2023 in Review

New Legislation

By Stephen Mezer / Published December 2023

     The 2023 Florida legislative session addressed a wide variety of issues impacting community associations. The longest bill impacting community associations became 2023-203, Laws of Florida. The amended statutes changed, clarified, or corrected provisions created by the laws approved in 2022, Senate Bill 4-D, which became Chapter 2022-269, Laws of Florida, commonly referred to as “SB-4D.” Specifically, Section 553.899 was amended to remove the term “walls” and now uses the more encompassing term “load-bearing elements.” It limited the application of the statute to buildings of three stories or more in height to those subject to condominium or cooperative forms of ownership. While the amendment did adopt a standard of 30 years for the requirement of an inspection, the statute allows the local agency to take local environmental conditions, including proximity to saltwater, into account in accelerating compliance requirements to 25 years.

     Section 718.103 was amended to permit multi-condominiums operating 25 or more condominiums to adopt an “alternative funding method.” The acceptable alternative funding method is to be approved by the division.

     Section 718.112 was amended to add “insurance premiums” to the list of items excluded in triggering a unit owners’ right to petition for an alternate budget when assessments exceed 115 percent of the previous year’s assessments. The same statute was amended to clarify that the structural integrity reserve study (SIRS) was only applicable to elements maintained by the association. This clarified confusion over the inclusion of items such as “windows” wherein those components were to be maintained, repaired, and replaced by the unit owner, not the association. The statute prohibits waiver or reduction of full funding of “subsection (g) reserves,” which are the structural integrity reserve requirements, after January 1, 2025. The statute did not address pooling of structural integrity reserves. That remains an open question. The statute was amended to allow structural integrity reserve inspections to be performed by a “person certified as a reserve specialist or professional reserve analyst” by the Community Associations Institute or by the Association of Professional Reserve Analysts. The statute was amended to remove the developer’s obligation to provide a SIRS at turnover and instead required a turnover inspection. The statute was amended to provide that an association that is required to have a milestone inspection report on or before December 31, 2026, may complete the SIRS simultaneously with the milestone inspection report and not later than December 31, 2026. This language is in the same paragraph of Section 718.112 that indicates that a SIRS must be completed by December 31, 2024. See your attorney as to the correct application of that statute. That section of the Florida Statutes was also amended to provide that if the milestone inspection has been performed within the prior five years, that report may be used in lieu of the visual inspection requirement for the SIRS.

     Section 718.1255 was amended to include the failure of the board of directors to make repairs recommended by a milestone inspection report or SIRS within the definition of a “dispute” subject to mediation and not arbitration. However, that provision is not effective until July 1, 2027.

     Section 718.113 was amended to expand the definition of association maintenance of the common elements to require that the association maintain the property according to the turnover inspection report until the association obtains “new maintenance protocols.”

     Comparable amendments for cooperatives were made in 2023-203.

     The only other legislative change directly applicable to condominiums in 2023 became Chapter 2023-64, Laws of Florida, wherein Section 718.113 was amended to add “Patriot Day” as a permissible day for the display of specified flags. Patriot Day is September 11th, not to be confused with Patriots’ Day, which is the third Monday in April.

     As a result of a widely reported series of alleged crimes against a large South Florida homeowners’ association by many of its directors, significant legislation was enacted in Chapter 2023-64 of the Laws of Florida. That case resulted in the approval of what has become Chapter 2023-228, Laws of Florida, which is titled “Homeowners’ Association Bill of Rights.” Procedurally, the most significant impact of that new law is the amendment to Section 720.303, which requires that notice of board meetings must “specifically identify agenda items for the meeting.” That law also requires removal of any officer or director who is charged with any one of the following crimes: forgery of association voting documents, theft of association funds, destruction of official records in furtherance of a crime, refusal to allow inspection of official records in furtherance of a crime, or obstruction of justice. Amendments to Section 720.3033 also address conflicts of interest.

     Section 720.305 was amended to add additional due process to the fine or suspension hearing process, including the right of the parcel owner to attend that hearing by telephone or other electronic means. That statute also requires the committee to provide written findings to the accused and notice as to how the violation may be cured, if applicable.

     Section 720.3065 was created and identifies “fraudulent voting activities,” which constitute a misdemeanor. The restricted conduct includes willfully and falsely swearing to or affirming an oath or affirmation or willfully procuring another person to falsely swear to or affirm an oath or affirmation in connection with or arising out of voting activities; fraud in connection with a vote cast, to be cast, or attempted to be cast; preventing a member from voting as he or she intended by fraudulently changing or attempting to change a ballot or ballot envelope, vote, or voting certificate of that member; menacing, threatening, or using bribery or other corruption to influence a member when the member is voting; using or threatening to use, directly or indirectly, violence or intimidation with the intent to buy the vote of that member or another member; or threat, coercion, or intimidation to induce or compel a member to vote or refrain from voting in an election on a particular ballot measure.

     Chapter 2023-64, Laws of Florida, amended two existing statutes and created one new statute. Section 720.304 was amended to expand the list of permissible flags to be displayed to include a “first responder” flag, listing seven categories of first responders. It permits the permanent flagpole to display a second flag, in addition to the U.S. flag, and identifies the permissible second flags. Section 720.3075 was amended to prohibit clauses in HOA documents prohibiting any of the otherwise permitted flags. That statute was amended to require that all flags must be displayed in a respectful manner consistent with the requirements for the U.S. flag.

     Section 720.3045 was created and provides that regardless of covenants or rules, the homeowners’ association may not restrict storage or installation of items on a parcel which are not visible from the parcel’s frontage or adjacent parcels. That statute includes storage of boats, recreational vehicles, or the installation of flags or artificial turf as items which cannot be prohibited if in the rear of the parcel and not visible from the frontage or an adjacent parcel.

     Two new laws of special interest were also passed. Chapter 2023-43, Laws of Florida, prohibits “business entities,” which includes corporations not for profit, from requiring face coverings or proof of vaccinations. Chapter 2023-22, Laws of Florida, reduces the statute of repose from 10 years to 7 years.

2024 Corporate Transparency Act

     This is one law that you might not yet have heard about. As a direct result of the FinCEN statutes adopted by the federal government in 2021, seeking to identify money laundering schemes, corporations with less than 20 employees or less than $5 million annual gross revenues will be required to file a disclosure statement with the federal government. Although this statute has been part of the federal laws since 2021, its application to community associations was often ignored or overlooked. The reporting period begins January 1, 2024, and can be completed online within that year. The objective is to identify controlling interests, such as board members and most managers or management companies. We recommend that you keep in touch with your attorney throughout 2024 to help you better understand your obligations for compliance. As of this writing, efforts are being made to exempt community associations from this law, but for now this is a legal requirement for all corporations.

2024 Legislative Session

     The 2024 Florida legislative session begins January 8, 2024. Legislators are already planning new laws that can impact your community association, your home, your board of directors, and your community association management. Proposals relating to funding of reserves, transparency, accountability, websites, insurance, termination, and education have already surfaced. We know that this is only the beginning. If you want to influence Florida laws impacting you, we strongly urge you to contact your legislators, meet with them, write to them, and let them know your thoughts and concerns. All too often laws are made in response to a complaint from a single constituent; and unfortunately, more often than not that is because your legislator has not heard from you. ⁿ

Steven Mezer

Attorney, Becker

    Steven Mezer has extensive experience in all aspects of community association operations and community association law. He represents condominium, homeowner, and cooperative associations, where he handles matters relating to issues including collection of assessments, covenant enforcement, and foreclosures. Mr. Mezer is also one of only 195 attorneys statewide who is a board-certified specialist in condominium and planned development law. For more information, call 813-527-3900, email smezer@beckerlawyers.com, or visit www.beckerlawyers.com.