In this article we’ll review House Bill 807’s (HB 807) effect on Florida Homeowners’ Associations (HOA). As mentioned when we discussed HB 807’s effect on condominiums, on May 2, 2014, HB 807 was approved by both the Florida’s House of Representatives and Senate. However, HB 807 is not yet law. In order for HB 807 to become effective law, Governor Rick Scott can either sign HB 807 into law or take no action at all thus allowing HB 807 to become law on July 1, 2014, HB 807’s effective date. 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 720, Florida Statutes, (a/k/a the “Homeowners’ Association Act”). This article will give you a sneak peek into four notable changes if HB 807 is adopted into law.
1. Handicap Accessible Meeting Locations. HB 807 requires that HOA board meetings and membership meetings be held at a location accessible to physically handicapped persons IF it is requested by a physically handicapped person who has a lawful right to attend the meeting.
This new language may likely be a reaction to the decision made in a Dade City, Pasco County, Florida case regarding a wheelchair bound man’s desire to attend his homeowners’ association meetings. According to Laura Kinsler, as she reported for the Pasco Tribune and the Tampa Tribune on March 25, 2014, John Whitt, a wheelchair-bound member of the homeowners’ association, wanted to attend board meetings but was prevented access because the board insisted on holding its meetings on an unfinished lakefront lot that was not wheelchair accessible.
According to the article, the wheelchair bound member accused his association of violating the Fair Housing Act (FHA) and also for not having meetings that were open to all members as required by Chapter 720, Florida Statutes. The case was ultimately dismissed, as reported by Ms. Kinsler, when a newly assigned judge “ruled that ‘there is no legal basis to support the plaintiffs’ contention that the open meeting provision of [the law] requires wheelchair accessibility’ since private community associations are not subject to the federal Americans [w]ith Disabilit[ies] Act [(ADA)].” Notably, the ADA applies to areas of public accommodation, while the FHA applies to housing providers, which includes residential community associations.
Oddly, the FHA was not discussed which, at least in this author’s opinion, would require that a reasonable accommodation be granted to the wheelchair bound member so that he could attend the HOA’s meetings. Nevertheless, despite the perplexing outcome to this case, HB 807 provides a legislative remedy to the ruling in this case.
2. Emergency Powers. HB 807 creates section 720.316, which is a brand new section to the Homeowners’ Association Act. It provides for “emergency powers”. Under this new section, a HOA can perform several actions in the event of a “state of emergency”, unless such acts are specifically prohibited by the association’s recorded governing documents. Such actions of the board include the following: (i) designating assistant officers, who are not directors, which will step into the shoes of an officer in the event the officer is incapacitated or unavailable; (ii) conducting, canceling or rescheduling association meetings and providing notice of such meetings in as practicable a manner as possible as the board deems appropriate under the circumstances; (iii) mitigating further damage, which may include the removal of debris and the removal of wet drywall, cabinets and fixtures; and (iv) implementing a disaster plan before or immediately following the “state of emergency” event. Additionally, based upon the advice of emergency management officials or licensed professionals hired by the board, the board may determine if the property or any portion of the property is unavailable for entry or occupancy or if the property or any portion of the property can be safely inhabited or occupied.
In the exercise of these emergency powers, the board may, without a vote of the members, levy special assessments and borrow money, using the association’s assets as collateral, to fund repairs and to carry out the association’s business in the event the operating funds are not enough.
These emergency powers are only available to the board for a period of time that is reasonably necessary to mitigate further damage and make repairs to protect the health, safety and welfare of the association and the residents of the community.
3. Member Directories. Currently, section 720.303(5)(c)5, Florida Statutes, provides that a HOA can prepare and provide its members with a directory containing the name, address and telephone number of each owner. HB 807 amends this section to allow a HOA to publish ALL of the telephone numbers associated with each owner. In addition, an owner can provide their written consent to the disclosure of other contact information which is otherwise not supposed to be disclosed by the homeowners’ association.
4. Amendment Mailings. HB 807 provides that, if the association mailed a copy of a proposed amendment to the members prior to the membership vote to approve the proposed amendment and the proposed amendment was unchanged from the time of mailing all the way to the vote of the members, then the association only has to notify the members that the proposed amendment was adopted and that a copy of the amendment is available, upon written request to the association, at no charge to the member. The notice to the members must also provide the official record book and page number of the recorded amendment. In addition, it can be electronically transmitted to those members who have consented to receiving their association notices electronically.