Brickell Homeowners Association

This update was supplied to the BHA on May 12, 2004 by Sen. Gwen Margolis' office, from Eileen Damaso, Legislative Assistant to Senator Gwen Margolis, District 35

House Bill 1223 which caused concerns with many people, did not pass but four aspects of that bill passed on to SB 1184: the Creation of the Ombudsman Office; Creation of the Condominium Advisory Council; Creation of the List of Frequently Asked Questions (“Buyers Beware”); and Grandfathering clause for all condo owners that owned their until before the effective date of the amendment of decoration.

CONDOMINIUMS AND HOMEOWNERS’ ASSOCIATIONS

CS/CS/CS/SB 1184 — Condominium and Community Associations
by Judiciary Committee; Health, Aging, and Long-Term Care Committee; Comprehensive Planning Committee; and Senators Campbell, Lynn, Garcia, and Smith

The bill provides immunity from liability to a condominium association and its authorized agent for providing information, other than that required by ch. 718, F.S., in good faith in response to a written request if the person providing the information includes a written statement as provided for in statute.

The bill provides immunity from liability under certain circumstances to community associations for damages caused by the use of an automated external defibrillator owned by the association. This bill also prohibits an insurer from requiring community associations to purchase medical malpractice liability coverage as a condition of issuing any other coverage carried by the association. Also, an insurer may not exclude damages resulting from the use of an automated external defibrillator from coverage under a general liability policy issued to a community association.

Condominium Associations
The bill creates the Advisory Council on Condominiums to receive public input and make recommendations for changes in condominium law. The Office of the Condominium Ombudsman is created within the Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation. The ombudsman must be an attorney admitted to practice before the Florida Supreme Court and shall serve at the pleasure of the Governor. The ombudsman shall make recommendations for legislation relating to division procedures, rules, jurisdiction, personnel and functions. The bill also authorizes fifteen percent of the total voting interests of a condominium association or six unit owners, whichever is greater, to petition the ombudsman to appoint an election monitor to attend the annual meeting and conduct the election of directors.

The bill authorizes voting by limited proxy on votes to forego retrofitting a condominium or cooperative with a fire sprinkler system. It also revises notice requirements relating to the vote to forego retrofitting.

The bill amends the Condominium Act to provide that a resale purchaser is entitled to receive from a nondeveloper, a question and answer sheet upon entering into a contract for sale and to require related disclosures in the resale purchase contract.

This bill provides that any amendment restricting condominium unit owners’ rights relating to the rental of units applies only to unit owners who consent to the amendment or unit owners who purchase their unit after the effective date of the amendment.

Homeowners’ Associations
This bill provides a method for reviving the expired declarations of covenants of a homeowners’ association. The bill also amends several substantive provisions of ch. 720, F.S., relating to homeowners’ associations. It redefines the term “member” to include any person or entity obligated by the governing documents to pay an assessment or amenity fee. The bill provides that parcel owners and members have the right to attend all meetings, and the right to speak for at least three minutes at meetings, provided that the parcel owner or member submits a request to speak prior to the commencement of the meeting. The bill also requires notice to parcel owners and members of all board meetings, and requires an association’s board to address an item of business if 20 percent of the total voting interests petition the board. The board would have to take up the petitioned item at its next meeting or special meeting.

The bill requires associations to maintain a copy of their governing documents and records, and to provide parcel owners with copies requested, if a copy machine is available, during an inspection if the entire request is limited to no more than 25 pages. It requires associations to adopt reasonable rules that govern the inspection of the associations’ records. The bill establishes financial reporting requirements and the format of financial statements. The bill establishes notice requirements for removal of directors. It provides the procedure for certification of the recall vote, for resolving a defective recall, for replacement of a recalled director and establishes dispute resolution procedures for recall and election disputes.

The bill expands flag display rights to include the right to display the official State of Florida and flags of the U.S. Armed Services. It prohibits “Strategic Lawsuits Against Public Participation” or “SLAPP” suits against a parcel owner, requires courts to award the prevailing party reasonable attorney’s fees and costs, and bars associations from expending association funds in prosecuting a SLAPP suit against a parcel owner. It allows any parcel owner to construct an access ramp under certain circumstances. The bill also provides that parcel owners may display within 10 feet of any entrance to the home a sign of reasonable size provided by a contractor for security services.

In addition, the bill provides that a fine by an association against any member, tenant, guest, or invitee cannot become a lien against a parcel. It provides that in any action to recover a fine, the prevailing party is entitled to collect reasonable attorney’s fees and costs. The bill establishes requirements for associations’ contracts for products and services.

This bill revises notice requirements for a homeowners’ association meeting at which the board intends to take action on any rules regarding the use of parcels or the board will consider assessments. It provides disclosure requirements for sellers of property in a community governed by a homeowners’ association and allows a prospective purchaser to void a contract under certain circumstances for failure to receive the disclosure summary.

The bill provides a cause of action to rescind the contract for sale or for damages against a developer for false or misleading material statements. The bill grants the county courts original jurisdiction over disputes occurring in homeowners’ associations, and provides for concurrent jurisdiction in the circuit courts.

Community Development Districts
The bill revises the Uniform Community Development District Act of 1980 to allow a community development district governing board to enforce deed restrictions (in specified circumstances), to correct deficiencies in the district dissolution process, and to correct deficiencies in district elections policies and procedures.

If approved by the Governor, these provisions take effect October 1, 2004.
Vote: Senate 22-10; House 94-8

BHA urges all condo association residents and Boards of Directors to examine the changes being proposed in the Florida House of Representatives to current Florida Statutes 718 and 720. Two dozen potential new rules are being proposed, to be voted on in March, which could dramatically alter the way some boards have functioned and could impose restrictions that may or may not be welcome. BHA has asked Rep. Julio Robaina to be aware that not all Homeowner Associations function the same or have any of the problems he heard about in his hearings around the state.

Guest Column: Reforming the Condominium Act, By Paul Libert, President, Northeast Dade Coalition

The following article discusses homeowners associations and is relevant only to those associations requiring obligatory membership and that have lien powers. The proposed changes would not apply to those that are voluntary associations, like BHA, where neighbors have come together to protect and enhance the quality of life of their neighborhood and have no enforcement powers.

As many of you are aware, the Florida House Committee on Condominium Association Governance has held hearings throughout the state on amending the Condominium and Cooperative Acts and F.S. 720 (Homeowners Associations). During the hearings, legislators listened to many recommendations, some of which result from the emotional distress experienced in dealing with association boards of directors, problem unit owners, the Florida Division of Land Sales, Condominiums and Mobile Homes (DFLSCMH) and the courts. Additionally, Governor Bush appointed a Homeowners Association Task Force, composed of builders, realtors, consumer advocates and attorneys. The Task Force also met throughout the state, hearing from owners unhappy with their homeowner associations.

There are significant differences between statues governing condominiums/cooperatives and homeowners associations. Condominiums and cooperative pay $4 a unit to the Land Sales, Condominiums and Mobile Homes Trust Fund. These monies are used, in part, to fund DFLSCMH, which is charged with enforcing the Condominium and Cooperative Acts. The Condominium and Cooperative Acts provide detailed requirements for budgeting, year-end accounting, election of board members, and resolving disputes. Homeowners associations do not pay any fee to the state, nor is there any state agency charged with enforcing the provisions of F.S. 720. In fact, homeowners associations have wide latitude in their operations.

Currently, enforcement of the Condominium and Cooperative Acts, as they pertain to the rights and responsibilities of both associations and unit owners, is the primary responsibility of DFLSCMH. Enforcement of the contractual relationship described in the association documents falls outside the scope of the Condominium and Cooperative Acts, and is the responsibility of the court system upon the initiation of legal action by a unit owner, association or other interested party. Enforcement of both F.S. 720 and homeowner association documents is the responsibility of the court system upon the initiation of legal action by a unit owner, association or other interested party.

The Condominium and Cooperative Acts are already exceptionally complex and cumbersome, and the more complicated the law becomes, the more difficult it is for Boards and unit owners to understand and implement it. Unfortunately, the DFLSCMH resources to adequately perform its mandated duties are inadequate. The large volume of complains, the lack of properly trained staff resulting from low pay scales and high turnover, the depletion of the Condominium Trust Fund by exorbitant administrative costs imposed by state government, has resulted in a dysfunctional system where resolution of complaints can take many months, investigations are inadequately conducted usually by telephone, and decisions are often poorly and unfairly rendered. The system of non-binding arbitration mandated for many violations of the Condominium and Cooperative Acts often has the effect of lengthening the process, and, at times, result in decisions that appear contrary to the Acts themselves.

The major objective of reforms should be to increase the capacity of the regulatory and/or legal system to rapidly, fairly, and inexpensively resolve disputes between unit owners and associations, regardless of whether they are violations of the statutes or of association documents. A secondary objective should be to prevent problems from arising, by promoting education and training, thereby reducing the burden on DFLSCMH and the courts. When we propose changes to the Condominium and/or Cooperative Acts, or any other statute, we ask: how is this going to be enforced? We examine a proposed change and ask: what purpose does it serve? Is this appropriate to put into law? Is it covered, directly or indirectly, elsewhere? Does it address a general problem, or is it specific to a few associations? We suggest any amendments to the Condominium and Cooperative Acts, or to F.S. 720, should address issues, in a balanced manner, from two main perspectives:

1. Unit owner seeking to ensure that his or her rights, as described in the statutes or the association documents, are respected by the association, and

2. Association seeking to achieve compliance of unit owners with their documents, rules and regulations.
In light of this philosophy, Northeast Dade Coalition attorney Jay Beskin, NEDC Executive Director Patricia Rogers-Libert, and I reviewed the Select Committee on Condominium Association Governance Proposals, and presented our comments in our newsletter.

We offer the following recommendations for amendments to the Condominium & Cooperative Acts [for discussion among NEDC members]:

Reprinted with permission from the “The Communicator” newsletter of the Northeast Dade Coalition, Winter 2004, Vol. 3, Issue 1.