Legal Matters – S. Kyla ThomsonSpecial to Naples Daily News
Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Delray Beach, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: I have heard that there have been recent changes in the law that requires a condominium association to send a special late notice to owners who are delinquent in payment of their assessments. Can you provide more information regarding the recent changes? J.C., Bonita Springs
A: There was an amendment to the Condominium Act, which took effect on July 1, 2021. Prior to July 1, 2021, each condominium association, depending on the requirements of its Declaration of Condominium or Bylaws, would send a delinquent owner a late notice letter with a specific number of days to remedy the delinquency or be subject to additional action, including legal action. The issue here is that there was no consistency to these late notices. Most condominium association documents did not require these late notices and if a condominium association chose to send the late notices, it was usually in the board’s discretion to determine the number of days to provide the owner to remedy the delinquency.
As of July 1, 2021, a condominium association may not require the payment of attorney’s fees related to a past due assessment without first delivering a written notice of late assessment to the owner. The notice of late assessment must specify the amount owed, late fee (if applicable), any interest incurred, and the total amount owed to the condominium association. The notice of late assessment must be sent via first class mail to the unit address and to the owner’s last mailing address as provided in the condominium association’s records, if any. The language of the notice of late assessment must provide the owner with thirty (30) days from the date of the notice to pay the amounts owed or further collection action will be commenced. In order to assist the condominium associations, the Florida Legislature provided a form of the notice of late assessment in Section 718.121(5), Florida Statutes.
The board of directors should consult with its legal counsel regarding implementing these changes into the condominium association’s collections process. Additionally, it is important to note that these changes also took effect for Homeowner’s Associations (720.3085(3)(d), Florida Statutes) and Cooperatives (719.108(3)(c), Florida Statutes).
Q: Our homeowner’s association (HOA) would like to pursue enforcement of its restrictions by fining and suspending the use rights to our amenity center (pool, fitness center, etc.). However, we cannot find enough people to serve on the fining/suspension committee. Is this committee required or can the board move forward with collecting a fine or suspending an owner’s right to use the amenity center without the fining/suspension committee? R.M., Naples
A: In my opinion, this fining/suspension committee is required if your HOA wants to impose a fine or suspend a common area use right. Generally, an HOA is allowed to fine or suspend common area use rights, such as the use of specific amenities like the pool or the fitness center, as a consequence for an owner’s or his/her guests’ or invitees’ violation of the HOA’s restrictions. That being said, Florida law states that a fine or suspension by the board of directors may not be imposed unless the board first provides at least 14 days’ notice to the owner sought to be fined or suspended and an opportunity for a hearing before a committee of at lease three (3) members appointed by the board who are not officers, directors, or employees of the HOA, or the spouse, parent, child, brother, or sister of an officer, director, or employee. At the hearing, if the fining/suspension committee, by majority vote, does not approve a proposed fine or suspension, the proposed fine or suspension may not be imposed. Further, the law states that the role of the fining/suspension committee is limited to determining whether to confirm or reject the fine or suspension levied by the board.
The language in Chapter 720, Florida Statutes (the HOA Act) would seem to imply that a fining/suspension committee hearing is required if your board intends to move forward with imposing a fine or suspension of common area use rights. However, there is some debate regarding whether a fining/suspension committee hearing is actually required or only the opportunity for the hearing is required and if the owner does not request a hearing, then no hearing is required. I believe it is reasonable to assume that the fining/suspension committee’s role is not just to determine whether a violation occurred but also whether the amount of fine or duration of the proposed suspension is suitable. To that end, I recommend the HOA conduct the fining/suspension committee hearing whether or not the owner requests the hearing. Further, I also recommend that you consult with your legal counsel to review whether your Declaration of Covenants and Bylaws require any other procedural requirements necessary to levy the fine or suspension.
Q: My community limits each owner to one (1) pet per unit. There is an owner with two (2) pets in her unit. However, she claims that one (1) animal is her pet and the other is her emotional support animal. Is this allowed? R.T., Naples
A: If we assume that the owner’s request for her emotional support animal is valid, then the owner will be allowed to keep one (1) pet, in compliance with your community’s one (1) pet restriction, and the emotional support animal.
The Fair Housing Act, the law on which the owner’s emotional support animal request is based, does not consider or recognize emotional support animals or other assistance animals as pets. Instead, they are considered tools that work, provide assistance, perform tasks for the benefit of a person with a disability, or provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Additionally, while dogs are the most common types of emotional support or assistance animals, other animals can also serve as emotional support or assistance animals.
That being said, the answer to this question assumes that the owner’s request for an emotional support animal is valid. However, your community’s board of directors should ensure that the owner has provided the documentation, where the disability is not readily apparent, in order to properly validate the request for an emotional support animal. It is important that your board of directors consult its legal counsel regarding whether documentation provided is sufficient as each request is unique and must be treated on a case-by-case basis.
S. Kyla Thomson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Visit http://www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: email@example.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.