Legal Update Submitted July 5th, 2011
House Bill HB 1195 effective date July 1st, 2011
On June 21st, 2011 Governor Rick Scott formally signed House Bill HB 1195 into law effective July 1st, 2011. HB 1195 has many new provisions for Florida Associations and also has provisions that clarify laws that went into effect last July 1st, 2010 in HB 1196. Below is a summary of some of the important provisions included in HB 1195.
Association Official Records (Condo and HOAs)
- Clarifies that owners are permitted to consent in writing to the disclosure of their protected contact information such as email addresses and phone numbers.
- Clarifies that although personnel records are not available for inspection by owners, they will be permitted to inspect employment agreements and budgetary and financial records that describe the compensation paid to employees.
Association Open Meetings (Condo)
- Permits condominium boards the right to hold closed meetings (not open to unit owner observation) for “personnel” matters. Legal counsel does not have to be present. (This is already the law in the HOA context.)
Attachment of Tenant Rents (Condo, Cooperatives and HOAs)
- Clarifies that “future monetary obligations” includes all rent due from the tenant to the unit or parcel owner and must be paid to the association until all delinquent accounts are paid in full to the association.
New Director Certification (Condo)
- Provides that condominium association directors may submit proof of an educational course attendance (in lieu of signing the certification form) and the course must have been completed within 12 months before or 90 days after the date of the election or appointment to the board.
- This written certification remains valid as long as the director serves on the board continuously without interruption.
Use Right Suspensions (Condo, Cooperatives, HOAs)
- Allows the suspension of common element use rights for non-payment (no hearing is required) and for violations (hearing is required).
- Clarifies that if voting rights are suspended, the suspended vote will not count towards quorum or vote required to approve an action.
- Clarifies that suspensions for non-payment will not require hearing, but will still require board approval at properly noticed meeting.
Rent Collection from Tenants (Condo, Cooperatives, HOAs)
- Provides that a form letter be sent to tenants explaining the tenant’s obligation to pay rent to the association.
- Provides the tenant with immunity from any claim by the landlord related to the rent timely paid to the association after the association has made such written demand.
Board Elections and Staggered Terms (Condo)
- Clarifies that board member terms do not expire at the annual meeting if all of the member terms would expire at the annual meeting but there are no candidates.
- In those cases where the board member terms expire at the annual meeting, the board members may stand for reelection unless prohibited by the bylaws. (This provision suggests that term limits may be permitted, if it is provided in the bylaws).
- Clarifies that a candidate must be eligible to serve on the board at the time of the deadline for submitting a notice of intent (40 days before the election) in order for his or her name to be listed as an eligible candidate on the election ballot or to serve on the board.
Membership Agreements (Condo)
- Will provide for association acquiring membership agreements by vote of a majority of entire voting interests instead of reference to declaration and s. 718.113(2).
Management Fee Collection (Cooperatives)
- Will remove provision from 2010 statute allowing cooperative associations to lien for collection services for which the association has contracted.
Homeowners’ Associations/Bulk Television/Internet/Information (HOAs)
- Creates s. 720.309(2) to basically mirror condominium statute, as amended in 2010, regarding bulk purchase of information or internet services.
- Also prohibits homeowners’ associations from denying individual service to any resident from certificated or franchised provider.
Bulk Buyers/Bulk Assignees (Condo)
- Amends the definition of “bulk assignee” and “bulk buyer” to mean a person who acquires more than 7 condominium parcels in “a single condominium.”
- Provides that bulk assignee is not liable for warranties under 718.203(1) or 718.618, except “as expressly provided by the bulk assignee in a prospectus or offering circular, or the contract for purchase and sale executed with a purchaser,” or for design, construction, development or repair work performed by or on behalf of the bulk assignee.
- Provides that if, at the time the bulk assignee acquires title to the units and receives an assignment of developer rights, the developer has not relinquished control of the board, for purposes of determining the timing of transfer of control, a condominium parcel acquired by the bulk assignee is not deemed to be conveyed to a purchaser, or owned by an owner other than the developer, until the condominium parcel is conveyed to an owner who is not a bulk assignee.
- Requires filing with the division and certain disclosures to purchasers and lessees if bulk assignee or bulk buyer is offering “more than seven units in a single condominium” for sale or for lease for a term exceeding 5 years.
- Provides that bulk assignee or bulk buyer are not required to comply with the filing or disclosure requirements if all of the units owned by the bulk assignee or bulk buyer are offered and conveyed to a single purchaser in a single transaction.
- Provides that a person acquiring condominium parcels may not be classified as a bulk assignee or bulk buyer unless the condominium parcels were acquired on or after July 1, 2010, but before July 1, 2012.
Homeowners’ Association Board of Directors Eligibility and Meetings (HOAs)
- Carries over the provisions in the Condominium Act regarding board eligibility. A person who is delinquent in the payment of any monetary obligation to the association for more than ninety (90) days, and convicted felons will not be eligible to serve on the board.
- Allows members of a homeowners’ association to speak at meetings of the board with reference to all designated agenda items, and will no longer require a petition of the voting interests to speak at a board meeting.
Manual Fire Alarm Systems (Condo and Cooperatives)
- Clarifies that a condominium, cooperative or multi-family residential building that is less than four stories in height and has an exterior corridor providing a means of egress is exempt from installing a manual fire alarm system. This corrects the glitch from last year when two different bills adopted different language. One bill referred to buildings less than four stories in height, and another bill referred to condominiums one or two stories in height.
Hurricane Protection Installation (Condo)
- Clarifies that an association is permitted to install impact glass or other code compliant windows as hurricane protection.
Joint and Several Liability (Condo and HOAs)
- Provides that an association that acquires title to a unit through foreclosure is not liable for unpaid assessments that came due before the association’s acquisition of title in favor of any other condominium association or homeowners’ association which holds a superior interest on the unit.