July 2002

The Florida legislature has adjourned. The Governor has signed or vetoed bills. It is time for the firm’s annual Florida legislative update! This year’s legislation may be explained by physics: for every action there is an equal and opposite reaction! Very little occurred during the legislative session that was not directly related to a court decision.

Legislation did not concentrate on one type of community or area of law. Nevertheless in quick summary it is doubtful that any of this year’s legislation will have any immediate impact upon Florida community associations. Note that the legislation is subject to judicial review:

Flags. Florida Laws 2002-50. Paralleling Condominium Act provisions, two statutory changes were enacted as follows:

§720.304(2): Any homeowner may display one portable, removable United States flag in a respectful manner, regardless of any declaration rules or requirements dealing with flags or decorations.

§720.305(3): Homeowners' association documents, including declarations of covenants, articles of incorporation, or bylaws, may not preclude the display of one portable, removable United States flag by property owners. However, the flag must be displayed in a respectful manner way and may be subject to reasonable standards for size, placement, and safety, as adopted by the homeowners' association, consistent with Title 36 U.S.C. chapter 10 and any local ordinances

Amendments. Florida Laws 2002-27. Responding to the first Woodside Village Cd’m Assn., Inc. v. Jahren decision (See Memorandum to Clients, May 2000) which restricted condominium association amendments, numerous laws expressly grant condominium associations the authority to make changes as follows: §5 amends §718.104(4)(h), multi-condominium shares of common expenses; §5 amends §718.104(5), use restrictions; §7 amends §718.110(4), transfers of common area use rights; §9 amends §718.112(3), Bylaw provisions; §10 amends §718.113(2), authority for alterations and improvements; §11 amends §718.115(1), multi-condominium expenses. Notably, this law was passed after the Supreme Court’s review of Woodside (See Memorandum to Clients, February 2002), reaffirming a condominium association’s authority to amend documents.

Space Swapping. Florida Laws 2002-27, §6, enacted in response to Brown v. Rice, 716 So. 2d 807, (Fla. 5th DCA 1998) (See Memorandum to Clients, September 1998), amending § 718.106(2)(b), to permit unit owners to exchange appurtenances such as parking spaces with the association’s approval as provided in the condominium’s declaration.

Money. Florida Laws 2002-27, §8. Condominium association funds may be used for property acquired as "association property." §718.111(4). In addition, § 718.111(13), extends the deadline for providing condominium association annual financial reports until twenty-one days after the report is completed or received, if no longer than 120 days after the end of the fiscal year or other date as provided in an association’s bylaws.

Elections. Florida Laws 2002-27, §12 amends §718.1255(5), providing that disputes regarding condominium directors’ elections are to be handled in arbitration on an "expedited basis."

Questions and Answers. Florida Laws 2002-27, §14. Condominium associations no longer have to prepare a "Questions & Answers" sheet, amending §718.503(2).

Foreclosures. Florida Laws 2002-8. The Documentary Stamp Tax paid at foreclosure sales is only to be paid on the amount of a bid for association lien foreclosures, amending §201.02(8).

Gated Communities. Florida Laws 2002-235, §2. A homeowners’ association may seek title to public roads. The community must restrict access and have assessment authority to maintain the roads.

Timeshares. Florida Laws 2002-87, §1, amending 721.111(2) increases the number of promotional prizes, and §2, amending § 721.13, provides that management company rentals may be on a lower bulk rate and permitting pooling of certain funds.

Liability. Florida Laws 2002-285, seeks to limit one of the most significant liability decisions, Owens v. Public Supermarkets, Inc. and Soriano v. B & B Cash Grocery Stores, Inc., 802 So.2d 315, (Fla. November 15, 2001) (See Memorandum to Clients, January 2002), by amending §316.2121 to limit defendant land owners’ burden of proof.

The Future. The 2003 Florida legislative session likely will discuss many issues. For condominium associations, this includes insurance coverage and hi-rise fire code compliance. For homeowner associations, this includes clarifying the ability to amend. For all associations this includes easier compliance with the Marketable Record Title Act and domestication of foreign associations. It is never too early to adjust your procedures to take into account this year’s legislative action, and to consider contacting your legislators for next year’s session.

FIRM NEWS

In observance of Independence Day, the firm’s offices will be closed on Thursday, July 4, 2002. Our staff wishes everyone a safe and happy 4^th of July.

This information is provided for public information purposes only and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent legal changes. This information is not to be considered as legal advice. The changes in the law may not have been reviewed by Florida courts and may be subject to further challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are protected.

© 2002 by Gelfand & Arpe, P.A.