This year, The Florida Legislature starts early. In
fact, it is already in session. So what’s in store for
community associations in 2018? Well, remember the “Condo Crime
Bill” that was filed last year? Members in HOAs were screaming
“What about us? Crime happens in HOAs too!” HB 873 and SB
1238 mirrors the condo crime bill and now attempts to apply much
of the same laws to HOAs. If you like the provisions of the
condo crime bill, you will like the HOA crime bill. If you
thought the condo crime bill went overboard, you will think the
same about this bill. Here are some of my thoughts.
The bill prevents a board from hiring an attorney if the
attorney represents the management company.
The Florida Legislature does not regulate the conduct of
attorneys. The Florida Supreme Court does. There are already
ethics codes in place that deal with this conduct and this does
nothing to address the concerns raised in the Grand Jury
Report. I don’t see this passing and I wouldn’t be surprised to
see it repealed from the condo statute this year.
The bill prevents a board member or management company from
purchasing a unit at a foreclosure sale resulting from the
association’s foreclosure of its lien.
I honestly don’t understand why a Board member has less of a
right to participate in a public auction than anyone else. Laws
already exist that prevent a board member from usurping a
corporate opportunity. If a board knows about the sale, and
that board is not interested in buying the unit at a foreclosure
sale, why should a board member be prevented from participating
in the public process? In fact, if the board member buys the
property, rather than the association, that board member may
wind up owing a large amount of assessments to the association.
So, it may be a win-win for the association. Again, makes no
The bill would give the renter the right to access the
association’s bylaws and rules.
Since renters are subject to the rules, I have no problem with
this proposed amendment.
Any director who destroys or refuses to allow inspection or
copying of an official record of a homeowners' association which
is required to be accessible to parcel owners in furtherance of
any crime is punishable as tampering with physical evidence
or as obstruction of justice.
If a director destroys or conceals records in order to cover up
a crime or in furtherance of a crime, I have no problem with
them being charged with a felony. Why would anyone have a
problem with this?
The bill would require, by July 1st, 2019, an
association with 150 or more parcels to post the official
records on its website.
WHY NOT MAKE EVERY ASSOCIATION PUT THEIR OFFICIAL RECORDS ON A
WEBSITE IF YOU WANT TO SOLVE THE ACCESS TO RECORDS PROBLEM – NOT
JUST ASSOCIATIONS WITH 150 OR MORE HOMES? In any event, this is
a great start.
A board member may not serve more than 8 consecutive years
unless approved by an affirmative vote of two-thirds of the
total voting interests of the association or unless there are
not enough eligible candidates to fill the vacancies on the
board at the time of the vacancy.
How in the world does this make sense? Obviously, if this
person is able to get elected for 8 consecutive years, that
person is either doing something right or the other owners are
completely disinterested and have no problem allowing this
person to roll over every year, while they do all the work.
Why would you want to keep that person off of the board, with
all of the experience they have? And the bill does not even say
when this two-thirds vote is to be taken. Is it a vote that
happens during the election itself? Is it a vote that needs to
be obtained before the election? Can you amend the bylaws now
with a 2/3 vote to allow someone to serve more than 8
A terrible provision of this bill would make recalls automatic.
If the Board receives a stack of recall ballots that equal more
than 50% of the units, the people are recalled, regardless of
whether or not all of the ballots are fake, fraudulent or signed
by non owners. It would now be up to the recalled persons to
file their own arbitration case on their own dime. Associations
would be prohibited from filing a recall petition.
The Florida Legislature created an absolute nightmare in regards
to condominium recalls by allowing a similar bill to be passed
last year. You would think that with the current fiasco going
on at the arbitration division, some thought would have gone
into how to fix the broken recall statute, but it didn’t. I
warned the legislature last year that this terrible statute
would create a nightmare and that the recall statute should be
left alone, other than requiring the loser and potentially the
loser’s counsel to pay the other side prevailing party
attorney’s fees. I thought the idea was to prevent fraud? This
bill encourages fraud. Just quickly gather as many recall
ballots as you can, have them signed by anyone, serve them on
the board …and you win. Make the poor director who was duped
responsible for going out and hiring an attorney now. Where is
or was there any proof or even suggestion that the recall
process was flawed? I can tell you it wasn’t. The process was
detailed and during the 5 day period between the time the board
gets served with the recall ballots and the recall meeting, a
lot of work went into verification of the ballots. Duplicates
are searched for, photocopies are disregarded, ballots are
checked to ensure that the ballot is signed by an owner and not
a renter, ballots are checked to ensure the person signing it
has the authority to sign it pursuant to a voting certificate.
That all gets thrown out the window now, and he who files fake
ballots wins anyway.
The bill states that an association may not employ or contract
with any service provider that is owned or operated by a board
member or any person who has a financial relationship with a
A statute already exists that allows the association to do
business with a company that a director may have a financial
interest in, as long as the relationship is disclosed,
two-thirds of the directors vote in favor of the contract and
the unit owners have the right to cancel the contract at the
next membership meeting. Why is this new statute necessary? If
a board member is a legitimate business person, and can help the
association with a good price and quality work, why in the world
should the association not be able to take advantage of that
opportunity? This statute simply presumes that every board
member that owns a company that can provide a service to the
community is a crook, and I’m sorry that is simply not the case.
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.
In light of the fact that we know that association debit cards
have been used to finance gambling habits of directors at The
Hard Rock Casino, this is an excellent suggestion.
Forgery of a ballot or voting certificate would be a felony.
I know what it’s like to uncover fraud in an election. The
people engaged in it need to know that there are criminal
penalties for providing false votes and engaging in election
fraud. This is a good idea.
The bill requires directors and officers of an association, and
the relatives of such directors and officers to disclose to the
board any activity that may reasonably be construed to be a
conflict of interest. The bill then lists categories that make
it a rebuttable presumption that a conflict exists i.e. a
director or an officer, or a relative of a director or an
officer, entering into a contract for goods or services with the
association. The bill is confusing because if the conflict is
disclosed, it allows the Board to then vote on a contract
involving a company owned by a board member or his or her
family. Is it allowed or not allowed? The bill then allows the
Board to remove the member who allegedly failed to disclose the
conflict without a vote of the members, through a lengthy
This is a recipe for disaster. What is good about the current
statutes is that it takes a majority of the unit owners to
remove a director, not a simple vote of the Board members who
can now allege at any time that a Board member failed to
disclose a conflict. The statute nowhere else allows a Board to
remove a director, not even if that director shoots someone
living at the condominium. But now, with this new law, we allow
the Board to remove someone based on a subjective feeling that
the member failed to disclose a conflict. Ridiculous. I have
no problem with the statute simply requiring a Board member to
refrain from voting on any matter wherein the Board member has a
conflict of interest, meaning that the decision will monetarily
effect the board member or his or her family. If the board
member violates the statute, the owners in the community should
act as the judge and jury and have the right to remove that
director through the recall process. And that’s a right they
So there you have it. What do you think HOA
members? Next week we will discuss some additional pending