,
Melissa K. Nelson and
Melissa S. Turra
Melissa S. Turra is a Partner in our
Jacksonville office.
Christina Fuqua Gay and Melissa K. Nelson are Associates in
our
Jacksonville office.
The 2009 Florida legislative session recently ended and only one bill relating to condominium and homeowner association laws was passed which was enacted into law. This bill affects Chapter 720 (relating to Florida Homeowners' Associations) Florida Statutes. There were no substantive changes made to Chapter 718 Florida Statutes (the Condominium Act). Two sections of the Florida Administrative Code relating to the Florida Condominium Act, were also recently amended by the Division of Florida Condominiums, Timeshares and Mobile Homes. Additionally, Chapter 558 Florida Statutes, relating to disclosures regarding construction defects was amended. An overview of the one new bill and the amendments are described below.
Section 61B, Florida Administrative Code (Relating To The Florida Condominium Act)
61B-15.007: Developer, Defined
This section was revised to provide that for purposes of the Division's filing requirements, a successor developer means any person who "offers condominium parcels for sale or lease for more than 5 years in the ordinary course of business." The prior version of this rule defined successor developer for filing purposes as "any person, other than the creating developer or concurrent developer, who offers condominium parcels for sale or lease in the ordinary course of business."
61B-22.006: Financial Reporting Requirements
The financial statements of associations are now required to disclose the amount of annual funding required to fully fund each reserve account, or pool of accounts, over the remaining useful life of the applicable asset or group of assets. The association's financial report required by the Florida Condominium Act must meet the following requirements: (a) it shall be prepared using a cash method basis of accounting; (b) it shall include the reserve disclosure stated above; and (c) it shall include the special assessment disclosure required by 61B-22.006(3)(c), F.A.C.
Chapter 720 (Florida Homeowners' Associations)
720.3075 Prohibited Clauses In Association Documents
The provisions relating to Florida-friendly landscaping were revised to state that the association's documents may not prohibit, or be enforced in such a way to prohibit, any property owner from implementing Florida-friendly landscaping on his or her land or create any requirement which conflicts with a water shortage order, consumptive permit or rule or provision of Part II of Chapter 373, Florida Statutes. (which relates to permitting consumptive uses of water). This provision became effective July 1, 2009.
Chapter 558 (Relating To Construction Defects)
Senate Bill 2064 (2009 Legislative Session)
Senate Bill 2064 (2009) (the "bill") was approved by Governor Crist on June 18, 2009, and contains numerous changes to the disclosures required under Chapter 558. It will become effective on October 1, 2009.
The bill sets forth three separate disclosures which are required to be included in contracts based on the following time periods:
- July 1, 2004 - September 30, 2006
- October 1, 2006 - September 30, 2009
- after October 1, 2009
Disclosure Required for Contracts Entered Into Between July 1, 2004 And September 30, 2006
Unless a claimant and a potential defendant have agreed in writing to opt out of the requirements of this section, the provisions of Chapter 558 apply to any claim for legal relief for which the agreement to make the improvement was made after October 1, 2009, and for which the basis of the claim is a construction defect that has arisen after completion of a building or improvement.
For a claim of construction defect pursuant to contracts for improvements entered into between July 1, 2004 and September 30, 2006, the following notice must be included as part of the contract in capitalized letters:
CHAPTER 558 NOTICE OF CLAIM
CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN ALLEGED CONSTRUCTION DEFECT IN YOUR HOME. SIXTY DAYS BEFORE YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS.
Disclosure Required For Contracts Entered Into Between October 1, 2006 And September 30, 2009
For a claim of construction defect pursuant to contracts for improvements entered into between October 1, 2006, and September 30, 2009, the following notice must be included as part of the contract in capitalized letters:
CHAPTER 558 NOTICE OF CLAIM
CHAPTER 558, FLORIDA STATUTES, CONTAINS IMPORTANT REQUIREMENTS YOU MUST FOLLOW BEFORE YOU MAY BRING ANY LEGAL ACTION FOR AN ALLEGED CONSTRUCTION DEFECT. SIXTY DAYS BEFORE YOU BRING ANY LEGAL ACTION, YOU MUST DELIVER TO THE OTHER PARTY TO THIS CONTRACT A WRITTEN NOTICE, REFERRING TO CHAPTER 558, OF ANY CONSTRUCTION CONDITIONS YOU ALLEGE ARE DEFECTIVE AND PROVIDE SUCH PERSON THE OPPORTUNITY TO INSPECT THE ALLEGED CONSTRUCTION DEFECTS AND TO CONSIDER MAKING AN OFFER TO REPAIR OR PAY FOR THE ALLEGED CONSTRUCTION DEFECTS. YOU ARE NOT OBLIGATED TO ACCEPT ANY OFFER WHICH MAY BE MADE. THERE ARE STRICT DEADLINES AND PROCEDURES UNDER THIS FLORIDA LAW WHICH MUST BE MET AND FOLLOWED TO PROTECT YOUR INTERESTS.
Disclosure Required For Contracts Entered Into After October 1, 2009
The bill also adds a new section which provides that unless the parties agree that Chapter 558 does not apply, after October 1, 2009, any written contract for improvement of real property entered into between an owner and a contractor, or between an owner and a design professional, must contain substantially the following notice in capitalized letters:
ANY CLAIMS FOR CONSTRUCTION DEFECTS ARE SUBJECT TO THE NOTICE AND CURE PROVISIONS OF CHAPTER 558, FLORIDA STATUTES.
The bill explicitly provides that the failure to include in the contract the above notice does not subject the contracting owner, contractor or design professional to any penalty and that the purpose of the notice is to promote awareness of the procedure.
We will continue to keep you informed of any future legislative changes to these and other statutes.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
