The Legislative Session for 2011 has produced a few significant changes to Chapter 720 F.S. affecting Homeowners’ Associations, as well as other Chapters of Florida Statutes that affect community associations, as found in House Bill (HB) 1195, which become effective July 1, 2011. The following is a summary of changes most relevant to the operation of the association and an identification of the particular affected sections. Please note that this summary is not intended to be an exhaustive explanation of the intricate detail of all of the changes nor is it to be considered complete legal advice on the subject. It is recommended that if there are any questions regarding any of these changes, you contact this office for further discussion. (All Section references below are to Florida Statutes.)
Among the most important revisions, HB 1195 incorporates changes to owner participation at board meetings; clarification and expansion on limitations to inspection of official records; clarification and enhancement of suspension of use rights, to include covenant violations, and suspension of voting rights; qualification requirements to serve on the board; protection from claims of other related associations with a higher priority claim on property when an association forecloses; collection of rent from tenants of delinquent owners; and, bulk communication contracts (including cable television and internet services).
Section 720.303(2)(b) has been revised to provide entitlement to the membership of a homeowners association to speak at meetings of the board with reference to all designated items. The requirement to submit a petition to the board to place an item on the agenda and the limitation of the speaking only on such item has been removed.
Section 720.303(5), relating to the Official Records of the Association, has been revised with respect to certain items that are not available for inspection by a requesting homeowner. Items that are protected by attorney-client privilege are expanded by the deletion of the qualification that they involve “imminent civil or criminal” litigation or “imminent adversarial administrative” proceedings. “Personnel records” which are exempt from member inspection are clarified to not include written employment agreements with an association employee or budgetary or financial records that indicate the compensation paid to an association employee. Facsimile numbers are added to the personal information that is excluded from being available for inspection. An owner may also consent in writing to the disclosure of the protected information. The association is also not liable for disclosing information that is otherwise protected if such information was voluntarily included in the official records by the owner and not requested by the association.
Section 720.305 has been further revised regarding the suspension of use rights to common areas and suspension of voting rights. Subsection (2) has been revised to clarify that a fine may be levied for the failure to comply with any provisions of the governing documents and/or reasonable rules of the Association. It further provides for the authority to suspend use rights for the failure of the owner or its occupant, licensee, or invitee to comply with the governing documents and/or reasonable rules of the association. A fine or suspension of use rights for this purpose requires at least 14 days advance written notice to the violator(s) of a hearing before a committee.
A new subsection (3) has been created to provide for the suspension of use rights when a member is more than 90 days delinquent in paying a monetary obligation to the association, which is substantially the same as what was adopted in 2010. No hearing requirement applies to this type of suspension.
Subsection (4) has been revised to provide for the ability of associations to suspend voting rights for individuals more than 90 days delinquent for any monetary obligation due to the association. It further provides that a suspended voting interest will not be included toward the total number of votes necessary for a quorum, the number of votes required to conduct an election or the number needed to approve action by the association set forth in the governing documents. No notice and hearing is required.
A new subsection (5) is added to provide that suspensions imposed in subsections (3) and (4) must be approved at a properly noticed board meeting, with appropriate notice from the association to the affected individual by mail or hand delivery.
Section 720.306(9), relative to elections and board vacancies, has been subdivided into parts (a), (b) and (c). The new subsection (b) creates qualification requirements in order to be eligible to serve on the board. No individual is eligible who is: (1) more than ninety (90) days delinquent in the payment of any monetary obligation to the association; or, (2) convicted of any felony (or what would be a felony in this State if in another jurisdiction) unless such felon’s civil rights have been restored for at least five (5) years from the date of the election.
Section 720.3085(2) has been revised to provide that an association that acquires title to a parcel through its own foreclosure of unpaid assessments is not liable for any unpaid assessments, late fees, interest, or reasonable attorney’s fees and costs that came due prior to the acquisition of title in favor of any other association which holds a superior lien interest on the parcel (e.g., a master or recreation association).
Subsection (8), regarding the collection of rent from the tenan of a delinquent owner has been further divided into subparts (a)-(f). Subsection (a) has been clarified regarding the obligation of a tenant to pay rent to include all monetary obligations due to the association by the owner. A form has been added for the written demand on a tenant for the payment of the rent.
Section 720.309, regarding agreements of the association, has been divided into subsections (1) and (2), with new provisions in (2). The new subsection (2) provides for the inclusion of communications services (such as cable tv), information services or internet services pursuant to a bulk contract as well as for how the expense of such contracts will be allocated to the membership. Limitations on such contracts is also set forth.
House Bill 59 was also adopted, which amends Section 48.031, involving access to gated or otherwise secured communities by licensed process servers. The new provisions state that a gated residential community, including a condominium or cooperative, shall grant unannounced entry, including to common areas and common elements, to a person attempting to serve process on a defendant or a witness who resides in or is known to be within the community.
We understand that there are numerous and significant changes made for 2011. The synopsis set forth herein is to simply provide an overview of the changes that most appreciably affect association operations. If you have further questions regarding any of the new provisions, please contact this office.