public official, such as the Ombudsman. The division will be required to defer to the Ombudsman’s findings and direction to initiate suit in circuit court against unit owner members of the board, which may subject it to treble damages under the SLAPP suit provision, particularly where the ombudsman’s findings are based on inadmissible hearsay. It is also uncertain how a SLAPP suit defense will interact with the division’s authority to hold individual board members liable for knowingly and willfully violating the Condominium Act under section 718.501(1)(d)4, F.S.
The bill creates a right to own a companion animal, so it is unknown how this harmonizes with state and federal Fair Housing and disability laws.
The Department of Business and Professional Regulation, in its analysis of the bill, expressed the following comments and concerns:
Section 1 of the bill creates a new division within the department called the Division of Mandated Properties, and adds Homeowners’ Associations to the Division of Florida Land Sales, Condominiums, and Mobile Homes. However, the bill does not provide the new division with any authority, instead placing homeowners’ association regulation within the newly renamed division.
Section 21 has an effective date of April 2007, which is prior to the effective date of the bill. The amendment requires all condominiums to create ownership interests based on the relative size of the unit to the total size of all units, while this may be desirable in condominiums where there are units of different sizes, it is less complicated to base assessments on and equal fractional basis when all units are configured the same, even if the exact size of the units may differ. For example, a developer may create a condominium in which all of the units are two bedrooms, but they are not exactly the same size.
Section 23, amending section 718.110(1), F.S., requires associations to provide a notice of proposed amendments to the declaration of condominium to be provided to unit owners by certified mail, and amendments to section 718.112(2)(a)2., F.S., (Section 25) requiring responses to unit owner inquiries by certified mail may be expensive, and may not be available to contact unit owners who reside outside of the United States. The amendment to section 718.111(13), F.S., prohibiting the waiver of financial reporting requirements is worded in a way that implies the vote may be taken by the board, which conflicts with other language in the same section of the law. This section of the bill also creates section 718.111(15)(a) – (d), FS, addressing reconstruction after casualty, allows termination where the damage to the property exceeds 50% of its worth. The bill does not indicate how the association should determine the “worth” of the condominium. Termination under these circumstances is discretionary (the bill says “may be terminated”), but the bill does not explain how procedurally this exercise of discretion is to occur, except to say that the condominium may be terminated “unless 75% of the owners agree to reconstruction and repair.” Therefore, a number of questions are raised. Can the board itself decide to terminate, or not to repair, when the 50% damage threshold is achieved, subject to any vote of 75% of the owners to rebuild? Is the 75% vote a minimum threshold? Is a vote of the owners required to terminate once 50% is achieved; what vote is required? The intended operation of this new section is obscure and uncertain. The bill further does not explain if the new procedures apply to pre-existing condominiums. This section also requires the association to make assessments against unit owners for the damage to their units, and may use the association’s lien authority to enforce collection. Damage to the unit that is covered by the association’s insurance policy, but not paid due to the deductible, should be assessed as a common expense, and damage to the unit that is covered by the unit owner’s policy should be the responsibility of the unit owner. This amendment also requires the board to gather estimates and effect repairs within 60 days after the casualty. This timeframe is not realistic, currently there are some associations that have not been able to obtain insurance settlements or find contractors to do the repair work from damage incurred over a year ago.
Section 25, amending section 718.112(2)(a), F.S., to delete the association’s ability to adopt reasonable rules and regulations regarding the frequency and timing of responding to written inquiries