Community associations would be authorized to install hurricane-proof doors,  delay elevator upgrades, deny to delinquent owners the use of certain amenities  and services, and allow more lenient access to records; streamline foreclosure  proceedings.  

 These were just a few of the hundreds of proposals included in more than a dozen  bills affecting Florida community associations as the Florida Legislature  convened for its 60-day regular session, which in 2013 ran from March 5 through  May 3. The lawmakers pondered highly technical tweaks to clarify the intent of  previous laws, and sweeping proposals with a major impact on the 8.7 million  people who live in 3.5 million dwelling units in the state’s 46,900 community associations, with a total property value estimated by the  Community Associations Institute at $508 billion.  

 This year brought a pent-up demand for legislation. No community association  bills were passed in 2012, as the twin imperatives of redistricting and  elections preoccupied the lawmakers. “Nobody is running for office in 2013, so the Legislature might actually  accomplish something,” one pundit quipped.  

 A Clean-up Bill

 As the session began, the community association bills capturing the most  attention were HB 73, sponsored by Rep. George R. Moraitis, Jr. (D-Ft.  Lauderdale), and its companion, SB 436, sponsored by Sen. Thad Altman  (R-Melbourne).  

 “This was a cleanup bill,” explained Dawn Bauman, CAI’s vice president of government and public affairs. “We have one of these almost every year. Something in the previous year happens  that will create a need to clarify, whether it’s a natural disaster, or a man-made one like the housing crash.” Major aspects of the bill include:  

 • Hurricane protection.Current laws permit the board of a condominium association to install hurricane  shutters, impact glass, or code-compliant windows if the declaration of  condominium makes the board responsible for such protection as part of the  common elements. HB 73 extends this permission to code-compliant doors or other  types of hurricane protection, and says owners who have already installed such  protection must receive a credit when everyone else is assessed for the  installation.  

 • Elevator upgrades. HB 73 replaces a 2015 deadline for completing phase 2 firefighter upgrades with  a requirement for upgrading when the elevator is replaced or undergoes major  modifications. The upgrade involves uniform elevator key, hard-wired alarms,  and other complex technology. “A lot of elevators may last five to 10 years before they need to be replaced or  modified. Many associations are struggling financially right now. This will  give them more time to make costly upgrades,” says Donna DiMaggio Berger, an attorney partner with condo association law firm  Katzman Garfinkel & Berger in Margate; and executive director of the Community Advocacy Network  (CAN-FL).  

 • Suspension of use rights.Owners who are in arrears on payment of their assessments or who otherwise fail  to comply with their community’s governing documents or rules could have their cable TV service disconnected  and be barred from their community’s pool, tennis courts, and other amenities. The provision applies to condos,  HOAs, and cooperatives. HB 73 clarifies that it doesn’t extend to access, parking, and basic municipal utilities such as electricity  and water.  

 Regulating HOAs

 SB 596, sponsored by Sen. Alan Hays (R-Umatilla), would require the Florida  Department of Business and Professional Regulation to regulate HOAs in much the  same manner as it now regulates condos and co-ops, and impose on HOAs a $4  per-unit fee to pay for this regulation.  

 Importantly, the bill provides that if an HOA sues an owner for unpaid  assessments, the owner must pay the amount in question into the court registry.  

 Other provisions include giving regulators the authority to investigate  complaints and levy civil penalties before and after turnover of an HOA to the  owners, adding turnover triggers to encourage owner control, and requiring a  two-thirds vote of owners to amend the governing documents.  

 Another bill related to association governance is HB 7119 sponsored by Rep. Mike  LaRosa, (R-Polk), and co-sponsored by Rep. Frank Artiles, (R-Miami-Dade) and  Rep. Joseph Gibbons, (D-Broward, Miami-Dade), with its companion Senate bill,  SB580, sponsored by Sen. Alan Hays, (R-Lake). The bill, which passed the House  113-5 on April 25 and the Senate 37-0 on April 26, now goes to the desk of Gov.  Rick Scott pending further action. It contains procedural amendments to the HOA  act, including disciplinary action against directors violating governing  statutes and taking kickbacks or embezzling funds; provisions for  recordkeeping, requiring that records be maintained for 7 years, allowing  maintenance of electronic records and allowing them to be photographed at no  charge; and requiring that HOAs report specific information to the Division of  Florida Condominiums, Timeshares and Mobile Homes within the Department of  Business & Professional Regulation (DBPR), and also contains a requirement that the HOA  maintain insurance or a fidelity bond covering everyone who handles association  funds.  

 Responsibility of Design Professionals

 SB 286, sponsored by Sen. Joe Negron (R-Palm City), would allow design  professionals—architects and engineers—to include language in their contracts that limits their individual liability  for mistakes.  

 “The bill would still allow a suit against their company, but the business entity  may not have enough insurance or assets,” says Yeline Goin, an attorney with Becker & Poliakoff, P.A, and executive director of the Community Association Leadership  Lobby (CALL).  

 “Our concern is that community associations enter into contracts with these folks  routinely,” she says. “This issue also impacts anybody who enters into a contract with a design  professional, including schools and local governments. It goes against case  law. Lawyers, doctors, and accountants aren’t allowed to limit their liability by contract.”  

 Other Measures

 • Hastening foreclosure. Under current law, the community association in a foreclosure case could not  file a motion asking the judge to require the defendant to show cause why a  final judgment should not be entered. HB 87, sponsored by Rep. Kathleen  Passidomo (R-Naples), would give associations standing as junior lienholders in  the foreclosure process, so they could move for a show-cause order without  waiting for the bank. This is important, Bauman says, because a home in  foreclosure may be abandoned and probably isn’t meeting its obligations to the association.  

 • Extending completion deadline. HB 175, sponsored by Rep. Heather Dawes Fitzenhagen (R-Ft. Myers), was  designed primarily to help condo developers sell their units, Goin says. It  would allow a developer to extend the deadline for completion of a condominium  phase from seven to 10 years, extend the time a clerk may hold money before  notifying the registered agent, and revise the arrangements for governance of  the community before and during the transition from developer to owner control.  

 On the Horizon

 The Florida Bar has been drafting legislation that would list 21 routine  activities as constituting the unlicensed practice of law if performed by a  community-association manager rather than an attorney. “The problem is the economic impact on the community association,” Bauman says. “If the board must hire an attorney instead of having the manager handle these  responsibilities, the fees would be significantly higher for some of these  ministerial tasks.”  

 This issue arose previously in 1996. The Florida Supreme Court ruled then that  managers performing the 21 tasks weren’t engaged in the unlicensed practice of law, and provided a standard for judging  other activities in the future based on whether they require “significant legal expertise and interpretation” and “legal sophistication or training.”  

 In March of 2012, The Florida Bar’s Real Property Probate & Trust Law Section asked the Standing Committee on the Unauthorized Practice of  Law to review the 21 activities and seek another Supreme Court opinion. The  legislative route would be an alternative to a new Supreme Court opinion.  Bauman says CAI and other community-association representatives have been  rebuffed in their efforts to discourage The Florida Bar from pursuing the  issue.   

 George Leposky is a freelance writer and a frequent contributor to The South  Florida Cooperator.