2021 Legislative Updates - The Homeowners Association Act
Several news laws went into effect July 1, 2021 regarding homeowner associations (HOA) in Florida.
Section 720.301 (8)After much confusion over the term "governing documents" and the inclusion a couple of years ago to include "Rules and Regulations" as a governing document, which requires recording such document in the public records, Fla. Stat. 720.301 (8) was revised to remove Rules and Regulations from the list of governing documents. In my humble opinion this does not help homeowners or the HOAs but only serves to save the HOA a few dollars in the short term. If the Rules and Regulations are recorded in the public records the homeowners at least have constructive notice they exist and savvy homeowners can find them, know them and comply with them. Unrecorded Rules and Regulations, in my opinion, cause more grief for everyone because new owners are probably not aware of them. A common complaint I hear from the homeowner side of this industry is they could not locate a copy of them or no one would provide them a copy.
Section 720.303 (2)This section authorizes an additional means for HOAs to provide meeting notice to homeowners by authorizing posting the notices on the association's website or an application that can be downloaded on a mobile device (think NextDoor, WhatsApp and other community applications). Posting notices in the conspicuous places in the community are still required.
Section 720.303 (4)This section requires election materials, including electronic election materials, to be kept at least one year.
Section 720.303 (5)This section exempts from disclosure any information regarding guests visiting owners or residents in a gated community.
Section 720.303 (6)(c)(1)Provides if the budget of the association does not provide for reserves under paragraph (d) of this sub-section, and the governing documents do not require the developer to establish reserves, and the association could require a special assessment for repairs and maintenance of capital improvements that are not fully funded then each financial report for the preceding fiscal year must state in conspicuous type:
THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR FULLY FUNDED
RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND DEFERRED
MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS REGARDING
THOSE ITEMS. OWNERS MAY ELECT TO PROVIDE FOR FULLY FUNDED
RESERVE ACCOUNTS UNDER SECTION 720.303(6), FLORIDA
STATUTES, UPON OBTAINING THE APPROVAL OF A MAJORITY OF THE TOTAL
VOTING INTERESTS OF THE ASSOCIATION BY VOTE OF THE MEMBERS AT A
MEETING OR BY WRITTEN CONSENT.
Section 720.303 (6)(c)(2)Provides if reserves are included in the budget but were not established under paragraph (d), the financial report for the preceding fiscal year must state:
THE BUDGET OF THE ASSOCIATION PROVIDES FOR LIMITED VOLUNTARY
DEFERRED EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES
AND DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED
IN OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED
TO PROVIDE FOR RESERVE ACCOUNTS UNDER SECTION
720.303(6), FLORIDA STATUTES, THESE FUNDS ARE NOT SUBJECT TO THE
RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN THAT STATUTE, NOR
ARE RESERVES CALCULATED IN ACCORDANCE WITH THAT STATUTE.
Section 720.3085 (3)(d)Now provides an association may not require payment of attorney fees related to a past due assessment without first delivering a written notice of late assessment to the parcel owner which specifies the amount owed the association and provides the parcel owner an opportunity to pay the amount owed without the assessment of attorney fees. The notice of late assessment must be sent by first-class United States mail to the owner at his or her last address as reflected in the association’s records and, if such address is not the parcel address, must also be sent by first-class United States mail to the parcel address. Notice is deemed to have been delivered upon mailing as required by this paragraph. A rebuttable presumption that an association mailed a notice in accordance with this paragraph is established if a board member, officer, or agent of the association, or a licensed manager provides a sworn affidavit attesting to such mailing.
The notice must be in substantially the following form:
NOTICE OF LATE ASSESSMENT
RE: Parcel of (name of association)
The following amounts are currently due on your account to (name of association) , and must be paid within 30 days after the date of this letter. This letter shall serve as the association’s notice to proceed with further collection action against your property no sooner than 30 days after the date of this letter, unless you pay in full the amounts set forth below:
Maintenance due (dates) $ .
Late fee, if applicable $ .
Interest through (dates) * $ .
TOTAL OUTSTANDING $ .
*Interest accrues at the rate of percent per annum.