Chapter 718, Florida Statutes, is referred to as Florida’s Condominium Act. Section 718.116 of the Condominium Act has been revised to provide that the term “previous owner” relative to the joint and several obligations to the association for unpaid assessments, does not include a condominium association that acquires title to a delinquent property through foreclosure or by deed in lieu of foreclosure. However, the liability of a present owner, such as a third party purchaser in a lender foreclosure, is limited to unpaid assessments that accrued before the association acquired title. Of great interest is that interest, late fees, attorney’s fees and costs incurred by the association in foreclosing on the unit, along with assessments obligations that came due while the association held title to the unit, will not be the present owner’s obligation. Similar changes were made to Chapter 720, Florida Statutes, otherwise known as the Homeowners’ Association Act, last year.
Section 718.111(11) of the Condominium Act regarding insurance, has once again been revised. Subsection (j) now provides that, in the absence of an insurable event, any repairs that are required will be made by the association or the unit owner, in accordance with the declaration or bylaws. This law clears up some confusion that was created by a few prior court cases which generally held that whoever had the duty to insure (the association as compared to the unit owner) also had the duty to effectuate the repair, regardless of the provisions in the declaration. Now we know to look to the declaration or bylaws to make such determinations. However, this new law does not clarify whether a casualty for which coverage is denied is considered an “insurable event” (Oh Brother!).
A great number of questions are being mulled as to board member to board member e-mail communications. Section 718.112 of the Condominium Act now authorizes board members to use e-mail as a means of communication, however, this new law also clarifies that board members may not cast their vote on an association matter via e-mail. (Sorry HOA board members, this only applies to condominium associations, for now.) So, just what can be discussed? On one end of the spectrum, clearly, setting the board’s agenda items for its next meeting would seem appropriate. On the other end of the spectrum, voting via e-mail is a “no-no” and violates the new legislation. What about everything in between? For example, can the board discuss the condition of the swimming pool and the need to acquire bids for consideration at the next board meeting? Can the board discuss via e-mail the need for a new gate? A parking garage repair? A raise for the manager? Just what can be discussed in these e-mail communications? Well, try to look at it this way. When communicating via e-mail, do not communicate any differently than if you were on the street, eye to eye with your fellow board member. In that way, you are bound to stay in the safe zone.
Associations can already publish in their community directory the address and phone number provided by a member for their official association meeting notices and the like. New legislation was passed that also permits all condominium, cooperative and homeowners’ associations to publish all of their members’ telephone numbers in the community directory, but any owner can opt-out in writing and not have their numbers listed. Additionally, subject to the affirmative written consent of an owner to opt-in, such owner can consent in writing to the disclosure of other additional contact information by the association (for example, e-mail addresses).
Homeowners’ Association Boards have been provided clear emergency powers similar to those previously provided to Condominium Association Boards. In the event of a state of emergency, a HOA board may:
• conduct board and membership meetings after notice of the meetings is provided in as practicable a manner as possible;
• cancel and reschedule an association meeting;
• designating assistant officers, who are not directors, to step into the shoes of an officer in the event an officer is incapacitated or unavailable;
• relocate the principal office of the association;
• enter into agreements with counties and municipalities to assist with debris removal;
• implement a disaster plan before or immediately following the state of emergency event is declared, which may include turning or shutting off elevators, electricity, water, sewer, security systems or air conditioners;
• based upon advice of emergency management officials or upon advice of licensed professionals retained by the board, determine any portion of the property unavailable for entry or occupancy;
• mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of mold, regardless of which party is responsible by the governing documents or law to insure, or remove fixtures and personal property.
• levy special assessments without a vote of the owners;
• borrow money and pledge association assets as collateral without a vote of the owners.