Homeowners' Associations; creating an
Office of the Homeowners' Association Ombudsman within the Division of
Florida Land Sales, Condominiums, and Mobile Homes; providing for the office's
independence from the division; prescribes procedures for elections
& recalls; prescribes rights of members & parcel owners to attend
& address association board meetings & to have items placed on
agenda; prescribes owners' rights with respect to flag display; prohibits
certain lawsuits against parcel owners; provides that fine by association
cannot become lien against parcel, etc. Amends FS. 720
CODING: Words stricken
are deletions; words underlined are
additions.
25-1330A-04
1
A bill to be entitled
2
An act relating to homeowners' associations;
3
amending s. 720.301, F.S.; defining
the term
4
"division"; amending s.
720.302,
F.S.;
5
prescribing a legislative purpose of
providing
6
alternative dispute resolution
procedures for
7
disputes involving elections
and recalls;
8
amending s. 720.303, F.S.; prescribing rights
9
of members and parcel owners to attend and
10
address association board meetings and to have
11
items placed on an agenda; prescribing
12
additional requirements for notice of meetings;
13
providing for additional materials to be
14
maintained as records; providing additional
15
requirements and limitations with respect to
16
inspecting and copying records; providing
17
requirements with respect to financial
18
statements; providing procedures for recall of
19
directors; amending s. 720.304, F.S.;
20
prescribing owners' rights with respect to flag
21
display; prohibiting certain lawsuits against
22
parcel owners; providing penalties; amending s.
23 720.305,
F.S.; providing that a fine by an
24
association cannot become a lien against a
25
parcel; providing for attorney's fees in
26
actions to recover fines; creating s. 720.3055,
27
F.S.; prescribing requirements for contracts
28
for products and services; amending s. 720.306,
29
F.S.; providing for notice of and right to
30
speak at member meetings; prescribes procedures
31
for elections & recalls;
1
1
amending s. 720.311, F.S.; creating an Office of the Homeowners'
2
Association Ombudsman within the Division of Florida
3
Land Sales, Condominiums, and Mobile Homes; providing
4
for the office's independence from the division; establishing
5
powers and duties; provide training programs for homeowners'
6
association board members and unit owners; creating Advisory
7 council;
transferring,
renumbering, and amending s.
8 689.26,
F.S.; prescribing standards for a
9
disclosure summary of association membership
10 requirements;
creating s. 720.402, F.S.;
11 providing
remedies for publication of false and
12 misleading
information; creating s. 720.501,
13 F.S.;
providing implied warranties relating to
14 real
and personal property; amending s. 34.01,
15 F.S.;
providing jurisdiction of disputes
16 involving
homeowners' associations; amending
17 ss. 316.00825,
558.002,
F.S.; conforming
18 cross-references;
providing for internal
19 organization
of ch. 720, F.S.; providing an
20 effective
date.
21
22 Be It Enacted by the Legislature
of the State of Florida:
23
24
Section 1. Present subsections (6) through (11) of
25 section 720.301, Florida
Statutes, are renumbered as
26 subsections (7) through (12),
respectively, and a new
27 subsection (6) is added to that
section, to read:
28 720.301
Definitions.--As used in ss. 720.301-720.312,
29 the term:
30
31 (6)
"Division" means the Division of Florida Land
2
1 Sales,
Condominiums, and Mobile Homes in the Department of
2 Business
and Professional Regulation.
3
4
Section 2. Subsection (2) of section 720.302, Florida
5 Statutes, is amended
to read:
6 720.302
Purposes, scope, and application.--
7
(2) The Legislature recognizes that it isnot
in the
8 best
interest of homeowners' associations or the individual
9 association
members thereof to create an Ombudsman's
10 office
to regulate the affairs of homeowners' associations
11 and
creates this office according to720.311,
12 the
Legislature finds that homeowners' associations
13 and
their individual members will benefit from an expedited
14 alternative
process for resolution of election and recall
15 disputes
and presuit mediation of other disputes involving
16 covenant
enforcement and authorizes the division to hear,
17 administer,
and determine these disputes as more fully set
18 forth
in this chapter. Further, the Legislature
recognizes
19 that certain
contract rights have been created for the benefit
20 of homeowners'
associations and members thereof before the
21 effective date of this act and
that ss. 720.301-720.501 ss.
22 720.301-720.312
are not intended to impair such contract
23 rights, including, but not limited
to, the rights of the
24 developer to complete the community
as initially contemplated.
25
Section 3. Section 720.303, Florida Statutes, is
26 amended to read:
27 720.303
Association powers and duties; meetings of
28 board; official records; budgets;
financial reporting;
29 association
funds; recalls.--
30
(1) POWERS AND DUTIES.--An association which operates
31 a community as defined in s.
720.301,
must be operated by an
3
1 association that is a Florida
corporation. After October 1,
2 1995, the association must
be incorporated and the initial
3 governing documents must
be recorded in the official records
4 of the county in which the
community is located. An
5 association may operate
more than one community. The officers
6 and directors of an association
have a fiduciary relationship
7 to the members who are served
by the association. It is the
8 intent
of the Legislature that nothing in this subsection be
9 construed
as providing for or removing a requirement of a
10 fiduciary
relationship between any manager employed by the
11 association
and the parcel owners. An officer, director, or
12 manager
may not solicit, offer to accept, or accept any thing
13 or service
of value for which consideration has not been
14 provided
for his or her own benefit, or that of his or her
15 immediate
family, from any person providing or proposing to
16 provide
goods or services to the association. Any such
17 officer,
director, or manager who knowingly so solicits,
18 offers
to accept, or accepts any thing or service of value
19 commits
a felony of the third degree, punishable as provided
20 in s.
775.082 or s. 775.084, and shall thereafter be
21 permanently
disqualified from serving on the board of
22 directors
of the association or serving as an officer of the
23 association.
However, this subsection does not prohibit an
24 officer,
director, or manager from accepting customary
25 amenities
provided in business relationships, such as food and
26 drinks
at meetings or conferences, business lunches not
27 exceeding
$20 per person, or marketing trinkets, which
28 include,
but are not limited to, pens, key chains, scribble
29 pads,
and calendars, provided that the value of each item does
30 not
exceed $20. The powers and duties of an association
31 include those set forth in this
chapter and, except as
4
1 expressly limited or restricted
in this chapter, those set
2 forth in the governing documents.
After control of the
3 association is obtained
by members unit
owners other than the
4 developer, the association
may institute, maintain, settle, or
5 appeal actions or hearings
in its name on behalf of all
6 members concerning matters
of common interest to the members,
7 including, but not limited
to, the common areas; roof or
8 structural components of
a building, or other improvements for
9 which the association is
responsible; mechanical, electrical,
10 or plumbing elements serving
an improvement or building for
11 which the association is responsible;
representations of the
12 developer pertaining to any existing
or proposed commonly used
13 facility; and protesting ad valorem
taxes on commonly used
14 facilities. The association may
defend actions in eminent
15 domain or bring inverse condemnation
actions. Before
16 commencing litigation against
any party in the name of the
17 association involving amounts
in controversy in excess of
18 $100,000, the association must
obtain the affirmative approval
19 of a majority of the voting interests
at a meeting of the
20 membership at which a quorum
has been attained. This
21 subsection does not limit any
statutory or common-law right of
22 any individual member or class
of members to bring any action
23 without participation by the
association. A member does not
24 have authority to act for the
association by virtue of being a
25 member. An association may have
more than one class of members
26 and may issue membership certificates.
27
(2) BOARD MEETINGS.--
28 (a)
A meeting of the board of directors of an
29 association occurs whenever a
quorum of the board gathers to
30 conduct association business.
All meetings of the board must
31 be open to all members except
for meetings between the board
5
1 and its attorney with respect
to proposed or pending
2 litigation where the contents
of the discussion would
3 otherwise be governed by
the attorney-client privilege.
4 (b)
Parcel owners and members have the right to attend
5 all
meetings and to speak at any meeting with reference to all
6 items
opened for discussion or included on the agenda.
7 Notwithstanding
any provision to the contrary in the governing
8 documents
or any rules adopted by the board or by the
9 membership,
a parcel owner and member has the right to speak
10 for
at least 3 minutes on any item, provided that the parcel
11 owner
and member submits a request to speak prior to the
12 commencement
of the meeting. The association may adopt written
13 reasonable
rules governing the frequency, duration, and other
14 manner
of parcel owner or member statements, which rules must
15 be consistent
with this paragraph. Notwithstanding any other
16 law,
the requirement that board meetings and committee
17 meetings
be open to the parcel owners and members is
18 inapplicable
to meetings between the board or a committee and
19 the
association's attorney, with respect to proposed or
20 pending
litigation, when the meeting is held for the purpose
21 of seeking
or rendering legal advice, and to meetings of the
22 board
held for the purpose of discussing personnel matters.
23 (c)
The bylaws shall provide for giving notice to
24 parcel
owners and members of all board meetings and, if they
25 do not
do so, shall be deemed to provide the following:
26 1.
Notices of all board meetings must be posted in a
27 conspicuous place in the community
at least 48 hours in
28 advance of a meeting, except
in an emergency. In the
29 alternative, if notice is not
posted in a conspicuous place in
30 the community, notice of each
board meeting must be mailed or
31 delivered to each member at least
7 days before the meeting,
6
1 except in an emergency. Notwithstanding
this general notice
2 requirement, for communities
with more than 100 members, the
3 bylaws may provide for a
reasonable alternative to posting or
4 mailing of notice for each
board meeting, including
5 publication of notice, provision
of a schedule of board
6 meetings, or the conspicuous
posting and repeated broadcasting
7 of the notice on a closed-circuit
cable television system
8 serving the homeowners'
association. However, if broadcast
9 notice is used in lieu of
a notice posted physically in the
10 community, the notice must be
broadcast at least four times
11 every broadcast hour of each
day that a posted notice is
12 otherwise required. When broadcast
notice is provided, the
13 notice and agenda must be broadcast
in a manner and for a
14 sufficient continuous length
of time so as to allow an average
15 reader to observe the notice
and read and comprehend the
16 entire content of the notice
and the agenda. The bylaws or
17 amended bylaws may provide for
giving notice by electronic
18 transmission in a manner authorized
by law for meetings of the
19 board of directors, committee
meetings requiring notice under
20 this section, and annual and
special meetings of the members;
21 however, a member must consent
in writing to receiving notice
22 by electronic transmission.
23
2. An assessment may not be levied at a board meeting
24 unless the notice of the meeting
includes a statement that
25 assessments will be considered
and the nature of the
26 assessments. Written
notice of any meeting at which special
27 assessments
will be considered or at which amendments to rules
28 regarding
parcel use will be considered must be mailed,
29 delivered,
or electronically transmitted to the members and
30 parcel
owners and posted conspicuously on the property or
31
7
1 broadcast
on closed-circuit cable television not less than 14
2 days
before the meeting.
3 3.
Directors may not vote by proxy or by secret ballot
4 at board meetings, except
that secret ballots may be used in
5 the election of officers.
This subsection also applies to the
6 meetings of any committee
or other similar body, when a final
7 decision will be made regarding
the expenditure of association
8 funds, and to any body vested
with the power to approve or
9 disapprove architectural
decisions with respect to a specific
10 parcel of residential property
owned by a member of the
11 community.
12 (d)
If 20
10 percent of the total voting interests
13 petition
the board to address an item of business, the board
14 shall
at its next board meeting or special meeting, but not
15 later
than 60 days after the receipt of the petition, take the
16 petitioned
item up on its agenda. The board shall give all
17 members
notice of the meeting at which the petitioned item
18 shall
be addressed in accordance with the 14-day notice
19 requirement
pursuant to subsection (2). Other than addressing
20 the
item at the meeting, the board is not obligated to take
21 any
other action requested by the petition.
22
(3) MINUTES.--Minutes of all meetings of the members
23 of an association and of the
board of directors of an
24 association must be maintained
in written form or in another
25 form that can be converted into
written form within a
26 reasonable time. A vote
or abstention from voting on each
27 matter voted upon for each director
present at a board meeting
28 must be recorded in the minutes.
29
(4) OFFICIAL RECORDS.--The association shall maintain
30 each of the following items,
when applicable, which constitute
31 the official records of the association:
8
1
(a) Copies of any plans, specifications, permits, and
2 warranties related to improvements
constructed on the common
3 areas or other property
that the association is obligated to
4 maintain, repair, or replace.
5
(b) A copy of the bylaws of the association and of
6 each amendment to the bylaws.
7
(c) A copy of the articles of incorporation of the
8 association and of each
amendment thereto.
9
(d) A copy of the declaration of covenants and a copy
10 of each amendment thereto.
11
(e) A copy of the current rules of the homeowners'
12 association.
13
(f) The minutes of all meetings of the board of
14 directors and of the members,
which minutes must be retained
15 for at least 7 years.
16
(g) A current roster of all members and their mailing
17 addresses and parcel identifications.
The association shall
18 also maintain the electronic
mailing addresses and the numbers
19 designated by members for receiving
notice sent by electronic
20 transmission of those members
consenting to receive notice by
21 electronic transmission. The
electronic mailing addresses and
22 numbers provided by unit owners
to receive notice by
23 electronic transmission shall
be removed from association
24 records when consent to receive
notice by electronic
25 transmission is revoked. However,
the association is not
26 liable for an erroneous disclosure
of the electronic mail
27 address or the number for receiving
electronic transmission of
28 notices.
29
(h) All of the association's insurance policies or a
30 copy thereof, which policies
must be retained for at least 7
31 years.
9
1
(i) A current copy of all contracts to which the
2 association is a party,
including, without limitation, any
3 management agreement, lease,
or other contract under which the
4 association has any obligation
or responsibility. Bids
5 received by the association
for work to be performed must also
6 be considered official records
and must be kept for a period
7 of 1 year.
8
(j) The financial and accounting records of the
9 association, kept according
to good accounting practices. All
10 financial and accounting records
must be maintained for a
11 period of at least 7 years.
The financial and accounting
12 records must include:
13
1. Accurate, itemized, and detailed records of all
14 receipts and expenditures.
15
2. A current account and a periodic statement of the
16 account for each member, designating
the name and current
17 address of each member who is
obligated to pay assessments,
18 the due date and amount of each
assessment or other charge
19 against the member, the date
and amount of each payment on the
20 account, and the balance due.
21
3. All tax returns, financial statements, and
22 financial reports of the association.
23
4. Any other records that identify, measure, record,
24 or communicate financial information.
25 (k)
A copy of the disclosure summary described in s.
26 720.401(2).
27 (l)
All other written records of the association not
28 specifically
included in the foregoing which are related to
29 the
operation of the association.
30
(5) INSPECTION AND COPYING OF RECORDS.--The official
31 records shall be maintained within
the state and must be open
10
1 to inspection and available
for photocopying by members or
2 their authorized agents
at reasonable times and places within
3 10 business days after receipt
of a written request for
4 access. This subsection
may be complied with by having a copy
5 of the official records
available for inspection or copying in
6 the community. If the association
has a photocopy machine
7 available where the records
are maintained, it must provide
8 parcel owners with copies
on request during the inspection if
9 the entire request is limited
to no more than 25 pages.
10
(a) The failure of an association to provide access to
11 the records within 10 business
days after receipt of a written
12 request creates a rebuttable
presumption that the association
13 willfully failed to comply with
this subsection.
14
(b) A member who is denied access to official records
15 is entitled to the actual damages
or minimum damages for the
16 association's willful failure
to comply with this subsection.
17 The minimum damages are to be
$50 per calendar day up to 10
18 days, the calculation to begin
on the 11th business day after
19 receipt of the written request.
20
(c) The association may adopt reasonable written rules
21 governing the frequency, time,
location, notice, records to be
22 inspected,
and manner of inspections, but may not impose
a
23 requirement
that a parcel owner demonstrate any proper purpose
24 for
the inspection, state any reason for the inspection, or
25 limit
a parcel owner's right to inspect records to less than
26 one
8-hour business day per month. The association
and may
27 impose
fees to cover the costs of providing copies of the
28 official
records, including, without limitation, the costs of
29 copying. The
association may charge up to 50
20 cents per page
30 for
copies made on the association's photocopier. If the
31 association
does not have a photocopy machine available where
11
1
the records are kept, or if the records requested to be copied
2 exceed
25 pages in length, the association may have copies
3 made
by an outside vendor and may charge the actual cost of
4 copying.
The association shall maintain an adequate number of
5 copies
of the recorded governing documents, to ensure their
6 availability
to members and prospective members,
and may
7 charge
only its actual costs for reproducing and furnishing
8 these
documents to those persons who are entitled to receive
9 them.Notwithstanding
the provisions of this paragraph, the
10 following
records shall not be accessible to members or parcel
11 owners:
12
1. Any record protected by the lawyer-client
privilege
13 as
described in s. 90.502 and any record protected by the
14 work-product
privilege, including, but not limited to, any
15 record
prepared by an association attorney or prepared at the
16 attorney's
express direction which reflects a mental
17 impression,
conclusion, litigation strategy, or legal theory
18 of
the attorney or the association and was prepared
19 exclusively
for civil or criminal litigation or for
20 adversarial
administrative proceedings or which was prepared
21 in
anticipation of imminent civil or criminal litigation or
22 imminent
adversarial administrative proceedings until the
23 conclusion
of the litigation or adversarial administrative
24 proceedings.
25
2. Information obtained by an association
in
26 connection
with the approval of the lease, sale, or other
27 transfer
of a parcel.
28
3. Disciplinary, health, insurance,
and personnel
29 records
of the association's employees.
30
4. Medical records of parcel owners
or community
31 residents.
12
1
(6) BUDGETS.--The association shall prepare an annual
2 budget.
The budget must reflect the estimated revenues and
3 expenses
for that year and the estimated surplus or deficit as
4 of
the end of the current year. The budget must set out
5 separately
all fees or charges for recreational amenities,
6 whether
owned by the association, the developer, or another
7 person.
The association shall provide each member with a copy
8 of
the annual budget or a written notice that a copy of the
9 budget
is available upon request at no charge to the member.
10 The copy
must be provided to the member within the time limits
11 set forth
in subsection (5).
12
(7) FINANCIAL REPORTING.--The association shall
13 prepare
an annual financial report within 60 days after the
14 close of
the fiscal year. The association shall, within the
15 time limits
set forth in subsection (5), provide each member
16 with a
copy of the annual financial report or a written notice
17 that a
copy of the financial report is available upon request
18 at no charge
to the member. Financial reports shall
be
19 prepared
as follows The financial report
must consist of
20 either:
21
(a) An association that meets the
criteria of this
22 paragraph
shall prepare or cause to be prepared a complete set
23 of
financial statements in accordance with generally accepted
24 accounting
principles. The financial statements shall be based
25 upon
the association's total annual revenues, as follows:
26
1. An association with total annual
revenues of
27 $100,000
or more, but less than $200,000, shall prepare
28 compiled
financial statements.
29
2. An association with total annual
revenues of at
30 least
$200,000, but less than $400,000, shall prepare reviewed
31 financial
statements.
13
1
3. An association with total annual
revenues of
2 $400,000
or more shall prepare audited financial statements.
3 Financial
statements presented in conformity with generally
4 accepted
accounting principles; or
5
(b) A financial report of actual
receipts and
6 expenditures,
cash basis, which report must show:
7
1. An association with total annual
revenues of less
8
than $100,000 shall prepare a report of cash receipts and
9 expenditures.The
amount of receipts and expenditures by
10 classification;
and
11
2. An association in a community
of fewer than 50
12 parcels,
regardless of the association's annual revenues, may
13 prepare
a report of cash receipts and expenditures in lieu of
14 financial
statements required by paragraph (a) unless the
15 governing
documents provide otherwise. The
beginning and
16 ending
cash balances of the association.
17
3. A report of cash receipts and
disbursement must
18 disclose
the amount of receipts by accounts and receipt
19 classifications
and the amount of expenses by accounts and
20 expense
classifications, including, but not limited to, the
21 following,
as applicable: costs for security, professional,
22 and
management fees and expenses; taxes; costs for recreation
23 facilities;
expenses for refuse collection and utility
24 services;
expenses for lawn care; costs for building
25 maintenance
and repair; insurance costs; administration and
26 salary
expenses; and reserves if maintained by the
27 association.
28
(c) If 20 percent of the parcel owners
petition the
29 board
for a level of financial reporting higher than that
30 required
by this section, the association shall duly notice
31 and
hold a meeting of members within 30 days of receipt of the
14
1 petition
for the purpose of voting on raising the level of
2 reporting
for that fiscal year. Upon approval of a majority of
3 the
total voting interests of the parcel owners, the
4 association
shall prepare or cause to be prepared, shall amend
5 the
budget or adopt a special assessment to pay for the
6 financial
report regardless of any provision to the contrary
7 in
the governing documents, and shall provide within 90 days
8 of
the meeting or the end of the fiscal year, whichever occurs
9 later:
10
1. Compiled, reviewed, or audited
financial
11 statements,
if the association is otherwise required to
12 prepare
a report of cash receipts and expenditures;
13
2. Reviewed or audited financial
statements, if the
14 association
is otherwise required to prepare compiled
15 financial
statements; or
16
3. Audited financial statements if
the association is
17 otherwise
required to prepare reviewed financial statements.
18
(d) If approved by a majority of
the voting interests
19 present
at a properly called meeting of the association, an
20 association
may prepare or cause to be prepared:
21
1. A report of cash receipts and
expenditures in lieu
22 of
a compiled, reviewed, or audited financial statement;
23
2. A report of cash receipts and
expenditures or a
24 compiled
financial statement in lieu of a reviewed or audited
25 financial
statement; or
26
3. A report of cash receipts and
expenditures, a
27 compiled
financial statement, or a reviewed financial
28 statement
in lieu of an audited financial statement.
29
(8) ASSOCIATION FUNDS; COMMINGLING.--
30
(a) All association funds held by
a developer shall be
31 maintained
separately in the association's name. Reserve and
15
1 operating funds of the association
shall not be commingled
2 prior to turnover except
the association may jointly invest
3 reserve funds; however,
such jointly invested funds must be
4 accounted for separately.
5
(b) No developer in control of a homeowners'
6 association shall commingle
any association funds with his or
7 her funds or with the funds
of any other homeowners'
8 association or community
association.
9 (c)
Association funds may not be used by a developer
10 to defend
a civil or criminal action, administrative
11 proceeding,
or arbitration proceeding that has been filed
12 against
the developer or directors appointed to the
13 association
board by the developer, even when the subject of
14 the
action or proceeding concerns the operation of the
15 developer-controlled
association.
16
(9) APPLICABILITY.--Sections 617.1601-617.1604 do not
17 apply to a homeowners' association
in which the members have
18 the inspection and copying rights
set forth in this section.
19 (10)
RECALL OF DIRECTORS.--
20 (a)1.
Regardless of any provision to the contrary
21 contained
in the governing documents, subject to the
22 provisions
of s. 720.307 regarding transition of association
23 control,
any member of the board or directors may be recalled
24 and
removed from office with or without cause by a majority of
25 the
total voting interests.
26 2.
When the governing documents, including the
27 declaration,
articles of incorporation, or bylaws, provide
28 that
only a specific class of members is entitled to elect a
29 board
director or directors, only that class of members may
30 vote
to recall those board directors so elected.
31
16
1 1.
Board directors may be recalled by an agreement
2 in
writing or by written ballot without a membership meeting.
3 The
agreement in writing or the written ballots, or a copy
4 thereof,
shall be served on the association by certified mail
5 or
by personal service in the manner authorized by chapter 48
6 and
the Florida Rules of Civil Procedure.
7 2.
The board shall duly notice and hold a meeting of
8 the
board within 5 full business days after receipt of the
9 agreement
in writing or written ballots. At the meeting, the
10 board
shall either certify the written ballots or written
11 agreement
to recall a director or directors of the board, in
12 which
case such director or directors shall be recalled
13 effective
immediately and shall turn over to the board within
14 5 full
business days any and all records and property of the
15 association
in their possession, or proceed as described in
16 paragraph
(d).
17 3.
When it is determined by the division pursuant to
18 binding
arbitration proceedings that an initial recall effort
19 was
defective, written recall agreements or written ballots
20 used
in the first recall effort and not found to be defective
21 may
be reused in one subsequent recall effort. However, in no
22 event
is a written agreement or written ballot valid for more
23 than
120 days after it has been signed by the member.
24 4.
Any rescission or revocation of a member's written
25 recall
ballot or agreement must be in writing and, in order to
26 be effective,
must be delivered to the association before the
27 association
is served with the written recall agreements or
28 ballots.
29 5.
The agreement in writing or ballot shall list at
30 least
as many possible replacement directors as there are
31 directors
subject to the recall, when at least a majority of
17
1 the board
is sought to be recalled; the person executing the
2
recall instrument may vote for as many replacement candidates
3 as
there are directors subject to the recall.
4 (c)1.
If the declaration, articles of incorporation,
5 or
bylaws specifically provide, the members may also recall
6 and
remove a board director or directors by a vote taken at a
7 meeting.
If so provided in the governing documents, a special
8 meeting
of the members to recall a director or directors of
9 the
board of administration may be called by 10 percent of the
10 voting
interests giving notice of the meeting as required for
11 a meeting
of members, and the notice shall state the purpose
12 of the
meeting. Electronic transmission may not be used as a
13 method
of giving notice of a meeting called in whole or in
14 part
for this purpose.
15 2.
The board shall duly notice and hold a board
16 meeting
within 5 full business days after the adjournment of
17 the
member meeting to recall one or more directors. At the
18 meeting,
the board shall certify the recall, in which case
19 such
member or members shall be recalled effective immediately
20 and
shall turn over to the board within 5 full business days
21 any
and all records and property of the association in their
22 possession,
or shall proceed as set forth in subparagraph (d).
23
(d) If the board determines not to certify the written
24 agreement
or written ballots to recall a director or directors
25 of the
board or does not certify the recall by a vote at a
26 meeting,
the board shall, within 5 full business days after
27 the
meeting, file with the division a petition for binding
28 arbitration
pursuant to the applicable procedures in ss.
29 718.1255
and 718.112(2)(j) and the rules adopted thereunder.
30 For
the purposes of this section, the members who voted at the
31 meeting
or who executed the agreement in writing shall
18
1 constitute
one party under the petition for arbitration. If
2 the
arbitrator certifies the recall as to any director or
3 directors
of the board, the recall will be effective upon
4 mailing
of the final order of arbitration to the association.
5 The
director or directors so recalled shall deliver to the
6 board
any and all records of the association in their
7 possession
within 5 full business days after the effective
8 date
of the recall.
9 (e)
If a vacancy occurs on the board as a result of a
10 recall
and less than a majority of the board directors are
11 removed,
the vacancy may be filled by the affirmative vote of
12 a majority
of the remaining directors, notwithstanding any
13 provision
to the contrary contained in this subsection or in
14 the
association documents. If vacancies occur on the board as
15 a result
of a recall and a majority or more of the board
16 directors
are removed, the vacancies shall be filled by
17 members
voting in favor of the recall; if removal is at a
18 meeting,
any vacancies shall be filled by the members at the
19 meeting.
If the recall occurred by agreement in writing or by
20 written
ballot, members may vote for replacement directors in
21 the
same instrument in accordance with procedural rules
22 adopted
by the division, which rules need not be consistent
23 with
this subsection.
24 (f)
If the board fails to duly notice and hold a board
25 meeting
within 5 full business days after service of an
26 agreement
in writing or within 5 full business days after the
27 adjournment
of the member recall meeting, the recall shall be
28 deemed
effective and the board directors so recalled shall
29 immediately
turn over to the board all records and property of
30 the
association.
31
19
1 (g)
If a director who is removed fails to relinquish
2 his
or her office or turn over records as required under this
3 section,
the circuit court in the county where the association
4 maintains
its principal office may, upon the petition of the
5 association,
summarily order the director to relinquish his or
6 her
office and turn over all association records upon
7 application
of the association.
8 (h)
The minutes of the board meeting at which the
9 board
decides whether to certify the recall are an official
10 association
record. The minutes must record the date and time
11 of the
meeting, the decision of the board, and the vote count
12 taken
on each board member subject to the recall. In addition,
13 when
the board decides not to certify the recall, as to each
14 vote
rejected, the minutes must identify the parcel number and
15 the
specific reason for each such rejection.
16 (i)
When the recall of more than one board director is
17 sought,
the written agreement, ballot, or vote at a meeting
18 shall
provide for a separate vote for each board director
19 sought
to be recalled.
20
Section 4. Section 720.304, Florida Statutes, is
21 amended to read:
22 720.304
Right of owners to peaceably assemble; display
23 of flag;
SLAPP suits prohibited.--
24
(1) All common areas and recreational facilities
25 serving any homeowners' association
shall be available to
26 parcel owners in the homeowners'
association served thereby
27 and their invited guests for
the use intended for such common
28 areas and recreational facilities.
The entity or entities
29 responsible for the operation
of the common areas and
30 recreational facilities may adopt
reasonable rules and
31 regulations pertaining to the
use of such common areas and
20
1 recreational facilities.
No entity or entities shall
2 unreasonably restrict any
parcel owner's right to peaceably
3 assemble or right to invite
public officers or candidates for
4 public office to appear
and speak in common areas and
5 recreational facilities.
6
(2) Regardless of any declaration, rules
or requirements dealing with flags
7 or
decorations any homeowner may display the United States flag, or official
8 flag
of the State of Florida. On Armed Forces Day, Memorial Day, Flag Day,
9 Independence
Day or Veterans Day any one official flag of the United States Army,
10 Navy,
Air Force, Marine Corp or Coast Guard can be displayed in a respectful
manner.
11 (a)
Any one of these official flags, not larger than 4 1/2 by 6 feet, may be
displayed
12 on a
free-standing, portable, removable or telescoping flag pole not to exceed
18
13 feet,
in the front, side or rear yard of property owned by a homeowner or a flag
pole
14 inserted
in a bracket attached to the front of a residence or garage, but not both.
15
(3) Any owner prevented from exercising rights
16 guaranteed by subsection (1)
or subsection (2) may bring an
17 action in the appropriate court
of the county in which the
18 alleged infringement occurred,
and, upon favorable
19 adjudication, the court shall
enjoin the enforcement of any
20 provision contained in any homeowners'
association document or
21 rule that operates to deprive
the owner of such rights.
22 (4)
It is the intent of the Legislature to protect the
23 right
of parcel owners to exercise their rights to instruct
24 their
representatives and petition for redress of grievances
25 before
the various governmental entities of this state as
26 protected
by the First Amendment to the United States
27 Constitution
and s. 5, Art. I of the State Constitution. The
28 Legislature
recognizes that "Strategic Lawsuits Against Public
29 Participation"
or "SLAPP" suits, as they are typically called,
30 have
occurred when members are sued by individuals, business
31 entities,
or governmental entities arising out of a parcel
21
1 owner's
appearance and presentation before a governmental
2 entity
on matters related to the homeowners' association.
3 However,
it is the public policy of this state that government
4 entities,
business organizations, and individuals not engage
5 in
SLAPP suits because such actions are inconsistent with the
6 right
of parcel owner to participate in the state's
7 institutions
of government. Therefore, the Legislature finds
8 and
declares that prohibiting such lawsuits by governmental
9 entities,
business entities, and individuals against parcel
10 owners
who address matters concerning their homeowners'
11 association
will preserve this fundamental state policy,
12 preserve
the constitutional rights of parcel owners, and
13 assure
the continuation of representative government in this
14 state.
It is the intent of the Legislature that such lawsuits
15 be expeditiously
disposed of by the courts.
16 (a)
As used in this subsection, the term "governmental
17 entity"
means the state, including the executive, legislative,
18 and
judicial branches of government, the independent
19 establishments
of the state, counties, municipalities,
20 districts,
authorities, boards, or commissions, or any
21 agencies
of these branches which are subject to chapter 286.
22 (b)
A governmental entity, business organization, or
23 individual
in this state may not file or cause to be filed
24 through
its employees or agents any lawsuit, cause of action,
25 claim,
cross-claim, or counterclaim against a parcel owner
26 without
merit and solely because such parcel owner has
27 exercised
the right to instruct his or her representatives or
28 the
right to petition for redress of grievances before the
29 various
governmental entities of this state, as protected by
30 the
First Amendment to the United States Constitution and s.
31 5, Art.
I of the State Constitution.
22
1 (c)
A parcel owner sued by a governmental entity,
2 business
organization, or individual in violation of this
3 section
has a right to an expeditious resolution of a claim
4 that
the suit is in violation of this section. A parcel owner
5 may
petition the court for an order dismissing the action or
6 granting
final judgment in favor of that parcel owner. The
7 petitioner
may file a motion for summary judgment, together
8 with
supplemental affidavits, seeking a determination that the
9 governmental
entity's, business organization's, or
10 individual's
lawsuit has been brought in violation of this
11 section.
The governmental entity, business organization, or
12 individual
shall thereafter file its response and
13 supplemental
affidavits. As soon as practicable, the court
14 shall
set a hearing on the petitioner's motion, which shall be
15 held
at the earliest possible time after the filing of the
16 governmental
entity's, business organization's or individual's
17 response.
The court may award the parcel owner sued by the
18 governmental
entity, business organization, or individual
19 actual
damages arising from the governmental entity's,
20 individual's,
or business organization's violation of this
21 section.
A court may treble the damages awarded to a
22 prevailing
parcel owner and shall state the basis for
23 treble
damages award in its judgment. The court shall award
24 the
prevailing party reasonable attorney's fees and costs
25 incurred
in connection with a claim that an action was filed
26 in violation
of this section.
27 (d)
Homeowners' associations may not expend
28 association
funds in prosecuting a SLAPP suit against a parcel
29 owner.
30 Section
5. Subsection (2) of section 720.305, Florida
31 Statutes, is amended to read:
23
1 720.305
Obligations of members; remedies at law or in
2 equity; levy of fines and
suspension of use rights; failure to
3 fill sufficient number of
vacancies on board of directors to
4 constitute a quorum; appointment
of receiver upon petition of
5 any member.--
6
(2) If the governing documents so provide, an
7 association may suspend,
for a reasonable period of time, the
8 rights of a member or a
member's tenants, guests, or invitees,
9 or both, to use common areas
and facilities and may levy
10 reasonable fines, not to exceed
$100 per violation, against
11 any member or any tenant, guest,
or invitee. A fine may be
12 levied on the basis of each day
of a continuing violation,
13 with a single notice and opportunity
for hearing, except that
14 no such fine shall exceed $1,000
in the aggregate unless
15 otherwise provided in the governing
documents. A fine shall
16 not
become a lien against a parcel. In any action to recover a
17 fine,
the prevailing party is entitled to collect its
18 reasonable
attorney's fees and costs from the nonprevailing
19 party
as determined by the court.
20
(a) A fine or suspension may not be imposed without
21 notice of at least 14 days to
the person sought to be fined or
22 suspended and an opportunity
for a hearing before a committee
23 of at least three members appointed
by the board who are not
24 officers, directors, or employees
of the association, or the
25 spouse, parent, child, brother,
or sister of an officer,
26 director, or employee.
If the committee, by majority vote,
27 does not approve a proposed fine
or suspension, it may not be
28 imposed.
29
(b) The requirements of this subsection do not apply
30 to the imposition of suspensions
or fines upon any member
31 because of the failure of the
member to pay assessments or
24
1 other charges when due if
such action is authorized by the
2 governing documents.
3
(c) Suspension of common-area-use rights shall not
4 impair the right of an owner
or tenant of a parcel to have
5 vehicular and pedestrian
ingress to and egress from the
6 parcel, including, but not
limited to, the right to park.
7
Section 6. Section 720.3055, Florida Statutes, is
8 created to read:
9 720.3055
Contracts for products and services; in
10 writing;
bids; exceptions.--
11 (1)
All contracts as further described in this section
12 or any
contract that is not to be fully performed within 1
13 year
after the making thereof for the purchase, lease, or
14 renting
of materials or equipment to be used by the
15 association
in accomplishing its purposes under this chapter
16 or the
governing documents, and all contracts for the
17 provision
of services, shall be in writing. If a contract for
18 the
purchase, lease, or renting of materials or equipment, or
19 for
the provision of services, requires payment by the
20 association
that exceeds 10 percent of the total annual budget
21 of the
association, including reserves, the association must
22 obtain
competitive bids for the materials, equipment, or
23 services.
Nothing contained in this section shall be construed
24 to require
the association to accept the lowest bid.
25 (2)(a)1.
Notwithstanding the foregoing, contracts with
26 employees
of the association, and contracts for attorney,
27 accountant,
architect, community association manager,
28 engineering,
and landscape architect services are not subject
29 to the
provisions of this section.
30 2.
A contract executed before July 1, 2004, and any
31 renewal
thereof, is not subject to the competitive bid
25
1 requirements
of this section. If a contract was awarded under
2 the
competitive bid procedures of this section, any renewal of
3 that
contract is not subject to such competitive bid
4 requirements
if the contract contains a provision that allows
5 the
board to cancel the contract on 30 days' notice.
6 Materials,
equipment, or services provided to an association
7 under
a local government franchise agreement by a franchise
8 holder
are not subject to the competitive bid requirements of
9 this
section. A contract with a manager, if made by a
10 competitive
bid, may be made for up to 3 years. An association
11 whose
declaration or bylaws provide for competitive biding for
12 services
may operate under the provisions of that declaration
13 or bylaws
in lieu of this section if those provisions are not
14 less
stringent than the requirements of this section.
15 (b)
Nothing contained in this section is intended to
16 limit
the ability of an association to obtain needed products
17 and
services in an emergency.
18 (c)
This section does not apply if the business entity
19 with
which the association desires to enter into a contract is
20 the
only source of supply within the county serving the
21 association.
22
(d) Nothing contained in this section shall excuse a
23 party
contracting to provide maintenance or management
24 services
from compliance with s. 720.309.
25 Section
7. Present subsections (5) through (8) of
26 section
720.306, Florida Statutes, are renumbered as
27 subsections
(7) through (10), respectively, present subsection
28 (7) is
amended, and subsections (5) and (6) are added to that
29 section
to read:
30 720.306
Meetings of members; voting and election
31 procedures;
amendments.--
26
1 (5)
NOTICE OF MEETINGS.--The bylaws shall provide for
2 giving
notice to members of all member meetings, and if they
3 do
not do so shall be deemed to provide the following: The
4 association
shall give all parcel owners and members actual
5 notice
of all membership meetings, which shall be mailed,
6 delivered,
or electronically transmitted to the members not
7 less
than 14 days prior to the meeting. Evidence of compliance
8 with
this 14-day notice shall be made by an affidavit executed
9 by
the person providing the notice and filed upon execution
10 among
the official records of the association. In addition to
11 mailing,
delivering, or electronically transmitting the notice
12 of any
meeting, the association may, by reasonable rule, adopt
13 a procedure
for conspicuously posting and repeatedly
14 broadcasting
the notice and the agenda on a closed-circuit
15 cable
television system serving the association. When
16 broadcast
notice is provided, the notice and agenda must be
17 broadcast
in a manner and for a sufficient continuous length
18 of time
so as to allow an average reader to observe the notice
19 and
read and comprehend the entire content of the notice and
20 the
agenda.
21 (6)
RIGHT TO SPEAK.--Members and parcel owners have
22 the
right to attend all membership meetings and to speak at
23 any
meeting with reference to all items opened for discussion
24 or included
on the agenda. Notwithstanding any provision to
25 the
contrary in the governing documents or any rules adopted
26 by the
board or by the membership, a member and a parcel owner
27 have
the right to speak for at least 3 minutes on any item,
28 provided
that the member or parcel owner submits a request to
29 speak
prior to the meeting. The association may adopt written
30 reasonable
rules governing the frequency, duration, and other
31
27
1 manner
of member and parcel owner statements, which rules must
2 be
consistent with this paragraph.
3 (9)(7)
ELECTIONS.--Elections of directors must be
4 conducted in accordance
with the procedures set forth in the
5 governing documents of the
association. All members of the
6 shall be eligible to serve
on the board of
7 directors, and a member
may nominate himself or herself as a
8 candidate for the board
at a meeting where the election is to
9 be held. Except as
otherwise provided in the governing
10 documents, boards of directors
must be elected by a plurality
11 of the votes cast by eligible
voters. Any election dispute
12 between
a member and an association must be submitted to
13 mandatory
binding arbitration with Ombudsman's Office. Such
14 proceedings
shall be conducted in the manner provided by s.
15 718.1255
and the procedural rules adopted by the division.
16
Section 8. Section 720.311, Florida Statutes, is
17 amended to read: (Substantial
rewording of section. See 720.311
18 for
present text and refer to Section 16 herein for new text)
19 720.311Dispute
resolution. Ombudsman's
Office(1)
20 The
Legislature finds that alternative dispute resolution
has made
21 progress
in reducing court dockets and trials and in offering a more
22 efficient,
cost-effective option to litigation. The filing of any petition for
23 mediation
or arbitration provided for in this section shall toll the
24 applicable
statute of limitations. Any recall dispute filed
25 with
the division pursuant to s. 720.303(10) shall be
26 conducted
by the division in accordance with the provisions of
27 ss.
718.1255 and 718.112(2)(j) and the rules adopted by the
28 division.
In addition, the division shall conduct mandatory
29 binding
arbitration of election disputes between a member and
30 an
association pursuant to s. 718.1255 and rules adopted by
31 the
division. Neither election disputes nor recall disputes
28
1 are
eligible for mediation; these disputes shall be arbitrated
2 by
the division. At the conclusion of the proceeding, the
3 division
shall charge the parties a fee in an amount adequate
4 to
cover all costs and expenses incurred by the division in
5 conducting
the proceeding. Initially, the petitioner shall
6 remit
a filing fee of at least $200 to the division. The fees
7 paid
to the division shall become a recoverable cost in the
8 arbitration
proceeding and the prevailing party in an
9 arbitration
proceeding shall be paid its reasonable costs and
10 attorney's
fees in an amount found reasonable by the
11 arbitrator.
The division shall adopt rules to effectuate the
12 purposes
of this section.
13 (2)(a)
Disputes between an association and a parcel
14 owner
regarding use of or changes to the parcel or the common
15 areas
and other covenant enforcement disputes, disputes
16 regarding
amendments to the association documents, disputes
17 regarding
meetings of the board and committees appointed by
18 the
board, membership meetings not including election
19 meetings,
and access to the official records of the
20 association
shall be filed with the division for mandatory
21 mediation
before the dispute is filed in court. Mediation
22 proceedings
must be conducted in accordance with the
23 applicable
Florida Rules of Civil Procedure, and these
24 proceedings
are privileged and confidential to the same extent
25 as
court-ordered mediation. An arbitrator or judge may not
26 consider
any information or evidence arising from the
27 mediation
proceeding except in a proceeding to impose
28 sanctions
for failure to attend a mediation session. Persons
29 who
are not parties to the dispute may not attend the
30 mediation
conference without the consent of all parties,
31 except
for counsel for the parties and a corporate
29
1 representative
designated by the association. When mediation
2 is
attended by a quorum of the board, such mediation is not a
3 board
meeting for purposes of notice and participation set
4 forth
in s. 720.303. The division shall conduct the
5 proceedings
through the use of division mediators or refer the
6 disputes
to private mediators who have been duly certified by
7 the
division as provided in paragraph (c). The parties shall
8 share
the costs of mediation equally, including the fee
9 charged
by the mediator, if any, unless the parties agree
10 otherwise.
If a division mediator is used, the division may
11 charge
such fee as is necessary to pay expenses of the
12 mediation,
including, but not limited to, the salary and
13 benefits
of the mediator and any travel expenses incurred.
14 The
petitioner shall initially file with the division upon filing
15 the
disputes, a filing fee of $200, which shall be used to
16 defray
the costs of the mediation. At the conclusion of the
17 mediation,
the division shall charge to the parties, to be
18 shared
equally unless otherwise agreed by the parties, such
19 further
fees as are necessary to fully reimburse the division
20 for
all expenses incurred in the mediation.
21 (b)
If mediation as described in paragraph (a) is not
22 successful
in resolving all issues between the parties, the
23 parties
may file the unresolved dispute in a court of
24 competent
jurisdiction or elect to enter into binding or
25 nonbinding
arbitration pursuant to the procedures set forth in
26 s.
718.1255 and rules adopted by the division, with the
27 arbitration
proceeding to be conducted by a division
28 arbitrator
or by a private arbitrator certified by the
29 division.
If all parties do not agree to arbitration
30 proceedings
following an unsuccessful mediation, any party may
31 file
the dispute in court. A final order resulting from
30
1 nonbinding
arbitration is final and enforceable in the courts
2 if
a complaint for trial de novo is not filed in a court of
3 competent
jurisdiction within 30 days after entry of the
4 order.
5 (c)
The division shall develop a certification and
6
training program for private mediators and private arbitrators
7 which
shall emphasize experience and expertise in the area of
8 the
operation of community associations. A mediator or
9 arbitrator
shall be certified by the division only if he or
10 she
has attended at least 20 hours of training in mediation or
11 arbitration,
as appropriate, and only if the applicant has
12 mediated
or arbitrated at least 10 disputes involving
13 community
associations within 5 years prior to the date of the
14 application,
or has mediated or arbitrated 10 disputes in any
15 area
within 5 years prior to the date of application and has
16 completed
20 hours of training in community association
17 disputes.
In order to be certified by the division, any
18 mediator
must also be certified by the Florida Supreme Court.
19 The
division may conduct the training and certification
20 program
within the division or may contract with an outside
21 vendor
to perform the training or certification. The expenses
22 of
operating the training and certification and training
23 program
shall be paid by the moneys and filing fees generated
24 by
the arbitration of recall and election disputes and by the
25 mediation
of those disputes referred to in this subsection and
26 by
the training fees. Initially, the Department of Business
27 and
Professional Regulation should seek sufficient funding to
28 cover
the startup costs of establishing the certification and
29 training
program.
30 (d)
The mediation procedures provided by this
31 subsection
may be used by a Florida corporation responsible
31
1 for
the operation of a community in which the voting members
2 are
parcel owners or their representatives, in which
3 membership
in the corporation is not a mandatory condition of
4 parcel
ownership, or which is not authorized to impose an
5 assessment
that may become a lien on the parcel.
6 (3)
The divisionshall develop an education
7 program
to assist homeowners, associations, board members, and
8 managers
in understanding and increasing awareness of the operation
9 of
homeowners' associations pursuant to chapter 720 and in understanding
10 the
use of alternative dispute resolutioncreate more harmony
11 techniques
in resolving disputes between parcel owners and
12 associations
and between owners. Such education program may
13 include
the development of pamphlets and other written
14 instructional
guides, the holding of classes and meetings by
15 Ombudsman's
Office employees or outside vendors, as the office
16 determines,
and the creation and maintenance of a website
17 containing
instructional materials. The expenses of operating
18 the
education program shall be initially paid by the moneys of the
19 trust
fund to be created and filing fees generated by the arbitration
20 of
recall and election disputes and by the mediation of those disputes
21 referred
to in this subsection. The Department of Business and
22 Professional
Regulation Ombudsman's Office shall seek funding
to
23 cover
the startup costs of the education, mediation, and arbitration
24 programs.At
any time after the filing in a court of competent
25 jurisdiction
of a complaint relating to a dispute under ss.
26 720.301-720.312,
the court may order that the parties enter
27 mediation
or arbitration procedures.
28
Section 9. Section 689.26, Florida Statutes, is
29 transferred, renumbered as section
720.401, Florida Statutes,
30 and amended to read:
31 (Substantial
rewording of section. See
32
1 s.
689.26, F.S., for present text.)
2 720.401
Prospective purchasers subject to association
3 membership
requirement; disclosure required; covenants;
4 assessments;
contract violability.--
5 (1)(a)
A prospective parcel owner in a community must
6 be
presented a disclosure summary before executing the
7 contract
for sale. The disclosure summary must be in a form
8 substantially
similar to the following form:
9
10
DISCLOSURE SUMMARY AND RECEIPT OF DOCUMENTS
11
FOR
12
(NAME OF COMMUNITY)
13
14 1.
AS A PURCHASER OF PROPERTY IN THIS COMMUNITY YOU
15 ARE
OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION.
16 2.
THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE
17 COVENANTS
GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN
18 THIS
COMMUNITY. THERE (ARE) (ARE NOT) UNRECORDED RULES AND
19 REGULATIONS
AFFECTING THE PARCELS OR COMMON AREAS. ANY
20 COVENANTS
THAT MAY EXIST ARE MATTERS OF PUBLIC RECORD AND CAN
21 BE OBTAINED
FROM THE RECORD OFFICE IN THE COUNTY WHERE THE
22 PROPERTY
IS LOCATED.
23 3.
THERE (IS) (IS NOT) A MUNICIPALITY, COUNTY, OR
24 SPECIAL
TAXING DISTRICT, WHICH MAY IMPOSE CHARGES OR
25 ASSESSMENTS
SEPARATE FROM THE HOMEOWNERS' ASSOCIATION'S
26 ASSESSMENTS
AND WHICH ASSESSMENTS ARE SUBJECT TO PERIODIC
27 CHANGE.
28 4.
YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR
29 ASSESSMENTS
LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION
30 COULD
RESULT IN A LIEN ON YOUR PROPERTY. LIENS MAY BE
31 FORECLOSED
IN THE SAME MANNER AS A MORTGAGE.
33
1 5.
THE DEVELOPER (OR THE HOMEOWNERS OTHER THAN THE
2 DEVELOPER)
IS IN CONTROL OF THE HOMEOWNERS' ASSOCIATION.
3 6.
THERE (IS) (IS NOT) AN OBLIGATION TO PAY RENT OR
4 LAND
USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED
5 FACILITIES
AS AN OBLIGATION OF MEMBERSHIP IN THE HOMEOWNER'S
6 ASSOCIATION.
(If such obligation exists, then the amount of
7 the
current obligation shall be set forth.)
8 7.
THE RESTRICTIVE COVENANTS (CAN) (CANNOT) BE AMENDED
9 WITHOUT
THE APPROVAL OF THE ASSOCIATION MEMBERSHIP.
10 8.
THE ASSOCIATION (IS) (IS NOT) INVOLVED IN
11 LITIGATION,
WHICH MAY RESULT IN EXPOSURE TO THE ASSOCIATION IN
12 EXCESS
OF $ 50,000.00 $100.00.
13 9.
THE STATEMENTS CONTAINED IN THE DISCLOSURE FORM ARE
14 ONLY
SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU
15 SHOULD
REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING
16 DOCUMENTS
BEFORE PURCHASING PROPERTY.
17 10.
PURCHASER(S) ACKNOWLEDGE THAT THE SELLER HAS
18 PROVIDED
THE PURCHASER WITH DOCUMENTS IDENTIFIED AS: (a) THE
19 DISCLOSURE
STATEMENT REQUIRED BY THIS SECTION; (b) A COMPLETE
20 AND
MOST RECENT SET OF GOVERNING DOCUMENTS WITH ALL
21 AMENDMENTS,
WHICH INCLUDES ANY CURRENT RESTATEMENT; (c) THE
22 MOST
RECENT BUDGET; AND (d) THE MOST RECENT YEAR-END
23 FINANCIAL
STATEMENT.
24
25 PURCHASER(S)
SHOULD NOT EXECUTE THE CONTRACT OR AGREEMENT
26 UNTIL
THEY HAVE RECEIVED AND READ THIS DISCLOSURE SUMMARY AN
27 DOCUMENTS
FROM SELLER. YOU HAVE 3 DAYS FROM THE RECEIPT OF THE
28 DOCUMENTS
IN #10 TO CANCEL THIS CONTRACT.
29
30 DATE:
PURCHASER:
31
PURCHASER:
34
1
2 (b)
At the time of signing a contract of purchase or
3 agreement
for sale, the developer or the parcel owner, if the
4 owner
is not the developer, must give to the prospective
5 purchaser:
6 1.
The disclosure statement required by this section;
7 2.
A complete and most recent set of governing
8 documents
currently in effect, which includes any current
9 restatement
of the governing documents;
10 3.
The most recent adopted budget; and
11 4.
The most recent year-end financial statement.
12 (c)
Each contract entered into for the sale of
13 property
governed by covenants subject to disclosure required
14 by this
section must contain in conspicuous type a clause that
15 states:
16
17 IF THE
DISCLOSURE SUMMARY REQUIRED BY SECTION 720.401, FLORIDA
18 STATUTES,
HAS NOT BEEN PROVIDED TO THE PROSPECTIVE PURCHASER
19 BEFORE
EXECUTING THIS CONTRACT FOR SALE, PURCHASER MAY CANCEL
20 THIS
CONTRACT BY DELIVERING TO SELLER OR SELLER'S AGENT
21 WRITTEN
NOTICE OF THE PURCHASER'S INTENTION TO CANCEL WITHIN 3
22 DAYS
AFTER RECEIPT OF THE DISCLOSURE SUMMARY; GOVERNING
23 DOCUMENTS
WITH AMENDMENTS; CURRENT BUDGET; AND COPY OF CURRENT
24 YEAR-END
FINANCIAL STATEMENT OR PRIOR TO CLOSING, WHICHEVER
25 OCCURS
FIRST. ANY PURPORTED WAIVER OF THIS RIGHT TO CANCEL HAS
26 NO EFFECT.
PURCHASER'S RIGHT TO CANCEL THIS CONTRACT SHALL
27 TERMINATE
AT CLOSING.
28
29 (d)
A contract that does not conform to the
30 requirements
of this subsection may be canceled at the option
31 of the
purchaser prior to closing.
35
1 (e)
For purposes of this section, the association
2 shall
make available to a parcel owner or his or her agent
3 within
10 calendar days from receipt of request at a cost of
4 50
20 cents per page, not to exceed a total of $50, a copy of:
5 1.
The disclosure statement required by this section;
6 2.
A complete and most recent set of governing
7 documents
currently in effect, which may be satisfied by the
8 most
recent restatement of the governing documents;
9
3. The most recent adopted budget; and
10 4.
The most recent year-end financial statement.
11 (2)
The association shall prepare and update annually
12 the
disclosure statement required by subsection (1).
13 (3)
This section does not apply to any association
14 regulated
under chapter 718, chapter 719, chapter 721, or
15 chapter
723 and also does not apply if disclosure regarding
16 the
association is otherwise made in connection with the
17 requirements
of chapter 718, chapter 719, chapter 721, or
18 chapter
723.
19 Section
10. Section 720.402, Florida Statutes, is
20 created
to read:
21 720.402
Publication of false and misleading
22 information.--
23 (1)
Any person who, in reasonable reliance upon any
24 material
statement or information that is false or misleading
25 and
published by or under authority from the developer in
26 advertising
and promotional materials, including, but not
27 limited
to, a contract of purchaser, the declaration of
28 covenants,
exhibits to a declaration of covenants, brochures,
29 and
newspaper advertising, pays anything of value toward the
30 purchase
of a parcel in a community located in this state has
31 a cause
of action to rescind the contract or collect damages
36
1 from
the developer for his or her loss before the closing of
2 the
transaction. After the closing of the transaction, the
3 purchaser
has a cause of action against the developer for
4 damages
under this section from the time of closing until 1
5 year
after the date upon which the last of the events
6 described
in paragraphs (a) through (d) occur:
7 (a)
The closing of the transaction;
8 (b)
The issuance by the applicable governmental
9 authority
of a certificate of occupancy or other evidence of
10 sufficient
completion of construction of the purchaser's
11 residence
to allow lawful occupancy of the residence by the
12 purchaser.
In counties or municipalities in which certificates
13 of occupancy
or other evidences of completion sufficient to
14 allow
lawful occupancy are not customarily issued, for the
15 purpose
of this section, evidence of lawful occupancy shall be
16 deemed
to be given or issued upon the date that such lawful
17 occupancy
of the residence may be allowed under prevailing
18 applicable
laws, ordinances, or statutes;
19
(c) The completion by the developer of the common
20 areas
and such recreational facilities, whether or not the
21 same
are common areas, which the developer is obligated to
22 complete
or provide under the terms of the written contract,
23 governing
documents, or written agreement for purchase or
24 lease
of the parcel; or
25 (d)
In the event there is not a written contract or
26 agreement
for sale or lease of the parcel, then the completion
27 by the
developer of the common areas and such recreational
28 facilities,
whether or not they are common areas, which the
29 developer
would be obligated to complete under any rule of law
30 applicable
to the developer's obligation.
31
37
1 Under
no circumstances may a cause of action created or
2 recognized
under this section survive for a period of more
3 than
5 years after the closing of the transaction.
4 (2)
In any action for relief under this section, the
5 prevailing
party may recover reasonable attorney's fees. A
6 developer
may not expend association funds in the defense of
7 any
suit under this section.
8 Section
11. Section 720.501, Florida Statutes, is
9 created
to read:
10 720.501
Warranties.--
11 (1)(a)
The developer shall be deemed to have granted
12 to the
homeowners' association an implied warranty of fitness
13 and
merchantability for the purposes or uses intended as
14 follows:
15 1.
As to the common areas and improvements thereon, a
16 warranty
for 3 years commencing with the completion of the
17 building
or improvement, or for 1 year after transfer of
18 control
of the association from the developer to the members
19 other
than the developer, in no event for more than 5 years
20 after
completion of the building or improvement.
21 2.
As to the personal property that is transferred
22 with
or appurtenant to the common areas, a warranty that is
23 for
the same period as that provided by the manufacturer of
24 the
personal property, commencing with the date of transfer of
25 the
common areas to the association.
26 (b)
The statute of limitations for any actions in law
27 or equity
which an association may have shall not begin to run
28 until
the members other than the developer have elected a
29 majority
of the members of the board.
30 (2)
The contractor, and all subcontractors and
31 suppliers,
grant to the developer and to the homeowners'
38
1 association
implied warranties of fitness as to the work
2 performed
or materials supplied by them as follows:
3 (a)
For a period of 3 years from the date of
4 completion
of construction of a building or improvement, a
5 warranty
as to the roof and structural components of the
6 building
or improvement and mechanical and plumbing elements
7 serving
a building or an improvement located on the common
8 areas
or association property.
9 (b)
For a period of 1 year after completion of all
10 construction,
a warranty as to all other improvements and
11 materials.
12 (3)
The term "completion of a building or improvement"
13 means
issuance of a certificate of occupancy for the entire
14 building
or improvement, or the equivalent authorization
15 issued
by the governmental body having jurisdiction, and in
16 jurisdictions
where no certificate of occupancy or equivalent
17 authorization
is issued it means substantial completion of
18 construction,
finishing, and equipping of the building or
19 improvement
according to the plans and specifications.
20 (4)
These warranties are conditioned upon routine
21 maintenance
being performed, unless the maintenance is an
22 obligation
of the developer or a developer-controlled
23 association.
24 (5)
The warranties provided by this section shall
25 inure
to the benefit of each owner and his or her successor
26 owners
and to the benefit of the developer.
27 (6)
This section does not affect a homeowners'
28 association
as to which rights are established by transfer of
29 control
and ownership rights of the common areas from the
30 developer
to the homeowners' association prior to July 1,
31 2004.
39
1
(7) Common areas may be covered by an insured warranty
2 program
underwritten by a licensed insurance company
3 registered
in this state, provided that such warranty program
4 meets
the minimum requirements of this chapter. To the degree
5 that
such warranty program does not meet the minimum
6 requirements
of this chapter, such requirements apply.
7
Section 12. Subsection (1) of section 34.01, Florida
8 Statutes, is amended to
read:
9 34.01
Jurisdiction of county court.--
10
(1) County courts shall have original jurisdiction:
11
(a) In all misdemeanor cases not cognizable by the
12 circuit courts;
13
(b) Of all violations of municipal and county
14 ordinances; and
15
(c) Of all actions at law in which the matter in
16 controversy does not exceed the
sum of $15,000, exclusive of
17 interest, costs, and attorney's
fees, except those within the
18 exclusive jurisdiction of the
circuit courts. The party
19 instituting any civil action,
suit, or proceeding pursuant to
20 this paragraph where the amount
in controversy is in excess of
21 $5,000 shall pay to the clerk
of the county court the filing
22 fees and service charges in the
same amounts and in the same
23 manner as provided in s. 28.241;
and.
24 (d)
Of disputes occurring in the homeowners'
25 associations
as described in s. 720.311(2)(a), which shall be
26 concurrent
with jurisdiction of the circuit courts.
27
Section 13. Paragraph (a) of subsection (1) of section
28 316.00825, Florida Statutes,
is amended to read:
29
316.00825 Closing and abandonment of roads; optional
30 conveyance to homeowners' association;
traffic control
31 jurisdiction.--
40
1
(1)(a) In addition to the authority provided in s.
2 336.12, the governing
body of the county may abandon the roads
3 and rights-of-way dedicated
in a recorded residential
4 subdivision plat and simultaneously
convey the county's
5 interest in such roads,
rights-of-way, and appurtenant
6 drainage facilities to a
homeowners' association for the
7 subdivision, if the following
conditions have been met:
8
1. The homeowners' association has requested the
9 abandonment and conveyance
in writing for the purpose of
10 converting the subdivision to
a gated neighborhood with
11 restricted public access.
12
2. No fewer than four-fifths of the owners of record
13 of property located in the subdivision
have consented in
14 writing to the abandonment and
simultaneous conveyance to the
15 homeowners' association.
16
3. The homeowners' association is both a corporation
17 not for profit organized and
in
good standing under chapter
18 617, and a "homeowners' association"
as defined in s.
19 720.301(8)s.
720.301(7) with the power to levy and collect
20 assessments for routine and periodic
major maintenance and
21 operation of street lighting,
drainage, sidewalks, and
22 pavement in the subdivision.
23
4. The homeowners' association has entered into and
24 executed such agreements, covenants,
warranties, and other
25 instruments; has provided, or
has provided assurance of, such
26 funds, reserve funds, and funding
sources; and has satisfied
27 such other requirements and conditions
as may be established
28 or imposed by the county with
respect to the ongoing
29 operation, maintenance, and repair
and the periodic
30 reconstruction or replacement
of the roads, drainage, street
31
41
1 lighting, and sidewalks in
the subdivision after the
2 abandonment by the county.
3
Section 14. Subsection (2) of section 558.002, Florida
4 Statutes, is amended to
read:
5
558.002 Definitions.--As used in this act, the term:
6
(2) "Association" has the same meaning as in s.
7 718.103(2), s. 719.103(2),
s. 720.301(8) s. 720.301(7), or s.
8 723.025.
9 Section
15. The Division of Statutory Revision is
10 requested
to designate sections 720.301-720.312, Florida
11 Statutes,
as part I of chapter 720, Florida Statutes; to
12 designate
sections 720.401 and 720.402, Florida Statutes, as
13 part
II of chapter 720, Florida Statutes, and entitle that
14 part
"DISCLOSURE PRIOR TO SALE OF RESIDENTIAL PARCELS"; and to
15 designate
section 720.501, Florida Statutes, as part III of
16 chapter
720, Florida Statutes, and entitle that part "RIGHTS
17 AND
OBLIGATIONS OF DEVELOPERS."
18
19 Section
16. FS 720.311 is amended to read:
20 720.311
Powers and duties of Division of Florida Land
21 Sales,
Condominiums, and Mobile Homes.--
22 (1)
The Division of Florida Land Sales, Condominiums, and
23 Mobile
Homes of the Department of Business and Professional
24 Regulation,
referred to as the "division" in this part, in
25 addition
to other powers and duties prescribed by chapter 498,
26 has
the power to enforce and ensure compliance with the
27 provisions
of this chapter and rules promulgated pursuant hereto
28 relating
to the development, construction, sale, lease,
29 ownership,
operation, and management of residential homeowners
30 association
units. In performing its duties, the division has the following
31 powers
and duties:
42
1 (a)
The division shall provide training programs for
2 homeowners'
association board members and unit owners. Training
3 shall
be mandatory for newly elected board members and members
4 currently
serving on a board who have not previously voluntarily
5 attended
training.
6 Section 17.
Section 720.311, Florida Statutes, is created
7 to read:
8 720.311(2)
Ombudsman; appointment; oath; restrictions on
9 ombudsman
and his or her employees.--
10 (1)
There is created an Office of the Homeowners' Association
11 Ombudsman
that for administrative purposes shall be located
12 within
the Division of Florida Land Sales, Condominiums, and
13 Mobile
Homes. However, the office shall be independent of the
14 division.
15 (2)
The Joint Legislative Auditing Committee shall appoint
16 an
ombudsman by majority vote of the members of that committee.
17 The
ombudsman shall be an attorney admitted to practice before
18 the
Florida Supreme Court and shall serve at the pleasure of the
19 Joint
Legislative Auditing Committee. Vacancies in the office
20 shall
be filled in the same manner as the original appointment.
21 The
ombudsman and attorneys under his staff shall take and
22 subscribe
to the oath of office required of state officers by
23 the
State Constitution. No officer or full-time employee of the
24 ombudsman's
office shall actively engage in any other business
25 or
profession; serve as the representative of any political
26 party,
executive committee, or other governing body thereof;
27 serve
as an executive, officer, or employee of any political
28 party,
committee, organization, or association; receive
29 remuneration
for activities on behalf of any candidate for
30 public
office; or engage on behalf of any candidate for public
31 office
in the solicitation of votes or other activities on
43
1 behalf
of such candidacy. Neither the ombudsman nor any employee
2 of
his or her office shall become a candidate for election to
3 public
office unless he or she first resigns from his or her
4 office
or employment.
5 Section
18. Section 720.311(3), Florida Statutes, is created
6 to read:
7 720.31(2)
Ombudsman; powers and duties.--The ombudsman
8 shall
have such powers as are necessary to carry out the duties
9 of
his or her office, including, but not limited to, the
10 following
specific powers:
11 (a)
To have access to and use of all files and records of
12 the
division.
13 (b)
To prepare and issue reports, recommendations, and
14 proposed
orders to the division, the Governor, the Advisory
15 Council
on Homeowners' Associations, the President of the Senate, the
16 Speaker
of the House of Representatives, and minority leaders of
17 the
Senate and the House of Representatives on any matter or
18 subject
within the jurisdiction of the division, and to make
19 such
recommendations as he or she deems appropriate for
20 legislation
relative to division procedures, rules,
21 jurisdiction,
personnel, and functions.
22 (c)
To act as liaison between the division and unit
23 owners,
and to assist any unit owner in the preparation and
24 filing
of a complaint to be investigated by the division. The
25 ombudsman
shall establish procedures for receiving complaints.
26 Any
complaint deemed valid by the ombudsman and properly falling
27 within
the jurisdiction of the division and requiring remedial
28 action
shall be identified and promptly filed with the division.
29 Upon
the concurrence of the division, the ombudsman shall
30 establish
target dates for concluding an investigation and for
31 taking
appropriate specified remedial action. The ombudsman may
44
1 recommend
that the division initiate enforcement proceedings in
2 accordance
with chapter 120. The department and the ombudsman
3 may
take findings of a criminal nature and submit them as
4 evidence
to the State Attorneys office, and work with them to
5 bring
charges against the alleged parties involved.
6
(d)
To make recommendations to the division for changes in
7 rules
and procedures for the filing, investigation, and
8 resolution
of complaints filed by unit owners.
6 (e)
The Ombudsman's Office shall develop an education
7 program
to assist homeowners, associations, board members, and
8 managers
in understanding and increasing awareness of the operation
9 of
homeowners' associations pursuant to chapter 720 and
10 create
more harmony between parcel owners and associations
11 and
between owners. Such education program may include the
12 development
of pamphlets and other written instructional guides,
13 the
holding of classes and meetings by Ombudsman's Office
14 employees
or outside vendors, as the office determines,
15 and
the creation and maintenance of a website containing
16 instructional
materials. The expenses of operating the education
17 program
shall be paid by the moneys of the trust fund to be created
18 The
Ombudsman's Office shall seek funding to cover the startup costs
19 of the
education programs.
20
Section 19. Section 720.311, Florida Statutes, is created
21 to read:
22
720.311(4) Ombudsman; compensation and
expenses.--
23 (a)
All costs and expenses incurred by the Office of the
24 Homeowners'
Association Ombudsman shall be paid from disbursements
25 from
the Division of Florida Land Sales, Condominiums, and Mobile
26 Homes
Trust Fund to be created and shall require approval of the
27 Joint
Legislative Auditing Committee.
28
(b) The Joint Legislative Auditing
Committee may authorize
29 the
ombudsman to employ clerical and technical assistants whose
30 qualifications,
duties, and responsibilities the committee shall
31 from
time to time prescribe, and to enter into such contract
45
1 necessary.
The committee may authorize retention of the services
2 of
additional attorneys or experts to the extent that the best
3 interests
of the people of the state will be better served
4 thereby,
including the retention of expert witnesses and other
5 technical
personnel for participation in contested proceedings
6 before
the division.
7 Section
20. Section 720.311, Florida Statutes, is created
8 to read:
9 720.311(5)
Ombudsman; location.--The ombudsman shall
10 maintain
his or her principal office in Leon County on the
11 premises
of the division or, if suitable space cannot be
12 provided
there, at such other place convenient to the offices of
13 the
division as will enable the ombudsman to expeditiously carry
14 out
the duties and functions of his or her office. The ombudsman
15 may
establish branch offices upon the concurrence of the Joint
16 Legislative
Auditing Committee
17
Section 21. Section 720.311(6), Florida Statutes, is created
18 to read:
19 720.311(6)
Advisory council; membership functions.--
20 (1)
There is created the Advisory Council on Homeowners' Associations.
21 The
council shall consist of seven members. Two members shall be
22 appointed
by the Speaker of the House of Representatives, two
23 members
shall be appointed by the President of the Senate, and
24 three
members shall be appointed by the Governor. At least one
25 member
shall represent timeshare condominiums. Members shall be
26 appointed
to 2-year terms; however, of the initial appointments,
27 one
of the members appointed by each of the Governor, the
28 Speaker
of the House of Representatives, and the President of
29 the
Senate shall be appointed to 1-year terms. In addition to
30 these
appointed members, the director of the Division of Florida
31 Land
Sales, Condominiums, and Mobile Homes shall serve as an ex
46
1 officio
member of the council. It is the intent of the
2 Legislature
that the persons appointed to this council represent
3 a
cross-section of persons interested in homeowners' association issues.
4 For
administrative purposes, the council shall be located in the
5 Division
of Florida Land Sales, Condominiums, and Mobile Homes
6 of
the Department of Business and Professional Regulation.
7 Members
of the council shall serve without compensation, but
8 shall
be entitled to receive per diem and travel expenses
9 pursuant
to s. 112.061 while on official business.
10 (2)
The functions of the advisory council shall be to:
11 (a)
Receive input from the public regarding issues of
12 concern
with respect to homeowners' associations and to receive
13 recommendations
for any changes to be made in the homeowners'
14 association
law. The issues that the council shall consider shall include,
15 but
shall not be limited to, the rights and responsibilities of
16 the
unit owners in relation to the rights and responsibilities
17 of
the association.
18
(b)
Review, evaluate, and advise the division concerning
19 revisions
and adoption of rules affecting homeowners' associations.
20 (c)
Recommend improvements, if needed, in the education
21 programs
offered by the division.
22 (3)
The council is authorized to elect a chair and vice
23 chair
and such other offices as it may deem advisable. The
24 council
shall meet at the call of its chair, at the request of a
25 majority
of its membership, at the request of the division, or
26 at
such times as may be prescribed by its rules. A majority of
27 the
members of the council shall constitute a quorum for the
28 transaction
of all business and the carrying out of the duties
29 of
the council.
30
31 Section 22. This act shall
take effect January 1, 2005.
47
1
2
*****************************************
3
SENATE SUMMARY
4 Expands
the alternative dispute resolution provisions relating to disputes involving
homeowners'
associations,
5 providing
for both arbitration and mediation and Creates an Ombudsman's
Office for
homeowners' associations; creating advisory council;
6 providing for training
programs and education programs. Provides for provisions for
board election and recall process.
7 Provides additional requirements
with respect to members' or parcel owners' rights to
appear and address meetings
8 of association boards and
of members, to inspect and copy records, and to have items
placed on an agenda for
9 consideration. Provides
additional standards for procurement of materials and
services and provides for
10 warranties with respect
to common areas and to personal property.(See bill for details.)
CODING: Words stricken
are deletions; words underlined are
additions. |