In this second blog post in a series providing 2018 legislative updates, we discuss legislative changes affecting material alteration requirements and material alterations as they relate to electric vehicle owners. HB 841, which became effective on July 1, 2018, has various profound impacts affecting both areas. Find part one of this series here.
General Material Alteration Guidelines
The term “material alteration” means to palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use or appearance. Hence, material alterations occur when condominium associations alter the building and require seventy-five (75%) member vote, unless the declaration of condominium says otherwise.
Previously, if a material alteration was performed without a member vote that was required, some Courts (or arbitrators with the Florida Division of Condominiums, Timeshares, and Mobile Homes) have required the association to simply obtain a corrective member vote after making the alteration. This year, statute HB 841 was changed to state that associations must obtain the vote before making the alteration. Thus, material alterations can no longer be retroactively ratified after the work starts. While the law states that it is intended to “clarify” existing law, it is debatable whether the change is a clarification. The new law means that associations have to be very proactive before starting any alterations because there will arguably no longer be an ability to ratify alterations after the fact. However, there is also a potential interpretation that this new change only applies when the declaration is silent on material alterations (which is not often the case).
Electric Vehicle Owner Alterations
HB 841 also made significant changes regarding electric vehicle owner alterations. It now requires associations to allow owners to install electric vehicle charging stations. Previously, restrictions in the declaration and/or statutory requirements could have prohibited a unit owner from installing a charging station in the common elements, including limited common element parking spaces. Now with HB 841, building restrictions cannot prevent charging stations because the statute provides a detailed set of requirements for the unit owner and protections for the association, including a specific provision that states that work to install an electric vehicle charging station for an owner cannot give rise to a mechanic’s lien against the association, but only against the unit owner. Unit owner requirements include:
- Comply with safety requirements, consistent with applicable building codes or recognized safety standards.
- Comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards may not prohibit the installation of such charging station or substantially increase the cost thereof.
- Engage the services of a licensed and registered electrical contractor or engineer familiar with the installation and core requirements of an electric vehicle charging station.
- Provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging stationwithin 14 days after receiving the association’s approval to install such charging station.
To learn more about these particular changes, and others, please read our Daily Business Review article on this topic.
Furthermore, navigating these new rules can be complicated, and expertise in condominium and homeowners’ association law is required. It is recommended that you speak with an experienced Miami association law attorney who will understand these new laws and how they apply to your association. The above information does not serve as legal advice.
About the Author
Jonathan S. Goldstein is a partner at Haber Slade and the Community Association Department Leader. His practice areas include Condominium and Homeowners Association (HOA) law, commercial litigation, and construction litigation. He has represented community associations in all facets of general representation and collections, including but not limited to, turnover and construction related disputes, covenant enforcement, amendment drafting, meeting attendance, arbitration before the Division of Florida Condominiums, and corporate governance.