenses for each condominium the association operates
25  and shall adopt a separate budget of common expenses for the
26  association. In addition, if the association maintains limited
27  common elements with the cost to be shared only by those
28  entitled to use the limited common elements as provided for in
29  s. 718.113(1), the budget or a schedule attached thereto shall
30  show amounts budgeted therefor. If, after turnover of control
31  of the association to the unit owners, any of the expenses
                                  PAGE  4
 1  listed in s. 718.504(21) are not applicable, they need not be
 2  listed.
 3         2.  In addition to annual operating expenses, the
 4  budget shall include reserve accounts for capital expenditures
 5  and deferred maintenance. These accounts shall include, but
 6  are not limited to, roof replacement, building painting, and
 7  pavement resurfacing, regardless of the amount of deferred
 8  maintenance expense or replacement cost, and for any other
 9  item for which the deferred maintenance expense or replacement
10  cost exceeds $10,000. The amount to be reserved shall be
11  computed by means of a formula which is based upon estimated
12  remaining useful life and estimated replacement cost or
13  deferred maintenance expense of each reserve item.  The
14  association may adjust replacement reserve assessments
15  annually to take into account any changes in estimates or
16  extension of the useful life of a reserve item caused by
17  deferred maintenance. This subsection does not apply to an
18  adopted budget in which the members of an association have
19  determined, by a majority vote at a duly called meeting of the
20  association, to provide no reserves or less reserves than
21  required by this subsection. However, prior to turnover of
22  control of an association by a developer to unit owners other
23  than a developer pursuant to s. 718.301, the developer may
24  vote to waive the reserves or reduce the funding of reserves
25  for the first 2 fiscal years of the association's operation,
26  beginning with the fiscal year in which the initial
27  declaration is recorded, after which time reserves may be
28  waived or reduced only upon the vote of a majority of all
29  nondeveloper voting interests voting in person or by limited
30  proxy at a duly called meeting of the association. If a
31  meeting of the unit owners has been called to determine
                                 PAGE  5
 1  whether to waive or reduce the funding of reserves, and no
 2  such result is achieved or a quorum is not attained, the
 3  reserves as included in the budget shall go into effect. After
 4  the turnover, the developer may vote its voting interest to
 5  waive or reduce the funding of reserves.
 6         3.  Reserve funds and any interest accruing thereon
 7  shall remain in the reserve account or accounts, and shall be
 8  used only for authorized reserve expenditures unless their use
 9  for other purposes is approved in advance by a majority vote
10  at a duly called meeting of the association. Prior to turnover
11  of control of an association by a developer to unit owners
12  other than the developer pursuant to s. 718.301, the
13  developer-controlled association shall not vote to use
14  reserves for purposes other than that for which they were
15  intended without the approval of a majority of all
16  nondeveloper voting interests, voting in person or by limited
17  proxy at a duly called meeting of the association.
18         4.  The only voting interests which are eligible to
19  vote on questions that involve waiving or reducing the funding
20  of reserves, or using existing reserve funds for purposes
21  other than purposes for which the reserves were intended, are
22  the voting interests of the units subject to assessment to
23  fund the reserves in question.
24         5. In addition to reserves required by this paragraph,
25  the association may establish a reserve category for uninsured
26  casualty losses, based upon a formula the board considers
27  appropriate.
28         (l)  Certificate of compliance.--There shall be a
29  provision that a certificate of compliance from a licensed
30  electrical contractor or electrician may be accepted by the
31  association's board as evidence of compliance of the
                                 PAGE   6
 1  condominium units with the applicable fire and life safety
 2  code. Notwithstanding the provisions of chapter 633 or of any
 3  other code, statute, ordinance, administrative rule, or
 4  regulation, or any interpretation of the foregoing, an
 5  association, condominium, or unit owner is not obligated to
 6  retrofit the common elements or units of a residential
 7  condominium with a fire sprinkler system or other engineered
 8  lifesafety system in a building that has been certified for
 9  occupancy by the applicable governmental entity, if the unit
10  owners have voted to forego such retrofitting and engineered
11  lifesafety system by the affirmative vote of two-thirds of all
12  voting interests in the affected condominium. However, a
13  condominium association may not vote to forego the
14  retrofitting with a fire sprinkler system of common areas in a
15  high-rise building. For purposes of this subsection, the term
16  "high-rise building" means a building that is greater than 75
17  feet in height where the building height is measured from the
18  lowest level of fire department access to the floor of the
19  highest occupiable story. For purposes of this subsection, the
20  term "common areas" means any enclosed hallway, corridor,
21  lobby, stairwell, or entryway. In no event shall the local
22  authority having jurisdiction require completion of
23  retrofitting of common areas with a sprinkler system before
24  the end of 2020 2014.
25         1.  A vote to forego retrofitting may be obtained by
26  limited proxy or by a ballot personally cast at a duly called
27  membership meeting, or by execution of a written consent by
28  the member, and shall be effective upon the recording of a
29  certificate attesting to such vote in the public records of
30  the county where the condominium is located. The association
31  shall mail, hand deliver, or electronically transmit to each
                                 PAGE  7
 1  unit owner written notice at least 14 days prior to such
 2  membership meeting in which the vote to forego retrofitting of
 3  the required fire sprinkler system is to take place. Within 30
 4  days after the association's opt-out vote, notice of the
 5  results of the opt-out vote shall be mailed, hand delivered,
 6  or electronically transmitted to all unit owners. Evidence of
 7  compliance with this 30-day notice shall be made by an
 8  affidavit executed by the person providing the notice and
 9  filed among the official records of the association. After
10  such notice is provided to each owner, a copy of such notice
11  shall be provided by the current owner to a new owner prior to
12  closing and shall be provided by a unit owner to a renter
13  prior to signing a lease.
14         2.  As part of the information collected annually from
15  condominiums, the division shall require condominium
16  associations to report the membership vote and recording of a
17  certificate under this subsection and, if retrofitting has
18  been undertaken, the per-unit cost of such work. The division
19  shall annually report to the Division of State Fire Marshal of
20  the Department of Financial Services the number of
21  condominiums that have elected to forego retrofitting.
24  ================ T I T L E   A M E N D M E N T ===============
25  And the title is amended as follows:
26         On page 1, lines 3-9, delete those lines
28  and insert:
29         creating s. 718.1265, F.S.; authorizing a
30         condominium association board to exercise
31         specified emergency powers during an emergency;
                                 PAGE  8
 1         providing limitations; amending s. 718.112,
 2         F.S.; providing for a condominium association
 3         to establish casualty reserve accounts;
 4         extending a period in which
                               PAGE   9
    9:40 AM   04/22/05                             s2062c-ri27-c1p