Though the official 1997 Florida Statutes have not been published, the following summarizes significant new laws affecting owner controlled associations which the Florida Legislature's Legislative Information Division reported to have been enacted. Homeowners' Association Law amendments are effective July 1, 1997. Condominium and Cooperative Act amendments are effective October 1, 1997.
Space prevents the summary of every new law. Some "minor" changes corrected old drafting errors and ensured gender neutral laws. This summary is divided into two sections depending upon the type of association affected, in order of statute number.
Owner Inquiries: §718.112(2)(a) and §719.106(1)(A). Associations are authorized to adopt reasonable rules and regulations restricting the frequency and manner of responding to owner "inquiries". A permissible regulation would limit an owner to one written inquiry in any thirty day period. Perhaps exalting form over substance, the legislature substituted the new term "inquiry" for the old term "complaint".
Committee Meetings: §718.112(2)(c) and §719.106(c). The legislature's experiment requiring all directors' meetings and committee meetings be open to unit owners is limited. Meetings with counsel to discuss privileged matters are permitted. The meeting's purpose must be limited to legal advice concerning proposed or pending litigation.
Alternative Dispute Resolution: §718.1255. This Condominium Act law requiring arbitration of many disputes has been revised dramatically. Note that §719.1255 makes this section, as amended, applicable to cooperatives. To limit frivolous disputes a filing fee is mandated, set initially at fifty dollars. In addition, the petitioner must provide notice of the specific nature of the dispute and relief sought to the other side. The notice is intended to allow the other side to cure the problem before arbitration proceeds.
New procedures are intended to expedite resolution because lengthy delays have discredited the present arbitration process. Procedures for seeking emergency relief are created; however, the new requirement that an arbitration petition must be filed before seeking an emergency injunction may create more delays.
An arbitrator may order the parties to mediation. This may also lengthen and create more costs in what was designed to be a quick inexpensive process. As in circuit court mediation, this mediation process is to be confidential. Just like a judge in circuit court, the arbitrator can assess sanctions against parties that fail to mediate in good faith. The parties share the costs of mediation, including the mediator's fee. One possible advantage of this process is that if mediation is at an impasse, the arbitration petition will be dismissed and each party is free to file a claim in circuit court.
The language concerning awards of attorney's fees has been changed. The prevailing party in an arbitration proceeding shall be awarded the costs of the arbitration and reasonable attorneys fees. In response to arbitrators giving owners the benefit of the doubt and frequently not awarding prevailing associations attorney's fees, the word "shall" replaced the word "may". This amendment may provide associations a better argument for entitlement to attorneys fees when the association is a prevailing party.
The mandatory arbitration program has been narrowed. It now excludes claims regarding tenant evictions, breach of directors' fiduciary duty, and damages to a unit based on the alleged failure of an association to maintain common elements or condominium property. Parties in arbitration may agree that the results are binding to prevent a circuit court trial.
Penalties: §718.501 and §719.501. The Division of Land Sales is provided expanded authority to punish. By the beginning of the new year the Division of Land Sales must adopt rules concerning punishing violations of the Condominium Act and the Division's own rules. Because of the Condominium Act and Cooperative Act's perspective it appears that penalties will only be levied against associations, not against owners.
HOMEOWNERS' ASSOCIATION LAW AMENDMENTS
The Homeowners' Association Law is relatively new. Though the first laws applicable to just homeowners' associations were adopted in 1992, the laws did not significantly affect homeowners' associations until the 1995 amendments. Perhaps because this area of the law is so new, the legislature was apprehensive about making far reaching changes.
Committee Meetings: §617.303(2). The need to notice and open committee meetings has been narrowed. Notice requirements and open meeting requirements apply to meetings of any committee or other similar body only when a final decision will be made regarding the expenditure of association funds or to approve or disapprove architectural decisions affecting a member's residential parcel.
Fines: §617.305(2). The maximum fine was increased to $100.00 per violation. A fine may be levied on the basis of each day of a continuing violation following the initial notice and one opportunity for hearing; however, no fine, individually or in the aggregate shall exceed $1,000.00 unless otherwise provided in the governing documents.
Voting: §617.303(3). Changing an earlier direction that favored voting rights, an association may suspend a member's voting rights in one narrow instance. Voting rights may be suspended when a member's regular annual assessment is delinquent in excess of ninety days. This may occur only if allowed by the Association's governing documents.
This information is provided only for public information purposes and is provided without obligation or fee. It is distributed to the firm's association clients to provide a general notice of recent changes in the law. This information is not to be considered as legal advice. The changes in the law may not been reviewed by Florida courts and may be subject to challenge. Before taking any action you are urged to consult with counsel to ensure that your legal rights are being protected.
© 1997 by Gelfand & Arpe, P.A.
