Rembaum’s Association Roundup

Do the 2024 Laws Apply to Our Association?

By Jeffrey A. Rembaum, Esq. / Published November 2024

Of late there is significant confusion regarding application of the 2024 legislation. While the information below could equally be applied to condominium and homeowners’ associations, this article will specifically address the application of certain 2024 legislation to homeowners’ associations.

     By way of oversimplification, absent “Kaufman language” (discussed below), the substantive provisions of the 2024 legislation do not override preexisting substantive provisions set out in the declaration of covenants as well as the rules and regulations unless and until a court of competent jurisdiction says otherwise. The reason why is because when a contract is executed, the law in existence at the time is the law that is applied to the life of the contract as to all substantive provisions. In addition, there are constitutional protections against governmental interference in existing contracts, at least as to as to the substantive provisions of the contract. 

     By way of explanation, the declaration of covenants is a contract. It is a contract between the owners and the association. As there are constitutional protections against governmental interference in the substantive provisions of existing contracts, the government cannot impair or otherwise negatively affect existing substantive provisions set out in a contract by passing new laws that did not exist at the time the contract (the declaration) came into existence.

     In this instance, for example, if the existing declaration already contains a prohibition on RVs being parked on an owner’s lot, a new law that restricts the association from prohibiting RVs from being parked on lots would be a substantive impairment on the existing contract right. The same would be true about roofs. For example, if the declaration provides that no metal roofs are allowed, legislation that is subsequently passed into law cannot overrule that provision set out in the declaration.

     The same is not true as to procedural matters such as how rules must be enforced. For example, if the legislature came out with a new process regarding fines and requiring a 22-day notice to an owner before the fining committee could meet, then that would likely apply to all associations because it does not substantively prohibit fining, but rather changes the process of how a fine is levied.

     However, if a declaration has what is referred to as “Kaufman language,” then all new laws would be applicable. Kaufman language stands for the proposition that as the laws change, they are morphed into the declaration as if those were the laws in place at the time the contract was executed. For example, in the declaration if there is a sentence that provides “this declaration is subject to chapter 720, Florida Statutes ‘as it is amended from time to time,’” then all changes in the legislation would be applicable regardless of whether they are substantive or procedural. At times, a declaration will have Kaufman language specific to  only certain provisions such as fining and the foreclosure processes. In that instance the new laws would apply only to those sections of the
declaration. 

     Likely, it won’t be long until somewhere in Florida an upset member sues an association over these matters, which may then result in this challenging legal issue being more specifically interpreted by an appellate court. What I have explained above is typically the direction the courts have ruled in similar matters in the past. The biggest challenge is determining whether changes in the law are considered substantive or procedural in nature. 

     Ultimately, the final decision on how or whether to enforce certain covenants rests with the board of directors. The above information can be used as a backdrop for consideration of its decisions as to how the new laws apply, but it is strongly recommended that you seek further advice from experienced community association legal counsel with regard to your specific fact pattern before a business decision is made at your association. 

     A list of 2024 HOA legislation which we believe would act as impairments to substantive contract rights, and would therefore not be applicable to an HOA absent Kaufman language in the declaration, include (but are not necessarily limited to) the following:

SECTION 720.3045, FLORIDA STATUTES

     Regardless of any covenant, restriction, bylaw, rule, or requirement of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, an adjacent common area, or a community golf course, including, but not limited to, artificial turf, boats, flags, vegetable gardens, clotheslines, and recreational vehicles.

SECTION 720.3035, FLORIDA STATUTES

     An association or any architectural, construction improvement, or similar committee of an association must reasonably and equitably apply and enforce on all parcel owners the architectural and construction improvement standards authorized by the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants. An association or any architectural, construction improvement, or other such similar committee of an association may not enforce or adopt a covenant, rule, or guideline that:

     Limits or places requirements on the interior of a structure that is not visible from the parcel’s frontage or an adjacent parcel, an adjacent common area, or a community golf course.

     Requires the review and approval of plans and specifications for a central air-conditioning, refrigeration, heating, or ventilating system by the association or any architectural, construction improvement, or other such similar committee of an association, if such system is not visible from the parcel’s frontage, an adjacent parcel, an adjacent common area, or a community golf course and is substantially similar to a system that is approved or recommended by the association or a committee thereof.

SECTION 720.3075, FLORIDA STATUTES

     Pickup trucks. The governing documents may not prohibit a property owner or a tenant, a guest, or an invitee of the property owner from parking his or her personal vehicle, including a pickup truck, in the property owner’s driveway, or in any other area at which the property owner or the property owner’s tenant, guest, or invitee has a right to park as governed by state, county, and municipal regulations.

     Work Vehicle. Regardless of any official insignia or visible designation on the vehicle, the governing documents, including the declarations of covenants, articles of incorporation, or bylaws, may not prohibit a property owner or a tenant, a guest, or an invitee of the property owner from parking his or her work vehicle, which is not a “commercial motor vehicle” as defined in Section 320.01(25), Florida Statutes, in the property owner’s driveway.

     Contractors. The governing documents may not prohibit a property owner from inviting, hiring, or allowing entry to a contractor or worker on the owner’s parcel solely because the contractor or worker is not on a preferred vendor list of the association. Additionally, homeowners’ association documents may not preclude a property owner from inviting, hiring, or allowing entry to a contractor or worker on his or her parcel solely because the contractor or worker does not have a professional or an occupational license. The association may not require a contractor or worker to present or prove possession of a professional or an occupational license to be allowed entry onto a property owner’s parcel.

     Prohibition on Vehicle Prohibition. The governing documents may not prohibit operating a vehicle that is not a commercial motor vehicle as defined in Section 320.01(25), Florida Statutes, in conformance with state traffic laws, on public roads or rights-of-way or the property owner’s parcel.  (As per s. 320.01(25), Florida Statutes, a “commercial motor vehicle” means any vehicle which is not owned or operated by a governmental entity, which uses special fuel or motor fuel on the public highways, and which has a gross vehicle weight of 26,001 pounds or more, or has three or more axles regardless of weight, or is used in combination when the weight of such combination exceeds 26,001 pounds gross vehicle weight.)

     A final point for consideration is that if the HOA declaration is silent as to these matters, then new amendments to the declaration should not be contrary to these 2024 legislative provisions without such amendments being very easy to judicially challenge. Also, and very importantly, remember to check in with your association’s attorney when addressing these very complicated matters prior to making a decision as to whether the aforementioned legislation applies to your community.

Jeffrey Rembaum

Partner, Kaye Bender Rembaum

     Attorney Jeffrey Rembaum has considerable experience representing countless community associations that include condominium, homeowner, commercial, and cooperative associations throughout Florida. He is a board-certified specialist in condominium and planned development law and is a Florida Supreme Court circuit civil mediator. Every year since 2012 Mr. Rembaum has been inducted into the Florida Super Lawyers. He was twice awarded as a member of Florida Trend’s Legal Elite. Kaye Bender Rembaum P.L. is devoted to the representation of community and commercial associations throughout Florida with offices in Palm Beach, Broward, Hillsborough, and Orange Counties (and Miami-Dade by appointment). For more information, visit kbrlegal.com.