Q: Did the 2008 Legislature make any changes to the Condominium Act?
A: In 2008, the Legislature made a number of changes to the Condominium Act. Most of them take effect Oct. 1. This article will reference some of the more important changes. All of the references in this article are to Chapter 718, Florida Statutes.
Section 111 (1) (d) specifies that an officer, director or agent will be liable for monetary damages if he or she fails to perform his or her duties and the failure is a criminal act, or is a transaction from which the officer or director receives an improper personal benefit or constitutes recklessness or was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety or property.
Section 111 (12) (a) 11 provides that any person intentionally destroying accounting records or intentionally failing to create or maintain accounting records required by the Condominium Act is subject to a civil penalty by the Division of Florida Land Sales, Condominiums and Mobile Homes of the Department of Business and Professional Regulation.
Official records of the association will have to be maintained for at least seven years. The records always had to be made available to a unit owner within five working days of receipt of a written request, but the act now specifies that the records must be made available within 45 miles of the condominium property or within the county in which the condominium property is located. The association may also offer the option of making the records available to a unit owner either electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.
Social Security numbers, driver’s license numbers, credit card numbers and other personal identifying information of any person are added to the short list of information that is not accessible to unit owners.
Year end financial reports will be required to include a statement that reserves are funded at a sufficient level to avoid special assessment and, if not, the amount of assessments necessary to bring the reserves up to the level required to avoid a special assessment.
Section 112 of the act now provides that no voting interest or consent right allocated to a unit owned by the association shall be exercised or considered for any purpose, whether for a quorum, an election or otherwise. That means associations cannot vote for a unit owned by the association.
Board meetings were also addressed. If 20 percent of the voting interests petition the board to address an item of business the board must at its next regular board meeting or at a special meeting of the board not later than 60 days after receipt of the petition place the item on the agenda. Notice must be given to all owners of any board meetings in which regular or special assessment will be considered. The notice must now include estimated cost and description of the purpose for such assessments.
Unit owner meetings will be limited to the location provided in the by-laws and, if the by-laws do not provide a location, within 45 miles of the condominium property. In a condominium with more than 10 units, co-owners of a unit may not serve as members of the board of directors at the same time.
The Condominium Act previously prohibited persons convicted of a felony from serving on the board of directors. The disqualifying factors have been expanded to include persons suspended or removed by the division or who are delinquent more than ninety days in the payment of regular assessments. Convicted felons whose civil rights have been restored may still not serve on the board until at least five years have passed since their rights were restored. A director or officer charged with a felony theft or embezzlement involving association money or property is removed from office. As long as the charges are pending, the person may not be appointed or elected to a position as a director or officer. If the charges are resolved without a finding of guilt, the director or officer is reinstated for the remainder of his or her term (if any).
The legislature made other changes to the act, many of which will be explained in next week’s article.
When new statutes are adopted, there can be confusion area 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.
William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney. Questions for this column can be sent to: William G. Morris, e-mail: email@example.com or by fax, (239) 642-0722.