In 2023, the Florida Legislature passed the “Homeowners’ Association Bill of Rights.”
The bill enacted new laws addressing aspects of homeowners’ association management, including meetings of the board of directors and notice requirements, conflicts of interest of officers and directors, voting irregularities and the destruction of, or refusal to allow, inspection of official HOA records.
The importance of an up-to-date statutory scheme governing HOAs cannot be overstated since roughly 45% of the state’s population, about 9.6 million Floridians, live in HOA communities.
Disputes between the associations and homeowners are so common that the Legislature mandated that, in some instances, the homeowner and association must participate in pre-suit mediation before commencing a lawsuit. Otherwise, the courts could by inundated with non-monetary disagreements over “neighborly” matters.
Disputes that are required to go to pre-suit mediation include the use of or changes to a parcel or common areas and other covenant enforcement disputes, disputes regarding amendments to the association’s documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings and access to the official records of the association.
Some disputes are exempt from pre-suit mediation, including the collection of any assessment, fine or other financial obligation, as well as attorney’s fees and costs claimed to be due, or any action to enforce a prior mediation settlement agreement between the parties. See sec. 720.311(2)(a), Florida Statutes (2023).
Among the changes in HOA law in 2023 was the enactment of sec. 720.3045, Florida Statutes, which states:
“Installation, display, and storage of items.—Regardless of any covenants, restrictions, bylaws, rules, or requirements of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles.”
History.—s. 3, ch. 2023-64.”
Previously, an association may have become aware of an unseen violation on a homeowner’s property. For example, a boat might have been stored in a fenced backyard that was not visible to neighbors, but that violated a rule prohibiting boat storage.
Understandably, the homeowner would consider such a violation harmless since it was not visible to neighbors. Despite the lack of visibility some associations would insist on enforcing the rule or restriction against boat storage. Section 720.3045, Florida Statutes, would prevent such enforcement action.
The law should decrease the number of disputes between associations and homeowners over such unseen violations.
The Homeowners’ Association Bill of Rights, while a positive development, may increase the number of HOA disputes. The enactment of new laws invariably invites disagreements over the application of such laws, compliance with the laws or even the meaning of such laws.
Such disputes would seemingly fall within the purview of those requiring pre-suit mediation under sec. 720.311, Florida Statutes (2023), ie. “…disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association...”
It may be time for HOA attorneys and mediators to roll up our sleeves in anticipation of an increase in workload.
John McCorvey has 33 years of experience in civil litigation which he uses to help counsel and parties reach settlement agreements in a range of cases, focusing on business disputes and HOA pre-suit mediations.