Undeterred by the failure to gain passage of a similar bill in both the 2015 and 2016 legislative sessions, the supporters of estoppel letter reform returned to the Florida Legislature in 2017 with Senate Bill (SB) 398 and its House counterpart. Like the little engine that could, and despite opposition which plagued prior efforts, SB 398 was passed by both houses of the Florida Legislature and later signed by Governor Rick Scott on June 14, 2017. SB 398 was then assigned Session Law 2017–93 and its provisions became law effective July 1, 2017. SB 398 amends all three of Florida’s primary community association statutes – Chs. 718 (condominiums); 719 (cooperatives); and 720, F.S., (homeowners’ associations).
Requests for Estoppel Certificates and Association Response
The new law amends Sec. 718.116(8), F.S., to reduce the time period for a condominium association to furnish an estoppel certificate to the requesting person from 15 days to 10 business days, when the request is made to the association in writing or electronically. The certificate must be provided by hand delivery, regular mail, or email to the person who requested the information on the date the certificate is issued. The request for the estoppel certificate should be sent to the person whose identity and street or email address is designated by the association on its website. Any board member, authorized agent or authorized representative of the association, or authorized agent or employee of the management company employed by the association may complete the estoppel certificate.
Required Content for Estoppel Certificate
Great care was taken in setting forth detailed required content for estoppel certificates when drafting the statutory amendments. Of note, the certificate must contain:
Any open violations of rules or regulations;
Board of Directors’ approval needed for a pro- posed transfer of title to a unit or parcel, if ap- plicable;
Right of first refusal in the association or its members, if applicable;
Names and contact information for all other associations which apply to the unit or parcel;
Contact information for insurance maintained by the association; and
Signature of officer or authorized agent of the association.
Time of Effectiveness of Estoppel Certificate
If delivered by hand or sent by electronic means to the person who requested it, the estoppel certificate is effective for 30 days. If sent instead by regular mail, the certificate is effective for 35 days. When the association or its agent must provide an amended estoppel certificate because of additional information or a mistake made known to the association within the efficacy of the original certificate, the amended certificate gets a new 30 or 35 day effective period, as applicable, and the association may not charge an additional fee for the amended certificate.
Of great relevance to real property practitioners, with respect to persons who rely in good faith upon the content of the estoppel certificate, or their successors or assigns, the association waives its rights to collect any monies owed in excess of the amounts demanded in the estoppel certificate.
Allowable Fees for Estoppel Certificates
The statutory amendments build on existing law allowing a “reasonable fee” to be charged by the association for estoppel certificates by capping that fee at $250. However, if delinquent amounts are owed to the association, an additional $150 may be charged. An estoppel certificate provided upon request on an expedited basis is subject to an additional $100 fee. “Expedited” in the context of this statute equates to within three business days. No fee may be collected by the association when the estoppel certificate is delivered more than 10 business days after receipt of the request.
Recognizing that many owners in condominiums own more than one unit subject to assessments from a common association or associations, the new law also caps fees which may be charged
for simultaneously-requested estoppel certificates regarding units with the same owner, provided there are no past due monetary obligations owed.
Mindful of economic fluctuations, the amendment provides that the fees associations may charge for the preparation and delivery of estoppel certifications will be adjusted every five years based on the Consumer Price Index.
When Transactions Do Not Close
Prior to the 2017 legislative session, Chs. 718 and 720, F.S., already provided for a mandatory refund of the fees paid for an estoppel certificate when a transaction failed to close and a written request for refund was made to the preparer of the certificate within 30 days after the proposed closing date. However, the right to a refund of the fees could be waived. SB 398 now amends Secs. 718.116(8)(h) and 720.30851(8), F.S., to provide that the right to reimbursement may not be waived or modified by contract or agreement and the prevailing party in an action to enforce a right of reimbursement shall be awarded damages, attorney fees, and costs.
By contrast, Ch. 719, F.S., did not previously contain a fee-refund mandate, but SB 398 now adds that to the cooperative statute with the creation of Sec. 719.108(6), F.S. The addition also includes the non-waiver and prevailing party provi- sions described above.
Apart from the changes to the Condominium Act, SB 398 also amended Secs. 719.108 and 720.30851, F.S., to bring the three primary community association statutes into substantial respective conformity in terms of estoppel certificate content and procedure. This is consistent with the manner in which the Legislature has handled these statutes in recent times; although historically, similar changes are not always made to all three statutes in the same legislative year.
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