From Naples News.com — Posted June 16, 2013
Q. I am on the board of my condominium association. We want to be doing everything we can to be in compliance with Florida laws. I have heard that there will soon be new laws in Florida that will affect my condominium association. What are the new laws that we need to be aware of?
A. You are correct that there will soon be many new laws governing condo associations in Florida. In our opinion, there are many positive changes this year. A summary of the more interesting statutory amendments affecting condominium associations follows below. The full text of each statute is available on the legislative websites (www.flsenate.gov; www.myfloridahouse.com; and www.leg.state.fl.us.). Unless otherwise noted, all bills, if signed into law, will become effective on July 1, 2013. There are also new laws affecting homeowners associations and co-op communities, which we will address in next week’s column.
Florida Statute 718.111 (11) (j). This statute clarifies that the association is responsible to insure against property damage only when there is an “insurable event.” This means that if the event is not considered a covered casualty claim by the insurance carrier, the governing documents will control who is responsible to make and pay for the repairs. This is an important change because we find that many board members and property managers assume that the condo association is responsible every time there is a casualty causing damage to condo property, such as a fire or water leak. However, not all casualty events will be covered by the association’s carrier. If the damage is not covered, then the condominium documents will dictate whether the association or the unit owner is responsible.
Florida Statute 718.112(2) (d) 2. The statute will now allow directors to serve non-staggered two-year terms. It also removes the requirement that owners must vote to confirm two-year terms even if they are already provided for in the governing documents. This is a good change because not every association wants staggered terms but they may want terms that are longer than one year. Further, the redundancy of a member vote is removed if the condo documents provide for two-year terms.
Florida Statute 718.112(2) (d) 2. This statute now provides that a candidate for the board who is delinquent in the payment of “any monetary obligation” is ineligible for the board, as opposed to the former standard of delinquency in the payment of a “fee, fine or special or regular assessment.” Further, the new statute removes the requirement that the delinquency be more than 90 days. Candidates for the board still must submit their notice of candidacy at least 40 days before the election. At this point, if they owe any money at all to the association, they are ineligible for the election. Note, however, the existing provision which still provides that if an elected director becomes more than 90 days delinquent, he or she is then automatically removed from the board.
Florida Statute 718.112(2) (d) 4c. This law now provides that a challenge to the election process must be commenced within 60 days after the election results are announced. This is a very positive change. Under current law, those upset about not being elected arguably have until the next annual election to request copies of the ballots and voting tabulations to challenge the election. Now, there will be a 60-day window following the election to challenge the election results. This will allow the new board members and the property manager to breathe a sigh of relief after the 60 days.
Florida Statute 718.303(a) (3). This law clarifies that the association cannot suspend an owner’s right to a limited common element solely used by the owner, common elements necessary to access the unit, utility services, parking spaces or elevators. This change is the result of condo associations attempting to block an owner’s access to his private parking space, elevator or storage locker. Others have attempted to cut off electric, water and cable TV if an owner is delinquent or violating the community rules. This new statute confirms that a condo association cannot block access to the community or suspend the owner’s right to park and access his unit, nor can the association terminate utility services to the unit. The association can continue, however, to suspend the owner’s rights to use common facilities such as the clubhouse, pool, fitness center, tennis courts and other similar amenities. The association can also suspend the rights of an owner, and his guests and tenants, to use a member’s only entrance gate.
If your board has any questions about these new laws and how they will impact your condo association, you should contact your association’s legal counsel. In the upcoming months, our attorneys will also be hosting an event to discuss these new laws, which will be open to the public.
Editor’s note: Attorneys at Goede, Adamczyk & DeBoest, PLLC respond to questions about Florida community association law. With offices in Naples, Fort Myers and Miami, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.