2021 Legislative Session and Updates
FirstService Residential understands the impact of these important legislative matters on Florida’s community associations and continues to advocate for the associations in the Florida legislature, as part of our promise of excellent service delivery to our customers. Our work with industry stakeholders on important legislative matters continues, tending to bills which may impact Florida’s community associations and those who live and work in them. Following are the main bills the Florida legislature will address this session and some updates.
When the coronavirus pandemic broke last spring, FirstService Residential went to work with policy makers to mitigate the impact on those living, volunteering, and working in Florida’s community associations. This included keeping people safe while maintaining an association’s ability to operate via its Emergency Powers and the need for the legislature to set liability limits for community associations. On March 29, 2021, Governor Ron DeSantis signed a bill that shields Florida businesses from lawsuits claiming COVID-19 injuries or damages. Based on a legislative finding that a “strong and vibrant economy” is essential to ensuring Floridians can continue to work, the law sets heightened pleading requirements, provides immunity for businesses and non-profit corporations such as associations, who took good faith preventive efforts, and places a one-year statute of limitations on these lawsuits. The law became effective immediately. The new law requires a complaint that asserts a COVID-19 claim for damages, injury, or death to be pled with particularity and include an affidavit signed by an active physician, attesting that, within a reasonable degree of medical certainty, the alleged injuries or damages were the result of the defendant’s actions or omissions. Should the plaintiff fail to comply with either requirement, the court must dismiss the lawsuit.
In addition, the law requires the court to determine whether the defendant (association, manager, vendor, etc.) made a good faith effort to comply with government-issued health standards or guidelines. The plaintiff (the party suing) bears the burden of demonstrating the defendant lacked good faith efforts. A defendant found to have made such good faith efforts would be immune from civil liability. However, even if a defendant lacked such efforts, the plaintiff must still prove, by clear and convincing evidence, that the defendant acted with gross negligence.
The new law’s one-year statute of limitations applies retroactively. For example, for causes of action that accrued before the law’s effective date of March 29, 2021, the statute of limitations would begin to run on the effective date. The law provides legal protections for a broad range of individuals and entities, including businesses, charities, associations, educational and religious institutions. The law does not apply to health care providers, which will be addressed in separate legislation.
Community Association Package (including expansion of emergency powers):House Bill 867 and Senate Bill 630 are a collaboration between the Real Property Section of the Florida Bar, Florida Association of Realtors, Florida Homebuilders Association and the Florida Association of Insurance Agents. These bills deal with everything from allowing condominiums to use the same non-binding arbitration process for dispute resolution that HOAs currently use, to clarifying that board member term limits of 8 years began on July 1, 2018. (You may have served on your Board for 10 years prior to when the law changed in 2018 establishing term limits but your 8-year limit didn’t commence until that date). The legislation also increases the amount that can be charged for a transfer fee from $100 to $150. As mentioned above in the Covid Liability section, this bill package also establishes that associations’ emergency powers extend to a health emergency, not just a natural emergency (such as a hurricane) as has previously been the case. They essentially codify into law the emergency action that FirstService worked on with Florida’s Division of Business and Professional Regulation (DBPR) to issue last spring, allowing associations to conduct business virtually, adopt rules pertaining to access, etc.
Insurance:One of the biggest issues facing associations is skyrocketing insurance rates or lack of coverage altogether. While the legislature is limited to what they can do to a global market facing a significant increase in perils, there are targeted things they can do to curtail fraud and abuse in the system. There will be several bills dealing with insurance, but one piece that will help a great deal is also found in the Community Association Package mentioned above (House Bill 867 and Senate Bill 630). It deals with subrogation, where one carrier can sue another carrier to be reimbursed after they have paid for a claim. Currently, a condo association’s master insurance policy cannot go after a unit owner’s policy, but if an owner’s negligence leads to a loss under the associations policy, the association may certainly go after that owner for recourse. However, a unit owner’s policy may go after the association’s master policy even if the loss was the fault of the unit owner. Some unit owner policy carriers have made it a standard practice to go after the association’s master policy carrier on all claims. Language in the bill returns it to an even playing field; all policies cover what they are responsible for and neither carrier may subrogate against the other.
Vacation Rentals:House Bill 219 and Senate Bill 522 will again make their annual appearance this session. The major difference is that BOTH bills completely eliminate their ability to impact associations’ restrictions on short-term, vacation rental restrictions. These bills remain controversial for local governments because their ability to specifically regulate vacation rentals would be preempted to the state. Currently, the state does not regulate them, so local governments have passed ordinances to do so. These bills set up a structure whereby the DBPR would regulate them as the hotels they are but keep in place an association’s ability to regulate them as their documents provide. If these pass in the 2021 legislative session, the good news is that associations are protected.
As part of our promise of excellent service delivery to our customers, FirstService Residential will continue to advocate for the associations it manages in the Florida legislature.