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.
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.
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.
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.
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!
On January 24, 2020, Robert Chilton will host a free HOA seminar at the Lakeland Public Library on Lake Morton. The event, which begins at 3:00 p.m., will focus on legal issues facing Florida homeowners’ associations and include topics such as meeting procedures, estoppel requests, covenant enforcement and statutory updates. Mr. Chilton has been certified to provide HOA board member education courses by Florida’s Department of Business and Professional Regulation.
All are welcome. However, as space is limited, please contact the firm by January 20, 2020 to reserve your place.
For unwary homeowners’ associations, a danger is lurking beneath the water’s surface. If one is not careful, it will strike, swallowing whole a community’s restrictive covenants.
I speak, of course, of MRTA, which was enacted to simply real estate transactions. Before MRTA, a Florida parcel’s title history would theoretically need to be researched back to the initial Spanish land grants. MRTA streamlines that process, providing that certain interests in land are extinguished after 30 years, with limited exceptions, unless those interests are preserved in the manner provided by law. In essence, MRTA eliminates stale claims against property. These can include an HOA’s recorded Declaration of Covenants, Conditions and Restrictions (“CCRs”).
The yardstick for MRTA is the “root of title”. The term “root of title” means “any title transaction purporting to create or transfer the estate claimed by any person which is the last title transaction to have been recorded at least 30 years before the time when marketability is being determined.” § 712.01(6), Fla. Stat. Under MRTA, “when a record owner, alone or with its predecessors in title, has been vested with an estate in land of record for 30 years or more, such owner has marketable title free and clear of all claims [and restrictions] except matters preserved by section 712.03.” Martin v. Town of Palm Beach, 643 So. 2d 112, 114 (Fla 4th DCA 1994).
If MRTA has not already extinguished a community’s CCRs, the HOA has several options to preserve them, including:
- Formal Notice – By recording a formal notice preserving the CCRs, following written notice to each affected owner, pursuant to §§ 712.05(2)(a) and 712.06.
- Summary Notice – By recording a summary notice of preservation approved by the board of directors pursuant to §§ 712.05(2)(b) and 720.3032(2); or
- Valid Amendment – By recording an amendment to the CCRs that is indexed under the association’s legal name and that references the recording information of the CCRs to be preserved pursuant to § 712.05(2)(b).
If MRTA has extinguished the CCRs in a neighborhood, covenant revitalization is possible. §§ 720.403-720.407.
Officers and directors must be wary. They may not turn a blind eye to MRTA. The Homeowners’ Association Act now requires that each year, at its first board meeting (excluding an organizational meeting to select officers) following the homeowners’ annual meeting, the board of directors “shall consider the desirability of filing notices to preserve the covenants or restrictions affecting the community or association from extinguishment under the Marketable Record Title Act[.]” § 720.303(2)(e). Failure to do so could, in certain circumstances, be construed as a breach of the duties each association, director and officer owes homeowners.
In short, beware of MRTA. Ask your attorney to conduct a MRTA analysis. If steps have not been taken to preserve your community’s CCRs, action may be needed.
On August 30, 2019, Robert Chilton will host a free HOA seminar at the Bartow Public Library. The event, which begins at 2:45 p.m., will focus on legal issues facing Florida homeowners’ associations and include topics such as meeting procedures, estoppel requests, covenant enforcement and statutory updates. Mr. Chilton has been certified to provide HOA board member education courses by Florida’s Department of Business and Professional Regulation.
All are welcome. However, as space is limited, please contact the firm by August 16, 2019 to reserve your place.
Do you live in a deed restricted community? If so, you are probably somewhat familiar with the covenants and conditions encumbering your home. You may sleep soundly in the knowledge that those restrictions cannot generally be changed without a well-publicized vote of the homeowners. What then, does one make of that pesky “cease and desist” letter quoting not from the declaration of restrictive covenants, or even the bylaws, but the “rules and regulations” adopted by the board of directors?
Those rules can be more onerous than you think and, more importantly, they can be created and changed at the whim of a select few on short notice.
In all likelihood, the fine print in your restrictive covenants grants to the board of directors of your neighborhood the power to enact rules and regulations governing the common areas, community amenities and even parcel use. Have you been thinking of putting up a small garden flag to celebrate the season? Is your attic bursting with items perfect for a garage sale next weekend? Did you double check your declaration to ensure you were not over stepping the line? Good job. But what about those rules which you did not know existed?
The statutes in Florida governing condominiums and homeowners’ associations are clear that the rule-making power of community associations is alive and well. Section 720.304(1), Florida Statutes, says that “[t]he entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities.” Section 718.123(1) has a similar provision for condominiums. But buried in the fine print of your declaration of restrictions could be a broader mandate; one allowing your board to create nearly any rule it wishes.
When an owner challenges a board’s rule-making powers, Florida courts have adopted a two-prong test. “When a court is called upon to assess the validity of a rule enacted by a board of directors, it first determines whether the board acted within its scope of authority and, second, whether the rule reflects reasoned or arbitrary and capricious decision making.” Beachwood Villas Condo. v. Poor, 448 So. 2d 1143, 1144 (Fla. 4th DCA 1984). Interestingly, the second part of the test (reasoned vs. arbitrary) is often rendered toothless by the business judgment rule, by which courts defer to the business judgment of a board of directors. Cedar Cove Efficiency Condo. Assn., Inc. v. Cedar Cove Prop., Inc., 558 So. 2d 475, 479 (Fla. 1st DCA 1990). More importantly, absent from this analysis is the presumption that such rules shall be construed in favor of the free and unrestricted use of land, as is the case with restrictive covenants. Orange Gardens Civic Assn. v. Harris, 382 So. 2d 1340, 13441 (Fla. 5th DCA 1980).
In sum, it is likely that the board of directors of your community has more power than you think. Check carefully before you decorate for the season or plan a small yard sale. What you do not know can result in an unwanted letter from your association or, gulp, your friendly neighborhood attorney.
According to FloridaRentals.com, as reported by The Ledger, the Davenport/Four Corners area of Polk County is one of the top 10 vacation rental locations in Florida. This news will be received with trepidation by area HOAs, condominiums and other community associations.
It is not that HOAs and similar communities dislike tourists or visitors. Rather, problems arise because:
- Owners of vacation rentals generally live elsewhere;
- Landlords are incentivized to avoid maintenance costs in order to maximize profit;
- Short-term renters have little motivation to abide by covenants or pay attention to neighbor’s concerns; and
- The folks living next door to a popular VRBO/Airbnb/HomeAway rental may justly conclude that the neighborhood feels less like a close community and more like a collection of transient lodgings.
The solution to short-term rentals is easier if a community’s covenants, conditions and restrictions (CCRs) already prohibit them. Just hire a lawyer and enforce the rules. If the CCRs lack that provision, what is the remedy?
Three options are generally pursued, with varying degrees of success.
1. Amend the CCRs: The safest and surest approach to prohibit short-term rentals is to amend the CCRs to explicitly do so. Reasonable and clear restrictions on renting “whether contained in the original declaration or in subsequent…amendments, are reasonable indirect restraints on alienation” that do not violate public policy or owners’ constitutional rights. William P. Sklar & Jerry C. Edwards, Florida Community Associations vs. AIRBNB and VRBO in Florida, Fla. B.J., Feb. 2017, at 16, 16; Woodside Village Condo. Assn., Inc. v. Jahren, 806 So. 2d 452, 461-62 (Fla. 2002).
2. Enforce the “Residential Use” Restrictions: If a CCR amendment is not doable, some associations pursue the owner on a theory that short-term rentals violate restrictions requiring the property be used only for residential purposes and prohibiting business or commercial uses. This tactic has been rejected by the Courts. “[T]he nature of the property’s use is not transformed from residential to business simply because the owner earns income from rentals.” Santa Monica Beach Property Owners Assn., Inc. v. Acord, 219 So. 3d 111, 115 (Fla. 1st DCA 2017). In such cases, because CCRs are to be strictly construed in favor of the free and unrestricted use of real property, “the omission of an explicit prohibition on” short term rentals is “fatal”. Id. at 116. Note that the outcome changes if the owner is doing more than simply renting, such as operating a small inn or an adult congregate living facility. Id. at 115.
3. Reasonable Rules & Consistent Enforcement: If an amendment cannot be had and enforcing the “residential use” covenant will not succeed, what is an HOA or condominium to do? The solution is two-fold.
A. Tenant Disclosure Rule: First, community associations have a legitimate interest in knowing who is renting a parcel or unit. If owners were allowed to hide a renter’s identity, HOAs would be unable to enforce important statutory rights (i.e. right to intercept rent for unpaid assessments or enforce CCRs against a tenant). A rule requiring that owners submit the names of each renter, and certain information about each lease, is a legitimate exercise of an HOA’s authority. It is also difficult to follow if an owner is engaged in high-volume, short-term leasing. In my experience, owners either slow their rental activity or pay closer attention to ensure compliance with the rule. Either outcome is positive.
B. Consistent Enforcement: Along with the tenant disclosure rule, HOAs and condos should ensure that the CCRs are consistently enforced. If an owner is having to pay fines and incur remedial costs due to the violations of his short-term renters, he will be motivated to pay closer attention to prevent violations in the first place. He may also decide that rentals for longer durations are the better policy, as those tenants have an incentive to be good neighbors.
Short-term rentals, and the websites that enable them, are here to stay. HOAs, condominiums and other communities are not, however, without tools to address the problems that come in their wake. As always, the advice of counsel should be sought.