New HOA Fining Law Took Effect October 1

Q: You had previously written about some new changes that are coming up about how to handle fines in homeowners’ association. Can you give a brief summary of what we need to do? (M.J., via e-mail)

A: Several new homeowners’ association laws became effective October 1, 2023. Included in the changes are new provisions in Sections 720.305(2)(b) and (d) of the Florida Homeowners’ Association Act, which contain new procedures which must be followed to fine and/or suspend common area use rights.

Under previous law, there was an open question whether a hearing was required if the owner did not request one. The new law eliminates the ambiguity by eliminating the words “an opportunity for hearing” when referring to the fining/grievance committee’s hearing. It now seems clear that there must be a hearing whether the alleged violator attends or not.

In addition, the new law provides that the hearing notice “must include a description of the alleged violation, the specific action required to cure such violation, if applicable, and the date and location of the hearing.” The new law also provides that a parcel owner has the right to attend the hearing via telephone or other electronic means.

Finally, the new law states: “After the hearing, the committee shall provide written notice to the parcel owner at his or her designated mailing or e-mail address in the association’s official records and, if applicable, any occupant, licensee, or invitee of the parcel owner, of the committee’s findings related to the violation, including any applicable fines or suspensions that the committee approved or rejected, and how the parcel owner or any occupant, licensee, or invitee of the parcel owner may cure the violation, if applicable.”

Q: My condominium association is holding a vote on several issues. Many owners will vote by proxy. The meeting may have to adjourn to get enough votes for a quorum. The question is whether the proxyholders who come to the meeting can vote to adjourn, or if the owners that have signed the proxies have to specifically vote on that issue through their proxy? (D.F., via e-mail)

A: Section 718.112(2)(b) of the Florida Condominium Act states that owners in a residential condominium may not vote by general proxy but may vote by limited proxy substantially confirming to the limited proxy form adopted by the Division of Florida Condominiums, Timeshares and Mobile Homes, often referred to as the “Division.” The limited proxy form adopted by the Division does include a “general powers” grant, and the form has a place for the person signing the proxy to check off if they are giving their proxyholder general powers.

Pursuant to the Florida Condominium Act, general powers may not be used to vote on substantive issues, such as questions regarding amendments to the documents, waiver of statutory financial reporting requirements, votes regarding the use of waiver of reserves, or any other substantive vote provided for in the Florida Condominium Act.

General powers are appropriate for administrative votes that are brought before the meeting, such as approval of minutes, or adjourning or continuing a meeting. Therefore, if the limited proxy form that has been used for your meeting provides that the owners may grant their proxyholder general powers, which would include the power to adjourn or continue meetings, the proxyholder would have that authority. However, if the proxy form does not contain that language or if the unit owner that executed the proxy has not executed the proxy to give the proxyholder those powers, then those proxies may not be used for such purposes.

While Chapter 720 of the Florida Statutes, the Florida Homeowners’ Act, does not contain any similar limitations of the use of proxies, most homeowners’ association use proxies similar to the condominium format, and if so, the same answer would apply.