Rob Samouce: New 2008 legislation that will affect condominium associations - Part 2

— Last month we looked at Part I of the new laws affecting condominium associations that came into being by House Bill 995. Because the bill was 87 pages long with so many changes, we had to break the review into two parts. In this article (Part II), we will review the remainder of the new laws contained in House Bill 995. These new condominium laws do not go into effect until Oct. 1, 2008 so there is plenty of time to get used to them. We will also review a new change contained in House Bill 697 relating to energy devices that became effective on July 1, 2008. We will look at some of the new homeowners’ association laws next month.

Hurricane shutters: Now, if the maintenance, repair, and replacement of hurricane shutters or other forms of hurricane protection are the responsibility of the association pursuant to the declaration of condominium, the board may install hurricane shutters and/or hurricane protection that complies with or exceeds the applicable building code without a vote of the owners as a common expense. If a majority of the members vote for the association to install hurricane shutter and the maintenance, repair and replacement of hurricane shutters is the responsibility of the owners, then the cost of installing the shutters will be an owner’s expense rather than a common expense. Once hurricane shutters are installed, either by the association or owners who perform the future maintenance, repair and replacement will be determined by the provisions contained in the Declaration of Condominium.

Building inspection: Unless waived by a majority of the voting interests prior to the end of every five-year period, the board must have the condominium building inspected at least every five years to provide a report under seal of an architect or engineer authorized to practice in Florida attesting to required maintenance, useful life, and replacement cost of the common elements.

Thirty-day notice of intent to file lien: For debts owed to the association by a unit owner, a lien cannot be filed against the condominium unit by the association until after the 30-day notice of intent to file the lien has been delivered to the owner.

SLAPP suits: Associations, individuals or governmental entities can face treble damage awards if they bring a SLAPP suit (strategic lawsuit against public participation) against a condominium unit owner. Such a suit is defined as a suit or claim against the owner without merit and solely because the owner exercised his right to petition for redress of grievances before state governmental agencies.

Association emergency powers: Now if a state of emergency is declared in the locale in which the condominium is located, a long list of emergency powers is granted to the association and its directors and officers to be able to continue to conduct association business during the emergency. Such powers, as spell out, should greatly assist condominium associations in the aftermath of any future hurricanes that may ever hit the area.

Turnover inspection report: In addition to association records and a turnover audit that must be provided to the association at turnover, the developer must now also provide a report under seal of an architect or engineer attesting to required maintenance, useful life, and replacement costs of a list of common element items.

Interest in association contracts: If there is any financial or ownership interest of a board member or any party providing maintenance or management services to the association with the contracting party, such interest must be disclosed in the contract. The disclosure must also be entered into the minutes of the board meeting wherein the approval of at least two-thirds of the directors present is required for approval. At the next regular or special meeting of the members, the interest must be disclosed to the members and the contract can be cancelled if a majority of the members present at the meeting vote to cancel it.

Limited and increased division powers after turnover: After turnover of control of the association from the developer, the Division of Condominiums will now have jurisdiction to only investigate complaints related to financial issues, elections and owners access to association records. However, an additional power has been granted to the Division to order the removal of any individual from the board or as an officer for a period of time if the individual willfully or knowingly violates a provision of the Condominium Act. Also, if an association does not provide access to official records of the association within 10 days after proper request, the Division shall issue a subpoena requiring the production of the records.

Division training and education programs: The division shall, in its discretion, provide training via Web-based electronic media and live training and seminars at locations throughout the state, shall approve education and training programs for board members and unit owners, and shall maintain a list of approved programs and provide such list to directors and owners.

Cooperation with division investigations: Directors, officers, employees, developers, managers and management firms must reasonably cooperate with the Division in any investigation and the Division will refer to local law enforcement authorities any person whom the Division believes has altered, destroyed, concealed, or removed any record, document or thing, required to be kept or maintained for the purpose to impair its verity or availability in the department’s investigation.

Community Association Living Study Council: Every five years such a council shall be created for six-month terms. The seven members are to be appointed by the Senate, House and governor. The council is to receive public input on community association living in condominiums, cooperatives and homeowners’ associations and make recommendations for changes to the law relating to the associations and advise the legislature of same.

Governance of condominium association forms: Prospective purchasers are now entitled to receive, from non-developer sellers of condominium units, a copy of a governance form provided by the division summarizing governance of condominium associations including, but not limited to, the role of the board, meeting notices, right of owners at meetings, maintenance responsibilities, record inspection rights, owner’s assessment payment responsibilities and voting rights.

As previously stated, the above new condominium laws, being a part of House Bill 995, become effective Oct. 1, 2008. The following new condominium law became effective July 1, 2008 as part of House Bill 697.

Solar-energy efficient devices: Condominium boards may now, without any approval of the membership, “install upon or within the common elements or association property solar collectors, clotheslines or other energy-efficient devices based on renewable resources for the benefit of the unit owners.

Rob Samouce, a principal attorney in the Naples law firm of Samouce, Murrell, & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners= associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.

© 2008 marconews.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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