Smart Board & Property Manager Legal Guide: Unraveling The Mysteries Of The New Florida Condo & HOA Laws

So with that, let's talk about our presentation today, which is unraveling the mysteries of the new Florida condo and HOA laws. We've got a chock-full agenda as you can see, and the presentation today is going to be mostly between Cindy Hill, Jim Turffs, and Jennifer Hicks. They head up our general counsel section. They're the ones that are involved day-to-day in condo and HOA representation. And so we're going to start with the legislation that was recently passed that affects homeowners associations. So for you folks that are in HOAs, now's the time to really pay attention, but I'm sure some of this will be of interest to condo folks as well. So with that, I'm going to turn it over to Cindy and Jim and Jennifer, and we're going to start with Homeowners Association new website requirements. Who's got that?

Jennifer Hicks, Esq.:
I do.

Jennifer Hicks, Esq.:
Okay. So thanks to the new law, the HB 1203, the HOAs have now joined the condominiums in the requirement for having websites. So all associations with 100 or more parcels have until January 1, 2025 to make a website. While it is again very detailed, they do have a specific list on what is required to be on your website. That includes your governing documents, so your articles, your bylaws, your declaration, and any rules, a list of contracts of which the association is a party, a list of all bids received in the past year, an annual budget or proposed budget to be discussed at the next meeting, an annual financial report, and the monthly income and expense statements, all current insurance policies, the board education certificates, the contracts between associations and outside parties, any contract and documents showing conflict of interest, your notice and agendas for your membership meetings, and they must be posted 14 days prior to the meeting along with a couple of extra requirements that they're visible on the home page or at least easily navigatable.
This is where you have your documents considered and voted on at the meetings. Those have to be posted as well, at least seven days prior to the meeting. And then any notice and agenda for the next board meetings. You have a couple of other requirements. You have to have sort of a general page for the public and then a members only or owners only behind a password. And any official records which would normally be protected from view are either not posted on the website or if they're required, they must be redacted. And then they have also added a requirement that all HOAs have to have a official records policy as to how long certain records are maintained. Generally seven years, but there are some different ones, and then that policy must be posted on the website if you're required to have one.

Jon Lemole, Esq.:
All right. Turning from websites and official records, let's talk about financial reporting.

Jennifer Hicks, Esq.:
Okay. So as you know, associations can vote to change the required of the level of financial reporting. However, as of now, you can only do that once. You cannot do it, sorry, you can't do it two years in a row. I apologize. At least once every two years you have to do your fully statutorily required financial reporting and the statute is there so you can see where you're required to be reporting. And then I think Cindy is on the new rights for requests.

Cindy Hill, Esq.:
The new rights to request a detailed accounting. Yes, just making sure I was not again... Unmuted. Okay. So for homeowners associations, and this is only for homeowners associations, again, this is the part of the talk we are talking homeowner associations, but there are some overlaps and some connections. This is not for condominiums at all. This is only for homeowners associations. Owners now have a right to request an accounting of their balances due. Specifically the statute provides that a parcel owner may make a written request to the board for a detailed accounting of any amounts owed to the HOA related to the parcel, and the board shall provide such information within 15 days after receipt of the written request.
So for the managers out there in the audience of HOAs, if you didn't already have enough to do, now you have another new statutory burden if an owner makes this request. And after the owner makes the request for a detailed accounting, and again, it has to be detailed, so you're going to have to provide breakdowns if they have past amounts due, but they can only do this at least once every 90 days. So there is some solace in that.
So what's the penalty if this is not timely responded? So failure to the board to respond within 15 days, again, that's your deadline for detailed accounting is considered a complete waiver if any outstanding fines of the persons who requested the accounting where the fines are more than 30 days past due and the homeowner association is not given prior written notice to the imposition of the fines. So that's not going to apply to a lot of people. Obviously, most owners do not have outstanding fines or fines pending on their property, but this statute could be a new tool for people who are to a certain level, making problems in the association to maybe get out of a fine or try to get out of a fine. So you do need to be aware of this new right. Jon, if you can move the next slide.
Thank you. The board director education requirements. This is for HOAs, again, only homeowner associations. We'll discuss the condominium ones in the second half of this, but as of now, new board directors must complete within 90 days after election or appointment a course which includes training relating to financial literacy and transparency, record keeping, levying of fines and notice and meeting requirements. And all directors must complete at least four hours of continuing education a year. So for the associations already having some trouble getting volunteers, this is not going to make it any easier. But on the flip side, there's going to be some more courses available out there for those of you who are looking for more education and more information.
Up next, the next slide, please. Okay. The new architectural requirements. First of all, I did not put this part of the statute in the outline, but they did codify what has been thought of as what's been termed selective enforcement for so many years. Selective enforcement was traditionally a defense that was available under case law in Florida. It has now been added to the statute where all homeowner associations are required to reasonably and equitably apply and enforce architectural reviews and requirements. They specifically also added certain architectural review issues that are now prohibited. So they're listed right here on the slide. Requirements or limitations to the interior of a structure that are not visible from the parcel's frontage or an adjacent parcel or an adjacent common area or community golf course. And yes, you saw that, right? That's not a typo. I didn't speak wrongly, the interior of a structure.
I've had some of our community association clients ask us, what would this even apply to? I'd be curious to hear some of the examples that might come up as this statute gets out and starts to be enforced. But the one I can think of is window coverings. If you do have some provisions in your documents regarding window coverings, some of the old ones do say no aluminum foil in your windows, for instance. I don't know who's doing that anyway, but now the association can't enforce that unless you can basically see it.
You also now have limitations as a homeowner association on approving plans and specifications for central air conditioning, refrigeration, heating and ventilation systems if such systems are not visible from the parcel's frontage and adjacent parcel and adjacent common area, community golf course and is substantially similar to a system that is approved or recommended by the association or committee. So you're going to have to be careful now trying to deny any sort of central air conditioning or any of these other features simply for aesthetic reasons. Finally, most importantly, this is going to apply to all homeowner associations that have architectural review. When you deny a parcel owner's request for an improvement, you must provide specific notice stating the rule or covenant that bases your denial.
So in some saying, "We don't like the look of it, it's not aesthetically pleasing." Those are not be consistent with the statute. You're going to have to say, for instance, "No, you can't have that paint color, because we have a rule that says you can only use these four paint colors." So these are new burdens on architectural review that homeowners associations definitely need to be aware of. So moving on, and again, sorry that we're going through this so quickly. There are so many new laws. I'm sure there's going to be a lot of questions.

Alan Tannenbaum, Esq.:
Cindy, just to reinforce it, what's the effective date for all these changes?

Cindy Hill, Esq.:
Oh, very good point, Alan. They are already effective 1st of July unless we are pointing out otherwise. As Jennifer had said, for instance in her part of the presentation, the new website requirement has a different compliance date. So July 1 is generally when these are all taking effect.
So moving on to hurricane protection standards. Now all homeowners associations are required to have a hurricane protection standard policy. So if you are in any way regulating the panels or other hurricane protection that owners are putting on their homes, you do have to have a policy if you don't already have one. And also note that hurricane protection has been very broadly defined. It includes roof systems, reinforced garage doors, erosion controls, exterior fixed generators, fuel storage tanks, and other hurricane protection products. So not just shutters, but if you are for instance, have any restrictions on owners putting in generators that are attached, reinforced garage doors, you're going to need to review these policies with your counsel, make sure you are in compliance with these new laws.
Let's see. The new fining requirements, I'm just going to go ahead and say if you are doing any fining as an HOA, you need to get with your counsel and update your fining policy. They made substantial changes to the HOA fining requirements. For instance, finings and suspension hearings must be held within 90 days after the hearing notice, so it's no longer an open-ended process. You do have a deadline, and they must provide written notice of their findings within seven days after the fining hearing. So it's already hard enough to get fining committee volunteers. I know that. I hear that from my clients frequently. Now, not only do you have to get volunteers who are going to be willing to have the hearings, they're going to have to be willing to also turn around decisions pretty quickly in writing. The notices also have to state how the violation can be cured or the suspension can be fulfilled, or the date which the fine must be paid as applicable. And it may not be imposed that the violation has been cured before the hearing or in the manner stated in the notice.
So at this point, owners now have a, so to say, get out of jail free card if they let their violation occur all the way up to the hearing and then still correct it within the timeframes of the notices. And if the violation is not cured, the fining committee must set a date by which the fine must be paid, and it has to be paid within 30 days after delivery of the notice. This is a different deadline than what was previously in the statute and a much longer one.
And regardless of what is stated in your governing documents, you cannot now fine or suspend for leaving garbage receptacles at the curb or the end of the driveway within 24 hours before or after the designated garbage collection day or time, or for leaving holiday decorations or lights on a structure or other improvement on a parcel longer than indicated in your governing documents unless such decorations and lights are left up for longer than a week after the association provides written notice to the owner. So be aware if your association is enforcing those provisions. Jon, if we can move the next one. Okay, we could probably spend the whole seminar on this one. The new prohibited parking.

Jon Lemole, Esq.:
It's already becoming a problem, right?

Cindy Hill, Esq.:
Yes, it is. There's actually an article in the Herald Tribune today about homeowner association that's challenging this, let's say with their owners, not legally apparently. Association may not prohibit an owner, tenant, guest or invitee from parking their personal vehicle, including a pickup truck or their work vehicle other than the statutory commercial vehicles, which are basically enormous vehicles. I'm not confident the legislature understood the definition of commercial vehicles in the statutes when they made that exception. Because that's basically you can't park a dump truck. It's not going to apply to, for instance, necessarily a taco truck.
And if you have public streets, you're not going to be able to prevent owners from parking in the street other than in non-compliance with the government standards for your community. So these restrictions are huge and important for a lot of communities. The driveway restriction is going to apply regardless if your roads are public or private, by the way, but if your roads are private, you may not have to follow these other requirements, but if they're public, you're going to be limited to whatever limitations your local government has on parking on public roads. And also there's a new statute, first responder parking rights that confirms it used to be law enforcement vehicles could park in driveways or park in any manner in any other vehicle in a community. Now it's first responders. It's more broad. So next slide, Jon.

Jon Lemole, Esq.:
Well, I just wanted to highlight the provision. It cannot prohibit owners from using unlicensed contractors or workers on their own parcel. I can see a situation where if you're living in connected townhomes, that could be a particularly difficult problem to deal with, because it's not just your own single family residents if you're using an unlicensed contractor to do work on a townhome unit, for lack of a better word.

Cindy Hill, Esq.:
Well, thank you, Jon. Unfortunately, I got caught up in the parking and neglected that part of the slide that says, "Associations may not prohibit owners from using vendors who are not association approved or preferred vendor list, and they cannot prohibit owners from using unlicensed contractors or workers on their own parcel." So first of all, that's an upsetting provision just generally to associations that have concerns about that. But you're right, Jon, for a townhome, I don't know that the legislators thought that through at all.

Jon Lemole, Esq.:
Yeah, that was not poor judgment on their part, I would say.

Cindy Hill, Esq.:
I would agree.

Jon Lemole, Esq.:
We've talked about this I think a little bit in the past, the backyard situation, but let's cover that again, and you probably have a funny anecdote about how that came into being, I think, but take it away.

Cindy Hill, Esq.:
Well, last year there was a new law added that basically said people in homeowner associations can put pretty much anything in their backyard they want to, as long as you can't see it from an adjacent parcel or the front of the parcel. I've termed it the crap in the backyard parcel. It came oddly enough from someone was a friend with a legislator who had wanted to put artificial turf in their backyard and their HOA said no. So then we ended up with this a very broad, poorly written, in my opinion, statute that does allow people to put things in their backyard as long as they cannot be seen from... Previously it said from the front of the parcel or the adjoining parcels. Now what's been added is an adjacent common area or community golf course, because that was an immediate concern last year for the communities on golf courses.
Golfers don't necessarily want to look at unsightly storage items as they're enjoying their golf day, and in all fairness, people across the way from a retention pond also don't want to look at such things. They've now also added, last year I had a number of my community association clients say, "Aren't they going to get rid of this statute? This is awful." No, they didn't get rid of it. They added to it. So now in addition to the items you could have in your backyard, you can now have vegetable gardens and clotheslines. So that statute just continues to grow, although the limitations for a common area and golf course viewing are welcome improvements.
Finally, to wrap up the HOA part so that we have time to continue into condominium, this is again, only a requirement for homeowner associations required delivery of governing documents to owners. Now, here's a specific date, a deadline, October 1 of this year, all homeowner associations must deliver a physical or digital copy of the association's governing documents to all current owners. So what does that mean?
Well, the statute continues on to say compliance of this can be done by posting your documents on the website and letting owners know that's where they are. So don't start necessarily thinking you're going to have to have a budget change, because you're going to have to mail out all these documents. You do have an electronic option, but this is a requirement that has to be complied with by October 1st. Also going forward, a homeowner associations are also now required to provide the governing documents to all new owners so you can no longer take the position that they should have gotten those documents at closing, which they should have, but now you have an obligation as association and you have an obligation when amendments are made that you have to provide copies of those to the owners.

Jon Lemole, Esq.:
Is there a time limit, Cindy, for new owners, for somebody who's let's say after October 1st, 2024, somebody buys? Do they provide a deadline on that?

Cindy Hill, Esq.:
That's a good question, Jon. I'm going to go with likely not, because when I summarize the new laws, I do put deadlines in my summaries. But that's a good question. So again, associations need to be aware of this and make sure that they're going to comply with it, and I am not aware of a deadline, but if there is one, it'll be known.

Jon Lemole, Esq.:
Leave it up to the courts to decide what a reasonable timeframe is.

Cindy Hill, Esq.:
Yeah, I think a reasonable timeframe is what I'm thinking. And since there's not a specific deadline, I mean where I was going with that, you could have a policy for instance, or practice that management would, for instance, get out documents to new owners within 60 days, 30 days, something that seems reasonable.

Jon Lemole, Esq.:
Yeah. Well, I guess if you have it on your website, you pretty much covered yourself, right?

Cindy Hill, Esq.:
That would be the other, yeah.

Jon Lemole, Esq.:
Yeah, you just send them a notice. 

Cindy Hill, Esq.:
Correct. To get the notice to them and let them know. Regarding the websites, before we move on, I do want to say real quick, the legislature has heavily leaned in this session towards putting documents on websites and having associations comply with their responsibility to provide documents by having [inaudible 00:21:58] on websites. So people who are not website savvy, not internet savvy, are really getting left behind here.

Jon Lemole, Esq.:
Yeah. Okay. I know that was quick. It was kind of a race through. Unfortunately, the time limitations we have require us to just kind of give you an overview so you know what's out there and you can look at them in a little bit more detail with your community's general counsel. And as I said at the beginning of the presentation, for both of these sections, we'll take a deeper dive in coming monthly smart board webinars. But we're going to turn now to the condo folks. Now's your time to shine. You can start really paying attention here, and we've got a lot of ground to cover with condos. They were very active, the legislature, on passing the whole slew of new condo legislation. We're going to start with owner email addresses, fax, fax simulating numbers for those of you who still may be using faxes, and personal information. Who's got that? I can't remember.

Jennifer Hicks, Esq.:
I do.

Jon Lemole, Esq.:
Okay, Jennifer, take it away.

Jennifer Hicks, Esq.:
So they have decided this year that if a unit owner consents to receive your electronic notices, then their email or fax number, again, if you're using faxes still, can be shared with other unit owners. The owners now have the responsibility to make the request to opt out of sharing that information. The association however, must ensure that the owner's email addresses and fax numbers are used only for business purposes. You're not using these for marketing for outside the association, and they cannot be sold or sent to outside third parties without being association business. Now if it happens, because it's the age of technology and things happen and it's an inadvertent disclosure, you're not going to be liable unless it was made intentionally. Again, the associations are required to redact any personal information included in documents that are released to third parties before you give those documents out.
I think that's pretty common knowledge at this point. I think next we are going to official records. Yes, so the new laws decided and firm that invoices, transaction receipts, deposit slips and expenditure are now considered official records. That is a change. It's kind of interesting in the digital age where everywhere else they're going digital that they still want us to keep deposit slips. Excuse me, all building permits and again, we have education certificates for the board members, those are all now considered official records. Additionally, they've made it a requirement that the official records are maintained in an organized manner, and that allows easy inspection. So no more walking into a room full of books and boxes and trying to find out what's where. The associations now have a duty and to make a good faith effort to recover any lost or destroyed records.
If an owner, sorry, requests an inspection and the documents are available online or on the association's website, the association can fulfill its duty to provide these records by sending the owners or directing the owners to the website. It does not give any leeway for, say, if an owner isn't into using computers, they don't like using the internet or don't have the internet, there is no requirement that then the association gives paper copies. You can just say, "Go to your local library, see if you have a friend that can help you." If an owner does do a written request for a records, the association is now require to simultaneously provide a checklist of all records provided and those that are not provided, and that checklist is now an official records and must be kept for seven years.
I think we're finance now. Yep. Back to financial reporting. The condominiums have the same requirement or restriction that the HOAs do. You can only reduce your financial reporting once. You cannot do it two years in a row anymore. Again, there's your financial requirements that are already in the statute. And then moving to condominium websites, they have made the change from what was prior 150 units. Now, if you were 25 or more units, you are now required to have a website, but you have until January 1, 2026 to comply with developing your website and now building permits are required to be on the website. That was a change this year also. I think board meetings, and I think that is Jim.

James "Jim" Turffs, Esq.:
And good morning, everyone. So for condos, we have one of the bigger changes in the statutes this time around has been to the board meeting requirements. So to start with, any association with 10 or more units now has to have at least quarterly meetings, quarterly board meetings. So four times a year you've got to have a meeting. Even if you're 11 units and everybody's renting out their units or whatever, your board still has to have quarterly meetings. At least four times a year and I would suggest at those quarterly board meetings, since that's going to be four times a year, the meeting agenda has to allow the members the opportunity to ask questions of the board. It's important to point out, the board has no direct obligation to answer those questions. They just have to provide the membership with the opportunity to ask. Hopefully you come up with a better response than, "Well, you've asked your question, we don't have to answer you, go away." And your board actually answers reasonable questions as they come up.
But in the event necessary, the board can always step back and say, "We've noted your question. We'll take it under advisement or something more tactful. So keep that in mind. At all board meetings, not just four times a year at the quarterly meetings, at all board meetings going forward, condo associations have to allow the membership the opportunity to speak on topics, not just on the agenda, which is what it used to be, but now talk about anything related to the operation of the association, specifically including construction projects, because apparently owners were being subject to special assessments for massive improvements and weren't getting the answers to questions about how the project was going and why they're paying for these things. So that's what was focused on in the statute. But the general gist of it is be aware that now your membership can ask you anything and can talk about anything.
Again, the board doesn't have an obligation to come back and provide responses day of or necessarily at all, but be aware that they can now ask. It was a very useful tool for a lot of boards to keep people locked in on the agenda. That's not so much the case going forward. Another one that's definitely been catching people out, is that if a board meeting agenda is including a potential vote on a contract for goods or services, a copy of that contract has to be provided with the meeting notice. So in the event there's even a chance you're going to be voting on a contract, whether that's your general counsel, attorney contract for improvements of the association contract for repairs, if the board has to vote on it and it's going to be discussed at a meeting, stick a copy of that to the notice.
That may be as simple as posting it on your website, but there's also a physical posting requirement. So we've had some conversations about exactly how a 100-page contract gets posted on your notice board or something like that. Our opinion is that you can probably post on your board saying a copy of the contract is available online, and so you may be able to get away with that. Again, this is a new law and we're not certain how that will be applied, but that's probably a valid avenue of avoiding to post multi 100 page contracts all over the association to meet that requirement.


Alan Tannenbaum, Esq.:
Let me ask you a question. As far as the topics that are outside the agenda, it's still permissible to on the agenda to have that topic, which is topics outside the normal agenda, have that last after all [inaudible 00:31:08].

James "Jim" Turffs, Esq.:
Yeah. So I had questions about that in the past too, about whether you can still place limits on a member's ability to speak and you can. And as part of that, the statute says you can still invoke reasonable rules regulating the length of time members can speak, et cetera, and that applies. And if your reasonable rules include the opportunity to speak only once, then you need to allow the membership a free form opportunity. That owner gets up, they have to be able to talk about agenda items and non agenda items all within their three, five minute, however long you've given them to speak. But if they can only speak once, they have to be able to do it all at once. If you don't have that one opportunity regulation, then you can divvy it up on your agenda and say, "We're going to talk about this, this, and that, and then at the end we're going to have X amount of time to discuss off agenda topics." So that's how I would approach that.

Jon Lemole, Esq.:
Jim, with the contracts part of this, is there any guidance in the legislature as to what constitutes the type of... I mean, is it any contract? And what I'm getting at is let's suppose you have to hire somebody to come in and fix some sprinkler heads on the landscaping, and so they present you with a proposal. Maybe it's a one-off thing, that would fall under this provision? So any kind of-

James "Jim" Turffs, Esq.:
So it's going to be any contract that may require a board vote. So a lot of declarations or governing documents are going to say for typical maintenance and repairs, maybe your board has the authority to act without a vote up to a certain dollar amount or certain routine maintenance. For example, I mean, I guess we can use sort of landscaping as a topic. If you're making a minor adjustment to landscaping, that's generally not considered a material alteration, so you don't need a big member vote, and it's at the discretion of the board to make day-to-day operational decisions about how landscaping is handled. So if you already have a contract in place and you're changing the scope of that work, you may not need to vote on it and therefore you wouldn't have to post it.
But by and large, this is I think, aimed at new contracts so that even though the membership doesn't have the opportunity to vote on that, they have the opportunity to see the contract that the board is contemplating and can address it at the board meeting before the board actually makes that vote and commits the association. So it's about open governance, it's about allowing the membership to see what the contract is beforehand, what they're getting sucked into, and at least have that open opportunity beforehand to go to the board and say, "This is a terrible contract, don't sign that."

Speaker 6:
Excuse me. Can you provide an example of what that would be? Because most of our stuff is normal, recurring. Where would be a contract that would be such of a scale that you think everyone needs to know?

James "Jim" Turffs, Esq.:
Sure. Well, general council contracts. If you're switching law firms and you're about to sign a new retainer agreement, that's something we advise our boards to vote on. And yes, that would be something that need to be posted for the membership. If you're about to do a new construction project, let's say you need to replace the roofs on seven different buildings, that's going to be a really big contract. And before that signed, your board's going to need to vote on it and the membership's going to have the opportunity to review that. So it's going to be anything that's, again, that requires a vote. So what in your association requires a vote is going to depend on your governing documents. There's some wiggle room in there, but as long as it's something that requires a board vote, it's going to have to be provided to the membership before it.

Speaker 6:
Thank you.

Jon Lemole, Esq.:
All right, folks, we have to keep trucking through. Unfortunately, we still have quite a bit of ground to cover. So we're going to switch gears here, talk about the new director education requirements for condominium directors.

James "Jim" Turffs, Esq.:
And this is a little more intensive than the HOA people get. So we have a bit more detail than the HOA statutes given us. For all new board directors of residential condominiums, you must have a four-hour DBPR approved education class and obtain a certificate stating that you've completed that. You still have to do the statement that was required under the previous version of the statute saying that a new director has read the governing documents and will enforce them. They still have to sign that, but now in addition, they also have to have this four-hour education class. It's going to talk about specific topics, and if you're taking a DBPR approved course, which has been approved by the Division of Business and Professional Responsibility, Division of Condominiums and Timeshares, if they've approved your course, it's going to cover those topics. So I'm not going to get into the details about what the class needs to cover, but you take a four-hour course. You can take that course before you become a director.
It is valid for one year. So if you're planning to run for the next election, you think you're going to win and you want to take your four-hour certification class within one year before you're elected or appointed, that's valid. If you didn't do that and you've now been elected or appointed and you don't have your certificate already, you have 90 days to get your education. It's my understanding that those classes are just now starting to be approved. So you'll start seeing those popping up here and there, and the statute became effective the first of this month, so you're already down to 60 days.
So I'm not sure if there's going to be any procedural leeway coming forward. We certainly hope so. The effect of failing to obtain that certification is that you're not a director until you get it. So you effectively just, if you don't have your certification after 90 days, you're no longer a director, go take your class, come back, and once you get it and you return your certificate to the secretary of the association, you're a director again. So that's the way that works. And again, there's also the deadline. Since the law became effective July 1st of this year, you're given some leeway. You have until June 30th, 2025. So I guess I need to trace that back a little bit. If you are already in place before the new law became in effect, you have a full year to take the class, but going forward, that won't be the case.
Your certification remains valid for seven years. So you've taken your four-hour certification class either within a year before you were elected or within 90 days after you've been elected. As long as you stay on that board of directors for seven years, you do not have to take that four hour class again. If you serve for three years, take a year off and come again, then within 90 days of your second election, you're going to have to take the four-hour class again. So it's good for seven years, but only if you're serving on the board consistently for that seven year period. And then after that, you're going to have an annual one-year education requirement.

James "Jim" Turffs, Esq.:
So that should be relatively easy. And again, you're going to be looking for DBPR approved courses. We offer things like that, law firms, companies, but as long as they're DBPR approved, you're getting what you need.

Jon Lemole, Esq.:
Okay, halting reserve collection during emergency.

James "Jim" Turffs, Esq.:
Yep. And this one sort of makes sense and is maybe one of the less controversial bills, though I think it's still going to be subject to some legal challenges if it's ever triggered. But if your local authorities, your local building department comes in and says, "Hey, this building has been destroyed by a hurricane or is otherwise uninhabitable," and that's the key word, uninhabitable, "and your members can no longer reside in that building, the association may upon approval of a vote of the membership, a majority of the membership, vote to suspend collecting reserves for that building until it is made habitable again."
So it's not a blanket waiver of assessments. People who live in a building that is uninhabitable still may have to pay their regular assessments, because that's an unfortunate fact of condominium living. But as far as the portion of their assessments, which goes to reserving for that uninhabitable building, they can either be exempt from that or getting a credit for it to the point where they're not paying to reserve a building that they can't live in. So it's sort of fair, makes a little bit of sense, might be hard to apply in practice, but at least provide some financial benefit to owners who have been expelled from their condo due to a natural disaster.

Jon Lemole, Esq.:
Okay, so Jim, just so we don't confuse people, we're not talking about when states of emergency or declared by the governor, we're talking something completely different, right?

James "Jim" Turffs, Esq.:
Yeah. I mean, it has to do with a natural emergency. This is a hurricane or a flood or some fires, something that was a natural emergency. This isn't an owner started a fire. This is specifically going to be some naturally related issue. It's a natural emergency.

Jon Lemole, Esq.:
All right, so we're going to talk briefly about notice to owners and to DBPR regarding your structural integrity reserve studies, for those of you who are in that regime of buildings three stories or higher and need to deal with those requirements, who's got that?

James "Jim" Turffs, Esq.:
So dealing with that within 45 days after getting your SIRS report back, you have to provide a copy or make a copy available to every unit owner. You can go door to door and hand out copies of your reserve study or you can post it on your website, provide notice to all of your members saying, "The SIRS has been made available. It's on the website, go check it out. But you've got 45 days to do that." Within that same 45-day period you also have to provide the DBPR with a statement saying that your reserve study has been done and that it has been distributed to everybody in your association. So that's quick and easy. You may not be happy with your SIRS, but that's compliance. That's what the DBPR is looking for. Another big one here, and I'm going to unfortunately try to rush through this, is dealing with hurricane protection.
Talked a little bit about it for the HOAs, a little different here for condos. All residential and mixed use associations are required to adopt code compliant protection standards. You have to adopt them. This is an affirmative act that every association has to do. It's not a particular time limit on it, but you do need to get some code compliant hurricane procedures generated for your association. The installation, maintenance, repair, replacement, and operation of hurricane protection per 718, subsection 113 is not considered a material alteration for the purposes of your declaration. So if your board has the responsibility to install hurricane protection, they can make that decision without getting your super majority vote of the membership approving this palpable visual change to your association like you would if this were tearing out a dock and rebuilding it or tearing down a gazebo and putting in a pool, hurricane protections exempt from that super majority vote. It's within the discretion of the board.
In addition to deciding to install hurricane protection, association boards can also, with the approval of a majority of the unit owners, require that unit owners install hurricane protection themselves. So there's a balance, and that's assuming your declaration doesn't already allocate that responsibility. If your declaration already provides that members are responsible for this portion of hurricane protection, the association's responsible for this, you don't have to have that vote. But if you want to shift that responsibility, it requires majority vote of the membership. You need to have a certificate of that vote. It needs to be recorded in the official records of the county where you reside in order to make that official and to redistribute hurricane protection installation responsibility, but it can be shifted. There's no hard and fast rule about who's responsible for installation of what, it can be decided.
No unit owner vote, like I said, is required if it's already in your declaration and you want to rely on those provisions. So if your declaration already says the association's putting up hurricane shutters, owners have to put up ballistic glass, you have your division and you don't have to change that, but you can. If there's already hurricane protection installed that complies with or exceeds the current building codes, the association cannot, at the owner's expense, replace that with the same or similar project until the current hurricane protection has already met the end of its useful life. So you can't go out and replace perfectly good hurricane protection just because it looks better, it's nicer, at least at the owner's expense. And so you need to wait until it's no longer effective. Once your hurricane protection's outdated or isn't up to code, then it's time to replace it and then members can be charged for it.
A board may not refuse a unit owner's request to install or replace hurricane protection, which conforms to board specific specifications, but it may require the unit owner to adhere to an existing unified building scheme of external appearance. So owners have a little bit of discretion about what that hurricane protection is going to look like if it's their responsibility to install it. But you're still going to want to go through your association's architectural review process so that they can make sure it still fits with the general scheme of the building, how that's going to apply in real life. We don't know yet. It's somewhat of broad language, but that's where the statute has gone.
To the extent an association has to go in, remove existing hurricane protection to do some work on behalf of the association and then reinstall that, they can no longer charge unit owners for the take-down and reinstallation of that existing hurricane protection. So I'm taking down your shutters because I've got to replace your windows at the association's expense. The association gets to put it back up at the association's cost, not the unit owners. That's good enough. When the removal of that hurricane protection is the responsibility of the unit owner, and let's see, that's actually what I just did.
When the removal or reinstallation of hurricane protection is the responsibility of the unit owner, you've either had a vote or your declaration says the unit owner has to take care of that, and the association replaces that hurricane protection on behalf of the owner. They can then charge the unit owner specifically for that as an assessment. So unit owner has the responsibility to put up their shutters. The association says the shutters are beyond their useful life. We're going to take it down, put up new ones. That can become an assessment against the unit owner for that.
Unit owners with previously installed hurricane protection that already complies with applicable building codes are excused from any assessment levied by the association or will get a credit for that type of assessment if the same type of hurricane protection is installed by the association. So I've already got my shutters up, the association has the responsibility now either under the declaration or vote to put up hurricane shutters and mine comply, they're already good, I don't have to pay my share of everybody else's installation. I either get a credit for it or I'm exempt from that special assessment. I think Alan wants to talk about the statute of repose. I'll just skip over that and let Alan deal with that once I'm done here, because I just have a few more footnote laws.

James "Jim" Turffs, Esq.:
And so now one of the things that's been tripping up a lot of boards is that now at least 90 days prior to an election, if an owner has had their voting rights suspended because they haven't paid their assessments, at least 90 days before that election the board has to make the owner aware of that and give them an opportunity to pay and reestablish their voting rights. So gone are the days of waiting to the day of an election when a trouble owner shows up and goes, "I want to vote," and you get to go, "Sorry, you're not current, your voting rights suspended. Go home." You have to give them three months beforehand to know that they're behind, make the decision that they want to get current and then come back and have the opportunity to vote if that's what they want to do.
[inaudible 00:47:08]. And then just as a general footnote, people have been questioning the DBPR's enforcement ability per the new statutes. DBPR's funding has been expanded. They've been given money to hire new people basically to expand their investigative and enforcement powers. The DBPR won't be able to arrest anybody or issue warrants, but they can come in, they can investigate. They will have people theoretically who can come to associations and take a look at hurricane protection or any other compliance issue and at least refer it to the proper agencies or enforcement authorities when it comes to that. Sometimes that may be the DBPR if they have an enforcement ability, if it's code compliance, they might refer you to zoning code enforcement within your municipality, but they're getting more money and technically they have more expansive investigatory rights under the new statutes.

Jon Lemole, Esq.:
We're going onto statute of repose.

Alan Tannenbaum, Esq.:
Yeah. Before we get off hurricane protection, I think there's two lessons. Number one, there may be a need to amend your documents in order to provide the clarity necessary as an overlay of the statutory requirements. So talk to your general counsel about what your documents currently say about hurricane protection shutters and so forth. The second part of it is obviously before you enter into that type of project or require anything of the owners, you should go see your general counsel about how to apply a very convoluted statute. All right, statute of repose, by way of definition, statute of repose sets an outside date that you have to pursue a latent construction defect.
Years ago, it was 15 years, so if it was a latent construction defect, you had 15 years to file suit before you were blocked. That changed to 12, that changed to 10. Last year the legislature changed it to seven, seven years for a latent construction defect. If it's more than seven years after the defect was created, you were basically out of luck. And there was some objections raised, especially as the condominiums, what happens when a developer of a condominium project delays turnover past seven years after a building was completed and it has latent construction defects in it? And the legislature and the one gift they gave to condominium associations last session has now adopted a statute that says that the statute of repose for a condominium association does not begin to run until turnover.
So that means that condominium associations for latent defects now have seven years at least beyond turnover in order to pursue a construction defect claim. So that was a gift. They did not change that statute repose requirement for homeowners associations unfortunately. But for condos, that was an important extension against a deadline for pursuing latent construction defects. And I think at this point, are we prepared to take some questions, Jon?

Jon Lemole, Esq.:
Well, we have a little bit of time so we can, I know that we've been busy on the chat at trying to answer some questions and we've got well over 100 questions. So I haven't been monitoring it as closely as maybe Cindy, Jennifer, and Jim have, because I've been running the slideshow. So if you guys see anything that you want to address in the questions, take it away.

Cindy Hill, Esq.:
There have definitely been a lot of questions, but I'm still flipping through them right now.

Alan Tannenbaum, Esq.:
I'll give you one. There was a question from Jackie Grant that Jim answered, the condo requirement of having at least a meeting once a quarter and whether you still required to allow the comments and questions at the end of the meeting. I mean, does that owner right to speak on agenda or non agenda items apply to every board meeting?

James "Jim" Turffs, Esq.:
So there's a subtle difference there. The new statute says that at least four meetings out of the year, the members have a right to ask questions of the board. Again, there's no statutory obligation to answer those questions, but the owners have the right to ask. Separately from that, at every meeting, members have the right to talk about not only agenda topics, but any operational concern of the associations then go off agenda. So there's a little bit of a difference between the asking questions and being able to speak about anything. So I mean, it's a subtle distinction, but the questions only have to be allowed four times a year. Obviously, a board could elect to entertain questions at every meeting if that's what they wanted to do, but only required to do it four times a year. And then members can always talk about anything now, as long as it relates to the operation of the association. Member comes in and says, "Hey, this board director's a jerk," you can probably tell them to sit down.

Jon Lemole, Esq.:
There was a question, I think Jim answered it on the chat, but it bears probably repeating here. So question was, how does all of this get enforced? Who enforces all of these new regulations and if they're not being complied with by the HOA? This is a reminder to everybody that, and this really applies to both sides, the association side and the owner's side. Both the condo and the HOA statute provide statutory authority for owners, such as lot owners or unit owners, to bring claims against the association in circuit court if the association is not complying with either the applicable statutes or its governing documents.
So a lot of this, to the extent it may not be enforced by, let's say DBPR, this is subject to the enforcement right of your members through litigation. And if they prevail, and we talked about this I think at our last meeting last month, if they prevail, they would have the right to recover any attorney's fees that they expended in bringing that lawsuit. So really your enforcement threat is the threat of litigation from your members if the association is not complying with these provisions. So that underscores how important this is because that can be quite expensive for an association that finds itself in a lawsuit and vice versa.

Cindy Hill, Esq.:
Jon, very good point. I was going to add that there's been a lot of questions about the website compliance along the lines of can association have their website with their management, or do they now need their own website? And I want to go ahead and say what you need is a website that's compliant with the statutory requirements. So if your management company's website complies with the statutory requirements, you don't have an obligation necessarily to go get your own website as a community. At the same time, since this legislation is really leaning toward obligating, both homeowner associations and condominiums to make their information available on websites, you might want to consider having your own website so that if you do decide to change management at some point, you don't necessarily have issues. And I saw lots of questions on that, so I wanted to jump in and address that.

Jon Lemole, Esq.:
Okay. One thing we didn't address on today's agenda, but I see it pop up in the chat, this is not a Florida law, but this is a federal law. It's the Federal Corporate Transparency Act. And as Jim answered in the chat, right now, at least that is pursuant to the language of that statute applicable to homeowner associations and condo associations, there is a strong effort being led to change that to exclude community associations. But that's another statute that you all need to be aware of as coming into play this year with regard to additional reporting requirements that'll be required by that federal legislation.

Speaker 6:
Is there any statute out there that says the board should be compensated? I am just struck by the fact that our regulators and our political folks set up a structure that's become more and more complex. I'm very comfortable with our board. We have a number of professionals, but before that board was in the past, we just had volunteers. I mean, these are people trying to do the best they can. And when I hear this stuff, all I hear is stuff that's going to set us up for lawsuits, set us up for our insurance companies to deny coverage for DNA. I mean, it just exposes us.
Do you know of any sort of group or lobby that we can get our voices heard so that somehow we can find some balance? SIRS, the requirements, websites? I feel like I'm running a company again and I'm a volunteer, so I don't know how any of you would want to address it from a legal perspective. It's obviously something that is a boon for anyone who wants to start to sue us. I thought DeSantis was trying to avoid that with the insurance legislation he passed. But I'm just struck by this. It just every year more and more, and I don't see... We're volunteers. Anyone want to respond to that?

Alan Tannenbaum, Esq.:
I'll respond. And really to look at the origins of it, number one, a condominium building obviously collapsed in South Florida with over 100 people killed. And that was the origin of a much more intensive requirement for structural inspections and reserve requirements put a tremendous burden on condominium associations. So that was a result of a disaster. At the same time also in South Florida, but it happened elsewhere around the state, there were instances where directors and managers breached their fiduciary duty, stole from associations, had sweetheart contracts, and there was all of this protective legislation that gave owners now the right to see documentation, contracts in advance and so forth.
So it was fairly extraordinary circumstances that occurred in isolated cases that drove legislation that now impacts the entirety of the state. And then I think the third element was really giving owners rights to avoid restrictions and so forth. And a lot of those emanated, frankly, from the fact that a particular legislature had a friend or themselves were upset that their condo or HOA was enforcing a restriction against them. So they proposed and got legislation passed. So unfortunately, and there is a very strong homeowner association lobby and condo association lobby, but didn't seem to have the ear of the legislators as far as protecting boards and understanding the fact that it's going to make it very difficult to get people to volunteer to be a board member under these circumstances. But there is organized activity to get that communicated. It just doesn't have seemed to gotten through to the legislature very well, unfortunately.

Cindy Hill, Esq.:
I'll add to that, that what the legislature got an earful from obviously this last session, were people who had extreme circumstances where they felt they were bullied by HOAs, where they felt that they weren't being listened to. I know the legislature got an earful of what I consider the kind of fringe stories, because most folks live in an HOA or a condo and go out their day in and day out business, and they don't have these issues that the legislature is trying to correct. So there's definitely an overcorrection here and there is a concern, at least from the community association council standpoint, and probably the management companies are seeing it too, that people will live the boards because of this. So I recommend reaching out to your local legislator and saying, "This is too much. What are you guys doing to us? You listen to the people who were in extreme circumstances. You're not listening to those of us who are day in, day out."

Jon Lemole, Esq.:
All right, folks. Well, it's 12:05, so I think we're going to wrap up. I know just the nature of today's topic doesn't leave much time for the hundreds of questions that are coming through. But as I said, keep checking your email. We'll be sending out invitations to take some deeper dive into these new statutes, both for the HOA provisions and the condo provisions, and when we get into them in more detail, hopefully we can get a little bit deeper into particular questions.
In the meantime, as we said, if you want a copy of the PowerPoint, you can email Michelle Colburn. Her email is at the bottom of the screen there, so take the phone out. I'll leave it up here for a second. You can take a photograph. A video of the presentation and a transcript will be available on our website, www.tlhlegal.com, give it about a week, but you'll be able to go on our website in about a week under resources and find a video of today's presentation as well as a transcript of it. Obviously, you're always free to email us questions. We're happy to take questions. And so if you want to do that, if you've got something particularly pressing, please reach out to us. And with that, we hope everybody has a good month, and we'll see you next month. So thank you for joining us.