718/720 Legal Update
Courtesy of Lou Caplan, Sachs Sax Caplan

July 2011

 

STATUTORY UPDATE FOR CONDOMINIUMS,

COOPERATIVES AND HOMEOWNERS ASSOCIATIONS

 

            The following is a summary of recent changes to the Florida Statutes relating to Condominium, Cooperatives and Homeowners Associations.  It should be noted that this handout is summary in nature and has been compiled to identify provisions which are of extra importance to our community association clients.  On the other hand, because it is summary in nature, this handout should not be relied upon as a definitive guide for any Association.  We suggest you review the actual statutory language or contact your Association attorney with specific questions.

 

            I.          CONDOMINIUM ASSOCIATIONS

 

                  A.        Official Records (§718.111(12), Fla. Stat.)

 


 

  •             The Association shall maintain electronic mailing addresses and facsimile numbers for those Unit Owners consenting to receive notice by electronic transmission (email and fax).  The email addresses and fax numbers shall not be accessible to the Unit Owners unless consent to receive notice by such means has been provided to the Association.   
  • Personnel records of the Association or management company employees shall not be accessible to Unit Owners for inspection purposes, except that “personnel records” shall 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.
  • Although phone numbers, fax numbers, and email addresses shall not be accessible to Unit Owners for inspection purposes, an Owner may consent, in writing, to the disclosure of such protected information, and the Association shall not be liable for the inadvertent disclosure of such information if such information is included in an official record of the Association and is voluntarily provided by the Unit Owner.

 


 

 

                  B.        Board Meetings  (§718.111(2)(c)3, Fla. Stat.)

 

 

  •  


 

         Board meetings held for the purpose of discussing personnel matters shall not be required to be open to the Unit Owners.  Previously, for Condominium Associations, the only meetings that were not required to be open to the Owners were meetings with the attorney to discuss proposed or pending litigation.

 

                  C.        Election of Directors (§718.111(2)(b)2, Fla. Stat.)

  1.  

         Any person who is more than ninety (90) days delinquent in the payment of any monetary obligation to the Association shall not be eligible for Board membership. The statute for Condominium Associations has been revised to specifically clarify that any candidate must be eligible for Board membership at least forty (40) days prior to the date of the election in order to be listed on the ballot to be sent with the second notice of the election and annual meeting.  Therefore, any candidate who is more than ninety (90) days delinquent as of the forty (40) day deadline shall not be included on the ballot for the election of Directors.

  1.  

         Language in the statute has been revised to clarify that Board members’ terms expire at the annual meeting, unless there are staggered terms, or unless there are no candidates.  Otherwise, all such Board members may stand for re-election unless otherwise prohibited by the Bylaws, which could be argued to allow for term limits in the Association’s documents.

  1.  

         Language has also been clarified in the statute to provide that, if the number of Board members whose terms expire at the annual meeting equals to or exceeds the number of candidates, then such candidates shall become members of the Board effective upon the adjournment of the annual meeting.  Further, unless the Bylaws provide otherwise, any remaining vacancies shall be filled by the affirmative vote of the majority of the Directors making up the newly constituted Board even if such Directors constitute less than a quorum or there is only one such Director.                             

 

                        D.        Board Certification Requirements (§718.111(2)(d)4, Fla. Stat.)

 


 

 

  •             The statute for Condominium Associations was revised to provide that within ninety (90) days after being elected or appointed to the Board, each newly elected or appointed Director shall provide written certification that he or she has read the Association documents and will work to uphold such documents and policies to the best of his or her ability.  In lieu of such written certification, the newly elected Directors may, within one year before or ninety (90) days after their election or appointment, take a certification class for such purposes.  The written certification or educational class shall be valid and does not have to be resubmitted so long as the Director serves on the Board without interruption.

 

                                          E.        Hurricane Protection (§718.113(5), Fla. Stat.)

 

  •             The statute for Condominium Associations has been amended to extend the existing requirements relative to the installation of hurricane shutters and other hurricane protection specifically to hurricane impact glass or other code-compliant windows.  The Board shall have the authority upon approval of the majority of the voting interests to install hurricane shutters, impact glass or other code-compliant windows or hurricane protection, except that a vote of the Owners shall not be required where such protection is the responsibility of the Association pursuant to the Declaration of Condominium.  However, the Board may not install such hurricane protection where hurricane protection has already been installed, except upon the approval of the majority vote of the voting interests.

 

                                          F.         Collection of Assessments (§718.116(1)(b)2, Fla. Stat.)

 


 

 

  •             An Association, or its successor or assignee, that acquires title to a Unit through foreclosure of its lien, shall not be liable for any unpaid assessments, late fees, interest or reasonable attorneys fees and costs that came due prior to the Association’s acquisition of title in favor of any other Association which holds a superior lien interest on the Unit.

 

                                          G.        Collection of Rent from Tenants Where Owners are Delinquent in                                 Payment of Assessments (§718.116(11), Fla. Stat.)

 


 

 

  •             Where a Unit Owner is delinquent in payment of any monetary obligation due to the Association, the Association may make a written demand on the tenant to pay the Association all subsequent rental payments and to continue to make such payments until all monetary obligations of the Unit Owner related to the Unit have been paid in full to the Association.  The statute provides a specific form letter for this purpose, and this extends the existing law, which previously allowed the Association to collect rent from a tenant to satisfy future monetary obligations related to the Unit.  The Association may now collect rent to offset all unpaid assessments or other monetary obligations owed to the Association.
  • If the tenant has paid rent to the landlord for a given rental period before receiving such a demand, and provides evidence of having paid such rent within fourteen (14) days after receiving the demand from the Association, the tenant shall begin making rental payments to the Association for the following rental period and shall continue making such payments until the Association releases the tenant or the tenant discontinues tenancy in the Unit.

 

                                          H.        Fines and Common Area Use Suspensions (§718.303, Fla. Stat.)

 


 

 

  •             Associations now have a statutory right to levy reasonable fines for the failure of the Unit Owner, or its occupant, licensee or invitee, to comply with any provisions of the Association’s governing documents.  The fine may not constitute a lien against the Unit, and may not exceed One Hundred ($100.00) Dollars per violation or One Thousand ($1,000.00) Dollars in the aggregate for a continuing violation.
  • Further, the Association has a statutory right to suspend, for a reasonable period of time, the right of a Unit Owner or a Unit Owner’s tenant, guest, or invitee, to use the common elements, common facilities or any other Association property for failure to comply with any provisions of the Association’s governing documents.
  • Any such fine or suspension imposed for a failure to comply with the governing documents may not be imposed unless the Association first provides at least fourteen (14) days written notice and an opportunity for a hearing in front of an independent fining/suspension committee.
  • If a Unit Owner is more than ninety (90) days delinquent in paying any monetary obligation due to the Association, the Association may suspend the right of such Unit Owner or the Unit’s occupant, licensee or invitee, to use the common elements, common facilities or any other Association property until the monetary obligation is paid in full.  The notice and hearing requirements for suspensions do not apply to any such suspensions imposed for a Unit Owner’s delinquency.
  • Where the Association intends to suspend common area use rights for a delinquency, such suspension may not apply to the limited common elements intended to be used only by that Unit.  Further, such suspension shall also not apply to any common elements needed to access the Unit, utility services provided to the Unit, parking spaces or elevators.
  • All such suspensions shall be approved at a duly called Board meeting upon proper notice, and upon approval, the Association must notify the Unit Owner and any occupant, licensee or invitee by mail or hand delivery.

 

                                          I.          Suspension of Voting Rights (§718.303, Fla. Stat.)

 


 

 

  •             The Association shall further have the authority to suspend voting rights of any Unit or member due to the non-payment of any monetary obligation due to the Association which is more than ninety (90) days delinquent.  Any voting right or consent right allocated to a Unit or member which has been suspended by the Association 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 pursuant to the statute or pursuant to the Association’s governing documents.

 

                                          J.         Bulk Buyers and Bulk Assignees (§718.703-707, Fla. Stat.)


 

 

  •             Definition of “Bulk Assignee” and “Bulk Buyer” have been revised to refer to persons who acquire more than seven (7) Condominium Units in a single Condominium.
  • Provides that a Bulk Assignee is not liable for any applicable statutory warranties under Chapter 718, except as expressly provided by the Bulk Assignee in the prospectus, offering circular, or purchase contract.
  • Clarifies that a Bulk Assignee who is assigned the Developer’s right to guarantee assessments and fund deficits pursuant to Section 718.116, shall be liable for all obligations of the Developer with respect to such guarantee upon its acquisition of title to the Units and continuously thereafter, in accordance with Section 718.116.
  • Provides that a Condominium parcel acquired by a Bulk Assignee is not deemed to be conveyed to a purchaser, or owned by an Owner other than the Developer, for purposes of determining the timing of turnover of control, if, at the time the Bulk Assignee acquires title to the Units and receives an assignment of Developer rights, the Developer has not relinquished control of the Board.  Such Condominium Units shall not be considered conveyed to a purchaser until they are conveyed to an Owner who is not the Bulk Assignee.
  • Requires that a Bulk Assignee or Bulk Buyer who is offering more than seven (7) Units in a single Condominium for sale or for lease for a term exceeding five (5) years shall be required to file with the Division a disclosure statement including specific statements that must be in conspicuous type as identified in Section 718.706.
  • Clarifies that such disclosure requirements shall not be required where the Bulk Assignee or Bulk Buyer is offering all of the Units to a single purchaser in a single transaction.
  • Clarifies that a person may not be classified as a Bulk Assignee or Bulk Buyer unless the Condominium Units were acquired on or after July 1, 2010, and before July 1, 2012.

 

                                          K.        Agreements and Acquisitions Relating to Recreational Facilities (§718.114, Fla. Stat.)

 


 

 

  •             Associations shall be permitted to enter into agreements for the acquisition of recreational facilities, and such agreement or acquisition may be accomplished by the approval of a majority of the total voting interests in the Condominium if the Declaration is silent on the requisite procedure.  Previously, the statute offered no guidance where the Declaration was silent.

 

                                          L.         Termination of Condominium  (§718.117, Fla. Stat.)

 


 

 

  •             Section 718.117, which addresses how a Condominium which has suffered destruction or demolition may be terminated, has now been modified to allow a Unit Owner to file a court petition seeking termination when the Condominium in question has both Condominium Units and time share estates.  Previously, the statute did not address a situation where both Condominium Units and time share estates co-existed in the same Condominium.

 

                              II.         COOPERATIVES

 

            A.        Collection of Assessments (§719.108(4), Fla. Stat.)

 


 

 

  • Removes the ability of the Association to lien for reasonable costs for collection services for which the Association has contracted against the Unit Owner of the Cooperative parcel.

 

                  B.        Collection of Rent from Tenants Where Owners are Delinquent in               Payment of Assessments(§719.108(10), Fla. Stat.)

 


 

 

  • Where a Unit Owner is delinquent in payment of any monetary obligation due to the Association, the Association may make a written demand on the tenant to pay the Association all subsequent rental payments and to continue to make such payments until all monetary obligations of the Unit Owner related to the Unit have been paid in full to the Association.  The statute provides a specific form letter for this purpose, and this extends the existing law, which previously only allowed the Association to collect rent from a tenant to satisfy future monetary obligations related to the Unit.  The Association may now collect rent to offset all unpaid assessments or other monetary obligations of the Association.
  • If the tenant has paid rent to the landlord for a given rental period before receiving such a demand, and provides evidence of having paid such rent within fourteen (14) days after receiving the demand from the Association, the tenant shall begin making rental payments to the Association for the following rental period and shall continue making such payments until the Association releases the tenant or the tenant discontinues tenancy in the Unit.

 

                  C.        Fines and Common Area Use Suspensions (§719.303, Fla. Stat.)

 


 

 

  • Associations now have a statutory right to levy reasonable fines for the failure of the Unit Owner, or its occupant, licensee or invitee, to comply with any provisions of the Association’s governing documents.  The fine may not constitute a lien against the Unit, and may not exceed One Hundred ($100.00) Dollars per violation or One Thousand ($1,000.00) Dollars in the aggregate for a continuing violation.
  • Further, the Association has a statutory right to suspend, for a reasonable period of time, the right of a Unit Owner or a Unit Owner’s tenant, guest, or invitee, to use the common elements, common facilities or any other Association property for failure to comply with any provisions of the Association’s governing documents.
  • Any such fine or suspension imposed for a failure to comply with the governing documents may not be imposed unless the Association first provides at least fourteen (14) days written notice and an opportunity for a hearing in front of an independent fining/suspension committee.
  • If a Unit Owner is more than ninety (90) days delinquent in paying any monetary obligation due to the Association, the Association may suspend the right of such Unit Owner or the Unit’s occupant, licensee or invitee, to use the common elements, common facilities or any other Association property until the monetary obligation is paid in full.  The notice and hearing requirements for suspensions do not apply to any such suspensions imposed for a Unit Owner’s delinquency.
  • Where the Association intends to suspend common area use rights for a delinquency, such suspension may not apply to the limited common elements intended to be used only by that Unit.  Further, such suspension shall also not apply to any common elements needed to access the Unit, utility services provided to the Unit, parking spaces or elevators.
  • All such suspensions shall be approved at a duly called Board meeting upon proper notice, and upon approval, the Association must notify the Unit Owner and any occupant, licensee or invitee by mail or hand delivery.

 

                  D.        Suspension of Voting Rights (§719.303, Fla. Stat.)

 


 

 

  • The Association shall further have the authority to suspend voting rights of any Unit or member due to the non-payment of any monetary obligation due to the Association which is more than ninety (90) days delinquent.  Any voting right or consent right allocated to a Unit or member which has been suspended by the Association 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 pursuant to the statute or pursuant to the Association’s governing documents.

 

            III.  HOMEOWNERS ASSOCIATIONS         

                 

                  A.        Lot Owners Rights at Board Meetings (§720.303(2)(b), Fla. Stat.)

 

  • Lot Owners shall have a statutory right to attend all Board meetings including the right to speak at such meetings with reference to all designated agenda items.  Previously, Owners only had a right to speak at Board meetings with regard to items that were placed on the agenda by a petition of the voting interests.

 

            B.        Inspection of Official Records (§720.303(5), Fla. Stat.)

 

  • The Association shall maintain electronic mailing addresses and facsimile numbers for those Owners consenting to receive notice by electronic transmission (email and fax).  The email addresses and fax numbers shall not be accessible to the Owners unless consent to receive notice by such means has been provided to the Association.   
  • Personnel records of the Association or management company employees shall not be accessible to Owners for inspection purposes, except that “personnel records” shall 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.
  • Although phone numbers, fax numbers, and email addresses shall not be accessible to Owners for inspection purposes, an Owner may consent, in writing, to the disclosure of such protected information, and the Association shall not be liable for the inadvertent disclosure of such information as protected by statute if such information is included in an official record of the Association and is voluntarily provided by the Owner and not requested by the Association.

 

            C.        Fines and Common Area Use Suspensions (§720.305, Fla. Stat.)

 


 

 

  • Associations now have a statutory right to levy reasonable fines for the failure of the Owner, or its occupant, licensee or invitee, to comply with any provisions of the Association’s governing documents.  A fine of less than One Thousand ($1,000.00) Dollars may not become a lien against a parcel, and may not exceed One Hundred ($100.00) Dollars per violation or One Thousand ($1,000.00) Dollars in the aggregate for a continuing violation, unless otherwise provided in the Association governing documents.
  • Further, the Association has a statutory right to suspend, for a reasonable period of time, the right of a Owner or a Owner’s tenant, guest, or invitee, to use the common areas, common facilities or any other Association property for failure to comply with any provisions of the Association’s governing documents.
  • Any such fine or suspension imposed for a failure to comply with the governing documents may not be imposed unless the Association first provides at least fourteen (14) days written notice and an opportunity for a hearing in front of an independent fining/suspension committee.
  • If an Owner is more than ninety (90) days delinquent in paying any monetary obligation due to the Association, the Association may suspend the right of such Owner or the Owner’s occupant, licensee or invitee, to use the common elements, common facilities or any other Association property until the monetary obligation is paid in full.  The notice and hearing requirements for suspensions do not apply to any such suspensions imposed for an Owner’s delinquency.
  • Where the Association intends to suspend common area use rights for a delinquency, such suspension may not apply to the any portion of the common areas used to provide access or utility services to the parcel.
  • All such suspensions shall be approved at a duly called Board meeting upon proper notice, and upon approval, the Association must notify the Owner and any occupant, licensee or invitee by mail or hand delivery.

 

            D.        Suspension of Voting Rights (§720.305, Fla. Stat.)

 

  • The Association shall further have the authority to suspend voting rights of any parcel or member due to the non-payment of any monetary obligation due to the Association which is more than ninety (90) days delinquent.  Any voting right or consent right allocated to a parcel or member which has been suspended by the Association 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 pursuant to the statute or pursuant to the Association’s governing documents.

 

            E.        Election of Directors (§720.306(9)(b), Fla. Stat.)

 

  • Any person who is delinquent in the payment of any fee, fine or other monetary obligation to the Association for more than 90 days shall not be eligible for Board membership.
  • Any person who has been convicted of a felony in Florida 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 is committed in Florida, shall not be eligible for Board membership unless such person’s civil rights have been restored for at least five (5) years prior to the date on which such person seeks election to the Board.
  • 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.

    

      F       Collection of Assessments (§720.3085(2)(b), Fla. Stat.)


 

 

  • An Association, or its successor or assignee, that acquires title to a parcel through foreclosure of its lien, shall not be liable for any unpaid assessments, late fees, interest or reasonable attorneys fees and costs that came due prior to the Association’s acquisition of title in favor of any other Association which holds a superior lien interest on the parcel.

 

           G.      Collection of Rent from Tenants Where Owners Are Delinquent in                       Payment of Assessments (§720.3085(8), Fla. Stat.)

 

  • Where an Owner is delinquent in payment of any monetary obligation due to the Association, the Association may make a written demand on the tenant to pay the Association all subsequent rental payments and to continue to make such payments until all monetary obligations of the Owner related to the parcel have been paid in full to the Association.  The statute provides a specific form letter for this purpose, and this extends the existing law, which previously allowed the Association to collect rent from a tenant to satisfyfuture monetary obligations related to the parcel.   The  Association  may  now  collect  rent  to  offset all unpaid assessments or other monetary obligations owed to the Association.
  • If the tenant has paid rent to the landlord for a given rental period before receiving such a demand, and provides evidence of having paid such rent within fourteen (14) days after receiving the demand from the Association, the tenant shall begin making rental payments to the Association for the following rental period and shall continue making such payments until the Association releases the tenant or the tenant discontinues tenancy in the parcel.

 

 

                                      

           H.       Contracts for Cable Television Services and Other Communication                   Services (§720.309, Fla. Stat.)

 


 

 

  • Association shall have the statutory right to contract for communications services, such as information services, internet services or cable televisions services, pursuant to a bulk contract, and such services shall be deemed an operating expense of the Association.  The costs shall be allocated on a per-parcel basis rather than a percentage basis, notwithstanding whether the governing documents provide for anything other than equal sharing of operating expenses.
  • Any such contract entered into prior to July 1, 2011, in which the costs of the service is not equally divided among all parcel owners may be changed by a majority vote of the voting interests present at a duly called regular or special meeting of the Association in order to allocate the costs equally among all parcels.
  • Any such contract entered into by the Board may be cancelled by a majority vote of the voting interests present at the next regular or special meeting of the Association, after the execution of a contract, whichever occurs first, but if no motion is made or if such motion fails to obtain the required vote, then the contract shall be deemed ratified for the term expressed in the contract.
  • Any such contract entered into by the Board must provide, and shall be deemed to provide if not expressly set forth in the contract, that a hearing impaired or legally blind parcel owner who does not occupy the parcel with a non-hearing impaired or sited person, or any 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, may discontinue the service without incurring disconnect fees, penalties or subsequent service charges, and may not be required to pay any operating expenses related to such services for those parcels.
  • A resident of any parcel, whether a tenant or parcel owner, may not be denied access to available franchised, licensed or certified cable or video service providers if the resident pays the provider directly for such services.

 

IV.MARKETABLE RECORD TITLE ACT REMINDER FOR HOMEOWNERS         ASSOCIATIONS

     

This is also a reminder that Homeowners Associations that are coming up on thirty (30) years of existence should seek to have their covenants renewed pursuant to the procedures in the Marketable Record Title Act, which is located in Chapter 712, Fla. Stat.  This requirement is only for Homeowners Associations and does not affect Condominium Associations. Therefore, if you are a Homeowners Association and you have not already renewed your covenants for an additional thirty (30) years, you may wish to consult our firm to discuss the necessity of renewing your restrictions pursuant to the Marketable Record Title Act.

 

***************

 

LOUIS CAPLAN, ESQUIRE, CAN BE REACHED AT (561) 237-6840.

 

SACHS SAX CAPLAN

6111 Broken Sound Parkway NW

Suite 200

Boca Raton, FL 33487   

  


Contact Us:
20423 State Road 7 F-6 – 121
Boca Raton, FL 33498


Email: wbccemail@gmail.com

561-719-7036

 

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