June 2003
MEMORANDUM TO CLIENTS
2003 FLORIDA LEGISLATIVE UPDATE - PART ONE
The initial Florida legislative session is over. Though
significant issues were not resolved, many community association issues were addressed.
Community Associations owe a debt of gratitude to The Florida Bar for its efforts. Michael
Gelfand, vice chair of the Bar’s Condominium & Planned Development Committee,
obtained the Bar’s support for numerous Bills intended to simplify association
governance which facilitated the legislature’s adoption of many Bills.
As of press time, most Bills had not become Laws but are awaiting the
Governor’s signature or veto. As in the past, new Laws are subject to judicial
review. Contact your association’s counsel to consider how the Bills, if they become
laws, may impact your community. Many of the significant Florida issues the legislature
addressed include:
Marketable Record Title Act, House Bill 861. Perhaps the
most significant legislation supported by the Florida Bar included revisions to Florida
Statutes Chapter 712. Addressing automatic termination of community restrictions, this
legislation intends to allow restrictions to be extended by a directors’ vote and
simplifies the recording process. If your community’s covenants are twenty-five years
or older, then you should contact your association’s attorney to ensure that your
covenants are properly restated.
Homeowners Association Powers, House Bill 861.
Legislation amending Florida Statutes Chapter 720 is intended to empower homeowners’
associations to institute, maintain, settle or appeal actions or hearings concerning
matters of members’ common interest. This is similar to the authority conferred years
ago on condominium and cooperative associations; however, the legislation does not cure
single family home issues. Because the Bill addresses court procedure, those procedures
must be confirmed by the Supreme Court of Florida. In addition, another successful Florida
Bar effort clarified that homeowners’ associations may amend their governing
documents in most situations without improperly interfering with a member’s
"vested rights."
Real Property Taxes, House Bill 1721. Common elements are
to be excluded from ad valorum or real property taxes. As in condominiums, the
value of homeowners’ common areas should be included in each individual parcel’s
valuation. In addition, if taxes are not paid, then there are expanded notice provisions
to help prevent the sale of Association common areas.
Corporate Procedure, Senate Bill 592. The Condominium and
Cooperative Acts are amended to take advantage of electronic forms of communication,
including e-mail notices. Another successful Florida Bar initiative is intended to allow
Florida community associations incorporated in other states to transfer their state of
incorporation to Florida.
Condominium Insurance, Senate Bill 592. Condominium unit
owners may shift certain insurance responsibilities from their associations to the owners.
Reasonable deductibles are allowed. Certain types of condominium insurance are limited,
especially for older communities.
Condominium and Cooperative Resale Disclosures, Senate Bill 592.
Condominium and cooperative associations and their agents may charge, in addition to other
transfer fees, up to $150.00 for photocopying and attorney’s fees incurred preparing
good faith responses to purchaser or lien holder disclosure requests. In addition,
condominium and cooperative associations may charge a reasonable fee for preparation of a
certificate providing assessment information.
Condominium Fire Sprinklers, Senate Bill 592. Under
certain circumstances condominium unit owners may opt out of individual unit installation
of fire sprinklers; however, this does not apply to common area sprinklers.
Enforcement, Senate Bill 592. Seeking clarification, the
legislature determined that lawsuits to enforce condominium and cooperative restrictions
are not specific performance claims; thus, these associations have more time to enforce
restrictions before a statute of limitations bars enforcement.
Roadways, Senate Bill 676. To facilitate public roadway
maintenance, property which has been continuously maintained as a roadway by a county,
municipality or the State Department of Transportation for seventeen consecutive years is
to be considered part of a dedicated public right of way even though it may create
association title problems.
Homeowners’ Association Disclosures, Senate Bill 1220.
To assist identification of property subject to restrictions, individuals seeking to sell
properties in communities are required to provide a specific disclosure statement.
Residential Construction Defect Claims, Senate Bill 1286.
Construction defect and material claims procedures are significantly revised. Alternate
dispute resolution procedures are mandated. In addition, pre-suit procedures requiring
notice of a claim and requiring access for inspection and testing are mandated. Rejections
must be timely provided using a specific form or the owner’s right to proceed may be
compromised.
Flags, Senate Bill 260. In addition to other unit owner
rights, condominium unit owners may fly "armed services" flags of a designated
size on designated holidays.
FIRM NEWS
The firm’s office will be closed on Friday, July 4 in observance
of Independence Day. Many staff members will be taking their annual vacations. Please
gives us a "heads up" if you know in advance of any special projects. Our staff
wishes everyone a happy 4th 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.
© 2003 by Gelfand & Arpe, P.A. |
