It’s the Law: Florida condominium act gets revisions — part III

Q: Did the 2008 Legislature make any changes to the Condominium Act?

A: For the past two weeks this column summarized many of the major changes to the Condominium Act by the 2008 Legislature, most of which are effective October 1, 2008.

The Division has been given additional powers to protect associations and owners. The Division may order restitution from a developer. If a developer fails to pay the award within thirty days after the deadline for appeal, the Division may bring a court action to enforce the award and my also temporarily revoke its acceptance of the developer’s filing for the condominium to which the restitution relates until payment is made.

The Division has had authority to impose civil penalties against officers or board members who willfully and knowingly violate the Condominium Act, a rule adopted under the Act or final decision of the Division. Under the amended Act, it is granted additional authority to order removal of an officer or director and to prohibit such person from serving as an officer or director for such violations. If a unit owner presents the Division with proof that the unit owner has requested official records in writing by certified mail and the association has not provided the records within ten days and, after which time the unit owner made a second request by certified mail and more than ten days has elapsed without provisions of records, the Division must issue a subpoena requiring production.

Anyone who has purchased a condominium from a developer knows that the Act required substantial mandatory disclosure from developers. The Act also requires disclosure by non-developers on resale of condominium units.

Under the Condominium Act, non-developer sellers must provide, at the seller’s expense, a current copy of the Declaration, Articles of Incorporation of the Association, By-Laws and Rules of the association, financial information and a document entitled “Frequently Asked Questions and Answers” if requested by a purchaser. The purchaser has three business days after receipt of the documents within which to terminate contract with the seller.

The list of documents that a non-developer must provide upon request is expanded effective January 1, 2009 to include copy of a governance form. The form is to be provided by the Division and summarize governance of condominium associations.

Apparently, the Legislature feels that buyers need to be informed of certain aspects of condominium government, as the governance form to be prepared by the Division is to address (1) role of the board in conducting day-to-day affairs, (2) the board’s responsibility to provide advance notice of board and membership meetings, (3) rights of owners to attend and speak at board and membership meetings, (4) responsibility of the board and of owners with respect to maintenance, (5) responsibility of the board and owners to abide by the condominium documents, the Condominium Act, rules adopted by the Division and reasonable rules adopted by the board, (6) owners rights to inspect and copy association records and limitations on those rights, (7) remedies available to owners with respect to actions by the board which may be abusive or beyond the board’s power and authority, (8) right of the board to hire a property management firm subject to its own primary responsibility for such management, (9) responsibility of owners with regard to payment of regular or special assessments and the potential consequences of failure to pay, (10) voting rights of owners, and (11) rights and obligations of the board and enforcement of rules in the condominium documents and rules adopted by the board.

The governance form is also to include the following statement in conspicuous type.

“This publication is intended as an informal educational overview of condominium governance. In the event of a conflict, the provisions of Chapter 718, Florida Statutes, rules adopted by the Division of Florida Land Sales, Condominiums and Mobile Homes of the Department of Business and Professional Regulation, the provisions of the condominium documents, and reasonable rules adopted by the condominium association’s board of administration prevail over the contents of this publication.”

The 2008 Legislature was more active in the condominium area than it has been in a number of years. It will be important for condominium owners to become familiar with the new rules before they become effective. It will be even more important for directors, managers and condominium attorneys to be educated.

When new statutes are adopted, there can be confusion and questions about meaning and intent. That means good legal advice in this area will be elevated in importance. Associations that merely continue business as usual may face serious problems.

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William G. Morris is a lawyer with offices at 247 N. Collier Blvd., Marco Island. The column is not intended to be legal advice for specific circumstances. General questions can be sent by e-mail to wgmorrislaw@earthlink.net or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.

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