On May 2, 2014, House Bill 807 (HB 807), was approved by both the Florida’s House of Representatives and Senate. It now awaits the signature of Governor Rick Scott to make it effective law or, if he does nothing at all, it will still become law. That said, Governor Scott does have the ability to veto HB 807 if he so chooses. Among other changes affecting residential properties, HB 807 makes some notable changes and additions to Chapter 718, Florida Statutes, more commonly known as the “Condominium Act.” This article will give you a sneak peek into five notable changes.
1. Right to Enter an Abandoned Unit. HB 807 amends section 718.111(5), Florida Statutes, regarding a condominium association’s right to access an abandoned unit. Under these new provisions, a condominium association can enter an abandoned unit to inspect the unit and the adjoining common elements, to make repairs as needed, to turn on the utilities to the unit and to otherwise maintain and protect the unit and adjoining common elements.
A unit is considered abandoned under the following circumstances: i) the unit is under foreclosure and no tenant appears to have lived at the unit for four consecutive weeks without prior written notice to the condominium association, or ii) no tenant appears to have lived at the unit for two consecutive months without prior written notice to the condominium association and the condominium association is unable to contact the owner or determine the owner’s whereabouts after reasonable efforts. Prior to entering an abandoned unit, the condominium association must send two days notice of its intent to enter the unit to the owner at their last known address.
Any costs associated with the abandoned unit are chargeable to the owner and, no doubt of interest to many readers, such costs are assessable against the unit. Additionally, the condominium association can request that the court appoint a receiver to lease the abandoned unit. The rent collected is credited against the monies due to the association and receiver.
2. Unit Owner Directories. Currently, section 718.111(12)(c)5, Florida Statutes, provides that a condominium association can prepare and provide its members with a directory containing the name, address and telephone number of the unit owners. HB 807 amends this section to allow a condominium to publish ALL of the telephone numbers associated with unit owners. In addition, unit owners can provide their written consent to the disclosure of other contact information which is otherwise not supposed to be disclosed by the condominium association.
3. Return of Records and Property by Outgoing Board and Committee Members. HB 807 adds a new subsection “(f)” to the official records requirements located in section 718.111(12), Florida Statutes. This new subsection imposes a statutory obligation on outgoing board and committee members to return all official records and property of the condominium association in their possession, or control, to the incoming board and committee members within five days after the new board and committee members are elected or appointed. Those outgoing board and committee members who willfully and knowingly fail to return such records and property are subject to penalties imposed by the Division of Florida Condominiums, Timeshares, and Mobile Homes.
What is noticeably absent from this new provision is the application of this statutory obligation on outgoing officers, too. While in the overwhelming majority of condominium associations the officers are comprised of board members, it is certainly possible for the board to select officers who are not board members, unless otherwise prohibited in the governing documents. This means that officers who are not board members would be free from this particular statutory obligation and civil penalty.
4. Board Member E-mail Communication, Attendance and Voting. A new provision is added by HB 807 to section 718.112(2)(c), Florida Statutes, which provides that board members may use e-mail to communicate to one another but cannot use e-mail to cast a vote on condominium association matters. However, while the board members are provided the right to communicate via e-mail, there is no mention in the legislation whether the board majority or only the board minority may do so.
Finally, yes finally, board members can appear and vote at board meetings not only via speakerphone, but now by video conference or similar real-time electronic or video communication so long as a speaker is used so that everyone can hear the “electronically appearing” board member. While likely apparent, a board member’s electronic appearance is counted towards establishment of a quorum, too.
5. Assessment Liability as Applied to a Condominium Association. HB 807 further defines the term “previous owner” in section 718.116(1)(a), Florida Statutes, as it relates to a unit owner’s liability for the unpaid assessments of the previous owner and provides for how such liability is applied when the condominium association was a prior owner of the unit.
This new language is likely a reaction to the decisions of the Third District Court of Appeal in Aventura Management, LLC v. Spiaggia Ocean Condominium Association, Inc., Case No. 3D13-1437 (Fla. 3d DCA March 5, 2014) and Park West Professional Center Condominium. v. Londono, 38 Fla. L. Weekly D2510 (Fla. 3d DCA November 27, 2013). In both cases, the Court held that a unit owner is only liable for the unpaid assessments of the immediate-prior unit owner, and according to the Spiagga court case, if the prior owner was the association, then, by way of an oversimplification, the debt merged into the ownership as a result of the association taking title to the unit and, therefore, since you can’t owe money to yourself, the assessment debt re-sets to zero. In any event, thanks to HB 807, condominium associations have some new clarity in this regard. As amended by HB 807, section 718.116(1)(a), Florida Statutes, would additionally provide, in pertinent part, that:
“For purposes of this paragraph the term ‘previous owner’ does not include an association that acquires title to a delinquent property through foreclosure or by deed in lieu. A present unit owner’s liability for unpaid assessments is limited to unpaid assessments that accrued before the association acquired title to the delinquent property through foreclosure or by deed in lieu.”
This new language added to section 718.116(1)(a), Florida Statutes, if and when it becomes effective, removes a condominium association from the classification of being a “previous owner,” which means that a unit owner is not jointly and severally liable to the condominium association for the unpaid assessments that came due while the condominium association owned the unit. However, unlike the holdings of the Court cases mentioned above, a unit owner would be jointly and severally liable for the unpaid assessments of other former owners pursuant to these new provisions.
Stay tuned for future legislative updates including HB 807’s effect on homeowner associations.
Unless vetoed, HB 807 becomes law on July 1, 2014.