HOA ASSESSMENTS NEW 14 DAY PRE-ADOPTION NOTICE REQUIREMENT
 
HOA ASSESSMENTS
NEW 14 DAY PRE-ADOPTION NOTICE REQUIREMENT
This is another in a series of articles that will specifically address laws adopted by the Florida Legislature which were summarized in our July 1, 2004 e-Lawyer.

    As previously reported, the 2004 legislature adopted and the Governor approved two (2) totally independent bills relating to the operation of HOAs. As also reported, these two (2) bills contain some apparently inconsistent provisions resulting in the need to use the following rule of statutory construction found in Chapter 1 of the Florida Statutes:

Section 1.04  Statutory construction; amendatory acts passed at the same session. – Acts passed during the same legislative session and amending the same statutory provision are in pari materia, and full effect should be given to each, if that is possible.... Amendments enacted during the same session are in conflict with each other only to the extent that they cannot be given effect simultaneously. (Emphasis added.)

DESCRIPTION OF THE ISSUE:

    The specific issue addressed in this e-Lawyer is the reconciliation of the various new provisions that deal with the notices that must be given to the members prior to the adoption (levying) of assessments. Those provisions, which are all found in Section 720.303, now require the following:

A.     Section 2 of Bill # 2004-345 states:

'An assessment may not be levied at a board meeting unless a written notice of the meeting is provided to all members at least 14 days before the meeting, which notice includes a statement that assessments will be considered at the meeting and the nature of the assessments.' (Emphasis added.)

B.     Section 18 of the same Bill # 2004-345 then states:

'An assessment may not be levied at a board meeting unless the [regular] notice of the meeting includes a statement that assessments will be considered and the nature of the assessments.'; and

'Written notice of any meeting at which special assessments will be considered...must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting.' (Emphasis added.)

C.     Finally, Section 15 of Bill # 2004-353 states:

'An assessment may not be levied at a board meeting unless a written notice of the meeting is provided to all members at least 14 days before the meeting, which notice includes a statement that assessments will be considered at the meeting and the nature of the assessments'.; and

'Written notice of any meeting at which special assessments will be considered...must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting.' (Emphasis added.)

RECONCILIATION:

    As a result of the above described language, it is our opinion that the following statutory notice requirements now exist for the adoption of assessments by HOAs:

A.    NOTICE REQUIREMENTS FOR SPECIAL ASSESSMENTS:

    1.    Special 14 Day Posting Requirement:

A special notice must be posted at least 14 days before the board meeting announcing that a special assessment may be levied and indicating the nature of the special assessment;

    2.    Special Regular Board Meeting Posting Requirement:

The regular notice that is required to be posted before all board meetings must also announce the fact that a special assessment will be considered and indicate the nature of the special assessment; and

    3.    Special 14 Day Written Notice:

A special written notice must be also be mailed, delivered, or electronically transmitted to all members at least 14 days before the board meeting announcing the fact that a special assessment may be considered and indicating the nature of the special assessment.

B.    NOTICE REQUIREMENTS FOR ALL OTHER ASSESSMENTS (INCLUDING ANNUAL ASSESSMENTS):

    1.    Special Regular Board Meeting Posting Requirement:

The regular notice that is required to be posted before all board meetings must announce the fact that an assessment will be considered at the board meeting and must identify the nature of the assessment; and

    2.     Special 14 Day Written Notice:

A special written notice must be also be mailed, delivered, or electronically transmitted to all members at least 14 days before the board meeting announcing the fact that an assessment may be considered and identifying the nature of the assessment.

MINIMUM STANDARDS:

    Of course, many HOA documents already contain pre-assessment notice requirements. To the extent that such requirements exceed the above new statutory requirements, they must also be followed.

POST ASSESSMENT NOTICES:

    It is critical to remember that these new requirements do not deal with the notices that are sent to the members after the adoption of assessments advising them of the amount of the new assessments. Instead, these new laws require that the notices be sent to the members before the assessments are actually levied so that they can attend the meeting and discuss the same prior to adoption if they so wish.

The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.

 
©2004 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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