Stars, Stripes, and Stealthy Storage: The Dual Dynamics of H.B. 437

Jay Fraiser, Partner with Moorhead Law Group of Pensacola and Santa Rosa Beach, Florida, recently recapped H.B. 437 that went into effect July 1, 2023.

With the new law come significant changes that homeowner associations must be aware of. Several existing statutes were amended to permit owners more rights to display flags, and a new storage statute was passed that could limit what items associations may prohibit from their members’ properties despite conflicting provisions in existing governing documents.
 

Expanded Flag Display Rights
Patriot Day, celebrated on the third Monday of April, is now included in the list of holidays condo owners may display a flag. Fla. Stat. § 718.113 (2023). Condo owners are permitted to display one portable, removable flag representing the armed forces on certain holidays. Id.

Homeowners, however, are permitted to display two (formerly one) portable, removable flags, regardless of any restrictions in an HOAs governing documents. Additionally, the list of permitted flags (formerly the United States Flag and the Flag of the State of Florida) is expanded to include flags of the armed forces, the POW-MIA flag, and several first-responder flags. But this list only applies to HOAs (sorry, condo owners). Fla. Stat. § 720.304 (2023). The new flags are also permitted on freestanding flag poles if flown below a United States flag. Id. All flags must be displayed respectfully and flown in a manner consistent with the requirements of the United States Flag under the Flag Code. Fla. Stat. § 720.3075 (2023).

While these changes are certainly noteworthy, H.B. 437 introduced an even more impactful amendment that may necessitate reviewing and potentially revising current association declarations.

Impact on Association’s Control Over Property Storage
The new amendment prohibits associations from restricting owners or their tenants from installing, displaying, or storing any items on a parcel that are not visible from the parcel’s frontage or an adjacent parcel. Fla. Stat. § 720.3045. The legislature specifically included artificial turf, boats, flags, and RVs, but the law is not limited to those items. Id.

It’s important to note that the word parcel is defined in Florida’s statutes. Fla. Stat. § 720.301(11). “Parcel” means 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. Id. Prohibited items only visible from a parcel not adjacent to the property or visible from land that is not a parcel under the statute cannot be objected to by an association.

If you are worried about how this new law may impact your association, you may be able to breathe a sigh of relief.

A Legal Lifeline for Associations
Florida’s Constitution prohibits a law from impairing a previously existing contract obligation. Art. I, § 10, Fla. Const; Searcy, Denney, Scarola, Barnhart & Shipley, etc. v. State, 209 So. 3d 1181, 1191 (Fla. 2017). Well-known in the world of property association lawyers is the case of Kaufman v. Shere, where the Third District Court of Appeals explained the phrase: “Florida Statutes as amended from time to time.” 347 So. 2d 627, 628 (Fla. 3d DCA 1977) (emphasis added). In Florida, contracts are deemed to include the law as it exists when the contract is created, but when a contract includes “as amended from time to time” or words to that effect, the contract may incorporate future changes in the law into the agreement. Florida’s Constitutional provision may protect your homeowners’ association declaration from the new law if the declaration preexists the law and does not include the Kaufman language.

In light of H.B. 437, a review of your association’s documents and a discussion about revising your association’s governing documents may be in order. Don’t navigate these changes alone. We’re here to help you understand and adapt to these new legal landscapes.