Articles, News

Did potential new laws for condo associations die in the Florida Senate recently?

Q. At our board meeting last evening, our community association manager reported that some potential new laws for condo associations died in the Florida Senate last week. Is that true, and what is the potential impact to our association? — J.A.

A. Yes. Two controversial bills died last Friday in Tallahassee before going to a vote in the Florida Senate. HB 319 sponsored by Rep. George Moraitis, Jr. had several provisions affecting community associations. Specifically, the bill addressed (among other things) elevator upgrades, deadlines for election and recall challenges, voting procedure for board members serving two-year terms, and liability of persons (banks and third party purchasers) taking title to foreclosed homes. By far, the most controversial portion of HB 319 was the proposed limit on amounts that an association could collect from foreclosing banks. If HB 319 had become law, banks would have been given a cost-free option to delay foreclosures at the expense of community associations. Thus, we view the failure of that bill as a good result for community associations. The other bill that died was HB 213 sponsored by Rep. Kathleen Passidomo R-Naples. The main goal of that bill was to expedite foreclosures involving abandoned homes, and the bill included a potential window for community associations to participate in the expedited process. In studying the bill, we are not sure that there was any significant benefit for community associations struggling with foreclosures. Different versions of each bill are likely to return to Tallahassee next year.

Q. I live in a community where the documents prohibit tenants from having pets. Recently, a tenant started walking through the community with a small terrier dog and it caused quite an uproar. The tenant is telling other residents that the dog is an “emotional support animal” and that she is allowed to have the dog because of a medical condition. Our board is unsure what to do. Can you provide some guidance? — L.N.

A. Most communities that restrict pets will face this issue at some point, and it is, therefore, very important for the board and its management to understand some basic legal principles. First, a service or emotional support animal is not a pet. These animals are assistive medical aids for individuals diagnosed with a physical or mental disability. A person with a legal disability is entitled to have one of these animals, despite restrictions in the community rules, if the animal is necessary for the person to have an equal opportunity to use and enjoy his or her property. Once the association is made aware of the disability, the board is entitled to request documentation from a qualified medical provider certifying how the animal is necessary to alleviate the symptoms of the disability. Before enforcing any pet restrictions against a disabled owner or tenant, the board should consult with legal counsel. Discrimination lawsuits and complaints from government housing authorities can result in liability for statutory penalties and attorney’s fees.

Q. My condominium unit was damaged from a water leak that came from the unit above me. My furniture was damaged, in addition to portions of the drywall in my unit, which now contains mold and needs to be repaired. The unit above me is vacant and in foreclosure and my attempts to contact that owner regarding the damage have failed. Does the association have any responsibility here? — T.M.

A. The association does not likely have any liability for the water leak if the leak was caused by another unit owner. You have the right to pursue that owner for any negligence that caused the leak. However, the association’s insurance coverage may provide some relief depending on two factors. First, the association is generally responsible for insuring the unfinished interior surfaces of the walls and ceilings of the individual units as installed by the developer, which includes the drywall. Second, the association might have legally opted out of this responsibility for the drywall. If the association did not opt out of insuring the drywall, there should be coverage in place for your repairs. The association’s insurance coverage does not include your personal property such as furniture and window treatments. Insurance for the property inside the boundaries of the unit is the unit owner’s responsibility under Florida law.

Q. My condo association passed a special assessment to pay for modifications to our community spa. The modifications were required due to changes in the pool safety code. When I returned the following season, I discovered that the pool patio was surfaced with new brick pavers. Previously there was a basic concrete surface. At the first board meeting that season, I asked about the cost of the new pavers and was told that the pavers were installed with excess funds from the special spa project. The members did not have an opportunity to vote or provide input on the pavers. Is this legal? — G.V.

A. It is common for boards to pass special assessments to pay for projects that are necessary due to changes in building code or old age. We represent an older condo building in Miami that is undergoing a $4 million building renovation due to disrepair of the concrete, elevators, HVAC system and seawall. In your case, the special assessment was probably legal provided the membership was informed on the purpose of the assessment and the estimated costs of the spa project. The issue is the spending of the excess funds. Once the purpose of a special assessment is accomplished, Florida law requires that the excess funds be returned to the unit owners (in equal shares) or applied toward future assessments. Accordingly, the board probably should have obtained the approval of the membership before using the excess funds for an aesthetic enhancement to the pool patio.

Q. Recently I received the second notice of annual election for my condo association. The president is running for re-election, and his bio sheet included some comments about the qualifications of other candidates. The comments were clearly supportive of certain candidates. I am not certain whether this will influence the election results, but it does not seem appropriate for the association to endorse certain candidates. Has there been any violation of the condo laws or rules? If so, what should be done about this? — S.C.

A. The Rules of the Florida Division of Condominiums prohibit board members from endorsing, disapproving or otherwise commenting on other candidates in any communication that is sent to the membership with the official notice of annual election. If the endorsement from the president was included with the official meeting notice from the association, the election should be rescheduled, particularly if the endorsement was on association letterhead. The laws and rules governing elections do not prohibit board members or other candidates from contacting other voters on their own accord, but this should not be done through official association notices.