Before you know it, The Florida Legislature will be in session.
In terms of legislation for condominiums and homeowner
associations, 2019 was a complete bust. There wasnít a single
change to Florida Statute 718 or 720.
For reasons beyond my comprehension, there are differences
between these two statutes that simply defy common sense that
need to be reconciled. For example:
Under the condominium statute, the condominium must post an
agenda of what is to be discussed at a board meeting. In an HOA,
no agenda is required to be posted.
The Right to Speak:
The condominium statute simply says unit owners have a right to
speak at the board meeting. The HOA statute says: The
association may adopt written reasonable rules expanding the
right of members to speak and governing the frequency, duration,
and other manner of member statements, which rules must be
consistent with this paragraph and may include a sign-up sheet
for members wishing to speak.
The HOA statute says: Minutes of all meetings of the members of
an association and of the board of directors of an association
must be maintained in written form or in another form that can
be converted into written form within a reasonable time. The
condo statute simply requires maintaining a book of minutes.
Neither statute spells out what the minutes should or must
Access to Records:
In a condo, an owner denied access to records can file an
arbitration action. In an HOA, the owner must first go to
pre-suit mediation. HOA members may be required to pay costs
for personnel to retrieve the records.
In a condo, the statute requires that the budget include fully
funded reserves which can be voted down by the owners. In an
HOA the budget may include reserves.
Voting for Board Members:
The condo statute has a very detailed set of requirements for
the annual election that works well. The first notice to be
sent 60 days before the election. Notices of Intent to Run must
be filed by the owners who want to run. The condo must send out
a second mailing with ballots and envelopes. The statute and
administrative code detail how the votes are counted and the
procedures at the annual meeting. The HOA statute simply says:
Elections of directors must be conducted in accordance with the
procedures set forth in the governing documents of the
Allowed in HOA elections Ė not allowed in condo elections.
The HOA statute says: Before commencing litigation against any
party in the name of the association involving amounts in
controversy in excess of $100,000, the association must obtain
the affirmative approval of a majority of the voting interests
at a meeting of the membership at which a quorum has been
attained. There is no such requirement in the condo statute.
I can keep going, but you get the point. While there are
certainly some differences between living in a condominium and
living in an HOA, in general, and typically, owners in a
condominium are sharing common elements while they live in a
vertical structure, whereas in an HOA owners are sharing common
elements while they live horizontally to each other in single
family homes. In both communities it is a bunch of people who
are living in the same community sharing expenses and who are
owed a fiduciary duty by the members of their board.
If thatís the only difference, then why such differences in the
law? Itís time for the statutes to mirror each other where it
is possible and where it makes sense to do so. I would hope
this is the year we accomplish this.
Iíll leave it to Jan to talk about the biggest difference
between condos and HOAs --- and thatís the fact that condos are
regulated by the DBPR while HOAs arenít. One group pays the
state and the other doesnít.
Any other differences you would like to see changed?