Labor Day has come and gone, several tropical systems are swirling in the Atlantic (you may recall that all of Florida was in panic mode awaiting Irma this time last year) and our snowbirds will be returning before we know it.  Seems like a good time to discuss some of the changes made to Chapter 719 by Florida’s legislature earlier this year–all of which became effective on July 1, 2018:

  • Florida Statutes Section 719.104(2)(a) was revised to provide that the book or books containing the minutes of all meetings of the association, of its board of directors, and of its unit owners now apparently must be retained forever as the provision that stated “which minutes shall be retained for a period of not less than 7 years” has now been deleted.  That same deletion occurred in the paragraph relating to the retention of the association’s accounting records which now must also apparently be retained forever.
  • Section 719.104(2)(a) was also revised to include “electronic records” relating to voting as part of the documents related to voting by unit owners that must be maintained for a period of 1 year after the date of the election, vote, or meeting to which the document relates.
  • Section 719.104(2)(b) now clarifies that the association has 10 working days (rather than 5 working days) after its board or designee received a written request to inspect or copy official records to make those records available.
  • Co-owners of a unit in a cooperative with more than 10 units can no longer serve as board members at the same time unless those co-owners own more than one unit or unless there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy.   This revision to Section 719.106(1)(a)1 follows a similar revision to Florida’s condominium association statutes that occurred several years ago.
  • Section 719.106(1)(c) was amended to allow for board members to use email as a “means of communication” with other board members but board members may not cast a vote on an association matter by email.  I have a feeling that this amendment may create all kinds of issues–not the least of which will be whether or not these email communications might in some cases become part of the “official records” of the association.  I’m also concerned that these email communications between board members may end up becoming the “real” board meetings and will be very interested in seeing whether this provision creates new headaches for board members and managers of resident owned communities in our state.

Stay tuned and I’ll be posting Part II of the 2018 revisions to Florida’s Cooperative Association Laws later this month.

 

Earlier today, I received an email from the Community Association Institute’s Florida Legislative Alliance ("FLA") alerting me to bills to be introduced in the upcoming legislative session in Tallahassee.

According to the email, Senate Bill 286 and House Bill 575 "will have a serious negative impact on community associations and other consumers of design professional services."

The email from the FLA continues:

"As presently designed, these bills will permit surveyors, engineers, landscape architects, architects and interior designers ("design professionals") to eliminate all personal liability for economic damages caused by the negligent performance of their design professional services pursuant to a contract with the consumer.  This is done by them simply placing a ‘prominent statement (in their form contract), in uppercase font that is at least 5 point sizes larger than the rest of the text’, and, pursuant to this legislation, an individual employee or agent may not be held individually liable for negligence."

According to the FLA, supporters of these bills argue that consumers will take steps to re-impose liability on a "design professional" upon seeing that "prominent statement" in the contract.  However, this argument–according to the FLA–"completely ignores human nature" and the fact that many, if not most, consumers (including ROC boards) sign form contracts without even reading those contracts.

In addition, while these bills do not protect design professional companies, the FLA contends that design professional companies can easily "hide" assets by placing them in other entities–thus eliminating any realistic chance of a consumer or community association recovering any amounts when suffering damages as a result of the negligence of a "design professional".

The FLA’s email summarizes SB 286 and HB 575 as "an unfortunate attempt to shift the ultimate negligence liability burden from the design professionals to the consumers."

If you agree with the FLA’s analysis of these bills, the FLA urges you to contact your state senator and state representative as well as the members of Florida’s Senate Judiciary Committee and House Civil Justice Subcommittee to request that they oppose any attempt to reduce liability for these "design professionals".   The FLA asks that you include a reference to SB 286 in your correspondence to Florida’s Senators and refer to HB 575 when contacting Florida’s Representatives.

Just a reminder–if you’re a ROC manager or board member and haven’t already sent in your reservation for the Third Annual Community Association Festival at the Venice Community Center on Wednesday,  February 20, there’s still time!  Just send an email to deanna@sleuthpt.com or call 941-809-2031.  Remember, the event’s free, and that includes a continental breakfast, a barbecue lunch, and a lot of information and networking opportunities.  I hope to see you there–just wear your favorite Hawaiian shirt!
 

 

Last night’s blog entry focused on the most recent version of House Bill 319 and specifically on two revisions–the addition of the "safe harbor" provisions found in Chapters 718 and 720 of the Florida Statutes to F.S. Section 719.108 and the removal of the "certification/education" requirement for newly elected or appointed board members in cooperative associations.

I just checked the Florida Senate’s website for the most recent version of SB 680, which is the "companion bill" to HB 319 currently making its way through the Senate’s committees in Tallahassee.

Will any followers of this blog be surprised to learn that the current version of SB 680:

Does not add "safe harbor" provisions to F.S. 719.108 and

Includes the "certification/education" requirement for newly elected or appointed board members in cooperatives?

As I posted last night, stay tuned…

As most of the followers of this blog know, Florida’s legislature is currently in session in Tallahassee.

The bill that may be of most interest to community association managers, homeowners, and those of us that provide legal assistance and advice to ROCs-House Bill 319–has been making its way through the various legislative committees.

The latest version of this bill–as of the close of business on Monday, February 27–has two very interesting "tweaks" that will impact cooperatives:

First, there is now an amendment to Florida Statute Section 719.108 that will extend the "safe harbor" provisions found in the condominium association and mandatory homeowners’ association laws to cooperative associations.  These "safe harbor" provisions will limit the liability of a first mortgagee or its successors or assignees who acquire title to a cooperative unit by either foreclosure or by deed (or assignment?) in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title to the lesser of:

  1. the unit’s unpaid common expenses and regular periodic or special assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association, or
  2. one percent of the original mortgage debt.

There’s been a good deal of controversy and discussion about whether this "safe harbor" prevents an association from trying to recover from the mortgagee other costs and expenses, such as amounts charged the association by law firms or other companies trying to collect the unpaid amounts from the delinquent unit owner.  Cooperative associations have, for the most part, not been involved in this battle as no "safe harbor" provisions existed in the statutes governing cooperatives.  

A very curious revision in the most recent version of 319 is the removal of the requirement that newly elected or appointed members of the board of directors of cooperative associations either:

  • sign a document certifying that they have read the association’s governing documents and will faithfully abide by those documents and his or her fiduciary responsibilities to the association in serving on the board or
  • attend and successfully complete a board member certification course that has been approved by Florida’s Department of Business and Professional Regulation.

This requirement was incorporated into Chapter 718, which governs condominium associations, several years ago and was in the first version of HB 319 that I reviewed a few months ago.  I’m not sure exactly why this latest version of House Bill 319 no longer contains this requirement.

In any event, there’s much more to HB 319, and I’ll continue to post entries on its progress.

Stay tuned…

 

One of my recent blog entries discussed House Bill 849, a welcome product of Florida’s 2011 legislative session.  House Bill 849 created new Florida Statute Section 514.0315, which  gives pool owners the option of installing any of five different types of equipment in order to meet the requirements of the Virginia Graeme Baker Act.

The legislature forwarded this bill to Florida’s Governor for approval and our Governor signed 849 into law on Friday, June 24.

The provisions of this new law  will become effective on July 1, 2011.

House Bill 1195  made its way through the Florida legislature and was presented to our Governor on June 13.  It appears that our Governor will sign the bill–although nothing is certain nowadays–and  the provisions contained in HB 1195 that amend various sections of Chapters 718, 719, and 720 of the Florida Statutes will become effective on July 1, 2011.

There’s a very curious amendment to F.S. Section 720.303 that will impact the ability of ROC board members and managers to control the behavior of members attending board meetings.

We all know that unit owners are entitled to attend almost all board meetings of a condominium or cooperative association and are entitled to speak on all designated agenda items.  Lot owners in mandatory homeowners’ associations have a similar right to attend meeting of their association’s board and, according to F.S. Section 720.303(2)(b), they also have the right "to speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes."

Chapters 718, 719, and 720 each contain provisions allowing the association to adopt reasonable written rules governing the frequency, duration, and manner of unit owner statements.

But what exactly constitutes a "reasonable" rule in regards to "duration"?   In other words, how long should a member be entitled  to speak on a particular agenda item?

There is nothing in the condominium or cooperative statutes to help answer this question.  However, ROC managers, board members, and their attorneys could look to that "3 minute limitation" in F.S. Section 720.303(2)(b) for some guidance.   We’ve thus often suggested to our ROC clients that limiting a member to speaking for no more than three minutes on any agenda item would appear to be reasonable.

However, if HB 1195 is signed by the Governor, effective July 1, 2011, that three minute standard will be removed from F.S. 720.303(2)(b).  Members attending board meetings in mandatory homeowners associations will have the right to speak at such meetings "with reference to all designated items".

It’s interesting that the provision does not specify "designated agenda items" as do both the similar provisions in Chapters 718 and 719.

While I have no idea why the "3 minute limitation" was removed, I do know that it’s still very important to have reasonable written rules governing the behavior of members at board and membership meetings.

Hopefully, resident owned communities that don’t have those written rules will put that task on their "to do" lists this summer.

 

The recently concluded session of Florida’s legislature resulted in a new section of Chapter 514 of the Florida Statutes that substantially eases the financial burdens that would otherwise be faced by ROCs required to install anti-entrapment devices in community pools and spas as required by the Virginia Graeme Baker Act.

As many ROC managers and board members know, Florida’s Department of Health has taken the position that the only anti-entrapment device that would satisfy its requirements was the gravity drainage system which, unfortunately was by far the most expensive corrective measure.  Many communities were faced with the prospect of having to spend over $25,000 in order to bring pools and spas into compliance with the Department of Health’s standards.

Under proposed Florida Statute section 514.0315, owners of swimming pools and spas that must be brought into compliance by installing an anti-entrapment system or device can install any of the following:

  • A safety vacuum release system that ceases operation of the pump, reverses the circulation flow, or otherwise provides a vacuum release at a suction outlet when a blockage is detected and has been tested by an independent third party and found to conform to certain specified standards
  • A suction-limiting vent system with a tamper-resistant atmospheric opening
  • The gravity drainage system that uses a collector tank (which, again, is the most expensive alternative)
  • An automatic pump shut-off system
  • A device or system that disables the drain

Section 514.0315 clearly specifies that it is the owner of the pool or spa (and not the Department of Health or any other state or local governmental agency) that can determine which of these five anti-entrapment systems or devices is appropriate. 

The anti-entrapment system or device must be installed by a contractor licensed under Florida Statute Section 489.105(3)(j),(k), or (l).

The Florida Manufactured Housing Association testified in favor of this legislation and believes that Section 514.0315, if enacted, will result in substantial savings to the owners of mobile home parks in our state.

It’s anticipated that Governor Scott will have no objection to Section 514.0315 and, if approved, this new provision will become effective on July 1, 2011.

 

 

 

Last week I posted an entry about attempts by some members of Florida’s legislature to eliminate the  regulation of Community Association Managers as well as the Division of Florida Condominiums, Timeshares and Mobile Homes and (for good measure) end mandatory non-binding arbitration for certain disputes between owners and the associations governing their communities.

Proposed Committee Bill BCAS 11-01 moved quickly through the Business and Consumer Affairs Committee of Florida’s House of Representatives and was then assigned a bill number, becoming House Bill (HB) 5005.   According to reports from Tallahassee, HB 5005 was being "fast tracked" and was destined to breeze through one or two other House committees. There was concern that HB 5005 would then join up with a companion Senate Bill and would be voted on and approved by both the House and the Senate before many of those most affected by this legislation would have been made aware of what was occurring in Florida’s capital.

However, during the past week, HB 5005 somehow jumped off that "fast track".   Apparently, HB 5005 entered the Economic Affairs Committee of Florida’s House of Representatives as a 280 plus page juggernaut and exited that committee as a much less imposing 63 page piece of legislation.

Substitute HB 5005 preserves the Division of Florida Condominiums, Timeshares and Mobile Homes as well as the mandatory non-binding arbitration program and maintains the laws providing for the regulation and licensing of Community Association Managers.

I would assume that our legislators heard from more than a few organizations over the past week or so (including the Federation of Mobile Home Owners and the Community Associations Institute).  I also have no doubt that a noticeable segment of the over three million residents of Florida ROCs made their feelings known to our representatives in Tallahassee.  

At least for now, HB 5005 is no longer a bitter pill for resident owned communities in Florida to swallow.