As the 2015 statutory changes have now been enacted, the Di Masi || Burton P.A. wanted to provide a short review of the statutory revisions that will be impacting associations going forward. This summary is not intended to be all inclusive, it is simply provided to make our associations aware of the general changes that have taken place this year. If any of our associations would like a more comprehensive review of these changes please let us know and we would be happy to oblige.
Electronic Voting (applies to Condominiums, Cooperatives, and Homeowners’ Associations)
Section 718.128, Section 719.129, and Section 720.317, Florida Statutes
This amendment allows any association to conduct elections and other membership votes through an internet-based online voting system regardless of whether this is permitted in the Association’s governing documents. In order to implement this system, the Board must elect to initiate it through a resolution at a meeting called for that purpose. There also must be 14 days’ notice of that meeting delivered to each member. Once established, members must consent in writing in order for them to participate and the system can be used for “any matter that requires a vote of the members”. If a member does not consent, the member still must be allowed to vote by paper ballot. A member voting on the item for which the member submitted the electronic vote is counted as being present at the meeting for purposes of determining a quorum. Finally, the association must have a method to confirm, at least 14 days before the voting deadline, that the member can successfully use the online system.
Fines/Penalties (applies to Condominiums, Cooperatives, and Homeowners’ Associations)
Section 718.303, Section 719.303, Section 720.305, Florida Statutes
There were some minor changes to this statute that operated to clarify the existing law. First, the law now states that it is the board of directors that is responsible for levying the fines, not the fining committee. As such the role of the fining committee is limited to confirming rejecting the fine levied by the board of directors
Suspension of Voting Rights (applies to Condominiums, Homeowners’ Associations)
Section 718.303, Section 72.305, Florida Statutes
Going forward, if a member’s voting rights have been suspended, the total number of votes needed in calculating the vote needed for any action is reduced by the number of votes that have been suspended. Also, when a suspension is in place for a member, that suspension applies, when appropriate, to the member’s tenants, guests or invitees, even if the delinquency that resulted in the suspension arose from less than all of the multiple units owned by a member.
Digital or Electronic Transmission of Proxies (applies to Condominiums, Cooperatives and Homeowners’ Associations)
Section 617.0721, Florida Statutes
This amendment makes it clear that proxies may be returned to the association via facsimile or via email.
Application of Payment/Assessments (applies to Condominiums and Cooperatives)
Section 718.116 and Section 719.108, Florida Statutes
In 2014, case law was established that indicated when someone paid less than the full amount due and owing, but stated that payment of this amount was meant to fully settle any claims against him or her, the association’s acceptance of this amount acted as a waiver of the ability to collect any additional owed amounts despite the language of Section 718.116. Now, Sections 718 and 719 attempt to re-enforce the notion that acceptance of this partial payment is not a waiver of the ability to seek additional amounts.
Official Records (applies to Condominiums and Cooperatives)
Section 718.111 and 719.104, Florida Statutes
Previously, the catch-all provision for this statute included “all other records of the association … which are related to the operation of the association”. Now, this catch-all has been limited to all other “written records.” This means that audio and video recordings will not be considered association records for the purposes of owner inspections.
Extension of Distressed Condominium Relief Act (applies to Condominiums)
Section 718.707, Florida Statutes
The distressed condominium relief act has been extended until July 1, 2018. This Act relates to developer obligations and whether companies that purchased distressed condominium projects must abide by them.
Insurance (applies to Condominiums)
Section 718.111, Florida Statutes
Going forward, Chapter 718 has been revised to make it clearer that a condominium association is not to be responsible for “uninsured losses” in excess of property insurance coverage under the association’s property insurance policies.
Amendments (Homeowners Associations)
Section 720.306, Florida Statutes
From now own, an association’s failure to provide the required notice of recording an amendment to the associations governing documents does not impact the validity of the amendment.
Identity Granted to Chapter 720, Florida Statues (Homeowners Association)
Section 720.3015, Florida Statutes
The legislature has now officially named Chapter 720 of the Florida Statutes the “Homeowners’ Association Act”.
Rules and Regulations now Governing Documents (applies to Homeowners’ Associations)
Section 720.301, Florida Statutes
Rules and Regulations adopted under the authority of the recorded declaration, articles of incorporation, or bylaws and duly adopted amendments thereto are now officially considered to be part of the association’s governing documents.
Board Member Eligibility (applies to Homeowners’ Associations)
Section 720.306, Florida Statutes
Going forward, if a prospective board member is delinquent on the last day in which he or she is able to be nominated for the board of directors that prospective board member cannot be listed on the ballot. Additionally, if you are already on the board and become more than 90 days delinquent to the association, the board member is deemed to have abandoned his or her seat, thus creating a vacancy.
Protecting Tenants from Foreclosure (applies to Homeowners’ Associations, Condominiums and Cooperatives)
Section 83.561, Florida Statutes
The Federal Protecting Tenants at Foreclosure Act has now expired; however, a new law was recently promulgated in the state of Florida that dictates a tenants write after the property they are leasing has been foreclosed upon. This statute states that after a Certificate of Title is issued in a foreclosure action, the tenant may remain in possession of the premises for 30 days following the purchaser’s notice of termination. The form of this notice of termination is included in this statute. When the notice of termination goes out, the association can make a demand for rent to be paid to the association. If the tenant is still present for 30 days after the notice is sent, the association can seek a Writ of Possession from the court.
Again, if you have any questions about the specifics of how these changes will impact your community please let us know.
Patrick J. Burton, Esq.