CCFJ WISH LIST 2025

CCFJ Director for Legislative Affairs    
Milena Macias, Esq.

OH … IF WISHES COULD COME TRUE…

WISH 1.  MEMBERS OF HOME OWNERS ASSOCIATIONS MUST HAVE THE SAME RIGHTS THAT ARE  ACCORDED TO MEMBERS OF CONDOMINIUM ASSOCIATIONS --  AMEND FLA. STAT.  §  720.306 (2018) “MEETINGS OF MEMBERS; VOTING AND ELECTION PROCEDURES; AMENDMENTS) TO ADD THE PROVISIONS OF FLA. STAT. § 718.5012 (OMBUDSMAN; POWERS AND DUTIES).

It is not an unreasonable wish to ensure that the current Florida law which is applicable to all members living in mandatory community associations to be extended to members of mandatory homeowners associations.  It is not only a matter of respect, it is a matter of fairness  especially in terms of the election process.

Fla. Stat. § 718.5012(9) entitled “OMBUDSMAN; POWERS AND DUTIES” authorizes the Division of Florida Condominiums, Timeshares, and Mobile Homes to employ election monitors in response to requests from unit owners or board members on complaints about election irregularities and elections with a history of disputes.  

The Association is responsible for the cost of an election monitor who observes the entire election process. 

The election monitor ensures compliance with Florida law and the Association’s governing documents, verifies voter eligibility, oversees proper ballot handling and counting, provides a report on the election process, issues a result, and is instrumental in resolving disputes.   These measures provide an increased transparency and credibility to the election process, reduces post-election disputes and serves to have an impartial resolution of issues.

WISH 2.   MANDATORY EDUCATION FOR COMPLIANCE UNDER FLA. STAT. §718.112 (COA’s) AND FLA. STAT. 720.3033 (HOA ACT) MUST BE HELD IN PERSON AND NOT VIA ZOOM.

I admit it -- at first, I was all for having compliance for mandatory education on ZOOM.    

After reflection, I realized using ZOOM is a really bad idea.   If a board member cannot take just four  hours of their time to take a class in person to learn about the responsibility of their duties on the board, they ought not be on the board.   Let’s remember there is something called a fiduciary duty. In August 2024, Jan conducted an experiment and tested the online DBPR’s seminar.    During the four hour DBPR online presentation, while his laptop was running in his office, Jan did his gym exercises in his pool, made and ate lunch, wrote up his column, made some phone calls, made an attempt to look at his laptop and answered on line questions (answering them wrong). 

And, yet, DBPR gave Jan a certificate for both COAs and HOAs.  

(See: MANDATORY EDUCATION WITHOUT EDUCATION?)

Re-reading that article scared me straight.    There are enough nincompoops on boards – do we really want to encourage them and let results of the circumstances of Jan’s test to occur?    If board members can go to a concert to hear their favorite performer in person (and pay for it), so why can’t they take four hours of their time to really understand the duties their members have entrusted them with?

WISH 3.   VOID THE KAUFMAN LANGUAGE

We should void the Kaufman language.    New laws are enacted, but if the language is not incorporated into the governing documents, it means nothing -- nearly 50% of the property owners in the State of Florida don't have to obey by it.   How is that fair?

Condominiums are a creature of statute, created and governed by the legislature.    The Kaufman language dictates that certain statutory language is not enforceable when the governing documents were recorded before the statute was passed unless the documents include the phrase “as amended from time to time.”     

If the language is not in the governing documents, the Kaufman language can be accomplished by an amendment approved by the percentage required of vote of owners, and then filed in the official records in the County where the Association is domiciled.

On the one hand, the Kaufman makes sense – let’s follow the law as it exists. 

On the other hand, unless approved by an amendment and required vote of the owners, the Kaufman language does not make sense because governing documents are a contract between the Member and the Association.  

In the of simplest terms, a contract is formed by an offer, consideration and acceptance.

The offer is part of contract negotiations where a party agrees to do or not do something in exchange for consideration, and stated in a way that a reasonable person expects a binding contract to arise from its acceptance.   In the case of an Association, the offer is that the governing documents are presented to a prospective Member for their review.   Consideration is the key element of a contract since the prospective Member promises to abide by the governing documents, and the Association promises to follow the governing documents.    To be binding, acceptance requires the prospective Member and the Association have the terms communicated and accepted in good faith.

Presently, the most prevalent issue relating to the Kaufman language is condominium termination.   Breach of contract issues exist where Members whose  governing documents (absent from the Kaufman language)  mandate a 100% voting interest approval for condominium termination are pitted against developers  (who presumably want to tear down the building and construct a new one) using the current law that provides 80% voting interest approval to terminate the condominium is valid, except if 5% or more of the voting interests object (and if, if objected to, condominium termination cannot be proposed for at least 24 months).

WISH 4. INCORPORATE HOME OWNERS ASSOCIATIONS REGULATED BY CHAPTER 720, FLA. STAT.  INTO THE DIVISION OF FLORIDA CONDOMINIUMS, TIMESHARES, AND MOBILE HOMES -- OR -- PERHAPS PUT THE DIVISION (INCLUDING HOME OWNERS ASSOCIATIONS) UNDER THE UMBRELLA OF CONSUMER PROTECTION DIVISION OF THE OFFICE OF THE ATTORNEY GENERAL (“CPD”)

Do you realize that more than 2.5 million parcels would add more than $5M to the coffers if they are charged only $2 annually?  

It should be simple --  incorporate Home Owners’ Associations to ensure the same regulations enjoyed rights by members in mandatory condominiums, timeshares and mobile home associations.   Perhaps it might be also be time to consider that that the Division (including home owner associations) be placed under the umbrella of the  Consumer Protection Division of the Office of the Attorney General (“CPD”).

Frankly, we need enforceability, we need attention to detail and we need to resolve complaints.  There is too much tension by members of associations dealing with boards engaging in fraudulent matters who violate members rights and then bully members in an attempt to hide their criminal actions.

CPD  is the civil enforcement authority for violations of the Florida Deceptive and Unfair Trade Practices Act and related laws.   There is nothing more important than to protect consumers (and members of an Association are consumers) than “by pursuing individuals and entities that engage in unfair methods of competition or unconscionable, deceptive, or unfair practices in trade of commerce.”  

In Florida,  The Division of Florida Condominiums, Timeshares and Mobile Homes provides oversight of the Florida residential communities regulate through education, complaint resolution, mediation and arbitration, and developer disclosure.

However, allowing CPD to assume the responsibility of the functions currently held by the Division of Florida Condominiums, Timeshares and Mobile Homes, would provide greater efficiency, be less costly and ensure responsibility  with other state attorneys general as well as state and federal agencies in joint enforcement efforts.  

Just something to consider.

WISH 5.  END THE FinCEN  ABSURDITY ON THE  LITIGATION PENDING IN THE 11TH CIRCUIT.

This litigation is costly, illogical and ridiculous.   FinCEN has issued a reporting requirement that an entity:

“created or registered to do business in the United States by the filing of a document with a secretary of state or similar office,” is considered a domestic reporting company and required to report beneficial ownership information, unless an exemption applies.    …  A beneficial owner is any individual who, directly or indirectly, exercises substantial control over a reporting company, or owns or controls at least 25 percent of the ownership interests of a reporting company.”

Presumably, that is the board of directors of an association.  In Florida, condominiums and homeowners are creations of statutes, and most associations are non-profit corporations.  The exception that non-profit corporations like condominium and homeowners associations should be excluded and not required to report beneficial ownership information to FinCEN should be automatic, but apparently it is not. 

A few hundred bucks for the management companies to prepare the forms and bill the associations, and for the association attorneys to advise on this issue, is just gravy, but for the rest of us – it is clear case of insanity. 

Frankly, measures by FinCEN on this issue could be viewed as unconstitutional and violate Amendment Ten to the United States Constitution (ratified on December 15, 1791): 

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Powers not specifically given to the federal government, nor withheld from the states, are reserved to those respective states, or to the people at large.

Let’s also remember:

“Government of the people, by the people, for the people, shall not perish from the earth”? (U.S. President Abraham Lincoln, The Gettysburg Address, November 19, 1863)

For example, while the United States Court of Appeals for the Eleventh Judicial Circuit has jurisdiction over federal cases including those originating in the states of Alabama and Florida, they should not rule on principles of state law and equity which differ in Alabama and Florida.

There is no legal justification that governance of condominium and homeowners associations regulated by respective states are to be classified as a federal issue.

While not opining on Alabama law, it is interesting that “The Alabama Homeowners' Association Act requires all Homeowners' Associations formed on or after January 1, 2016, to file organizational documents as a nonprofit corporation.” (available at THE ALABAMA HOMEOWNERS' ASSOCIATION ACT )