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Navigating the New Landscape: Recent and Upcoming HOA Laws in Florida (2024)

LS Carlson Law January 29th, 2024

In the intricate world of Homeowners Associations (HOA) in Florida, 2023 has been a landmark year with seven significant laws coming into effect, reshaping the governance and operation of community living. As we look to 2024, two more laws are set to take effect, with three additional proposals on the table that could further impact the HOA landscape. These changes reflect a vigorous legislative effort to refine the balance between homeowner rights and HOA responsibilities. In a recent video discussion, Florida HOA Attorney Jeff Kominsky and HOA Lawyer Luke Carlson dive deep into these laws, unpacking the nuances and implications for homeowners, board members, and legal practitioners alike. Their conversation is not just a summary of statutes; it's a crucial guide through the evolving terrain of Florida's HOA regulations

Recent HOA Laws in Florida (2023)

House Bill 919 - Homeowners Bill of Rights (Effective October 1, 2023)

This pivotal legislation, known as the "Homeowners Association Bill of Rights," brings sweeping reforms to foster a transparent, fair, and ethical environment within Florida's HOAs. Its comprehensive provisions address several core areas:

Detailed Board Meeting Notifications: Enhancing transparency and participation by requiring comprehensive notifications for board meetings, ensuring homeowners are well-prepared to engage in community governance.

Stringent Record-Keeping Requirements: Emphasizing the importance of meticulous record maintenance, fostering a culture of accountability and accessibility to crucial information.

Ethical Standards Against Kickbacks: Instituting robust measures to prevent financial impropriety, ensuring that the financial integrity of associations remains untarnished.
Immediate Removal for Misconduct: Promoting a high standard of conduct by mandating the prompt removal of officers or directors implicated in serious misconduct, reinforcing ethical governance.

Conflict of Interest Disclosures: Ensuring decisions are made in the community's best interest by requiring thorough disclosures of potential conflicts, safeguarding against biased decision-making.

Specific Rules for Handling Deposits and Imposing Fines: Introducing clear, fair guidelines for financial dealings, protecting members from arbitrary or unjust financial practices.

Fraudulent Voting Activities: Upholding democratic principles by instituting measures to prevent and penalize fraudulent voting activities in association elections, ensuring each member's vote is fairly counted and valued.

House Bill 437 (Effective July 1, 2023)

House Bill 437, now codified as Florida Statute 720.3045, is a significant piece of legislation that reshapes the relationship between homeowners and their HOAs regarding property usage, particularly in the context of single-family homes. Jeff Kominsky, Esq., offers insightful commentary on the transformative nature of this law and its practical implications for homeowners. The statute brings about several key changes:

Enhanced Autonomy Over Property Usage: The statute essentially grants homeowners greater autonomy over their property by limiting the ability of HOAs to penalize homeowners for storing items in their backyard that may not be visible from the property's front or side. This provision recognizes the importance of personal space and the right of homeowners to utilize their property as they see fit, provided it doesn't visibly disrupt the aesthetic harmony of the community.

Protection Against Intrusive Oversight: As mentioned in the podcast, the law addresses concerns about overly intrusive HOA practices, such as the use of drones to monitor and penalize homeowners for items stored in their backyards that are not visible from the street. By setting clear limitations on what HOAs can regulate based on visibility, the statute aims to protect the privacy and rights of homeowners, ensuring that their backyard remains a personal and private space.

Common-Sense Legislation for Quality of Life: The law is praised for its common-sense approach to property rights and community living. It is seen as a step towards improving the quality of life for homeowners by removing unnecessary and burdensome restrictions, allowing them to make full use of their property without fear of unjust penalties or surveillance.

House Bill 437, as Florida Statute 720.3045, marks a significant advancement in protecting homeowner rights and fostering a sense of respect and autonomy within HOA-governed communities. As noted by Luke Carlson, Esq., and Marty Vasquez, the law reflects a practical and homeowner-centric approach to community governance, ensuring that the use of backyards and personal spaces remains a matter of personal discretion, free from unwarranted HOA intrusion.

Senate Bill 154 (Effective June 9, 2023)

In the aftermath of the Champlain Towers collapse, Senate Bill 154 emerged as a critical piece of legislation, reflecting Florida's resolve to prevent such tragedies. As discussed in the LS Carlson Law podcast, Jeff Kominsky sheds light on the comprehensive nature of this law and its profound implications for condominium living in Florida. The bill introduces several key provisions:

Inspection Requirements: The law mandates rigorous inspections for condominiums, particularly those that are three stories or higher or located near the beach or a body of water. This provision aims to identify and address structural issues proactively, ensuring the safety and integrity of buildings.

Access to Official Records: A pivotal aspect of Senate Bill 154 is the requirement for associations to provide access to official records, including investigation or engineering structural reports. This transparency empowers condo owners with critical information about the state of their residence.

Mechanism for Securing Reports: The podcast discussion illuminates the practical steps for homeowners to secure these reports. The process involves sending a certified letter to the association's registered agent, clearly identifying the statute and the specific records requested. This structured approach ensures that homeowners' requests are formally recognized and addressed promptly.

Timeframe for Compliance: Associations are required to comply with record requests within a 10-business-day period. Failure to do so can result in financial penalties for the association and opens the door for additional legal claims, as highlighted by Jeff Kominsky. This measure underscores the law's commitment to accountability and timely access to information.
Identifying the Registered Agent: For homeowners seeking to request records, identifying the association's registered agent is a crucial step. As Kominsky points out, this information is readily accessible through the Florida Division of Corporations website, facilitating a streamlined and informed request process.

Senate Bill 252 (Effective June 1, 2023)

This law emphasizes respect for individual choice and autonomy in health-related decisions. By prohibiting mandatory COVID-19 vaccination proof or mask-wearing by businesses and non-profits, including HOAs, it reflects a commitment to preserving personal freedoms while balancing public health considerations.

Senate Bill 360 (Effective April 1, 2023)

Senate Bill 360 represents a significant shift in how construction defect claims are addressed in Florida, with a particular focus on the statutes of limitations and repose. Jeff Kominsky provides an insightful analysis of the nuances and implications of this bill, highlighting its impact on developers, builders, homeowners, and HOAs. Key elements of the bill include:

Understanding Statute of Repose vs. Statute of Limitations: Senate Bill 360 brings clarity to the often-confusing distinction between these two legal concepts. While the statute of limitations allows claims to be brought from the date a breach or damage is known, the statute of repose sets a timeframe for legal action from the start of a project, regardless of when the damage is discovered.

Shift in Developer Strategy: The bill reflects a strategic shift by developers and their lobbyists to minimize lawsuits related to construction defects. By extending the duration of projects, developers aim to benefit from the statute of repose, potentially reducing their vulnerability to legal claims once the properties are sold. This approach, as described by Kominsky, indicates a preference for delaying projects to avoid the initiation of lawsuits.

Implications for Homeowners: Senate Bill 360 has stirred debate regarding its impact on homeowners. While it provides a clear framework for addressing construction defects, the perceived alignment with developer interests raises concerns about the balance of rights between developers and homeowners. Homeowners may find themselves at a disadvantage if defects arise after the repose period has elapsed, underscoring the importance of vigilance and timely action in identifying and addressing potential construction issues.

House Bill 949 (Effective October 1, 2023)

House Bill 949, addresses a quintessentially Floridian aspect of community living - the use of golf carts. Jeff Kominsky, Esq., Marty Vasquez, and Luke Carlson, Esq., delve into the nuances of this bill, highlighting its practical implications for Florida's expansive and often golf-centric communities. The legislation introduces crucial regulations:

Age and Licensing Requirements: The bill sets clear age restrictions and licensing requirements for operating golf carts, ensuring that drivers meet basic safety standards. As Kominsky points out, the requirement for a driver's license (typically starting at age 16 in Florida) is a pragmatic approach to ensuring that only those with a basic understanding of driving rules and responsibilities are at the wheel. There's also consideration for younger individuals who, under certain conditions, may be allowed to drive when accompanied by a licensed adult, ensuring flexibility while maintaining safety.

Addressing Safety Concerns: The discussion reflects a consensus on the bill's role in enhancing safety, particularly in communities where golf carts are a prevalent mode of transportation. The requirement for a driver's license, as Kominsky mentions, is not just about legal compliance but also about ensuring that drivers have the necessary skills and judgment to operate these vehicles safely.

Community and Lifestyle Considerations: Kominsky's insights underscore the cultural significance of golf carts in Florida's communities, especially in areas where golf courses and country clubs are integral to the lifestyle. The bill acknowledges the importance of golf carts in these communities and seeks to integrate them safely and sensibly into the local traffic ecosystem.

Common-Sense Legislation: Echoing Marty Vasquez's sentiment, the panel agrees that the bill represents a common-sense approach to regulating golf cart usage. It addresses a long-standing need for clear, enforceable guidelines that balance the freedom to enjoy this popular mode of transportation with the imperative to maintain safety and order in community settings.

House Bill 949 is more than a piece of legislation; it's a reflection of Florida's unique community dynamics and a response to the practical needs of its residents. As the LS Carlson Law podcast discussion reveals, this bill is a thoughtful convergence of safety, practicality, and respect for local culture and lifestyle. It's a testament to Florida's proactive and responsive legislative approach, catering to the specificities of community living while upholding the highest standards of safety and responsibility.

Upcoming HOA Laws in Florida (2024)

Signed Into Law

House Bill 979 (Effective July 1, 2024):

This law simplifies the estoppel certificate issuance process, a critical component in real estate transactions. By prohibiting community associations from imposing fees for these certificates and establishing clear guidelines, it fosters transparency and fairness in property transactions.

House Bill 173 (Effective July 1, 2024):

This forward-looking legislation mandates the incorporation of homeowners' associations as corporations and sets robust guidelines for legal actions and fiduciary responsibilities. It underscores a commitment to ensuring that associations operate in the best interest of the community.

Proposed Laws

House Bill 293

Targeting enhanced disaster preparedness, this bill mandates specific hurricane protection standards for homeowners' associations, reflecting a proactive stance on community safety and readiness.

Senate Bill 426

Senate Bill 426, represents a significant stride in reinforcing the rights and protections of homeowners within the HOA framework in Florida. Jeff Kominsky, Esq., Luke Carlson, Esq., and Marty Vasquez delve into the proposed bill's potential to revolutionize how HOA disputes, especially those involving board member misconduct and fraud, are handled. Here are the key elements and insights from the discussion:

Creation of a Specialized Unit: Senate Bill 426 proposes the establishment of a condominium fraud investigative unit, signifying a substantial commitment from the state of Florida to tackle issues of fraud and misconduct within HOAs head-on. This specialized unit is expected to bring about a significant shift in ensuring accountability and transparency.

Empowering the DBPR: The bill seeks to empower the Department of Business and Professional Regulation (DBPR) with expanded powers to regulate, investigate, and enforce actions against board members not fulfilling their duties or committing fraud. This includes the ability to enter into contracts, conduct audits, and serve subpoenas, transforming the DBPR into a more proactive and enforcement-oriented entity.

Filling a Critical Enforcement Gap: Jeff Kominsky highlights the historical lack of a robust enforcement mechanism for handling board member misconduct. The bill aims to address this gap by providing the DBPR with the necessary tools and authority to take decisive action, creating a quasi-judicial body capable of addressing complex disputes within the HOA context.

Mechanism for Homeowner Action: The proposed language of the bill delineates a clear process for homeowners to initiate action against board members or the association. It involves a notice of intent, followed by the possibility of filing a petition for arbitration within the DBPR if the association fails to address legitimate concerns, as outlined by Jeff Kominsky. This structured approach provides homeowners with a clear pathway to seek redress and ensures that their grievances are formally recognized and addressed.

Setting a New Precedent: As noted by Marty Vasquez, the introduction of such a comprehensive enforcement mechanism within the DBPR could position Florida as a trailblazer in HOA law and homeowner rights protection. The bill's potential to offer meaningful investigative and enforcement capabilities sets it apart from the existing mechanisms in most other states.

Senate Bill 426, if passed, promises to be a landmark piece of legislation, fundamentally changing the landscape of HOA governance and dispute resolution in Florida. By introducing a specialized investigative unit within the DBPR and providing it with substantial enforcement powers, the bill aims to ensure that the rights of homeowners are safeguarded, and any form of misconduct or fraud within HOAs is addressed effectively and decisively.

House Bill 627

House Bill 627 is a testament to Florida's commitment to enhancing transparency and informed decision-making within the realm of homeownership and HOA governance. Jeff Kominsky, Esq., provides a comprehensive overview of the bill's potential impact, emphasizing its role in ensuring that prospective homeowners are well-informed before entering into a deed-restricted community. Key aspects and insights from the discussion include:

Disclosure Requirements for Home Buyers: The bill mandates the disclosure of essential documents, such as condominium docs and governing documents of associations, to prospective homeowners before closing the sale. This requirement is a proactive step in ensuring that buyers are fully aware of the community's rules, restrictions, and expectations before making a commitment.

Addressing Common Overlooked Restrictions: Kominsky highlights real-life scenarios where new homeowners find themselves in unexpected predicaments due to overlooked restrictions in the governing documents. For instance, use restrictions regarding pets or types of vehicles that were not realized until after moving into the community. House Bill 627 aims to prevent such surprises by ensuring that buyers have access to all pertinent information upfront.

Safe Harbor Provision: The bill introduces a safe harbor provision, allowing buyers a way out if they discover, just days before closing, that certain restrictions conflict with their lifestyle or needs. This provision is seen as a significant step towards protecting homeowners from entering into agreements that are incongruent with their expectations or requirements.

Empowering Homeowners and Diminishing Disputes: As noted by Luke Carlson, Esq., and Marty Vasquez, the bill is part of a broader trend of empowering homeowners and disarming overreaching HOAs. By mandating the disclosure of governing documents and enforcing them transparently, the bill aims to diminish potential disputes and ensure that homeownership decisions are made with a full understanding of the community's rules and restrictions.

House Bill 627 reflects a thoughtful approach to fostering a transparent, informed, and fair environment within Florida's HOA-governed communities. It acknowledges the critical importance of ensuring that prospective homeowners are well-prepared and fully aware of the community's standards before making significant life decisions.

Conclusion

As Florida continues to navigate through a transformative period for homeowners and HOAs, it is clear that the path ahead is paved with legislative efforts aimed at enhancing transparency, accountability, and fairness. The recent and upcoming laws are a testament to the state's dedication to protecting the interests of homeowners.

If you find yourself at the crossroads of an HOA dispute or simply seek to understand the full spectrum of your rights and responsibilities under these new laws, there is no substitute for experienced legal counsel. LS Carlson Law stands at the forefront of representing homeowners in disputes against HOAs. With unrivaled expertise and a robust track record of advocating for homeowners, our firm is equipped to ensure that your voice is heard and your rights are vigorously defended.

No other firm in the country possesses a deeper understanding or more experience in standing up to overreaching HOAs. Whether you're contending with compliance issues, navigating the complexities of association governance, or fighting unjust treatment, LS Carlson Law is your advocate, your resource, and your partner in securing a just outcome.

Don't let uncertainty navigate your HOA experience. Reach out to LS Carlson Law today, where our proficiency in HOA law is your pathway to peace of mind and resolution.

Full Video Transcript

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Hi Luke Carlson from LS Carlson Law today. We'll be talking about the changes in Florida law We are honored with our managing partner Jeff Kaminsky who oversees our Florida operation Jeff. Thank you so much for being on the show

Florida HOA Attorney, Jeff Kominsky, Esq.
Absolutely glad to be here and I'm really looking to shed some light on some of the recent laws in Florida

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Awesome, and I also have my producer Marty. Marty, welcome back. I'm a California lawyer, as I said, Jeff is a Florida lawyer, and Marty is the non-lawyer in the room. We often think that that is very valuable because sometimes when two lawyers talk, we get to some weird esoteric space and Marty brings us back down to earth.

Homeowner & Podcast Producer, Marty Vasquez
Yeah, it's a whole different language. No one knows what you're talking about. It can be.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah, let's just jump right into it. Again, Jeff, you're the thought leader here. You have the lead over.

Florida HOA Attorney, Jeff Kominsky, Esq.
So why don't you take it away. So I think ultimately in Florida, as it applies to association law, the Florida legislature in the last few years has taken pretty significant steps in changing kind of the, the, the narrative, if you will, when it applies to homeowners versus associations, I think a lot of it really stemmed with what happened, unfortunately, in 2020 and in South Florida with the tragic events of Surfside, with the Champlain Towers and the collapsing and killing of various and numerous people and community members and state of Florida really and the whole nation took it very seriously. And what the state of Florida started to do is realize that associations and boards were really monopolizing the game. And so what they've started to do in the last few years is slowly trend towards, you know, balancing the ability for property owners and condo owners to have a stronger say and have more important rights to utilize and push back if necessary. So I think what you're seeing in as recent as last year and even this year, there is various laws that have been enacted and even new proposed laws that I believe are shifting this balance of power and rights back to property owners.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah, it was interesting when I was preparing for this, going over proposed and enacted legislation, I mean, this is really empowering the homeowner, a lot of these laws, and it's really putting a lot of pressure, rightfully so, on really just bad HOAs. You're trying to correct a very systemic problem in Florida, and at least my interpretation creation was, this really was geared towards empowerment.

Florida HOA Attorney, Jeff Kominsky, Esq.
You couldn't have said it better. I think from my perspective in terms of what these laws have done is they've taken small but significant steps in reversing the course that's been kind of stuck in neutral for the last few decades, where most associations have these boards that have used their power at will and whether they're, you know, breaching their fiduciary duties or not complying with the various documents within your community, usually called governing documents. I think that now the Florida Legislature has recognized that there's a lot of people moving down to Florida, especially since COVID, and a lot of people are recognizing that they need to protect themselves, their properties, even when they buy and sell. And so there's a lot of interesting things, especially when you're noticing some of the recent developments that have happened within the abuse of power of board members themselves. There was a really big case in Miami -Dade County called the Hammocks Association. It's one of the largest associations in all of Florida. And basically what they were alleging in the lawsuit was that board members were embezzling funds. And to the extent that people were imposed these massive special assessments that they just couldn't pay. And so based on those things, the various legislatures and rightly so have really tried to penalize and disincentivize any type of board member who might be thinking that they could try to take advantage of the position of power that they're in.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
We’ll let the resident expert discuss it. And, uh, Jeff, well, you know, I, I think we should go down this list in terms of first and foremost, what do you think is the most impactful? What is the most meaningful and, uh, we'll work down the list at that point.

Florida HOA Attorney, Jeff Kominsky, Esq.
Yeah. So I think in terms of 2023, one of the most impactful laws that eventually was put into effect was House Bill 919, where it changed the Homeowners Association laws and renamed it, but ultimately renamed it to add some more teeth to what board members were supposed to do and what they weren't supposed to do. So, for example, board members are now, even though they're volunteer positions, they're unpaid, they still have a fiduciary duty. They still have to act in the best interest of the entire membership. And they have to equally and fairly enforce the governing documents. And so what this house bill did last year was it allowed more legal teeth and adding ramifications to if board members weren't following their responsibilities and weren't following their fiduciary duties and what that would do and what consequences that could have. For example, if a board member was indicted for some sort of crime, that indictment would then statutorily force out that board member to immediately resign. And it's hard to believe that it took until 2023 to get to that point. If a board member commits a crime, they're still allowed to be on the board. Sounds pretty bizarre. And so, you know, with Florida being a high crime area, high white -collar crime area, the state legislature, I think, took, once again, a small but significant step into trying to make sure that board members do what they're supposed to be doing.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah, no, I really like this one because in my mind, it was very much geared towards deterrence, right? The there's massive consequences if you act wrongfully and it's really the state of Florida coming in and saying yeah These are the these are the actual consequences now This is what happens when you act wrongfully and you know in my mind when a when a board understands that you know Hopefully it deters this conduct in the first place as opposed to putting a whole bunch more regulation Around these boards now. They actually have real consequences for their misconduct

Homeowner & Podcast Producer, Marty Vasquez
What I like about it the most is that it seems like the majority of this is just based on common sense For instance, the prohibition on kickbacks. I mean, that is the most common sense thing. And then the conflict of interest disclosures. I mean, imagine that you can get kickbacks and you've got, you have a fence company and you are saying, oh, we're going to initiate with a fence company and you're getting kickbacks the entire time. To be able to limit that or at least put disclosures on it, I mean, is just, I think it's significant and just common sense. What I like about it is it's just based in common sense. Yeah, agreed.

Florida HOA Attorney, Jeff Kominsky, Esq.
I want to add to that in terms of conflict of interest. There was a world that we lived in in Florida, where if you lived in a condominium association, that if there was a board conflict of interest, that there could be consequences and penalties. But if you lived in a single family home in an HOA, there is no similar, was no similar conflict of interest. longer. So whether it didn't make sense, doesn't make sense at all, but one would have it and one wouldn't just was really bizarre. And so I think that, you know, the legislature was trying to cover up some gaps there. As we'll discuss maybe in a few minutes, there was a problem with this law in the sense that yes, it added some legal teeth and consequences. But what ultimately happened in 2023 as this became law is the Florida State Legislature realized that there was no enforcement arm of this statute. Who could enforce a statute like this? Could it be the courts? Could it be a court of arbitration? How do you enforce this? And so in 2024, as we'll discuss, the Florida's legislature realized that they needed to beef it up even a little bit more.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
That's wonderful. All right, so that's 919. And all right, Jeff, what's next on your list?

Florida HOA Attorney, Jeff Kominsky, Esq.
Well, for me, I think there's one that's really interesting, and it is relating to the installation of properties. It is specifically House Bill 437, and that House Bill 437 statute, and that statute is now Florida Statute 720 .3045. So this bill became a statute and a brand new statute, and what this statute basically says is really fascinating to me is it basically says that if you live in a single family home and you want to store something in your backyard you before this law came to be an association would be able to penalize you for putting things in your backyard that might not have been approved you know so for example if you had a small pontoon boat you know and you couldn't hide it any anywhere. And if you did hide it, or try to and the association still knew about it, they could come after you. Okay, what this law does is that basically says, look, if we if an HOA can't see it from the front of your property, and they can't see something from the side of your property, you have a fence up, you basically put whatever you want, that's movable and install whatever you want that's in your backyard in your backyard. So ultimately, the law is very vague because it lists the word items and so it doesn't allow enforcement on any items that an HOA can't see from the front or from a side and so it hasn't obviously put to a legal battle yet in court yet but my impulsive thought is it really benefits property owners specifically single family homeowners so that can put stuff in their backyard without any fear that the association can come

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah, so essentially they can actually use their backyard.

Homeowner & Podcast Producer, Marty Vasquez
Well this is interesting because on our commentary on the John Oliver video, if you recall there was a story of the homeowners association taking drone shots of people's backyards. And they were penalizing them for things like sheds that weren't allowed in the CC &Rs. But you couldn't see them from the front, the sides, or anything. thing. But they would literally levy fines based on their drone footage. Crazy. So this is an this is an interesting, again, just common sense legislation that I think is really going to improve the quality of life of just the average homeowner.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
I agree. I agree.

Florida HOA Attorney, Jeff Kominsky, Esq.
Yeah. And to move on, there's another bill that I think is really important, especially for Floridians who live in condominiums. And that ultimately is the Senate Bill 154. And what Senate Bill 154, which was eventually codified, basically addresses what happened at Surfside at the Champlain Towers, right, where what the Florida legislature did was, it said, Look, we're going to make sure this never happens again, these structural issues that, you know, should have been addressed years ago led to crumbling and the structure just fell apart. We're not going to allow that to happen anymore. So what they started to do in the Florida Legislature is they started to put in these requirements for inspections of certain condominiums that are three stories or higher or that live a certain area close to the beach or a body of water. And basically that step process required an inspection within a certain amount of time. And now what recently what the state of Florida did is kind of take another step, kind of volume two, if you will, of that first prong. And they said, well, look, if there's going to be inspection reports, we've got to make them available to condo owners. And so one of the things that they did and one of the many things that this specific Senate bill does is it now allows access to official records for any investigation or engineering structural reports. And they must be turned over to whoever asks for it, uh, within a certain time period and there's logic to that.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah. Sorry to interrupt your flow. So what is the mechanism there for the homeowner to actually secure the report? Is it a simple email? Is it a formal demand? Is it a formal request? What does that actually look like logistically?

Florida HOA Attorney, Jeff Kominsky, Esq.
Oh, it's a great question. And a lot of people think, hey, I'm going to just email my property manager. That's why I pay all these dues on a monthly basis. And you know, respond to me. I think that, you know, a lot of people don't get the response they want, get the response timely, or quite candidly, never get a response. And so what the statute says that if you're a homeowner in a single family home, or living in a condo, you actually have the same type of right to get these records. And the way to do it in a proper way is, the way I like to say to people is you gotta follow three basic steps. Okay, step number one, you gotta send a certified letter. I know that sounds really weird because it's to probably somebody that, you know, is a few stories below or a block away, but unfortunately an email just won't cut it if you're going to try to trigger the statute. So you gotta send a certified letter, You've got to mail it to a certain person and then you've got to identify the statute and talk about and specifically request what records you want and they have to be written records that relate to the operation of your association. And if you basically follow those three generic steps, you're going to use the statute correctly and it actually puts then the onus on the association to give you these records and they got to give it to you in a very immediate time period. A statute actually says within 10 business days. And if they don't give you the records and most people think, Hey, they're just not going to give me the records. Well, if they don't within that time period and kind of an ironic turn of events, you could actually find your association a certain dollar amount, and then you would even have a additional legal claims that you could eventually try to escalate if you really want.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
That's great. And then one final question on that. You mentioned a specific individual. How do you identify what individual you send the request to? Is it the agent for service of process? Is it a specific board member or director? Is it the management company typically? How does one identify?

Florida HOA Attorney, Jeff Kominsky, Esq.
So it's the same way whether you're a condo owner, a homeowner, or even you live in a cooperative in Florida. And basically the statute says that you would have to mail the statute, certified USPS green card receipt, and you have to address it specifically to your associations, what's called a registered agent and a registered agent in Florida is basically somebody who's allowed to receive formal documentation or correspondence. And you can usually in an easy way, find out who your registered agent is. If you go on the Florida division of corporations website and do a search and you can usually find that information out pretty quickly.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Wonderful. All right. Thank you. Thank you, Jeff. That was great. That's interesting.

Florida HOA Attorney, Jeff Kominsky, Esq.
Yeah. Um, you know, I think maybe one other, um, uh, bill that was interesting to me, and I think it affects maybe more so the West coast of Florida, typically house bill 949. And it basically sets limits for our age limits for who can drive a golf cart in in areas and I know a lot of people are like, well, I mean, whoever owns a golf cart is definitely doing a little bit better than many, but I will tell you that, especially on the West Coast of Florida, where associations are really expansive and, and, you know, there's huge communities or subdivisions. There's master and sub -master associations. And if you have friends, you know, driving your car, you know, maybe it might make a lot of sense. And if you're fortunate enough to have a golf cart, then, you know, a lot of people, especially with golf communities, a lot of associations being part is golf country clubs. That's where, you know, this is really more prevalent. But I think that this is more of a health and safety issue. I mean, yeah, yeah, I think when, you know, you don't see a golf cart on a golf course, your immediate thought is, oh, my gosh, there's going to be a teenager that's driving that cart, you know? And so, you know, because I think most people think that way, I think it was pretty basic and obvious thought that you got to put restrictions. And so this was one that I thought was very helpful. But like I said, probably impacts a smaller communities that are more centric to expansive associations or affiliated with golf courses.

Homeowner & Podcast Producer, Marty Vasquez
Jeff, what was the what was the requirement? Then I think it was more or less for for kids. Do they have to have a driver's license? Or do they have to I mean, what's the actual requirement?

Florida HOA Attorney, Jeff Kominsky, Esq.
I believe it is, you have to have a driver's license and the driver's license age is 16. In Florida, you can't have a permit at 15. But off the top of my head, I think that there might have been an extra addition that if you're, you don't have a license, you do need to ride with somebody. I don't know off the top of my head of that exact provision. All I can tell you is in terms of the regulation, they did hunker down on the restrictions of who can drive under and under what requirements.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah, no, I think this is great. And again, I think it's just another pragmatic approach that Florida is taking. So I really like this one. And it is a very Florida law. So it screams Florida to me when you're, we're dealing with golf carts. Cause we really don't see that much in California, but I know Florida is like sort of the epicenter for a golf cart.

Homeowner & Podcast Producer, Marty Vasquez
Again, it's just common sense. Yeah. So yeah, I like that one.

Florida HOA Attorney, Jeff Kominsky, Esq.
Well, the thing to me is that it took until 2023 to address this. And you know, I think that most people for decades, I grew up here, I was born and raised here. I grew up close to a golf course. I mean, there's golf courses all over the place. People retire here to play golf. I mean, there's snowbird season here. So my guess is people from the Midwest that want to come down and evade the snow or people from the Northeast, like New York, Connecticut, New Jersey, Pennsylvania, those people want to come down and, you know, wear shorts in January. And so I think for them to address a law like this was a long time coming.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Well, as I say, you know, Rome wasn't built in a day.

Homeowner & Podcast Producer, Marty Vasquez
So what was fascinating is I encountered this when I visited Georgia and they have a master plan community in Peachtree City that literally has the main like thoroughfares are golf, a golf cart centric. And even at the grocery store, there's golf cart parking. They take their kids to school in golf carts. I mean, it was fascinating. Like, well, this is a different way of life having to getting in a car here in Southern California and you go four miles and it takes you 45 minutes. I kind of enjoyed it.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah. All right, Jeff, what do you got next for us?

Florida HOA Attorney, Jeff Kominsky, Esq.
Well, I think that, you know, in terms of 2023, I mean, there's a few other regulations that were put into place or bills that were put into place. You know, there's a COVID restriction now preventing, you know, organizations from putting masks or any type of protective gear there. I think that's kind of an extension from what the state of Florida did when COVID first hit with regards to associations. They put emergency orders in so that basically associations could themselves decide, you know, from a health and safety perspective, what is necessary for each community. But in doing so they had to do it in compliance with experts, you know, health experts and from the Florida Department of Health, for example. So one of the things that I think that was just elaborating on this is, you know, while most people are walking around freely and, you know, and COVID is not as prevalent, it's still around. And so I think what I think what the Florida legislature was doing there is also So, you know,

Florida HOA Attorney, Jeff Kominsky, Esq.
thinking about future issues, God forbid there's another epidemic or pandemic. I think they're at least at least the infrastructure in place that the state of Florida is taking this position of you, you know, businesses can't do certain things when it comes to health and safety issues. So I think that was just another addition there.

Homeowner & Podcast Producer, Marty Vasquez
That was Senate Bill 252, correct?

Florida HOA Attorney, Jeff Kominsky, Esq.
Correct. Senate Bill 252. Agreed. So, but beyond that, there are a few things that one final bill that I think is very critical to talk about which is a bill that was addressing construction law issues. Um, and, uh, basically a statute of repose. It was a Senate Bill 360, okay, and this applies basically to construction defect claims. So a repose basically means that if you find out something, you can only bring a legal claim or action within a certain amount of time. A lot of people confuse it between a statute of repose and a statute of limitations. A statute of limitations usually means that you can bring a certain claim from the date you kind of know there was a breach or you know that there were certain damages that occurred. With a propose, it kind of means not from when a breach or damage occurs, but basically when something even starts. So what was happening here is let's say there's a developer who wants to build an association. And it's a developer -controlled association, they're building, building, building. and you would think that the developer's business desire is to build, build, build, and sell, sell, sell immediately. Well, what was happening is that a lot of people weren't too happy with the way the buildings were being constructed in these communities and these associations, and they were getting sued a lot. And so now the builders, and I guess their lobbyists, have taken a position that we kind of want to minimize these lawsuits. We kind of want to just keep the any type of construction defect lawsuit going down. So a lot of these developers have actually taken a, I guess from a business standpoint, a bizarre course of action, which is if we can try to start a project and, yes, take more time than we probably were wanting to do so, but do it long enough to a point where we sell the properties, and at that point, people won't have legal claims against us because the statute of repose would have been effectuated. And therefore, yeah, it took longer. And yeah, they would have wanted to sell, sell, sell and move on. But I guess their business position they were taking from at least their lobbying in the past. And one of the hours was that ultimately. It might benefit us more to delay, delay, delay and not invite these anticipated lawsuits. Um so that's what the Florida Legislature did. I will tell you it's very much one sided. I mean, whatever if you're developer, not developer, it doesn't help out a new homeowner by any stretch. A lot of the homeowner's rights come more against associations, but this one, they definitely sided towards a developer. So that's what they did.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Understood.

Florida HOA Attorney, Jeff Kominsky, Esq.
Is that, yeah. So I think that ultimately 2023 was a huge stepping stone because I think when it got to 2024 and the new bills that have been proposed this year, I think there are many significant new language and laws that are, if effectuated, if they actually pass and they're as is, are really going to help property owners and condo owners in the state of Florida.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah, that definitely seems to be the trend. You know, every year it almost seems like they're bolstering and empowering the homeowner further and further. And it seems like they consistently are offering pragmatic approaches to homeowner rights. But not only that, they're actually giving teeth to these empowerments. All right, Jeff, do you want to jump into some of those for 24?

Florida HOA Attorney, Jeff Kominsky, Esq.
Yeah. And one of those teeth is kind of expanding what I was talking about with the enforcement on board members not doing what they're supposed to be doing, committing fraud. and what happens there? Who's allowed to even say, hey, board member, you did this wrong. You committed fraud. You have a conflict of interest. How do we do? What do we escalate? What do we do? And so the Florida legislature saw that that's what was happening. And what they basically proposed is this Senate Bill 426.

Florida HOA Attorney, Jeff Kominsky, Esq.
And I will tell you that this is a language state is intact, because what it effectively does is for, it creates a pilot program, specifically for a condominium fraud investigative unit within the state of Florida. And the arm that they're giving this new power to is called the State of Florida Department of Professional and Business Regulations, or Department of Business and Professional Regulation, the DBPR. And what the DBPR has done in the past is simply monitor and regulate other types of disputes like, for example, election disputes in an association, or if somebody is trying to recall a current board member and there's a dispute arises there, the DBPR would try to address those. And there are other legal disputes that the DBPR has addressed historically in Florida. So what this proposed language is really looking to do is it's trying to strengthen and broaden the DDPR's power and to basically enforce them to use the statute that was just created last year and try to be the enforcement power, if you will, to get these board members who probably shouldn't be in power anymore out. And so, for example, the statute or the proposed language as written, would give the power to the DBPR to enter into contracts with invaders, conduct audits. It would even give them a power to serve subpoenas. And I think that this is critical because now all of a sudden, you have this kind of quasi -court system, if you will, or quasi -judge that is allowed to work this up and get all of the information they need so that a person that feels like they know something's wrong and maybe can prove it through an official records request, they didn't have anywhere to go. And, you know, do they file a lawsuit? Do they, you know, file a complaint to the Better Business Bureau? What do they do? And so now this gives a hope to condo owners and property owners to say, hey, look, now I can at least, you know, have somebody who can have my back and get the DDPR to really dive in, you know, which would be an option that they just never had. A lot of people we would get calls from would say, should I contact the police? You know, what do I do? And so I think that this really helps, you know, give another opportunity to try to enforce these now stricter provisions of 2023. And now would probably take any type of overflow in a court system or, you know, legal enforcement, and putting it in the hands of the state of Florida. So I, we, the hope is that the dbpr now will get the resources it needs, because now they have they're going to if the bill passes, get the power that they needed.

Homeowner & Podcast Producer, Marty Vasquez
Jeff, that's interesting. So as a dbpr, is that a is, is that a new department that is being proposed in the pilot program? Or is that already established? And now the pilot program is giving the power to the DPPR in order to help facilitate and enforce the these HOA claims?

Florida HOA Attorney, Jeff Kominsky, Esq.
Yeah, so historically, so the quick answer is no. The DPPR has never had anything like this before. So it's typical that it is. The DPPR has been a staffer for decades. That entity is usually overseeing, like I said, election disputes recalled, but also historically overseen, you know, any other issues that don't involve contract disputes, okay, or fraud. But now what they're doing is they are allowing this, at least this pilot program if the bill passes to give them this new additional right and this pilot program would be within the DVPR that has been established and so that they now would have the ability to oversee and hire others to investigate putting out these subpoenas and eventually leading to conclusions and you know like I said this is drafted initially there might be subject to changes in the language. We saw that last year where there was even stronger legal teeth to the board fraud law that eventually got enacted.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
So I am curious to see how the proposed bill morphs, if at all, before it becomes law. Jeff, a quick question on that, more of a logistical question. How is, how is that triggered then? How does a homeowner trigger that enforcement arm? Has that been discussed? Has that been clarified? Yeah.

Florida HOA Attorney, Jeff Kominsky, Esq.
So great question. Right now, at least the thought process is, and, and, you know, I think that's probably going, there's going to be language that basically in my eyes, the, the idea that makes most sense is to just trail what is already the procedures that are already in place with the DBPR, which is you usually have to give some sort of notice of intent. And if you're a an owner that doesn't necessarily want to immediately in an arbitration process or submit some sort of complaint to the DBPR, usually the general protocol is giving some sort of notice of intent to the board member or the association, and giving them, you know, a reasonable time period to say, hey, look, you know, if you don't agree to these demands and I've got these very valid concerns. Um, my hope is that we can avoid this and you just agree to this, but if not, then I'm going to be able to file a complaint with the DVPR. And if they view this as something that they're going to undertake, then, you know, I'm going to leave it in their hands. And so,

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Oh, sorry to interrupt. Uh, so what you're identifying essentially is there's a, somewhat of a safe harbor provision to start, but assuming they don't capitulate, the HOA refuses to adopt the position of the homeowner, then it would essentially move forward accordingly.

Florida HOA Attorney, Jeff Kominsky, Esq.
Yeah, at that point, if after a certain time period, I kind of say, hey, look, I really don't want to escalate this, but I'm giving this notice of intent that I'm going to, and time passes, or there's no response, or they just disagree, then a property owner can file what's called a petition for arbitration within the DVPR.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Got it.

Florida HOA Attorney, Jeff Kominsky, Esq.
So that's a standard protocol. And that's when the DVPR would, whether they take it and assign a file number to it, or just say, hey, this isn't, you know, our bag of potato chips, we don't handle this. But we wish you the best. I understand.

Homeowner & Podcast Producer, Marty Vasquez
This is interesting, because in that CNBC video, when they did an overview on the kind of the state of HOAs across the country. Only, don't quote me, it was something like six or eight states only had a department that they could go to to file complaints. So it's interesting that Florida's adopting, they're going to be one of very few states, if this goes through, they're going be one of very few states that can actually help facilitate these claims.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Yeah, and it sounds like in a very meaningful way. A lot of the ones that were discussed on the CNBC video You know, said, yeah, they can investigate, but there's no enforcement arm to it doesn't have teeth. Right. So this one is not only creating that, but it's actually establishing it in a way that actually is meaningful.

Homeowner & Podcast Producer, Marty Vasquez
Yeah.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Right. So that's great. That's a huge improvement.

**Homeowner & Podcast Producer, Marty Vasquez
That could be a landmark. Yeah.

Florida HOA Attorney, Jeff Kominsky, Esq.
No, for sure. I wanted to talk about maybe a few other statutes, maybe kind of clump them together or not statutes, but proposed bills, but clump them together. You know, I first want to talk about one that I actually noticed that prior to this call I wanted to talk to you about and give you a list, but there's one that I think is really important. Actually, two or three that are combined. So there's House Bill 1021, House Bill 431, and House Bill 627, and I'll go through each very briefly. The easiest one to talk about first is House Bill 627. I'm clumping these together because I think they all give better rights property owners. And with what House Bill 627 does is, it at least it's proposing language that is requiring disclosure to protective purchasers of homeowners to obtain certain documents like the condo docs, the governing documents of your association in advance. Because what we see happen a lot is people will buy a home and they might have these rights to see the governing documents.

Florida HOA Attorney, Jeff Kominsky, Esq.
Maybe they don't have a real estate agent. And they say, well, I moved into this home and I have this dog that I've just had for years. And I love this dog, but this dog has grown up so big, so fast, but I love him to death. He's a family member. Okay. What happens occasionally is there are some use restrictions in governing documents that a lot of people just, you know, don't realize until they actually move into the community. Or I just bought this great, great vehicle, this huge SUV. It's oversized, but it's awesome. I have, you know, three or four kids, it's going to be great. And I needed a bigger house because I needed to expand and there are sometimes you'll find use restrictions in your governing documents that says you can only have certain type of vehicles in your car in your in your house or they can't be commercial vehicles or something like that. So this is an important law because it basically says look if you're going to buy into the home you kind of got to get to know make sure you got to know what you're getting into and this gives people the right to say okay I'm going to get these documents and then there's a safe harbor provision to say, oh my gosh, the closing is in three days. I just realized that I'm not allowed to have my dog or I'm not allowed to have my vehicle here. How do I get out of this now? So this could protect purchasers and more importantly, make people more informed when they buy a property to make sure what they're getting into this deed restricted community. Another bill 431, this one also affects homeowners, not necessarily condo owners. And this is an interesting one because currently as the law is, a lot of people get violations for silly things. You know, we've had a client who during the holidays would put garden gnomes out in front of their property. And they did so for years and years and years. And all of a sudden the HOA with a new board says, hey, you're not allowed to put garden gnomes in your property. And for every garden gnome, we're going to find you $100 a day until you remove the guardians. And the law says that the association could fine you up to $1 ,000 per violation, $100 a day up to $1 ,000 unless your governing documents say otherwise. There's some cases where the governing documents say, hey, look, it says $1 ,000, but we'll do this in perpetuity. But ultimately what this bill is going to be doing is limiting the fine cap from $1 ,000 to $500. And I know for a lot of people may be out there $500 doesn't sound like a lot. But for a lot of people $500 is a lot. It is a cap, especially if it's per violation, and associations are trying to target you and harass you. They can't just come at you and say, hey, you have 10 garden gnomes, I'm giving you $1 ,000 a fine per garden gnome. That adds up pretty quickly. And so I think that that one, if that passes, is going to really help property owners, especially trying to push back on these exorbitant and excessive fines that associations really impose.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Well, it looks like they're, they're looking to sort of disarm the associations quite a bit. They are. So that's great.

Florida HOA Attorney, Jeff Kominsky, Esq.
They are. Yeah. And, you know, as one final bill that I wanted to make sure to kind of clump in this one is House Bill 1021. And House Bill 1021 is really going to be important for condo owners. I just mentioned a bill regarding HOA owners and single family homeowners. But for condo owners, House Bill 1021, if passed, is really going to be very important. Because it's going to do a few things that are critical. The first thing is, and if you can believe this, condo boards don't have any obligation whatsoever to sign a certification that they know what they're doing. They have no obligation to take a course and certify that they're going to fairly and equally enforce the rules. This House Bill 1021 will required that if either before or 30 or 60 or 90 days after you get elected, you're going to have to take a certification course and you're going to have to sign a certified requirement that you are going to fairly and equally enforce your community's governing documents. I think it's absolutely
critical. The board members kind of own up to their job and sign their name to what their, what their responsibilities are. I think another critical part of this one, another fascinating one is a part of this same house bill is they're going to change the requirements in website content requirements. So for all the website creator, people that are watching this, be very interested, because currently the law is if you're in a condominium of 150 units or more, you are required by law to have a website so that people can access various information, maybe make their monthly due payment or get more documents that are posted online like board meeting minutes, governing documents and those types of thoughts. But now that's 150 units. There's a lot of condominiums that are less than 150 units in Florida. And for anybody that has any condominium and that's 150 units or less, where do you get documents? How do you get this information? It's not easily accessible. And so what this proposed same bill is going to do is diminish the number from 150 units requiring a website to 25 units per association. So if you have 25 units in a condo or more, which I will tell you is probably now going to be a well past majority of condominiums in Florida, associations would be obligated, statutorily required to have a website and post all the necessary information to make sure that owners are fully informed. And I think this usually will help the little guy because 150 condo units usually are big, robust condos. And smaller condos don't get that attention. I think for condo owners, this Florida legislature I thought I think it's going to give you more transparency that I think you've been desperately needing.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Jeff. You know, as I see it walking away, I mean, looking at this, I love it because you're looking at Florida. And as I sort of extrapolate out, they're empowering the homeowners, they're disarming or they're making attempts to disarm HOAs, bad HOAs. There's an accountability factor. We're moving into putting more teeth to the legislation. And I think this is wonderful stuff for homeowners. I mean, every year, like I said, you keep empowering the homeowner more and more and more. And I really think that's a by -product of Florida seeing really bad HOAs, abusing their power over and over again.

**Homeowner & Podcast Producer, Marty Vasquez
Just the thought of making sure that people on the board have some sort of training and sign a way that they know what they're getting themselves into. imagine how much, how many disputes will be diminished just based on education.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
Correct. Well, it's accountability, but you're also educating. Yeah, right. Because when you step down on a board as a board, you know, as a director or a board member, that is a huge responsibility. That's a huge fiduciary responsibility. There's a lot of requirements. And to start holding these board members accountable. It's not just, you know, you know, sort of club that they're a part of that they don't have to take seriously. Now Florida is saying, no, this is a serious role. You know, we're going to hold you accountable and we're going to arm the homeowners to the extent that you're violating their rights. So Jeff, this has been absolutely phenomenal. Thank you. I appreciate that.

Florida HOA Attorney, Jeff Kominsky, Esq.
Thank you very much. I echo everything you just said. It's just property owners have felt for the long run, lack of transparency, lack of communication, lack of accountability. And I think these bills are definitely a dramatic shifting of the historically uneven balance of power and rights. And they're putting it back into the homeowner's hands. And I really think that there's only better to come as we go forward in the state of Florida. So thank you very much for having me over.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
No, thank you. And thank you for your thought leadership and all you're doing in Florida. Thank you. And Marty, thank you as well for being on the show.

Homeowner & Podcast Producer, Marty Vasquez
I appreciate it.

HOA Lawyer and Podcast Host, Luke Carlson, Esq.
All right. Thank you guys for watching and we'll see you soon.

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