days of notification of the violation. Also, if there are repeat violations it doesn’t make sense to continue to send the board members to mandatory training that they have already attended. The amendment to section 718.501(2)(e), F.S., requires one-fifth of all fees deposited to the division trust fund be transferred to the Ombudsman’s office. This should have stated that it only applied to condominium fees as the Ombudsman does not perform any functions for the other areas that the division regulates. Amendments to section 718.5012, F.S., regarding the Ombudsman’s authority to issue orders for violations of the chapter and create a duplication or conflict with the Division’s authority to issue orders. At this time, the sole authority for enforcement of the Condominium Act is the division. It is unclear if the cease and desist orders issued by the Ombudsman are subject to the due process procedures in Chapter 120, FS, or immediately appealable to the circuit court.
Section 51, amending section 720.301(4), F.S., contains substantive restrictions on amendments to the declaration of covenants within the definition of that term. This may be confusing as to whether this is part of the definition, and the restrictions will adversely affect developers, who typically reserve the right to amend the documents through turnover. The amendments to section 720.301(9), F.S., change the definition of a homeowners’ association to exclude those associations in which the parcel owners are represented by an agent, typically a board member from a sub-association. It is unclear if this is the intent of the amendment.
Section 52, amending section 720.302(2), references the “ombudsman” but does not have a provision creating the ombudsman’s office or her authority in the chapter.
Section 53, amending section 720.303(1)(c), grants powers under the act but omits to include corporate powers under chapter 617. Compare to section 718.111(2), Florida Statutes. The provisions amending section 720.303(4)(i) to prohibit a contract from maintaining property not owned by the association needs to be harmonized with the amendments to 720.303(6) requiring the association to budget for association charges related to recreational amenities owned by others.
Section 54, amending section 720.304, references “common elements,” with is a term of art applying to condominiums and may create confusion with “common areas,” which is a term of art relating to homeowner associations defined in section 720.301(2).
Section 57, amending section 720.306, repealing “quorum” requirements may result in association’s relying on general corporate law quorum requirements. It is unknown if this is to be retroactively applied to existing bylaws and whether, if so, an impairment of contract rights issue might be raised.
Section 57, amending section 720.306(9), incorporates the present election procedures in 718.112(2), but not the amendments being made to the condominium procedures by this bill. Compare page 145 with page 187. Under the condominium procedure, an association may no longer use both sides of the paper for candidate sheets, but homeowner associations will be permitted to under this bill. Adopting the condominium election requirements for homeowners associations will substantially change existing procedures and increase costs substantially for some associations.
Section 55 of the bill repeals the association’s authority to impose a fine under section 720.305(2), but section 57 of the bill imposes a fine against a unit owner for allowing another person to cast his or her vote under section 720.306(9). Compare page 178 with page 188.
Section 57, amending section 720.306(9), authorizing the division to appoint election monitors to conduct board elections raises questions of conflict of interests under section 63 of the bill, authorizing the division to investigate complaints of violations of the act. If a complaint is received about an election conducted by the division, the division would have a conflict of interest. Compare page 189 with page 202-205.
Section 58, amending section 720.307(5), applying developer transfer of association control to all “existing” associations, but not all those that will be “created” may cause doubt as to its applicability.