Legislative Update: 2021 Laws and How They Will Impact Your Community
2021 Legislative Alert
FirstService Residential collaborated closely with Governor DeSantis' office, legislators, legislative staff, regulators and with various industry stakeholders to impact important legislative matters throughout the session– tending to several bills and proposals impacting Florida’s community associations and those who live and work in them.
Following are the main bills the Florida legislature addressed this session:
COVID LIABILITYWhen the coronavirus pandemic broke last spring, FirstService Residential realized the need to establish emergency powers and setting liability limits for condominiums and community associations. Governor DeSantis quickly organized a task force to deal with the economic fallout of the pandemic.
On March 29, 2021, Governor Ron DeSantis signed Senate Bill 72, the COVID-19 Liability Bill, that shields Florida businesses from lawsuits claiming COVID-19 injuries or damages.
Based on a legislative finding that a “strong and vibrant economy” is essential to ensuring Floridians can continue to work, the law sets heightened pleading requirements, provides immunity for businesses and non-profit corporations, such as community associations, who took good faith preventive efforts, and places a one-year statute of limitations on these lawsuits. The law became effective immediately.
The new law requires a complaint that asserts a COVID-19 claim for damages, injury or death to be pled with particularity and include an affidavit signed by an active physician, attesting that, within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant’s actions or omissions. Should the plaintiff fail to comply with either requirement, the court must dismiss the lawsuit.
In addition, the law requires the court to determine whether the defendant (community association, manager, vendor, etc.) made a good faith effort to comply with government-issued health standards or guidelines. The plaintiff bears the burden of demonstrating the defendant failed to exercise good faith efforts. A defendant found to have made such good faith efforts would be immune from civil liability. However, even if a defendant failed to exercise such efforts, the plaintiff must still prove, by clear and convincing evidence, that the defendant acted with gross negligence.
Finally, the new law contains a one-year statute of limitations for COVID-19 related lawsuits, and it applies retroactively. Thus, for causes of action that accrued before the law’s effective date of March 29, 2021, the statute of limitations would begin to run on the effective date.
As enacted, the law provides legal protections for a broad range of individuals and entities, including businesses, charities, community associations and educational and religious institutions.
COMMUNITY ASSOCIATION PACKAGE (including expansion of emergency powers) passed the legislature, and the governor is expected to sign it into law, effective July 1, 2021.
COMMUNITY ASSOCIATION PACKAGE
Senate Bill 630, a collaboration between FirstService Residential, Community Associations Institute, the Real Property Section of the Florida Bar, Florida Association of Realtors, Florida Homebuilders Association, the Florida Association of Insurance Agents and others, passed the Florida Legislature.
This bill deals with everything from allowing condominiums to use the same non-binding arbitration process for dispute resolution that HOAs currently use, to clarifying that board member term limits are prospective, to increasing the amount that can be charged for a transfer fee from $100 to $150. This bill also says that associations’ emergency powers extend to a health emergency, not just a natural emergency (such as a hurricane) as has previously been the case. This essentially codifies into law the emergency action that FirstService worked on with Florida’s Division of Business and Professional Regulation (DBPR) last spring, allowing associations to conduct business virtually, adopt rules pertaining to access, etc.
INSURANCEOne of the issues having the most impact on associations throughout Florida is skyrocketing insurance rates or lack of availability of coverage altogether. Many carriers are no longer offering commercial residential coverage or have left the Florida market altogether. While the legislature is limited to what it can do to a global market facing a significant increase in perils, there are targeted things it can do to curtail fraud and abuse in the system.
FirstService Residential worked throughout the session to make sure something was done to help strengthen the commercial residential market so carriers would return to that space and the competition created would have a positive impact on associations.
One of the helpful pieces was the passage of SB 76 which will address much of the fraud in the current marketplace by reducing the statute of limitations to file claims from 3 years to 2 years, alter the way attorney’s fees are handled in property claims that has led to FL having 76% of all property insurance lawsuits in the country when Florida only represents about 7% of all property insurance claims, etc. Another extremely helpful change that will help a great deal was passed as part of the Community Association Package mentioned above (Senate Bill 630). It deals with subrogation, where one carrier sues another carrier to be reimbursed after they have paid for a claim.
Currently, a condo association’s master insurance policy cannot go after a unit owner’s policy, but if an owner’s negligence leads to a loss under the associations policy, the association may certainly go after that owner for recourse. However, a unit owner’s policy may go after the association’s master policy even if the loss was the fault of the unit owner. Some unit owner policy carriers have made it a standard practice to go after the association’s master policy carrier on all claims. Language in the bill returns it to an even playing field; all policies cover what they are responsible for and neither carrier may subrogate against the other.
House Bill 219 and Senate Bill 522 made their annual appearance this session. The major difference is that BOTH bills completely eliminated their ability to impact associations’ restrictions on short-term, vacation rentals. As has been their fate the past few sessions, these bills failed to pass during the 2021 Session.
SB 56 passed which amends the Condominium Act to extend the time of the foreclosure notice requirement for assessment delinquencies from 30 days to 45 days; it requires the delivery of written notice to the delinquent owner by first class mail or e-mail and before change in the delivery method can be made, 30 days written notice must be given to unit owners and must be acknowledged by the owners; and it provides that a delinquent unit owner may pay the delinquency without attorney fees. This proposal as originally filed was much more onerous and costly to condo associations but FirstService Residential was able to successfully advocate for key changes to mitigate that negative impact substantially.
CONDOMINIUM ASSOCIATION ASSESSMENTS
Legislation (HB 403) passed in the final moments of the Session that prohibits some of the current local government regulation placed on home-based businesses. FirstService Residential had concerns with this legislation when it was initially filed and immediately went to work to have all associations…condominiums, cooperatives, and HOAs exempted from it should it pass. Much the same as we did with the Vacation Rental bills. This one did pass but we made certain our “association protective” language stayed in place. So, whatever rules are in place by an association currently or into the future are not overridden or preempted.
HB 463 passed which exempts HOA swimming pools that serve no more than 32 parcels from supervision by the Florida Department of Health. This is same exemption that currently exists for similar sized condominiums and cooperatives.
HB 649 passed which provides that a condominium association, cooperative association and homeowners’ association may file with the value adjustment board (VAB) a single joint petition on behalf of members who own units or parcels in the community, and condominium and cooperative associations may seek judicial review of a decision by the property appraiser.
CHALLENGES TO COMMUNITY ASSOCIATION PROPERTY TAX ASSESSMENTS
The legislative package SB 1966 for the Department of Business and Professional Regulation (DBPR) included changes to the Condominium Act that clarify what “delinquency” means for board eligibility; elimination of the residency requirement for the ombudsman; and a requirement for budget adoption within 14 days prior to the end of the condominium associations fiscal year. FirstService Residential was instrumental in having our “procedural” concerns addressed prior to passage.
CHANGES MADE TO CONDOMINIUM ACT VIA THE DBPR PACKAGE
Following is a comprehensive list of bills filed this session, covering everything from criminal penalties for board members (Senate Bill 1988) to a resolution honoring Pio Ieraci of the Galt (Senate Bill 1842):
- SB 0630 Community Associations (PASSED)
- HB 0007 Civil Liability for Damages Relating to COVID-19 (PASSED)
- HB 0463 Community Association Pools (PASSED)
- HB 0649 Petition for Objection to Assessment (PASSED)
- HB 0021 Construction Defects
- HB 0055 Building Design
- SB 0056 Community Association Assessment Notices (PASSED)
- SB 0072 Civil Liability for Damages Relating to COVID-19 (PASSED)
- SB 0076 Residential Property Insurance Boyd (PASSED)
- SB 0124 Residential Swimming Pool Safety
- HB 0137 Fire Sprinklers (PASSED as SB 286)
- SB 0212 Contingency Risk Multipliers (Contained in SB 76)
- HB 0219 Vacation Rentals
- SB 0266 Home-based Businesses
- SB 0270 Construction Defects
- SB 0286 Fire Sprinklers (PASSED)
- HB 0305 Property Insurance Claims and Reimbursement (PASSED as SB 76)
- HB 0339 Business Organizations (PASSED as SB 602)
- SB 0344 Legislative Review of Occupational Regulations
- HB 0403 Home-based Businesses (PASSED)
- HB 0421 Governmental Actions Affecting Private Property Rights (PASSED)
- HB 0471 Legislative Review of Occupational Regulations
- SB 0522 Vacation Rentals
- SB 0602 Business Organizations (PASSED)
- HB 0615 Community Association Assessment Notices (PASSED as SB 56)
- HB 0639 Operation and Safety of Motor Vehicles and Vessels (PASSED as SB 1086, contains Derelict Vessel language important to many coastal communities)
- HB 0665 Homeowners’ Association Rental Agreements (PASSED as part of SB 630)
- SB 0684 Department of Transportation
- HB 0703 Residential Swimming Pool Safety
- HB 0717 Consumer Protection (PASSED as SB 1598)
- SB 0742 Insurance (part of the language PASSED as part of HB 1209)
- SB 0802 Security Deposits for Dwelling Units
- HB 0815 Insurance (part of the language PASSED as part of HB 1209)
- HB 0867 Community Associations (PASSED as SB 630)
- SB 0872 Homeowners’ Associations (Passed as part of SB 630)
- SB 0902 Public Pool Regulations (PASSED as HB 463)
- SB 0960 Residential Swimming Pools
- SB 0996 Community Associations (PASSED as HB 649)
- HB 1005 Investment of Condominium Association Funds
- SB 1086 Operation and Safety of Motor Vehicles and Vessels (PASSED, contains Derelict Vessel language important to many coastal communities)
- HB 1167 Tree Pruning, Trimming, or Removal on Residential Property
- HB 1259 Homeowners’ Association Recalls
- SB 1396 Tree Pruning, Trimming, or Removal on Residential Property
- HB 1481 Vacation Rentals
- HB 1517 Department of Business and Professional Regulation (PASSED as SB 1966)
- SB 1548 Evictions During a Declared State of Emergency
- SB 1638 Condominium Fraud Investigation Pilot Program
- SB 1688 Homeowners’ Association Recalls
- SB 1842 Pio Ieraci/Galt Mile Community Association
- SB 1966 Department of Business and Professional Regulation (PASSED)
- SB 1988 Vacation Rentals
- SB 1998 Condominium Associations