Rosenbaum Mollengarden Janssen & Siracusa, PLLC.

2011 Legislation Affecting Community Associations

Florida Condominium Act

Official Records (Section 718.111(12), Florida Statutes)

• The electronic mailing addresses and facsimile numbers of unit owners are accessible by other unit owners during any period of time the owner consents to receive notice of association meetings by electronic mail or facsimile.
• Unit owners may consent in writing to the disclosure of official records containing personal protected information not otherwise accessible by other unit owners. 
  • The association was previously prohibited from disclosing any electronic mailing addresses of unit owners to other unit owners.

• The association is not liable for the inadvertent disclosure of electronic mailing addresses and/or facsimile numbers. Similarly, the Association is not liable for the inadvertent disclosure of personal information not otherwise accessible to other unit owners if the information is included in an official record of the Association and is voluntarily provided by an owner and not requested by the Association.
• Personnel records of Association or management company employees are not accessible by unit owners.
• Personnel records do not include written employment agreements with an association employee or management company, or budgetary or financial records that indicate the compensation paid to an association employee.

Board Meetings (Section 718.112(2)(c), Florida Statutes)

• Board meetings held for the purpose of discussing personnel matters are not open to the unit owners.

Election of Directors; Unit Owner Meetings (Section 718.112(2)(d), Florida Statutes)

•  The term “candidate” means any eligible person who has timely submitted a written notice of intent to be a candidate for the board of directors.
  •  A unit owner is not eligible for the board if he or she is more than 90 days delinquent in the payment of any monetary obligation to the Association on the date that the unit owner must submit his/her notice of intent to be a candidate for the board of directors and will not have his/her name listed as a candidate. Any unit owner desiring to be a candidate must be eligible to serve on the Board at the time of the deadline for submitting a notice of intent to run in order to have his or her name on the ballot or to serve on the Board.
• The term of all board members expires at the annual meeting and such members may stand for reelection unless prohibited by the bylaws. This does not apply: 1) to timeshare condominiums, 2) if the staggered term of a board member does not expire until a later annual meeting, or 3) if all members’ terms would otherwise expire but there are no candidates.
  • If provided in the bylaws, terms of the board may be limited.

• If the number of board members whose terms expire at the annual meeting equals or exceeds the number of candidates for the board, the candidates automatically become members of the board effective upon the adjournment of the annual meeting.
• Unless provided otherwise in the bylaws, if there are fewer candidates than vacancies to be filled the remaining vacancies on the board shall be filled by the vote of a majority of the directors making up the newly constituted board even if the directors constitute less than a quorum or there is only one director.
• In lieu of executing a Director Certification Form, within 90 days after being elected or appointed to the board, a newly elected director may submit a certificate of having satisfactorily completed the educational curriculum administered by a Florida Department of Business and Professional Regulation Division of Condominium approved provider within 1 year before or 90 days after the date of the election or appointment. The written certification or educational certificate is valid and does not have to be resubmitted as long as the director serves on the board without interruption.
  • Previously, all directors were required to execute a Director Certification Form or attend and successfully complete a Division approved course within 90 days after being elected or appointed to the board.

• Timeshare condominium associations are no longer completely exempt from election requirements set forth in the Condominium Act. However, the Act does not limit the use of general or limited proxies, require the use of general or limited proxies, or require the use of a written ballot or voting machine for any agenda item or election at any meeting of a timeshare condominium association.

Hurricane Protection/Hurricane Shutters (Section 718.113(5), Florida Statutes)

• If approved by a majority of the condominium, the Board may install hurricane shutters, impact glass, or other code-compliant windows, or hurricane protection that complies with or exceeds the applicable building code.
  • Previously, the Board could only install hurricane shutters or other hurricane protection with the approval of a majority of the condominium (the amendment added the language concerning impact glass or other code compliant windows).

• However, a vote of the owners is not required if the maintenance, repair and replacement of hurricane shutters, impact glass, or other code compliant windows are the responsibility of the association pursuant to the declaration of condominium. 
• If hurricane protection or laminated glass or window film architecturally designed to function as hurricane protection which complies with or exceeds the current applicable building code has been previously installed, the board may not install hurricane shutters, hurricane protection, or impact glass or other code-compliant windows except with the approval of a majority of the voting interests.

Leaseholds/Membership and Other Possessory Interests (Section 718.114, Florida Statutes)

• After the recording of the declaration of condominium, agreements acquiring leaseholds, memberships or other possessory or use interests which are not entered into within 12 months following the recording of the declaration are a material alteration or a substantial addition to the real property that is association property, and the association may not acquire or enter into such agreements except upon the vote of, or written consent by, a majority of the total voting interests or as otherwise authorized by the declaration of condominium with respect to the approval of alterations or additions to the Association property.

Assessments/Foreclosures (Section 718.116, Florida Statutes)

• An association, or its successor or assignee, that acquires title to a unit through the foreclosure of its lien for assessments is not liable for any unpaid assessments, late fees, interest, or reasonable attorney’s fee and costs that came due before the association’s acquiring of title in favor of any other condominium or homeowners association which holds a superior lien interest on the unit.
• If a unit is occupied by a tenant and the owner is delinquent in paying any monetary obligation to the association, the association may make written demand that the tenant pay the Association the subsequent rental payments and continue to make such payments until all monetary obligations of the owner related to the unit have been paid in full.
• A form rent demand letter or notice is set forth in Section 718.116(11)(a)1, Florida Statutes, which must be substantially complied with.
  • The statute previously provided that the tenant was responsible for paying the “future monetary obligations related to the condominium unit to the association”. The change clarifies the authority of the association to demand RENT from the tenant of a delinquent owner.

• A tenant is immune from any claim by the landlord or unit owner related to rent timely paid to the association after the association has made written demand.
• Tenants must continue making rental payments to the association to be credited against the monetary obligations of the unit owner until the association releases the tenant or the tenant discontinues tenancy in the unit.

Termination (Section 718.117, Florida Statutes)

• A unit owner of a timeshare condominium may petition the court for equitable relief for a plan of termination of the condominium.
• Partial termination of a condominium is authorized pursuant to the provisions of Section 718.117, Florida Statutes. The termination or partial termination of a condominium does not bar the filing of a new declaration of condominium for the terminated property or any portion of such property.

Fines/Suspension of Use Rights (Section 718.303, Florida Statutes)

• An association may levy fines for the failure of an owner, or its occupant, licensee or invitee to comply with any provision of the governing documents of the association.
  • A fine may not become a lien.

• No fine may exceed $100 per violation, or $1,000 in the aggregate for a continuing violation.
• An association may suspend, for a reasonable amount of time, the right of an owner, or an owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the governing documents of the association.
• No fine or suspension for a violation of the governing documents may be imposed unless the association provides the person that will be fined or have their rights suspended with 14 days written notice and an opportunity for a hearing before a committee of other unit owners who are not board members or persons residing in a board member’s home. If a majority of the committee does not agree with the fine or suspension, it shall not be imposed by the association.
• If a unit owner is more than 90 days delinquent in the payment of any monetary obligation to the association, the association may suspend the right of the unit owner or the unit’s occupant, licensee or invitee to use common elements, common facilities, or any other association property until the monetary obligation is paid in full.
  • The suspension does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.

• An association may also suspend the voting rights of an owner if he/she is more than 90 days delinquent in any monetary obligation to the association.
  • The notice and hearing requirements do not apply to the suspension of use rights or voting rights due to the owner being more than 90 days delinquent in the payment of assessments. However, the suspension(s) must be approved at a properly noticed board meeting. Upon approval of the suspension(s) for being delinquent, the Association must notify the owner and, if applicable, the unit’s occupant, licensee or invitee by mail or hand delivery.

• A voting interest or consent right allocated to a unit or member which has had its voting rights suspended may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under the Florida Condominium Act or pursuant to the governing documents of the association.

Bulk Assignee/Bulk Buyer Definitions (Section 718.703, Florida Statutes)

• A bulk assignee means a person who is not a bulk buyer and who:

                  (a) Acquires more than 7 condominium parcels in a single condominium within the time period authorized by the statute; and

                  (b) Receives an assignment of any of the developer rights, other than or in addition to those rights described as those acquired by “Bulk Buyer”, as set forth in the declaration of condominium or the Florida Condominium Act;

                  (i) By written instrument recorded as part of or as an exhibit to the deed;

                  (ii) By separate instrument recorded in the public records of the county in which the condominium is located; or

                  (iii) Pursuant to a final judgment or certificate of title issued in favor of a purchaser at a foreclosure sale.

• A bulk buyer means a person who acquires more than 7 condominium parcels in a single condominium within the time limits authorized by the statute, but does not receive an assignment of any developer rights, or receives only some or all of the following rights:

                  (a) The right to conduct sales, leasing and marketing activities within the condominium;

                  (b) The right to be exempt from the payment of working capital contributions to the condominium association arising out of, or in connection with, the bulk buyer’s acquisition of the units; and

                  (c) The right to be exempt from any rights of first refusal which may be held by the condominium association and would otherwise be applicable to subsequent transfers of title from the bulk buyer to a third party purchaser concerning one or more units.

Time Limitation (Section 718.707, Florida Statutes)

• A person acquiring condominium parcels may not be classified as a bulk assignee or bulk buyer unless the condominium parcels were acquired on or after July 1, 2010, but before July 1, 2012. The date of such acquisition shall be determined by the date of recording a deed or other instrument of conveyance for such parcels in the public records of the county in which the condominium is located or by the date of issuing a certificate of title in a foreclosure proceeding with respect to such condominium parcels.

Florida Cooperative Act

Assessments/Foreclosures (Section 719.108(10), Florida Statutes)

• The Association’s lien no longer will include costs of collection services for which the Association contracted against the owner of the unit.
• If a unit is occupied by a tenant and the unit owner is delinquent in paying any monetary obligations to the association, the association may make written demand that the tenant pay to the association the subsequent rental payments and continue to make such payments until all monetary obligations of the unit owner related to the unit have been paid in full. A form rent demand letter is set forth in Section 719.103(10)(a)(1), Florida Statutes, which must be substantially complied with.
• A tenant is immune from any claim by the landlord or unit owner related to rent timely paid to the association after the association has made written demand.
• Rental payments to the association will be credited against the monetary obligations of the unit owner until the association releases the tenant or the tenant discontinues tenancy in the unit.

Fines/Suspension of Use Rights (Section 719.303, Florida Statutes)

• An association may levy fines for the failure of an owner, or its occupant, licensee or invitee to comply with any provision of the governing documents of the association. The authority to levy fines is no longer required to be set forth in the Association’s governing documents.
  • A fine may not become a lien.

• No fine may exceed $100 per violation, or $1,000 in the aggregate for a continuing violation.
• An association may suspend, for a reasonable amount of time, the right of an owner, or an owner’s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the governing documents of the association.
• No fine or suspension for a violation of the governing documents may be imposed unless the association provides the unit owner and, if applicable, the unit’s licensee or invitee, 14 days written notice and an opportunity for a hearing before a committee of other unit owners who are not board members or persons residing in a board member’s home. If a majority of the committee does not agree with the fine or suspension, it shall not be imposed by the association.
• If a unit owner is more than 90 days delinquent in the payment of any monetary obligation to the association, the association may suspend the right of the unit owner or the unit’s occupant, licensee or invitee to use common elements, common facilities, or any other association property until the monetary obligation is paid in full
• This does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.
• An association may also suspend the voting rights of an owner if he/she is more than 90 days delinquent in any monetary obligation to the association.
  • Notice and hearing requirements do not apply to the suspension of use rights or voting rights due to the unit owner being more than 90 days delinquent to the association. However, the board of directors must approve the suspension(s) at a properly noticed board meeting. Upon approval of the suspension(s) for being delinquent, the association must notify the unit owner and, if applicable, the unit’s occupant, licensee or invitee by mail or hand delivery. 

• A voting interest or consent right allocated to a unit or member which has had its voting rights suspended may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under the Florida Cooperative Act or pursuant to the governing documents of the association.

Florida Homeowners Association Act

Board Meetings (Section 720.303(2), Florida Statutes)

• Members have the right to attend all meetings of the board and to speak with reference to all designated agenda items.
  • Previously, the statute provided that members only had the right to speak for three minutes on matters placed on the agenda by a petition of the voting interests of the association.
    

Official Records (Section 720.303(5), Florida Statutes)

• Personnel records of the association’s employees, including, but not limited to, disciplinary, payroll, health and insurance records are not accessible by members or parcel owners.
• Personnel records do not include written employment agreements with an association employee or budgetary or financial records that indicate the compensation paid to an association employee.
• Social security numbers, drivers license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information is not accessible to members or parcel owners.
  • However, an owner may consent in writing to the disclosure of the above protected personal information. The association is not liable for the disclosure of information that is protected if the information is included in an official record of the association and is voluntarily provided by an owner and not requested by the association.

Fines/Suspension of Use Rights (Section 720.305, Florida Statutes)

• The association may levy reasonable fines of up to $100.00 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the governing documents.
  
• A fine may be levied for each day of a continuing violation, with a single notice and an opportunity for a hearing, except that the fine may not exceed $1,000.00 in aggregate unless otherwise provided in the governing documents.
  • A fine of less than $1,000.00 may not become a lien against a parcel.

• An association may suspend, for a reasonable period of time, the right of a member, or a member’s tenant, guest, or invitee, to use common areas and facilities for the failure of the owner of the parcel or its occupant, licensee or invitee to comply with any provision of the governing documents.
• A fine or suspension for a violation of the governing documents may not be imposed without at least fourteen (14) days notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three (3) members appointed by the Board who are not officers, directors, or employees of the Association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If a majority of the committee does not approve the proposed fine or suspension, it may not be imposed by the association. If the association imposes a fine or suspension, it must provide written notice of such fine or suspension by mail or hand delivery to the owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.
  
• If a member is more than ninety (90) days delinquent in paying any monetary obligation to the association, the association may suspend the rights of the member, or the member’s tenant, guest, or invitee, to use common areas and facilities until the monetary obligation is paid in full.
• The suspension of use rights does not apply to that portion of common areas used to provide access or utility service to the parcel.
• The suspension of use rights cannot impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park.
• An association may suspend the voting rights of a parcel or member for the non-payment of any monetary obligation to the association that is more than ninety (90) days delinquent.
  • Notice and hearing requirements do not apply to the suspension of use rights or voting rights for being more than 90 days delinquent in the payment of monetary obligations to the association. However, the board of directors must approve the suspension(s) at a properly noticed board meeting. Upon the approval of the suspension(s) for being more than 90 days delinquent, the association must notify the owner and, if applicable, the lot’s occupant, licensee or invitee by mail or hand delivery.

• A voting interest or consent right allocated to a parcel or a member which has been suspended by the association may not be counted towards the total number of voting interest for any purpose, including, but not limited to, the number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under the Florida Homeowners Association Act or pursuant to the governing documents.

Elections/Board Vacancies (Section 720.306, Florida Statutes)

• A person who is delinquent in the payment of any fee, fine, or other monetary obligation to the association for more than ninety (90) days is not eligible for board membership.
• A person who has been convicted of any felony in the state or in a United States District or territorial court, or has been convicted of any offense in another jurisdiction which would be considered a felony if committed in this state, is not a eligible for board membership unless such felon’s civil rights have been restored for at least five (5) years as of the date on which such person seeks election to the board.
  • Previously, the Florida Homeowners Association Act did not restrict Board eligibility.

• The validity of any action by the board is not affected if it is later determined that a member of the board is ineligible for board membership.

Assessments/Foreclosures (Section 720.3085, Florida Statutes)

• An association, or its successor or assignee, that acquires title to a parcel through the foreclosure of its lien for assessments is not liable for any unpaid assessments, late fees, interest, or reasonable attorneys fees and costs that came due before the Association’s acquisition of title in favor of any other condominium association or homeowners association which holds a superior lien interest on the parcel.
• If a parcel is occupied by a tenant and the parcel owner is delinquent in paying any monetary obligation due to the association, the association may demand that the tenant pay the association the subsequent rental payments and continue to make such payments until all the monetary obligations of the parcel owner related to the parcel have been paid in full to the association and the association releases the tenant or until the tenant discontinues tenancy in the parcel.
  • A form rent demand letter is set forth in Section 720.3085(8)(a)(1), Florida Statutes, which must be substantially complied with.

• A tenant is immune from any claim by the parcel owner related to the rent timely paid to the association after the association has made written demand.
• The liability of the tenant may not exceed the amount due from the tenant to the tenant’s landlord.

Agreements Entered into by the Association; Communication Services, Information Services and Internet Services (Section 720.309, Florida Statutes)

• If the governing documents provide for the cost of communication services as defined in Section 202.11, Florida Statutes, information services or internet services obtained pursuant to a bulk contract, it shall be deemed an operating expense of the association.
  
• If the governing documents do not provide for such services, the board may contract for the services, and the cost shall be deemed an operating expense of the association, but must be allocated on a per parcel basis rather than a percentage basis, notwithstanding whether the governing documents provide for other than equal sharing of operating expenses.
• Any contract entered into before July 1, 2011, in which the cost of the communication, information or internet services is not equally divided among all parcel owners may be changed by a majority of the voting interests of the association present at a regular or special meeting of the association in order to allocate the cost equally among all parcels.
• Any bulk communication, information or internet contract entered into by the board may be canceled by a majority of the voting interests present at the next regular or special meeting of the association, whichever occurs first. Any member of the Association may make a motion to cancel such contract, but if no motion is made or if such motion fails to obtain the required vote, the contract shall be deemed ratified for its term.
• Any such contract entered into by the Board must provide, and shall be deemed to provide, that a hearing impaired or legally blind parcel owner who does not occupy the parcel with a non-hearing impaired or sighted person, or a parcel owner who receives supplemental security income under Title XVI of the Social Security Act or food assistance as administered by the Department of Children and Family Services pursuant to Section 414.31, Florida Statutes, may discontinue the service without incurring disconnect fees, penalties, or subsequent service charges, and may not be required to pay any operating expenses charged related to such services.
• A resident of any parcel, whether a tenant or a parcel owner, may not be denied access to available franchised, licensed, or certificated cable or video service providers if the resident pays the provider directly for the services.
• A resident or a cable or video service provider may not be required to pay anything of value in order to obtain or provide such service except for the charges normally paid for like services by the residents of single family homes located outside the community but within the same franchised, licensed, or certificated area, and except for installation charges agreed to between the resident and the service provider.