Ruggieri Law Firm - Legislative Update 2021-2022

LEGISLATIVE UPDATE

JUNE 2021

PAGE 2

2021-2022 Legislative Update Summary

By Frank A. Ruggieri

2021-2022 Legislative Update Summary FRANK A. RUGGIERI THE LEGISLATURE MADE SIGNIFICANT CHANGES WHICH TAKE EFFECT JULY 1, 2021, AND WE AGAIN PROVIDE OUR SUMMARY OF THE MOST PERTINENT LEGISLATION AFFECTING CONDOMINIUM AND HOMEOWNERS ASSOCIATIONS ADOPTED IN THIS YEAR’S LEGISLATIVE SESSION. WE LOOK FORWARD TO WORKING WITH OUR CLIENTS AND BUSINESS PARTNERS TO INTERPRET AND APPLY THIS NEW LEGISLATION.

CONDOMINIUMS §627.714(4) – Limits subrogation claims by unit owner insurers against the Association by prohibiting them unless the Association may sue the unit owner for subrogation (essentially a statutory waiver of subrogation provision). §718.1265(1) – Expands emergency powers to include “pandemics” and not just weather events or natural disasters. Includes holding Board and Member Meetings by phone or videoconference, and implementation of action plans based upon advice of public health officials. §718.111(12)(a) – Bids must be maintained for at least one year from receipt. The Association may not require that a unit owner provide a reason for inspection of the records. Also creates a path for use of “applications” on mobile devices for purposes of making records available to unit owners. §718.112(1)(c) – Allows the Board to extinguish “discriminatory restrictions” under §712.065. §718.111(12)(2)(d)(2) – Clarifies application of the 8 year term limit.

Only service on the Board after 7/1/18 is used when calculating the member’s term limit. §718.111(12)(2)(d)(3) – Special or additional membership meetings are subject to the 14-day notice and agenda requirements applicable to the annual meeting. §718.112(1)(c) – Allows the Board to extinguish “discriminatory restrictions” under §712.065. §718.112(2)(d)2. – Delinquency for purposes of eligibility to run for the Board is now limited to “assessments” as opposed to any “monetary obligation”. Delinquency for this purpose is determined by the due date in the Declaration, or the first day of the assessment period if the document is silent regarding a specific due date for assessments. §718.112(2)(f) – The Board must adopt a budget no later than 14 days prior to the end of the current fiscal year. Failure to do so results in the prior year’s budget remaining in effect and a second

violation constitutes a “minor violation” of the statute, triggering possible fines and other penalties. §718.112(2)(i) – Increases “permissible” transfer fees from $100 to $150, and allows adjustment every 5 years based upon the Consumer Price Index. Spouses, parents and dependent children are considered one applicant. §718.112(2)(j) – Arbitration of recall disputes is no longer mandatory and the Petitioner may file in state court or with the DBPR. §718.113(8) – Extends statutory exemptions applicable to vehicle charging stations to natural gas. Likewise creates a “material alteration” exception for Association-constructed charging/filling stations. §718.116(6) – The Association must now provide 45 days’ notice of its intent to foreclose (increased from 30 days). §718.121(4), (5) and (6) – Assessment notices and statements of account may be delivered to a unit owner by electronic mail provided 1) the unit owner provides an “affirmative acknowledgment” of the change, either by e-mail or in writing, which must be maintained amongst the official records, and 2) the Association confirms the change by providing written notice by first class U.S. Mail to the unit owner’s last address on record 30 days prior to the change, calculated from the date of mailing.

The Association may not recover attorney’s fees in connection with a delinquency unless it first provides notice by first class U.S. Mail to the last address on record and unit address if different, providing a statement of account in a form substantially in compliance with the statute which provides the unit owner 30 days from mailing to satisfy the delinquency. A rebuttable presumption that the notice was delivered is created if the Association executes an affidavit as provided in the statute. §718.1255 – With respect to “disputes” other than recall and election disputes, the Association/Unit Owner may either petition for arbitration before the DBPR or initiate presuit mediation pursuant to 720.311, and the parties must agree to be bound by

the arbitration ruling. Court action may be initiated if the dispute is not resolved at mediation. §718.1265 – Expands “emergency powers” of the Board during a declared state of emergency. Now includes pandemics and other declared emergencies other than weather/natural disasters; use of video/phone conference for Association meetings; permits reliance upon public health officials. § 718.202(3) – Florida Statutes A condominium developer may use the sales and reservation deposits collected prior to closing for the actual costs of construction, which is strictly limited to construction

costs, not marketing, attorney, loan, insurance, or accounting fees. §718.303 – Fines are due 5 days after notice is provided to the unit owner/tenant/invitee. §718.405 – Permits or clarifies that a multicondominium association may adopt a consolidated Declaration which does not “merge” or combine condominium property. §718.501 and 5014 – Allows the DBPR to adopt rules regarding the submission of a complaint against an association. Also allows the Ombudsman to locate their principal office within their discretion.

HOMEOWNERS ASSOCIATIONS – CHAPTER 720 §720.303(2)(c)1. – Allows posting of Association meeting notices utilizing the Association website provided e-mail confirmation is sent to those who have consented to receive e-notice. §720.303(4) – Election records must now be kept for at least one (1) year. §720.303(5)(c)3. – Access records and information obtained from visitors of gated communities are not part of the official records. §720.303(6) – Reserves are only “mandatory” where created by majority vote of the total voting interests or where required by the governing documents. Reserve funding does not constitute an “operating expense” for purposes of developer deficit funding.

Essentially exempts developers from funding reserves. §720.303(10) - Anyone wishing to challenge a recall has the option of filing a court action as well as a petition for arbitration with the Division of Condominiums.

§720.306(1)(h) – Limits homeowners’ association rental restrictions adopted after July 1, 2021 to those owners who consent and to anyone who buys a home after the amendment. Rental restrictions adopted after July 1, 2021 will not apply to owners who do not consent or owners who acquire title through inheritance or transfer for estate planning or some types of business acquisition. This change does not apply to amendments that prohibit or regulate leases of six months or less or prohibit more than three leases in a year. All homeowners can be subjected to such “short term” restrictions, even if they do not consent to them. §720.3075(6) – Board may remove discriminatory restrictions in the covenants through Section 712.065, Florida Statutes by the approval of a majority of the board. §720.311 – Election and recall disputes are no longer subject to mandatory arbitration with the division, although the parties may voluntarily do so. The dispute may now be filed in state court.

§720.305(2)(b) – Fines are due five (5) days after notice is provided.

§720.316 – Expands emergency Board powers where a state of emergency has been declared:

§720.306(1)(g) – Deletes the requirement that homeowners associations send meeting notices using the county property appraiser’s address records. Homeowners’ associations may go back to using the last address provided by the homeowner.

• Now includes “pandemics” and other emergencies not involving weather events and natural disasters.

• Allows planning based upon advice of public health officials.

• Allows meetings to be conducted by video/phone conference.

GENERAL LEGISLATION House Bill 463 Community Association Pools

House Bill 649 Petition for Objection to Tax Assessment

§514.0115(3), Florida Statutes Private community association pools serving 32 or fewer units are exempt from Dept. of Health supervision, except to ensure water quality.

§194.011 – Condominium, cooperative, and homeowners’ associations may protest tax assessments on behalf of their owners.

House Bill 421 Governmental Actions Affecting Private Property Rights

House Bill 403 Home-Based Businesses

§70.001 – Florida Statutes Private property owners burdened by government actions keep their right to make claims even after they have transferred ownership of their property.

§559.955 – Preempts certain local governmental restriction of home based businesses. Restrictive covenants, whether existing or newly adopted, are not subject to the statute.

As always, consult your Association’s counsel for questions on how the new legislation may affect issues in your Community. ■

UPCOMING EVENTS No upcoming events at the moment.

Most of our classes have been postponed until further notice.

If you have any questions, email us at contact@ruggierilawfirm.com.

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