Southwest Florida Attorneys Amanda Barritt and Shannon Puopolo of Henderson Franklin provided a spring legislative update and practical information for Community Associations on such issues as gate security, homeowner bankruptcy, collections, new electronic voting rules and pet accommodations (Note that the Proposed Legislation did not pass)

1. WELCOME
WE’RE GLAD YOU’RE HERE
HOT TOPICS &
LEGISLATIVE UPDATE
IN COMMUNITY
ASSOCIATION LAW
.
Amanda K. Barritt, Esq. Shannon M. Puopolo, Esq.

2. HOT TOPICS & LEGISLATIVE UPDATE
•Recent Changes in Association Law
•Proposed Changes in Association Law
•Unique Issues for Associations
•New Electronic Voting Rules
•Associations’ Rights Following Bankruptcy of a Homeowner
•Support Animals
•Collection Issues/Bank Foreclosures
•Gate “Security”

3. RECENT CHANGES IN ASSOCIATION LAW
HB 791, Ch. 2015-97, Laws of Florida; HB 643, Ch. 2015-175, Laws of Florida
Effective July 1, 2015
I. Insurance (Condominiums)
II. Fines (Condos, Coops and HOAs)
III. Suspension of Voting Rights (Condos and HOAs)
IV. Official Records (Condos and Coops)(already in HOA)
V. Application of Payment (Condo and Coop)(already in HOA)

4. RECENT CHANGES IN ASSOCIATION LAW
VI. Homeowners' Association Act
VII. HOA Amendments
VIII. HOA Elections/Delinquencies (already in Condo and Coop)
IX. Use of Technology
 Proxies (Non-profit corporations)
 Electronic Notices (Condo, Coop, HOA)
 Electronic Voting (Condo, Coop, HOA)…
X. Condominium Terminations
XI. Property Taxes/Common Elements

5. RECENT CHANGES IN ASSOCIATION LAW
CAM Activities/ Unlicensed Practice of Law
Supreme Court of FL adopted Proposed Advisory Opinion of the Standing Committee on
Unlicensed Practice of Law regarding activities of community association managers
Activities that DO NOT constitute UPL:
Preparation of Certificates of Assessments
Modifications of Limited Proxy forms for ministerial matters
Determination of votes needed to establish a quorum which do not require
interpretation of statutes or governing documents
Preparation of pre-arbitration demand letter
Searching public records to identify property owners

6. RECENT CHANGES IN ASSOCIATION LAW
CAM Activities/ Unlicensed Practice of Law
Supreme Court of FL adopted Proposed Advisory Opinion of the Standing Committee
on Unlicensed Practice of Law regarding activities of Community Association Managers
Activities that DO constitute UPL:
Drafting documents which determine substantive legal rights
Preparation of Construction Lien documents
Preparation of Contracts
Any activity that requires statutory or case law analysis

7. PROPOSED CHANGES IN ASSOCIATION LAW

8. HB 667 A/K/A THE “COMMON INTEREST
COMMUNITIES ACT”
 Seeks to combine HOA statutes (720), condominium statutes (718) and
cooperative statutes (719) into one body of law entitled the “Common
Interest Communities Act.”
 Repeals sections 719 & 720.

9. HB 665 A/K/A “AN ACT RELATING TO COMMUNITY
ASSOCIATION MANAGERS”
 Seeks to place stricter licensing requirements and disciplinary proceedings on
property managers and property management companies.
 Specifies that management firms applying for licensure must be registered
with the Secretary of State.
 Community associate manager licenses shall expire on September 30th of
even numbered years and must be renewed every 2 years. An application
for renewal shall be accompanied by the renewal of license fee as required
by 468.435(10(d). Management firm licenses shall expire on September
30th of odd years.

10. HB 665 A/K/A “AN ACT RELATING TO COMMUNITY
ASSOCIATION MANAGERS” CONT…
 Licensure by Examination: licensure will now require knowledge of federal
laws, in addition to state laws, relating to the operation of all types of
community associations, corporations and nonprofit corporations. The
proposed law also includes more areas of law that will be covered,
including:
 the number of days required for statutory notices;
 procedures for collections prior to filing a civil action;
 drafting pre-arbitration demands;
 determining the votes necessary for certain actions;
 completing forms;
 drafting proxy voting questions; and
 drafting amendments to governing documents.

11. HB 665 CONT…
 Continuing education: 20 hours of biennial continuing education is required
instead of 10 annual hours.
 “A COMMUNITY ASSOCIATION MANAGER IS LIABLE FOR DAMAGES
INCURRED FROM OFFERING INCORRECT ADVICE.”

12. HB 1357/SB1716: REVISES CURRENT LAWS
PERTAINING TO CONDOS AND HOAS
 Retention of documents
 Requires condos to retain copies of plans, permits and warranties related to improvements,
bids for services, financial information, and physical copies of governing documents,
available for inspection.
 Requires HOAs to retain documents and items provided by the developer, a certified copy
of the articles of incorporation, audits and reviews, ballots, sign-in sheets, voting proxies,
and other voting documents for one year.
 Maintaining a website
 A condo with 500 or more units or HOA with 7,500 or more parcels must maintain an
association website, which includes links to official records, annual budget and financial
reports, lists of all contracts and transactions, notices of board meetings and agendas no
later than 14 days in advance of the meeting. Protected information must be redacted
before being posted to the website.
 An association with fewer members “may” provide the listed documents on its website but is
not required to do so.

13. HB 1357/SB1716 (CONT…)
 Conflict of interest
 Transaction must be approved by 2/3 vote of directors at the meeting, and disclosed to
the members, which can be cancelled by a majority vote of the members present at the
meeting.
 A rebuttable presumption of a conflict exists if (1) the director of relative of a director
enters into a contract for goods or services with the association; (2) the director holds an
interest in a business that enters into such contract; or (3) the business otherwise influences
the decisions made by the director.
 If a director proposes to engage in activity that is a conflict of interest with the association,
the activity must be placed on a meeting agenda and submitted to the board for vote. If
the board votes against it, the director must either refrain from the activity or resign from
the board. If the board determines a director violated the conflict of interest provisions, it
must immediately remove the director from the board.
 The board must provide notice at least 7 days in advance of any meeting on possible
conflict of interest or related transactions.

14. HB 1357/SB1716: REVISES CURRENT LAWS
RELATING TO CONDOS AND HOAS- CONT.
 HOA Fines and Suspensions
 Currently, Florida law authorizes HOAs to levy fines and suspend rights of
a member to use certain common areas for failure to comply with
governing documents. The HOA must provide the member with notice and
a hearing. The current law does not limit the type of conduct that can be
governed.
 The proposed bill prohibits HOAs from enforcing, or including requirements
in the governing documents, regarding compliance with traffic laws and
state and federal criminal laws or from levying fines or suspending common
area rights due to violations of such laws.

15. HB 1357/SB1716: REVISES CURRENT LAWS
RELATING TO CONDOS AND HOAS- CONT.
 Past Due Assessments and Liens
 Prohibits third parties from taking legal action to collect unpaid assessments unless the
association has adopted and follows a written collection policy governing the collection of
unpaid assessments.
 Requires the association to send a notice of delinquency at least 30 days before
transferring to a third party for collections (including a law firm) or placing a lien on the
property. The notice must include (1) the total amount due; (2) payment plan options; (3)
the name and contact information to verify the amount past due; and (4) notice that failure
to cure within 30 days may result in legal action.
 Must make a good faith effort to set up a payment plan providing a period of at least 6
months to cure the arrearage.
 Lien foreclosure may be pursued if: (1) the balance is equal to 6 months of common
expense assessments; and (2) the board has voted in a recorded vote to authorize the
action.

16. HB 1357/SB1716: REVISES CURRENT LAWS
RELATING TO CONDOS AND HOAS- CONT.
Rental limitations
 An association cannot create a deed restriction, declaration or similar
binding agreement that prohibits a homeowner from renting his/her home,
alter the duration of a rental term, limit the number of times a homeowner
may rent his/her home during a specified period, or limit the number of
occupants in a home, without consent of the current homeowner.

17. UNIQUE ISSUES FOR ASSOCIATIONS
Electronic Voting
 Florida Statutes 718.128, 719.129, 720.317
 FAC Rules 61B-23.0021, 61B-23.00211 (Condos), & FAC Rule 61B-75.0050
(Coops)

18. ELECTRONIC VOTING
Elections and other votes may be conducted through an internet-based online
voting system IF:
1. Owner consents in writing to online voting
2. Association must provide each owner with:
a. Method to authenticate owner's identity to the online voting system
b. For Board elections (Condo), method to transmit electronic ballot that
ensures secrecy and integrity
c. (HOA) Method consistent with election and voting procedures of the
Bylaws
d. Method to confirm at least 14 days before voting deadline that owners
electronic device can successfully communicate with the online voting
system

19. ELECTRONIC VOTING
The System must:
1. Be able to authenticate the owner's identity
2. Authenticate the validity of each electronic vote to ensure the vote is not
altered during transit
3. Transmit a receipt to each owner who casts an electronic vote
Condos- Receipt must include:
Specific vote cast
Date and time of submission
User identification
4. For elections, must ensure secrecy if required

20. ELECTRONIC VOTING
The System must:
5. Store electronic votes accessible to election officials for recount,
inspection and review purposes
 Condominium Associations must keep all ballots, sign-in sheets, voting
proxies and all other papers relating to voting by unit owners for 1 year
from the date of the election, vote or meeting
 (Condo) Electronic system must produce an official record that the
Association must maintain which identifies:
 Specific votes cast on each ballot
 Date and time of receipt of the electronically submitted ballot
 HOA- no limitation so falls within the 7 year requirement

21. ELECTRONIC VOTING
Online voting must be authorized by a Board Resolution providing:
 All owners to receive notice of opportunity to vote through online voting system
 Condo-Notice of opportunity to vote online must be included in notice of meeting
requiring the vote
Note- 14 day verification requirement, so may need to send notices out early
 Must establish reasonable procedures and deadlines for owners to consent and
opt out in writing
 Board meeting where Resolution is considered must be mailed, delivered or
electronically transmitted and posted conspicuously on the property at least 14
days before the meeting
 Owners' consent is valid until they opt out

22. ASSOCIATIONS’ RIGHTS FOLLOWING
BANKRUPTCY OF A HOMEOWNER
 Pre-petition vs. post-petition assessments
 Pre-petition assessments should be included in a proof of claim.
Payments may be disbursed by the Trustee for these amounts, and
collection efforts for pre-petition assessments should cease against the
Debtor.
 Debtor remains liable for post-petition assessments until title is
transferred. However, Debtor is relieved of any personal liability that
arose pre-petition once discharge issues. But, assessments will continue
to accrue after the bankruptcy is filed, and the discharge will not
relieve the Debtor of post-petition liabilities.

23. ASSOCIATIONS’ RIGHTS FOLLOWING
BANKRUPTCY OF A HOMEOWNER
(CONT…)
 Filing a Claim of Lien
 Filing claim of lien is crucial to maintaining lien priority in bankruptcy. Even
if declaration gave clear notice that HOA’s lien for assessments would
relate back to filing of declaration, association first had to record a claim
of lien before having priority over competing mortgage. See In re Jimenez,
472 B.R. 106 (M.D. Fla. Bankr. 2012). If HOA fails to record a claim of lien,
it may be placed behind the first mortgage, will be wholly unsecured, and
will be stripped. See In re Buckner, 2013 WL 221993 (M.D. Fla. Bankr.
January 17, 2013).

24. COLLECTION ISSUES/BANK FORECLOSURES
 APPLICATION OF SAFE HARBOR PROVISION
An association sought 100% of past due assessments from third party
purchaser at foreclosure sale. Declaration stated that subsequent owners
will not be liable for payment of assessments owed by prior owner.
Purchaser paid under protest and later sued association. Court held the
association must amend its declaration to specifically adopt §720.3085.
The court reasoned the statute was not required to be adopted by
associations, and should not be applied to supersede express terms of a
declaration.
Pudlit 2 Joint Venture v. Westwood Homeowners Association, Inc., 169
So.3d 145 (Fla. 4th DCA 2015).

25. COLLECTION ISSUES/BANK FORECLOSURES (CONT…)
ATTORNEYS’ FEES AND COSTS
§718.116(1)(b) states:
The liability of a first mortgagee or its successor or assignees who acquire title
to a unit by foreclosure or by deed in lieu of foreclosure for the unpaid
assessments that became due before the mortgagee's acquisition of title is
limited to the lesser of:
a. The unit's unpaid common expenses and regular periodic assessments which
accrued or came due during the 12 months immediately preceding the
acquisition of title and for which payment in full has not been received by the
association; or
b. One percent of the original mortgage debt.

26. UNITED STATES V. FOREST HILL GARDENS EAST
CONDOMINIUM ASSOCIATION, INC., 990 F. SUPP. 2D
1344 (S.D. FLA. 2014).
Court held that first mortgagees are only liable for unpaid assessments, and
may not be charged for interest, late fees, collection costs, and attorney fees.
The court reasoned that interest, late fees, collection costs, and attorneys’ fees
that unit owners owed to the association before the first mortgagees took title
were not “common expenses”, nor “regular periodic assessments”, for which
first mortgagees were liable.

27. SUPPORT ANIMALS
Fair Housing Act provides it is illegal to discriminate based on handicap
Federal and Florida law say
 Handicap- A physical or mental impairment which substantially limits one or more of
a person's major life activities,
 A record of having such impairment, or
 Being regarded as having such an impairment
 Florida also defines developmental disability

28. SUPPORT ANIMALS
Major life activities:
 Caring for oneself
 Performing manual tasks
 Sleeping
 Concentrating
 Walking, seeing, hearing, speaking, breathing, learning, working

29. SUPPORT ANIMALS
Be careful in enforcing pet restrictions when a support animal accommodation is
requested by an owner
Could lead to discrimination suit and/or complaint w/ HUD
 Personal liability of directors is possible
 Insurance may not step in in discrimination cases

30. SUPPORT ANIMALS
Request for accommodation can be written or verbal
 Association must investigate and act reasonably quickly
 Not entitled to medical records- Restrictions on when and what
documents
 May request additional information if documentation provided
doesn't establish a disability
 Letter does not necessarily have to be from a doctor
FHA -Animal does not have to be trained
Can be virtually any type of animal

31. SUPPORT ANIMALS
Association cannot
 Limit the size, weight, or breed of the animal
 Restrict where the animal may go (may need to balance competing disability claim,
allergies or phobias, such as designating use of certain stairs or elevators- make
sure to document the reasons)
Association may place some reasonable conditions on the approval, such as:
 Prohibit nuisance such as barking
 Require vaccination records
 Cleaning up after animal or animals to be leashed outside unless disability does not
make this possible

32. SUPPORT ANIMALS
Don't just deny accommodation requests:
 Be Interactive and establish policies ahead of time for handling accommodation
requests
HUD has stated an assistance animal is not a pet, so if you have a # of pets
restriction, you may have to allow the support animal in addition to other
"pets".

33. GATE “SECURITY”
 Uptick in Negligent Cases for Gated Communities
 Owners take security for granted. Criminals take
advantage.
 Associations are the “deep pockets”.

34. GATE “SECURITY”
 Document, provide evidence, reduce potential liability by:
 Regular notices (letters, newsletters, announcements at meetings, mailings,
email blasts, etc) to owners that:
1. Gate provides access control/deterrent only
2. Gate is not intended for security purposes (check governing documents to determine if
any language otherwise could be relied on)
3. Refer to "guards" as "Access Control Personnel"
4. Remind owners and occupants it is the personal responsibility of themselves, guests,
tenants, employees, to use reasonable security/safety measures to protect themselves
from crimes:
 Lock doors
 Install alarms
 Adequate lighting/motion sensors

35. GATE “SECURITY”
 Keep copies of such notices with date and time sent, or in minutes
 Distribute the reminders as suggested above, NOT on signs or public
displays so as not to alert the criminals
 Ask landlords of rentals to post such warnings inside the home