2021 Community Association Statutory Update

2021 Community Association Statutory Update

In 2021, several amendments were enacted to the laws governing community associations (condominiums, homeowners’ associations and co-operatives). While most took effect on July 1, 2021, a couple came into force earlier in the year. What follows is a summary of the most significant statutory updates. I have also included links to each amendment.

Senate Bill 56 (Chapter 2021-91, Laws of Florida): This bill, which took effect on July 1, 2021, significantly alters the assessment collection process by:

• Requiring that assessment invoices be mailed or emailed (if the owner has agreed to electronic notice) to owners.
• Requiring a special 30-day notice, which must be acknowledged by an owner, before the association can alter the delivery method of assessment invoices.
• Requiring a new 30-day late notice to be mailed (but not emailed) to delinquent owners before a lien notice can be sent or attorney’s fees can be charged.
• Requiring that a copy of the late notice, lien notice and foreclosure notice also be mailed to the parcel or unit address if the owner’s mailing address is not the parcel or unit address.

Senate Bill 630 (Chapter 2021-99, Laws of Florida): The bill, which took effect on July 1, 2021, makes several changes to the manner in which community associations may (or must) be operated. Among other things, it does the following:

• For all types of community associations:
  • Creates a means by which meetings may be noticed on the association’s website or via an application that can be downloaded on mobile devices.
  • Broadens and clarifies the association’s emergency powers when an official state of emergency is declared.
• For condominium associations:
  • Requires that bids for work to be performed be maintained for 1 year.
  • Limits the rights of renters to inspect official records.
  • Clarifies that membership meeting notices (other than for the annual meeting) can be furnished within the timeframe specified in the bylaws or, if no timeframe is listed, at least 14 days before the meeting.
  • Regulates the installation of electric vehicle charging and natural gas fueling stations.
  • Eliminates mandatory non-binding arbitration in favor of optional pre-suit mediation.
• For co-operative associations:
  • Clarifies that directors and committee members may participate and vote at board and committee meetings via telephone and videoconference.
  • Eliminates mandatory non-binding arbitration in favor of optional pre-suit mediation.
• For homeowners’ associations:
  • Requires that ballots, proxies and other election-related records be maintained with the official records for at least 1 year.
  • Modifies the warnings required to be included with year-end financial reports when the association does not maintain fully-funded reserve accounts.
  • With some exceptions, limits the applicability of amendments regulating or prohibiting rentals to owners who agree to the amendment or those who become owners after the amendment is recorded.

Senate Bill 1966 (Chapter 2021-135, Laws of Florida): This legislation took effect on July 1, 2021. For cooperative associations and condominiums, it requires that the annual budget be adopted at least 14 days prior to the start of each fiscal year. For condominiums, it also clarifies what “delinquency” means for board eligibility.

Senate Bill 72 (Chapter 2021-1, Laws of Florida): Effective March 29, 2021, this legislation created a new statute, Section 768.38, Florida Statutes, which limits the liability of business entities, including community associations, from civil actions based upon COVID-19-related claims if, among other things, a good faith effort was made to substantially comply with controlling government-issued health guidelines.

Senate Bill 602 (Chapter 2021-13, Laws of Florida): Effective May 7, 2021, this legislation, among other things, clarifies the applicability of the Florida Not For Profit Corporation Act to community associations.

Congratulations to Kevin Kohl

Boswell & Dunlap LLP, Polk County’s oldest law firm, is happy to announce that Kevin M. Kohl was on December 18, 2020 appointed by Governor DeSantis as Judge on the Polk County Court. Kevin joined the firm in 2015 and has served his clients with diligence and distinction, focusing on civil litigation, criminal defense and family law. He underwent a rigorous vetting process and was nominated to the County Bench by the Tenth Judicial Circuit’s Judicial Nominating Commission to fill the vacancy left by Judge Swenson’s appointment to the Circuit Bench. The Firm wishes Kevin every success.

HOAs, Condos, and Cooperatives: What’s the Difference?

As a Florida community association lawyer, I am often asked about the legal differences between the various types of community associations: Homeowners’ Associations (HOAs), Condominium Associations (Condos) and Cooperative Associations (Co-ops).  Sometimes, the differences seem apparent.  A standard planned neighborhood of single-family homes is nothing like a high-rise condominium.  Other times, it is hard to tell.  Some communities of detached single-family homes are organized as condominiums.  We call them “land-o-miniums”.   Other planned neighborhoods look like HOAs, but are instead operated as Co-ops.  What is the legal difference?

The answer is found in the statutory definitions of Co-ops (Section 719.103(12), Florida Statutes), HOAs (Section 720.301(9), Florida Statutes), and Condos (Section 718.103(11), Florida Statutes).  A Co-op is the easiest to legally identify.  It exists when the land in a neighborhood is owned by a legal entity (i.e. a corporation) and the lot owners have both a membership interest in that entity (i.e. stock) and the right to possess their lot on a continuing basis (i.e. a long-term lease).  Co-op members do not own their lot.  Instead, they are generally stockholders in the Co-op with a long-term lease to their parcel.

Condos are the next easiest type of association to identify.  A condominium is a form of ownership created pursuant to Florida’s Condominium Act in which owners own both their unit and an undivided share in the common elements (everything outside their unit).  While condominiums can look like other types of communities, they are generally easy to spot because the units are created by a Declaration of Condominium, sometimes coupled with a condominium plat, which is expressly referenced in each unit’s deed (i.e. Unit B, according to the XYZ Declaration of Condominium).

HOAs are more nuanced.    To be an HOA, the association must first be a Florida corporation responsible for operating a community made up of parcel owners.  Next, membership in the association must be linked with, and inseparable from, lot ownership.  Lastly, the association must have the right to impose liens on homeowners’ property if assessments are unpaid.

It is important to know what type of association you are dealing with because different rules apply to each.  Condos are the most heavily regulated and even have a whole chapter of the Florida Administrative Code to themselves.  HOAs tend to be less regulated, though new laws are enacted every year to reduce their operational flexibility.  If you are not sure what type of community you live in, take a look at the statutory definitions.    They may provide the answer.

Celebrate Winter Haven 2020

Participation by Proxy – An Option for Socially Distant HOAs, Condominiums and Cooperative Associations

In these precarious times, attending a meeting of your cooperative, condominium or homeowners’ association (HOA) may be the last thing on your “to do” list.  However, your community is important to you, and on some issues, your vote needs to be heard.  The most common method of participating at a meeting, without actually being there, is through a proxy.

“Proxy” is a fancy word for agent – someone who is authorized to act as a substitute for another.  A proxy form is the document by which the agent (aka the “proxy holder”) is named and appointed. In the context of cooperative, condominium and homeowners’ association meetings, proxy forms come in two types: general and limited. A general proxy allows the proxy holder to vote however she sees fit on any matter that comes up at the meeting.  A limited proxy lists the issues on which the proxy holder may vote and instructs her how to vote.

In Florida corporations not-for-profit, the use of proxies (whether limited or general) by members is generally authorized if not prohibited by the Bylaws or Articles of Incorporation.  Section 617.0721(2), Florida Statutes.  This rule holds true with homeowners’ associations.  Section 720.306(8) states that members “have the right, unless otherwise provided…in the governing documents, to vote in person or by proxy.”  In order to be valid, an HOA proxy form “must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy.”  Id.

The use of proxies in condominiums and cooperatives is more limited.  First, proxies may not, generally, be used to elect board members.  Sections 718.112(2) and 719.106(1), Florida Statutes.  This prohibition can be lifted by the affirmative vote of a majority of the total voting interest in a cooperative association, or in a condominium with ten or fewer units. Id.  Second, general proxies may not be used except in limited circumstances, such as to establish a quorum.  Id.  Third, the proxy form must substantially conform to the form adopted by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (DBPR Form CO 6000-7).  Id.

If you are interested in utilizing proxies for an upcoming meeting, bear in mind that a proxy form is not generally valid for a period longer than 90 days after the date of the first meeting for which it was given.  Sections 718.112(2), 719.106(1) and 720.303(6), Florida Statutes.  Also, you will need to check the Bylaws and Articles of Incorporation to ensure that any additional requirements are met, such as delivering a copy of the proxy form to the association’s Secretary in order to allow him to keep track of how many members will be attending by proxy.  Finally, while association members may use proxies as outlined above, directors may not use them to vote at board meetings.  Sections 718.111(1), 719.104(8) and 720.303(2).

These are indeed strange times for community associations.  While large in-person meetings may be avoided for the time being, that does not mean that members lack the ability to participate or ensure their voice, and their vote, is heard.

COVID-19 Update

As an essential services provider in our community for over 120 years, we are proud to remain open for the transaction of our clients’ legal business during the coronavirus (COVID-19) pandemic. During this time, the safety and health of our clients, our staff and our attorneys is of foremost importance to us. To prevent unintentional business and workplace transmissions, we have implemented certain protective measures at our office. Effective April 3, 2020, our office lobby and meeting rooms will be available for client consultations and real estate transactions “by appointment only.” Additionally, in compliance with local, state and federal COVID-19 guidance, we have limited physical gatherings and meeting group sizes to ten (10) persons or less at all times. We also continue to perform increased environmental cleaning in our public spaces.

During appointments, we kindly request all that of our clients and guests practice ordinary respiratory etiquette and remain mindful of applicable social distancing requirements.

If you have an appointment scheduled and are feeling unwell, please contact us in advance and make arrangements for your appointment to be held by telephone or web-based conferencing. If you have other concerns regarding your visit, please notify us and we will be glad to make special arrangements in order to assist you.

HOAs, Condos, Co-ops and COVID-19

It is a difficult time. Concerns about the coronavirus and COVID-19 are especially acute in the context of HOAs, condominiums and cooperative associations. For members, officers and directors contemplating upcoming meetings and events, guidance is needed. The statutes governing community associations generally require public meetings, open to all and noticed in advance, and broadly proscribe the wholesale closing of common areas and common elements. Community leaders and members do not know if the statutory requirements remain fixed in light of the present public health situation.  What are their options?

The Florida legislature has provided a mechanism by which condominiums, cooperative associations and homeowners’ association can adapt their operations to present circumstances. These statutes (§ 718.1265 for condominiums, § 719.128 for cooperatives, § 720.316 for homeowners’ associations) all provide for reasonable flexibility in response to damage caused by an event for which a state of emergency is declared. Florida’s Governor declared the existence of that state of emergency on March 9, 2020 (Executive Order No. 20-52). The “damage” referenced in the foregoing statutes is not expressly limited to property or building damage.

In light of this statutory authority, community associations and the leaders should keep the following points in mind as they consider upcoming operations and meetings:

• Consider postponing upcoming meetings and social gatherings;
• Cancel meetings and events involving more than 50 people;
• Adopt enhanced cleaning procedures for common areas and common elements;
• Host board and committee meetings virtually, invite members to join remotely (phone, Skype, etc.) and immediately post and circulate recordings and minutes;
• Practice social distancing; and
• Following the guidance of public health authorities such as the Florida Department of Health and the Center for Disease Control and Prevention.

Even small steps can make a big difference in our communities and neighborhoods.

HOAs & Condos: When is a verbal resignation valid?

In representing condominiums (condos) and homeowners’ associations (HOAs), I am often asked whether the resignation of a board member or officer is valid. Invariably, the person in question has either announced “I quit” at an open meeting, or simply told another officer of the fact. Is a verbal resignation from the board of a non-profit HOA or condo valid?

The answer to is emphatically NO, unless the bylaws or articles of incorporation expressly allow it. In my experience, community association governing documents generally reference resignation, but do not spell out how it should to occur. If that is the case with your association, the issue is governed by the Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes). Two provisions are relevant. The first is Section 617.0807(1), which states that “[a] director may resign at any time by delivering written notice to the board of directors or its chair or to the corporation.” The second is Section 617.0141(1), which requires any “[n]otice under this act to be in writing, unless oral notice is: (a) expressly authorized by the articles of incorporation or the bylaws.”

When read together, these statutes require a resignation to be in writing unless the association’s bylaws or articles of incorporation expressly allow a verbal resignation. Recent arbitration decisions issued by the Florida Department of Business and Professional Regulations arrive at the same conclusion.

• Sanville v. Venetian Mgmt. Assn., Inc., Case No. 16-04-7565, 2016 WL 7667624, at *3 (Fla. D.B.P.R. Summary Final Order, Nov. 17, 2016) (“Since oral resignations are not explicitly authorized by the Association’s governing documents, resignations from the Association’s board of directors must be in writing and properly delivered to the Association to be effective.”)
• Brand v. Sundance Assn., Inc., Case No. 16-00-5242, 2016 WL 4939974, at *2 (Fla. D.B.P.R. Summary Final Order, July 6, 2016) (“Since oral resignations are not explicitly authorized by the Association’s governing documents, resignations from the Association’s board of directors must be in writing and properly delivered to the Association to be effective. Therefore, Petitioners’ verbal resignations at the November 17, 2015 board of directors meeting were ineffective.”)
• WPB Berkshire a Condominium, Inc. v. Unit Owners Voting for Recall, Case No. 05-04-7905, 2005 WL 3966672, at *4 (Fla. D.B.P.R. Summary Final Order, Oct. 11, 2005) (“Mr. Gilbert erroneously believed that Mr. Ostrovsky had resigned because of certain comments that Mr. Ostrovsky made to Mr. Gilbert. Mr. Ostrovsky did not submit a letter of resignation as required by § 617.0807(1), Florida Statutes, and he has continued to serve as a board member.”)

In sum, for HOAs, condos and other non-profit community associations, “I quit” is not generally enough. Make sure the resignation is in writing and specifies the date it is to be effective.  Otherwise, we might not know who is actually on the board!

CONGRATULATIONS TO THE 2020 TEACHER AND SCHOOL EMPLOYEE OF THE YEAR!

Boswell & Dunlap LLP was thrilled to continue its sponsorship of the 2020 Polk County Public Schools Teacher and School-Related Employee of the Year Program.  Congratulations to Dr. Vincent Miller, Kay Llewellyn, and each of this year’s finalists.  The firm is proud to be associated with this annual event honoring those who make the difference in the lives of our children.

Parker Named President of Polk Area Real Estate Council

Boswell & Dunlap LLP is pleased to announce that Sean R. Parker has been appointed president of the Polk Area Real Estate Council. The council connects real estate attorneys and professionals throughout Polk County and beyond to provide education, information and resources to consumers and our real estate community, to enhance the practices of real estate attorneys, and to make each real estate experience a successful, positive and rewarding one. Sean’s appointment continues the firm’s century-long commitment to our local real estate community.