Kaufman Language
2024
The Florida legislature had a very busy session earlier this year passing some far-reaching Bills. One of those Bills was HB-1203 for HOAs. The Governor signed it into law in time for the effective date of July 1, so we now have notable changes in the laws regulating this HOA.
We have heard statements about how the changes no longer allow (something) or must now allow (something else). Many of these statements are based on incomplete information or hopeful assumptions. Even an attorney can't fully determine to what degree the changes may affect a residential Owners Association without first interpreting that Association's Governing Documents in relation to the new laws. It is very possible that some Statute changes may apply, yet others may not. Yes, really. For interpretation and application to specific circumstances of anything you read on this site, you must speak with a Florida-licensed attorney.
Here are some Discussion Points:
- Attorneys mention the difference between substantive (affecting owners' rights) changes in the law, and procedural (administrative) changes. Changes affecting owners' existing rights are handled very differently from procedural changes. This is one of the areas in which some parts of the new laws may apply, and some may not. The Association's attorney has to make that call, not this Board or its Officers. Procedural changes usually apply without dispute, substantive changes can be challenged when there isn’t "...as amended from time to time" language in an Association's Governing Documents. This HOA doesn’t have that wording and that makes this more complex.
- Neither the Bill nor the resulting Statute amendments appear to say they apply retroactively. Unless specifically stated otherwise, Florida Statutes are presumed to apply prospectively (going forward from their effective dates). What does this suggest for application to existing Governing Documents? Without specific language, we will likely have to wait for a few civil lawsuits to create case law.
- The Florida legislature's intent when considering and enacting changes in the HOA Act was to protect property owners' rights while promoting proper administration and management of residential Owners Associations. If this Board does not apply certain parts of the new laws, could that be construed as breach of fiduciary duty?
- Attorneys also tell us that Governing Documents (in particular, Declarations) create a contract between an Association and its members (property owners). Florida's Constitution includes a section establishing a general rule that amended or new State legislation cannot interfere with existing contracts between parties. This could include impairing vested rights granted under a Declaration.
All property owners should be aware of the significant changes made in Florida Statutes that regulate this Association. We suggest the Board consult with the Association's attorney for clarification on applicability and enforcement, then present the changes to all owners.
Best practices regarding these changes to the HOA Act will take time to sort out. The Florida legislature has a long history of passing legislation before receiving sufficient input from non-government individuals trained and experienced in the matter being considered, reviewed, and debated. As mentioned above, future civil lawsuits may create case law on which to base a more reliable application of these new Statute changes. Until then, the Association's attorney should be able to provide dependable, actionable interpretation and guidance.