2018 Legislative Updates - Chapter 718, the Florida Condominium Act
These updates apply to condominium associations (COAs) in Florida only and not homeowner associations, which are single family homes or townhomes.
2018 Updates - Part IHere are the 2018 Legislative Updates to the Condominium Act, Chapter 718, with my comments in bold italics:
1. FS 718.303(3)(b), which is the statute authorizing fines and suspensions for violations, has been revised to mirror Chapter 720, the Homeowner Association Act, and provides a fine cannot be imposed unless the unit owner is given at least fourteen (14) days notice a hearing will be conducted to impose a fine and the hearing will be conducted by a committee composed of no less than three (3) members who are not directors, officers or employees of the association or the parent, spouse, child, brother or sister of a director, officer or employee of the association. The actions of the committee are limited to approving or rejecting the proposed fine and any imposed fine must be paid within five (5) days after the hearing. The association must provide written notice to the unit owner of the fine or suspension. Tenants, guests and invitees of the unit owner are allowed to attend the hearing.
2. FS 718.111(12) has been amended to provide the condominium association to comply with a request to inspect the official records within ten (10) business days from the receipt of a request, mirroring the Homeowner Association Act. The previous version required the request to be completed within five (5) days, but the penalty did not trigger until the 11th day. This statute was also revised to require electronic records for electronic voting to be kept for one year.
3. FS 718.112(c)(1) was amended to allow associations to post a meeting notices and agendas on the association's website and to email the notice to members with a link to the website for those members who consent to electronic notices. This is in additional the other requirements for posting notices in common areas or mailing notices. In addition, this statute was revised to require notices of meetings to discuss regular or special assessments must include provide a description of the purpose of the assessment and the estimated cost.
4. FS 718.112(2)(c)(6) was amended to make owners who consent to email notices responsible for removing or disabling any email filters which might prevent the receipt of the notice. In other words, if the owner does not receive the email because it was sent to a junk folder or deleted by the email server, the association is not responsible.
5. FS 718.112(g) requires condominium associations with 150 units or more to post the official records on a website by January 1, 2019. The requirement to post a summary of bids has been changed to allow the posting of actual bids and only those in excess of $500. The requirement to post proposed financial reports to be discussed at meetings has been changed to monthly income/expense statements to be considered at a meeting. Language has been added which would not invalidate any action or decision at a meeting for the failure to post the required information.
2018 Updates Part II6.FS 718.111(12)(b) has been amended to require certain documents be retained permanently, such as plans, permits, warranties, condo documents, rules, and meeting minutes. Language was also added to exempt the association or its agents from liability for accidental disclosure of confidential information. This means it is clear there is liability for intentional disclosure.
7.FS 718.111(13)(e) provides a penalty if the association fails to deliver the annual financial report to the unit owner after a request is made and the Division of Condominiums also orders the association to deliver the report. The penalty states the association may not waive the reporting requirement for the year of the request and the following fiscal year.
8. FS 718.112(2)(a)(1) requires a condominium association with five (5) or few units have at least three board members.
9. FS 718.112(2)(d)(2) has been revised to allow board members to serve more than one (1) year terms if authorized by the bylaws or article of incorporation. No board member can serve more than eight (8) consecutive years unless approved by two-thirds (2/3s) vote of all the unit owners casting votes. Despite the overwhelming amount of discussion outlining the need to determine if the eight (8) year limit applies when the statute was enacted July 1, 2017 or is retroactive, the Florida Legislature failed to clarify this issue. The Division of Condominiums has indicated it would interpret the eight (8) year limit to start when the statute is enacted, but it has yet to be tested.
10. FS 718.112(2)(d)(3) requires the board of directors to adopt a rule designating a specific place where meeting notices will be posted on condominium property. Recent court rulings have required associations to record a resolution of the adopted rule in the county records and to mail a copy to owners within thirty (30) days of recording the rule.
11. FS 718.112(2)(j) provides a board member's recall is effective immediately at the conclusion of the board meeting to certify or reject the recall if the recall is deemed facially valid and the recall certified. The board member will have ten (10) days to turnover all association documents. The same provisions are true used if the recall is by written agreement. If the association fails to hold the board meeting within five (5) days of the unit owner recall meeting or the service of the written recall, or fails to certify the recall, the unit owner representative may file an arbitration petition with the Division of Condominiums challenging the board's failure to act or failure to certify the recall. A board member who is recalled may file a petition to challenge the recall. If the arbitrator reinstates the board member with a finding the recall was invalid, the petitioning board member is entitled to recover attorneys' fees and costs from the unit owners. If the unit owners prevail and the arbitrator finds the board member's challenge to the recall was frivolous, the unit owners may recover attorneys' fees and costs from the petitioning board member.
2018 Updates Part III12. FS 718.113(2)(a) was revised to require unit owner approval be obtained before material alterations or substantial changes are made to common areas.
13. FS 718.113(8) was added to allow the installation of electronic vehicle charging stations within the unit owners limited common element parking area as a matter of public policy. The unit owner may not cause irreparable damage to the condominium property and is responsible for installation and payment of a separate meter and the payment of the electricity as well as maintenance, repair and hazard and liability insurance for the charging station. The unit owner is responsible for the removal of the charging station when it is no longer required. The unit owner is also responsible to the association in any increased costs to its insurance for the use and installation of a charging station. The statute does not address the right to a charging station if the unit owner does not have a limited common element parking area.
14. FS 718.3026 and 718.3027 were combined. These were the statutes governing conflicts of interest, which created much confusion in 2017. The only change to the combined statutes requires 2/3's of the board of directors to approve any contract or transaction between the director and the association and the director with the conflict must abstain from voting.