capitol_nolan.jpgToday’s column begins our annual review of new laws affecting community associations, condominiums, cooperatives, and homeowners’ associations. Governor Rick Scott, signed HB 791 into law effective on July 1, 2015. HB 791 impacts condominiums, cooperatives, and homeowners’ associations.

(1) Electronic Voting (Condominiums, Cooperatives, and Homeowners’ Associations): The bill provides that associations may conduct elections and other membership votes by utilizing an electronic (internet-based) method. The bill also specifies the requirements necessary to establish an electronic voting method, including a board resolution. The bill requires that an owner consent to online voting, and if the owner does not consent, the owner is entitled to vote by paper ballot.

(2) Digital or Electronic Transmission of Proxies (Condominiums, Cooperatives and Homeowners’ Associations): The current law does not specifically authorize owners to transmit a copy of their proxy to the association (for example, by fax or a scan of the proxy sent via email). The intent of this language is to facilitate voting. Many owners are not available to be at meetings in person and may wish to bypass U.S. mail and send their proxy to the association in some other fashion. The proposed language is similar to language currently found in Section 607.0722(10), Florida Statutes, which governs corporations for-profit. The proposed language is being added to Section 617.0721, Florida Statutes, which governs corporations not-for-profit, and therefore, will also apply to condominium, cooperative, and homeowners’ associations.

(3) Electronic Notice to Owners (Condominiums, Cooperatives, and Homeowners’ Associations): Currently, in order to provide notice to owners electronically, the bylaws must provide for electronic notice and the owner must consent in writing. The bill removes the requirement that electronic notice be authorized by the bylaws. Therefore, as long as the owner consents in writing, the association can provide the owner with electronic notice.

(4) Fines/Penalties (Condominiums, Cooperatives, and Homeowners’ Associations): The bill clarifies that it is the board of administration of the association that is responsible for levying any fines. Furthermore, the committee formed to hear cases regarding potential fines must be impartial and limited to that purpose. It also clarifies that the role of the fining committee is to confirm or reject the fine levied by the Board.

(5) Suspension of Voting Rights (Condominiums, Cooperatives, and Homeowners’ Associations): The bill provides that if an owner or member’s voting rights have been suspended for any reason, the total number of votes of the suspended member(s) must be reduced from the total number of voting interests of the association when calculating the vote needed for any action. The bill also provides that the suspension of voting rights or right to use common elements applies to members and tenants and guests, regardless of number of units owned by the member.

(6) Application of Payment/Assessments (Condominiums and Cooperatives): Current law provides for a specific order in which payments received from a unit owner are to be applied (first accrued interest shall be paid, followed by any administrative late fees, then any costs and attorney’s fees, and, finally, the delinquent assessment). The bill amends Sections 718.116(3) and 719.108(3), Florida Statutes to clarify that the required distribution of delinquent assessment payments applies in spite of any purported “accord and satisfaction.” This change is intended to overrule a 2014 appeals court case that held that if a check is tendered for less than the total amount of a disputed claim, the acceptance creates an accord and satisfaction if the tender is accompanied by an offer to settle for the tender amount. The case raised concerns as to whether an association could accept partial payment for a delinquent assessment.