2018 Condo Legislation a Green Light for Electric Vehicle Owners

By Jonathan Goldstein

House Bill 841, approved by the governor and taking effect on July 1, 2018, paves inroads for electric vehicles at condominium developments while extending the Distressed Condominium Relief Act and the deadline for associations to meet condominium website requirements, among various other changes intended to bring increased coherence to provisions of the Condominium Act.

Electric Vehicle Charging Stations

Newly enacted Section 718.113(8) now provides that regardless of any restriction, an owner can install an EV charging station, at their expense and subject to specified restrictions, within the boundaries of their limited common element parking area (a parking area subject to the owner’s exclusive use as a part of their ownership interest). The owner cannot irreparably damage the common elements, must separately meter and pay for electricity, and is responsible for maintaining, repairing, operating, installing and insuring the station. Additionally, an EV station installer’s mechanic’s lien can only be filed against the owner’s unit. The association can (and should) require protections such as installer licensure, insurance, architectural compliance, reimbursement for insurance premium increases, etc., and may utilize statutory collection remedies, ostensibly including lien rights, if the association has to cover the owner’s costs. The benefits of this legislation are obvious and profound: by pre-empting and minimizing the likelihood of potential disputes over an area that will increasingly gain importance as EVs become more prominent, the law benefits owners and residents alike while enabling reasonable protections for associations.

DCRA Extension

The Distressed Condominium Relief Act (Condominium Act, Part VII, also known as the DCRA), previously scheduled to sunset at the end of 2018, will now be extended indefinitely. Extending the DCRA has significant implications for associations and those acquiring distressed condominium assets because of the protections it affords to bulk assignees and bulk buyers from developer liabilities.

Changes to Website Requirements

Last year’s condominium legislation (HB 1237) combatted corruption through transparency, accountability, and conflict of interest protections. Among these changes, HB 1237 required all non-timeshare condominium associations with 150 or more units to create a website by July 1, 2018. HB 841 pushes the deadline back to Jan. 1, 2019, updates the website requirements, and mitigates the potential consequences of certain noncompliance (violations of the website requirements do not void related board action, and additional protections from liability are added for inadvertent disclosure of private information). Additionally, HB 841 allows associations to adopt rules for noticing board and owner meetings on a website in addition to other notice. Any rule adopted for website notice must require the association to send an electronic notice by providing a hyperlink by email to all owners consenting to receive email notice. Any owner who consents to receiving notice by email assumes responsibility for removing any filters blocking receipt of notice.

Other Updates (or Fixes) to Last Year’s Changes
  • Last year, the Legislature added robust new conflict of interest requirements (Section 718.3027) that ignored existing “interested director transaction” requirements in another section of the Condominium Act (Section 718.3026 (3)). HB 841 reconciles these conflict of interest laws by eliminating Section 718.3026 (3) and synthesizing it with 718.3027. Not addressed is the puzzling interplay between 718.3027 and 718.112(p), which outright prohibits association contracts with service providers if at least one percent of the provider’s equity is owned by a director, officer or their relative.
  • Term limits preventing directors from serving more than four consecutive two-year terms (omitting term limits on one-year terms) are replaced by term limits of eight consecutive years (regardless of term duration), absent an affirmative vote of two-thirds of all votes cast for a candidate to continue serving. The bylaws can provide a term of any length (subject to term limits).
  • Board recall procedure and grounds for recall arbitration are clarified. A board member who successfully challenges a recall is entitled to reasonable costs and fees. An arbitrator may award reasonable costs and fees to the respondents if the arbitrator determines a board member’s arbitration is frivolous. The Legislature ambiguously omitted owner representatives petitioning for recalls from the new fee provisions.
  • If an association fails to timely respond to a Florida Division of Condominiums, Timeshares, and Mobile Homes request to provide a financial report, it cannot waive reporting requirements for two years.
Other Updates
  • Associations must maintain specified official records permanently and other records for seven years. Associations must provide access to records within 10 business days of a written request, removing the inconsistency between deadlines for access and damage accrual.
  • Notice for meetings involving assessments require estimated costs and a description of those assessments.
  • Material alteration approval must occur prior to work commencement.
  • Associations of five or fewer units shall have a board of not less than three members.
  • Notices must be posted on condominium (not association) property.
  • A fine or suspension must be approved by a committee of at least three members, and a fine is due five days after the date of the committee’s meeting.

If nothing else, HB 841 illustrates that the fluidity of the Condominium Act is its only constant; like dunes in a desert, year to year it will shift with the winds of modernization, revision, outrage, and the whims of interest groups.

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