Well-intentioned Legislature creates headaches for condos and HOAs

An op-ed by Tripp Scott's Matthew Zifrony

Perhaps only one assignment in Florida is more difficult and thankless than being a conscientious homeowners’ or condominium association board member today. And that is being a state legislator with the responsibility to thread the needle between minimizing the burdens on good actors and preventing damage from bad actors on boards. 

Unfortunately, well-intentioned new changes to the statutes governing HOAs and condo associations aimed at the bad apples have the potential to add considerable complexity, confusion and costs for all boards and homeowners.

Most board members, especially officers, take their unpaid, time-consuming positions because they deeply care about their communities and want them to be efficiently run, well-maintained and pleasant places to live.

But admittedly, some directors fail to act transparently, disrespect homeowners’ rights, are negligent in managing financial and maintenance issues, and worst of all, engage in self-dealing.

Naturally, the Legislature desires to address the behavior of the latter cohort and protect residents. Which led this year to the enactment of far-reaching new requirements, restrictions and penalties that include:

• New initial and continuing educational requirements for board members;

• Additional provisions on maintenance and accessibility of records;

• New auditing and financial reporting regulations;

• New limits on and notice requirements for architectural reviews;

• Restrictions on rules regarding parking and various efforts to ensure uniformity of appearance;

• Stricter guidelines regarding rules enforcement, affecting hearings, written notices and imposition of fines, attorneys’ fees and interest on late fees;

• More resident accessibility to financial and other records;

• Additional details on boards’ fiduciary duty to homeowners;

• Automatic removal of board members facing charges of ballot forgery or other voting fraud, embezzlement, destruction of records or tampering with evidence in furtherance of a crime, or obstruction of justice.

Again, the purpose of these changes is noble. But the devil, as always, is in the details — which on top of the dizzying complexity of a plethora of existing regulations, reveal some problematic provisions.

For example, under this new law, HOAs cannot prevent homeowners from installing or displaying vegetable gardens and clotheslines in areas not visible from the frontage or an adjacent parcel, an adjacent common area, or a community golf course. 

But what is and isn’t “visible?” If your neighbor can see your backyard clothesline from the second floor of their two-story home, does that prevent you from having a clothesline? Yet that same neighbor can have a clothesline if you can’t see it from your single-family home?

In all too many instances, judges and arbitrators will be asked to decide irritating legal cases on picayune matters from this to new rules on taking down Christmas lights in a timely manner.

Also under the new law, condo board members must complete an initial four-hour educational curriculum and one-hour educational courses thereafter. Board members of HOAs with fewer than 2,500 parcels must complete at least four hours of continuing education annually — and eight hours of continuing education for larger communities. Why the additional workload for HOAs and an even bigger workload for larger HOA communities when they largely abide by the same rules? And who will pay for these courses? And how many already-overburdened directors will throw their hands up at this straw that breaks the camel’s back?

Probably, all too many.

And finally, condo associations must send a notice to each unit owner when their structural integrity reserve study (SIRS) is available for inspection and copying. But for large associations, the cost of printed notices run into the thousands of dollars.

Who will pay those costs? Owners, of course, in increased fees.

And don’t forget: These new potential headaches for boards come on top of the crushing costs of sometimes triple-digit insurance premium hikes and recent structural inspection and repair mandates that have condo association budgets groaning under sometimes multimillion-dollar reconstruction projects.

The bottom line: The Legislature has taken important steps to vindicate the rights of homeowners vis-à-vis their HOAs and condo associations. But in the process, it may have opened several cans of worms that could have regulators, courts and mediators working overtime to interpret rules and settle disputes — and boards and owners begging for relief.

Harried boards should count on legislators returning to the condo-law drawing board for years to come. But in the meantime, those board members should keep their lawyers — and bankers — on speed dial.