In 2010, the chapters of the Florida Statutes governing condominiums and homeowners associations were amended with the intention of providing community associations significantly more “teeth” to enforce collection of assessments from delinquent owners. Unfortunately, the new provisions contained several glitches which resulted in confusion for associations, owners, and community association practitioners. House Bill 1195 became effective July 1, 2011, with intent to remove such glitches and clarify provisions passed in 2010.
Prior to 2010, a homeowners’ association was permitted under Chapter 720 of the Florida Statutes to suspend an owners’ right to use common areas and facilities for the violation of provisions of the association’s governing documents. The statue did not provide such a remedy for past due assessments. One of the glitches of the 2010 legislation unintentionally resulted in the removal of the ability of a homeowners’ association to suspend an owner’s rights to use common areas and facilities for violations of the governing documents. However, the right to suspend common area use rights was added as a potential remedy for nonpayment of monetary obligations owed to the Association which are more than 90 days delinquent.
For condominium associations, prior to the 2010 legislation, suspension of common element use rights was not provided as a remedy in the statutes at all. The 2010 legislation provided for suspension of common elements and facilities as a potential remedy only for 90 day delinquencies, not for other violations of the governing documents. However, the statutory provisions providing for the hearing procedures required for suspending use rights, did reference the availability of common element use suspension as a remedy for other violations. These procedural provisions raised questions as to whether the right to suspend use of common elements and facilities was available for violations other than monetary delinquencies.
Homeowners’ Associations Right to Suspend
With the passing of House Bill 1195, a homeowners’ association may suspend the right of a member, or the member’s tenant, guest, or invitee, to use common areas and facilities both for failure to comply with any provision of the governing documents and for nonpayment of
monetary obligations which are more than 90 days delinquent. The governing documents of the homeowners’ association do not need to provide for such suspension, but a suspension does not apply to the portions of the common areas used to provide access or utility services to the parcel and may not impair the right of an owner or tenant to have vehicular or pedestrian ingress and egress from the parcel, including the right to park.
A homeowners’ association may also suspend the voting rights of an owner for nonpayment of monetary obligations more than 90 days delinquent, which was previously provided in the 2010 statutes, but the new statute clarifies that any voting interest which has been suspended may not be counted towards the total number of voting interests for any purpose, including, but not limited to, the number of voting interests necessary to constitute a quorum, conduct an election or approve an action under Chapter 720 or the governing documents. Suspension of use or voting rights imposed for delinquent monetary obligations must be approved at a properly noticed board meeting. Upon approval, the association must notify the parcel owner and, if applicable, the owner’s occupant, licensee or invitee by mail or hand delivery. A fine or suspension for other violations of the governing documents may not be imposed without at least 14 days’ notice to the person to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board.
Condominium Association’s Right to Suspend
Prior to 2010, the right to suspend the use rights of common elements and facilities in a condominium was not a remedy available to condominium associations. The 2010 statute added the remedy for owners’ delinquencies in monetary obligations, but it was not clear whether the condominium association had the right to suspend common element use rights for other violations.
The 2011 legislation clarifies that a condominium association may suspend for a reasonable period of time, the right of a unit owner, or the owner’s tenant, guest, or invitee, to use the common elements or facilities for failure to comply with any provision of the governing documents of the condominium association. The condominium association may also still suspend the use of such facilities if a unit owner is more then 90 days delinquent in paying a monetary obligation due to the association. A condominium association may also suspend the voting rights of a unit or member due to the nonpayment of any monetary payment due to the condominium association which is more than 90 days delinquent.
The new statute clarifies that suspensions of common element use or voting rights must be approved at a properly noticed board meeting, after which approval the unit owner and, if applicable, the unit’s occupant, licensee, or invitee, must be notified by mail or hand delivery. Suspension of use rights for failure to comply with other provisions of the governing documents may not be imposed unless the condominium association first provides at least 14 days’ written notice and an opportunity for a hearing to the unit owner, and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member’s household.
Similar revisions to Chapter 719, Florida Statutes, governing cooperatives, were also included in House Bill 1195. Other amendments and clarifications to Chapters 718 and 720 were addressed in the 2011 bill, a copy of which can be obtained here.