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Legislative Guide

A LETTER FROM THE EXECUTIVE DIRECTOR OF CALL

Donna DiMaggio Berger,
Founder & Executive Director

Dear CALL Members:

Our 2020 Legislative Guidebook is designed to help your volunteer board and management professionals understand and implement the new laws which impact community associations each year. Given the significant percentage of Florida’s population which resides in shared ownership communities, we are virtually guaranteed to have numerous association bills sponsored each year with some of those proposals becoming new laws.

Florida’s 2020 Legislative Session produced the long-awaited criminalization of fraudulent emotional support animal requests. As of July 1st, people who submit fraudulent documentation to support their request for a service animal or an emotional support animal (ESA) in a Florida community or who otherwise hold themselves out as being physically or mentally disabled when they are not, risk being imprisoned, fined and/or ordered to perform community service. Already we are seeing an encouraging trend that when associations use experienced counsel to engage in a meaningful dialogue with the requesting party, insufficient documentation becomes more apparent and dubious requests are often withdrawn.

There are also new legal protections for condominium, cooperative and HOA residents to park a law enforcement vehicle in their communities as well as new rights for HOA residents to use fireworks on the 4th of July, Christmas Eve, New Year’s Eve and New Year’s Day regardless of any HOA restrictions to the contrary.

One of the newly passed laws declares void and unenforceable all “discriminatory restrictions” (e.g. those based on race, color, national origin, religion, gender, or physical disability) contained in any recorded title transaction. Some older association documents may contain pernicious, decades-old discriminatory use restrictions that can now easily be removed by an amendment approved by a majority vote of the board of directors. With our 6-month hurricane season in Florida, the new law which amends Section 631.57 of the Florida Statutes to increase the amount of coverage for property insurance claims by a condominium, cooperative or homeowners’ association under the Florida Insurance Guaranty Association (FIGA) from $100,000 to $200,000 multiplied by the number of units is a positive change.

Lastly, associations operating “55 and Over” communities will welcome the news that a new law deletes the prior registration requirements (a letter to the Florida Commission on Human Relations once every two years, with a fine of up to $500 if they failed to do so) for these communities and eliminates related forms, fees, and fines.

While many of the foregoing new laws are helpful, the community association legislation passed during Florida’s 2020 Legislative Session unfortunately could not address the unprecedented challenges presented by the COVID-19 pandemic as the Session ended right when the health crisis erupted. Volunteer boards who had never grappled with a pandemic before made impactful decisions to close certain amenities, restrict the flow of visitors into the community and marshaled the resources needed to heighten sanitization and implement other safety measures needed to protect their residents. All of this was done at times in the face of vocal resident opposition and a lack of clarity and support from government officials.

It is CALL’s mission, however, to ensure that the crop of 2021 association bills will incorporate some of the lessons we’ve learned from the COVID-19 crisis and provide new tools to assist volunteer boards in the coming years. In the interim, there are steps your community can take by amending your governing documents and implementing necessary policies and protocols to provide you with greater flexibility and a wider range of options when you are inevitably confronted with the next challenge life brings your way.

Wishing you all continued health and happiness.

 

 

Donna DiMaggio Berger, Founder & Executive Director
Community Association Leadership Lobby

COMMUNITY ASSOCIATION BILLS THAT PASSED

(The last bill was signed into law in September)

Senate Bill 476 – Law Enforcement Vehicles

Sponsors:
Senator Ed Hooper (R – Dist. 16 Pasco, Pinellas)
Law of Florida Cite:
2020-5, Laws of Florida
Effective Date:
February 21, 2020
Sections Amended:
718.129, F.S.; 719.131, F.S.; 720.318, F.S.

Extra Notation:
Applies to condominiums, cooperatives and homeowners’ associations by amending Sections 718.129, 719.131, and 720.318, Florida Statutes, to allow an owner, tenant, or guest to park his or her assigned law enforcement vehicle in an area where the owner, tenant, or guest may otherwise park. If your governing documents restrict commercial vehicles, that restriction may not be applied to the parking of a law enforcement vehicle. Rather, the law enforcement vehicle must be treated as the owner’s, tenant’s, or guest’s personal vehicle.

Senate Bill 1084 – Emotional Support Animals

Sponsors:
Senator Manny Diaz, Jr. (R – Dist; 36 Miami-Dade); (CO-INTRODUCER) Senator Bill Montford (D – Dist. 3; Calhoun, Franklin, Gadsden, Gulf, Hamilton, Jefferson, Leon, Liberty, Madison, Taylor, Wakulla)
Law of Florida Cite:
2020-76, Laws of Florida
Effective Date:
July 1, 2020
Sections Amended:
413.08, F.S.; 419.001, F.S.; 456.072, F.S.; 760.22, F.S.; 760.23, F.S.; 760.24, F.S.; 760.25, F.S.; 760.27, F.S.; 760.29, F.S.; 760.31, F.S.; 817.265, F.S.

Extra Notation:
Applies to condominium, cooperatives and homeowners’ association. The new law allows a housing provider, such as a community association, to request certain written documentation prepared by a health care practitioner in a format prescribed in rule by the Department of Health. The practitioner or provider of the supporting information must have personal knowledge of the person’s disability and must be acting within the scope of his or her practice. If a person falsifies information or written documentation or knowingly provides fraudulent information to obtain an emotional support animal, they can be charged with a misdemeanor of the second degree.

House Bill 469 – Subscribing Witnesses for Leases

Sponsors:
Wyman Duggan (R- Dist. 15; Jacksonville)
Law of Florida Cite:
2020-102, Laws of Florida
Effective Date:
July 1, 2020
Sections Amended:
689.01, F.S.

Extra Notation:
The new law provides that witnesses are no longer required for a lease of real property or any instrument pertaining to a lease of real property by amending Section 689.01, Florida Statutes, to eliminate the requirement that two subscribing witnesses be present when the lessor, or lessor’s lawfully authorized agent, signs a lease with a term of more than one year.

Senate Bill 1362 – Rental Agreements upon Foreclosure

Sponsors:
Jose Javier Rodriguez (D- Dist. 37; Miami-Dade)
Law of Florida Cite:
2020-99, Laws of Florida
Effective Date:
July 1, 2020, except as otherwise expressly provided.
Sections Amended:
Repeals 83.561, F.S.; Creates 83.5615, F.S.

Extra Notation:
The law was enacted as of July 1, 2020, but the provisions only take effect upon the repeal of the federal Protecting Tenants at Foreclosure Act (PTFA). This amendment is intended to clarify the preemption of Section 83.561 by repealing that law and enacting Section 83.5615, which similar to the federal PTFA, requires that a tenant receive 90 day notice to vacate in the case of any foreclosure on a federally-related mortgage loan. Now under the state law, the immediate successor in interest at foreclosure must: (a) provide bona fide tenants with 90 days’ notice prior to eviction; and, (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property.

Senate Bill 140—Fireworks/HOA Rules

Sponsors:
Travis Hutson (R- Dist. 7; Flagler, St. Johns County); (CO-INTRODUCER) Rob Bradley (R- Dist. 5; Baker, Bradford, Clay, Columbia, Dixie, Gilchrist, Lafayette, Levy, Marion, Suwannee, Union)
Law of Florida Cite:
2020-11, Laws of Florida
Effective Date:
April 8, 2020
Sections Amended:
Creates 791.08, F.S.

Extra Notation:
Creates Section 791.08, Florida Statutes, which prohibits a homeowners’ association from promulgating rules that abrogate a homeowner’s right to use fireworks on Independence Day, July 4; New Year’s Eve, December 31; and New Year’s Day, January 1. The law does not supersede any prohibition against the use of fireworks contained within a recorded declaration, but an HOA board may not promulgate rules that prohibit a homeowner’s right to use fireworks during one of the three designated holidays.

Senate Bill 374 – Housing Discrimination

Sponsors:
Darryl Rouson (D – Dist. 19; Hillsborough, Pinellas)
Law of Florida Cite:
2020-164, Laws of Florida
Effective Date:
September 4, 2020
Sections Amended:
712.05, F.S.; 760.07, F.S.; 760.34, F.S.; 760.35, F.S.

Extra Notation:
Creates Section 712.05, Florida Statutes, which declares void and unenforceable all “discriminatory restrictions” contained in any recorded title transaction. Defines a “discriminatory restriction” as a provision which restricts the ownership, occupancy, or use of any real property by any natural person on the basis of a characteristic that has been held, or is held after the effective date of the act, by the United States Supreme Court or the Florida Supreme Court to be protected against discrimination under the Fourteenth Amendment to the United States Constitution or under Section 2, Art. I of the State Constitution, including race, color, national origin, religion, gender, or physical disability. Upon request of a parcel owner, a discriminatory restriction appearing in a covenant or restriction affecting the parcel may be removed from the covenant or restriction by an amendment approved by a majority vote of the board of directors of the respective property owners’ association or an owners’ association in which all owners may voluntarily join, notwithstanding any other requirements for approval of an amendment of the covenant or restriction. Amends Section 760.34, Florida Statutes, to allow a person alleging housing discrimination to file a civil action under the Florida Fair Housing Act (“FFHA”) without first having to “exhaust” his or her administrative remedies (i.e. filing and waiting for the resolution of a housing discrimination complaint with the Florida Commission on Human Relations).

House Bill 529 – Insurance Guaranty

Sponsors:
Jennifer Webb (D- Dist. 69; Pinellas); Byron Donalds (R – Dist. 80; Hendry, Collier) ; (CO-INTRODUCERS) Richard Stark (D – Dist. 104; Broward); Cyndi Stevenson (R – Dist. 17; St. John)
Law of Florida Cite:
2020-155, Laws of Florida
Effective Date:
July 1, 2020
Sections Amended:
631.57, F.S.

Extra Notation:
Amends Section 631.57, Florida Statutes, to increase the amount of coverage for property insurance claims by a condominium, cooperative or homeowners’ association under the Florida Insurance Guaranty Association (FIGA) from $100,000 to $200,000 multiplied by the number of units.

House Bill 255 – Florida Commission on Human Relations

Sponsors:
Bruce Antone (D- Dist. 46; Orange); (CO-INTRODUCERS) Tracie Davis (D-Dist. 13; Duval)
Law of Florida Cite:
2020-153, Laws of Florida
Effective Date:
July 1, 2020
Sections Amended:
760.03, F.S.; 760.065, F.S.; 760.11, F.S.; 760.29, F.S.; 760.31, F.S.; 760.60, F.S.; 112.31895, F.S.

Extra Notation:
The bill amends several statutes pertaining to the Florida Commission on Human Relations (“FCHR”) which administers Florida’s civil rights and fair housing laws and among other things is empowered to investigate and hold hearings concerning complaints of discrimination. Most significantly to associations operating as 55+ communities, the amendment to Section 760.29, Florida Statutes, deletes the registration requirements for claiming the “Housing for Older Persons” exemption and eliminates related forms, fees, and fines. Under what is known as the 80/20 Rule, the State allows communities an exemption from the Fair Housing Act if certain criteria is met including: (1) that at least 80% of the units must be occupied by at least one resident over the age of 55; (2) the community publish and adhere to policies and procedures demonstrating an intent to provide housing for persons 55 years of age or older; and (3) the association engage in appropriate age verification procedures that includes a community census from time to time. While the prior version of the law also required associations to submit a registration letter to the FCHR once every two years, with a fine of up to $500 for failing to do so, the amendment removes this obligation.

Senate Bill 838 – Business Organization

Sponsors:
Senator David Simmons
Law of Florida Cite:
2020-32, Laws of Florida
Effective Date:
June 18, 2020
Sections Amended:
617.0825, and other provisions in Chapter 605, 607, and 617, F.S.

Extra Notation:
The bill amends s. 617.0825, F.S. regarding committees and appears to distinguish between “Board committees” and “advisory committees”. Provides that the board may create an executive committee and one or more other committees of the board.  The majority of the person on such committees must be directors, except that a board committee may be composed of less than a majority of directors or entirely of non-directors if the committee is created by the board or is otherwise authorized by the articles of incorporation or bylaws or if the committee relates to the election, nomination, qualification, or credentials of directors or is involved in the process of electing directors. There is an exception to the extent provided by the board in a resolution or in the articles of incorporation or bylaws, each such committee shall have and may exercise powers and authority of the board, except that no such committee shall have the power or authority to approve or recommend to members actions or proposals required by chapter 617 to be approved by members, fill vacancies on the board or any committee thereof, adopt, amend, or repeal the bylaws. Unless the articles of incorporation or bylaws provide otherwise, the provisions of ss. 617.0820, 617.0822, 617.0823, and 617.0824, which govern meetings, notice and waiver of notice, and quorum and voting requirements of the board of directors, apply to committees and their members as well. Each committee must have two or more members who serve at the pleasure of the board, and the board may designate alternate members. A committee member who is not a director has the same responsibility and fiduciary duties, and the same liability protections, as committee member who is a director. A corporation may create or authorize the creation of one or more advisory committees with any number of persons on the committee being non-directors.  An advisory committee is not a committee of the board of directors and may not act on behalf of or exercise any of the powers or authority of the board or bind the corporation to any action, but may make recommendations to the board of directors, to the officers, or to the members.

Stay up to date with Becker’s dedicated resource page on COVID-19. All information is posted to educate and inform our clients but does not constitute specific legal advice for your community. Please consult your Becker attorney for questions specific to your own community. CLICK HERE

IS IT TIME TO AMEND YOUR DOCUMENTS?

As the saying goes, change is the only constant in life. This fact applies equally to boards of directors of community associations who are tasked with operating their communities consistently with existing governing documents, even if those documents no longer fit the needs of the community or no longer comply with existing laws.

You should occasionally review your documents to ensure that they are consistent with both the existing scheme and vision of the community and the laws which apply to the community.

DOWNLOAD AMENDMENT CHECKLIST NOW

The general question of whether Governing Documents should be amended has no correct answer. Instead the board’s investigation should consider many factors, including the following:

  1. The age of the Governing Documents. For instance, how many laws have been amended since the documents were created?
  2. The existing scheme of the community. For instance, do most owners now have small children; what is the existing mix between owner occupants and investor owners?
  3. The operation of the association. For instance, should there be more or less board members, does the quorum requirement need to change?
  4. Do your Governing Documents have so many amendments that owners are confused as to what is the correct text?

Now is a perfect time to review and make appropriate changes, if necessary, and to get in front of some of the proposed legislative changes which did not pass this year but will come up again in the near future.

Please use our “General Amendment Checklist” to assist you in this endeavor. We suggest that you consult with your association’s attorney to identify key provisions in your Declaration, Bylaws, Articles of Incorporation, and/or Rules and Regulations that should be removed or amended to reflect the current law and present needs of your association.

As always, Becker would be happy to work with your board to ensure that your governing documents are not only comprehensive and up-to-date but also ahead of the game on the issues that matter most to your community.

Becker Launches Public Adjusting Firm for Community Associations

Becker is pleased to announce the launch of Association Adjusting, the one and only public adjusting company that exclusively serves community associations throughout Florida.

Virtually every community association will experience a significant property damage claim at some point during its lifespan. In addition to windstorms, fires and floods there are the everyday water leaks with which volunteer boards and managers must contend. While it is reasonable to believe that after years of dutifully paying your insurance premiums your damage claims will be paid quickly and in full, the reality is often quite different.

Association Adjusting is a licensed and insured Public Adjusting Firm led by Joseph “Joe” Connelly, an advocate for insurance consumers for more than a decade.

CALLING ALL BOARD MEMBERS AND COMMUNITY MANAGERS

As a service to the community and industry, we are pleased to offer some of our most popular classes online! While our in-person classes remain suspended until further notice due to COVID-19, we are thrilled to bring you the following classes to take from the comfort of your own home.


HOA/Condo Board Member Certification – Watch Replay
Disaster Preparedness and Recovery – Watch Replay
Anatomy of a Water Leak – Watch Replay
Understanding Our Bylaws – Watch Replay
Is a “No Pet” Building a Thing of the Past? – Watch Replay
How to Properly Run an Election – Watch Replay
Budgeting & Reserves – Watch Replay

We did the math.

Becker has the largest, dedicated team of Board Certified attorneys in Condominium and Planned Development Law among any firm in the state.

We did the math.

Becker has the largest, dedicated team of Board Certified attorneys in Condominium and Planned Development Law among any firm in the state.

Becker’s Construction Practice Receives Top
Band 1 Recognition in 2020 Chambers USA Guide

For more than four decades Becker’s attorneys have been helping communities pursue their rights against developers and design professionals for defects associated with new construction renovation and repair projects. We understand that the more time you spend negotiating and drafting your construction contracts, the less time you’ll spend fighting the results afterwards.

Becker’s Construction Law & Litigation Practice is renowned for its knowledge of the construction industry and experience effectively protecting the interests of its clients. Chambers USA, one of the legal professions most prestigious ranking directories, has recognized the firm’s construction group every year since it began publishing its global law firm ranking guide. While we are honored to be one of four Florida-headquartered firms recognized in the preeminent Band 1 position, we are most proud of the work we do every day on behalf of our clients.

Click here to read more.

Becker’s Construction Practice Receives Top Band 1 Recognition in 2020 Chambers USA Guide

For more than four decades Becker’s attorneys have been helping communities pursue their rights against developers and design professionals for defects associated with new construction renovation and repair projects. We understand that the more time you spend negotiating and drafting your construction contracts, the less time you’ll spend fighting the results afterwards.

Becker’s Construction Law & Litigation Practice is renowned for its knowledge of the construction industry and experience effectively protecting the interests of its clients. Chambers USA, one of the legal professions most prestigious ranking directories, has recognized the firm’s construction group every year since it began publishing its global law firm ranking guide. While we are honored to be one of four Florida-headquartered firms recognized in the preeminent Band 1 position, we are most proud of the work we do every day on behalf of our clients.

Click here to read more.

Hand in Hand

SERVICES THAT COMPLIMENT OUR COMMUNITY ASSOCIATION CORE PRACTICE

We wrote the law relating to common ownership housing. These additional services stem directly from 45+ years of representation and innovation.

REAL ESTATE

Real Estate law has been a core practice for Becker since its founding in 1973. The firm has helped shape the local landscape through representation of developers of multi-family and single-family residential communities; business and property owners; and financial institutions. We have represented clients in the successful acquisition, financing, development, and sale of all types of unimproved land and improved properties for residential and commercial use.

CONSTRUCTION LAW & LITIGATION

The firm has handled numerous and varied construction-related cases, many of which have involved complex issues with a multitude of defendants and scores of construction defects. Our attorneys represent clients in both transactions and disputes ranging from single- and multi-family dwellings to large commercial buildings, planned unit developments, multi-use retail, industrial, and governmental projects.

Title Services

The firm operates Becker Title to assist clients with residential real estate closings, title and escrow services. Becker Title has offices throughout Florida and is backed by a team of attorneys who have handled thousands of successful real estate closings.

BUSINESS LITIGATION

The firm’s Litigation Practice is dedicated to providing strategic, innovative, and aggressive representation for our clients in all litigation matters. Becker’s reputation as a pioneer and leader in community association law is well-known throughout the legal community. There is almost no issue our attorneys have not dealt with before – everything from civil and criminal cases to foreclosure and complex contractual matters.

GOVERNMENT LAW & LOBBYING

Our dedicated Community Association Leadership Lobby (CALL) is a statewide advocacy group that represents the interests of our over 4,000 community association clients. We help draft legislation and work closely with legislators and members of the executive branch to improve the laws that impact community associations in Florida. Additionally we represent condo clients in negotiations with various developers, municipalities, and utilities on zoning issues, easements, and settlements.

SERVICES THAT COMPLIMENT OUR COMMUNITY ASSOCIATION CORE PRACTICE

Hand in Hand

We wrote the law relating to common ownership housing. These additional services stem directly from 45+ years of representation and innovation.

REAL ESTATE

Real Estate law has been a core practice for Becker since its founding in 1973. The firm has helped shape the local landscape through representation of developers of multi-family and single-family residential communities; business and property owners; and financial institutions. We have represented clients in the successful acquisition, financing, development, and sale of all types of unimproved land and improved properties for residential and commercial use.

CONSTRUCTION LAW & LITIGATION

The firm has handled numerous and varied construction-related cases, many of which have involved complex issues with a multitude of defendants and scores of construction defects. Our attorneys represent clients in both transactions and disputes ranging from single- and multi-family dwellings to large commercial buildings, planned unit developments, multi-use retail, industrial, and governmental projects.

GOVERNMENT LAW & LOBBYING

Our dedicated Community Association Leadership Lobby (CALL) is a statewide advocacy group that represents the interests of our over 4,000 community association clients. We help draft legislation and work closely with legislators and members of the executive branch to improve the laws that impact community associations in Florida. Additionally we represent condo clients in negotiations with various developers, municipalities, and utilities on zoning issues, easements, and settlements.

Title Services

The firm operates Becker Title to assist clients with residential real estate closings, title and escrow services. Becker Title has offices throughout Florida and is backed by a team of attorneys who have handled thousands of successful real estate closings.

BUSINESS LITIGATION

The firm’s Litigation Practice is dedicated to providing strategic, innovative, and aggressive representation for our clients in all litigation matters. Becker’s reputation as a pioneer and leader in community association law is well-known throughout the legal community. There is almost no issue our attorneys have not dealt with before – everything from civil and criminal cases to foreclosure and complex contractual matters.