While there has been a lot of buzz about changes made in the
2023 Florida Legislative Session to laws affecting Associations, we need to address one potentially significant change: the seemingly innocuous flag bill – House Bill (HB) 437 — creates the new Florida Statute 720.3045 prohibiting homeowners' associations from regulating particular backyard storage.
As initially proposed, HB 437 increased the number and types of flags a homeowner could fly within a Homeowners Association. It raised the list of holidays during which a condominium owner could fly a second flag. In early April, HB 437 was amended to create a new Florida Statute 720.3045 statute that allows for displays beyond flags, including storage of "any items" not visible from the parcel's frontage or an adjacent parcel. The final bill signed by the Governor included this new storage statute.
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 September 11th.
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 permitted by statute. Also included on the list are various first responder flags a homeowner may fly, including the thin-blue-line flag, but this expanded list of flags does not apply to condominiums. 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, Florida Statute 720.3045 was created to prevent an association from regulating the installation, display, and storage of "any items" not visible from a parcel's frontage, from an adjacent parcel, or prohibited by local ordinance. The new section 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 include 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. Because FS 720.3045 uses this already-defined term to delineate where storage cannot be visible — and a parcel is not a drainage pond, a navigable waterway, a roadway, common greenspace, and usually not a golf course—an association is prohibited from regulating backyard storage only visible over a drainage pond, across a waterway, from a golf course or a community park. 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 that are visible:
- From a roadway abutting a corner lot
- Across a drainage pond
- From a community park
- From a golf course
- From a navigable waterway
- From a multi-story home not directly contiguous to the parcel storing items
Does the new Florida Statute 720.3045 Apply to Your Declaration?
The new storage statute purports to apply to homeowners' associations regardless of the restrictions within their covenants or other governing documents. But does it?
Most laws are prospective, so they apply from the date they become effective. The Constitution of the State of Florida, Article I, Section 10 prohibits the enactment of any law impairing the obligation of contracts, such that some Associations may be able to avoid the harm of this new storage statute. However, if your governing documents contain language incorporating the Florida Statutes as they become amended into the entirety of your Declaration, your Declaration now allows backyard storage.
Article 1, Section 10 of Florida's Constitution 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 case law explaining how and when a new statute can be imposed to change rights and obligations contained within a previously recorded declaration.
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