from owners. Without limitations imposed in the statute itself or without the ability of an association to pass reasonable rules and regulations, it will be possible for an owner to send an unlimited number of inquiries and the association shall be obligated to substantively respond to each one. The amendment to section 718.112(2)(d), F.S., to repeal the election procedures opt will impose greater costs on those associations that opt out of the procedure, which will result in an increase in assessments.1 The amendment to section 718.112(2)(f)2., F.S., requires associations to include a reserve for structural repairs in the budget. It is unclear what should be included in this category, which appears to require a reserve for every component of structures. The amendment to section 718.113(1), F.S., providing that the cost of maintenance of limited common elements cannot be a common expense and must be shared by those entitled to use the limited common elements creates a situation in which an association may assess common expenses based on the size of the unit, and assess the limited common element maintenance costs equally between all of the units. This does not make sense when all of the units have the same type of limited common element, and may encourage developers to draft documents with more limited common elements in order to assess the units on amore equal basis. For example, the documents could be drafted to make the building a limited common element in order to assess the cost of building maintenance equally.
The amendment to the recall provisions raises due process concerns for unit owners and board members alike, the time lines surrounding the determinations are unrealistic. Also, this bill raises an issue in that authorizing the Ombudsman to make determinations on recalling board members arguably subjects the decision to being classified as final agency action subject to review by the DCA.
Sections 26 and 54 of the bill engrafting First Amendment rights into a private association’s rules on the use of the common elements may have unintended consequences. For example, many associations restrict the placement of For Sale signs, designate pet walk areas, prohibit religious displays or meetings, and impose hours of operation for recreational facilities. Competing interests of owners who wish to use the common elements may lead to conflicts over who gets to use the common elements for what purpose, for how long, and embroil the association in litigation over competing First Amendment rights. See Neuman v. Grandview at Emerald Hills, Inc., 861 So. 2d 494 (Fla. 4th DCA 2003).
Defining what is a “mandated” religious display would assist in the application of this section. For example, is a Santa Claus display permitted under this language? Is an Easter Bunny permitted? Is a wreath permitted?
The amendments to section 718.113, F.S., require associations to engage an architect or engineer every five years for the purpose of determining if the building is structurally and electrically safe. It is unclear if the benefit of this requirement outweighs the cost involved.
Section 28, creating section 718.1123, requiring the division to immediately investigate complaints of abuse by elderly persons appears to require the division to take civil and criminal actions that are under the jurisdiction of other agencies. The reference to rights and protections under applicable state and federal laws is very broad and does not provide the needed guidance for the division in cases of jurisdiction provided by these laws to other agencies or private enforcement. See fiscal and work load analysis above.
Section 35, amending section 718.501(1)(e), F.S., conflicts with section 718.504, F.S., which provides that the developer of “more than 20 residential units, shall prepare a prospectus.” The change requires the division to prepare the prospectus, and includes all condominiums whether 2-unit or 200-unit. It also requires the division to disseminate the prospectus, but to whom and how is not discussed. This would add an unknowable cost burden to the division. The amendments creating section 718.501(1)(n), F.S., will likely reduce the number of unit owners who desire to be candidates for the board as any violation, intentional or not, will required the board member to attend training within 90
1 In contrast to this comment, another opinion would maintain that these costs are confined to copying costs, and would better be described as minimal or insignificant; consequently, an additional assessment would not result.