House Bill 1203 approved by the Florida Legislature and signed by the Governor of Florida is a mixed bag of 44 pages of new laws affecting Homeowners Associations that will become effective on 7/1/24.

House Bill 1203 is a large and wordy bill covering numerous topics concerning the governance and operation of Homeowners Associations (not Condos- they got House Bill 1021 which was reviewed a few weeks ago). This review is not to go over every change made by the Bill but rather to highlight the changes in no particular order that can be of more importance to most Homeowners Associations. Again, a few overzealous folks in a few isolated HOA’s with some bad actors in their community apparently persuaded their State Legislatures to blindly sponsor and run this bill through the Legislature so that all the well run HOA’s in the State get to suffer from the one off wrongdoings.

OFFICER, DIRECTOR MANAGER CRIMINAL PENAL TIES:

Any Office, Director or Manager who solicits, offers to accept or accepts anything or service of value from any persons providing or proposing to provide goods or services to the Association, or a kickback, without paying consideration for it, commits a third­ degree felony and shall be deemed to be removed from office (excepted is small gifts associated with a trade show or educational program).

Any Office, Director or Manager who knowingly, wilfully and repeatedly violates any of the statutory requirements to provide access to inspect and obtain copies of Association records to a unit owner or an owner’s authorized representative, with an intent to cause harm to an owner, commits a second-degree misdemeanor and shall be deemed removed from office. Repeatedly is defined as two or more violations within a 12 month period.

Any person who knowingly and intentionally defaces or destroys accounting records that are required by this chapter to be maintained during the period for which such records are required to be maintained, or who knowingly or intentionally defaces or destroys accounting records that are required to be maintained during the period required to be maintained, or who intentionally fails to create or maintain accounting records that are required to be created or maintained, with the intent of causing harm to the association or one or more of its members commits a first-degree misdemeanor.

Any person who will fully and knowingly refuses to release or otherwise produce association records, with the intent to avoid or escape detection, arrest, trial, or punishment for the commission of a crime, or to assist another person with such avoidance or escape commits a felony of the third-degree.
Use of an Association debit card for an expense that has not been properly pre­-approved by the Board and reflected in the written minutes or the written budget, even if otherwise a valid Association expense is the commission of theft under Florida Statutes. Depending upon the amount of the theft, it will be punished as a first, second or third degree felony or misdemeanor.

Numerous acts involving Association elections are each a first-degree misdemeanor. Including making a wilfully false affidavit; fraudulently seeking to change a ballot, ballot enveloper, vote or voting certificate; using force or violence or any “tactic of coercion or intimidation: or bribery, menace, threat, or “any other corruption” to try to influence a group of unit owner’s vote; seeking to corruptly influence a vote by giving or promising “anything of value” to someone, other than a wearable campaigning advertisement of nominal value or food at an election rally or aiding an election fraud offender to avoid consequences.

In addition to the present actions providing grounds for an Officer or Director being deemed removed from office (including being charged or indicted for felony theft or embezzlement of Association funds or property), the removal grounds include the above new crimes listed above, as well as forgery of a ballot envelope or voting certificate used in an election and failure to timely provide a unit owner with access to an Association record to inspect or obtain a copy, or the destruction of an Association record which is accessible to unit owners. Repeat violations are not required for not providing the records access.

While a criminal charge is pending, the person is prohibited from serving as a Director or Officer, or having access to official records of any Condominium Association except by a court order.

MANDATORY MANAGEMENT DUTIES:

A Manager or Management Company for an HOA must now attend in person at least one membership or Board Meeting of an Association annually and must provide to the members of the HOA (which the HOA must also post on its website) the name and contact information for each manager or management company representative assigned to the HOA, such persons’ hours of availability and a summary of the duties for which each such person is responsible (this info must be updated within 14 business days of any change).

MANAGER CONTINUING EDUCATION:

Of the 10 hours of continuing education requirement for CAM’s, 5 hours must now pertain specifically to HOA’s and 3 of such hours must be related to record keeping.

ASSOCIATION RECORDS:

HOA’s of 100 or more parcels must post a long list of its records on its website or make them available through a mobile device app. That includes timely notice of membership and Board meetings, with agendas. The posted notices of membership meetings must also include any item to be voted on at the meeting. The notices of Board meetings must include any document required for the meeting (such as proposed contracts to be voted on).

The HOA’s website and any app must include a section accessible to owners and employees only by a user name and password. The law does not state what must be included in the protected portion of the website other than that the protected section must contain the official documents of the association.
The Association cannot post confidential and inaccessible to owners’ access information on the website or app.

The Association must adopt written rules which govern the method or policy for retaining its records, including the retention time periods, which rules must be made available to parcel owners through the website or app.

If the Association receives a subpoena for records from a law enforcement agency, the association must provide a copy of such records or otherwise make the records available for inspection and copying within 5 business days after receipt of the subpoena. The Association must assist a law enforcement agency in its investigation to the extent permissible by law.

ANNUAL FINANCIAL REPORTING:

Unit owners may only vote to reduce the level of annual financial reporting every other year now.

DEBIT CARDS:

An Association and its officers, directors, employees, and agents may not use a debit card issued in the name of the Association, or billed directly to the Association, for the payment of any Association expense. Credit cards are stilled allowed.

OWNERS REQUEST FOR ACCOUNTING OF SUMS DUE:

A parcel owner may make a written request to the board for a detailed accounting of any amounts he or she owes to the association related to the parcel, and the board shall provide such information within 15 business days after receipt of the written request. After a parcel owner makes such written request to the Board he or she may not request another detailed accounting for at least 90 days.

Failure by the Board to respond within 15 business days to such a written request for a parcel accounting constitutes a complete waiver of any outstanding fines of the person who requested such accounting which are more than 30 days past due for which the association has not given prior written notice of imposition of the fines. The waiver of fines applies only to fines and not apply to assessments or other sums due to the Association.

ELECTRONIC VOTING:

It has been clarified that a unit owner may consent to participate in electronic voting “electronically” rather than only “in writing”.

ARCHITECTURAL REVIEW:

A notice of denial by an Association to an owner “for the construction of a structure or other improvement on a parcel must include specification of the rule or covenant relied upon by the Association and the specific aspect of the improvement which does not conform to that covenant or rule.

PROHIBITED RESTRICTIONS:

The Association can only restrict such things as artificial turf, boats, flags, recreational vehicles, vegetable gardens or clotheslines from being located or installed on a unit parcel if they would be visible from the parcel’s frontage, an adjacent parcel, common area or community golf course.
The Association may not restrict pickup trucks in the owner’s driveway or elsewhere that the owner or tenant, guest or invitee has a right to park under state, county, or city regulation.

The Association may not restrict the parking of a work vehicle of the owner or tenant, guest or invitee, regardless of official insignia or visible designation, in the owner’s driveway. Excepted work vehicles the Association can still restrict are non-governmental vehicles weighing more than 26,001 pounds or has three or more axles. Excepted from the large vehicle exception which the Association must also allow is “race care transports” (obvious constituent or lobbyist special cave out).

In addition to Associations not being able to restrict parking of law enforcement vehicles, now it cannot also restrict vehicles used by firefighters, . EMT’s, and paramedics (first responder vehicles).

Associations cannot restrict an owner from using a contractor or worker solely because the contractor or worker is not on the Association’s preferred vendor list.
Associations can no longer levy a fine or suspension of use of common area use rights for leaving garbage receptacles at the curb or end of the driveway within 24 hours before or after the designated garbage collection day or time.

Associations can no longer levy a fine or suspension of use of common area use rights for leaving holiday decorations or light on a structure or other improvement on a parcel longer than indicated in the governing documents, unless such decorations or lights are left up for longer than 1 week after the association provides written notice of the violation to the parcel owner.

ENFORCEMENT FINES AND SUSPENSIONS:

The 14 day minimum notice to an owner of an intent to impose an enforcement fine or suspension of common area use rights must be in writing and must now include a statement of the right to a hearing, date and location of the hearing and a description of the violation and action required to cure it.
The hearing before a fining or suspension committee must now be held within 90 days of the issuance of that notice.

The fining or suspension committee may hold the hearing by telephone or other electronic means (Zoom) and if so the notice of the hearing must state so.
If the owner cures the violation before the hearing, a fine or suspension shall not be imposed.

After a hearing, the notice of fine or suspension levied must state how the owner may cure the violation, how the suspension may be fulfilled and when the fine must be paid {not sooner than 30 days). This notice must be provided to the owner not later than 7 days after the hearing.

If the violation is cured after the post notice hearing, then the fine or suspension may not be imposed. So the post hearing notice should probably state a deadline to cure the violation (such as 30 days) in order to negate the fine or suspension.

Attorney’s fees and costs incurred after the deadline to cure or pay the fine in the post hearing notice may be awarded to the Association, but not those incurred prior to that date. This would assume court action would be needed to collect the fine or enforce a suspension where the court could award prevailing party attorney’s fees.

MANDATORY DIRECTOR EDUCATION:

Previously, a new Director could choose between attending a Director Education class or sign a certificate that the Director has read the condominium documents. Now both are required for new and existing Directors by June 30, 2025. New Directors will have 90 days from the election or appointment. The education requirement is valid for 4 years from the date of the certificate and must be repeated for any Board service after that. Directors of Associations must complete at least 4 hours of continuing education annually.

During the early Covid times many Associations moved their board and members meetings to Zoom or to Telephone Conference under emergency powers granted by the Governor and the Legislature to Condominium and Homeowners Associations.

For Condominium Associations, Section 718.1265(1)(a), Florida Statues and for Homeowner’s Associations, Section 720.316(1)(a), Florida Statutes state that if a State of Emergency has been called in the area encompassed by the association, the board of directors may “Conduct board meetings, committee meetings, elections, or membership meeting, in whole or in part by telephone, real-time videoconferencing, or similar real-time electronic or video communication . . .” (emphasis added)

During the Covid State of Emergency, many Florida Condominium and Homeowners’ Associations got used to having their meetings purely on Zoom or Teleconference with no physical location stated our used for the meetings.

A lot of Associations liked these totally electronic meetings, especially in the off Season when many owners were out of town, and want to continue to do have them this way.

Now that the Covid State of Emergency rules and regulations have been lifted, we recommend that in addition to notice of the Zoom meeting sign-in or Teleconference call in number, a physical location of all Association meetings should also be stated and used to conform with the spirit of the law and to accommodate those who may not be computer savvy or have a handicap.

Section 617.0820(1), Florida Statutes provides that “the board of directors may hold regular or special meetings in or out of this state” wherever the board finds it prudent.  The place may include the offices of the association’s attorney, accountant, manage or other location deemed appropriate by the board.

It does not appear that a Zoom meeting or Teleconference meeting is being held at any “place”.  Place is described in the dictionary as “a physical environment”.  Physical is defined as “having material existence.” So, an “electronic environment” of Zoom or Teleconference does not appear to be the same as a physical environment or place.

Once you have named a physical location for a meeting, Section 617.0820(4), Florida Statutes provides that unless prohibited by the articles of incorporation or bylaws, the board of directors may permit any or all directors to participate in a meeting by means of telecommunication, such as by conference call so long as all directors may simultaneously hear each other during the meeting. Those participating in a board meeting in this manner is considered to be present at the meeting.”

Now the physical location of the meeting does not need to be onsite or even in the County or Country where the property is located.  However, it probably should be near the community to accommodate in house owners.

For the annual meeting of members in Condominiums, Section 718.11292)(d)1., Florida Statutes provides that: “Annual meeting of the unit owners must be held at a location provided for in the association bylaws and, if the bylaws are silent as to the location, the meeting must be held within 45 miles of the condominium property.”

Although it is fine to still have your Zoom or Teleconference Association meetings, remember to also designate a physical place for the meeting such as the board room, social room, pool house, club house, or manager’s office for most meetings of the members and the board.

Last month we looked at the requirements for Mandatory Milestone Structural Inspections for condominium and cooperative buildings that are three (3) stories or more in height before 12/31/24 under Florida Senate Bill 4-D approved in a special session of the Florida Legislature this year in response to the Surfside hi-rise collapse in Miami last year.

Today, we will look at three other major requirements of Senate Bill 4-D.  Requirements for Structural Integrity Reserve Studies, removal of membership’s ability to waiver reserves and the Division of Condominiums, Timeshares and Mobile Homes’ jurisdiction to hear complaints about these building inspections and reserve studies.

For condominium and cooperative buildings three (3) stories or more high, for associations existing on or before July 1, 2022 and before a developer can turnover an association to its members, a Structural Integrity Reserve Study must be completed before December 31, 2024.

The Structural Integrity Reserve Study shall include a study, at a minimum, of the roof, load-bearing walls, floor, foundation, fire protection systems, plumbing, electrical systems, waterproofing, exterior painting, windows and any other items that have a deferred maintenance expense or replacement cost exceed $10,000.

The Study must be performed by a qualified person and the visual inspection portion must be performed by a licensed architect or engineer.  The Study must identify common areas inspected, the estimated remaining useful life, and the estimated replacement cost or deferred maintenance expense of the area inspected, and provide a recommended annual reserve amount that achieves the estimated replacement cost or deferred maintenance expense by the end of the estimated useful life of the area inspected.

If an association fails to complete a Structural Integrity, as required, such failure will be considered a breach of an officers’ or directors’ fiduciary duty to unit owners.

Effective 12/31/24, the members of a unit owner controlled association may not determine to provide no reserves or less reserves than required by the Structural Integrity Reserve Study.

In addition, an association may not vote to use reserve funds identified in the Structural Integrity Reserve Study, or any interest accruing thereon, for any other purposes other than for the reserves’ intended purposes as identified in the Study.

On or before 1/1/23, a condominium or cooperative must provide the Division of Condominiums, Timeshares and Mobile Homes (Division), on a form provided for on the Division’s website, the number of buildings on the property that are three (3) stories or higher, the total number of units in all such buildings, the addresses of all such buildings and the counties in which such buildings are located. The Division has jurisdiction to receive complaints related to the Mandatory Milestone Structural Inspections and the Structural Integrity Reserve Studies.

Many believe these new laws of Bill 4-D will be heavily tweaked in the 2023 regular legislative session to lessen the heavy burdens these laws place on Florida Condominium owners who cannot afford such large reserve requirements in order to prevent large numbers of foreclosures and condominium terminations that could result if these laws are left as is.

Many older, or Developer drafted, community governing documents have weak or lack any nuisance provisions.  This prevents many Condominium and Homeowners’ Associations from being able to legally go after obnoxious residents for their bad behavior.

 We are seeing many more people escaping from lock downs up north this Season to enjoy our Florida sunshine and Florida freedom. Many of these coming are not owners of condominium units or homes here but are rather renters or guests of owners.

Many of these short term visitors do not have the same respect for their neighbors and the property that most owners do as they are not invested in the community.  As a result, some display bad behavior such as yelling and cursing at other residents, playing music loudly, or leaving personal property such as beach chairs or bikes all over the common areas.

Without good nuisance language in your Declaration of Condominium or Declaration of Covenants, it can be difficult or not impossible to legally get these offenders in line.

Here is an example of what we consider good “enforceable” nuisance language:  No owner shall use his unit or the common elements or permit his unit or the common elements to be used, in any manner which constitutes or causes an unreasonable amount of annoyance or nuisance to the occupant of another unit, or which would not be consistent with the maintenance of the highest standards for a first class residential condominium, nor permit the premises to be used in a disorderly or unlawful way.  The use of each unit and the common elements shall be consistent with existing laws and the condominium documents, and occupants shall at all times conduct themselves in a peaceful and orderly manner.  No, owner, tenant or guest may disturb any other owner or resident with the use of profane, obscene, threatening or abusive comments either orally or in writing or by their conduct on the property that is abusive or threatening.

With this type language, an Association can send violation letters to the nuisance offender and if they don’t start acting civil and quit annoying other residents after notice, the Association can then bring legal action against them.  It can first request pre-suit mediation or arbitration and if that does not work, then sue the offender in local court requesting the court order an injunction against the offender requiring them to quit being a nuisance in the community. The Association can also request that the court award prevailing party attorney’s fees to it.  That means if the Association prevails, the offender may have to pay the Association’s attorney’s fees in addition to any of his or hers own attorney’s fees.

If the offender continues to create a nuisance or starts new nuisances after the injunction order, then the court could find the person in contempt of court.  In that case, the court would usually order the offender to pay a fine.  If that does not stop the violations, the court could ultimately send the offender to jail as a penalty.

  The bad acting visitors need to understand that such bad behavior will not be tolerated in your community.  Sometimes an example needs to be made to prevent such behavior in other visitors from happening.  The bad actors behavior can get very costly for them.

You should check you governing documents sometime to make sure you have nuisance provisions that can be enforced.  If not, you should seriously consider amending the documents so that you can stop bad resident behaviors.  Otherwise, these types may yell freedom of speech, thumb their nose at you, and continue to wreak havoc around your community.