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SO
WHAT DO YOU THINK ABOUT THE NEW LAWS?
By
Eric Glazer, Esq.
Published July 3, 2017
It certainly was a busy year for
condo legislation. HB 653 was vetoed at the last minute by the
Governor. That bill would have allowed condominiums to opt out
of expensive engineered life safety systems. House Bill 1237
passed however. It’s provisions are listed below. One of the
architects of the bill was Senator Rene Garcia. I had the
pleasure of interviewing him on the Condo Craze Radio Show. If
you’re interested in hearing his reasons for the bill and what
may be in store for next year, including HOAs, try to listen to
a rebroadcast of the show at 3:00 this Sunday on 850 WFTL or go
any time to:
www.condocrazeandhoas.com. Chime in below and let us know
what you think about the new laws.
HB 1237
718.111 ---- CRIMINAL
CONDUCT
Forgery of a ballot envelope or voting
certificate used in a condominium association election is a
felony, the theft or embezzlement of funds of a condominium
association is punishable as provided in s. 812.014, and the
destruction of or the refusal to allow inspection or copying of
an official record of a condominium association that is
accessible to unit owners within the time periods required by
general law in furtherance of any crime is punishable as
tampering with physical evidence as provided in s. 918.13 or as
obstruction of justice as provided in chapter 843.
An officer or director charged by information or indictment with
a crime referenced in this paragraph must be removed from
office, and the vacancy shall be filled as provided in s.
718.112(2)(d)2. until the end of the officer's or director's
period of suspension or the end of his or her term of office,
whichever occurs first. If a criminal charge is pending against
the officer or director, he or she may not be appointed or
elected to a position as an officer or a director of any
association and may not have access to the official records of
any association, except pursuant to a court order. However, if
the charges are resolved without a finding of guilt, the officer
or director must be reinstated for the remainder of his or her
term of office, if any.
718.111 --- THE ATTORNEY
An association
may not hire an attorney who represents the management company
of the association.
718.111 --- FORECLOSURE OF THE
ASSOCIATION’S LIEN
A board member,
manager, or management company may not purchase a unit at a
foreclosure sale resulting from the association's foreclosure of
its lien for unpaid assessments or take title by deed in lieu of
foreclosure.
718.111 –
RIGHT OF ACCESS TO RECORDS
A renter of a unit has a right
to inspect and copy the association's bylaws and rules.
718.111 --- REQUIREMENT TO PLACE
OFFICIAL RECORDS ON A WEBSITE
By July 1, 2018, an association with 150 or
more units which does not manage timeshare units shall post
digital copies of the documents specified in subparagraph 2. on
its website.
The association's website must be: An independent website or web
portal wholly owned and by the association; otherwise obtains
the right to operate a web page, subpage, web portal, or
collection of subpages or web portals dedicated to the
association's activities and on which required notices, records,
and documents may be posted by the association.
The association's website must be accessible through the
Internet and must contain a subpage, web portal, or other
protected electronic location that is inaccessible to the
general public and accessible only to unit owners and employees
of the association.
Upon a unit owner's written request, the association must
provide the unit owner with a username and password and access
to the protected sections of the association's website that
contain any notices, records, or documents that must be
electronically provided.
A current copy of the official records must be posted in digital
format on the association's website: except for those records
that must be kept confidential.
In addition: The notice of any unit owner meeting and the agenda
for the annual meeting must be posted no later than 14 days
before the meeting. The notice must be posted in plain view on
the front page of the website, or on a separate subpage of the
website labeled "Notices" which is conspicuously visible and
linked from the front page. The association must also post on
its website any document to be considered and voted on by the
owners during the meeting or any document listed on the agenda
at least 7 days before the meeting at which the document or the
information within the document will be considered.
Notice of any board meeting, the agenda, and any other document
required for the annual meeting must be posted no later than the
date required for notice pursuant to s. 718.112(2)(c).
The association shall ensure that the information and records
that are required to be kept confidential are not posted.
718.111 – FINANCIAL REPORTING
The following
statutory provision has been removed for both condos and HOAs:
An association that operates fewer than 50 units, regardless
of the association's annual revenues, shall prepare a report of
cash receipts and expenditures in lieu of financial statements
required by paragraph (a).
718.117 – CONDO TERMINATION
If 5 10
percent or more of the total voting interests of the condominium
reject a plan of termination, a subsequent plan of termination
pursuant to this subsection may not be considered for 24 18
months after the date of the rejection.
718.707 BULK BUYERS – BULK
ASSIGNEES
The statute no
longer sunsets on July 1st, 2018.
718.71 FINANCIAL REPORTING
An association
shall provide an annual report to the department containing the
names of all of the financial institutions with which it
maintains accounts, and a copy of such report may be obtained
from the department upon written request of any association
member.
718.111 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.
Use of a debit
card issued in the name of the association, or billed directly
to the association, for any expense that is not a lawful
obligation of the association may be prosecuted as credit card
fraud pursuant to s. 817.61.
718.112 – TERM LIMITS
A board member
may not serve more than four consecutive 2-year terms, 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.
718.112 - RECALLS
Recalls ---
are now effective immediately. NO DUE PROCESS PROVIDED.
Although language has been left in the statute that still
apparently allows the Board to file for recall arbitration.
Very confusing and needs to be fixed next year.
718.112 - SERVICE PROVIDERS; CONFLICTS OF INTEREST
An
association, which is not a timeshare condominium association,
may not employ or contract with any service provider that is
owned or operated by a board member or with any person who has a
financial relationship with a board member or officer, or a
relative within the third degree of consanguinity by blood or
marriage of a board member or officer. This paragraph does not
apply to a service provider in which a board member or officer,
or a relative within the third degree of consanguinity by blood
or marriage of a board member or officer, owns less than 1
percent of the equity shares.
718.1255 - ARBITRATION
The state may
now employ private arbitrators to hear your cases. The
arbitrator must conduct a hearing within thirty days and then
enter an order within 30 days after the hearing.
718.111 – PURCHASE OF UNITS AT
FORECLOSURE SALE
A party contracting to provide maintenance or
management services to an association managing a residential
condominium after transfer of control of the association, as
provided in s. 718.301, which is not a timeshare condominium
association, or an officer or board member of such party, may
not purchase a unit at a foreclosure sale resulting from the
association's foreclosure of association lien for unpaid
assessments or take a deed in lieu of foreclosure. If 50 percent
or more of the units in the condominium are owned by a party
contracting to provide maintenance or management services to an
association managing a residential condominium after transfer of
control of the association, as provided in s. 718.301, which is
not a timeshare condominium association, or by an officer or
board member of such party, the contract with the party
providing maintenance or management services may be cancelled by
a majority vote of the unit owners other than the contracting
party or an officer or board member of such party.
718.3027 CONFLICTS OF
INTEREST
(1) Directors and officers of a board of an
association that is not a timeshare condominium association, and
the relatives of such directors and officers, must disclose to
the board any activity that may reasonably be construed to be a
conflict of interest. A rebuttable presumption of a conflict of
interest exists if any of the following occurs without prior
notice, as required in subsection (4):
(a) A director or an officer, or a relative of a director or an
officer, enters into a contract for goods or services with the
association.
(b) A director or an officer, or a relative of a director or an
officer, holds an interest in a corporation, limited liability
corporation, partnership, limited liability partnership, or
other business entity that conducts business with the
association or proposes to enter into a contract or other
transaction with the association.
(2) If a director or an officer, or a relative of a director or
an officer, proposes to engage in an activity that is a conflict
of interest, as described in subsection (1), the proposed
activity must be listed on, and all contracts and transactional
documents related to the proposed activity must be attached to,
the meeting agenda. If the board votes against the proposed
activity, the director or officer, or the relative of the
director or officer, must notify the board in writing of his or
her intention not to pursue the proposed activity or to withdraw
from office. If the board finds that an officer or a director
has violated this subsection, the officer or director shall be
deemed removed from office. The vacancy shall be filled
according to general law.
(3) A director or an officer, or a relative of a director or an
officer, who is a party to, or has an interest in, an activity
that is a possible conflict of interest, as described in
subsection (1), may attend the meeting at which the activity is
considered by the board and is authorized to make a presentation
to the board regarding the activity. After the presentation, the
director or officer, or the relative of the director or officer,
must leave the meeting during the discussion of, and the vote
on, the activity. A director or an officer who is a party to, or
has an interest in, the activity must recuse himself or herself
from the vote.
(4) A contract entered into between a director or an officer, or
a relative of a director or an officer, and the association,
which is not a timeshare condominium association, that has not
been properly disclosed as a conflict of interest or potential
conflict of interest as required by s. 718.111(12)(g) is
voidable and terminates upon the filing of a written notice
terminating the contract with the board of directors which
contains the consent of at least 20 percent of the voting
interests of the association.
(5) As used in this section, the term "relative" means a
relative within the third degree of consanguinity by blood or
marriage.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Associates, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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