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June 1st marks the beginning of the 2014 hurricane season, and is only days away. Weather forecasters from Colorado State University predict a below average hurricane season. They anticipate that nine tropical storms will form but that only three will develop into hurricanes, “it only takes one landfall event near you to make this an active season”, says meteorologists Philip Klotzbach of Colorado State University’s Tropical Meteorology Project. So, is your association prepared for this hurricane season?

It is important that association’s board of directors ensure that the association’s insurance policies are in place and that the board understands the association’s coverages and deductibles. It is important that the board of directors of a condominium association understand that, pursuant to section 718.111(11) of the Condominium Act, they must use their “best efforts” to obtain and maintain adequate insurance to protect the association, the condominium property and the common elements.

Even though a hurricane may pass in a matter of hours, the effect of a hurricane can last for days, weeks or even months depending on the strength of the hurricane and the damage it leaves in its wake. After a storm has passed it is important that the board members survey the damage caused by the storm. Some great tools for the association’s board, after a hurricane, are walkie-talkies, a disposable camera, a notepad and a pen or a pencil to take notes (remember, we used to use these things before our smart phones! No Power = No smart phones, too!). These tools will help board members keep in contact with one another after a storm and will help the board document any damage to the condominium property for insurance purposes.

If you haven’t done so already, the association should adopt a written hurricane plan. On a related note, the association should create and distribute to its board members a list of trusted vendors, including the contact information for each vendor. This can really come in handy in the event damages are sustained. Such vendors may include, to name just a few, restoration specialists, landscapers, plumbers, electricians, insurance contacts, including the association’s insurance agent’s contact information. Additionally, board members should know how to locate electrical meters, fire system panels, water shutoffs and any other relevant property features are located and how to operate such features.

Pursuant to section 718.111(5), Florida Statutes, a condominium association has “the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.” Access to units is of particular importance in the event of a storm. Condominium associations should ensure that it has keys to access each unit. All associations should ensure they have accurate contact information for each of its owners.

There are several simple things an association can do to help prevent damage to the property in the event of a tropical storm or hurricane. Trees, although beautiful, can cause a great amount of damage in a storm. Associations should make sure that the palms and other trees located on the condominium property are properly trimmed in advance of hurricane season. Anything that can fly around should be stowed away, such as roof tiles and patio furniture. Associations should also adopt rules and regulations which provide for what unit owners must do in the event of a tropical storm or hurricane, such as hurricane shutter use. With regard to an association’s official records, hard copy records, such as insurance binders, member contact information, bank account information, etc., can be stored in water tight containers and should be backed up on an external hard drive and with a cloud-based data storage service.

It is important that the board members remain in contact with each other in the event of a tropical storm or hurricane and, above all, to keep an open line of communication with its unit owners. Unit owners should be informed of the status of the property and the actions the board of directors is taking to repair or replace any damaged condominium property. Hurricane events are stressful. Communication is key!

In addition to the numerous changes to Chapters 718, 719, and 720 of the Florida Statutes, more commonly known as the Condominium Act, the Cooperative Act, and the Homeowners’ Association Act, respectively, many other laws went into effect today, too. A few of the changes as reported in the July 1st edition of the Miami Herald include Florida’s $77 billion dollar budget which went into effect.

• It would appear that if a Floridian threatens to use a gun, or fires a warning shot, such actions might avoid criminal prosecution. The new law signed by Governor Rick Scott was brought about after a Jacksonville woman was initially sentenced to 20 years in prison after firing a shot near her estranged husband. She had unsuccessfully argued Florida’s “stand your ground defense” to a judge who rejected her claim. As a result, she was sentenced under Florida’s “10-20-Life” law, which requires mandatory sentences for using a gun. This new law provides that Florida’s “10-20-Life” rule may not apply in instances of threatened use of force when the victim threatens to use a gun, or fires a warning shot.

• Tax collectors’ offices can handle concealed-weapon license applications.

• Electronic cigarette sales to minors are prohibited.

• Insurance companies may not deny coverage or increase your rates because you own a gun.

• The “Florida GI Bill” provides for university tuition waivers for veterans.

• School districts will need to establish a system for parents to contest the selection of certain textbooks and classroom materials.

• There is an increase in penalties for drivers who leave the scene of serious accidents.

• There are changes to the Sunshine Laws which remove certain items from public access, including personal information of people involved in animal research and certain personal contact information that you might find in vehicle crash reports.

• The budget also includes additional funds to deal with water pollution and additional funding for child welfare programs.

With all the chatter about medical marijuana taking place in the state, I was recently asked whether a condominium association that has lawfully adopted a no-smoking policy must allow a resident to smoke their medicinally prescribed marijuana (assuming it’s not illegal at some time in the near future). In examining the Fair Housing Act, if the resident has a disability that affects a major life function recognized by federal, state or local law, and the medical marijuana is prescribed to help alleviate the disability, you might think that in order to provide the resident equal opportunity to use and enjoy the unit, a reasonable accommodation must be granted. Think again, because at the present time, marijuana remains a “controlled substance” under federal law. Therefore, the protections provided by the Fair Housing Act do NOT apply to medical marijuana use.

An even more interesting question is whether Florida, if it does adopt laws allowing use of medical marijuana, will sue the federal government for interference with state law. In the meantime, should medical marijuana become legal, an easy solution to the no-smoking dilemma may well rest on the patient’s ability ingest their medication without having to smoke, such as using vaporization, consuming medical marijuana in food, teas and tinctures… No smoke, no foul.

Every year about this time I am asked, “how does this years legislation affect our cooperative? Jeff, you wrote about condominium and homeowners’ association legislation, what about us cooperatives? You asked for it, you got it!

Owner Directories. A cooperative association may publish a directory providing ALL of the telephone numbers associated with an owner in addition to an owner’s name and address. An owner can also provide their written consent to the disclosure of other contact information which is otherwise not supposed to be disclosed by the cooperative.

Return of Records and Property by Outgoing Board and Committee Members. Within five days after the new board and committee members are elected or appointed all prior board and committee members are now under a statutory obligation to return all official records and property of the cooperative in their possession, or control, to the incoming board and committee members. 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.

Financial Reporting. Within 90 days following the end of the fiscal year, unless otherwise provided in the bylaws, the cooperative must prepare and complete, or have prepared and completed, a financial report for the preceding fiscal year. The financial report, or a notice that the financial report is available at no cost upon request, must then be provided to the owners within 120 days following the end of the fiscal year, unless otherwise provided in the bylaws. A majority of the members present at a membership meeting can vote to waive the financial reporting requirement for a fiscal year but cannot do so for more than three consecutive years and can vote to raise the level of financial reporting. Financial reports are to be prepared in the following manner:

• An association in a community of fewer than 50 units, regardless of the association’s annual revenues, shall prepare a report of cash receipts and expenditures in lieu of the financial statements required by paragraph (b), unless the declaration or other recorded governing documents provide otherwise.

• An association with total annual revenues of less than $150,000 shall prepare a report of cash receipts and expenditures.

• An association with total annual revenues between $150,000 and $299,999 shall prepare a compiled financial statement.

• An association with total annual revenues between $300,000 and $499,999 shall prepare a reviewed financial statement.

• An association with total annual revenues of $500,000 or more shall prepare an audited financial statement.

Board Member Eligibility and Suspension.

A member who has pending charges for felony theft or embezzlement involving the association’s funds or property may not be appointed or elected to a position as a director or officer. A member who has been convicted of any felony in any state or who has been convicted of any offense in another state which would be considered a felony if committed in Florida is not eligible for board membership unless their rights have been restored for at least 5 years as of the date the member seeks election to the board. A member who has been suspended or removed by the Division of Florida Condominiums, Timeshares, and Mobile Homes or who is delinquent in the payment of any monetary obligation due to the association is not eligible to be a candidate for board membership and may not be listed on the ballot.

A director or officer charged with felony theft or embezzlement involving the association’s funds or property is suspended from office; the vacancy of which is filled by the board until the end of the suspension or the end of the term, whichever occurs first. However, if the charges are resolved without a finding of guilt or without acceptance of a plea of guilty or nolo contendere, the director or officer shall be reinstated for the remainder of the term. The validity of an action by the board is not affected if it is later determined that a board member is ineligible for board membership because the board member was convicted of a felony.

Emergency Powers. A cooperative can perform several actions in the event of a “state of emergency”, unless specifically prohibited by the association’s recorded governing documents. Among others, 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; (iv) implementing a disaster plan before or immediately following the “state of emergency” event; (v) requiring the evacuation of the cooperative property; and (vi) contracting, on behalf of the owner and at the owner’s expense, for items or services which the owner is responsible. 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.

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.

All of 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 and to protect the health, safety and welfare of the association and the residents of its community.

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.

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.

On January 3, 2014, in U.S. v. Forest Hill Gardens East Condominium Association, Inc., the United States Federal District Court for Florida’s Southern District held that the provision of the condominium association’s declaration, which provided that a foreclosing lender had no liability to the association to pay its share of common expenses or assessments pertaining to the foreclosed unit which became due prior to the foreclosing lender’s acquisition of title, trumped the provisions of section 718.116(1)(b), Florida Statutes, commonly referred to as the “safe harbor” provision, which would have entitled the association to the receipt of the lesser of one percent of the initial mortgage or 12 months back assessments. Because this case is being used as the basis for avoidance of lender assessment liability upon taking title as a result of the lender’s mortgage foreclosure, it is important that every community association manager and community association board member understand why the Court reached this very distinguishable conclusion.

Since at least 1992, every foreclosing lender of a condominium unit has been responsible to pay the “safe harbor” amount. What makes this situation so very different that the Court held the lender had no liability but to pay assessments as they came due AFTER taking title? The Forest Hill Gardens East Declaration of Condominium (the “Declaration”) contained some very unique and extremely uncommon language. The provision at issue provided that “the present provisions of the Condominium Act… are incorporated…” into the Declaration and that “the provisions of this Declaration… shall be paramount to the Condominium Act…” Of great importance to understanding the Court’s logic is that, in this case, the Declaration was recorded in 1980, long before the version of section 718.116, Florida Statutes, at issue was amended by the Florida legislature in 1991.

After first confirming that your association’s declaration does not contain a similar provision, the next time a foreclosing lender argues that they do not have to pay the “safe harbor” in reliance on the Forest Hill Gardens East case, you know better.

On a related but different note, the Forest Hill Gardens East case clarifies that interest, late fees, collection costs and attorney’s fees are not to be added to the “safe harbor” amounts when otherwise due because, the Court reasoned, these expenses are neither common expenses nor regular periodic assessments.

Two other recent cases discuss a third party purchaser’s liability to a condominium association in the context where (1) the condominium association first foreclosed a unit assessment lien and, as a result, ended up owning the unit, and then (2) the lender foreclosed its unpaid mortgage which wiped out the association’s ownership interest in the unit and then (3) as a result of the lender’s foreclosure, a third party ended up being the winning bidder at the lender’s foreclosure auction and took ownership of the foreclosed unit.

Both the Third District Court of Appeal in Park West Professional Center Condominium Association, Inc. v. Londono, decided November 27, 2013, and the Fourth District Court of Appeal in Aventura Management v. Spiagga Ocean Condominium Association, Inc., decided on March 3, 2014, held that the joint and several liability of the new owner for past assessments only related back to the prior owner, that being the association. Neither association could look to the prior owners’ assessment deficiencies and collect it from the winning third party bidder of the lender’s foreclosure sale. Thus, these cases are being used to assert that the third party purchaser of a lender foreclosure does not have to pay bask assessments that were accrued as a result of the delinquencies of all other owners of the unit, but only for those of the immediate prior owner.

While, pursuant to section 718.116(1)(a), Florida Statutes, each owner is jointly and severally liable to the association for the back assessments that remain unpaid, a plain reading of these cases would suggest the new owner is only liable for the unpaid assessments of the immediate prior owner. Technically, this is true, but it is crucial to understand that the unpaid assessments of each owner become the next owner’s responsibility. But, in these two cases, it was the association itself that was the immediate prior owner. Thus, carrying the unpaid balances of the other prior owners forward the association as the immediate prior owner and then to the third party purchaser who acquired the unit as a result of the lender’s foreclosure sale, meaning that the new owner does indeed have no liability for the prior unpaid assessments. The reason why is not fully explained in either case. Simply put, because the association took title to the units, the debts of all prior owners of that unit were wiped clean as of the day the association took title. In other words, the debt merged into the ownership of the unit. Because, in both cases, the associations were the immediate prior owner of the units, the prior assessment debts were all carried forward to the association and, for all intents and purposes, were wiped out since you can’t owe money to yourself.

So, the next time a third party purchaser tries to argue that they are only responsible to pay the back assessments of the immediate prior owner, you will know that only applies if the immediate prior owner was the association. If it was anyone else, you might say, after confirming with your association’s lawyer, PAY UP, PAL!

In a recent Dade City case, a Pasco County judge ruled that a homeowners association (HOA), which had specially assessed its members for mounting legal fees regarding a costly dispute over wheelchair access to its meetings, has no authority to assess homeowners for its legal bills because the HOA’s covenants had expired likely due to the Marketable Record Titles to Real Property Act (MRTA). According to Laura Kinsler as she reported for the Pasco Tribune and the Tampa Tribune, John Whitt, a wheelchair-bound member for 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. Early in the case, it seemed the member would rue the day. He had won the often hard to obtain and revered temporary emergency injunction, which in this case, required the association to meet for the entire year in wheelchair accessible locations. However, as fate would have it, the case was reassigned. Ms. Kinsler reported that the case was dismissed when the new 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)].”

The outcome is perplexing because while the ADA and the FHA are similar in application, they apply to two very different situations. The ADA applies to areas of public accommodation, while the FHA applies to housing providers, which includes residential community associations. Occasionally however, the ADA will apply to a residential community association where there is a “public use” at play, such as when an association rents its clubhouse for weddings. The reason the case is perplexing is because, as reported, the plaintiff sued under the FHA, but oddly, the trial court issued its ruling citing the ADA. If this is the case, then we may not have heard the last of this case yet. But, WAIT! It gets better still.

During the pendency of the case, the association’s legal bills, according to the article, reached “upwards of $70,000.” After the association levied its third special assessment, several other association members sued the association asserting that the deed restrictions had expired. Ostensibly, while the article does not specifically explain why, it was likely the effect of MRTA which, by way of an over-simplified explanation, abolishes restrictions recorded against real property not sooner than 30 years after their initial recordation, subject only to certain exceptions. Under Florida law, a HOA is permitted, by board action alone, to take certain measures prior to the expiration of the 30 years to preserve the community’s declaration of covenants and restrictions. If that does not occur, then it is required that a majority of those members affected vote in favor of revitalizing the community’s declaration of covenants and restrictions. If not, then the covenants no longer have any enforceability, including the right of the HOA to levy assessments.

Every HOA board member should be aware that according to a 2013, 4th District Court of Appeal decision, Southfield’s of Palm Beach Polo and Country Club, et. al. v. McCullough, the court held that HOA board members can have personal liability for allowing their covenants to expire, though the extent of their personal liability was not discussed. In another case, a lawyer was found to have liability where the lawyer failed to advise their HOA client of an impending 30 year MRTA deadline. As an aside, condominium association board members can let out a big sigh of relief because the nasty effects caused by the application of MRTA do not apply to condominium associations.

On a related note, Senate Bill 1450 was recently introduced which would require all HOAs to have meetings in locations that are accessible to physically handicapped persons. On an unrelated note, some good news to report: that nasty pending 2014 legislative bill that would have required a door tax to be paid by every HOA member in the state, similar to the $4.00 per condominium owner tax, died a deserving death a few days ago!