Q&A of the Day – What Changes w/Florida’s New HOA Law
Each day I feature a listener question sent by one of these methods.
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Today’s Entry: My HOA is saying they’re not going to update to the new law due to the “Kaufman language”. What is that and can they ignore the new law?
Bottom Line: Last week Governor DeSantis signed a bill that has the potential to directly impact the daily lives of about half of the state’s population starting July 1st. It was the Homeowners’ Associations bill, aka the Homeowner’s Bill of Rights. Approximately 45% of Floridians live in a community governed by an HOA, a number that jumps to over 50% for those who own their home and that’s also a number that’s rising. It’s no secret that Florida sports a booming population with loads of regular home construction to account for it. 82% of all new home construction has been taking place within communities governed by HOAs.
The sweeping 44-page legislation is the state’s most aggressive move to rein in what some residents would suggest are overly aggressive HOAs in the state. Due to many meaningful changes that are expected to be in place in less than a month many homeowners and boards are attempting to understand what the impact with be for them in their communities. The answer varies based upon the size of a community, property types and yes, as is cited in today’s question language within an association’s documents. Let start with what all associations must adhere to under the new law effective July 1st:
- Associations may not selectively enforce bylaws
- Associations may not ban residents or their guests from parking non-commercial vehicles on a resident’s property or designated parking area
- Associations may not issue mandates for visual displays inside of a home’s interior that isn’t visible from the outside
- Associations may not fine residents for having trash or recycling bins at the street within 24 hours of a scheduled pickup
- Associations may not issue fines to residents prior to providing notification about a potential violation
- Associations may not ban contractors or service workers from a resident’s property
- Associations may not ban vegetable gardens or clotheslines if they’re not visible by those not on a resident’s property
- Associations may not require approval for cooling and heating systems that aren’t visible by others
Beyond those mandates for all associations there are additional disclosure/transparency provisions under the new law that kick in for HOAs with 100 or more units effective January 1st and an additional requirement for audited financial statements for associations with 1,000 or more units. In addition to the new association guidelines there are new education requirements for association directors (financial literacy, recordkeeping and legal), meeting attendance requirements and transparency guidelines. That takes us to your question about the “Kaufman language”.
The so-called “Kaufman language” is in reference to a 1977 case in which a judge ruled in a way that allowed associations to use broad language in their governing documents that allow for changes in law overtime. Without getting into a bunch of legal mumbo jumbo... Florida’s co-ops and condominiums are addressed in Chapter 718 of the Florida Statutes (the Florida Condominium Act) and HOAs are addressed under Chapter 720 (the Homeowners Association Act). The legal ruling in the Kaufman case allowed associations to incorporate this statement in their documents: “This community shall be governed by Chapter 718/720 of the Florida Statues as exists on the date hereof, and as same may be amended from time to time”.
Many associations have adopted that language in the decades since that case as it allows communities to use existing documents without having to pay for the legal expenses of crafting and reissuing new documents with changes in law overtime. The note that you received stating that your association would not be “updating to the new law” due to Kaufman language appears to be an example of poorly worded communication that can cause confusion among residents. Your association will be made to adhere to the new law; however, they likely won’t need to reissue documents to do it.