Sometimes the right thing happens for the wrong reasons. This is one of those times. Much of our prior discussion regarding Florida’s 2015 Legislative Session was centered on the overtly draconian Estoppel Bill (House Bill 611 together with its companion, Senate Bill 736) and the financial harm it would have caused to community associations throughout Florida if passed into law. While the Estoppel Bill showed all signs of becoming law, because Florida’s House of Representatives walked out of the 2015 legislative session several days early due to a disagreement with the Senate over Medicare and the State’s overall budget, the Estoppel Bill never made it to the House Floor for final vote meaning that the rumored two million dollars of lobbying efforts expended by the title and real estate lobbies was a huge, colossal waste of money. Candidly, it serves them right for failing to meaningfully cooperate with Florida’s community associations which overwhelmingly opposed the Estoppel Bill, albeit to no avail.
Let us turn our attention to those bills as related to community associations which have survived the 2015 Legislative Session and are on their way to the desk of Governor Rick Scott to become law or vetoed, although a veto is considered by most to be unlikely.
Senate Bill 748 and House Bill 791, an Omnibus Bill: These bills provide various amendments which affect condominium, homeowners’ and cooperative associations. These bills address the following changes:
• Provides that a copy, facsimile or other reliable reproduction of a proxy is valid for the purposes of the proxy. (This makes sense, but strange in that this was already quite obvious.)
• Revises the “catchall” provision of what constitutes the official records for condominium and cooperative associations to include only written records of the association, as already provided for homeowners’ associations.
• Removes the requirement that electronic notice be authorized by the bylaws in order to use e-mail rather than U.S. Mail for official notice purposes.
• Allows associations to implement online voting through a board resolution. (This should prove to be very interesting.)
• Clarifies that partial payments may be applied to outstanding amounts due. (This makes sense, but strange in that this was already quite obvious.)
• Clarifies that the role of the fining committee is to confirm or reject the fine levied by the board.
• Clarifies that if voting rights are suspended, the voting interest allocated to the unit is subtracted from the total number of voting interests. (This makes sense, but strange in that this was already quite obvious.)
• Applies the suspension of voting rights or the right to use common elements to member and tenants and guests, regardless of number of units owned by the member.
• Extends the “Distressed Condominium Act” until July 1, 2018. (This is good for Florida’s economy in that it encourages “white knight” investors to invest in fractured condominium projects by shielding them from liability caused by their predecessor.)
• Titles Chapter 720, Florida Statutes, the “Homeowners’ Association Act”.
• Adds a homeowners’ association’s “rules and regulations” to the term “governing documents”.
• Clarifies that the failure to timely provide notice of recording an amendment in a homeowners’ association does not affect the validity or enforceability of the amendment.
House Bill 643 and Senate Bill 1172, The Condominium Termination Bill: House Bill 643 and its companion, Senate Bill 1172, address condominium termination and change the voting requirements and procedures for optional termination of a condominium. These bills provide that optional termination cannot be used until five years after the recording of a declaration of condominium, unless there is no objection to the plan of termination. Additionally, a bulk owner who owns at least 80 percent of the units must ensure that each first mortgage is fully satisfied when a condominium is terminated. In addition, all unit owners, other than the bulk buyer, must be compensated for 100 percent of the fair market value of their unit. However, if an original unit owner, who purchased their unit from the developer, together with additional conditions, votes against the termination plan, the bulk owner must promise to pay them no less than the same amount they purchased their unit.
House Bill 71 and Senate Bill 414, The Service Animal Bill: These bills, among other things, provide that a person who knowingly and fraudulently represents himself or herself through conduct or verbal or written notice as requiring the need for a service animal or as being the trainer of a service animal is guilty of a misdemeanor in the second degree, punishable in the same manner as other second degree misdemeanors, and requiring the performance of 30 hours of community service for an organization which serves disabled individuals to be completed within six months. It is important to note that that these bills do not address “assistance animals” governed by the Fair Housing Act. In order to trigger the Americans with Disabilities Act (ADA) in a residential association, the association must have a nexus to the public. For example if a homeowners’ association rents out its clubhouses to the public for weddings, etc., then that association would be subject to ADA requirements as far as its clubhouse is concerned. The overwhelming majority of Florida’s community associations are subject only to the Fair Housing Act, and not the ADA. Sadly, there is no companion bill that would make such fraudulent activity unlawful as applied to fraudulent “assistance animal” requests… yet.