On May 31, 2024, Governor DeSantis signed into law House Bill 1203 (effective July 1, 2024) which in this author’s opinion imposes some of the most onerous new laws governing property managers and homeowners’ associations in Florida history. There is another bill on the governor’s desk concerning condominiums, but we will wait until the governor acts on it before providing a summary of that bill’s provisions.
Historically, the Florida legislature has limited its regulation of HOA’s and deferred to each community’s governing documents to describe the effect of covenants, restrictions, elections and operational requirements of Florida’s non-condominium homeowners’ associations. Given the small government and personal freedom rhetoric of Governor DeSantis and many of his fellow Republican lawmakers, many are surprised that, with the stroke of a pen, he would be the governor to make this bill law. Despite Republican majorities in both houses of the legislature, this law was approved by all but two votes in the House and passed unanimously in the Senate!
This article will summarize the more significant changes in the law here with the caveat that one should not rely on this or any other summary, but one should read the text of the bill to read the language of the new and amended laws. Quite often, statutes are written poorly or intentionally ambiguously so that there is room for argument about their meaning and impact. A link to the bill is included at the end of this article.
Community Association Managers
Section 468.4334, Fla. Stat. relates to professional standards for community association managers and firms. The new law requires CAMs and CAM firms to:
- Annually attend at least one member meeting or board meeting of each of their managed associations;
- Provide to community association members certain information, including the contact person, contact information, and the hours of availability;
- Provide owners with a summary of the manager’s duties. The homeowners' association is required to post this information on the association's website or application required under section 720.303(4)(b).
- Provide the community’s members upon request a copy of the contract between the association and the CAM or CAM firm;
- Annually complete at least 10 hours of continuing education; and
- Biennially complete at least five hours of continuing education that pertains to homeowners’ associations, three hours of which must relate to recordkeeping.
HOA Official Records
The law requires homeowners’ associations to:
- Effective January 1, 2025, associations with 100 or more parcels must maintain a digital copy of specified official records for download on the association’s website or through an application on a mobile device. The new law includes a requirement that member meeting notices and agendas must be posted on the homepage at least 14 days in advance or on a separate subpage labeled “Notices.” Any document to be considered and voted on by the members during the meeting or any document listed on the meeting agenda at least 7 days before the meeting at which such document or information within the document will be considered must also be included on the website.
- Provide a copy of records or otherwise make the records available that are subpoenaed by a law enforcement agency within five days of receiving a subpoena.
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Maintain official records for at least seven years unless the governing documents of the association require a longer period of time. Election and owner voting materials are still only required to be kept for at least one year after the date of the election, vote or meeting. There is an apparent internal inconsistency between subsection (4) which provides records must be kept for seven years and subsection (5) which provides that the seven-year requirement applies only “unless otherwise provided by law or the governing documents of the association.”
- The association's website or application must be accessible through the Internet and must contain a subpage, web portal, or other protected electronic location that is inaccessible to the general public and accessible only to parcel owners and employees of the association.
- While previously permissible, the new law makes it mandatory for HOA’s to adopt written rules governing the method or policy by which the official records of the association are to be retained and the time period such records must be retained. Such information must be made available to the parcel owners through the association's website or application.
Directors’ and Managers’ Criminal Exposure
That’s right, folks! Despite that some parcel owners have been known to weaponize official records requests to make busy work for property managers and volunteer directors, the legislature and governor just imposed criminal penalties against directors and managers who knowingly, willfully and repeatedly violate owners’ records inspection requests. The bill provides the following criminal penalties related to homeowners’ associations:
- Second degree misdemeanor for any manager, director or member of the board or association to knowingly, willfully, and repeatedly (two or more within twelve months) violate any specified requirements relating to inspection and copying of official records of an association with the intent of causing harm to the association or one or more of its members;
- First degree misdemeanor for knowingly and intentionally defacing or destroying required accounting records, or knowingly and intentionally failing to create or maintain required accounting records, with the intent of causing harm to the association or one or more of its members;
- Third degree felony to willfully and knowingly refuse to release or otherwise produce association records, with the intent to avoid or escape detection, arrest, trial, or punishment for the commission of a crime, or to assist another person with such avoidance or escape.
The law was also amended to provide that it is a third degree felony for an officer, director, or manager of a homeowner’s association to knowingly solicit, offer to accept, or accept a kickback. A “kickback" means any thing or service of value for which consideration has not been provided for an officer’s, director’s or manager’s benefit or that of his immediate family from providing or proposing to provide goods or services to the association. If the board finds that an officer or director violated the anti-kickback law, the board is required to remove the officer or director for office.
Debit cards in the name of the association are prohibited. If a person uses a (prohibited) debit card issued in the name of the association for any expense which is not a lawful obligation of the association (an obligation that has been properly preapproved by the board and is reflected in the meeting minutes or the written budget), it is construed as theft punishable under criminal statutes.
The law also expands the current criminal prohibitions against fraudulent voting activity to provide it is a first degree misdemeanor for:
- Knowingly aiding, abetting, or advising a person in the commission of a fraudulent voting activity related to association elections.
- Agreeing, conspiring, combining, or confederating with at least one other person to commit a fraudulent voting activity related to association elections.
- Having knowledge of a fraudulent voting activity related to association elections and giving any aid to the offender with intent that the offender avoid or escape detection, arrest, trial, or punishment.
Any officer or director charged with a criminal violation under ch. 720, F.S., must be removed from office and a vacancy declared.
Financial Reporting
The law:
Requires associations with 1,000 or more parcels to have audited financial statements irrespective of the association’s annual revenue; and prohibits associations from reducing the required type of financial statement (compiled, reviewed, or audited financial statements) for consecutive years.
Requirement to Provide Accounting
The new law allows association parcel owners to make a written request for a detailed accounting of any amounts owed to the association. If the association fails to provide the accounting within 15 business days of a written request, any outstanding fines of the requester are waived if the fine is more than 30 days past due and the association did not give prior written notice of the fines. It also prohibits parcel owners from requesting another detailed accounting within 90 days of such a request. Nothing in the new law provides that a failure to timely respond to the request for accounting affects an owner’s obligation to pay assessments.
Education - Officers and Directors
The law revises the education requirements for the directors of homeowners’ associations to:
- Require a newly elected or appointed director to, within 90 days after being elected or appointment to complete an approved course and submit a certificate of having completed the educational course. The certificate is good for up to four years.
- The course curriculum must include training relating to financial literacy and transparency, recordkeeping, levying of fines, and notice and meeting requirements.
- The new law requires a director of an association that has:
Fewer than 2,500 parcels to complete at least four hours of continuing education annually.
Those with 2,500 or more parcels must complete at least eight hours of continuing education annually
Enforcement of Covenants and Rules
The law adds new language to section 720.3035 and requires associations or an architectural, construction improvement, or other similar committee to:
- Reasonably and equitably apply and enforce on all parcel owners the architectural standards and construction improvement standards authorized by the declaration or other published guidelines and standards authorized by the declaration. For those communities without such standards and published guidelines, this language suggests you should consider adopting them.
- Provide written notice to the parcel owner of the rule or covenant relied upon when denying the request for the construction of a structure or other improvement;
- Not place limits on the interior of a structure or require review of HVAC, refrigeration, heating, or ventilating system not visible from a parcel’s frontage, an adjacent parcel, common area, or community golf course, if a substantially similar system has been previously approved; and
- Not prevent a homeowner from installing or displaying vegetable gardens and clotheslines in areas not visible from the frontage or an adjacent parcel, an adjacent common area, or a community golf course.
The law also amends section 720.3045 by providing that associations may not restrict owners or their tenants from storing items on their parcel which are not visible from the parcel’s frontage, an adjacent parcel, an adjacent common area or a community golf course, including without limitation, artificial turf, boats, flags, vegetable gardens, clotheslines and recreational vehicles.
Fines, Suspensions, and Liens
As if the fining procedures were not cumbersome and complicated enough, the new law provides that associations must have a hearing before a committee to review a fine or suspension issued by the board, and the law:
- Requires the 14-day notice of the parcel owner’s right to a hearing to be in writing;
- Requires the hearing to be held within 90 days of the notice of hearing;
- Allows the committee to hold the hearing by telephone or other electronic means;
- Requires written findings related to the violation to be provided within seven days of the hearing, the date the fine must be paid or the suspension fulfilled;
- Requires the date by which the fine must be paid to be at least 30 days after delivery of the written notice of the committee’s decision; or
- Prohibits attorney fees and costs based on actions taken by the board before the date set for the fine to be paid;
- Allows that, if a violation and the proposed fine or suspension is not cured or the fine is not paid, reasonable attorney fees and costs may be awarded to the association, but may not begin to accrue until after the payment date of the fine or the appeal time has expired.
The law prohibits homeowners’ associations from issuing a fine or suspension for:
- Leaving garbage receptacles at the curb or end of the driveway less than 24 hours before or after the designated garbage collection day or time.
- Leaving holiday decorations or lights up longer than indicated in the governing documents, unless such decorations or lights are left up for longer than one week after the association provides written notice of the violation to the parcel owner.
The law also provides in section 720.3075 that homeowners’ associations may not prohibit a homeowner or others from parking:
- A personal vehicle, including a pickup truck, in the property owner’s driveway or in any other area where they have a right to park.
- A work vehicle, which is not a commercial motor vehicle (as defined by section 320.01(25), in the property owner’s driveway.
- Their assigned first responder vehicle on public roads or rights-of-way within the homeowners’ association.
In addition, the law provides that the association’s governing documents may not prohibit a property owner from:
- Inviting, hiring, or allowing entry to a contractor or worker on the owner’s parcel solely because the contractor or worker is not on a preferred vendor list of the homeowners’ association or does not have a professional or occupational license.
- Operating a vehicle in conformance with state traffic laws, on public roads or rights-of-way or the property owner’s parcel, unless the vehicle is a commercial motor vehicle (as defined by section 320.01(25).
Electronic Voting
The law now allows members of a homeowners’ association to consent to electronic voting by using an electronic means of consent. The current law states consent must be in “writing” so whether an email was a sufficient writing is no longer an issue.
There are sure to be questions about the impact (and even applicability) of the new laws and amendments. Readers should contact their association's attorney to discuss the impact and applicability of the laws to your community.
