Opinion By Jan Bergemann
Published Saturday, March 19, 2011
Over the years I have seen many bad bills, but this bill really is by far the worst I have ever seen. No matter who wrote that bill -- in a hurry -- forgot to switch on his/her brain before engaging the key-pad. Last year's S1196, written by the usual suspects, was badly worded, but I suspect that was done on purpose to increase the billing hours of the attorneys behind the bill.
S1196 contained a lot of vague language, language that still haunts associations and owners. But this bill -- PCB BCAS 11-01, as presented to the House Business and Consumer Affairs Subcommittee, is more or less an insult to the intelligence of every decent legislator. This bill was clearly thrown together, without even considering the contradictions in the bill itself.
How do you like FS 718.501 being amended from line 449 - 610, but on Lines 4337 - 4338 the whole provision is repealed? So, what is it? Author couldn't make up his/her mind?
What is really in the so-called DEREGULATION BILL PCB BCAS 11-01 that will affect Florida's owners owning property in mandatory community associations?
short: It Dissolves the Division of Florida Condominiums,
Timeshares and Mobile Homes and the Condo Ombudsman's Office. It
removes Community Association Manager Licensing and Regulation and
it totally removes what little enforcement there ever was of
Just look what this bill does to the RECALL PROVISIONS in the community association statutes. The author removed the provision of mandatory arbitration by the Division. The new wording plainly states: "At the meeting, the board shall certify the recall." That really makes it easy: Serve the board and they have to certify the recall -- no questions asked. And if they don't hold a meeting -- they are out as well - according to the statutes: "The recall shall be deemed effective!"
But if you need further help dealing with vacancies caused by recalls, don't despair -- help is on the way: A non-existent Division will adopt procedural rules! Good luck!
I'm not quite sure how this bill can create more jobs. It surely will destroy many jobs. Many government workers that were paid by trust funds -- not by the general tax fund -- will actually lose their jobs. In reality, this bill is an open invitation to every scam artist and fraudster from around the nation. It's an open invitation to rip off owners living in Florida's community associations. This bill removes as well the possibility of punishing the "bad guys." It will create lots of jobs for scam artists especially targeting our elderly, telling them: "Come to Florida. Let's get to work!"
makes no sense to say that officers,
Neither does it make sense if a paragraph of the statutes starts with: "Any person who knowingly or intentionally defaces or destroys accounting records required to be created and maintained ..." but ends with more or less saying -- if you destroy the records proving that you stole the money -- nothing will happen to you. So, go ahead! It's an open invitation for scumbags to destroy the proof of their wrongdoing (Line 3887 ff)
Dissolving the Division of Florida Condominiums, Timeshares, and Mobile Homes means that now all of Florida's community association disputes have to be handled by Florida Courts -- all added to court calendars that are already more cramped than judges can handle. We are talking here courts that are already overwhelmed and understaffed. Hopefully our esteemed legislators will consider in their budget debates that they will have to add lots of money to the budgets for courts for more judges and support staff -- or the amount of added cases from community associations will cause a total breakdown of our court system that is already stretched to full capacity. Where will they find this money?
This bill removes all the services and protections that were paid for by the so-called Condo Trust Fund, a fund this bill does repeal as well: FS 718.509 -- Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund. After our legislators have raided the TRUST FUND for many years, no wonder the trust in our politicians is at an all time low. Instead of staffing the agency properly to create the services and protection these owners have been paying for, the politicians now want to do without this easy source to raid? Actually, all associations should get a refund -- half of what they paid for the year 2011, since the services will stop at July 1, 2011. Why should anybody pay for services they don't receive?
ONLY IN TALLAHASSEE!
THE CONTENTS OF THE BILL
DISSOLVING THE DIVISION OF FLORIDA CONDOMINIUM,
TIMESHARES, AND MOBILE HOMES
COMMUNITY ASSOCIATION MANAGER LICENSING + REGULATION
Section 8. Part VIII of chapter 468,
355 consisting of sections 468.431, 468.4315, 468.432, 468.433,
356 468.4336, 468.4337, 468.4338, 468.435, 468.436, 468.4365,
468.437, and 468.438, is repealed.
CAM Regulation: Complete FS
468.431 - 438 -- Part VIII
FS 718 -- Condominiums
428 Section 11. Subsection (14) of section 718.111, Florida
429 Statutes, is amended to read:
430718.111 The association.—
431 (14) COMMINGLING.— All funds collected by an association
432 shall be maintained separately in the association's name. For
433 investment purposes only, reserve funds may be commingled with
434 operating funds of the association. Commingled operating and
435 reserve funds shall be accounted for separately, and a
436 commingled account shall not, at any time, be less than the
437 amount identified as reserve funds. This subsection does not
438 prohibit a multicondominium association from commingling the
439 operating funds of separate condominiums or the reserve funds of
440 separate condominiums. Furthermore, for investment purposes
441 only, a multicondominium association may commingle the operating
442 funds of separate condominiums with the reserve funds of
employee, officer, or director of an association
446 commingle any association funds with his or her funds or with
447 the funds of any other condominium association or the funds of a
From Line 449 - Line 610 FS 718.501 is amended --
but on Lines 4337 - 4338 the whole provision is repealed!
3775 718.103 Definitions.— As used in this chapter, the term:
association and the unit owners. An officer, director, or
3826 manager may not solicit, offer to accept, or accept any thing or
service of value for which consideration has not been provided
for his or her own benefit or that of his or her immediate
family, from any person providing or proposing to provide goods
or services to the association.
kickbacks are not allowed, but accepting them carries no punishment!
least 7 years.
No punishment for people destroying records. (Repeat on Lines 3942 - 3949)
FS 718.112(2)(j) Recall of board members
4206 (j) Recall of board members.—Subject to the provisions of
4207 s. 718.301, any member of the board of administration may be
4208 recalled and removed from office with or without cause by the
4209 vote or agreement in writing by a majority of all the voting
4210 interests. A special meeting of the unit owners to recall a
4211 member or members of the board of administration may be called
4212 by 10 percent of the voting interests giving notice of the
4213 meeting as required for a meeting of unit owners, and the notice
4214 shall state the purpose of the meeting. Electronic transmission
4215 may not be used as a method of giving notice of a meeting called
4216 in whole or in part for this purpose.
4217 1. If the recall is approved by a majority of all voting
4218 interests by a vote at a meeting, the recall will be effective
4219 as provided herein. The board shall duly notice and hold a board
4220 meeting within 5 full business days of the adjournment of the
4221 unit owner meeting to recall one or more board members. At the
meeting, the board shall
4223 case such member or members shall be recalled effective
4224 immediately and shall turn over to the board within 5 full
4225 business days any and all records and property of the
association in their possession
4228 2. If the proposed recall is by an agreement in writing by
4229 a majority of all voting interests, the agreement in writing or
4230 a copy thereof shall be served on the association by certified
4231 mail or by personal service in the manner authorized by chapter
4232 48 and the Florida Rules of Civil Procedure. The board of
4233 administration shall duly notice and hold a meeting of the board
4234 within 5 full business days after receipt of the agreement in
writing. At the meeting, the board shall
4236 written agreement to recall a member or members of the board, in
4237 which case such member or members shall be recalled effective
4238 immediately and shall turn over to the board within 5 full
4239 business days any and all records and property of the
association in their possession
4259 meeting within 5 full business days of service of an agreement
4260 in writing or within 5 full business days of the adjournment of
4261 the unit owner recall meeting, the recall shall be deemed
4262 effective and the board members so recalled shall immediately
4263 turn over to the board any and all records and property of the
4266 recall or removal and less than a majority of the board members
4267 are removed, the vacancy may be filled by the affirmative vote
4268 of a majority of the remaining directors, notwithstanding any
4269 provision to the contrary contained in this subsection. If
4270 vacancies occur on the board as a result of a recall and a
4271 majority or more of the board members are removed, the vacancies
4272 shall be filled in accordance with procedural rules to be
4273 adopted by the division, which rules need not be consistent with
4274 this subsection. The rules must provide procedures governing the
4275 conduct of the recall election as well as the operation of the
4276 association during the period after a recall but prior to the
4277 recall election.
Section 158. Section 718.1255,
dispute resolution; voluntary mediation; mandatory nonbinding arbitration;
purchaser a receipt for the deposit, upon request.
by any unit owner if the association fails to do so.
NO MORE DIVISION -- NO MORE OMBUDSMAN
Section 161. Section 718.501, Florida Statutes, is
Section 162. Section 718.5011, Florida Statutes, is
Ombudsman; appointment; administration.
Ombudsman; appointment; administration.
Section 163. Section 718.5012, Florida Statutes, is
Section 164. Section 718.5014, Florida Statutes, is
Section 165. Section 718.50151, Florida Statutes,
Community Association Living Study Council; membership
Community Association Living Study Council; membership functions.
Section 166. Section 718.50152, Florida Statutes,
Section 167. Section 718.50153, Florida Statutes,
Section 168. Section 718.50154, Florida Statutes,
Seal and authentication of records.
Section 169. Section 718.50155, Florida Statutes,
16. If the developer is required by state or local
authorities to obtain acceptance or approval of any dock or
marina facilities intended to serve the condominium,
acceptance or approval has not been acquired or received.
seller a copy of a governance form.
4455 address the following subjects:
4497 718.504 Prospectus or offering circular.—Every developer
4498 of a residential condominium which contains more than 20
4499 residential units, or which is part of a group of residential
4500 condominiums which will be served by property to be used in
4501 common by unit owners of more than 20 residential units, shall
prepare a prospectus or offering circular
4504 prior to entering into an enforceable contract of purchase and
4505 sale of any unit or lease of a unit for more than 5 years and
4506 shall furnish a copy of the prospectus or offering circular to
4507 each buyer. In addition to the prospectus or offering circular,
4508 each buyer shall be furnished a separate page entitled
"Frequently Asked Questions and Answers
4511 the financial information required by s. 718.111. This page
4512 shall, in readable language, inform prospective purchasers
4513 regarding their voting rights and unit use restrictions,
4514 including restrictions on the leasing of a unit; shall indicate
4515 whether and in what amount the unit owners or the association is
4516 obligated to pay rent or land use fees for recreational or other
4517 commonly used facilities; shall contain a statement identifying
4518 that amount of assessment which, pursuant to the budget, would
4519 be levied upon each unit type, exclusive of any special
4520 assessments, and which shall further identify the basis upon
4521 which assessments are levied, whether monthly, quarterly, or
4522 otherwise; shall state and identify any court cases in which the
4523 association is currently a party of record in which the
4524 association may face liability in excess of $100,000; and which
4525 shall further state whether membership in a recreational
4526 facilities association is mandatory, and if so, shall identify
the fees currently charged per unit type.
4533 circular must contain the following information:
4943 (e) Each budget for an association prepared by a developer
4944 consistent with this subsection shall be prepared in good faith
4945 and shall reflect accurate estimated amounts for the required
items in paragraph (c)
4948 any item included in the association's estimated budget that are 4948 beyond the control of the developer shall not be considered an
5013 (27) If the developer is required by state or local
5014 authorities to obtain acceptance or approval of any dock or
marina facilities intended to serve the condominium,
5017 acceptance or approval has not been acquired or received.
718.509 Division of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund
5022 Section 173. Section 718.509, Florida Statutes, is
FS 720 -- Homeowners' Associations
5961 Section 191. Paragraph (d) of subsection (10) of section
5962 720.303, Florida Statutes, is amended to read:
5963 720.303 Association powers and duties; meetings of board;
5964 official records; budgets; financial reporting; association
5965 funds; recalls.—
5966 (10) RECALL OF DIRECTORS.—
5967 (d) If the board determines not to certify the written
5968 agreement or written ballots to recall a director or directors
5969 of the board or does not certify the recall by a vote at a
5970 meeting, the board shall, within 5 full business days after the
5971 meeting, file with the department a petition for binding
5974 the purposes of this section, the members who voted at the
5975 meeting or who executed the agreement in writing shall
5976 constitute one party under the petition for arbitration. If the
5977 arbitrator certifies the recall as to any director or directors
5978 of the board, the recall will be effective upon mailing of the
5979 final order of arbitration to the association. The director or
5980 directors so recalled shall deliver to the board any and all
5981 records of the association in their possession within 5 full
5982 business days after the effective date of the recall.
5983 Section 192. Subsection (9) of section 720.306, Florida
5984 Statutes, is amended to read:
5985 720.306 Meetings of members; voting and election
5986 procedures; amendments.—
5987 (9) ELECTIONS AND BOARD VACANCIES.—Elections of directors
5988 must be conducted in accordance with the procedures set forth in
5989 the governing documents of the association. All members of the
5990 association are eligible to serve on the board of directors, and
5991 a member may nominate himself or herself as a candidate for the
5992 board at a meeting where the election is to be held or, if the
5993 election process allows voting by absentee ballot, in advance of
5994 the balloting. Except as otherwise provided in the governing
5995 documents, boards of directors must be elected by a plurality of
the votes cast by eligible voters.
5999 conducted in the manner provided by s. 718.1255 and the
6000 procedural rules adopted by the division. Unless otherwise
6001 provided in the bylaws, any vacancy occurring on the board
6002 before the expiration of a term may be filled by an affirmative
6003 vote of the majority of the remaining directors, even if the
6004 remaining directors constitute less than a quorum, or by the
6005 sole remaining director. In the alternative, a board may hold an
6006 election to fill the vacancy, in which case the election
6007 procedures must conform to the requirements of the governing
6008 documents. Unless otherwise provided in the bylaws, a board
6009 member appointed or elected under this section is appointed for
6010 the unexpired term of the seat being filled. Filling vacancies
6011 created by recall is governed by s. 720.303(10) and rules
6012 adopted by the division.
6013 Section 193. Subsection (1) and paragraph (c) of
6014 subsection (2) of section 720.311, Florida Statutes, are amended
6015 to read:
6016 720.311 Dispute resolution.—
6017 (1) The Legislature finds that alternative dispute
6018 resolution has made progress in reducing court dockets and
6019 trials and in offering a more efficient, cost-effective option
6020 to litigation. The filing of any petition for arbitration or the
6021 serving of a demand for presuit mediation as provided for in
6022 this section shall toll the applicable statute of limitations.
Any recall dispute filed with the department
6025 with the provisions of ss. 718.112(2)(j) and 718.1255 and the
6026 rules adopted by the division. In addition, the department shall
6027 conduct mandatory binding arbitration of election disputes
between a member and an association
6030 recall disputes are eligible for presuit mediation; these
6031 disputes shall be arbitrated by the department. At the
6032 conclusion of the proceeding, the department shall charge the
6033 parties a fee in an amount adequate to cover all costs and
6034 expenses incurred by the department in conducting the
6035 proceeding. Initially, the petitioner shall remit a filing fee
6036 of at least $200 to the department. The fees paid to the
6037 department shall become a recoverable cost in the arbitration
6038 proceeding, and the prevailing party in an arbitration
6039 proceeding shall recover its reasonable costs and attorney's
6040 fees in an amount found reasonable by the arbitrator. The
6041 department shall adopt rules to effectuate the purposes of this
6044 (c) If presuit mediation as described in paragraph (a) is
6045 not successful in resolving all issues between the parties, the
6046 parties may file the unresolved dispute in a court of competent
6047 jurisdiction or elect to enter into binding or nonbinding
arbitration pursuant to
6050 proceeding to be conducted by a department arbitrator or by a
6051 private arbitrator certified by the department. If all parties
6052 do not agree to arbitration proceedings following an
6053 unsuccessful presuit mediation, any party may file the dispute
6054 in court. A final order resulting from nonbinding arbitration is
6055 final and enforceable in the courts if a complaint for trial de
6056 novo is not filed in a court of competent jurisdiction within 30
6057 days after entry of the order. As to any issue or dispute that
6058 is not resolved at presuit mediation, and as to any issue that
6059 is settled at presuit mediation but is thereafter subject to an
6060 action seeking enforcement of the mediation settlement, the
6061 prevailing party in any subsequent arbitration or litigation
6062 proceeding shall be entitled to seek recovery of all costs and
6063 attorney's fees incurred in the presuit mediation process.
FS 719 -- Co-Ops
Provisions in FS 719 similar to the provisions in FS 718 (condos) are amended or repealed
FS 721 -- Timeshares
Provisions in FS 719 similar to FS 718 (References to Division) are amended or repealed.
FS 723 -- Mobile Home Parks
Provisions in FS 723 similar to FS 718 (References to Division) are amended or repealed.