Filed with the Florida Senate on March 3, 2017, is Senate Bill 1682. This bill which amends Chapter 718, Florida Statutes (a/k/a, the Condominium Act) is so noxious that it will further dissuade members of condominium associations to run for their board of directors, if allowed to become law.
Of the changes which make the position of being a director even more unappealing is the possibility of being charged and even convicted of a misdemeanor for willfully failing to provide access to the condominium association’s official records within the statutory time period, 10 business days from the date the request is received, on more than two occasions within a 12 month period. While this provision on its face may seem reasonable to a few, the Condominium Act makes no provision whatsoever as to how such a request to inspect the official records of the association is to be provided. Thus, imagine the situation where a member at a cocktail party scribbles a request to inspect the pool contract on a napkin and hands it to a director who happens to be at the same party or where a member requests access to a record via email to a director and the director’s term is up the next day.
Criminal charges and punishments of the felony variety are also proposed with regard to election balloting. Additionally, Senate Bill 1682 seeks to prohibit ALL contracts between a condominium association and a director or a company that is owned or operated by a director or anyone who has a financial relationship with a director, despite the disclosure and approval requirements for director contracts already provided for by Florida law.
It is likely that these proposed changes are due to a very few instances where the very few bad acts of condominium directors were sufficiently egregious as to warrant criminal prosecution. But, to place this type of punishment on all volunteers to their condominium associations across the state will cause more harm than the good. Let us be reminded that for the most part, that board members are self-sacrificing laypeople who are not required to be experts in the field of condominium association laws. It is already far too difficult, not to mention, at times impossible, to find owners willing to volunteer their valuable time serve on the board of their condominium association which during trying times, such as the levy of an unexpected special assessment, has the effect of unwarranted scrutiny by one or more members. The last thing needed is the threat of being charged with a crime for what are often simple oversight and mistakes.
An association attorney neither represents the unit owners nor association’s board members, but represents the corporate entity itself, otherwise known as the “association”. As further evidence that the drafters and contributors to Senate Bill 1682 are clearly not knowledgeable as to the practice of condominium association law, the bill proposes a change that will prohibit an attorney from representing the “board” if the attorney also represents the management company of the association. An association’s lawyer never represents them board in the first place! Therefore, this proposed language would have no effect on an attorney’s ability to represent both a condominium association and the association’s management company. As an aside, due to the inherent possibly of a later arising conflict of interest, competent association lawyers should not represent management companies in the first place.
In addition to these proposed changes to the Condominium Act, Senate Bill 1682 will open up access to the Association’s official records to renters where such access was once limited to association members or their authorized representative. It will prohibit directors from serving more than four consecutive two year terms unless approved by two-thirds of the unit owners, and remove the requirement that recall attempts be certified by the board of directors. Also, the requirement for condominium associations with 500 or more units to publish a website and maintain certain official records online is being proposed again in this year’s legislative session.
Given the number of Florida residents that reside in condominium and homeowner’s associations, it is astounding that of late, there is such misunderstanding amongst several of our legislators. While there is still time, please contact your State Representative and Senator and demand they vote “NO” to Senate Bill 1682.