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Is Your HOA Management Company Accepting Earnings Credits?

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There should always be a matter of trust between a homeowners’ association and the management company they choose to work with. After all, the management company oversees nearly all aspects of the community, from security to vendors to banking. 

While the board officially votes to hire vendors, it relies on the management company to put together the requests for proposals and to vet the vendors to ensure they have the experience and competence to perform the work to the highest standards.

No one expects your management company be paid cold hard cash to push companies as a vendor. Under Florida law, a manager of an association commits a felony if they accept kickbacks, but in one particular type of kickback, it’s an institutional issue – banking.

Across the country, homeowners’ associations are finding out that some management companies are accepting payments to pool all of their various association funds in exchange for large cash payments to the management company.

Of course, the associations who have their funds with these banks are not receiving any of the payouts. Instead, they are actually punished with lower interest rates on their deposits so the banks can pay the management company.

The attorneys at The Orlando Law Group are focused on weeding out these unscrupulous management companies, representing associations to ensure they receive any funds that were mismanaged and were not utilized with the fiduciary responsibility entrusted to them.

How Did This Begin? 

In the late ‘90s and early 2000s, banks started to realize that HOAs were good business with large deposits without a lot of risk. When management companies combine the funds from multiple associations, it becomes a substantial amount of money.

Think about this. A small association may have $100,000 in funds in reserve or its operating account. While a bank may like those funds, it’s not a game-changing piece of business for any bank. 

But when that small association hires a national management company, they are part of a group with 100, 500 or 1,000 other similar-sized HOAs, all with $100,000 in funds. The management company is now depositing $100,000. They are depositing $10 million, $50 million or $100 million. 

Those types of deposits are highly sought after.

At first, the banks looked at the management company’s banking software. Remember, this was the late 1990s, and most companies – including association management companies – were trying to figure out how the internet and new types of software could be utilized.

As an incentive to choose their bank, they would offer free software to management companies to help make them more efficient. 

However, as this type of software became more prevalent and interest rates fell, the banks turned to another form of luring association management companies: cash payouts. They called them earnings credits, but they are kickbacks.

What is an Earnings Credit?

It’s fairly simple. 

In exchange for depositing funds in Acme Bank, Acme Management Company gets a percentage of those funds back in a cash payment every year.

Typically, the rate of cash payments ranges between three percent to five percent annually. On that isolated association funds of $100,000, it’s not a huge amount – only a few thousand dollars. 

However, on the combined funds of $100 million, that’s a $5 million payday every year for the HOA management company. 

Many association management companies are dependent on these payments for profits. It is written into the management company’s budgets as a source of income.

Since it is a corporate decision and payment to the larger corporation, the individual association often does not know its management company is getting a payment for the association to bank with Acme Bank.

It Is Worse Than It Seems

Of course, that money is not prorated and sent back to the association. It is kept by the management company. 

However, one of the primary ways a bank pays for the earnings credit is to offer lower interest rates on deposited funds, costing the association money.

For instance, a three percent interest rate on a $100,000 savings account will net an association more than $22,000 over a five-year period. If the bank lowers its interest rate just one point, that will cost the association nearly $7,000.

Meanwhile, the management company may have been paid between $9,000 and $15,000 in cash from the earnings credit.

In a nutshell, the bank gets the business, the management company gets the cash and the association actually loses money.

Isn’t This Illegal?

In some states, it is strictly forbidden without a disclosure. 

For instance, in California, the law says management companies must disclose “any business or company in which the common interest development manager or common interest development management firm has any ownership interests, profit-sharing arrangements, or other monetary incentives provided to the management firm or managing agent.”

In Florida, kickbacks are a felony. 

“An officer, a director, or a manager may not solicit, offer to accept, or accept a kickback. As used in this subsection, the term “kickback” means any thing or service of value for which consideration has not been provided for an officer’s, a director’s, or a manager’s benefit or for the benefit of a member of his or her immediate family from any person providing or proposing to provide goods or services to the association. An officer, a director, or a manager who knowingly solicits, offers to accept, or accepts a kickback commits a felony of the third degree…and is subject to monetary damages.”  

Recently, an association in California filed a class action lawsuit against one association management company, The Management Trust, for breach of contract, breach of fiduciary duty, unjust enrichment, violation of the Unfair Competition Law and other California statutes. The case seeks the return of all kickbacks paid to the defendant for a 10-year period, along with interest, attorney fees and costs. 

The Management Trust does not operate in Florida, but we expect other such suits to start being filed across the country. 

What You Can Do

Frankly, the first thing to do is to find out if your management company takes earnings credits from the bank you use if they have not disclosed the practice at some point. 

For instance, you’ll want your attorney to review the contract with your management company to be sure they did not disclose the practice in the fine print of the contract. 

If not, have your attorney write a letter to your management company asking them if they have accepted earnings credits from your bank and, if so, how much they have accepted from banks.

Thankfully, most management companies understand that accepting any sort of kickback is not ethical and does not provide the best service to its clients. They work for associations to ensure their funds are deposited in the bank that best services the associations’ interests, not the management company.

But if they are accepting earning credits, The Orlando Law Group will work to recoup any damages, like lost interest on deposited funds, for the association. 

The attorneys at The Orlando Law Group can help your association determine if your management company has accepted earnings credits, as we represent more than 100 communities in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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New Florida COA Laws Passed in Tallahassee: 2025 HOA/COA Updates

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In early April, we gave an update on some of the legislation that was on track to pass during the 2025 Legislative Session.

Usually, the Florida Legislature can cause major issues for associations, as our state lawmakers add new regulations and provisions on the management of homeowners’ and condominium associations.

While the session has been extended into June, all new legislation that does not involve the budget has either been passed or is dead until next session.

For associations, only one bill passed this year with a significant impact – HB 913.

This bill contained many provisions we discussed in our April blog post, but there were a few major changes with the final bill that will be sent to Governor Ron DeSantis for his signature.

Of course, he could veto the bill, but it provided some relief to condominium owners needing relief from the cost of milestone inspections and repairs without providing any tax dollars for financially-constrained associations.

If he signs the bill into law, all of this will take effect on July 1, 2025.

The attorneys at The Orlando Law Group can help associations with any changes that might come, ensuring your association remains in compliance with any new state statutes that might be enacted this year.

The Biggest Change of All

Sometimes, just one word can make all the difference in the world to people affected by legislation.

The word of the day? Habitable.

During the legislative process, bills are constantly amended or substituted with similar bills. After our article on the tentative condominium changes, a substitute bill was filed that included this line:

“A residential condominium association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that is three habitable stories or higher in height, as determined by the Florida Building Code.”

The only change to the statute in that line was adding the word “habitable.”

According to the Florida Building Code, habitable means: A space in a building for living, sleeping, eating or cooking. So with this change, any three-story condominium building where the first floor does not have living units will be exempt.

For instance, the first floor may be parking spaces or storage units. If that’s the case, and there are only two floors of habitable space above the first floor, a milestone inspection is not needed.

In addition, condominium units have been given more time to complete their milestone inspections, with the deadline moved to December 31, 2025 – a year later than previously required.

Both of these changes could help thousands of associations throughout the state.

What stayed in the bill?

In our previous article, we talked about several changes that were proposed and many of them made the final cut.

Perhaps the biggest change of those that are going to the governor is the ability for condominium associations to use lines of credit for structural reserves. Before, only special assessments were allowed to build a reserve to pay for repairs.

This provides tremendous relief, as many condo owners were being forced to sell to pay for special assessments required for reserves.

As for the rest of the bill here is a recap on what was discussed earlier:

  • Requirements for association managers in licensing, including a 10-year ban from the industry if a license is revoked for any reason.
  • Requirements to include the following in every contract between a manager and an association: The community association manager shall abide by all professional standards and record keeping requirements imposed pursuant to part VIII of chapter 468, Florida Statutes.
  • Requirements to have all public documents online within 30 days of them being finalized and to include the minutes from all board meetings of the last 12 months.
  • Approval of having a board meeting by videoconference or in person. However, no board member can attend an association meeting more than twice in a calendar year.
  • Requirements that those meetings must be recorded and retained as official records of the association.
  • Requirements for an alternate budget to be considered if a proposed budget’s assessments grow by 115 percent or more from year to year.
  • Requirements to create an online account with the state for each association, along with very specific requirements for that account.
  • Requirements for firms performing structural integrity studies to disclose prior to starting work that they intend to bid on the work suggested in the study.
  • Permission, without a vote of the board, to put association funds in “certificates of deposit or in depository accounts at a community bank, savings bank, commercial bank, savings and loan association, or credit union.”

What was taken out of the final bill?

A major element of the original bill was significant steps required for condominium associations for investments of funds outside of traditional bank accounts.

The proposed changes were:

  • Requiring a majority vote of all “voting interests” to allow other investments.
  • Creating an investment committee of at least two board members and two community members.
  • Adopting rules for investing funds with very specific caveats.
  • Requiring that the committee suggest investment advisors, with no connection to the board, the association or the management company, to the board to choose the advisor.
  • Investments cannot be in any funds or stocks in which the state is prohibited from investing.
  • Rules for the investment advisor, including reporting requirements and the ability to withdraw funds within 15 days.

Usually, language like this can often come back into future sessions, and much of this is best practice language with investments, so your association should look at implementing much of this before it becomes law.

The attorneys at The Orlando Law Group can help your association prepare for any new law as we represent more than 100 communities in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Florida HOA ARB Violation Fines: Statute of Limitations Explained

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If you’re part of a homeowners’ association (HOA) board or work with one, you’ve likely run into this question: How long do we have to enforce an Architectural Review Board (ARB) violation? What if a homeowner installed something years ago without approval, can we still issue a fine now?

We recently encountered this exact issue, where two HOA managers (let’s call them CMCA 1 and CMCA 2) disagreed about whether a homeowner could be fined for installing unapproved privacy screening several years ago. The violation wasn’t even noticed until years later!

So, who’s right? Let’s unpack it.

Is There a Time Limit for Enforcing ARB Violations?

Yes, and no. Here’s what you need to know…

Florida law does have a five-year statute of limitations that applies to legal action based on HOA covenants and restrictions. That’s found in Section 95.11(2)(b), Florida Statutes, which basically says that any lawsuit based on a written contract (like your HOA governing documents) must be filed within five years.

So, if your HOA wants to take someone to court to force them to take something down or comply with the rules? You have five years from the time the violation was discovered or should’ve been discovered.

But there’s a twist…

What About Fines? Are They Time-Barred?

Nope! The statute of limitations only applies to lawsuits, not to administrative actions like:

  • Issuing fines
  • Suspending common area privileges
  • Placing liens for unpaid amounts

These internal enforcement options are still on the table, even if the violation is older than five years, because you’re not filing a court action. You’re just enforcing your community rules through your own processes.

That means if a homeowner put up an unapproved structure years ago and you just discovered it, you can still fine them or suspend access to amenities, as long as you follow your governing documents and provide due process.

What Does This Mean for Your HOA?

  1. Don’t confuse lawsuits with fines. Just because you can’t take them to court doesn’t mean you can’t enforce the rules in other ways.
  2. Keep good records. Document when you discovered the violation, what steps you took, and all homeowner communications.
  3. Follow the process. Send proper notice, give the homeowner a chance to be heard, and keep things fair and transparent.

Final Thought

So yes, Florida HOAs can still fine for older ARB violations, even if they can’t go to court over them anymore. Fines, suspension of privileges, and liens are administrative tools—not legal actions—so they’re not bound by the five-year limit under the statute of limitations.

Still unsure what your association should do next? It’s always wise to talk to your HOA attorney before taking enforcement action, especially in borderline cases.

The attorneys at The Orlando Law Group have helped Homeowner Associations throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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What to Watch in Tallahassee with Community Association Management

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We’re about halfway through the 2025 Legislative Session in Florida and, like most years, there are several bills that could change how community associations, like Homeowners and Condominium Associations, can operate.

This industry is one of the most highly regulated of any industry in Florida, mainly because of the continual conflict between associations and home and condo owners. The legislature is responsible for setting the table for any issues that might arise.

Last year, the number of changes that happened for Homeowners Associations in Florida was substantial and many of those changes are still being implemented.

This year, the changes to association management do not look to be as significant, although there are some bills we are looking at that cover the milestone inspection and reserve requirements, the ability for virtual meetings, investment policies and, perhaps, an Homeowners’ Association Ombudsman for the entire state.

Nothing is final until Governor Ron DeSantis signs the bills into law during the summer, but similarly, nothing is entirely off the table until May, when the legislative session ends. Also, just because something is in – or not in – a bill does not mean it will be the same version when it passes.

If you want to know the details, here is a great graphic on how a bill becomes a law that is much more complicated than Schoolhouse Rock.

The attorneys at The Orlando Law Group can help associations with any changes that might come, ensuring your association remains in compliance with any new state statutes that might be enacted this year.

 CS/SB 1742: Condominium and Cooperative Associations

The main bill to watch will be CS/SB 1742.Any bill in Tallahassee with a “CS” in front of it should be taken seriously and this bill is no different.

It is a comprehensive bill covering issues facing condominium associations and has the highest likelihood of passing as it is being sponsored by the entire Regulated Industries Committee and its chair, Senator Jennifer Bradley. Plus, it has already passed its first committee in the Senate unanimously.

Here are a few things that would change if its most recent version passes:

  • Requirements for association managers in licensing, including a 10-year ban from the industry if a license is revoked for any reason.
  • Requirements to include the following in every contract between a manager and an association: The community association manager shall abide by all professional standards and record keeping requirements imposed pursuant to part VIII of chapter 468, Florida Statutes.
  • Requirements to have all public documents online within 30 days of them being finalized and to include the minutes from all board meetings of the last 12 months.
  • Approval of having a board meeting by videoconference or in person. However, no board member can attend an association meeting more than twice in a calendar year.
  • Requirements that those meetings must be recorded and retained as official records of the association.
  • Requirements to receive consent before communicating with unit and homeowners via electronic methods.
  • Requirements for an alternate budget to be considered if a proposed budget’s assessments grow by 115 percent or more from year to year.
  • Requirements to create an online account with the state for each association, along with very specific requirements for that account.
  • Requirements for firms performing structural integrity studies to disclose prior to starting work that they intend to bid on the work suggested in the study.

New investment policies may be coming

If this bill passes, there could be significant new processes for managing association funds.

The good news is that an association is permitted, without a vote of the board, to put association funds in “certificates of deposit or in depository accounts at a community bank, savings bank, commercial bank, savings and loan association, or credit union.”

If you want to do something different for investing your reserve funds, there may be new steps for you to take. They include:

  • Requiring a majority vote of all “voting interests” to allow other investments.
  • Creating an investment committee of at least two board members and two community members.
  • Adopting rules for investing funds with very specific caveats.
  • Requiring the committee must suggest investment advisors – with no connection to the board, the association or the management company – to the board to choose the advisor.
  • Investments cannot be in any funds or stocks of which the state is prohibited from investing.
  • Rules for the investment advisor, including reporting requirements and the ability to withdraw funds within 15 days.

One new aspect of investing and managing association funds is allowing a line of credit for structure reserves. These reserves were causing significant issues with associations because of the significant cost of repairs.

If this law passes, associations will be able to secure a line of credit for these expenses instead of pushing special assessments for a reserve fund.

We’ll share other bills as we continue through the rest of the 2025 Legislative Session.

The attorneys at The Orlando Law Group can help your association prepare for any new law that is passed the legislative session as we represent more than 100 communities in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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How to Help Your Community Avoid the Media Spotlight

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Nearly everyone has seen a broadcast of a reporter standing out front of a house where a heinous crime occurred or where a high-profile criminal lives. It is fairly standard for the media to congregate around the house. They want the video of the person accused of the crime leaving the house or of police in action around the house.

In most cases, the media will move on to the next story relatively quickly, leaving your neighborhood in peace, but other times, the media could stay at a house for a week or more. How long did the media stay in front of Casey Anthony and George Zimmerman’s houses? They were there for months.

As an association, it is imperative that you work to protect the residents of the community, and provide access to emergency vehicles and residents, but also understand that the reporters are trying to do their job too and are not there to cause an issue for you and your residents.

The attorneys at The Orlando Law Group can help associations put together a plan for when the media are interested in your community to ensure you stay within your legal rights, along with working to help lessen the impact when it happens.

Why would reporters visit a neighborhood?

Keep in mind, that nearly all media in any city have access to police radios. They are listening closely for any event that might be of interest to their viewers or readers. When they hear something of interest, they actively work to find as much information as possible about those involved.

Myriad events could trigger a reporter to enter your community.

Perhaps there was a murder at the house. Maybe the homeowner is an elected official caught with a prostitute. It is not rare for homeowners to be producing narcotics or growing marijuana in the garage. The resident could be the victim of a mass shooting away from the neighborhood.

While it sounds grim, no one wants to think that could happen to their neighborhood, it is important to be ready for when it happens, because, for nearly every community, something will happen eventually.

The communities that are prepared are the ones that will be able to move through the situation with minimal disruptions.

Can an association prevent the media from entering a community?

As is the case with so many questions pertaining to the law, the answer is that it depends.

If you operate a community without a gate, much of your community is public property, like the streets and sidewalks. In this situation, there is not much you can do to prevent news trucks from parking on the street, as long as they abide by the parking laws from the city or county.

Of course, if they decide to pull a truck into your community park, you can absolutely ask them to move and they will. If you feel they are breaking parking laws, you can contact local law enforcement to help alleviate the situation. Similarly, if they are preventing access to a part of a community, you can ask them to move to allow access and they will be required to do so.

If you manage a gated community, the answer is fairly simple. It is private property throughout the community, and you do not have to let a reporter past the gates.

However, the reporters will not leave the front of the community and will, instead, set up their trucks and live shots on the street and sidewalk – which is public property. Usually, they will aim their camera to the community entrance signage, again public property and not something you can prevent from happening.

Like with a non-gated community, media cannot block access for homeowners, and they can’t utilize community property without permission, but outside of that, you have very little control.

Help the reporters do their job with minimum intrusion

Like any business, it is important to have a crisis plan in place for the worst to happen.

This plan should have contacts for the community, which the media can reach out for assistance. This is generally the association management company and the association’s attorney. All other people in the organization need to ensure the media can reach out to them for assistance and not speak on behalf of the community.

Include a place where the media can park their trucks and a place where they can broadcast live shots. Remember, these could be late at night and early in the morning with bright lights, so try to find a place that could be used that would not interrupt neighbors.

Reporters truly appreciate organizations who are helpful and kind. They will usually comply with requests to move or to shine a light differently or avoid major disruptions.

That is not the case all the time, however.

When do you need legal help?

First of all, it is important to understand the laws about access for the public for your community. The reporters will know them and if you try to make up regulations, they will generally call your bluff.

Really, however, legal and law enforcement are only needed for rare circumstances where more than just a few reporters decide to camp out in a community. In those cases, you may need to have an attorney contact the news station or call law enforcement to the neighborhood.

The reporters have a right to be on public property, but they do not have a right to prohibit the right to quiet enjoyment of innocent neighbors. If it looks like reporters will be in a community with more than just one news cycle, it is important to engage your association attorney to provide advice and direction beyond the standard crisis plan.

Also, if there is damage caused by the news media to a resident’s or the community property, there may be legal avenues available to recoup payment to repair or replace damaged property.

The attorneys at The Orlando Law Group can help your association prepare for the worst case scenario as we represent more than 100 communities in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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What to do When ICE Shows Up at Your Community

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We have all seen the headlines about immigration raids happening throughout the United States. The federal government is making a point to showcase these raids on news media and often include agents in full tactical gear going into a community unexpectedly with guns drawn.

Beyond the news reports, there has been a substantial increase in immigration arrests. According to the Department of Homeland Security, there has been a 627% increase in Immigration and Customs Enforcement (“ICE”) arrests in the first two months of 2025 compared to the entirety of 2024.

For nearly anyone, the thought of armed law enforcement coming toward them is a frightening thought. They are intimidating on purpose and will often push the limits to catch the people they are after.

For community association managers, it is important to stay calm and understand the rights of the community when dealing with any type of law enforcement, including those from Immigration and Customs Enforcement officers.

In a nutshell, the famous lyric in Grateful Dead’s Truckin’ applies. “If they got a warrant, I guess they’re gonna to come in.”

However, there are multiple steps to take before you let any law enforcement into a community, even if they have a warrant. As such, a community must have a plan to handle law enforcement needs – and an attorney must be called immediately

The attorneys at The Orlando Law Group can help associations put together a plan for law enforcement to ensure you stay within your legal rights, along with working to help lessen the impact when it happens.

Why Not Just Comply with Law Enforcement?

Nearly all our lives we’ve been taught to comply with law enforcement, however, as an association manager, you have the legal obligation to protect the privacy of your residents.

For instance, you can’t just turn over financial information or other personal information just because you were asked. You do not have to let law enforcement into your community’s private property arbitrarily.

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures, and those searches performed without a warrant are presumptively unreasonable. In Florida, Article I, Section 12 of the Florida State Constitution, mirrors this protection.

So, private property owned by an association is generally off-limits to ICE officers without a judicial warrant or consent.

What steps does a community take when ICE shows up

Again, the first step for community managers is to develop and institute a plan for law enforcement, and it should be followed regardless of if it is the FBI, ICE or the local sheriff.

For non-gated neighborhoods, there is nothing you can do to prevent ICE from coming into a neighborhood as the streets and sidewalks are public property. If ICE is looking to raid a house in a non-gated community, it is on the homeowner to ask for a warrant, not the community association.

For a gated community, a condominium or an apartment building, all of the common areas, including the roads and hallways, are private property and law enforcement must take very specific steps to enter.

In those cases, an association manager needs to reach out to the community’s attorney immediately. The attorney will know all legal rights and requirements. In addition, the attorney can contact the law enforcement agency to ensure the steps being requested by law enforcement on the scene are on official business.

At that point, it is time to ask law enforcement for identification and to see any warrants that have been issued.

Understand the difference between a judicial warrant and an administrative warrant

When dealing with immigration issues, not all warrants are equal, however, law enforcement has no legal obligation to clarify the types of warrants. If they say they have a warrant and you let them in, you have given them consent.

The warrant that most people think of when it comes to warrants is judicial warrants. That’s when law enforcement appears before an impartial judge and presents evidence of a potential crime and the need for a warrant.

When law enforcement shows a judicial warrant, that is enough to allow law enforcement onto private property in the community.

We still recommend sending a copy of the warrant to an attorney for verification. That is because immigration officials also have the ability to use an administrative warrant that does not have the same powers as a judicial warrant.

Administrative warrants are focused on the individual who is accused of being in the United States illegally. They are not always administered by a “neutral and detached” magistrate as there are fifty-two immigration officer categories expressly authorized to issue arrest warrants for immigration violations, as well as “other duly authorized officers or employees of the Department of Homeland Security or the United States who are delegated the authority.”

Therefore, an administrative warrant does not allow the same access to private areas. An administrative warrant is identifiable by being issued by an immigration officer/federal agency, and/or will be found on a form I-205 or I-200.

What about management company records?

Not all ICE actions will be against residents of a community. They could be targeting a vendor who is employing undocumented individuals. They also could be looking at the employees of the management company or just a fishing expedition to find potential immigrants.

The same rules apply here, with some extra protection. In these cases, ICE will issue a “Notice of Inspection” requesting all I-9 documents from employees. Associations will have three days to compile and provide the documentation.

For other records, it depends on a warrant and consultation with an attorney. Under no circumstance, should an association provide any confidential information about vendors or residents without a judicial warrant.

Why interfere with law enforcement actions at all?

To be clear, under no circumstances should any employee block law enforcement. Hopefully, the agents will work with the community association manager and follow applicable rules.

If they refuse or are moving toward a target because of a triggering event, the association manager needs to let them proceed and allow the attorney to look at any protections.

As stated before, an association has a legal and ethical responsibility to protect the confidential information of its residents and vendors. If you don’t follow the laws, your association could have some legal liability from the resident or vendor.

The attorneys at The Orlando Law Group can help your association prepare for any law enforcement action, including ICE raids as we represent more than 100 communities in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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Cigarette Smoke is No Joke in Condominium Association Management

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The United States has done a remarkable job in lowering the number of people who smoke cigarettes. In 1965, nearly half of all Americans smoked cigarettes. Today, the number is closer to 10 percent.

The statistics are not all good, however. While there has been success with cigarettes, the use of vapes and e-cigarettes has nearly tripled over the past five years.

In addition, with the legalization of marijuana, including for medical use, smoking marijuana has significantly increased. Approximately, one in 20 residents in Florida has been approved to use medical marijuana

While there are strong laws about smoking and vaping in public places, how it is regulated in other places is pushing forward. Just a couple of years ago, Florida legislators permitted local governments to ban smoking on the beach and public parks.

Now, there is a growing movement to regulate and prohibit any type of smoking in condominium units, even on the balcony.

With little guidance on the subject in Florida statutes, condominium associations should still be able to limit or prohibit the amount of smoking or vaping in units for two main reasons:

  1. The damage to the commonly owned portions of the condominium building and,
  2. The potential medical issues posed by second-hand smoke, particularly those with asthma and other respiratory diseases.

Regardless, any rule created that prohibits any type of smoking or vaping may be challenged by residents, so it is essential that if this issue is facing your condominium, it is important to work with an attorney to help craft the language.

The attorneys at The Orlando Law Group specialize in helping Condominium Owner Associations in Orlando, Sanford, Winter Garden and Kissimmee with all of an organization’s essential legal needs.

What about individual property rights?

When someone purchases real estate, like a home or condo, the popular belief is the property is theirs and they are free to do what they want.

While that can be mostly true, there are many instances where actions inside a private home or on private property can impact neighbors or the community as a whole. In nearly all cases, the community’s association or law enforcement can step in.

Think about this. If you have a massive party with hundreds of people and speakers pounding dance music at 3 a.m., the police will show up and force you to turn the music off because of how it affects your neighbors.

Of course, if you try to paint your house bright pink and purple, the homeowners’ association can force you to repaint in a style that does not affect your neighbors’ property values.

Same thing with a condominium.

While you own it, you cannot operate a woodworking hobby with saws in the condo at 5 a.m. or hold your rock band’s practice at midnight.

Such is the case with smoking and vaping. While you own the space, an owner cannot control where the smoke travels. It will reach common areas and neighbors, affecting the value of other people’s condo units and can create some medical issues that may be life-threatening.

Start with the easiest restrictions

In Florida, the laws are very strict about smoking in workplaces, which is virtually any public area with only a few exceptions. Basically, if you are not a smoke or vape shop or a bar that does not serve food, smoking is not allowed in Florida.

In addition, as stated earlier, counties and cities can prohibit smoking on beaches and parks if they choose.

For a condominium, a workplace includes all the common areas, such as a recreation room, a hallway, a shared garage or storage area, or an outdoor kitchen. Depending on the municipality, it could include a playground or another recreational area.

Florida Statute 386.024 is remarkably short for any law but says: A person may not smoke or vape in an enclosed indoor workplace, except as otherwise provided in s. 386.2045.

Those exceptions?

(1) A private residence whenever it is not being used commercially to provide child care, adult care, or health care, or any combination thereof as defined in s. 386.203(1).

(2) A retail tobacco shop.

(3) A retail vape shop.

(4) A designated guest room at a public lodging establishment.

(5) A stand-alone bar that complies with all applicable provisions of the Beverage Law and this part.

(6) An enclosed indoor workplace, to the extent that tobacco smoking or vaping is an integral part of a smoking or vaping cessation program approved by the department, or medical or scientific research conducted therein.

(7) A customs smoking room in an airport in-transit lounge.

If your condominium association is dealing with people smoking or vaping in common areas, put signs up clearly stating it is prohibited and enforce the law. The penalties for breaking Florida’s Clean Air Act are a fine of not more than $100 for the first violation and not more than $500 for each subsequent violation.

Private Residents are Exempt, Right?

Yes, under the Florida Clean Air Act, private residents are exempt from laws that prohibit smoking or vaping.

However, restrictions placed on condominium owners are often not explicitly outlined in Florida statutes, unless prohibited. For instance, the statutes say condominium associations can restrict, like holiday lights and commercial vehicles.

But, overall, restrictions are a contract between each unit owner and the association to help protect the quality of the condominium for all residents and are developed without clear direction from Florida Statutes.

That means an association can dictate what color paint is on the door of each unit. They can restrict what is on the balcony of each condominium unit. They can restrict how many people live in a unit. They can restrict how the unit is rented – if at all. It can even restrict the age of the owner to over 55 years old.

We believe it can also restrict smoking inside of a condo unit or on the balcony with the same concept. Smoking can greatly affect the values of other units, increase maintenance costs and create a medical hazard for other unit owners.

Smoke can not be controlled

No matter how hard a property owner tries, smoke and vapor cannot be limited to one unit. In many cases, there is an air conditioning system that has connections to other units. Plus, any unit is not airtight. There are small crevices and cracks in walls, window seals and doors.

All of that means the smoke from one unit can travel to common areas and into other units.

As to smoking on the balcony, when you smoke or vape on the balcony, the wind can carry the smoke back into the building and into another unit affecting other property owners.

Some associations require additional steps rather than ban smoking or vaping, such as requiring a condominium owner to put in an air filtration system or extra weathering strips around windows and doors.

But even those cannot capture all the smoke from cigarettes and vapes, often leaving condominium associations having to outright ban smoking indoors and on the patio.

Property Damage from Smoke and Vapors is Real

A study once showed the resale value of a home or condominium occupied by a smoker decreased by nearly 30 percent. Of course, the thought that if someone wants to reduce the value of their home by that much, they should be allowed to do so.

Again, smoke and vapors do not stay in one unit. It spreads throughout the building, entering neighboring units and the hallways and common areas.

This increases the number of times the condominium association needs to change the carpet and drapery, paint the walls of the unit and flush out the HVAC systems. All of that adds costs to all owners because of the actions of one unit.

And think about what a heavy smoker living next door does to your property values if someone looks to buy your unit and smells the smoke residue in the unit, even if you don’t smoke!

That is exactly what any restrictions on unit owners by a condominium association are meant to protect.

It isn’t just the property values. It’s also thirdhand smoke.

Studies have shown that residual smoke on surfaces can cause cancer and even break DNA in humans. Children are especially susceptible to thirdhand smoke.

While it won’t be as dangerous as the thirdhand smoke in the actual unit, nicotine will settle and stay for weeks on surfaces surrounding the unit where the smoker lives.

Secondhand Smoke Can Hurt Others

Much has been written about secondhand smoke. It was the primary reason why laws like the Florida Clean Air Act were passed throughout the country decades ago.

But much of that was centered around being in an enclosed space, like an airplane or a restaurant, and workers not being able to get away from the harmful effects of smoke. As smoking declined in the United States, more people were happy to have laws that eliminated the smell of smoke.

Of course, not one law prohibits smoking by yourself in an enclosed space, but a condominium unit is not an isolated and closed space. It will travel to neighboring units and common areas.

What if your neighbor has severe asthma that can be triggered by the slightest amount of cigarette smoke or vapors from an e-cigarette? Your actions could impact the health of your neighbors.

In that case, the neighbor could file a disability claim with the federal government and could sue the condominium association for a variety of reasons, one of which is the right of quiet enjoyment of a residence.

Basically, the courts have found that owners and renters have the right to enjoy where they live without the outside threats of something lessening that ability. If one condo unit owner’s secondhand smoke is causing asthma attacks in their neighbor’s kids, they have affected their neighbors’ right of quiet enjoyment.

Medical Marijuana Users Have Rights Too

In Florida, the use of marijuana is illegal unless prescribed by a physician. In 2024, nearly 1 million Floridians had been prescribed a prescription to use marijuana for issues like sleep assistance, constant pain, cancer and much more.

If you are one of the million people with a prescription, an association can not prevent you from taking your medication. However, it still can prevent you from smoking or vaping marijuana, even in your house.

As with all the studies of cigarette smoke, the same applies to smoke from marijuana and vapes. Thankfully for those who need marijuana for medical purposes, there are a wide variety of smokeless ways to receive medicine.

A condominium association should be able to require that medical marijuana users only partake with gummies, pills, topographical creams or other non-smokable ways. As medical marijuana is relatively new, there is still little case law on this subject.

Be understanding of your unit owners

As anyone who has lived in a condominium, it often takes understanding of each other’s neighbors to co-exist. It is often a life filled with compromises to ensure everyone can enjoy their home.

Much like any other restriction for a condominium owner, the covenants regarding smoking or vaping can impact one owner to ensure the overall standard of the community is met.

If you are looking to ban smoking or vaping inside units or on a patio or balcony, take into account that smoking is often an addiction that is incredibly difficult to break. As such, look for ways the condominium association can be accommodating, such as building a covered smoking pavilion away from the building for smokers to use.

The attorneys at The Orlando Law Group help all types of condominium and homeowners associations in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

Whether it is on this issue or one of the thousands of other issues facing association management, The Orlando Law Group can help.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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Want to Convert to Condos? Better Check the New Laws

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As the commercial real estate market continues to evolve after the pandemic, more and more building owners are looking to convert hotels, offices and other underperforming buildings into residential spaces.

Property owners are finding converting their underperforming property into a revenue stream, especially with the Biden administration pushing these types of conversions, offering billions in low-interest loans for developers to convert offices into residential units.

For some developers, looking at creating a mixed-use facility – instead of a full conversion – might be a creative way to convert an underutilized building.

For instance, an office skyrise may have floors of empty space in this commercial real estate market. However, the floors with office space are providing great revenue, so the property owner wants to keep some of the building as offices.

The owner wants to use some low-interest loans, so a few floors are apartments. Then, to create more revenue, the owner converts the top two floors to condominiums, selling them for a significant amount.

Starting October 1, a new law, HB 1021, covers converting a building into a mixed-use facility with condominiums with specific statutes property owners must follow when recording and selling the condominium units.

Property owners even considering condo conversions need to be prepared now.

The attorneys at The Orlando Law Group represent more than 100 communities and commercial real estate investors in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

What does a property owner have to disclose?  

The new law covers what a property owner must disclose when converting a building partially into a condominium. The law is fairly straightforward and the disclosures must be in the documentation filed with the official records of a building.

They include:

  • What parts of the building are included and not included in the condominium;
  • Who is responsible for maintaining and operating shared parts of the buildings, such as the roof, the windows, elevators, the lobby and more;
  • How much the property owner, tenants and condominium owners will contribute to the operations and maintenance of the shared facilities;
  • Who collects the shared costs of operations and maintenance; and
  • The rights and remedies that are available to enforce payment of the shared expenses.

While those are all to be filed with the local recording agency, the records must be open to inspection by any condominium owner.

Finally, the law ensures that the owner must submit an annual budget for those expenses to the association.

How to determine the costs associated with operations and maintenance

The legislature expanded on the third bullet point and outlined how much each entity – the association and the property owner – would pay to maintain the common areas.

The law is clear that the assessments are based on the following:

  • The area or volume of each portion of the building in relation to the total area or volume of the entire building, exclusive of the shared facilities.
  • The initial estimated market value of each portion of the building in comparison to the total initial estimated market value of the entire building.
  • The extent to which the unit owners are permitted to use various shared facilities.

There were two other parts of this law that applied to the amount each entity pays for operations and maintenance.

First, any owner who is not part of the condominium association, such as someone who owns a separate office condominium, must approve any increases to the expenses of common area operations.

Second, if all parties agree, there can be a unique or alternate method of assessing fees, but any alternate way of collection must be entered into the official documents of the building.

New contract language is required for conversions

While much of the law discussed the structure of the condominium conversion, the statutes now have very specific language in any contract the owner will have with a buyer.

Here’s what is required for any contract to have conspicuously written:

DISCLOSURE SUMMARY

The condominium in which your unit is located is created within a portion of a building or within a multiple parcel building. The common elements of the condominium consist only of the portions of the building submitted to the condominium form of ownership.

Buyer acknowledges all of the following:

(1) the condominium may have minimal common elements.

(2) portions of the building which are not included in the condominium are or will be governed by a separate recorded instrument. Such instrument contains important provisions and rights and is or will be available in public records.

(3) The party that controls the maintenance and operation of the portions of the building which are not included in the condominium determines the budget for the operation and maintenance of such portions. However, the association and unit owners are still responsible for their share of such expenses.

(4) The allocation between the unit owners and the owners of the portions of the building which are not included in the condominium of the costs to maintain and operate the building can be found in the declaration of condominium or other recorded instrument.

This new statute can be complicated for real estate owners looking to change the usage of their building and maybe consider condominiums as an option for their investment properties.

Just like any real estate transaction, it is important to work with an attorney to ensure compliance with this statute and to have the proper contracts for any sales to condominium owners.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Record Keeping Becomes Even More Critical With New COA Law

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At the beginning of July, HB 1021 became official and with it came multiple new requirements for record retention and record production for condominium associations in Florida.

With it also comes hefty fines and potential criminal charges if not followed.

In the new law, the state aims at two aspects of record retention.

First, the law looks at how to handle financial records after the contract between an association and a community association management company ends.

Second, the law adds new steps for providing records to unit owners. This is where repeatedly withholding records from owners can result in a second-degree misdemeanor.

While the new law seems strict, the reality is that the new law is very specific in how to treat these records making it easy to follow to not be fined or convicted of a crime.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

How can directors be convicted of a crime?

For the most part, the records of a condominium association, like homeowners’ associations, should be open for inspection by any unit owner at almost any time. The state statutes are clear on what records are open and the limited exemptions to that rule.

For years, the statutes have been clear that records must be produced within 10 days of the request, or it is assumed the association is willfully ignoring the request. At that time, the association is fined $50 per day and can be liable for attorney fees.

Apparently, there were too many associations accepting this as a cost of doing business.

Under the new law, if an association violates the records law in the manner above twice in 12 months, the association manager or board member is removed from office and charged with a second-degree misdemeanor.

The punishment for a second-degree misdemeanor? Up to 60 days in jail, a $500 penalty and up to six months in probation.

Of course, that is easy to avoid. Simply provide the records of the association when asked.

The new law also allows public records to be on a website or a mobile app. When records are requested, the association can simply instruct an owner to go to the website to find any records, and, as long as the records are current on the website, this allows the association to avoid any fines or criminal charges.

Create a checklist of records to provide to requestors

HB 1201 added a new step for providing records to someone requesting them – a checklist of all records available for inspection that were requested and any records not available for inspection.

When the records are requested, this new checklist must be provided simultaneously to the response and, if provided, the association is presumed to have complied with the requirements of the statute.

The penalties for not providing this checklist are the same as not providing records, including the possibility of criminal charges.

Plus, there is an extra piece to this checklist not included with other records. All associations must maintain the checklists for seven years.

Breaking up is harder to do under the new law

Ending a relationship between a condominium association and its community association management company is never easy, but with the new law, an association management company could lose its license if it doesn’t follow the new statute.

The new law specifically covers financial records and puts a 20-day time limit for both the association and the management company to provide its financial records for a final review, along with the same time limit to return any records to the association.

The first step in the process under the new law is how the request for termination is given. While there is some leeway if the contract specifies how to cancel a contract, the notification must be delivered by certified mail with a return receipt given.

Once that happens, or just a written request for the records is given, the 20-day clock starts and at the end of those 20 days, the records must be returned with no excuses. Simply not returning the records is presumed to violate the new statute.

Starting on day 21, the management company can be fined $1,000 per day, up to $10,000. Plus, the manager who oversaw the community and their company could have their licenses suspended by the state.

The association must also participate, regardless of the circumstance. During that time, the association must also provide access to any records that are needed for the management company to provide the final report.

If it doesn’t provide access to the records, the association management company does not have to provide any financial report for the termination.

What to do now?

As with much of the new law, the most critical action an association can take is to review its procedures for providing records when requested. We also recommend that if an association hasn’t already done so, it should look for ways to put all of its public records online with access provided to any unit owner.

Similarly, it is important to create the template for the checklist that is now required to be provided. It is not a difficult task and one that will save the association headaches later.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Conflicts of Interests Can Be Found in a Wide Net For Association Management Companies

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On July 1, another Florida law took effect that focuses on condominium associations and the management companies that help operate the system. One focus of the new law is to control potential conflicts of interest with community management companies.

For instance, Susie Smith is the community manager for a condominium association and part of her compensation includes shares in her community association firm. One of the associations she manages needs a new insurance company and she recommends her husband’s company, Acme Insurance Company.

In most cases, Sally would disclose the conflict of interest at the onset. Sally would not be involved in the selection of the insurance company and the organization asked for competitive bids from multiple insurance companies.

In that case, it is the decision of the board to pick the best company for the job, regardless of the conflict. But, they made the decision fully aware of the conflict.

But under a new law, if Sally’s grandfather-in-law is a stockholder in Acme Insurance Company – and it is not disclosed to the association, the contract with the community association management company could be terminated instantly and without warning.

It’s a wide net for conflict of interests and one any association management company should take very seriously.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

What constitutes a conflict of interest?

It is pretty straightforward what the new law, HB 1021, says is a conflict of interest:

A community association manager or a community association management firm, including directors, officers, and persons with a financial interest in a community association management firm, or a relative of such persons, must disclose to the board of a community association any activity that may reasonably be construed to be a conflict of interest.

In terms of this statute, two actions must take place for the courts to find a conflict of interest.

First, the community association management firm must have a contract with the association. Then, the business entity where an officer, director or anyone else with a financial interest in the firm, including their relatives, has a transaction with the association.

Who is covered by the conflict of interest?

The statute clearly states the conflict of interest is with the directors, officers and any person with a financial interest in the community association management company. This appears to not cover employees of the association, unless they receive compensation based on the financial results of the company, like stock in the company.

It does include “a relative of those persons.”

That is where this will become difficult for any community association management firm as the new statute clearly defines what a relative is considered in this statute: As used in this section, the term “relative” means a relative within the third degree of consanguinity by blood or marriage.

Within the third degree of consanguinity casts a very wide net. It includes grandparents, grandchildren, great-grandparents, great-grandchildren, aunts, uncles, nieces, and nephews of the director and their spouse. For reference, please see this chart.

The thought that a company has a conflict of interest because a niece of a director’s husband has a share of stock in a contracted company can be considered a stretch, but as of July 1, it is the law in Florida.

Does the new law eliminate conflicts of interest?

While the law casts a wide net, it does not eliminate associations from working with companies that may present a conflict of interest with the community association management company.

First of all, if the proposed cost of the contract is more than $2,500, the association must seek out and accept “multiple” bids from other providers. Frankly, it would be a best practice to seek multiple bids or proposals even without a conflict of interest.

However, today, it is now required by statute, although the number of additional bids is not stipulated.

Once the association has decided to move forward with the conflicted company, the association must:

  1. List the contract as an agenda item for the next board meeting
  2. Ensure the disclosures of all conflicts are entered into the minutes of the board meeting
  3. The contract must be approved by two-thirds of the directors present at the meeting.
  4. The conflict is disclosed at the next meeting for all the members of the condo association.
  5. When the contract comes up for renewal, the same steps must be followed again.

If these steps are not followed, the community association management firm’s contract can be canceled immediately and any termination fees, damages or future payments are canceled too. Plus, the contract for the vendor that created the contract can be canceled immediately.

As management firms and associations can have an adversarial relationship, particularly with new board members, not having this addressed with employees could be an easy way to kick out the management company.

What to do now?

For community association management companies, it is imperative the company’s human resources department addresses this with all of the individuals listed in the statute.

For many companies, the number of people who could be impacted by this could be significant. As such, we believe it is best to have any director, officer or anyone with a financial interest sign an affidavit showing there are no conflicts of interest or disclose any that might affect the firm.

The attorneys at The Orlando Law Group can help community management firms with this task in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Be Very Careful in Responding to Criticism from Condo Owners

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Anyone in association management or volunteers on the board fully understands what it means to deal with “that owner.” They are generally the critics on the sideline, someone who finds fault in anything you do – and works hard to make your life miserable.

Too often in condominium associations, the response is to take a closer look for violations, be stricter on late payments and take small, retaliatory actions against the owner.

Take the case of the Applegate Condos in South Florida, where the unit owners and the board were involved in a nasty lawsuit filled with allegations of retaliation.

There, unit owners repeatedly filed complaints that issues – like cracks in the ceiling and holes in the walls – were not being taken care of. The lawsuit says the association started to tow cars owned by the main complainers, for minor things like having a tire on the white line.

While we hope our clients never get to this point, as of July 1, this type of retaliation by condo associations is clearly illegal with a new law passed this year overseeing condominium associations, HB 1021.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

What can a condominium owner do without retaliation?

To be clear, a unit owner must act in good faith with any issues or complaints it has with the condominium association for it to claim the association engaged in retaliatory actions against an owner.

Specifically, the new law says the owner can not complain  “for any improper purposes, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation.”

We’ll get into the issue of interpreting that wording later, but for now, here are all the actions a unit owner can take in good faith and be protected in the new law:

  • “Complain to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the condominium;
  • “Organize, encourage or participate in a unit owners’ organization;
  • “Submit information or file a complaint alleging criminal violations or violations of this chapter or the rules of the division;
  • “Exercise any rights under this chapter;
  • “Complain to the association or any of the association’s representatives for the failure to comply with this chapter or chapter 617; or
  • “Make public statements critical of the operation or management of the association.”

Of course, the key here is that any action taken through those avenues is taken in “good faith.” As a unit owner, tt is important to document any actions and work with an attorney to ensure any complaints meet the intent of the law.

Can the association strike back?

If the unit owner acts in good faith in taking any of the actions above, the association must be very careful every step along the way, otherwise, there can be ramifications later.

The new law specifically outlines all of the actions that are prohibited after a complaint is filed. They are:

  • “Fine the owner,
  • “Discriminatorily increase a unit owner’s assessments,
  • “Discriminatorily decrease services to a unit owner, or
  • “Bring or threaten to bring an action for possession or other civil action, including a defamation, libel, slander, or tortious interference action.”

Here is where the issue comes into play. Let’s say the unit owner is significantly behind on dues, but the unit owner claims the association is not taking care of a rodent problem in the condominium.

With evidence of rats, the unit owner files a complaint with the local health department accusing the condominium association of neglect. Now, any action the association takes could be construed as retaliation and could get any enforcement action thrown out by a judge.

That is why it is important to be meticulous in the actions of the association when dealing with unit owners.

The statute leaves a lot of interpretation of actions

The new law certainly provides condominium owners new powers and abilities to push back against its association.

But what constitutes good faith? And what says that a lawsuit was in retaliation for an action by the condominium owner?

Frankly, much of that will need to be interpreted by a court of law.

Let’s play out another scenario using the state statute.

The association struggles to find an affordable contractor to repair a structural flaw in the pool house. It is a dangerous situation and the association had to close the pool house for the safety of its residents.

A unit owner decides to make more than a dozen statements on social media, saying how bad the association board members are at their jobs, accusing them of mismanaging money and calling for them to resign because the pool house has been closed longer than the unit owner deems was necessary.

Turns out, that the unit owner has not paid the special assessment to pay for the pool repairs. Following procedures, the association places a lien on the condominium association, to which the unit owner claims retaliation in a lawsuit.

Was it?

The association could certainly say that more than a dozen social media posts were not in good faith, but there is no statutory definition of where the line between good faith and harassment comes with public statements.

The unit owner could claim the lien was only because they complained on social media, but was it if the same standards were applied to this unit owner as everyone else?

It is confusing and will be up to the courts to try and interpret the intent of both the unit owner and the association

What to do now?

This new law makes it even more important for associations to be very methodical in every action they take to enforce their covenants and collect fees. There cannot be any emotion or deviation from procedures, or the association risks losing in court.

Today, every condominium association should be looking at its procedures for enforcement and review to make sure those procedures have been followed the same for every unit owner.

Then, it is usually best to allow the association’s lawyers to handle any further action if the unit owner takes any of the steps outlined in the new law. Once that happens, if the association is not meticulous in its actions, it could be creating legal exposure.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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Small Changes Can Have Big Repercussions

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Throughout HB 1203, which goes into effect on July 1, several very small changes could have large implications on how any association governs itself and its community.

Of course, most association management companies and law firms should be able to guide board members on these small changes – like the attorneys at The Orlando Law Group can.

Still, it is important associations and their volunteer members understand these small changes, which include things like kickbacks, compound interest, handling subpoenas and more.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

Kickbacks Now Have Criminal Implications

In most cases, directors and managers of associations would never consider taking a kickback, defined as taking a good or service that benefits the director or manager, or their families, that is not listed in a contract.

In the past, the association could remove a director who took at kickback. But doing so now is now a third-degree felony, punishable with up to five years in prison and/or a $5,000 fine. Plus, convicted felons cannot vote, cannot own a gun, and cannot serve on the HOA board anymore.

It sounds simple, but what happens when your landscape company invites a director to join them at a concert or a Magic game? Many people would not consider that a kickback, but the law would.

The only exception to this rule is “food to be consumed at a business meeting with a value of less than $25 per individual or a service or a good received in connection with trade fairs or education programs.”

The best advice: Don’t take anything from a vendor!

Only simple interest is allowed for past-due assessments

One line in HB 1203 could impact the finances of associations if they were collecting compound interest on late assessments.

Specifically, the law now says, “compound interest may not accrue on assessments and installments on assessments that are not paid when due.”

The legislature reiterated this elsewhere, adding the word “simple” to this line of Florida statute: “If no rate is provided in the declaration or bylaws, simple interest accrues at the rate of 18 percent per year.”

The difference can be substantial. For $100, simple interest charges 18 percent on that $100. After a few interest charges, compound interest would charge interest on $136, whereas simple interest charges 18 percent on the $100 due.

Compound interest can become very costly for a homeowner, very quickly.

Of course, this should be handled by the association’s management company, but directors must understand if they have been charging compound interest and the financial implications of the new law.

First Responders not just law enforcement for parking issues

In another article found here, The Orlando Law Group discussed one of the biggest impacts of the new law – the inability of associations to prevent commercial vehicles.

The law has always said any covenants that restricted commercial vehicles could not apply to law enforcement.

The new law includes all first responders, not just law enforcement. Starting July 1, you can not prevent any type of first responder vehicle.

To be clear, Florida Statutes define first responders as: “a law enforcement officer, a firefighter or an emergency medical technician or paramedic employed by state or local government.” This includes both paid and volunteer first responders.

You must obey subpoenas quickly

If an association thinks they can stonewall law enforcement when they subpoena records, the association needs to think again.

Now it is officially in statute that an association has five business days to provide any information requested through a subpoena issued by law enforcement.

In addition, the association is now required to “assist a law enforcement agency in its investigation to the extent permissible by law.”

The Orlando Law Group would hope that all associations already did this, but now it is required by law starting July 1.

New audit requirements for large associations

Before HB 1203, the types of financial statements required for community associations were based entirely on the revenues of the association, with greater financial reviews required for larger associations.

Specifically, the law required:

  1. An association with total annual revenues of $150,000 or more, but less than $300,000, shall prepare compiled financial statements.
  2. An association with total annual revenues of at least $300,000, but less than $500,000, shall prepare reviewed financial statements.
  3. An association with total annual revenues of $500,000 or more shall prepare audited financial statements.

HB 1203 added a fourth category based on the number of parcels in the community.

Now, regardless of the association’s revenues, if there are 1,000 or more parcels in the community, an association will be required to prepare audited financial statements.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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New Procedures for Violation Notices

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Perhaps there is no greater animosity between a homeowner and a community’s association than fines imposed for violating the community’s covenants.

When a homeowner does not edge the grass, pressure wash the driveway, or bring up a garbage can quickly, many homeowners’ associations are quick to threaten and impose a fine.

From the homeowner’s perspective, this often seems like an overreach for what they consider a trivial matter, but the homeowner usually is quick to take care of the situation.

But in those cases where they can’t perform the necessary improvements, there are new safeguards to give homeowners time to fix the situation. If the homeowner refuses to fix the issue, it is now in statute the homeowner will be paying for attorney fees, in addition to any fines imposed by the association.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

New timelines for violations

Perhaps the biggest change to the process of fining homeowners over violations of covenants is the timeline now required by Florida statutes.

Before the passage of HB 1203, the association could impose a fine on the homeowner with 14 days’ notice disclosing the fine and sharing information about a hearing about the fine. The fine would be due with a payment due 5 days after the hearing.

Starting on July 1, the association still must provide written notice about the hearing and fine within 14 days, but there are more requirements before the fine is due.

Now, the timeline for a violation looks like this:

  1. 14 days to provide written notice to a homeowner about the fine and the hearing, as was in statute before the law.
  2. The hearing must be held within 90 days of when the notice was sent, with the 90 days being a new requirement.
  3. After that hearing, the statute now says the association has seven days to send notification of the results of the hearing.
  4. Finally, the date the association can start collecting fines and attorney’s fees must now be set 30 days after delivery of the notice of the hearing’s results.

The 30 days is a significant expansion of time for homeowners to pay their fine and fix the issue to avoid a fine. Remember, before July 1, 2024, that period was just five days after the hearing.

Of course, if any of those timelines are not met, the homeowner has a good case to take to court to get the fines removed – and the homeowners’ association would be liable for attorney fees.

Again, this gives extra time for homeowners to fix the violations as the law now specifically says “If a violation has been cured before the hearing or in the manner specified in the written notice required in paragraph (b) or paragraph (d), a fine or suspension may not be imposed.”

Homeowners can avoid fees

There are other ways a homeowner can try to trip up its homeowners’ association into eliminating fines. One of the ways this can be done is by asking for a complete and detailed accounting of the fines that have been accumulating.

The Orlando Law Group wrote a separate article on this issue here, but to summarize, if a homeowner writes and requests a detailed accounting of their fines and the association does not provide it within 15 days, the fines could be waived.

There is a perceived loophole in that new ‘detailed accounting” statute. If the homeowners’ association follows the statutes that pertain to written notices, the fines cannot be waived even if the accounting was not provided within 15 days.

Garbage cans and holiday decorations

The Florida Legislature did address two of the more contentious issues that face homeowners and their associations: Garbage cans and holiday decorations.

There are many stories of aggressive homeowners’ associations sending violation letters because someone put their garbage out early or left their Christmas lights up too long.

The new statutes address both of those issues with specific timelines.

For garbage cans, the association cannot fine a homeowner for having their cans at the curb 24 hours before the garbage is collected or 24 hours after the garbage is collected, giving homeowners a 48-hour window for garbage.

This is a bit ambiguous, however. Does the clock start when the truck enters the community or when it picks up the individual homeowner’s garbage? It will probably be fought in court, but preliminarily, we are looking at a larger time frame based on schedule and prior activity, like Wednesday morning, instead of the exact time.

For holiday decorations and lights, the only way for a homeowners’ association to fine someone for having their decorations up too long is to have an explicit time to remove decorations in their covenants and send a written notification of the violation.

That written notification gives the homeowner one week to take the decorations down or start the violation process.

What to do now?

Every association needs to take a look at its procedures for sending out violation notices, holding hearings and providing records. There are very specific timeframes that must be made and if an association is sloppy or doesn’t have set procedures in place, the repercussions could be significant.

In addition, the association needs to look at what the board documents say about holiday decorations. To enforce compliance with holiday decorations, there must be a specific date after the holiday when the community wants decorations removed.

Finally, the association must ensure every email and address is current for every property owner and any renters or guests in the community. With such detailed statutes for notifications, there will be legal battles over whether a communication was received or not. Having a complete and current list of addresses and emails will help eliminate many of those fights.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Follow the Statutes or HOA Fines are Waived

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One of the primary methods of bringing homeowners into compliance with neighborhood statutes is by fining homeowners for violating the community’s covenants.

Florida Statutes are very clear on how an association can levy fines against a homeowner, which include limits on the number of fines. The statutes also allow for attorney fees to be charged in the collection process.

You could even have a lien placed on your house by the association, creating thousands of dollars of costs to homeowners.

Here is one such case where a homeowner racked up nearly $1,000 in fines – just because he put his yard waste out on the wrong day.

The new law that goes into effect will cost unprepared associations thousands of dollars in assessments if they don’t follow the very specific rules outlined in HB 1203.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

What happens today?

Florida Statute 720.305 outlines the laws that apply to associations today.

First, the association can levy a $ 100-a-day fine if a homeowner does not fix the violation, although that fine cannot exceed $1,000 unless the board documents specifically allow for fines over that amount. It can also suspend a homeowner from any community amenities, such as a swimming pool or playground.

If the case is taken to court or collections, the losing party has to pay “reasonable attorney fees and costs” to the winning party.

Furthermore, it is not just the fines or the legal fees. It is also interest on the fines, which there are no statutory caps and is governed by the community documents. Refusal to pay a fine can really start adding up depending on the interest rate.

To fine or suspend a homeowner, the association must provide notice to the homeowner 14 days in advance for a hearing about the violation and the possibility of fines and suspension. Once the committee makes its decision, the homeowner has just five days to pay the fines or it will be delinquent.

There are many more nuances to this procedure, but it has been standard operating procedure for some time.

Provide records timely or the fine is waived

The new law, which takes effect July 1, gives a homeowner with delinquent fines a method to possibly get its fines waived – if the association doesn’t follow statutes.

The first thing a homeowner will do to fight back is to request – in writing – a “detailed accounting” of any amount the homeowner owes the association. The law does not clearly define what a “detailed accounting” should entail, so we believe this means everything that has to do with the fine to be safe.

The danger is that the new law requires those records to be delivered to the homeowner in 15 days. If not, all fines that have been levied against that homeowner that are 30 days past due are waived.

The good news is there are safeguards

One of the common steps homeowners do when they are not satisfied with their association is to file multiple records requests. Many times, this is done simply to see if they can trip up an association into making a mistake.

Thankfully, the legislature saw this as a potential issue and took steps to prevent that from happening here.

The law limits the number of times a homeowner can request the detailed accounting of their fines to once every 90 days.

In addition, the law also says fines can only be waived if they “are more than 30 days past due and for which the association has not given prior written notice of the imposition of the fines.”

That seems to ensure that if the association provides written notices, the issue of fines being waived may not be an issue.

What to do now?

For all associations, procedures to provide a detailed accounting record of any fines must be developed immediately. Hopefully, when a request is submitted on July 1, an association will be prepared to quickly process the request, run a report, and send it to the homeowner.

Also, the association should make every effort to collect the email and physical addresses of all homeowners in the community, especially owners that do not live in the community, like owners of investment properties or Airbnb homes.

This language is not clear on what constitutes written notice. As such, we fully believe legal battles will be had if the association sends written notice to an address that is not used by the owner. The owner could say they were not notified of the fines as they didn’t receive the notice. Of course, the association will say it sent the notice and the fines should remain.

In many cases, it will be up to the judge to decide.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

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New Training Requirements for HOA Board Members

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For years, it was relatively simple to become a board member of your homeowners’ association. In most cases, you raised your hand, went through an election and you served your community. There was often no competition because serving on an association board is a significant time commitment.

Rarely does an association board member join with years of experience managing associations. These are volunteer positions held by all types of people from all walks of life.

For training, the state required board members to read over board documents and sign an affidavit to say this was accomplished.

Classes were available, but not required. Frankly, for most associations, the volunteer board members relied on professional assistance from a professional community association manager and/or a law firm with association experience.

Not any longer. There are new requirements for volunteer board members that require very specific training and continuing education with HB 1203, which takes effect on July 1, 2024.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

How much training does a board member need?

With this new law, all board members of an association in Florida will be required to take an approved training course specifically tailored to association management. These classes have been available for some time, only now they are required.

They don’t take long – only about 90 minutes or so – but cover very specific topics listed in the new law. Specifically, the class must include “training relating to financial literacy and transparency, recordkeeping, levying of fines, and notice and meeting requirements.”

That class is required to be taken every four years as well.

But that’s not all.

If you are a board member of an association with fewer than 2,500 houses, you are now required to take four hours of continuing education every year. If you are a board member of an association with more than 2,500 homes, you are required to take eight hours.

What does continuing education for board members involve?

Unlike the board member training, there is very little information available about what is required to be taught in those continuing education classes.

Currently, the law only says the Department of Business & Professional Regulation will
“adopt rules to implement and administer the educational curriculum and continuing education requirements.”

We assume the continuing education classes will be similar to those attended by community association managers and cover items similar to the courses required for new board members.

The Orlando Law Group has provided those types of courses for many years and will be offering them for board members as well.

What happens if we don’t take the classes?

The Florida Legislature is very specific. Any board member who hasn’t filed his or her certificate with the department within 90 days of being elected or appointed is suspended from the board.

Plus, the homeowners’ association must keep the certificates on file for up to five years.

The law was not clear as to an existing board member’s need to take the new board member classes. However, we are advising all board members to take the classes as soon as possible and not risk being suspended.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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New Rules for Architectural Review Boards

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It is certainly no secret the architectural review board of a homeowners’ association can often be a center of disagreement for communities.

A simple search finds endless stories about a homeowner in dispute with the association over a decision of the ARB.

Here is a perfect example of one in Bradenton over a fence. There, the fence that was built did not match the sketch provided to the board. The neighbors complained because the new fence blocked their view of a retention pond.

That case went all the way to the district court of appeals, which ruled the fence would stay – a costly fight for the homeowner and the association.

The new HOA law which takes effect on July 1, works to improve the process of approvals and denials from a community’s architectural review boards, adding new statutes that give homeowners more transparency on their applications and more freedom to make changes to their homes.

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

Equity in Treatment

Anyone who lives in a community with an association probably knows about the architectural review board. Usually made up of community members, this board makes judgment calls on improvements requested to be made by homeowners.

This often includes things like the color of paint on the house, new fences, outside renovations and anything else that can be seen from the street or common area.

It seems like most people would do this regardless, but the state statute now specifically says the architectural review board must make decisions the same for all homeowners.

This is important because of human emotions that play into the decisions we all make. Perhaps a new ARB member has a personal dislike of a particular color or is friends with someone trying to do something unique to their house. The new law takes subjectivity out of the equation.

Clotheslines, gardens, HVAC and interiors

One of the biggest changes to laws governing associations is limiting what the association can govern to only changes that can be seen from the road.

Last session, the legislature made it a law that associations can not regulate the things that couldn’t be seen from the parcel’s “frontage or an adjacent parcel.” The statute included artificial turf, boats, recreational vehicles and flags.

This session, those items were expanded to include clotheslines and vegetable gardens In addition, the statute was changed to allow an HOA to regulate those items if they can be seen from “an adjacent common area or a community golf course.”

Along those same lines, associations are prohibited by law from restricting changes to the interior of the home, as long as it is not visible from those same areas. Frankly, this could cause issues, particularly with garage changes.

Many homeowners convert garages into extra bedrooms or other spaces, like a music room. The question will be settled in courts as to whether limited visibility – like when a garage door is open – is included.

Finally, the association is now prohibited from forcing a homeowner to make changes to the air conditioning system in a house, as long as it is not visible and is similar to the existing system.

Required follow up

Finally, there should be no doubt about why a request was denied by an architectural review board per the state law.

If an ARB denies a request, the association “must provide written notice to the parcel owner stating with specificity the rule or covenant on which the association or committee relied when denying the request or application and the specific aspect or part of the proposed improvement that does not conform to such rule or covenant.”

Of course, this should be easy, but it could be the start of a legal battle if not performed correctly. It’s best if the association’s legal team sends the notice to ensure there is no ambiguity on why the request was denied.

What to do now?

Remember, this law takes effect on July 1. Every association should review its covenants and bylaws to ensure they are compliant with the new regulations. If there are any covenants that cover items in the backyard or interior of the house, they should be taken out or made clearer.

In addition, associations should develop procedures that ensure equity in all decisions made by the ARB, along with the procedures for sending out written notices for any denial of ARB applications.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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The HOA Can’t Prevent a Permanent Generator or Fuel Tank Now.

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Have you seen the news about this year’s hurricane season? Nearly all of the hurricane forecasts are predicting a very active season, one that could set records.

Of course, it only takes one to hit your house to cause significant issues. Anyone who lived in Florida in 2004 knows how disruptive an active hurricane season can be, even if you are miles from the coast.

Over the past few years, we’ve seen a tremendous amount of damage from hurricanes large and small and in areas across the state.

As such, one of the key issues the Florida Legislature has looked at over the years is making Florida more resilient to hurricanes and providing the resources to return to normal life more quickly.

One of those bills, HB 293, focused on homeowners’ associations and specifically says homeowners associations cannot prevent any homeowner from making changes to its property if it is preparing for a hurricane.

While passed with good intentions, this bill could create many issues regarding how these improvements are allowed for associations and homeowners, meaning all associations should act immediately to ensure they are in compliance with the law with clear guidelines.

The bill was signed on May 29, and took effect immediately!

The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.

What Does the New Law Specifically Say?

Compared to other bills passed – like the association reform bill HB 1203 – the hurricane preparation bill for associations is only a couple of pages long and gets to the point quickly.

Again, it says that an association cannot prevent a homeowner from making hurricane improvements. Those include:

  • Roof systems that meet ASCE 7-22 standards,
  • Permanent fixed storm shutters,
  • Roll-down track storm shutters,
  • Impact-resistant windows and doors,
  • Polycarbonate panels,
  • Reinforced garage doors,
  • Erosion controls,
  • Exterior fixed generators, and
  • Fuel storage tanks.

There is also one overreaching line to allow for items not thought of during bill drafting: “Other hurricane protection products used to preserve and protect the structures or improvements on a parcel governed by the association.”

That leaves the door open for a lot of changes to get around prohibitions in an association’s covenants and just another reason all associations need to act quickly.

What Can Associations Do To Maintain Community Standards

To be clear, the new law does not mean someone can put a 5,000-gallon fuel tank on the front lawn of their Lake Nona mansion – unless the homeowners’ association doesn’t take action.

Thankfully, the legislature gives the association the ability to regulate these improvements.

It is very clear in the new statutes: “The board or committee may require a parcel owner to adhere to an existing unified building scheme regarding the external appearance of the structure or other improvement on the parcel.”

Of course, if you don’t have those schemes in writing and delivered to all homeowners, it may be tough to regulate.

It also says the homeowner still needs to file an application with the association to put in the hurricane resilience items. However, the association cannot deny the application, if it applies to the community standards.

If association documents do not have standards for these items, it will be time to rewrite and change your association documents to set community standards for anything that might be considered preparation for a hurricane.

For instance, an association can require hurricane shutters to be a particular color or design. An association can require an external fuel tank and permanent generator to be installed where they can’t be seen from the road.

It’s a heavy task to complete in a short time, so it is critical to reach out to your association attorney soon.

The law requires homeowners’ associations to act now!

These changes must be done by every homeowners’ association in Florida, although it does not give a date they need to be done.

Specifically, the new law states:

The board or any architectural, construction improvement, or other such similar committee of an association must adopt hurricane protection specifications for each structure or other improvement on a parcel governed by the association. The specifications may include the color and style of hurricane protection products and any other factor deemed relevant by the board. All specifications adopted by the board must comply with the applicable building code.

One thing to take note of is that it doesn’t just include setting standards for the homes in the community. It required hurricane specifications for each “structure or other improvement” covered by the association.

That could include the clubhouse, the community playground, any fencing and even the little library a volunteer put up to encourage reading.

It won’t be an easy lift for any association. And, again, it is for every association in Florida, regardless of whether it was formed in 2024 or 1974.

The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

 

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Follow the Law When it Comes to Public Records

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Recently, a South Florida condominium association lost another court case in a long-running battle to keep its financial records from being inspected by a resident and her attorney.

Frankly, this is a case that should have never been filed as state law is clear. Nearly all records of a condominium or homeowner’s association are public records for residents of the association. It’s been in state law for more than a decade.

But in this case, it appears the leadership of the Boca View Condominium Association let their emotions and mistrust lead the way instead of the law.

The result?

The association is facing a nearly $300,000 bill for the resident’s legal fees.

Plus, at the hearing in October, according to the South Florida Sun-Sentinel, the “judge sanctioned Boca View and its attorneys for filing a federal lawsuit that was ‘factually and legally frivolous,’ and ‘filed in bad faith based on a legal theory with no reasonable chance of success, all for an improper purpose.’”

The attorneys at The Orlando Law Group specialize in association management laws and can help you or our association with records requests and much more.

What happened at Boca View?

According to the Sun-Sentinel, the case started in 2019 when one of the unit owners sent a written request to inspect and photograph the financial records of the association. When she showed up to inspect the records with her attorney, the association’s treasurer refused to turn over the records.

There was no explanation given as to why they were refused, but the assumption was the unit owner was asking for the records on behalf of another person, who had been refused records prior because they were not owners of the association anymore.

From there, the unit owner took all the appropriate steps, including filing a complaint with the Florida Department of Business and Professional Regulation, which ruled Boca View broke the law and the records were to be turned over.

In response, Boca View filed a complaint in state court to block the records from being released. The association lost that suit but appealed the decision. It then filed in federal court, claiming the circuit court ruling was in violation of the Contracts Clause of the U.S. Constitution.

Confused? It’s been quite the maze of legal actions to prevent a resident from looking at the financial records of their condo association.

What does the state law say?

The Orlando Law Group published a Complete Guide to Records Retention for Associations in 2022 that is very comprehensive. In that guide, all of the pertinent statutes about records are listed.

The statutes are very clear on financial records. Here’s what  Florida Statute 720.303(4)(j) says:

The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

  1. Accurate, itemized, and detailed records of all receipts and expenditures.
  2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.
  3. All tax returns, financial statements, and financial reports of the association.
  4. Any other records that identify, measure, record, or communicate financial information.

According to our guide, “The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested.

“This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

“The official records of the Association may be requested and inspected by any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member.”

While there are exemptions to this statute, it’s clear what associations must do with public records: Let its residents inspect records.

Contracts Clause of the Constitution

There is a saying that anyone can sue anyone, but that’s not true. The courts can take action against frivolous lawsuits. And that’s what they did here.

After the lower court ruling, Boca View said the Constitution’s contracts clause should protect them. That clause basically says the government cannot pass laws that affect a contract between private parties.

Boca View said their covenants were written in 2004 and since the public records laws in question were passed in 2010, the association would be exempt as the state’s action affected a contract between private parties.

However, there was an even earlier statute that said the legislature could pass laws that amend laws governing non-profits at any time. This was passed before the Boca View covenants were developed.

Boca View hoped the federal court would throw out the state ruling, but the opposite happened.

There still is an appeal in the state court ruling being heard, but we believe that any association should be prepared to allow its residents to inspect records at any time to avoid costly lawsuits in this realm.

The attorneys at The Orlando Law Group can help association boards in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

 

 

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Planning to Buy or Sell Your Unit Within a Community Association? You’ll Need an Association Estoppel

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Most owners in Florida know that when they want to buy or sell their unit or house that they need to contact the community association, or its attorney, to get an estoppel letter.  Both the Florida Condominium Act and Florida Chapter 720 regarding homeowners’ associations specifically devote sections to estoppel letters a/k/a certificates of assessments. See 718.116(8) and 720.30851.

First, what is an estoppel, and what does the term “estoppel” mean?

In the broad legal sense, an estoppel is “the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination.” You can essentially think of it as a fact checker which prevents someone from asserting something differently than what was previously stated. This concept is particularly important in real estate; specifically in the business of buying and selling real estate.

It is key to note that there are two main types of real estate: commercial and residential. Commercial real estate is any property that is used for business purposes, whereas residential real estate refers to any property that is used for housing or living purposes.

Commercial Real Estate

Commercial real estate can encompass a large range of properties, including offices, retail stores, restaurants, franchises, hotels, warehouses, and factories. These properties are typically used for business purposes, such as for selling products or providing a service, although they can also be used for housing purposes, such as a commercial housing development.

Residential Real Estate

Residential real estate typically refers to single-family homes, townhouses, and condos. These properties are generally used for housing purposes, although they can also be used for business purposes (such as a work-from-home office).

If a residential property is located within a community association like a homeowner’s association (HOA) or a condominium owner’s association (COA), an association estoppel is a requirement for issuing a title policy on all association-governed homes because the information it contains can impact interest in the property.

But what is an estoppel letter/certificate, and why is it important to me?

An estoppel certificate is a letter from the association that states any amounts due and owing for fees and/or assessments for a particular unit or house that is valid for 30 days from the date of the letter. The reason it is important is that once you purchase the property, you become liable for all past and present debts on that property.

Although there is no statutory form of an estoppel letter or form, §720.30851 Fla. Stat. requires that the certificate be signed by an officer or authorized agent of the association stating all assessments and other moneys owed to the association by the parcel owner or mortgagee with respect to the parcel. However, it is good practice to include or request within the estoppel letter/certificate: the name of the association; the name of the unit/parcel owner; description of the property; the total amount owed to the association; the date through which that total amount is owed; instructions on where to send the payment and signature of an officer of the association or authorized agent. Typically, title companies will have their own standard form that they use specifically for estoppels, which they will want filled out along with the estoppel letter/certificate.

Upon request of the estoppel letter, the homeowners’ association may charge a reasonable fee for the preparation of the letter, however, an interesting caveat of §720.30851(3) Fla. Stat. states that if the certificate is requested in conjunction with the sale or mortgage of a parcel, but the closing does not occur and no later than 30 days after the closing date for which the certificate was sought the preparer receives a written request, accompanied by reasonable documentation, that the sale did not occur from a payor that is not the parcel owner, the fee shall be refunded to that payor within 30 days after receipt of the request. The refund is the obligation of the parcel owner, and the association may collect it from that owner in the same manner as an assessment as provided in this section.

As with any legal transaction, knowledge is power. According to Movement Mortgage, approximately 1,000 people move to Florida each day. Many of those people come from areas that do not have homeowners’ associations and new Florida residents are often surprised to learn that even though the homeowner may be up to date on their mortgage payments, that failure to pay homeowners’ fees and assessments can lead to foreclosure as well, regardless of your current mortgage status.

If you are considering purchasing property governed by and located within a homeowners’ association or if you already own a home within a homeowners’ association and find yourself in need of legal advice regarding a dispute with the association, the knowledgeable attorneys at The Orlando Law Group, PL can help. The attorneys at The Orlando Law Group also have ample experience preparing estoppels ourselves, and if you are a Board member, we may be able to assist your Association in preparing estoppels for properties within your Community Association.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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HOA and COA Powers, Responsibilities and Rights During an Emergency: Emergency Powers for HOAs and COAs

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Reserve funds are a key financial asset for your association, and provide a valuable source of funding for costly repairs, replacements and emergencies. Despite the importance of this resource, many Condominium Owners Associations are unsure as to what is needed to fund their reserve. Specifically, this blog will address two (2) concerns:

(1) What is required to fund the reserve account; and

(2) Requirements imposed by the newly passed Senate Bill 4D condominium inspection law as well as recent amendments to a significant portion of Florida Statutes Section 718, and how these will impact the operation of Condominium Owners Associations here in Florida.

What Is Reserve Funding? What Is Required to Fund the Reserve Account?

Reserve Funding is essentially a savings account for your association used to save money for costly repairs and replacements of community property. Think of it as the Association’s piggy bank or rainy-day jar. Reserve funds are typically spoken of as being held in one of two ways: pooled reserves and non-pooled reserves. Pooled reserves are funding for multiple assets (roofs, sidewalks, etc.) that are combined into one general account from which all expenses are paid. Non-pooled reserves are when each asset has its own account dedicated to its repairs and upkeep. Funds cannot be transferred under a non-pooled reserve method. Reserve accounts are often found to be underfunded significantly for the amount that could and should be done to keep the association’s community property in good working order.

As of December 31, 2024, for items required to be included in a Structural Integrity Reserve Study (more on this briefly), an Association may no longer use those itemized reserve funds (or any interest accruing thereon) for other purposes, and an Association may only use those itemized reserve funds for their designated purposes. Essentially, the use of pooled reserve funds has been eliminated by the amendment of Florida Statutes Section 718.

Recently, the Florida Senate rewrote and amended a significant portion of Florida Statutes Section 718, including the portion regarding reserve funding or a lack thereof. Florida Statutes Section 718.112(2)(f)(2a) reads:

“The members of a unit-owner-controlled association may determine, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. Effective December 31, 2024, the members of a unit-owner-controlled association may not determine to provide no reserves or less reserves than required by this subsection for items listed in paragraph (g).”

Paragraph g of the Florida Statutes Section 718.112(2) as noted by the above section states: An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that at a minimum, inspects the roofs, load-bearing walls or other primary structural members, floors, foundations, fireproofing and fire protection systems, plumbing, electrical systems, waterproofing and exterior painting, and windows.

So how may an Association Board go about changing their reserve funding? The board must present a proposed budget to the community assuming full reserve funding. For instance, let’s say an association seeks to reduce or waive their current reserve funding. The association cannot hold a vote to waive or reduce reserve funding until after a proposed budget with full reserve funding has been provided to the membership. If the board would like to put a vote on the table to reduce or waive reserves funding, then they should provide (along with the proposed budget which must be distributed 14 days prior to the budget meeting): (1) a second budget with waived or reduced reserves and (2) a limited proxy to be filled out by unit owners specifically requesting the membership to vote on the second budget. The proxy must include the following wording per Florida Statutes:

“WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.”

To successfully reduce or waive reserve funding, a majority of the membership (i.e., 51% of unit owners) must vote in favor of the reduction/ waiver. If by the time of the budget meeting arrives the association has received insufficient votes, the board may delay approving the budget to attempt to collect more votes. If a majority vote is not obtained, the board must approve the budget with full reserve funding. If a majority vote is obtained, the board must proceed with the waived or reduced reserve funding. It is important to note that any vote to waive or reduce reserves is only effective for one annual budget. Therefore, the vote must be obtained for every year the board would prefer not to fully fund reserves.

Senate Bill 4D

Senate Bill 4D was passed as a response to the tragedy in Surfside, Florida that occurred last year when a condominium building collapsed after a long history of maintenance problems and shoddy construction techniques. Senate Bill 4D was effective as of 05.26.2022 and entered fully into Chapter 2022-269 as of 06.29.2022, and the general bill reads as follows:

“Building Safety; Providing that the entire roofing system or roof section of certain existing buildings or structures does not have to be repaired, replaced, or recovered in accordance with the Florida Building Code under certain circumstances; requiring condominium associations and cooperative associations to have milestone inspections performed on certain buildings at specified times; authorizing local enforcement agencies to prescribe timelines and penalties relating to milestone inspections; revising the types of records that constitute the official records of a condominium association; prohibiting certain members and associations from waiving or reducing reserves for certain items after a specified date, etc.”

Specifically, a few sections should be noted to be of great importance with regard to the upkeep of the condominium buildings. Section 3 of Section 55.3899(2)(b) was added to define “substantial structural deterioration”. It defines substantial structural deterioration as distress that negatively affects a building’s general structural condition and integrity. But it does further note that the term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless a licensed engineer or architect performing inspection determines that such surface imperfections are a sign of substantial structural deterioration.

Further, concern has been expressed regarding the new “milestone inspection” requirement laid out by Senate Bill 4D. This Senate Bill does not require milestone inspections for condominium and cooperative buildings two stories or less. Per the latest revisions by the Florida Senate to Florida Statutes Section 718, condominium and cooperative buildings three stories and over must receive an inspection within a certain time frame that meets the new milestone inspection requirements for structural integrity. Those that are two or one story do not have to follow the set year inspection requirements, but one should be aware that lawmakers and legislators are looking closely at the condition of condominium buildings when it comes to resident safety.

However, as to balconies specifically, if the balcony is supported by items that hold general structural integrity, they are considered under the list to watch for substantial structural deterioration. If left unfixed and without inspection and a balcony structure fails or an individual is injured while the Board of Directions and Community Association Manager is aware of potential substantial structural deterioration regarding the balconies, then such a failure is a breach of an officers and directors’ fiduciary relationship to the unit owners under Florida Statutes Section. 718.111(1).

The attorneys at The Orlando Law Group represent condominium owners as well as COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

In Florida, it is common for homeowners or condominium owners to live in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively. Associations are commonly found in housing or property developments where people share a common area or amenities, such as:

  • Planned or private neighborhoods.
  • Subdivisions.
  • Gated communities.
  • Condominiums.
  • Townhome complexes.
  • Apartment buildings.

While the overall goal of most HOAs or COAs is to improve living standards within the community and maintain or increase property values, part of an HOA or COA’s responsibilities also include protecting the health, safety and welfare of the community which they serve. This mission is sometimes put to the test when an emergency situation arises within the community, such as during a natural disaster, during a health crisis such as a pandemic, or during a time of civil unrest. To include some more recent examples, many local HOAs and COAs faced challenges as to how to provide a proactive yet effective response during the COVID-19 pandemic and, more recently, during Hurricane Ian.

Certain emergency situations may call for a rapid response and thorough preparation from the HOA or COA in order to safeguard the wellbeing of the community. To this end, an Association’s ordinary powers can sometimes be expanded during times of emergency. These expanded powers are typically referred to as “emergency powers,” and can serve as a key source of guidance and leadership during crises.

The authority of HOAs and COAs to enforce their rules and regulations is rooted in statutory authority. Chapter 720 of the Florida Statutes empowers and controls the ability of HOAs to enforce their rules in Florida, whereas Chapter 718 of the Florida Statutes empowers and controls the ability of COAs to enforce their rules in Florida. In regard to the issue of emergency powers for HOAs and COAs, Florida Statute 720.316 provides guidance as to HOAs, while Florida Statute 718.1265 sheds light on powers for COAs.

As to emergency powers for HOAs, Florida Statute 720.316 states, in summary:

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage or injury caused by or anticipated in connection with an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board meetings, committee meetings, elections, or membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication after notice of the meetings and board decisions is provided in as practicable a manner as possible.

(b) Cancel and reschedule an association meeting.

(c) Designate assistant officers who are not directors.

(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster or an emergency plan before, during, or following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the common areas or facilities unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or public health officials or upon the advice of licensed professionals retained by or otherwise available to the board, determine whether the common areas or facilities can be safely inhabited, accessed, or occupied.

(i) Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the common areas or facilities or sanitizing the common areas or facilities.

(j) Levy special assessments without a vote of the owners.

(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient.

As to emergency powers for COAs, Florida Statute 718.1265 states, in summary:

To the extent allowed by law, unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with s. 617.0830, the board of administration, in response to damage or injury caused by or anticipated in connection with an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may exercise the following powers:

(a) Conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication with notice given as is practicable.

(b) Cancel and reschedule any association meeting.

(c) Name as assistant officers persons who are not directors.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan or an emergency plan before, during, or following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the condominium property or association property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located.

(i) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine whether the condominium property, association property, or any portion thereof can be safely inhabited, accessed, or occupied.

(j) Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus or contagion, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property.

(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further injury, contagion, or damage to the condominium property or association property.

(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient.

Taking a closer look at both of the above statutes, it can be seen that emergency powers may only be exercised to the extent allowed by state and federal law, unless specifically prohibited by the governing documents of the Association. Furthermore, the Board of an Association may only exercise the above emergency powers in response to or in anticipation of an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the Association is located. On the state level, a state of emergency may only be declared by executive order or proclamation of the Governor.

As such, it should be noted that the emergency powers an HOA or COA are limited, and the extent to which an HOA or COA can exercise these powers are always dependent on its governing documents, state law, and the nature of the emergency. Boards should also take into account that any emergency powers utilized by an HOA or COA Board must be exercised in a manner consistent with the board’s fiduciary duty to the community. An Association Board should be careful to balance its obligation to protect and look to the best interests of the community along with the limitations on its authority. A Board that over-extends its powers during an emergency may be viewed as domineering or even tyrannical, and is likely to lose the confidence and support of the community and its members.

However, the above language is not meant to scare Associations into never utilizing its emergency powers. After all, emergency powers were legally granted to HOAs and COAs for a reason – to protect the welfare of the community. HOAs and COAs should use their best discretion along with advice from expert legal counsel to determine what their emergency response should be. For instance, it may be wise for an Association to implement a disaster plan before, during or after an emergency, which could include turning off elevator or electrical systems at a designated time or organizing a volunteer team to help residents with reduced mobility to safely evacuate a disaster zone prior to an emergency. An Association could also conduct an emergency Board or member meeting to discuss a disaster response plan, for example.

In general, when preparing to respond to a disaster or emergency, advice and warnings issued by FEMA or other government agencies are a good place for an Association or Board to start.  For instance, if FEMA is advising residents to evacuate, a COA or HOA, although it may lack the power to order homeowners to leave their homes, could use its communication channels, such as their website or social media pages, to spread the word and ensure all members have notice of FEMA’s directives.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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COA Reserve Funds – What You Need to Know About Association Reserves

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Reserve funds are a key financial asset for your association, and provide a valuable source of funding for costly repairs, replacements and emergencies. Despite the importance of this resource, many Condominium Owners Associations are unsure as to what is needed to fund their reserve. Specifically, this blog will address two (2) concerns: (1) What is required to fund the reserve account; and (2) Requirements imposed by the newly passed Senate Bill 4D condominium inspection law as well as recent amendments to a significant portion of Florida Statutes Section 718, and how these will impact the operation of Condominium Owners Associations here in Florida. What Is Reserve Funding? What Is Required to Fund the Reserve Account? Reserve Funding is essentially a savings account for your association used to save money for costly repairs and replacements of community property. Think of it as the Association’s piggy bank or rainy-day jar. Reserve funds are typically spoken of as being held in one of two ways: pooled reserves and non-pooled reserves. Pooled reserves are funding for multiple assets (roofs, sidewalks, etc.) that are combined into one general account from which all expenses are paid. Non-pooled reserves are when each asset has its own account dedicated to its repairs and upkeep. Funds cannot be transferred under a non-pooled reserve method. Reserve accounts are often found to be underfunded significantly for the amount that could and should be done to keep the association’s community property in good working order. As of December 31, 2024, for items required to be included in a Structural Integrity Reserve Study (more on this briefly), an Association may no longer use those itemized reserve funds (or any interest accruing thereon) for other purposes, and an Association may only use those itemized reserve funds for their designated purposes. Essentially, the use of pooled reserve funds has been eliminated by the amendment of Florida Statutes Section 718. Recently, the Florida Senate rewrote and amended a significant portion of Florida Statutes Section 718, including the portion regarding reserve funding or a lack thereof. Florida Statutes Section 718.112(2)(f)(2a) reads: “The members of a unit-owner-controlled association may determine, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. Effective December 31, 2024, the members of a unit-owner-controlled association may not determine to provide no reserves or less reserves than required by this subsection for items listed in paragraph (g).” Paragraph g of the Florida Statutes Section 718.112(2) as noted by the above section states: An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that at a minimum, inspects the roofs, load-bearing walls or other primary structural members, floors, foundations, fireproofing and fire protection systems, plumbing, electrical systems, waterproofing and exterior painting, and windows. So how may an Association Board go about changing their reserve funding? The board must present a proposed budget to the community assuming full reserve funding. For instance, let’s say an association seeks to reduce or waive their current reserve funding. The association cannot hold a vote to waive or reduce reserve funding until after a proposed budget with full reserve funding has been provided to the membership. If the board would like to put a vote on the table to reduce or waive reserves funding, then they should provide (along with the proposed budget which must be distributed 14 days prior to the budget meeting): (1) a second budget with waived or reduced reserves and (2) a limited proxy to be filled out by unit owners specifically requesting the membership to vote on the second budget. The proxy must include the following wording per Florida Statutes: “WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.” To successfully reduce or waive reserve funding, a majority of the membership (i.e., 51% of unit owners) must vote in favor of the reduction/ waiver. If by the time of the budget meeting arrives the association has received insufficient votes, the board may delay approving the budget to attempt to collect more votes. If a majority vote is not obtained, the board must approve the budget with full reserve funding. If a majority vote is obtained, the board must proceed with the waived or reduced reserve funding. It is important to note that any vote to waive or reduce reserves is only effective for one annual budget. Therefore, the vote must be obtained for every year the board would prefer not to fully fund reserves. Senate Bill 4D Senate Bill 4D was passed as a response to the tragedy in Surfside, Florida that occurred last year when a condominium building collapsed after a long history of maintenance problems and shoddy construction techniques. Senate Bill 4D was effective as of 05.26.2022 and entered fully into Chapter 2022-269 as of 06.29.2022, and the general bill reads as follows: “Building Safety; Providing that the entire roofing system or roof section of certain existing buildings or structures does not have to be repaired, replaced, or recovered in accordance with the Florida Building Code under certain circumstances; requiring condominium associations and cooperative associations to have milestone inspections performed on certain buildings at specified times; authorizing local enforcement agencies to prescribe timelines and penalties relating to milestone inspections; revising the types of records that constitute the official records of a condominium association; prohibiting certain members and associations from waiving or reducing reserves for certain items after a specified date, etc.” Specifically, a few sections should be noted to be of great importance with regard to the upkeep of the condominium buildings. Section 3 of Section 55.3899(2)(b) was added to define “substantial structural deterioration”. It defines substantial structural deterioration as distress that negatively affects a building’s general structural condition and integrity. But it does further note that the term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless a licensed engineer or architect performing inspection determines that such surface imperfections are a sign of substantial structural deterioration. Further, concern has been expressed regarding the new “milestone inspection” requirement laid out by Senate Bill 4D. This Senate Bill does not require milestone inspections for condominium and cooperative buildings two stories or less. Per the latest revisions by the Florida Senate to Florida Statutes Section 718, condominium and cooperative buildings three stories and over must receive an inspection within a certain time frame that meets the new milestone inspection requirements for structural integrity. Those that are two or one story do not have to follow the set year inspection requirements, but one should be aware that lawmakers and legislators are looking closely at the condition of condominium buildings when it comes to resident safety. However, as to balconies specifically, if the balcony is supported by items that hold general structural integrity, they are considered under the list to watch for substantial structural deterioration. If left unfixed and without inspection and a balcony structure fails or an individual is injured while the Board of Directions and Community Association Manager is aware of potential substantial structural deterioration regarding the balconies, then such a failure is a breach of an officers and directors’ fiduciary relationship to the unit owners under Florida Statutes Section. 718.111(1). The attorneys at The Orlando Law Group represent condominium owners as well as COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. If you are a condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike. If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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A Guide to Community Association Records Requests for HOAs and COAs: What Can and Can’t an Owner Request?

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Homeowners or condominium owners, as members of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS.—The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.—

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p).

However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records.

What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorney’s fees from the Association or person in control of the records.

If you are a board member who is unsure as to what records you need to provide and what records you cannot provide to a unit owner, it may be helpful for you to seek the help of an Association law attorney as well. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

As a homeowner or condominium owner and as a member of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; you do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS. The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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Requesting Records from your Condominium Association or Homeowners Association: What Can and Can’t You Request?

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As a homeowner or condominium owner and as a member of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; you do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS. The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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Common Misconceptions about Homeowners/Condominium Owners Associations

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Living in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively, has its benefits as well as its drawbacks. No matter where you are from, we’re sure you’ve heard of some HOA or COA horror stories from a friend or family member. Although these stories can be intimidating for those looking to purchase property within an HOA or COA, oftentimes, these stories are not necessarily the norm for all Associations. In fact, while the vast majority of people living in a community Association are satisfied with their Association, according to a 2022 study by the Foundation for Community Association Research, there are many misconceptions about Associations perpetuated not only by homeowners or condominium owners, but even by Association board members themselves. In this article, we hope to dispel some of the many misconceptions surrounding Associations, and provide some clarity as to what an HOA or COA actually does and how they operate.

Misconception #1: An Association exists to control its residents and enforce unnecessary rules and regulations-even at the expense of the community and its residents.

First, let’s look at the ultimate purpose of an HOA or COA. An HOA or COA develops and enforces regulations and guidelines for its members, with the ultimate goal and purpose of providing structure to the community, preserve and enhance the community’s property values, and make sure the community is a pleasant and well-maintained place for its residents to live. Simply put, an Association exists for its members and for the community they inhabit. A good Association, run by a responsible and reasonable Board, is an incredible asset for their community and its residents, and can accomplish great things, making the community an overall better place to live.

Now, this is not to say that all Associations are “good” Associations. Some Associations fail to comply with statutory requirements, or do not take into account the opinions of the members. The good news is; there are countless protections and rights provided to homeowners and condominium owners while allow owners to hold their Association accountable for possible misdeeds. For example, under Florida Statute 720.303 for HOAs, and under Florida Statute 718.111 for COAs, unit owners have the right to request and inspect the official records of the Association. You can learn more about this right in our blog regarding HOA and COA records requests linked here. As another example, under the Fair Housing Act, it is illegal to prohibit individuals from moving into or renting in a neighborhood on the basis of sex, religion, disability, race, nationality, or familial status. If an HOA or COA violates this act, the Association may have severe charges pressed against it.

Furthermore, if you as an owner find yourself in dispute with your HOA or COA, you can hire an experienced Association law attorney review your situation and develop a strategy to assist you in resolving the dispute. The attorneys at The Orlando Law Group represent homeowners and condominium owners in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

Misconception #2: Associations exist only to make money and to levy high assessment fees against its members.

Many homeowners ask, why do I have to pay HOA or COA fees? And, where is that money going towards? When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, responsible for paying community expenses called Assessments or, more commonly, referred to as HOA dues or fees. These contributions are collected on a fixed time schedule (such as on a monthly, quarterly, or annual basis) to pay for standard maintenance and upkeep of the community’s facilities and common areas, as well as to improve the community by implementing new facilities and features. Simply put, HOA fees or dues provide the funding which allows the HOA or COA to enforce its rules and regulations as well as carry out its obligations, with the ultimate goal of making the community a more enjoyable place to live. Further, note that Association board members are not paid for serving as board members – serving on the board is a fully voluntary position for most Associations.

As such, HOA or COA funds have a clear purpose for being collected – they are instrumental for allowing Associations to run smoothly and efficiently, and to fulfill their responsibilities under the HOA’s governing documents. As a homeowner, you have a right to request and inspect your Association’s financial records to find out exactly where your assessment dues are going. HOAs and COAs alike are required to keep and maintain their financial records and to foster transparency within their community. If you are concerned or simply want to know what your money is being used for, you can submit a records request to your HOA or COA. You can learn more about this right in our blog regarding HOA and COA records requests linked here. To learn more about why your HOA and COA fees are being directed in certain ways, check out our blog “All About Homeowners and Condominium Owners Associations.”

Misconception #3: HOA or COA rules and regulations cannot be changed or amended.

HOA and COA rules and regulations as well as the governing documents of an Association are not set in stone, and can absolutely be amended or changed. As with many things, with time, certain rules or restrictions become outdated or no longer make sense. An Association and its members may seek to change these rules by amending them.

Each governing document is subject to their own amendatory procedure. Typically, amending the declaration or bylaws requires some form of an owner vote, whereas rules or regulations can be most often amended by the Board without an owner or member vote being necessary or required. Neither Chapter 718 or Chapter 720 of the Florida Statutes contains any requirement for owners to approve or vote on rules and regulations, assuming rulemaking authority has already been granted to the board.

However, this does not mean that owners have no say in the rules and regulations their Board chooses to implement. Association members have the ability to attend board meetings where they can share their opinions and raise any concerns regarding any agenda items the board plans to vote on, including rules and regulations. During a board meeting, property owners can submit a written request to amend or remove certain rules. The board will then review the request independently and come to a conclusion. The best board members will take the time to periodically review their governing documents to ensure everything is satisfactory and current. To learn more about amending HOA/COA documents, check out our blog on Amending HOA Documents and the Unlicensed Practice of Law here.

Misconception #4: Having a management company essentially replaces Association Board Members.

Many Associations, especially larger Associations, hire a management company to assist in the daily operations of the Association. As we previously noted, board members are not paid to serve on the Board, and the position is voluntary. Board members may have their own careers to attend to, and it may be impossible for board members to dedicate 100% of their time to the Association. This is where a management company may step in and take on some of the day-to-day operations of the Association, such as with accounting, property management, dealing with violations, and corresponding with unit owners. For example, perhaps an Association hopes to make the accounting and collections process more efficient and chooses to hire a management company to assist them.

Management companies can be wonderful tools for Associations to utilize in ensuring their daily operations run smoothly and efficiently; but they do not take the place of board members. Management companies cannot make decisions on behalf of the board; cannot amend HOA or COA documents, and cannot pursue legal action on behalf of the Association. The Association’s board members work in conjunction with the management company to improve the operations of the Association and better the community. As such, management companies serve not to replace board members, but instead to assist them in fulfilling the responsibilities of the Association and in serving their residents.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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The Governing Documents of an HOA or COA – What do they mean?

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In Florida, it is common for homeowners or condominium owners to live in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively. Associations are commonly found in housing or property developments where people share a common area or amenities, such as:

  • Planned or private neighborhoods.
  • Subdivisions.
  • Gated communities.
  • Condominiums.
  • Townhome complexes.
  • Apartment buildings.

As a homeowner or condominium owner living in an Association or as an Association board member (or, someone interested in one day becoming a board member), it’s important to have a general understanding of what an HOA or COA does, what an HOA or COA is responsible for, and how an HOA or COA operates. A key aspect of the operation of any HOA or COA is its governing documents, or the documents which control the administration and daily activities of an Association.

As a member of an Association, it’s very important for you to have reviewed and understood the governing documents of your Association and what rules those documents obligate you to follow. Typically, the “governing documents” of the community include the declaration of covenants, the articles of incorporation, the bylaws, and the rules and regulations. Some Associations may have more documents or policies, such as a landscaping policy or an Architectural Review Committee or Board policy.

The declaration is much like your Association’s “constitution” and sets forth the basic covenants and restrictions for the community. If you are looking at investing or renovating the home, make sure to review this document. For example, covenants include the obligation to pay assessments on time and be a member of the association. The requirement that your lot can only be used as a single family home, or can only be rented for certain minimum periods are examples of restrictions which may be found in your Declaration. These are just a couple of examples of restrictions which may be found in your declaration and affect you.

The articles of incorporation establish the Association’s existence, basic structure, and governance.

The bylaws govern the overall operation of the Association. Bylaws will typically address the composition of the Board, how meetings are called, how voting procedures work, and numerous other corporate procedures.

The rules and regulations usually act as a supplement to the covenants contained in the declaration, and typically address everyday matters, such as parking or use of the community’s recreational facilities.

Each governing document is subject to their own amendatory procedure. Typically, amending the declaration or bylaws requires some form of an owner vote, whereas rules or regulations can be most often amended by the Board without an owner or member vote being necessary or required. Neither Chapter 718 or 720 of the Florida Statutes contains any requirement for owners to approve or vote on rules and regulations, assuming rulemaking authority has already been granted to the board.

However, this does not mean that owners have no say in the rules and regulations their Board chooses to implement. Association members have the ability to attend board meetings where they can share their opinions and raise any concerns regarding any agenda items the board plans to vote on, including rules and regulations. To learn more about amending HOA/COA documents, check out our blog on Amending HOA Documents and the Unlicensed Practice of Law here.

A good example of this is having a few backyard chickens. As this practice has risen in popularity, Associations are working through the complexities of having a small chicken coop on their property. When your city or county approves backyard chicken coops, your Association may not allow it.

As we previously stated, it’s very important for you to have reviewed and understood the governing documents of your Association and what rules those documents obligate you to follow. When you purchase property located within the jurisdiction of an Association, you become a member of that Association and are thus required to follow the Association’s rules and restrictions set out in the Association’s governing documents.

If you were starting a new job, you would want to become familiar with your new job’s standard operating procedures or general rules for doing the job to ensure that you know what guidelines you need to follow in order to be successful. The same logic can be applied to your HOA or COA-you want to be familiar with the rules to ensure that you and your home are in compliance with the Association’s governing documents. Otherwise, if your home falls outside of compliance, and you do not correct the violation in a timely manner, you could be subject to fines and other penalties, which the Association would likely be within their legal right to enforce as laid out in their governing documents and Florida Statutes Chapter 718/720.

Nowadays, many HOAs or COAs have their own website which contains their governing documents for their residents to easily download and review. Or, you can request a copy of the Association’s official records by making a records request, which we will discuss in greater detail in our next blog.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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HOA/COA Fees – Why Do I Have To Pay For Them, and Where Is That Money Going?

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Many homeowners ask, why do I have to pay HOA or COA fees? And, where is that money going towards? When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, responsible for paying community expenses called Assessments or, more commonly, referred to as HOA dues or fees. These contributions are collected on a fixed time schedule (such as on a monthly, quarterly, or annual basis) to pay for standard maintenance and upkeep of the community’s facilities and common areas, as well as to improve the community by implementing new facilities and features. Simply put, HOA fees or dues provide the funding which allows the HOA or COA to enforce its rules and regulations as well as carry out its obligations. Each Association and its Board determines how much residents have to pay each month, quarter or year by preparing a budget.

What do HOA fees cover?

Generally, HOA fees pay for the upkeep of common areas and facilities, including:

  • Sidewalks/walkways.
  • Parks.
  • Lighting.
  • Elevators.
  • Pools.
  • Clubhouses.
  • Gyms or fitness centers.

HOA fees can also cover services for the community, such as:

  • Lawn care and landscaping.
  • Maintenance and repairs.
  • Snow removal.
  • Trash pickup.
  • Security.
  • Pest control.
  • Insurance for common areas.
  • Social events, such as block parties or holiday parties.

Often, part of your HOA or COA dues goes towards the Association’s reserve fund, which pays for upcoming maintenance or large-scale projects (such as building a new park), as well as provides funds for possible emergency repairs. Think of it as the Association’s piggy bank or rainy day jar. If your HOA or COA does not have enough money in its reserves and needs to pay for a repair or project, they can issue what is referred to as “special assessments.” Associations can also raise or lower Association fees at any time, if the Board approves. For example, many Associations needed to dip into those funds after the recent hurricanes to fix a brick wall or to remove a tree from the common area. These funds can also be used for special large-scale projects, such as building a new park or clubhouse for the community to enjoy.

All fees and special assessments are set by the board of directors based on the budget they want to spend. A multitude of decisions go into the annual budget, including increases in maintenance costs or long-term goals of new or renovated amenities. Of course, you have a voice in this. A proposed budget should be available to all members. You can go to your Association meetings and state your case for a different fee or budget. While this mostly happens once a year, Associations can also raise or lower association fees at any time, if the board approves.

As a member of the Association, you are required to pay HOA/COA fees or assessments, just like any other bill. If you forget a payment or fall on hard times, there may be a grace period; but this depends on the Association. After that grace period, expect to get a friendly collection letter, late fees, and possible interest applied to your account.

What happens if you don’t pay your HOA/COA fees? If you receive collections letters and warnings and still don’t pay your HOA/COA dues, the Board may choose to take further legal action. This can include:

  • Collections: If your HOA/COA sends your past-due account to a collections agency or some other mechanism to collect the overdue funds, it can damage your credit score.
  • Liens: If your HOA/COA puts a lien on your property, that can come up in a title search and make it difficult to sell your house if you hope to move. Most Associations have the legal right to place a lien on a home or unit to secure the payment of past due assessments. To learn more about the Association collections process, read our blog “The Ins and Outs of the Association Collections Process.”
  • Lawsuits: The HOA can sue you for unpaid dues in some states, including in Florida. This could end in wage garnishment or a levy against your bank account.
  • Foreclosure:  In some cases, your HOA may be able to foreclose on your property based on its covenants and state law. Remember, in a foreclosure action, the primary goal of the Association is not to take title to a property but to force a sale on that property so that the Association can retrieve the money owed to the Association.

If you come up tough times financially and have trouble paying your fees, contact your HOA or COA board to schedule a meeting. You may be able to work out a payment plan to see you through tough times. It’s always preferable to work out a payment plan rather than to continue not paying and allow late fees and interest to rack up on your account. In some cases, these late fees and interest can one day amount to even more than the actual assessment amounts which are past due.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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All About Homeowners and Condominium Owners Association

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In Florida, it is common for homeowners or condominium owners to live in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively. Associations are commonly found in housing or property developments where people share a common area or amenities, such as:

  • Planned or private neighborhoods.
  • Subdivisions.
  • Gated communities.
  • Condominiums.
  • Townhome complexes.
  • Apartment buildings.

As a homeowner or condominium owner living in an Association or as an Association board member (or, someone interested in one day becoming a board member), it’s important to have a general understanding of what an HOA or COA does, what an HOA or COA is responsible for, and how an HOA or COA operates.

First, what does an HOA or COA do, and what is the general purpose of an HOA or COA? While each and every HOA or COA is slightly different and may operate in slightly different ways, the overall purpose of any HOA or COA is the same. An HOA or COA is an organization that develops and enforces rules and guidelines for properties and residents living within a subdivision, planned community, or condominium. Generally, an Association is made up of and operated by residents of the community, who are elected by fellow members of the Association. Those who are elected to run an HOA or COA are usually referred to as the HOA or COA’s Board, or “Board of Directors.” When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, and are required to follow the rules and regulations associated with that Association.

An HOA or COA develops and enforces regulations and guidelines for its members, with the ultimate goal and purpose of providing structure to the community, preserve and enhance the community’s property values, and make sure the community is a pleasant and well-maintained place for its residents to live. An HOA or COA may, and commonly does, hire a property manager or property management company to assist in carrying out the everyday operations of the Association. This property manager is typically known as a Community Association Manager, or CAM.

The responsibilities of an HOA or COA may include (but are not limited to) any of the following:

Develop and Enforce Rules and Regulations

  • Develop and approve covenants, conditions, rules, and bylaws, as well as amend old rules and regulations when necessary
  • Hear complaints from residents and make decisions as to how to handle disputes within the community
  • Enforce penalties against residents if they do not comply with the Association’s rules and regulations in the form of fines or legal action

Hold Meetings and Communicate with Members

  • Hold meetings for members, hear out concerns of the members, determine voting matters, vote on issues, elect a new Board, etc.
  • Hold meetings for the Board of Directors
  • Communicate with homeowners, property managers, attorneys, and other personnel
  • Planning events or social activities.

Oversee the Finances of the Community

  • Set annual and/or monthly budget with input from owners
  • Keep and maintain financial records
  • Set and collect assessment fees
  • Pursue collections against homeowners who do not pay their assessments on time
  • Maintain a reserve of funds
  • Allocate spending for insurance coverage

Maintain the Neighborhood

  • Budget for upkeep and maintenance
  • Collect bids from contractors for maintenance
  • Schedule and arrange inspections
  • Respond to emergencies

Some HOAs or COAs are voluntary, while others are mandatory. Voluntary HOAs/COAs are optional to join, but members can access shared amenities, like a clubhouse, gym, or pool. In most cases, if you don’t join the Association, you don’t get the perks. Mandatory HOAs/COAs are exactly as they sound-mandatory. If you purchase property in a mandatory HOA or COA, you must pay HOA/COA fees and follow the rules and regulations of that Association. When buying new property, you will want to know whether there is an Association, and whether that Association is mandatory or voluntary. Please note that throughout the rest of this blog, we will mainly be referring to mandatory Associations.

The authority of HOAs and COAs to enforce their rules and regulations is rooted in statutory authority by the state of Florida. Chapter 720 of the Florida Statutes empowers and controls the ability of HOAs to enforce their rules, whereas Chapter 718 of the Florida Statutes empowers and controls the ability of COAs to enforce their rules. While Chapters 718 and 720 are similar in many ways, there are some key differences; so if you are looking to learn more about the legal authority that grounds your HOA or COA, make sure that you are looking at the right chapter! While the Florida Statutes empower HOAs and COAs to enforce their rules, the Statutes also restrict HOAs and COAs in several key ways and provide rights to homeowners and condominium owners, such as the right to peacefully assemble, display the U.S. flag, request official Association records, and, in serious cases, the right to recall the Board.

While statutes set the framework for HOAs and COAs, every Association is different. After all, the rules of any community should be set by the community itself, not by politicians in Tallahassee. However, Associations must always adhere to the statutes which govern them.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

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Breaking Down Florida Bill 4-D

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Overview

It was just over a year ago that 98 lives were tragically lost when the Champlain Towers South condominium complex collapsed in Surfside, Florida, becoming one of the deadliest residential building collapses in United States history. While general legislation was stalled during the official legislative session, legislation regarding the collapse was passed in a special session. During the third special session of the year, Florida Legislators passed Senate Bill 4-D, which was subsequently signed into law by Florida Governor Ron DeSantis on May 26, 2022. The new law requires significant changes to the recertification process for condominiums; modifies Florida Statutes Chapters 553, 718, 719 and 720; and establishes new reserve rules. In this article we will cover what the law entails and the changes for both condominium associations and residents alike.

Recertification

One of the main changes that the law makes is that there are new requirements in the recertification process of condominiums. The law now requires statewide recertification of condominiums that are over three stories tall. Recertification will be required after 30 years, or 25 years if the building is within three (3) miles of the coast, and every ten (10) years thereafter. At the time of the Surfside collapse, only two of Florida’s 67 counties, Miami-Dade and Broward, had condominium recertification programs. At the time of its collapse, the Champlain Towers South Condominium Complex was 40 years old and was actively undergoing the 40-year-recertification process required by Miami-Dade.

This new legislation will have a significant impact on existing units in the state of Florida. According to a legislative analysis conducted earlier this year, there are more than 1.5 million condominium units in Florida that are operated by nearly 28,000 associations. Of those units, over 912,000 are older than 30 years and are home to more than 2 million residents. This means that hundreds of thousands of units that were not previously technically required to be reinspected and recertified by a licensed architect or engineer years after being built and occupied will now be subject to the recertification requirement. While there is not a standard cost for recertification, the three main factors that influence the overall price are: the size of the building (i.e. number and size of individual units), complexity of the structure, and accessibility.

An engineer will provide you with a proposal once they have a good understanding of your condominium building.  Some will provide a price per unit. These can range from as little as $10 per door to as much as $300 per door (depending on a multitude of factors).  Other engineers provide a price based on square footage.  Some even take into consideration the location of the condominium and its age. Due to the variety of factors that may go into the total price, it is important to receive and consider multiple quotes.

While some of the law’s new provisions will not take full effect until the year 2024, there is a growing concern regarding a future shortage of licensed Florida architects and structural engineers qualified to recertify condominiums. As shortages tend to drive up prices, it is important to act soon so as to not have to deal with increased costs in the future, when recertification is made fully mandatory by law.

Reserve Funds

Another important aspect of the new law is the requirement for condominium associations to have enough money in their reserves to cover all repairs necessary to maintain the structural integrity (building, floors, windows, plumbing, electrical, etc.) of all buildings that are three stories or higher. This will likely come as a shock to many associations because before the new law passed in May, condo associations in Florida could choose to waive their reserves through a vote, effectively meaning they did not have to reserve any funds at all. Luckily for condominium associations, there is a grace period for current condo associations to make the necessary changes. Existing associations must meet this requirement before the year 2025. However, note that it is never too early to begin preparing to meet this requirement in the future.

Other Important Laws Impacting Condos

Some additional condominium laws that recently went into effect that you and your condominium association should be aware of are:

  • SB 630 was unanimously passed and subsequently signed into law on June 16, 2021 and makes additional significant changes to existing condominium law. One of the key changes is that it prohibits condominium associations from requiring unit owners to state a purpose for accessing official records. It also establishes the right of tenants to access a copy of the Declaration, Bylaws, and Rules and Regulations. It does clarify, however, that those are the only records accessible to tenants. Additionally, the law limits the time required for keeping competitive bids in the condo association’s official records to one (1) year. Furthermore, condominium associations and management companies are now allowed to use the same legal counsel, which was previously prohibited. This is a non-exhaustive list, but you can access a copy of the official summary of the bill using this link.
  • SB 56 was unanimously passed and signed into law on June 16, 2021. Under the law, condo associations must wait 45 days to foreclose a claim of lien (a legal claim to a property used as security against any amount of money or services owed to another entity) after written notice is given to the unit owner. It also introduces new requirements on how associations may deliver or change their methods of delivery for assessments and account statements. This is a non-exhaustive list, but you can access a copy of the official summary of the bill using this link.

Overall

If you are a member of a condominium association or on the Board of an association and are having concerns regarding the requirements outlined in Senate Bill 4-D or other recent condo laws and their applicability to your association, please contact The Orlando Law Group at 407-512- 4394 and schedule an appointment to speak with one of our outstanding attorneys about your concerns.

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Emotional Support Animals & Community Association Rules: What Does the Law Say?

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Many Community Associations adopt rules and restrictions to limit pets within a community. When purchasing a home, this can be especially appealing to those who suffer from allergies, those that have animal phobias, or those who just simply dislike animals in general because of the noise they make or the mess they sometimes leave behind.

However, it has been well established that service animals, “trained to do the work or perform a task for an individual with a disability, whether physical, sensory, intellectual, or other,” cannot be kept out of a community based on a Community Association’s “pet restriction policy.” This is because the Fair Housing Act, which was adopted in 1968, was modified in 1988 to include persons with disabilities as a protected class. In summation, the Act states that no person can discriminate against another with a disability when renting, buying, or selling a house. Since the service animal is an accommodation for the disability, not allowing the animal would be considered discrimination. Also, since the Fair Housing Act is a federal law, this law supersedes any rules and regulations or any restriction within the declaration of the Association.

THE DIFFERENCE BETWEEN A SERVICE ANIMAL AND AN EMOTIONAL SUPPORT ANIMAL

The next question to consider is if there is a difference between a service animal and an emotional support animal. The answer is yes! Service animals require a high level of training and are typically trained to provide specific tasks for their owner. Emotional support animals on the other hand do not require any specific training. Their sole purpose is to provide, as their title suggest, “emotional support.” Service animals are easy to identify as they tend to be dogs and perform very specific tasks such as seeing eye dogs that provide guidance for the blind. However, with emotional support animals, Community Associations continue to see an increasing number of owners who claim to need emotional support animals with no outward demonstration of a need for support nor the animals demonstration of anything other than being a household pet.

This has left most Associations asking the quintessential question, “what criteria do we use to validate any claim from an owner as to the need for an emotional support animal or animals in some cases?” This is a difficult question to answer and has become a much-abused provision of the law in recent times.

THE AMERICANS WITH DISABILITIES ACT

But we are not without any legal support. The law does provide Associations with some guidance.  The Americans with Disabilities Act limits support animals to dogs and miniature horses. The law also imposes penalties for false claims, although we do warn Associations that it is very difficult to prove such a claim. Associations can also require supporting documentation from an authorized physician or therapist stating the need for the animal. The law protects an individual’s right to privacy as to their specific disability but does not prevent an Association’s right to request proof of the need for an emotional support animal or the need for multiple animals if the case presents itself. The Association can also adopt reasonable rules that the owners must follow so that these animals do not interfere with the peaceable enjoyment of the community by the rest of the residents. For example, one such rule could include that all emotional support animals must always be on a leash when outside an owner’s residence or fenced in yard. Another rule could be that all owners are responsible for picking up after their animals and properly discarding all animal waste.

NAVIGATING THE FINE LINE

There is no denying that animals definitely provide therapeutic healing for those who need it. However, more often than not, we have seen many owners try to get their pets into communities that have “no pet” polices under the guise of them not being a pets but rather emotional support animal with a certificates printed off the internet. This has, in turn, created a very negative connotation and atmosphere surrounding emotional support animals.

As a community, we cannot let the selfish acts of some affect the true medial needs of others. So, Associations can arm themselves by knowing the laws regarding emotional support animals, require owners to provide proper documentation and implementing reasonable rules and regulations for emotional support animals within your community. This will allow those who truly need the support of a fury friend to receive the aid they need and hopefully deter others from violating the laws and instead choose to live in a pet friendly community instead.

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Amending HOA Documents And The Unlicensed Practice Of Law

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Often times, a community association relies on an attorney to assist with the modification of its governing documents, and to provide answers to questions that affect not only the rights of the community association but its members as well.

There are certain documents that must be completed by an attorney, based on the fact that they involve the interpretation of Florida Statutes while requiring a level of legal expertise and a familiarity with the Association’s Articles of Incorporation, Bylaws, Covenants, and Declarations. Further, based on the fact that the officers and directors of an association owe a fiduciary duty to its members, it is important to keep in mind that any document pertaining to their obligations, or the obligations of its members, be drafted properly.

What HOA activities require an attorney?

The following activities are considered the unlicensed practice of law if performed or completed, on behalf of the association, by anyone other than an attorney:

  1. Drafting a claim of lien;
  2. Drafting a satisfaction of claim of lien;
  3. Drafting a Notice of Commencement Form;
  4. Determining the timing, method, and form of giving notice of meetings;
  5. Determining the votes necessary for certain actions, which would entail interpretation of certain statutes and rules;
  6. Answering a community association’s question about the application of law to a matter being considered,
  7. advising a community association that an action or course of action may not be authorized by law or rule;
  8. Drafting any document that must comply with Florida law; and
  9. Drafting the documents required to exercise a community association’s right of approval or first refusal to a sale or lease.

Due to the fact that such actions may affect, impair, or enhance the rights of numerous homeowners and their property interests, an attorney should be the one to draft and advise on them. Allowing anyone other than an attorney to complete these tasks opens up the association to liability, as well as the possibility of Florida Statute violations.

What are some HOA activities that are not considered the unlicensed practice of law? 

Based on a Florida Advisory Opinion issued in 1996 and 2015 by the Florida Supreme Court, there are certain documents that can be drafted without the assistance of an attorney. Although this opinion references the actions of a Community Association Manager, the corollary is that it remains applicable to our discussion on HOA board conduct and the conduct of its members. With regard to the actions of non-lawyers, some of the following tasks may be performed:

  1. A change of registered agent or office for corporation’s forms;
  2. Annual corporation reports;
  3. First and second notices of the date of the election;
  4. Ballots;
  5. Written notices of the annual meeting;
  6. Annual meeting or board meeting agendas;
  7. Affidavits of mailing; and
  8. Completing a BPR Form 33-032.

If the additions or amendments pertain specifically to clerical matters and do not involve the interpretation of statutes, documents, or providing legal advice, the above-stated actions may be performed by a non-lawyer.

What are some areas of HOA law that remain unclear?

The Courts have deemed the following areas “grey”, therefore depending on your individual circumstances, you may or may not need an attorney to assist with the following:

  1. Editing a limited proxy form IF the modification involves:
  2. Filling in the name of the community association,
  3. Filling in the name and address of the owner,
  4. Phrasing a yes or no voting question concerning either waiving reserves or waiving the compiled, reviewed or audited financial statements requirement;
  5. Phrasing a yes or no voting question concerning carryover of excess membership expenses; and
  6. Phrasing a yes or no voting question concerning the adoption of amendments to the Articles of Incorporation, Bylaws, or condominium docs.

In addition to the Florida Supreme Court Opinions, an Association’s Declaration and Bylaws typically delineate the powers that a board of directors and its officers possess specifically with regards to the amendment of any governing documents. If such language is not included within the Association’s governing documents, an attorney should be consulted in order to determine how they should be amended.

If you have any questions regarding the actions of your homeowners’ association, or if you need assistance with drafting any of the above-stated documents, do not hesitate to contact The Orlando Law Group at 407.512.4394 to schedule a consultation today.

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Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Florida COA & HOA Restrictions on Solar Panels

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OLG LEGAL COMMENTARY:
Jennifer Englert
OLG Founder & Managing Partner

Photo of Jennifer A. Englert - Attorney and Managing Partner of The Orlando Law Group

Whether you are a member living within a development governed by a homeowners association (“HOA”) or a condominium owners association (COA) and interested in installing solar panels on your home, or a member of the Board of Directors of a HOA, COA, or its respective architectural review committees, (ARC), in Florida, it would behoove you to become familiar with Florida Statute 163. It is essential that you understand what F.S. 163 says about COA and HOA restrictions on solar panels in so far as its governance and application to energy saving devices such as solar panels and F.S. 163’s effect on the governing documents of your association.

Clearing the confusion about COA and HOA restrictions on solar panels.

As one would guess, the primary area of dispute in an association controlled development is not usually the use of solar panels or whether energy saving devices are permitted or not, but rather, where those panels may or may not be located on the roof of the home or condo. May the solar panels be seen from the street? May the solar panels face the street or fence line? These are some of the questions about HOA restrictions on solar panels that Florida Statute 163 governs and attempts to answer. Florida Statute 163.04(2) expressly prohibits homeowner and condo associations from preventing its members from installing “solar collectors, clotheslines, or other energy devices based on renewable resources from being installed on buildings erected on the lots or parcels covered by the deed restriction, covenant, declaration, or binding agreement.” Id. However, that very same statute and subsection does permit associations to “determine the specific location where solar collectors may be installed on the roof within an orientation to the south or within 45° east or west of due south if such determination does not impair the effective operation of the solar collectors.” Id.

Recommendations for homeowners interested in installing solar panels in a COA or HOA governed community.

Clearly there are limits to HOA restrictions on solar panels. With this being stated, it is recommended that even though the association cannot deny the homeowner the ability to install energy saving devises such as solar panels on their property, that the member should still follow the applicable procedures set forth by the architectural review committee before any such installation. In conjunction with this issue, the architectural review committee of each association should also develop a well thought out Solar Policy. This policy should address solar and roof energy saving issues within an application to be submitted by all homeowners/condo owners before the installation of such devices. The application should address, among other issues particular to your development, a satellite or aerial image of the roof with the proposed locations of the solar panels; roof slope and angles; north/south orientation; clear illustration of any shading issues; manufactures product information for the units to be installed on the home; and for those homes intending to install the solar panels on a street-facing front roof that is not within 45 degrees of due South and faces the street, an explanation of why installing the solar panels on the other available roof space would not be equal to or more efficient than, that the street facing roof. Ensuring that the home/condo owner and the association are all on one page and at least attempt to resolve any disputes prior to the installation process can potentially save both the association and member thousands in litigation expenses, noting here that F.S. 163.04(3) does award the prevailing party to any such litigation, its attorney’s fees, and costs.

If you are a member of an association or on the Board of an association and are having problems with Florida Statute 163 and its applicability to your governing documents, please contact The Orlando Law Group and schedule an appointment to speak with one of our outstanding attorneys about your problems and concerns.

Jennifer Englert is the managing partner and founder of The Orlando Law Group, PL. For over 15 years, she has focused on business disputes, business law, general civil litigation, special needs & education law, family law, personal injury, and real estate. She has represented entities and individuals in both federal and state trial and appellate courts.

Founded in 2009, The Orlando Law Group, has been named one of the fastest-growing law firms in Central Florida and through America [ranked No. 105 among the top 500 fastest-growing law firms in the United States, per the 2017 Law Firm 500]. It has earned a reputation as the Orlando-area law firm that cares about its clients and the communities it serves. Offices located throughout Orange and Seminole counties. To contact Englert, or for more information about The Orlando Law Group, please visit www.TheOrlandoLawGroup.com or phone 407-512-4394.

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