Commentary on the new law enacted July 1, 2014 giving HOAs unrestricted powers during emergencies.
There is trouble brewing on the horizon and it doesn't come from a hurricane, but the effects will be felt after a hurricane or some other natural disaster passes through. I'm talking about the provisions in House Bill 807, which is now state law (FS 720.316) effective July 1, 2014, which give homeowner associations emergency powers in case of a natural disaster. Those powers include levying special assessments, borrow money or pledge assets as collateral without a vote of the membership. You want to know why I think it's a bad idea? Subsection (2) of the law states the authority granted in subsection (1), which I stated above, is "limited to that time reasonably necessary...." Any time you see the word "reasonable" in a statute it will take a judge, at least two lawyers and close to $200,000 or more in legal fees and expenses to determine what is "reasonable."
And The Problem....
Why would the Florida Legislature think giving HOAs a free pass on this is a good idea? Do they really think life in a HOA is perfect for most people and all will be okay? These are the same people who could not get a bill passed to allow for a state agency to regulate HOAs -- they should know giving them more power will only add to the corruption and abuse that goes on in an unregulated industry. My only guess is someone spiked the refreshments on Capitol Hill. This is why my friend, Jan Bergemann of CyberCitizens for Justice, thinks the HOA statute is the "Attorney Employment Act." It will surely keep me busy for years to come. Let's revisit this after a hurricane hits Florida. I would like any HOA or member of a HOA hit by a hurricane to let me know how this new law worked out for you. Please prove me wrong. And speaking of new laws....we now have a challenge under the Florida Constitution for retroactive application of a new law to an existing contract. The law doesn't say it is intended to be applied to existing associations. In the section authorizing special assessments, it comes slightly close. In subsection (1)(j) with "Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declarations..." Wait a minute -- the first part says the HOA can't do it if there is a provision in the association documents prohibiting it, but the part after the comma says the HOA can regardless of what's in the governing documents! More billable hours for all attorneys! This one really disappoints me......
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