Legislative Changes to Chapter 720: Homeowners’ Associations, Florida Statutes, Regular Legislative Sessions 2007 and 2008
In July 2007 and 2008, several amendments to Chs. 718 (condominiums), 719 (cooperatives), 720 (homeowners’ associations), and 721 (vacation and timeshare plans) of the Florida Statutes went into effect.1 T hese changes affect future developments, current developments, and the management of associations in a myriad of ways. This article outlines only the changes to F.S. Ch. 720.2 M ost of the amendments were made in 2007, but there were some additional modifications in 2008. The information in this article analyzes the amendments affecting residential neighborhoods governed by Ch. 720 and focuses on the most important changes to the chapter during these past two years.
Insurance
In response to increasing insurance rates, the legislature now allows associations to self-insure, provides guidelines on what constitutes adequate windstorm coverage, and allows developers and associations to save money and reduce assessments. An association may now utilize a self-insurance fund established and operated pursuant to §624.462 and may levy assessments or contingent assessments to secure funds for participation in the same.3 This allows an association to establish a self-insurance fund and to collect the costs for the same from the owners in a subdivision rather than paying insurance premiums.
Windstorm insurance coverage may be pooled for a group of at least three communities (operating and created under Chs. 718, 719, 720, or 721) if the coverage obtained is “sufficient to cover an amount equal to the probable maximum loss for the three or more communities for a 250-year windstorm event.”4 The probable maximum loss will be determined through the use of a “competent model” assessed and accepted by the Florida Commission on Hurricane Loss Projection Methodology. If an association provides coverage in an amount equal to such loss, the coverage is deemed adequate.
Board Meetings and Disclosures
The directors and officers of an association have always had a fiduciary responsibility to and a fiduciary relationship with the members of their association.5 The amendments passed in 2007 have expanded the duties of directors and officers.
Section 720.303(2)(a) was amended so the open meeting requirement for board of directors meetings now extends to all committees (or similar operational bodies) that have the power to make final decisions on the expenditure of association money or when the committee has been granted the power to make architectural decisions for the lots within the community.6 The legislature recognized that owners of lots need access not only to board meetings, but also to committee meetings which directly affect the owners’ interests. The open meeting requirement will prevent an association from creating a committee to manage certain matters so that they can avoid the open meeting and notice requirements imposed on board meetings.
Section 720.303(5) still requires that the association’s official records be maintained in the state of Florida, and be open to inspection and available for photocopying by members of the association or their authorized agents pursuant to the terms of §720.303(5). An association (or its authorized agent) is no longer required to provide prospective purchasers or lienholders with information about the community or the association, except for the information and documents that are required by §720.303(4) (and anywhere else in Ch. 720) to be disclosed to such parties.7 The association (or its agent) may charge a reasonable fee to the requesting party, the current owner, or current member for providing the requested additional nonrequired information, if the information was provided in good faith. The fee for such additional information may not exceed $150 plus the reasonable cost of photocopying and attorneys’ fees actually incurred by the association responding to the request; however, this fee does not extend to information that is required by law to be disclosed.
All Florida associations are created through the use of a corporation. In the past homeowners’ associations had to be governed by a not-for-profit corporation. The statutes now permit homeowners’ associations to be governed by either a not-for-profit corporation governed by Ch. 617 or a for profit corporation governed by Ch. 607.8 This requires practitioners to advise their clients on the benefits and detriments of both types of corporations.
Establishment of Budgets
All associations must prepare an annual budget.9 Section 720.303(6) was amended to add subsections (b-h) to modify the manner in which an association must establish and maintain its annual budgets and to create the manner in which reserves are to be established. Generally, the annual budget of an association states all estimated revenues and expenses for the upcoming budget year and the anticipated surplus or deficit as of the end of the preceding year. The budget must also individually itemize all fees or charges paid for by the association for recreational amenities, regardless of who owns the amenities.10 The association is required by statute to provide each member with a copy of the annual budget or a written notice that a copy of the budget is available upon request at no charge to the member.
Associations and developers have certain rights to establish or waive reserves and the statutes specify the manner in which the reserves are established or waived.11 Reserves are funds which are set aside so that they can be used to pay for capital expenditures and deferred maintenance and are intended to reduce the need for special assessments. Reserve funds shall be included in the budget, along with the other annual operating expenses for the association, to the extent that the increase in assessments (including reserves) is not limited by the governing documents. Reserve accounts must be determined, maintained, or waived in the manner provided for in §720.303(6). If the association budget does not contain reserve accounts and, pursuant to its governing documents, the association would be liable for the repair and maintenance of capital improvements or maintenance of improvements that may result in a special assessment if funds are not set aside for this purpose, then each financial report for the preceding fiscal year shall contain the following statutory statement:
The budget of the association does not provide for reserve accounts for capital expenditures and deferred maintenance that may result in special assessments. Owners may elect to provide for reserve accounts pursuant to the provisions of section 720.303(6), Florida statutes, upon the approval of not less than a majority of the total voting interests of the association.12
If reserve accounts were not established by the developer in the governing documents, the association has the right to establish the accounts by an affirmative vote of not less than a majority of the association members at a duly called and held meeting (or through another approved method) of the members of the association.13 The approval for such reserve accounts shall specify the improvements for which the reserve accounts are to be established with sufficient detail. Once approved by the members, the board of directors shall include the approved reserve accounts in the budget for the next fiscal year and each subsequent year.
Under the new scheme, any reserve accounts so established shall be funded using a statutory formula.14 The formula takes into account the quotient of the estimated remaining useful life and the estimated replacement cost or deferred maintenance expense of each reserve item or items. Each item or items (if using pooled assets) must be separately identified. The calculation used will depend on whether the association desires to establish individual reserve or pooled reserve accounts. For the separate individual reserve items, the amount of the contribution for each reserve item for each year shall be the total of the following formula:
a. The total amount necessary, if any, to bring a negative component balance to zero.
b. The total estimated deferred maintenance expense or estimated replacement cost of the reserve component less the estimated balance of the reserve component as of the beginning of the period for which the budget will be in effect. The remainder, if greater than zero, shall be divided by the estimated remaining useful life of the component.15
The calculation may be adjusted annually based on certain factors, including inflation and investment earnings and adjustments in the useful life or the estimated costs of replacement of the specified reserve item.
If the association elects to pool two or more items for one reserve account, the association shall use the formula established by §720.303(6)(g)2. The amount to be collected for the reserve year shall not be less than that required to ensure:
the balance on hand at the beginning of the period for which the budget will go into effect plus the projected annual cash inflows over the remaining estimated useful life of all of the assets that make up the reserve pool are equal to or greater than the projected annual cash outflows over the remaining estimated useful lives of all of the assets that make up the reserve pool, based on the current reserve analysis.16
This calculation may be adjusted annually if there are changes in the estimated costs of replacement of the pooled items or the useful life of the improvements making up the pool.
The reserve formula calculation shall not include balloon payments, as they are prohibited by statute.17 The statutory formulas must be used to establish reserve calculations. An association can no longer establish general reserve calculations as they have done in the past, because these amendments require each item to be described with particularity.18 Reserve funds, including any interest earned, shall remain in the reserve account(s) and may be used only for the items for which they were established, unless the members, by majority vote at a duly called and noticed meeting (where a quorum is present), approve a different use of the funds in advance of the funds being used for the contrary purpose.19
Reserve accounts, once established, must be funded, maintained, or waived in the manner provided in the statute.20 The association members may, at a duly called and noticed meeting, at which a quorum of members is present, vote to waive or reduce reserves if approved by a majority vote of the members present at the meeting; if approved, the waiver or reduction of reserves is applicable only for one year. Therefore, the association, at a duly called and noticed membership meeting, must vote annually whether to waive or reduce reserves. If a meeting of the owners has been called to determine whether to waive or reduce reserves for the next calendar year and the matter is not passed or there are not enough members present to vote on the matter, the reserves, as included in the budget, shall automatically go into effect.
Financial Reporting
The Florida Statutes require associations to provide certain financial reporting documents; the type of documents to be produced now depends on the size and income of the association.21 The legislature amended the responsibilities of an association and changed the timing of the preparation of the reports. Now, an association is required to prepare (individually or though a third party) a completed financial report for the prior fiscal year within 90 days (instead of 60 days) of the end of the prior fiscal year (or on another date established in the bylaws for the association). Once the report is complete, the association shall have 21 days to provide a copy of the report to the members of the association. Notwithstanding the foregoing, the report must be completed and provided to members within 120 days from the end of the prior fiscal year or an alternative date established in the bylaws of the association. The amendment to the statute did not remove the phrase “within the time limits set forth in subsection (5) [of Section 720.303],” which provides 10 business days, not 21 days. The analysis published by the Judiciary Committee on 2007 Fla. Sess. Law Serv. Ch 2007-173 (C.S.C.S.S.B. 902) sets forth that the intention is to require that the financial report be provided within 21 days. However, the potential inconsistency in the statute is still present.
Additionally, under the new amendments, all financial statements must be prepared in accordance with generally accepted accounting principles as adopted by the Board of Accountancy.22 This will likely require some associations, whose documents have been “informal” at best, to engage professional assistance in the preparation of their financial statements.
Architectural Review Committees
Section 720.3035 was created to impose statutory requirements for architectural review committees. An architectural review committee (ARC) shall be given only the authority that is specifically stated or reasonably inferred from the declaration or other authorized guidelines, including without limitation, the location, size, type, and appearance of improvements.23 If the declaration provides certain development options regarding materials, sizes, locations, or styles of improvements, the ARC is not permitted to restrict or limit the right of an owner to select from the options provided.
Every owner shall be granted all of the architectural rights and privileges granted in the declaration and other governing documents of the association concerning the construction of improvements.24 The ARC shall not unreasonably interfere with or impair these rights. If an ARC fails to abide by the statutory requirements, an adversely affected owner has the right to recover not only damages caused by the infringement or harm, but also reasonable attorneys’ fees incurred in an effort to protect or restore the rights given to the owner in the governing documents of the association. The damages assessed against the association in such a situation would affect all members of the association. Personal liability may be claimed against an individual member only if the member is found grossly negligent, or to have acted with willful misconduct.
The declaration and governing documents shall not enforce any policy or restriction that is inconsistent with the rights and privileges provided for in the declaration, whether the association uniformly applies the policies or not and the ARC may not rely on a uniform application argument in defense of any action brought by an owner against the association.25
All lots are now deemed to have only one front lot line, despite the fact that a lot may be bounded by a roadway or easement on more than one side,26 affecting the community setback lines for the construction of improvements. Generally, setback lines are greater in the front than in the rear or side of a lot, so it is important that this is taken into account if a developer has the desire to regulate where improvements are constructed on lots that front a road or an easement on more than one side. All setback and lot lines must, at a minimum, be consistent with the applicable zoning regulations for the development. The conflict created with certain local zoning regulations requiring two front lot lines for corner lots is not addressed in the statute. This may be modified by the terms of the declaration, if the declaration states that lots may have more than one front lot line, so long as it is also permitted by the applicable zoning regulations. If the governing documents do not provide for specific or increased setback limitations, the applicable county or municipal setback limitations shall apply and the association and/or the ARC shall have no right to enforce a setback that is inconsistent with such county or municipal regulations.
Developer Guarantees
The addition of new §720.308(2)-(6) and the modification of the original text of §720.308, significantly modified the manner in which developer guarantees are created. Governing documents for any development created after October 1, 1985, are required to describe the way assessments are allocated among the members of the association and shall reflect the proportional share of assessments for each lot.27 All levied assessments, special or regular, shall be based on the member’s share and the annual budget for the association. However, for so long as the developer is in control of the association, it is not required to pay for assessments if the developer has obligated itself to pay for any excess operating expenses that exceed the assessments received from other members of the association. Once the developer turns over the association to its members, the developer will be required to pay assessments based on the proportionate share for each of the lots still owned by the developer. With the current real estate market, it is very important for practitioners to consider their clients’ costs because it may take years for a developer to complete sales.
Section 720.308(2)-(6) now details a developer’s rights and obligations regarding the establishment of guarantees. The right of a developer to guarantee payment of the deficit for all operating expenses was only briefly explained prior to the new amendments; now, all guarantees, regardless of how they are established, must comply with the new statute. If a guarantee is not established in the declaration or a purchase agreement, it shall only be effective upon the approval of a majority of the members of an association at a duly called and noticed meeting (or via other approved methods as set forth in the bylaws to vote on association matters).28 The developer may not vote on this issue. If a developer plans to establish guarantees, it is important to establish guarantees in the declaration or the purchase agreement.
Also, guarantees must have a beginning and ending date which shall be specifically described in the documentation establishing the guarantee.29 The ending date (which may be specified by an ending event instead of an exact date) must be the same for the entire development. This is the case even if the development is being completed in phases. A guarantee may change as to the amounts being guaranteed by using different intervals and periods of time, each of which is described with a beginning date and an ending date (or event). Developers shall, however, have the right to extend the guarantee period if the right is reserved in the document establishing the guarantee. This right shall only allow the developer to extend the guarantee period, not the amount or level of the assessments guaranteed.
The guaranty dollar amount shall be an exact amount for each lot.30 Assessments charged to the members may not exceed the member’s proportional share pursuant to the association’s established budget. Therefore, a member may never be required to pay more than what is reflected on the budget for each member’s lot, regardless of the guarantee amount established by the guarantor/developer. If, during the guarantee period, the money collected by the association from assessments and other revenues is not enough to pay for the common expenses, the guarantor must fund, in cash, the deficit so that all payments are timely made.31
If the association earns “nonassessment revenues,” then costs and expenses that are incurred by the association due to the nonassessment revenues must first be paid from the revenue source and then by the guarantor during the guaranty period.32 The costs and expenses not paid for by the nonassessment revenues cannot be taken from assessments paid by owners and may not be part of the operating expenses of the association during the guaranty period. An example of such nonassessment revenue is fees paid for the rental of kayaks; costs related to the kayaks must be paid from the rental fees first and the excess shall be paid by the guarantor (developer) during the guaranty period. Practitioners should be wary of this section and should pay close attention to the way they define potentially revenue-generating common elements. Additionally, interest earned by the association and all taxes on such interest shall not be paid by the guarantor as all such investment income will be retained by the association. Money designated for capital contributions may never be used to fund general operating expenses of the association.
Finally, the guarantor’s total financial obligation is calculated on an accrual basis.33 The guarantor shall be liable for the deficit that exceeds the guarantee amount less the assessments actually paid by members, other than the guarantor. This is the case even if the assessments collected were less than the guaranteed amount, as permitted by §720.308(3).
Assessments
In 2007, the legislature created new §720.3085 regarding assessments and liens, and then significantly modified it in the 2008 amendments. The following comments address the statute in its current form (as of July 1, 2008).
Associations are granted a lien on each parcel to secure payments of assessments effective on the date the original declaration was recorded in the official records of the county. When a first mortgage is recorded, however, the lien is only effective from the date of the recording of a claim of lien in the official records.34 The newly amended statute expressly does not modify the priority of liens recorded before July 1, 2008. The 2007 amendment arguably allowed an association lien to take priority over a mortgage, even if the mortgage was filed first. The 2008 amendment limited the liability of a first mortgagee acquiring title at a foreclosure sale (or via deed in lieu) to the lesser of the unpaid expenses that accrued for 12 months prior to the lender’s acquisition or one percent of the mortgage debt.35 However, the lender only gets the benefit of this savings clause if they filed the foreclosure suit and initially joined the association as a defendant in their foreclosure action. The 2008 amendment did not address the potential creation of a super priority for liens filed before July 1, 2008.
For a claim of lien to be valid, it must state the legal description of the property, the name of the owners, name and address of the association, amount due, and the date it was due (and shall secure all unpaid amounts and amounts that accrue after the date of recording, including interest, late fees, costs, and attorneys’ fees). Section 720.3085(1)(b) establishes the right of a parcel owner to contest a lien and to force the association to enforce the claim of lien by filing a notice of contest of lien using the statutory form.36 Once the notice of contest of lien has been recorded, the clerk will mail a copy to the association and service shall be complete upon mailing. The association has 90 days37 from the date of service to file an action to collect under the lien or the lien will become void. An association also has the right to bring an action to foreclose a lien or assert a claim for a money judgment, without waiving the claim of lien.38 The association is entitled to recover its attorneys’ fees for such actions.39 Additionally, a court may require the remaining lot owner to pay rent once the foreclosure is completed and an association may be entitled to the appointment of a receiver if the parcel is rented during the action. Associations may purchase lots at foreclosure sales and shall have the right to hold, lease, mortgage, and/or sell the lot.40
Owners are liable for all assessments that become due and owing on their lot, regardless of how they acquire title to the lot. This is the case even if they purchase the lot at a foreclosure sale or by a deed in lieu of foreclosure, including purchase by a mortgage lender. Liability for assessments is absolute and a lot owner cannot avoid payment by not using or waiving the right to use common areas or by abandoning their lot. The new lot owners are jointly and severally liable, along with the previous owner, for all unpaid assessments that have been levied up to the time of transfer, and the new lot owner shall have all rights to recover from the previous owner any amounts paid on their behalf. Mortgagee liability is, however, subject to the limitations described earlier in this section.41
Assessments, including installments on assessments, bear interest when they are not paid on the due date of the same, from the due date until the date paid, at the rate provided in the governing documents for the association (as long as the rate is not usurious) or if no rate is provided, then at 18 percent per year.42 Additionally, if the governing documents allow, an association may charge administrative late fees for late payments. The administrative late fee shall not exceed the greater of $25 or five percent of the assessment that is past due. Administrative late fees are not considered fines and are, therefore, not subject to Ch. 687, regarding usury lending, lending practices, and interest charged. When payment is received by the association, it shall be applied in the following order: 1) accrued interest, 2) administrative late fee(s), 3) costs and reasonable attorneys’ fees incurred in the collection, then 4) the outstanding assessment. This shall apply regardless of any endorsement, designation, or instruction placed on or accompanying the payment.
Associations may only file a record of lien against a lot after a written notice or demand for past due monies stating the association intends to foreclose and collect the unpaid amounts due, has been served on the owner of the liable lot.43 All such written notices or demands shall give the owner 45 days (following the mailing date) to make full payment of all amounts due. The written notice or demand must be sent registered or certified mail, return receipt requested, and by first-class U.S. mail to the owner at the address listed in the association records and to the lot address, if different. If the address listed in the records of the association is located outside of the United States, the notice shall be sent by first-class U.S. mail to the record address and the lot address.
If the owner does not make payment, then the association may bring a lien foreclosure action or a money judgment action.44 The association shall be entitled to collect its reasonable attorneys’ fees, late charges, interest, and costs that it incurs in pursuit of either action. However, the time limitations do not apply if the lot is subject to a foreclosure action, forced sale, or if the owner is a debtor in a bankruptcy.
Once served with the complaint regarding foreclosure of the lien, the owner shall have the right to make one “qualifying offer,” so long as the lot is not part of a mortgage foreclosure action, a tax certificate sale, the owner is not a debtor in bankruptcy proceedings, and/or the foreclosure action is not set on the trial docket within the next 30 days and the foreclosure judgment has not been entered.45 A qualifying offer refers to “a written offer to pay all amounts secured by the lien of the association plus amounts accruing during the pendency of the offer.”46 If a lot becomes subject to a foreclosure action during the offer, the association may, at its option, void the offer. If the owner becomes a debtor in a bankruptcy action, the offer automatically becomes void. The qualifying offer shall be delivered by hand, with an executed receipt or by certified mail, return receipt requested. The filing of the qualifying offer has the effect of staying the lien foreclosure action for the time period stated in the qualifying offer, not to exceed 60 days following the date of service of the offer and it must be 30 days prior to the date of the earlier of a trial, trial docket, or arbitration. The qualifying offer must be substantially in the form provided in §720.3085(6)(c).
Once a qualifying offer has been made, the association may not incur any additional legal fees during the stay and add them to the amount owed by the owner unless such fees are incurred as part of the defense of a mortgage foreclosure action against the lot, a bankruptcy proceeding against the owner as debtor, or in response to filings made by a party, other than the association, in the lien foreclosure action.47 If the qualifying offer is breached, the stay is vacated and the association may continue with its lien foreclosure and receive a judgment for the amount listed in the qualifying offer and any amount that accrues after the date of the qualifying offer.48
Litigation/Mediation/Arbitration Matters
The legislature also amended §720.311 regarding resolution of disputes between an association and owners within the community. However, the procedure for recall petitions and election disputes was not modified; neither of these are eligible for presuit mediation and will instead be handled by the Department of Business and Professional Regulations (DBPR) pursuant to Ch. 720 and the DBPR rules and regulations upon submission to the DBPR and the paying of the $200 filing fee. The prevailing party shall still recover its reasonable attorneys’ fees and costs.49
For all disputes not involving recalls or elections, the amendment did change the procedure. All references to mediation were changed to “presuit mediation.”50 Disputes eligible for resolution under this statutory section include those regarding changes to the use of a lot, enforcement of the declarations, amendment to the governing documents of the association, conduct of meetings, and access to association records. The definition of disputes does not include the collection of assessments, fines, other financial obligations, or the enforcement of a mediation agreement (which shall go to a court with proper jurisdiction). The eligible disputes shall be handled pursuant to §720.311(2). The aggrieved party shall file a demand for presuit mediation; the form of the demand shall be substantially in the manner set forth in §720.311(2)(a). The demand requires that the aggrieved party list five mediators (each certified as a circuit court mediator) and the party served may select from that list. Statutory presuit mediation is required before an aggrieved party files a matter in court, unless there is an emergency. In an emergency, a motion for a temporary injunction may be filed with the court, as allowed by §720.311(2)(a). All presuit mediations shall be held pursuant to the Florida Rules of Civil Procedure and shall be privileged and confidential in the same manner as court ordered mediations. Only those persons involved in the dispute and their respective counsel may attend the presuit mediation.
Service shall be made by mailing the statutory demand letter via certified mail, return receipt requested, and regular mail to the address of the party as reflected on the association records.51 The responding party will have 20 days from the date of the mailing to respond. All responses shall be sent via certified mail, return receipt requested, and regular mail to the address listed on the demand. The costs for the presuit mediation shall be split between the parties equally (unless a different agreement is reached by the parties). The mediator may require payment upfront by both parties and the parties agree to this by the execution of the demand. If a party fails to respond to the presuit mediation demand, make payment of the mediator’s fees, or attend the presuit mediation, such failure shall operate as an impasse at the presuit mediation caused by the failing party. This will allow the other party to proceed to court and to seek reimbursement for all fees and costs, including attorneys’ fees, in connection with the presuit mediation. Additionally, the party failing to comply shall not be permitted to recover attorneys’ fees and costs in subsequent litigation, if any, despite the outcome. The presuit mediation shall be scheduled within 90 days after the offer to participate in mediation is filed, otherwise an impasse will be deemed to have occurred (unless the parties both agree to extend the 90-day time frame). The right of the DBPR to conduct mediations through the use of private or DBPR mediators has been eliminated from the statute. Further, the $200 filing fee, travel fees, and all other fees paid to the DBPR for such mediations were deleted from the statute.
If presuit mediation does not successfully resolve the disputes between the parties, the parties may proceed to court or elect to enter into binding or nonbinding arbitration with a circuit court certified arbitrator, certified by the Florida Supreme Court regulations.52 For any issue that is submitted to arbitration or litigation or if the mediation agreement is submitted to arbitration or litigation, the prevailing party shall be entitled to receive all costs involved in the presuit mediation, including attorneys’ fees.53 The arbitration shall be handled in accordance with §718.1255 and DBPR rules and regulations. The arbitration order for a nonbinding arbitration proceeding becomes final if a complaint for trial de novo is not filed within 30 days from the order date in a court of competent jurisdiction. Finally, the amendment deleted §720.311(3), which required the DBPR to develop an educational program.
Conclusion
The Florida Legislature has been steadily revising the chapters regarding the management and governance of homeowners’ associations during the past two terms.54 The trend has been to require a more professional relationship between the owners, developers, and the association by specifically defining rights, procedures, and remedies. With the difficulties currently faced by so many homeowners in Florida, it is likely that there will be additional changes in the coming term, and the governance and management of these associations will be a hot topic for years to come.?
1 2007 Fla. Sess. Law Serv. Ch 2007-173 (C.S.C.S.S.B. 902), 2007 Fla. Sess. Law Serv. Ch. 2007-183 (C.S.S.B. 1844), 2007 Fla. Sess. Law Serv. Ch. 2007-226 (C.S.S.B. 314), House Bill 7031 and 2008 Fla. Sess. Law Serv. Ch. 2008-175 (S.B. 1986).
2 All chapter and section references herein refer to the Florida Statutes (2008).
3 Fla. Stat. §720.308(1)(c)(2008) and Fla. Stat. §720.308(3) (2008). Further, note that there is no application of this section to communities that are under a development of regional impact development order as of October 1, 1995.
4 Fla. Stat. §720.303(11) (2008).
5 Fla. Stat. §720.303(1) (2008).
6 This provision is similar to Fla. Stat §718.112(2)(c) governing condominium associations, which was also extended to committee meetings via the recent legislative amendments.
7 Fla. Stat. §720.303(5)(d) (2008).
8 Fla. Stat. §720.302(5) (2008).
9 Fla. Stat. §720.303(6) (2008).
10 Fla. Stat. §720.303(6)(a) (2008).
11 Fla. Stat. §720.303(6) (2008).
12 Fla. Stat. §720.303(7) (2008).
13 Fla. Stat. §720.303(6)(d) (2008).
14 Fla. Stat. §720.303(6)(g) (2008).
15 Fla. Stat. §720.303(6)(g)1 (2008).
16 Fla. Stat. §720.303(6)(g)2 (2008).
17 Fla. Stat. §720.303(6)(g)2 (2008).
18 Fla. Stat. §720.303(6) (2008).
19 Fla. Stat. §720.303(6)(h) (2008).
20 Fla. Stat. §720.303(6)(f) (2008).
21 Fla. Stat. §720.303(7) (2008).
22 Fla. Stat. §720.303(7)(a) (2008).
23 Fla. Stat. §720.3035 (2008).
24 Fla. Stat. §720.3035(4) (2008).
25 Fla. Stat. §720.3035(5) (2008).
26 Fla. Stat. §720.3035(3) (2008).
27 Fla. Stat. §720.308(1) (2008).
28 Fla. Stat. §308(2)(a) (2008).
29 Fla. Stat. §720.308(2)(b) (2008).
30 Fla. Stat. §720.308(3) (2008).
31 Fla. Stat. §720.308(4)(a) (2008).
32 Fla. Stat. §720.308(4)(b) (2008).
33 Fla. Stat. §720.308(5) (2008).
34 The language contained in Fla. Stat. §720.3085(1) (2008) shall not, however, “bestow upon any lien, mortgage, or certified judgment of record on July 1, 2008, including the lien for unpaid assessments created in this section, a priority that, by law, the lien, mortgage, or judgment did not have before July 1, 2008.” Fla. Stat. §20.3085(1) (2008).
35 Fla. Stat. §720.3085(2)(c) (2008).
36 The form for the notice of contest of lien is located in Fla. Stat. §720.3085(1)(b) (2008).
37 The 90 days may be extended if the association cannot file due to an automatic stay granted by a bankruptcy court or due to a claim by a third party asserting an interest in the parcel.
38 Fla. Stat. §720.3085(1)(c) (2008).
39 Note that the statute does not state that the right to recover attorneys’ fees is given to the association only if they prevail.
40 Fla. Stat. §720.3085(1)(e) (2008).
41 Fla. Stat. §720.3085(2)(c) (2008).
42 Fla. Stat. §720.3085(3) (2008).
43 Fla. Stat. §720.3085(4) (2008).
44 Fla. Stat. §720.3085(5) (2008).
45 Fla. Stat. §720.3085(6) (2008).
46 Fla. Stat. §720.3085(6) (2008).
47 Fla. Stat. §720.3085(6) (2008).
48 Fla. Stat. §720.3085(7) (2008).
49 Fla. Stat. §720.311(1) (2008).
50 Fla. Stat. §720.311(2)(a) (2008).
51 Fla. Stat. §720.311(2)(b) (2008).
52 Fla. Stat. §720.311(2)(d) (2008). Professional Staff Analysis and Economic Impact Statement prepared by Judiciary Committee on April 18, 2007, available at www.flsenate.gov/data/session/2007/Senate/bills/analysis/pdf/2007s0902.ju.pdf, states in pertinent part as follows: “Under the bill, in order to conduct mediation or arbitration proceedings the mediators or arbitrators must be certified by the Florida Supreme Court. Presently there is no statewide arbitrator certification process. Rather, arbitrators are made eligible by placement on a list by the chief judge of the circuit in which the arbitrator will practice. The department expressed concern that the effect of this provision of the bill may be to prohibit the use of department arbitrators for homeowners’ association election and recall disputes required to be arbitrated by the department under s. 720.311, F.S., because they are not certified.”
53 Fla. Stat. §720.311(2)(c) (2008).
54Due to space limitations, this commentary has not addressed some of the less significant or more easily defined changes enacted, such as those in Fla. Stat. §§720.302(4), 720.305(d), 720.306(1)(c), 720.307(3)(f) made in 2007 or the changes to Fla. Stat. §§720.301, 720.305, 720.3053, 720.304, 720.30851, 720.313, or 720.401 made in 2008.
Amy S. Thompson is an attorney licensed in both Florida and Oklahoma. She practices real estate law focusing in the areas of commercial and residential development; construction; association and condominium documentation, operation and management; site acquisition; commercial lending; and commercial and residential leasing.
