Q: Did the 2008 Legislature make any changes to the Condominium Act?
A: Last week this column summarized many of the major changes to the Condominium Act by the 2008 Legislature, most of which are effective Oct. 1, 2008. This week examines additional amendments.
Association installation of hurricane protection has apparently created problems around the State. The Condominium Act required associations to adopt hurricane shutter specification and allowed owners to install hurricane shutters in accordance with those specifications. The Act also allowed an association to install hurricane shutters, if approved by a majority of voting interests in the condominium. The association is now authorized to install other types of hurricane protection that meets or exceeds applicable code, with approval of a majority of voting interest. Where hurricane protection has been previously installed, the board may not install hurricane shutters or other hurricane protection.
If a condominium building is more than three stories tall, at least every five years the board will be required to have the condominium building inspected to provide a report under seal of an architect or engineer authorized to practice in Florida attesting to required maintenance, useful life and replacement costs of the common elements. This requirement may be waived by a majority of the voting interests present at a properly called meeting of the association.
Under the amended Act, owners will be allowed to attach to the mantel or frame of the door of the unit a religious object not to exceed three inches wide, six inches high and 1.5 inches deep.
Associations have had the right to file a lien against an owner for unpaid assessments. From time to time, such owners claim that they never got an invoice or notice that the assessment was due. The Act has been amended to require associations provide notice of intent to file a lien to a unit owner no less than thirty days prior to the filing of the lien. The notice must be by certified mail to the owner’s last known address in the records of the association. If that address is outside of the United States, notice must be sent by first class mail to the unit and to the address outside of the United States. Delivery of the notice is deemed given upon mailing. As an alternative, the association can serve the notice in the manner required for service of a law suit. The former law only required thirty days notice prior to foreclosing a lien, if the association wanted to recover attorney’s fees plus the unpaid assessments.
The board of directors is given more flexibility and authority in event of damage when a state of emergency is declared under Florida Statutes Section 252.36 in new Section 1265. This expanded power includes providing such notice as is practicable, entering agreement with local governments to assist with debris removal, require evacuation of condominium property in the event of a mandatory evacuation order. The board can also mitigate further damage by contracting to remove and dispose of wet or damaged interior portions of a unit and to contract on behalf of an owner for items that the owner is otherwise individually responsible for and which are necessary to prevent further damage to the condominium property. The expanded powers are limited to the time reasonably necessary to protect the health, safety and welfare of the association and the owners and persons on site and to mitigate further damage and make emergency repairs.
A contract for operation, maintenance or management of a condominium association or property serving unit owner will not be valid in the future unless it discloses any financial or ownership interest, a board member or any party providing maintenance or management services to the association holds with the contracting party.
The Act has long had a requirement for competitive bidding of larger contracts. Associations with less than one hundred units used to be able to opt out of competitive bidding if two-thirds of the unit owners voted to do so. Opting will be limited in the future to associations with ten or fewer units under the amended Act.
Apparently, the Legislature was quite concerned with conflicts of interest. Not only must future contracts disclose the financial relationship of a board member with a contracting party, but such contract must also be approved by two-thirds of the directors present at a board meeting. The contract must be brought to the next regular or special owners meeting and upon motion of any member the contractor transaction must be brought for a vote of unit owners and may be cancelled by a majority vote of the members present. This appears to be one area where a limited proxy vote is not required, but the owner must be in attendance to vote.
Fining committees must be composed of owners who are neither board members nor persons residing in a board member’s household.
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 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 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 email@example.com or by fax to (239) 642-0722. Read other columns at http://www.wgmorris.com.