HOUSE OF REPRESENTATIVES STAFF ANALYSIS
BILL #: CS/CS/HB 867 Community Associations
SPONSOR(S): Judiciary Committee, Civil Justice & Property Rights Subcommittee, Shoaf
TIED BILLS: IDEN./SIM. BILLS: CS/SB 630
REFERENCE ACTION ANALYST STAFF DIRECTOR or
BUDGET/POLICY CHIEF
1) Civil Justice & Property Rights Subcommittee 16 Y, 1 N, As CS Mawn Jones
2) Regulatory Reform Subcommittee 15 Y, 0 N Brackett Anstead
3) Judiciary Committee 19 Y, 1 N, As CS Mawn Kramer
SUMMARY ANALYSIS
The Department of Business and Professional Regulation (“DBPR”) broadly regulates condominium (“condo”)
and cooperative (“co-op”) associations and has limited regulatory authority over homeowner’s associations
(“HOA”). A condo is a form of real property ownership created under ch. 718, F.S., composed of units which
may be owned by one or more persons along with an undivided right of access to common elements. A co-op
is a form of property ownership created under ch. 719, F.S., where the real property is owned by the co-op
association and individual units are leased to the residents who own shares in the association. An HOA is a
residential property owners association created under ch. 720, F.S., in which voting membership is made up of
parcel owners, membership is a mandatory condition of parcel ownership, and which may impose
assessments that, if unpaid, may become a lien on the parcel.
CS/CS/HB 867:
Requires condo associations to maintain bids for work for one year, instead of seven.
Prohibits a condo or co-op association from requiring unit owners to state a reason for wanting to
inspect official records and modifies the HOA records inaccessible to HOA members.
Provides that condo board member term limits apply to service starting July 1, 2018.
Prohibits condo unit owners’ insurance policies from providing a right of subrogation in certain
circumstances.
Modifies specified notice and contract requirements for condo associations.
Allows condos and HOAs to post certain documents on applications accessible on mobile devices.
Modifies a co-op association’s quorum requirements to allow a quorum to be achieved by members
appearing by video teleconference or other real-time electronic means.
Increases the transfer fee that condos may charge a buyer or renter from $100 to $150.
Authorizes mediation of specified condo and co-op disputes in lieu of arbitration with DBPR.
Allows a condo unit owner to install a natural gas fuel station subject to statutory limitations.
Modifies an association’s emergency powers.
Clarifies that a multi-condo association may adopt a consolidated declaration of condo under specified
circumstances and that such adoption does not merge the condos.
Allows the condo Ombudsman to maintain a principal office outside of Leon County, Florida.
Specifies that an interest in a co-op association is an interest in real property.
Provides that HOA amendments affecting a parcel’s rent or lease only apply to certain owners.
Allows election and recall disputes to be filed in court in lieu of arbitration with DBPR.
Allows most condo and co-op disputes to go through pre-suit mediation.
Specifies that a developer is not an HOA member for certain transition of HOA control purposes.
Modifies the allowable uses for specified condo unit sale or reservation deposits.
Authorizes associations to extinguish discriminatory restrictions in a specified manner.
The bill does not appear to have a fiscal impact on local government, but the bill may have a fiscal impact on
state government. The bill provides an effective date of July 1, 2021.
This document does not reflect the intent or official position of the bill sponsor or House of Representatives .
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DATE: 3/30/2021
FULL ANALYSIS
I. SUBSTANTIVE ANALYSIS
A. EFFECT OF PROPOSED CHANGES:
Background
Community Associations
The Florida Division of Condominiums, Timeshares and Mobile Homes (“Division”), within the
Department of Business and Professional Regulation (“DBPR”), provides consumer protection for
Florida residents living in regulated communities through education, complaint resolution, alternative
dispute resolution, and developer disclosure. The Division has regulatory authority over:
Condominium associations;
Cooperative associations;
Florida mobile home parks and related associations;
Vacation units and timeshares;
Yacht and ship brokers and related business entities; and
Homeowners' associations (limited to the arbitration of election and recall disputes).
Condominiums
A condominium is a form of real property ownership created under ch. 718, F.S. Persons own
condominium units along with an undivided right of access to the condominium’s common elements.1 A
condominium is created by recording a declaration of condominium, which governs the relationship
between condominium unit owners and the condominium association, in the public records of the
county where the condominium is located.2 All unit owners are members of the condominium
association, and the association is responsible for common elements operation and maintenance.3 The
condominium association is overseen by an elected board of directors, commonly referred to as a
“board of administration,” which is responsible for the association’s administration.4
Cooperatives
A cooperative is a form of property ownership created under ch. 719, F.S., in which the real property is
owned by the cooperative association and individual units are leased to the residents, who own shares
in the association.5 The lease payment amount is the pro-rata share of the cooperative’s operational
expenses. Cooperatives operate similarly to condominiums and the laws regulating cooperatives are
largely identical to those regulating condominiums.
Homeowners’ Associations
A homeowners’ association (“HOA”) is an association of residential property owners in which voting
membership is made up of parcel owners, membership is a mandatory condition of parcel ownership,
and which is authorized to impose assessments that, if unpaid, may become a lien on the parcel.6 Like
a condominium or cooperative, an HOA is administered by an elected board of directors, and an HOA’s
powers and duties include those powers and duties provided by law and in the governing documents.7
Florida law sets procedures and minimum requirements for HOA operation and provides for a
mandatory binding arbitration program, administered by the Division, for certain election and recall
disputes, but no state agency directly regulates HOAs.8
1 S. 718.103(11), F.S.
2 S. 718.104(2), F.S.
3 S. 718.103(2), F.S.
4 S. 718.103(4), F.S.
5 S. 719.103(2) and (26), F.S.
6 S. 720.301(9), F.S.
7 Ss. 720.301(8) and 720.303(1), F.S.
8 See, generally, ch. 720, F.S.
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Cooperatives as Personal and Real Property Interest
Background
A cooperative association’s real property9 is owned by the cooperative association, not the individual
unit owners.10 Thus, a person who buys into a cooperative does not receive title to a cooperative unit or
any portion of the cooperative’s building or land. Instead, the purchaser receives shares of the
cooperative association and leases a unit from the association.
An ownership interest in a cooperative is an interest in personal property,11 not real property.12 At
common law, a leasehold, even for as long as 99 years, was not considered an interest in real
property.13 However, a long-term leasehold interest is taxed in the same manner as a fee interest, so
courts generally regard long-term leaseholds to be an interest in real property for taxation purposes.14
A cooperative is treated as real property for some homestead purposes. Even though the legal
definition of homestead follows the common law and requires an interest in real property to qualify for
the homestead exemption, the Florida Constitution specifically extends the exemption to a cooperative
unit.15 Florida’s homestead laws govern the cooperative for purposes of exemption from forced sale by
creditors16 and for purposes of the ad valorem taxation exemption. However, a cooperative is not
subject to Florida’s homestead protections and is not considered real property for purposes of devise
and descent.17
In contrast, the Condominium Act specifically provides that a condominium parcel created by the
declaration is a separate parcel of real property.18 Thus, Florida law expressly converts an ownership
interest in a condominium into an interest in real property. Because there is no corresponding
cooperative statute, Florida courts have recognized that there is some confusion in this area and a
need for clarification on whether a cooperative ownership interest is an interest in real property or
personal property.19
Effect of Proposed Changes
CS/CS/HB 867 specifies that an interest in a cooperative unit is an interest in real property for all
purposes, including devise and descent.
9 Real property is anything that is permanent, fixed, and immovable, such as land or a building.
10 S. 719.103(12), F.S.
11 Generally, personal property is any object or right that is not real property, including stocks. Am. Jur. 2d Property § 18.
12 Downey v. Surf Club Apartments, Inc., 667 So.2d 414 (Fla. 1st DCA 1996).
13 Williams v. Jones, 326 So.2d 425, 433 (Fla. 1975); see generally The Florida Bar, Practice Under Florida Probate Code Chapter 19
(9th ed. 2017).
14 Id.
15 Art. VII, s. 6(a), Fla. Const. (“The real estate may be held by legal or equitable title, by the entireties, jointly, in common, as a
condominium, or indirectly by stock ownership or membership representing the owner’s or member’s proprietary interest in a
corporation owning a fee or a leasehold initially in excess of ninety-eight years.”).
16 Ss. 222.01 and 222.05, F.S.
17 Devise and descent is the transfer or conveyance of property by will or inheritance. Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d
566, 572 (Fla. 2nd DCA 2002); Phillips v. Hirshon, 958 So. 2d 425, 430 (Fla. 3rd DCA 2007); In re Estate of Wartels, 357 So.2d 708
(Fla. 1978); Black’s Law Dictionary (11th ed. 2019).
18 S. 718.103(11), F.S.
19 Phillips, 958 So.2d at 425; Levine v. Hirshon, 980 So.2d 1053 (Fla. 2008).
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HOA Governing Documents
Background
An HOA’s governing documents include the:
Recorded declaration of covenants for a community and all duly adopted amendments thereto;
HOA’s articles of incorporation and bylaws and any duly adopted amendments thereto; and
Rules and regulations adopted under the authority of the recorded declaration, articles of
incorporation, or bylaws and any duly adopted amendments thereto.20
The declaration of covenants, much like a constitution, establishes the community’s basic covenants
and restrictions.21 The articles of incorporation establish the HOA’s existence, basic structure, and
governance.22 The bylaws govern the HOA’s operation and administration, while the rules and
regulations typically supplement the other documents, addressing matters of everyday policy. 23
Unless otherwise provided in the governing documents or required by law, an HOA’s governing
documents may be amended by the affirmative vote of two-thirds of the HOA’s voting interests.24 Within
30 days after recording a governing document amendment, the HOA must give its members copies
thereof unless a copy was provided to the members before the vote on the amendment, in which case
the HOA must only provide the members with notice of the amendment’s adoption.25
Effect of Proposed Changes
The bill deletes an HOA’s rules and regulations from the definition of “governing documents.” This
means that provisions regarding governing document amendment would no longer apply to the rules
and regulations.
Multicondominiums
Background
A multicondominium is a real estate development with two or more condominiums operated by the
same association.26 For each condominium in a multicondominium, the declaration of condominium
must disclose or describe:
The manner by which the association’s assets, liabilities, common surplus, and common
expenses will be apportioned among the units within the various condominiums operated by the
association;
Whether unit owners in another condominium will or may have the right to use recreational
areas or any other facilities or amenities that are common elements of the condominium and the
specific formula by which the other users will share the common expenses related to those
facilities or amenities;
Recreational and other commonly used facilities or amenities which the developer has
committed to provide that will be owned, leased, or dedicated by a recorded plat to the
association but which are not included within the association’s condominium operation; and
Unit owner voting rights in the election of directors and in other multicondominium association
affairs when an owner vote is taken.27
A multicondominium may be formed by the merger or consolidation of two or more existing
20 S. 720.301(8), F.S.
21 Joseph Adams, HOA Governing Documents Explained (July 1, 2018), https://www.floridacondohoalawblog.com/2018/07/01/hoa-
governing-documents-explained/ (last visited Mar. 24, 2021).
22 Id.
23 Id.
24 S. 720.306(1), F.S.
25 Id.
26 S. 718.103(20), F.S.
27 S. 718.405(1), F.S.
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condominium associations.28
Effect of Proposed Changes
The bill changes the definition of “multicondominium” to specify that the multicondominium is real
property, not a real estate development. The bill also clarifies that a multicondominium association may
adopt a consolidated or combined declaration of condominium if the declaration complies with
applicable law and does not serve to merge the condominiums or change the legal description of the
condominium parcels, unless accomplished in accordance with law.
Quorum Requirements
Background
Under the Condominium Act, a board member’s participation in a meeting by telephone, real time
videoconferencing, or similar real-time electronic or video communication counts towards a quorum,
and such member may vote as if he or she is actually present at the meeting.29 A speaker must be
used so that the member’s conversations can be heard by members and unit owners physically present
at the meeting.30 However, the Cooperative Act only allows board members appearing by telephone to
count towards a quorum.31 Cooperative association board members appearing by telephone may vote
by telephone.32
Effect of Proposed Changes
The bill modifies the Cooperative Act’s board member quorum requirement to mirror that of the
Condominium Act, so that cooperative association board members may attend board meetings by real-
time videoconferencing or similar real-time electronic or video communication and have their presence
counted towards a quorum.
Association Emergency Powers
Background
Condominium associations, cooperative associations, and HOAs have emergency powers they may
exercise in response to damage caused by an event for which the Governor declares a state of
emergency in the area in which the condominium, cooperative, or community is located.33 These
powers include:
Conducting board or membership meetings after notice of the meetings is provided in as
practicable a manner as possible;
Canceling and rescheduling an association meeting;
Designating assistant officers who are not directors who have the same authority as the
executive officer if the executive officer is incapacitated or unavailable;
Relocating the association’s principal office or designating an alternative principal office;
Entering into agreements with counties and municipalities to assist with debris removal;
Implementing a disaster plan before or immediately after the event for which a state of
emergency is declared, which may include turning on or shutting off elevators; water, sewer, or
security systems; or air conditioners;
Determining whether association property can be safely inhabited, and determining that any
portion of the property is unavailable for entry or occupancy by unit or parcel owners or their