As many of you may be aware, Congress passed the Corporate Transparency Act in January 2021. The intent of this law is to assist in combatting financial crime and fraud. In connection therewith, the law requires “reporting companies” to report specific information about the owners and managers of their companies to the Financial Crimes Enforcement Network (FinCEN). There has been some debate as to whether or not Condominium and Homeowner Associations are governed by this Corporate Transparency Act. The prevailing view in the industry is that unless and until the law is clarified or changed, Condominiums and HOAs are considered “reporting companies” that must submit the required information to FinCEN. This information includes the legal name, address, state of formation and taxpayer identification number(s) for the company; and the legal names, dates of birth, residential addresses and government-issued identification numbers for all of the “beneficial owners” of the entity. The Act defines “beneficial owners” as those individuals who (i) directly or indirectly, exercise substantial control over the company; or (ii) own or control at least 25% of the company’s ownership interests. The Directors and Officers of your Community Association are presumably included under the control aspects of the definition. The reporting date under the Corporate Transparency Act began on January 1, 2024, and any Community Association that was formed prior to that date will have up until January 1, 2025, to file their initial report. Any Community Association that is formed after January 1, 2024, will be required to file their initial report within thirty (30) days of their formation date. Any time there is a change to the “beneficial owners” (e.g., a director resigns, a new director is elected, a director changes her/his address), the association has 30 days to report the change to FinCEN. The penalty for failing to timely submit required reporting information to FinCEN is $500.00 per day, up to $10,000. As such, in 2024, it will be very important for Community Associations (Condominiums and Homeowners Associations) to consult with legal counsel as to their requirements and obligations under the Corporate Transparency Act, in order to meet...

Senate Bill 360 (SB 360) was signed into law by Gov. Ron DeSantis on April 13, 2023, immediately becoming effective upon such signing. The bill is sure to significantly impact construction defect claims in Florida. This is because it drastically reduces the time limit for property owners to file suit against builders and construction professionals for construction defects and imposes a more stringent standard for bringing a claim under the Florida Building Code. Furthermore, the bill shortens the statute of repose for construction defect claims from 10 years to 7 years. Essentially, a statute of repose is the absolute deadline by which a lawsuit can be filed, even if a cause of action hasn’t yet occurred or you don’t know you may have a claim.  The bill not only shortens the length of time from 10 to 7 years, but it also changes the events that may trigger the clock to start and changes it from the last event to occur to the first to occur. Previously, the clock started running on the latest of any of the following events: actual possession by the owner; date of issuance of a certificate of occupancy; date of abandonment of incomplete construction; or the date of completion of termination of the contract between the engineer, architect, or contractor and her/his employer. However, now, the clock begins running on the earliest of any of the following events: the date of issuance of a temporary certificate of occupancy, a certificate of occupancy, or a certificate of completion; or the date of abandonment of incomplete construction. This means the length of time before building owners can be barred from bringing defect claims is shortened significantly. The bill also narrows the scope of statutory civil actions against builders for alleged violations of the Florida Building Code from any violation to a “material” violation. The bill defines a “material” violation as a Florida Building Code violation that exists within a completed building, structure, or facility which may reasonably result, or has resulted, in physical harm to a person or significant damage to the performance of a building or its systems. HB 360 Quick...

House Bill 437 (HB 437), a new law that went into effect on July 1, 2023, should be noted by any person living in a community association and every board member of a community association in Florida. With respect to condos, HB 437 adds Patriot Day to the specified days during which unit owners may display 1 portable, removable flag of the United States or one of its military branches. As for HOAs, homeowners may now display up to 2 flags representing the United States, a US military branch, Florida, a POW-MIA flag, and/or a “first responder flag”; previously, only 1 flag was statutorily permitted. The statute defines a “first responder flag” as recognizing and honoring and of the following: law enforcement officers, firefighters, paramedics, EMTs, correctional officers, 911 public safety telecommunicators, advanced practice registered nurses, licensed practical nurses, registered nurses, statewide urban & rescue program participants, federal law enforcement officers. Finally, HB 437 creates a new section of Chapter 720 providing that a homeowners association may not prohibit owners or their tenants from installing, displaying or storing items that are not visible from the parcel’s frontage or an adjacent parcel. HB 437 Key Factors: HB 437 amends Chapter 718 to provide for Condominium Associations that certain flags may now be flown on Patriot Day (September 11th) in addition to the existing list of holidays for which a Condominium unit owner may fly 1 portable, removable flag.HB 437 further amends Chapter 720 for Homeowners Associations to allow the flying of up to two (2) flags and expands the list of allowable flags to include “First Responder flags”. Why is HB 437 important? For Homeowners Associations, this legislation also creates a new Section of Chapter 720 to allow the installation, display and storage of items in a Homeowner’s rear yard, so long as such items are not visible from the frontage of the parcel or from an adjacent parcel. This would include the ability of a homeowner to store, place or install any items, such as boats, RV’s, and artificial turf, or any other items, so long as they are not visible...

Understanding SB 154 - Condominium and Coop Safety (Surfside Glitch Bill) Effective June 9, 2023, except as otherwise indicated herein This bill was passed in response to the surfside legislation passed last year, namely SB4D. This legislation clarifies many of the open issues and concerns that Associations were faced with after last year’s legislative session. Applies to Condominiums and Cooperatives. Milestone Inspections The legislature clarified that the requirements for the milestone inspections and structural integrity reserve studies apply only to residential Condominiums and Cooperatives, and not commercial Condominiums or Commercial Cooperatives. Note, the residential portion of a mixed use Condominium or mixed use Cooperative is subject to the milestone inspection and structural integrity reserve study requirements. The previous legislation differentiated between Condominiums and Cooperatives that were within three (3) miles of the coastline versus those that were not located within three (3) miles of a coastline. The coastline analysis has now been removed, and all condominium or cooperative buildings that are three (3) or more stories must conduct their milestone inspections within thirty (30) years of the building’s certificate of occupancy (the “30 Year Mark”), unless an earlier inspection (i.e., within twenty-five (25) years of certificate of occupancy) is justified by a local enforcement agency taking into account certain environmental factors, such as proximity to salt water. The legislature expanded who could perform the milestone inspection so that it could be performed by a “team of professionals,” with an engineer or licensed architect acting as the person responsible. The bill authorizes local enforcement agencies to extend the deadline for a building if it can be shown with good cause that the building has entered into a contract with an engineer or architect before the deadline but that the report cannot be reasonably completed prior to then. The bill specifies that the association must notify the membership of the deadline to complete a milestone inspection within 14 days of notice from the local enforcement agency that a milestone inspection is required. The bill further permits the local enforcement agency to accept a report issued by an engineer or architect that inspected the...

An important function of a community association is to oversee essential services that vendors provide for the community such as landscaping, pest control, asphalt paving, and security.  These services require written contracts which should include important terms that protect the association, particularly in the event that the vendor does not perform its side of the bargain or causes damage to a person or property.  As further discussed, it is easier to prevent large costs and legal exposure to an association by sound contract language crafted or approved by an attorney at the start of a relationship with a vendor than to repair the damage that a poorly worded agreement that was simply signed on an association’s behalf without legal review has created. Legal counsel’s assistance with vendor, and other service, contracts can be important.  Contract disputes can be very expensive and time-consuming.  And, such disputes aren’t always incorporated into the association’s annual budget which could put a lot of financial strain on the association and lead to unpopular special assessments.  Also, the association can be stuck with a vendor that is doing a poor job.   Some examples of where an attorney’s advice is important include making sure the vendor is contractually obligated to provide sufficient insurance and that there are well worded indemnification provisions.  There are some nuances in Florida law regarding indemnity and all too often it seems that contracts created by vendors are one-sided and don’t protect the association in the event for example that a third party is injured as a result of the vendor’s services.  Also, contracts created by the vendor may be unclear or unfavorable to the association regarding the vendor’s responsibilities, the timeframe by which the work must be commenced and completed, payment terms, recourse for the vendor’s failure to perform, warranties, under what conditions the agreement can be terminated, and where litigation must be commenced if there is a dispute, to name just some possible provisions where an attorneys’ involvement in contract review can be very important.  I recall an instance where a national vendor puts in its standard contract that any lawsuit...

For many years, under HOA law (Chapter 720, Florida Statutes), there was a requirement that HOAs take nominations from the floor at their annual meeting. This put many people at disadvantage because if there was another nomination process prior to the annual meeting, people could put their name in advance and campaign for votes to the disadvantage of those who would later nominate themselves from the floor.  With condominium associations, as distinct from HOAs, you were not permitted to nominate yourself from the floor as the statute (Chapter 718, Florida Statutes) prohibits floor nominations. However, with HOAs, there was always a requirement to allow such nominations. Several years ago, Chapter 720 was amended to state that if an HOA’s election process took nominations prior to the annual meeting, you would not be required to take nominations from the floor on the date of the meeting (Section 720.306(9)(a)). The statute does not really define what it means by “election process”. Therefore, our interpretation up until recently had been that the board could adopt procedures or rules identifying an election process to take nominations prior to the annual meeting. Recently, some recent arbitration decisions ruled that the HOA’s election process must actually be spelled out in the HOA’s governing documents, such as the bylaws.  Therefore, if you are an HOA, and you wish to be able to have nominations taken prior to the annual meeting so that you are not required to take additional nominations from the floor, you must make sure that your bylaws or your governing documents spell that process out expressly, as opposed to only having board-adopted election procedures.  Since we are entering into the time of the year where many HOA’s are going through their elections, it is our recommendation that you consult with your HOA attorney to make sure that your governing documents and your election materials have a pre-call for candidates. If it is not, we recommend that you amend your documents to confirm that your election process is run in accordance with Chapter 720 and with your HOA documents moving forward. Steven G. Rappaport is a...

It has never been more challenging to be a board member in a condominium or homeowners association than it is at this time. Association board members in this voluntary position are being interacted by Association Members everywhere they go. In the hallway, at the pool, in the elevator, and everywhere else in the community, they’re being asked board questions and association questions by unit owners - possibly whom they’ve never even met. Aside from the usual worrying about maintenance, assessments and other items, we are now dealing with a pandemic as well - a pandemic that has created a plethora of new issues that we weren’t necessarily expecting. Covid-19 has created a situation where owners are spending more time in their homes, which means more time reviewing their property and its structure. Furthermore, homeowners’ association meetings are now often conducted on Zoom. Therefore, people who otherwise may have rarely shown up and been involved are regularly dropping in live from the comfort of their living room. As an Association attorney, I have clients come to me because newly interested owners are challenging them and their board members. They're challenging the appearance of their community. They're challenging the assessments they're paying, and they're challenging their rights, which sometimes have to be taken away for health, safety and welfare purposes. How do board members overcome or live with these challenges? As Association board members, you have to understand now more than ever, that you are board members when you interact at a meeting with other board members. When you’re walking around the halls or when you are at the pool, you are not a board member. You are not conducting board business, therefore you don't have an obligation to respond to these questions. However, I know that is not a great answer, because unit owners expect answers. So,one of the things I instruct our board members to do is to tell any and all unit owners, “That’s a very important concern, please put it in writing, submit it to our property manager, and we'll take it up at the next board meeting.” That...

As a Community Association attorney, one of the unintended benefits that we've seen through COVID is the ability for people to participate in their community associations remotely. Typically, one of the impediments that community associations have historically faced is apathy. There are always those folks who don't show up, therefore you can't get anything done simply due to a lack of participation. However, through COVID, once everything went remote, including association operations, people started to participate more, which allowed for the opportunity for associations to start proposing a number of important things that could realistically get passed. One of the mechanisms we've seen an uptick in is the use electronic voting resolutions to allow people to participate and vote in an electronic fashion. Again, this removes some of the apathy because there's no longer the need to show up at a meeting at a certain time to cast a vote. People can do it at their leisure in advance. Overall, as community association lawyers, we've found that participation as a whole through COVID, and now turning the corner post COVID, has seen a significant uptick and is finally allowing associations to actually get meaningful work done that before this, they just simply were unable to do. Having Trouble Engaging Homeowners in Your Community Association? Check out these helpful tips from community association management giant, GrandManors:   1. Welcome New Homeowners. A welcome package from the community association should include a letter of welcome that you or another HOA board member has signed, information about how they can get involved in the HOA, and a small gift. The gift should have a connection to your community, such as a gift card to a nearby coffee shop, a refrigerator magnet with key community information, or a coffee mug with the HOA logo.   2. Organize Social Events. Consistently, studies have shown most Americans don't know their neighbors. Your homeowners have more motivation to get involved if they're at least acquainted with their neighbors. Your association can foster social connections by hosting at least one community-wide social event each year. Some associations throw a holiday party or a summer picnic....