Tuesday, June 28, 2011

New Change to HOA Law

First the Florida Statute governing homeowner associations, Fla. Stat. § 720 et seq. provided the HOAs with the authority to suspend your use of amenities (the pool, clubhouse, tennis court, etc.) if you were niney (90) days delinquent in paying your assessments. [Fla. Stat. § 720.305(2)] Then it was changed to give the HOAs the authority to do the same if you were late paying any monetary obligation, including fines. Thanks to our elected leaders, the statute giving HOAs the statutory right to impose fines was overturned. 

NOW, beginning in July 1, 2011, your HOA has the authority, by statute (and this will be important later) to deny you the right to use the amenities if you have any outstanding covenant violation.  So, if they want to keep you out of the pool, they can issue violations for not cutting your grass, or planting landscaping without their approval.  It still requires a hearing before a three-member committee that is no relation to board members, but that part of the statute is not allows complied with by the HOA.

It is important to keep in mind these legislative changes do not affect your HOA unless your Declaration of Restrictive Covenants refers to Fla. Stat. § 720 and adds the magic words "as amended from time to time."  Thanks to the Florida Supreme Court ruling in Cohn v. The Grand Condominium(36 Fla. L. Weekly S129a, March 31, 2011,  homeowners still have a fighting chance.



4 comments:

  1. What if your HOA declarations have no reference to FLA Stat 720 at all? Does that mean all new statues passed since the inception of the HOA declarations (2004) cannot be enforced?

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  2. It depends. If the statute was passed as a matter of public policy or is remedial (to fix a problem), then it does apply. Otherwise, no, a new statute would not be effective to apply to your HOA.

    The problem is the HOA is surely going to argue the statute referenced above was passed as a matter of public policy and it will then be a legal battle to settle the matter. Depending on the county you live in it may or may not be worth the money or the fight.

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    1. The section in question is 720.3085(8) which allows the HOA to demand rent from tenants in the event the owner of the home has an outstanding debt. Public Policy/Remedial?

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  3. Again, it depends -- on the view of the judges in your county and the wording of your Declarations. I have successfully argued Cohn v The Grand Condominium in some cases and the judge ruled against the HOA. I did have one case where the judge felt the statute was remedial and ruled for the HOA. Usually a statute of public policy will state "the Legislature finds..." To find out if the statute is remedial or a matter of public policy if these words are not included, you have to research the bill and committee notes as the bill worked its way through the House and Senate before it was enacted as a statute.

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