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New 2011 condominium association laws
by: Rob Samouce
A clean-up bill passed the 2011 legislative session in Tallahassee affecting condominium, cooperative and homeowners’ associations. House Bill 1195 provides the following noted changes to Chapter 718, Florida Statutes affecting condominium associations.

In my August column, we will review some of the new changes in House Bill 1195 that affect homeowners’ associations. These changes are reviewed in the order presented in the bill and not by order of importance to any particular association.

Not noted below are numerous places in the bill wherein minor “clean up” wording changes were made throughout the existing statute to clarify existing law. These new laws became effective July 1, 2011.

- Employee Personnel Records: Two types of association personnel records that are no longer unavailable to association members are written employment agreements with an association employee or management company and budgetary or financial records that indicate the compensation paid to an association employee

- Member Information in Association Records Available to Other Members: Last year a laundry list of membership information contained in the official association records were required to be kept unavailable to the membership to protect the privacy rights of the members. This made it difficult for association’s to publish membership directors, which many associations like to do.

To alleviate this problem, the law now provides that the owner may consent in writing to the disclosure of the protected information (“Social Security numbers, driver’s license numbers, credit card numbers, email addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfil the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, email address, or facsimile number provided to the association to fulfill the association’s notice requirements).

In addition, the association is not liable for the inadvertent disclosure of information that is protected under the laundry list if the information is included in an official record of the association and is voluntarily provided by an owner and not requested by the association.

- Executive Sessions OK for Board Meetings Discussing Personnel Matters: The only board meetings closed to the membership (executive sessions) permitted in condominium associations before were those with the association’s attorney, with respect to proposed or pending litigation when the meeting is held for the purpose of seeking or rendering legal advice. Now, like homeowners’ associations, closed executive sessions are also allowed for board meetings held for the purpose of discussing personnel matters.

- Less Candidates than Board Positions Expiring: It has been clarified that if less candidates run for the board than expiring seats at the annual meeting, the candidates become members of the board effective upon the adjournment of the annual meeting and 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 the directors constitute less than a quorum or there is only one director.

- New Director Certification: Last year the law changed to say that new directors had to within 90 days of becoming a director file with the secretary of the association a written certification that “he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and polices to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association members” or submit a certificate of satisfactory completion of an education curriculum course administered by a division-approved condominium education provider.

Now, additional language says a new director could have taken the curriculum course up to one year before being elected or appointed. The written certification of educational certificate is valid and does not have to be resubmitted as long as the director serves on the board without interruption.

- Recreational Facilities: A membership vote is required (either a majority or what is provided in the Declaration of Condominium) for an association to enter into agreements to acquire leaseholds, memberships, and other possessory or use interests in lands or facilities such as country clubs, golf courses, marinas, and other recreational facilities at anytime 12 months after the recording of the declaration.

- Rental Payments to Association when Owner Delinquent: It has been clarified that when an owner is delinquent in monetary obligations to the association, after proper notice has been provided to the tenant and the owner, all subsequent rental payments must be paid directly to the association until all monetary obligations of the unit owner have been paid in full to the association.

- Suspension of Use Rights for Violation of Rules and Regulations: In addition to the ability to fine rule violators $100 per violation, per day up to $1,000 in the aggregate after the opportunity for a notice and a hearing, an association can now (after the opportunity for a notice and a hearing) “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 provision of the declaration, the association bylaws, or reasonable rules of the association.”

The association can continue to suspend the use rights if the owner is more than 90 days delinquent in paying any monetary obligation due to the association, and no notice or hearing is required for the failure to pay suspension, but the suspension must be approved at a properly noticed board meeting and then the association must notify the violator by mail or hand delivery.

- Suspension of Voting Rights for Non-payment: In addition to suspension of use rights for non-payment, an association can also suspend the voting rights of a unit or member due to non-payment to the association of any monetary obligation that is more than 90 days delinquent after approval at a properly noticed board meeting and then notification to the violator by mail or hand delivery.

If the vote has been properly suspended, the unit vote 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 under (Chapter 718) or pursuant to the declaration, articles of incorporation or bylaws.
Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners' associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.