May 12, 2023 | Bryony Swift, Esq.
The 2023 Florida Legislative Session has come to an end, and one of the first laws to be signed by the governor is House Bill (HB) 437 concerning flags, displays and outdoor storage in homeowner associations. HB 437 creates new Florida Statute 720.3045.
As originally proposed, HB 437 sought to expand the right of an owner to fly flags on the owner’s property. It increased the number and types of flags a homeowner could fly within a Homeowners Association, and increased the list of holidays during which a condominium owner could fly a second flag. However, during the legislative process, HB 437 was amended to create a new statute allowing for displays, beyond flags, including storage of “any items” not visible from the parcel’s frontage or an adjacent parcel. The storage provision was included in the final bill that was signed by the Governor.
HB 437 Revises Several Statutes, And Creates a New Storage Statute:
Florida Statute 718.113 was amended to add Patriot Day to the list of holidays for which a condominium unit owner may fly an additional portable removable flag. Patriot Day is the third Monday of April.
Florida Statute 720.304 was amended to allow the flying of two flags, regardless of any provision in the Association governing documents to the contrary, and to expand the list of flags allowed by statute. A variety of first responder flags are now included in the list of flags a homeowner may fly, but this expanded list of flags is not applicable to condominiums. Florida Statute 720.304(2)(a) allows a homeowner to fly any two portable flags from the list provided in the statute, while Florida Statute 720.304(2)(b) allows a homeowner to fly the U.S. Flag and one other flag from the expanded list provided in the statute on a freestanding flagpole.
Florida Statute 720.3075 was amended to increase the number of flags a homeowners’ association cannot prohibit, from one to two.
Of particular importance to homeowners associations, new Florida Statute 720.3045 was created to allow installation, display, and storage of items not visible from the parcel’s frontage or an adjacent parcel. It allows a homeowner or their tenant to store “any items” including, but not limited to, boats, RVs, and artificial turf, so long as such items are not visible from the frontage of the parcel, or visible from an adjacent parcel, or prohibited by local ordinance. The term Parcel is defined in Florida Statute 720.301(11) to mean a subdivision of real property within a community, capable of separate conveyance, as described in a declaration, for which a parcel owner must be a member of an Association and pay assessments which could result in a lien. As such, a drainage pond, a navigable waterway, a roadway, are not considered an adjoining parcel; likely, neither is a golf course. Because only stored items visible from the frontage of a parcel or an “adjacent parcel” may be objected to by the Association under this new statute, we expect significant complaints about stored items visible: from a roadway abutting a corner lot, across a pond, or from a golf course, as well as stored items visible from a navigable waterway, and items visible from a multi-story home not directly contiguous to the parcel storing items. However, some Associations may be able to avoid the harm of this new statute, if their governing documents do not incorporate the Florida Statutes as amended from time to time language into the entirety of their declaration.
Does the Storage Statute Apply to your Declaration?
In Article 1, Section 10, the Constitution of the State of Florida prohibits a substantive law from impairing a previously existing obligation of contract. Over time, Florida’s constitutional protections for the right to contract have led to a body of caselaw law explaining how and when a new statute can be imposed on a previously existing declaration. One of the most well-known cases in this body of caselaw is Kauffman v. Shere, the case that explains the legal impact of the language: “Florida Statutes as amended from time to time.” As a Florida contract, a declaration is deemed to include the law as it exists on the date the contract is created. The phrase “as amended from time to time” or some variation of those words can be used to incorporate future changes to the Florida Statutes into the previously existing declaration. In Kauffman v. Shere, the declaration at issue included the Florida Condominium Act as it existed on the date the contract was entered into, but also included the Condominium Act “as it may be amended from time to time”. The courts interpreted that language, which came to be known as Kauffman language, as incorporating future statutory changes into that declaration.
For many years after Kauffman was decided, it was common practice for attorneys drafting declarations to include the Kauffman language, “as amended from time to time“, into the very definition of the law controlling the declaration, thereby brining all future changes to the statutes into every section of the declaration. But, in recent years such a broad use of Kauffman language has become disfavored. When I draft a declaration, I am careful to incorporate future statutory changes into the document only in the sections where I expect future changes would be beneficial to the Association. My service on several committees involved in legislation helps me to make informed decisions, but there is still some element of speculation. One cannot know for certain what the legislature will do in any legislative session. Case in point: no one could have predicted this new storage statute.
Returning to the new storage statute, F.S. 720.3045, in light of Kauffman v. Shere: Florida Statute 720.3045 is substantive, it changes a substantive right when it purports to grant a person the right to store items where previously a person did not have the right to store items. As such, Article 1, Section 10, of the Constitution of the State of Florida would protect a homeowners association declaration from having this new substantive right imposed, unless the declaration incorporates the Florida Statutes as amended from time to time. If the declaration contains Kauffman language in a way that incorporates all future changes in the law into all sections of the declaration, then your homeowners’ association is obligated to allow backyard storage of any item, so long as that item is not visible from the frontage or an abutting parcel or prohibited by local ordinance.
If you would like to amend your declaration, to remove a broad use of Kauffman language in favor of a narrower approach to incorporation of future statutory changes, please contact me at bgs@phkhlaw.com.
Bryony Swift, Esq. is a partner and shareholder in Porges, Hamlin, Knowles & Hawk, PA. She practices in the area of community association law. She is also an active member of the Florida Legislative Alliance that meets with Florida lawmakers each legislative session.
