In changes made during the 2013 Legislative Session, House Bill 7119 made modification to Section 720.303 of Florida Statutes, adding a new subsection (13), which requires all homeowners associations to register with the Department of Business and Professional Regulation (DBPR) prior to November 22, 2013. The DBPR has announced the creation of a website for homeowners associations to complete the registration at www.myfloridalicense.com/hoa.
Broward County Considering New Ordinance Which Negatively Affects Associations
The Board of County Commissioners for Broward County will be holding a public hearing on Tuesday, September 10, 2013, at 2:00 p.m., in Room 422 of the Governmental Center, to consider a proposal to revise Section 16 ½ and add a new Section 16 ½ – 35.6, purportedly regarding restrictions on discrimination in housing. This issue is of significant importance to community associations in Broward County and needs your attention.
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Court Clarifies Status Of Owner As “Member” of Master Association
Many communities throughout Florida have been developed with multiple levels of associations. In these instances, the home within the community is typically subject to provisions of the governing documents for each of the associations. Often, the documents of an association that operates and manages property that is common to several other communities (a “Master Association”) provide that the “Member” of the Master Association is the association that operates one of the subdivisions within the community (a “Sub-Association”). When documents are written in such a manner, questions arise as to the rights and obligations of the individual homeowners relative to the Master Association, such as entitlement to attend meetings of the board of directors and undertake record inspections. In a recent decision of the Florida Fifth District Court of Appeal, the Court decided that if the homeowner is obligated to pay assessments for the benefit of the Master Association, that homeowner is a “Member” of the Master Association, with all such entitlements.
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New Legislation Affecting Foreclosure Processes (House Bill 87)
On June 7, 2013, the Governor signed House Bill 87 into law, effective immediately, amending portions of the Statutes governing residential mortgage foreclosures in Florida. Although many of the amended provisions within this Bill, and in particular in Chapter 702 of Florida Statutes do not directly affect community associations, a change to the legal procedures which govern how mortgage foreclosure cases can be moved through the court system offers possible benefits to those associations which have been burdened by lagging lender foreclosures, under certain circumstances.
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New Legislation Affecting Condominiums, Cooperatives, and Homeowner Associations (House Bill 73)
On June 14, 2013, the Governor signed into law the proposed legislation identified as House Bill 73, which makes changes to Chapters 718, 719 and 720 of Florida Statutes. Except as otherwise set forth in the Bill, the changes are effective July 1, 2013.
Section 399.02(9) F.S., has been revised, removing the deadline for upgrades to existing elevators per safety code. The revised provision now indicates upgrades are only required when the elevator is replaced or undergoes major modifications.
New Legislation (House Bills 77 and 999)
On June 7, 2013, the Governor signed House Bill 77 into law, effective July 1, 2013. This Bill amends Chapter 83 of Florida Statutes, involving landlord/tenant issues. With respect to the effect of amendments on community association interests, Section 83.64(1), F.S. was revised to add provisions which make it unlawful for a landlord to retaliate against the tenant, by way of threatening legal action for possession or to increase the rent, if the tenant pays the rent to a condominium, cooperative or homeowners’ association after demand from the association, in order to pay the landlord’s obligation to the association. This new language supports the right of the condominium, cooperative or homeowners’ association to demand rent from tenants of delinquent owners, as has been provided for in recent years in Chapters 718, 719 and 720 F.S.
New Legislation Affecting Homeowner Associations (House Bill 7119)
On June 14, 2013, the Governor signed into law the proposed legislation identified as House Bill 7119, which primarily makes changes to Chapter 720 of Florida Statutes, for homeowners associations. The one item of change in the Bill outside of Chapter 720 F.S. is the creation of a new subsection (7) to Section 468.436(2) F.S., relating to licensed community association managers. The new provision indicates that disciplinary action may be taken against a manager for violations of any provision of Chapter 718, 719 or 720 F.S., while performing community association management services.
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Legislation Provides Protection For Design Professionals
In the 2013 Legislative session, the Legislature has amended Chapter 558 of Florida Statutes to provide protection for design professionals. Senate Bill 286, which has been signed into law by the Governor, will be effective July 1, 2013, initially expands the definition of “design professional” to add “geologist” to “architect, interior designer, landscape architect, engineer and surveyor”, and limits liability on such professionals.
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Court Rules On Manner Of Director Resignations
In an oddly reasoned opinion, the Florida First District Court of Appeal has issued a ruling that director resignations should be in writing in order to be valid and enforceable. In the case of Pain Reduction Concepts, Inc. v. Frisbie and Paint Science Solutions, Inc., Case No 1D11-3928, April 24, 2013, the Court reviewed the resignations requirements under Chapter 607 of Florida Statutes (the Florida Corporations Act). Although community associations in Florida are subject to Chapter 617 F.S. (the Florida Not-For-Profit Corporations Act), the provisions on resignations are substantially the same in both statutes. As such, if this decision is not further appealed or there is no other appellate court ruling to the contrary, the holding of this case will have application to community associations in Florida.
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Court Confirms Obligations Of Board Members Of Homeowners Associations To Preserve The Governing Documents In The Public Record.
In the case of Southfields of Palm Beach Polo and Country Club Homeowners Association., et al, vs. McCullough, Case Nos. 4D11-1130 and 4D11-4659 (April 17, 2013), the Fourth District Court of Appeal has clarified the obligation of the members of the board of directors in a homeowner association to take affirmative action to make certain that the governing documents of the community do not expire under the Marketable Record Titles to Real Property Act (“MRTA”) set forth in Chapter 712 of Florida Statutes. In its decision, the Court affirmed the decision of the lower court that when faced with the expiration of the Covenants under MRTA, a board of directors must take the required action to make certain such expiration does not occur.
The court noted that MRTA was enacted in 1963 to simplify and facilitate land transactions by providing that unless properly preserved under the procedures set forth in the Statute, claims against property, which includes declarations of covenants, will expire after thirty (30) years. Within the Statute is a procedure for preserving the covenants for another thirty (30) year period, which includes filing certain notices in the Public Records. In the Southfields case, the board was refusing take the necessary action to comply with the Statute and, as such, risking the expiration of the covenants. If the covenants expired, the association would no longer be able to enforce the restrictions or collect assessments. The court confirmed that when the governing documents generally mandate the board of directors to protect the community, which most governing documents will do, the board of directors must fulfill its duty and take the required action to preserve the declaration. The failure of the board to do so with such knowledge of the duty could involve exposure to personal liability for the individual directors.
MRTA does not affect condominium associations. However, for any homeowner association community with an original declaration of covenants that was recorded less than, but close to thirty years ago, the board should consult with the association attorney as soon as possible regarding the preservation of the covenants before the thirty year expiration, as the procedures after the expiration are much more difficult to accomplish.
