|
H1229
GENERAL BILL by Representative Julio Robaina : Co-Sponsors: Anitere Flores, Anne Gannon, Priscilla Taylor,
David Rivera, Juan Zapata
Referred
Committees and Committee Actions:
Civil Justice
Committee
STAFF
ANALYSIS
State
Administration Appropriations Committee
Justice
Council
|
Homeowners'
and Condominium Associations: Redesignates
the Division of Florida Land Sales, Condominiums, and Mobile Homes as the
Division of Florida Land Sales, Condominiums, Homeowners' Associations,
Community Association Management, and Mobile Homes; provides a definition;
provides that the Regulatory Council of Community Association Managers
shall be within the Division of Florida Land Sales, Condominiums,
Homeowners' Associations, Community Association Management, and Mobile
Homes; provides that community association managers are subject to
disciplinary action upon a finding by the division; requires the division
to refer its findings to the Department of Business and Professional
Regulation; includes cooperative units into rental rights grandfathered
clause; provides condominium associations guidelines for the designation
of disabled parking; requires association bylaws to mandate a specified
reserve minimum; provides powers of the division to include homeowners'
associations and community association management; requires training of
condominium association board members; requires notice of violations;
provides criteria for notice, including a response deadline; provides the
ombudsman with certain powers concerning homeowners' associations;
provides that an association or board may not waive its audit for more
than 2 consecutive years.
|
| Effective
Date: July 1, 2005. |
| 1 |
A bill to be entitled |
| 2 |
An act relating to homeowners' and
condominium |
| 3 |
associations; amending s. 20.165, F.S.;
redesignating the |
| 4 |
Division of Florida Land Sales,
Condominiums, and Mobile |
| 5 |
Homes as the Division of Florida Land
Sales, Condominiums, |
| 6 |
Homeowners' Associations, Community
Association |
| 7 |
Management, and Mobile Homes; amending
s. 468.431, F.S.; |
| 8 |
providing a definition; amending s.
468.4315, F.S.; |
| 9 |
providing that the Regulatory Council of
Community |
| 10 |
Association Managers shall be within the
Division of |
| 11 |
Florida Land Sales, Condominiums,
Homeowners' |
| 12 |
Associations, Community Association
Management, and Mobile |
| 13 |
Homes; amending s. 468.436, F.S.;
providing that community |
| 14 |
association managers are subject to
disciplinary action |
| 15 |
upon a finding by the division;
requiring the division to |
| 16 |
refer its findings to the Department of
Business and |
| 17 |
Professional Regulation; providing
penalties; amending s. |
| 18 |
718.111, F.S.; providing condominium
associations |
| 19 |
guidelines for the designation of
disabled parking; |
| 20 |
amending s. 718.112, F.S.; requiring
association bylaws to |
| 21 |
mandate a specified reserve minimum;
amending s. 718.501, |
| 22 |
F.S.; providing powers of the division
to include |
| 23 |
homeowners' associations and community
association |
| 24 |
management; requiring training of
condominium association |
| 25 |
board members; requiring notice of
violations; providing |
| 26 |
criteria for notice, including a
response deadline; |
| 27 |
amending s. 718.5012, F.S.; providing
the ombudsman with |
| 28 |
certain powers concerning homeowners'
associations; |
| 29 |
amending s. 719.104, F.S.; providing
that an association |
| 30 |
or board may not waive its audit for
more than 2 |
| 31 |
consecutive years; amending s. 719.1055,
F.S.; including |
| 32 |
cooperative units in rental rights
grandfathered clause; |
| 33 |
creating s. 720.3015, F.S.; providing
the division with |
| 34 |
certain powers and duties relating to
homeowners' |
| 35 |
associations; creating s. 720.3071, F.S.;
requiring |
| 36 |
training of homeowners' association
board members; |
| 37 |
amending ss. 73.073, 190.009, 192.037,
213.053, 215.20, |
| 38 |
326.002, 326.006, 380.0651, 455.116,
475.455, 498.005, |
| 39 |
498.019, 498.047, 498.049, 509.512,
559.935, 718.103, |
| 40 |
718.105, 718.1255, 718.5011, 718.502,
718.504, 718.508, |
| 41 |
718.509, 718.608, 719.103, 719.1255,
719.501, 719.502, |
| 42 |
719.504, 719.508, 719.608, 720.301,
721.05, 721.07, |
| 43 |
721.08, 721.26, 721.28, 721.301, 721.50,
723.003, 723.006, |
| 44 |
723.009, and 723.0611, F.S., to conform
references; |
| 45 |
providing an effective date. |
| 46 |
|
| 47 |
Be It Enacted by the Legislature of the State of
Florida: |
| 48 |
|
| 49 |
Section 1. Paragraph
(d) of subsection (2) of section |
| 50 |
20.165, Florida Statutes, is amended to read: |
| 51 |
20.165 Department
of Business and Professional |
| 52 |
Regulation.--There is created a Department of
Business and |
| 53 |
Professional Regulation. |
| 54 |
(2) The
following divisions of the Department of Business |
| 55 |
and Professional Regulation are established: |
| 56 |
(d) Division
of Florida Land Sales, Condominiums, |
| 57 |
Homeowners' Associations, Community Association
Management, and |
| 58 |
Mobile Homes. |
| 59 |
Section 2. Subsection
(5) of section 468.431, Florida |
| 60 |
Statutes, is renumbered as subsection (6), and a new
subsection |
| 61 |
(5) is added to said section, to read: |
| 62 |
468.431 Definitions.-- |
| 63 |
(5) "Division"
means the Division of Florida Land Sales, |
| 64 |
Condominiums, Homeowners' Associations, Community
Association |
| 65 |
Management, and Mobile Homes of the Department of
Business and |
| 66 |
Professional Regulation. |
| 67 |
Section 3. Subsection
(1) of section 468.4315, Florida |
| 68 |
Statutes, is amended to read: |
| 69 |
468.4315 Regulatory
Council of Community Association |
| 70 |
Managers.-- |
| 71 |
(1) The
Regulatory Council of Community Association |
| 72 |
Managers is created within the division department
and shall |
| 73 |
consist of seven members appointed by the Governor
and confirmed |
| 74 |
by the Senate. |
| 75 |
(a) Five
members of the council shall be licensed |
| 76 |
community association managers, one of whom shall be
a community |
| 77 |
association manager employed by a timeshare managing
entity as |
| 78 |
described in ss. 468.438 and 721.13, who have held an
active |
| 79 |
license for 5 years. The remaining two council
members shall be |
| 80 |
residents of this state and must not be or ever have
been |
| 81 |
connected with the business of community association
management. |
| 82 |
(b) The
Governor shall appoint members for terms of 4 |
| 83 |
years. Such members shall serve until their
successors are |
| 84 |
appointed. Members' service on the council shall
begin upon |
| 85 |
appointment and shall continue until their successors
are |
| 86 |
appointed. |
| 87 |
Section 4. Section
468.436, Florida Statutes, is amended |
| 88 |
to read: |
| 89 |
468.436 Disciplinary
proceedings.-- |
| 90 |
(1) Upon
a finding by the division, the following acts |
| 91 |
constitute grounds for which the disciplinary actions
in |
| 92 |
subsection (3) may be taken: |
| 93 |
(a) Violation
of any provision of s. 455.227(1). |
| 94 |
(b)1. Violation
of any provision of this part. |
| 95 |
2. Violation
of any lawful order or rule rendered or |
| 96 |
adopted by the department or the council. |
| 97 |
3. Being
convicted of or pleading nolo contendere to a |
| 98 |
felony in any court in the United States. |
| 99 |
4. Obtaining
a license or certification or any other |
| 100 |
order, ruling, or authorization by means of fraud, |
| 101 |
misrepresentation, or concealment of material facts. |
| 102 |
5. Committing
acts of gross misconduct or gross negligence |
| 103 |
in connection with the profession. |
| 104 |
(2) The
council shall specify by rule the acts or |
| 105 |
omissions that constitute a violation of subsection
(1). |
| 106 |
(3) When the
division department finds any community |
| 107 |
association manager guilty of any of the grounds set
forth in |
| 108 |
subsection (1), it shall refer the matter to the
department, |
| 109 |
which may enter an order imposing one or more
of the following |
| 110 |
penalties: |
| 111 |
(a) Denial
of an application for licensure. |
| 112 |
(b) Revocation
or suspension of a license. |
| 113 |
(c) Imposition
of an administrative fine not to exceed |
| 114 |
$5,000 for each count or separate offense. |
| 115 |
(d) Issuance
of a reprimand. |
| 116 |
(e) Placement
of the community association manager on |
| 117 |
probation for a period of time and subject to such
conditions as |
| 118 |
the department specifies. |
| 119 |
(f) Restriction
of the authorized scope of practice by the |
| 120 |
community association manager. |
| 121 |
(4) The
department shall reissue the license of a |
| 122 |
disciplined community association manager upon
certification by |
| 123 |
the department that the disciplined person has
complied with all |
| 124 |
of the terms and conditions set forth in the final
order. |
| 125 |
Section 5. Subsection
(15) is added to section 718.111, |
| 126 |
Florida Statutes, to read: |
| 127 |
718.111 The
association.-- |
| 128 |
(15) PARKING
SPACES FOR PERSONS WHO HAVE |
| 129 |
DISABILITIES.--Where guest parking is provided,
guest parking |
| 130 |
spaces shall be configured and assigned pursuant
to s. 553.5041. |
| 131 |
The association may increase the number of guest
parking spaces, |
| 132 |
if needed. Residents with disabilities shall not
park in a |
| 133 |
disabled guest parking space unless their assigned
parking space |
| 134 |
is in use illegally. Resident disabled parking
shall be by |
| 135 |
assignment from available spaces by the
association, pursuant to |
| 136 |
local fair housing law. When a resident has two
vehicles, one |
| 137 |
equipped with a lift, the association shall assign
a second |
| 138 |
parking space that satisfies the needs of the
vehicle's lift |
| 139 |
operation, if an additional parking space is
available and |
| 140 |
unassigned. |
| 141 |
Section 6. Paragraph
(f) of subsection (2) of section |
| 142 |
718.112, Florida Statutes, is amended to read: |
| 143 |
718.112 Bylaws.-- |
| 144 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
| 145 |
following and, if they do not do so, shall be deemed
to include |
| 146 |
the following: |
| 147 |
(f) Annual
budget.-- |
| 148 |
1. The
proposed annual budget of common expenses shall be |
| 149 |
detailed and shall show the amounts budgeted by
accounts and |
| 150 |
expense classifications, including, if applicable,
but not |
| 151 |
limited to, those expenses listed in s. 718.504(21).
A |
| 152 |
multicondominium association shall adopt a separate
budget of |
| 153 |
common expenses for each condominium the association
operates |
| 154 |
and shall adopt a separate budget of common expenses
for the |
| 155 |
association. In addition, if the association
maintains limited |
| 156 |
common elements with the cost to be shared only by
those |
| 157 |
entitled to use the limited common elements as
provided for in |
| 158 |
s. 718.113(1), the budget or a schedule attached
thereto shall |
| 159 |
show amounts budgeted therefor. If, after turnover of
control of |
| 160 |
the association to the unit owners, any of the
expenses listed |
| 161 |
in s. 718.504(21) are not applicable, they need not
be listed. |
| 162 |
2. In
addition to annual operating expenses, the budget |
| 163 |
shall include reserve accounts for capital
expenditures and |
| 164 |
deferred maintenance. These accounts shall include,
but are not |
| 165 |
limited to, roof replacement, building painting, and
pavement |
| 166 |
resurfacing, regardless of the amount of deferred
maintenance |
| 167 |
expense or replacement cost, and for any other item
for which |
| 168 |
the deferred maintenance expense or replacement cost
exceeds |
| 169 |
$10,000. The amount to be reserved shall be computed
by means of |
| 170 |
a formula which is based upon estimated remaining
useful life |
| 171 |
and estimated replacement cost or deferred
maintenance expense |
| 172 |
of each reserve item. The association may adjust
replacement |
| 173 |
reserve assessments annually to take into account any
changes in |
| 174 |
estimates or extension of the useful life of a
reserve item |
| 175 |
caused by deferred maintenance. Reserves shall
maintain a |
| 176 |
minimum level of at least 10 percent of the yearly
operating |
| 177 |
budget. This subsection does not apply to an
adopted budget in |
| 178 |
which the members of an association have determined,
by a |
| 179 |
majority vote at a duly called meeting of the
association, to |
| 180 |
provide no reserves or less reserves than required by
this |
| 181 |
subsection. However, prior to turnover of control of
an |
| 182 |
association by a developer to unit owners other than
a developer |
| 183 |
pursuant to s. 718.301, the developer may vote to
waive the |
| 184 |
reserves or reduce the funding of reserves for the
first 2 |
| 185 |
fiscal years of the association's operation,
beginning with the |
| 186 |
fiscal year in which the initial declaration is
recorded, after |
| 187 |
which time reserves may be waived or reduced only
upon the vote |
| 188 |
of a majority of all nondeveloper voting interests
voting in |
| 189 |
person or by limited proxy at a duly called meeting
of the |
| 190 |
association. If a meeting of the unit owners has been
called to |
| 191 |
determine whether to waive or reduce the funding of
reserves, |
| 192 |
and no such result is achieved or a quorum is not
attained, the |
| 193 |
reserves as included in the budget shall go into
effect. After |
| 194 |
the turnover, the developer may vote its voting
interest to |
| 195 |
waive or reduce the funding of reserves. |
| 196 |
3. Reserve
funds and any interest accruing thereon shall |
| 197 |
remain in the reserve account or accounts, and shall
be used |
| 198 |
only for authorized reserve expenditures unless their
use for |
| 199 |
other purposes is approved in advance by a majority
vote at a |
| 200 |
duly called meeting of the association. Prior to
turnover of |
| 201 |
control of an association by a developer to unit
owners other |
| 202 |
than the developer pursuant to s. 718.301, the
developer- |
| 203 |
controlled association shall not vote to use reserves
for |
| 204 |
purposes other than that for which they were intended
without |
| 205 |
the approval of a majority of all nondeveloper voting
interests, |
| 206 |
voting in person or by limited proxy at a duly called
meeting of |
| 207 |
the association. |
| 208 |
4. The only
voting interests which are eligible to vote on |
| 209 |
questions that involve waiving or reducing the
funding of |
| 210 |
reserves, or using existing reserve funds for
purposes other |
| 211 |
than purposes for which the reserves were intended,
are the |
| 212 |
voting interests of the units subject to assessment
to fund the |
| 213 |
reserves in question. |
| 214 |
Section 7. Section
718.501, Florida Statutes, is amended, |
| 215 |
to read: |
| 216 |
718.501 Powers
and duties of Division of Florida Land |
| 217 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 218 |
Association Management, and Mobile Homes.-- |
| 219 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 220 |
Homeowners' Associations, Community Association
Management, and |
| 221 |
Mobile Homes of the Department of Business and
Professional |
| 222 |
Regulation, referred to as the "division"
in this part, in |
| 223 |
addition to other powers and duties prescribed by
chapter 498, |
| 224 |
has the power to enforce and ensure compliance with
the |
| 225 |
provisions of this chapter and rules promulgated
pursuant hereto |
| 226 |
relating to the development, construction, sale,
lease, |
| 227 |
ownership, operation, and management of residential
condominium |
| 228 |
units. In performing its duties, the division has the
following |
| 229 |
powers and duties: |
| 230 |
(a) The
division may make necessary public or private |
| 231 |
investigations within or outside this state to
determine whether |
| 232 |
any person or association has violated this
chapter or any rule |
| 233 |
or order hereunder, to aid in the enforcement of this
chapter, |
| 234 |
or to aid in the adoption of rules or forms
hereunder. |
| 235 |
(b) The
division may require or permit any person to file |
| 236 |
a statement in writing, under oath or otherwise, as
the division |
| 237 |
determines, as to the facts and circumstances
concerning a |
| 238 |
matter to be investigated. |
| 239 |
(c) For the
purpose of any investigation under this |
| 240 |
chapter, the division director or any officer or
employee |
| 241 |
designated by the division director may administer
oaths or |
| 242 |
affirmations, subpoena witnesses and compel their
attendance, |
| 243 |
take evidence, and require the production of any
matter which is |
| 244 |
relevant to the investigation, including the
existence, |
| 245 |
description, nature, custody, condition, and location
of any |
| 246 |
books, documents, or other tangible things and the
identity and |
| 247 |
location of persons having knowledge of relevant
facts or any |
| 248 |
other matter reasonably calculated to lead to the
discovery of |
| 249 |
material evidence. Upon the failure by a person to
obey a |
| 250 |
subpoena or to answer questions propounded by the
investigating |
| 251 |
officer and upon reasonable notice to all persons
affected |
| 252 |
thereby, the division may apply to the circuit court
for an |
| 253 |
order compelling compliance. |
| 254 |
(d) Notwithstanding
any remedies available to unit owners |
| 255 |
and associations, if the division has reasonable
cause to |
| 256 |
believe that a violation of any provision of this
chapter or |
| 257 |
rule promulgated pursuant hereto has occurred, the
division may |
| 258 |
institute enforcement proceedings in its own name
against any |
| 259 |
developer, association, officer, or member of the
board of |
| 260 |
administration, or its assignees or agents, as
follows: |
| 261 |
1. The
division may permit a person whose conduct or |
| 262 |
actions may be under investigation to waive formal
proceedings |
| 263 |
and enter into a consent proceeding whereby orders,
rules, or |
| 264 |
letters of censure or warning, whether formal or
informal, may |
| 265 |
be entered against the person. |
| 266 |
2. The
division may issue an order requiring the |
| 267 |
developer, association, officer, or member of the
board of |
| 268 |
administration, or its assignees or agents, to cease
and desist |
| 269 |
from the unlawful practice and take such affirmative
action as |
| 270 |
in the judgment of the division will carry out the
purposes of |
| 271 |
this chapter. Such affirmative action may include,
but is not |
| 272 |
limited to, an order requiring a developer to pay
moneys |
| 273 |
determined to be owed to a condominium association. |
| 274 |
3. The
division may bring an action in circuit court on |
| 275 |
behalf of a class of unit owners, lessees, or
purchasers for |
| 276 |
declaratory relief, injunctive relief, or
restitution. |
| 277 |
4. The
division may impose a civil penalty against a |
| 278 |
developer or association, or its assignee or agent,
for any |
| 279 |
violation of this chapter or a rule promulgated
pursuant hereto. |
| 280 |
The division may impose a civil penalty individually
against any |
| 281 |
officer or board member who willfully and knowingly
violates a |
| 282 |
provision of this chapter, a rule adopted pursuant
hereto, or a |
| 283 |
final order of the division. The term "willfully
and knowingly" |
| 284 |
means that the division informed the officer or board
member |
| 285 |
that his or her action or intended action violates
this chapter, |
| 286 |
a rule adopted under this chapter, or a final order
of the |
| 287 |
division and that the officer or board member refused
to comply |
| 288 |
with the requirements of this chapter, a rule adopted
under this |
| 289 |
chapter, or a final order of the division. The
division, prior |
| 290 |
to initiating formal agency action under chapter 120,
shall |
| 291 |
afford the officer or board member an opportunity to
voluntarily |
| 292 |
comply with this chapter, a rule adopted under this
chapter, or |
| 293 |
a final order of the division. An officer or board
member who |
| 294 |
complies within 10 days is not subject to a civil
penalty. A |
| 295 |
penalty may be imposed on the basis of each day of
continuing |
| 296 |
violation, but in no event shall the penalty for any
offense |
| 297 |
exceed $5,000. By January 1, 1998, the division shall
adopt, by |
| 298 |
rule, penalty guidelines applicable to possible
violations or to |
| 299 |
categories of violations of this chapter or rules
adopted by the |
| 300 |
division. The guidelines must specify a meaningful
range of |
| 301 |
civil penalties for each such violation of the
statute and rules |
| 302 |
and must be based upon the harm caused by the
violation, the |
| 303 |
repetition of the violation, and upon such other
factors deemed |
| 304 |
relevant by the division. For example, the division
may consider |
| 305 |
whether the violations were committed by a developer
or owner- |
| 306 |
controlled association, the size of the association,
and other |
| 307 |
factors. The guidelines must designate the possible
mitigating |
| 308 |
or aggravating circumstances that justify a departure
from the |
| 309 |
range of penalties provided by the rules. It is the
legislative |
| 310 |
intent that minor violations be distinguished from
those which |
| 311 |
endanger the health, safety, or welfare of the
condominium |
| 312 |
residents or other persons and that such guidelines
provide |
| 313 |
reasonable and meaningful notice to the public of
likely |
| 314 |
penalties that may be imposed for proscribed conduct.
This |
| 315 |
subsection does not limit the ability of the division
to |
| 316 |
informally dispose of administrative actions or
complaints by |
| 317 |
stipulation, agreed settlement, or consent order. All
amounts |
| 318 |
collected shall be deposited with the Chief Financial
Officer to |
| 319 |
the credit of the Division of Florida Land Sales,
Condominiums, |
| 320 |
Homeowners' Associations, Community Association
Management, and |
| 321 |
Mobile Homes Trust Fund. If a developer fails to pay
the civil |
| 322 |
penalty, the division shall thereupon issue an order
directing |
| 323 |
that such developer cease and desist from further
operation |
| 324 |
until such time as the civil penalty is paid or may
pursue |
| 325 |
enforcement of the penalty in a court of competent
jurisdiction. |
| 326 |
If an association fails to pay the civil penalty, the
division |
| 327 |
shall thereupon pursue enforcement in a court of
competent |
| 328 |
jurisdiction, and the order imposing the civil
penalty or the |
| 329 |
cease and desist order will not become effective
until 20 days |
| 330 |
after the date of such order. Any action commenced by
the |
| 331 |
division shall be brought in the county in which the
division |
| 332 |
has its executive offices or in the county where the
violation |
| 333 |
occurred. |
| 334 |
(e) The
division is authorized to prepare and disseminate |
| 335 |
a prospectus and other information to assist
prospective owners, |
| 336 |
purchasers, lessees, and developers of residential
condominiums |
| 337 |
in assessing the rights, privileges, and duties
pertaining |
| 338 |
thereto. |
| 339 |
(f) The
division has authority to adopt rules pursuant to |
| 340 |
ss. 120.536(1) and 120.54 to implement and enforce
the |
| 341 |
provisions of this chapter. |
| 342 |
(g) The
division shall establish procedures for providing |
| 343 |
notice to an association when the division is
considering the |
| 344 |
issuance of a declaratory statement with respect to
the |
| 345 |
declaration of condominium or any related document
governing in |
| 346 |
such condominium community. |
| 347 |
(h) The
division shall furnish each association which pays |
| 348 |
the fees required by paragraph (2)(a) a copy of this
act, |
| 349 |
subsequent changes to this act on an annual basis, an
amended |
| 350 |
version of this act as it becomes available from the
Secretary |
| 351 |
of State's office on a biennial basis, and the rules
promulgated |
| 352 |
pursuant thereto on an annual basis. |
| 353 |
(i) The
division shall annually provide each association |
| 354 |
with a summary of declaratory statements and formal
legal |
| 355 |
opinions relating to the operations of condominiums
which were |
| 356 |
rendered by the division during the previous year. |
| 357 |
(j) The
division shall provide training programs for |
| 358 |
condominium association board members and unit
owners. Training |
| 359 |
shall be mandatory for newly elected board members
and members |
| 360 |
currently serving on a board who have not
previously voluntarily |
| 361 |
attended training. |
| 362 |
(k) The
division shall maintain a toll-free telephone |
| 363 |
number accessible to condominium unit owners. |
| 364 |
(l) The
division shall develop a program to certify both |
| 365 |
volunteer and paid mediators to provide mediation of
condominium |
| 366 |
disputes. The division shall provide, upon request, a
list of |
| 367 |
such mediators to any association, unit owner, or
other |
| 368 |
participant in arbitration proceedings under s.
718.1255 |
| 369 |
requesting a copy of the list. The division shall
include on the |
| 370 |
list of volunteer mediators only the names of persons
who have |
| 371 |
received at least 20 hours of training in mediation
techniques |
| 372 |
or who have mediated at least 20 disputes. In order
to become |
| 373 |
initially certified by the division, paid mediators
must be |
| 374 |
certified by the Supreme Court to mediate court cases
in either |
| 375 |
county or circuit courts. However, the division may
adopt, by |
| 376 |
rule, additional factors for the certification of
paid |
| 377 |
mediators, which factors must be related to
experience, |
| 378 |
education, or background. Any person initially
certified as a |
| 379 |
paid mediator by the division must, in order to
continue to be |
| 380 |
certified, comply with the factors or requirements
imposed by |
| 381 |
rules adopted by the division. |
| 382 |
(m) When a
complaint is made, the division shall conduct |
| 383 |
its inquiry with due regard to the interests of the
affected |
| 384 |
parties. Within 30 days after receipt of a complaint,
the |
| 385 |
division shall acknowledge the complaint in writing
and notify |
| 386 |
the complainant whether the complaint is within the
jurisdiction |
| 387 |
of the division and whether additional information is
needed by |
| 388 |
the division from the complainant. The division shall
conduct |
| 389 |
its investigation and shall, within 90 days after
receipt of the |
| 390 |
original complaint or of timely requested additional |
| 391 |
information, take action upon the complaint. However,
the |
| 392 |
failure to complete the investigation within 90 days
does not |
| 393 |
prevent the division from continuing the
investigation, |
| 394 |
accepting or considering evidence obtained or
received after 90 |
| 395 |
days, or taking administrative action if reasonable
cause exists |
| 396 |
to believe that a violation of this chapter or a rule
of the |
| 397 |
division has occurred. If an investigation is not
completed |
| 398 |
within the time limits established in this paragraph,
the |
| 399 |
division shall, on a monthly basis, notify the
complainant in |
| 400 |
writing of the status of the investigation. When
reporting its |
| 401 |
action to the complainant, the division shall inform
the |
| 402 |
complainant of any right to a hearing pursuant to ss.
120.569 |
| 403 |
and 120.57. |
| 404 |
(n) Any
condominium owner found to be in violation of this |
| 405 |
chapter shall be notified by the department by
certified mail, |
| 406 |
return receipt requested, at which time the
condominium owner |
| 407 |
will have 30 days in which to respond in writing. |
| 408 |
(2)(a) Effective
January 1, 1992, each condominium |
| 409 |
association which operates more than two units shall
pay to the |
| 410 |
division an annual fee in the amount of $4 for each
residential |
| 411 |
unit in condominiums operated by the association. If
the fee is |
| 412 |
not paid by March 1, then the association shall be
assessed a |
| 413 |
penalty of 10 percent of the amount due, and the
association |
| 414 |
will not have standing to maintain or defend any
action in the |
| 415 |
courts of this state until the amount due, plus any
penalty, is |
| 416 |
paid. |
| 417 |
(b) All fees
shall be deposited in the Division of Florida |
| 418 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 419 |
Association Management, and Mobile Homes Trust
Fund as provided |
| 420 |
by law. |
| 421 |
Section 8. Subsection
(10) is added to section 718.5012, |
| 422 |
Florida Statutes, to read: |
| 423 |
718.5012 Ombudsman;
powers and duties.--The ombudsman |
| 424 |
shall have the powers that are necessary to carry out
the duties |
| 425 |
of his or her office, including the following
specific powers: |
| 426 |
(10) To
monitor and review procedures and disputes |
| 427 |
concerning homeowners' associations. |
| 428 |
Section 9. Paragraph
(b) of subsection (4) of section |
| 429 |
719.104, Florida Statutes, is amended to read: |
| 430 |
719.104 Cooperatives;
access to units; records; financial |
| 431 |
reports; assessments; purchase of leases.-- |
| 432 |
(4) FINANCIAL
REPORT.-- |
| 433 |
(b) The
division shall adopt rules that may require that |
| 434 |
the association deliver to the unit owners, in lieu
of the |
| 435 |
financial report required by this section, a complete
set of |
| 436 |
financial statements for the preceding fiscal year.
The |
| 437 |
financial statements shall be delivered within 90
days following |
| 438 |
the end of the previous fiscal year or annually on
such other |
| 439 |
date as provided in the bylaws. The rules of the
division may |
| 440 |
require that the financial statements be compiled,
reviewed, or |
| 441 |
audited, and the rules shall take into consideration
the |
| 442 |
criteria set forth in s. 719.501(1)(j). The
requirement to have |
| 443 |
the financial statements compiled, reviewed, or
audited does not |
| 444 |
apply to associations if a majority of the voting
interests of |
| 445 |
the association present at a duly called meeting of
the |
| 446 |
association have determined for a fiscal year to
waive this |
| 447 |
requirement. In an association in which turnover of
control by |
| 448 |
the developer has not occurred, the developer may
vote to waive |
| 449 |
the audit requirement for the first 2 years of the
operation of |
| 450 |
the association, after which time waiver of an
applicable audit |
| 451 |
requirement shall be by a majority of voting
interests other |
| 452 |
than the developer. Under no circumstance may an
association or |
| 453 |
board waive its audit for more than 2 consecutive
years. The |
| 454 |
meeting shall be held prior to the end of the fiscal
year, and |
| 455 |
the waiver shall be effective for only one fiscal
year. This |
| 456 |
subsection does not apply to a cooperative that
consists of 50 |
| 457 |
or fewer units. |
| 458 |
Section 10. Subsection
(7) is added to section 719.1055, |
| 459 |
Florida Statutes, to read: |
| 460 |
719.1055 Amendment
of cooperative documents; alteration |
| 461 |
and acquisition of property.-- |
| 462 |
(7) Any
amendment restricting cooperative unit owners' |
| 463 |
rights relating to the rental of units applies
only to unit |
| 464 |
owners who consent to the amendment and unit
owners who purchase |
| 465 |
their units after the effective date of that
amendment. |
| 466 |
Section 11. Section
720.3015, Florida Statutes, is created |
| 467 |
to read: |
| 468 |
720.3015 Powers
and duties of Division of Florida Land |
| 469 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 470 |
Association Management, and Mobile Homes.--The
Division of |
| 471 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 472 |
Community Association Management, and Mobile Homes
of the |
| 473 |
Department of Business and Professional Regulation
in addition |
| 474 |
to other powers and duties prescribed by chapter
498, has the |
| 475 |
power to enforce and ensure compliance with the
provisions of |
| 476 |
this chapter and rules adopted pursuant hereto
relating to |
| 477 |
homeowners' associations as defined in s. 720.301: |
| 478 |
(1) The
division may make necessary public or private |
| 479 |
investigations within or outside this state to
determine whether |
| 480 |
any person or association has violated this
chapter or any rule |
| 481 |
or order hereunder, to aid in the enforcement of
this chapter, |
| 482 |
or to aid in the adoption of rules or forms
hereunder. |
| 483 |
(2) The
division may require or permit any person to file |
| 484 |
a statement in writing, under oath or otherwise,
as the division |
| 485 |
determines, as to the facts and circumstances
concerning a |
| 486 |
matter to be investigated. |
| 487 |
(3) For
the purpose of any investigation under this |
| 488 |
chapter, the division director or any officer or
employee |
| 489 |
designated by the division director may administer
oaths or |
| 490 |
affirmations, subpoena witnesses and compel their
attendance, |
| 491 |
take evidence, and require the production of any
matter which is |
| 492 |
relevant to the investigation, including the
existence, |
| 493 |
description, nature, custody, condition, and
location of any |
| 494 |
books, documents, or other tangible things, and
the identity and |
| 495 |
location of persons having knowledge of relevant
facts or any |
| 496 |
other matter reasonably calculated to lead to the
discovery of |
| 497 |
material evidence. Upon the failure by a person to
obey a |
| 498 |
subpoena or to answer questions propounded by the
investigating |
| 499 |
officer and upon reasonable notice to all persons
affected |
| 500 |
thereby, the division may apply to the circuit
court for an |
| 501 |
order compelling compliance. |
| 502 |
(4) Notwithstanding
any remedies available to homeowners' |
| 503 |
associations, if the division has reasonable cause
to believe |
| 504 |
that a violation of any provision of this chapter
or rule |
| 505 |
adopted pursuant hereto has occurred, the division
may institute |
| 506 |
enforcement proceedings in its own name against
any association, |
| 507 |
officer, or member of the board, or its assignees
or agents, as |
| 508 |
follows: |
| 509 |
(a) The
division may permit a person whose conduct or |
| 510 |
actions may be under investigation to waive formal
proceedings |
| 511 |
and enter into a consent proceeding whereby
orders, rules, or |
| 512 |
letters of censure or warning, whether formal or
informal, may |
| 513 |
be entered against the person. |
| 514 |
(b) The
division may issue an order requiring the |
| 515 |
homeowners' association to cease and desist from
the unlawful |
| 516 |
practice and take such affirmative action as in
the judgment of |
| 517 |
the division will carry out the purposes of this
chapter. |
| 518 |
(c) The
division may bring an action in circuit court on |
| 519 |
behalf of a class of homeowners, lessees, or
purchasers for |
| 520 |
declaratory relief, injunctive relief, or
restitution. |
| 521 |
(d) The
division may impose a civil penalty against an |
| 522 |
association, or its assignee or agent, for any
violation of this |
| 523 |
chapter or a rule adopted pursuant hereto. The
division may |
| 524 |
impose a civil penalty individually against any
officer or board |
| 525 |
member who willfully and knowingly violates a
provision of this |
| 526 |
chapter, a rule adopted pursuant hereto, or a
final order of the |
| 527 |
division. The term "willfully and
knowingly" means that the |
| 528 |
division informed the officer or board member that
his or her |
| 529 |
action or intended action violates this chapter, a
rule adopted |
| 530 |
under this chapter, or a final order of the
division and that |
| 531 |
the officer or board member refused to comply with
the |
| 532 |
requirements of this chapter, a rule adopted under
this chapter, |
| 533 |
or a final order of the division. The division,
prior to |
| 534 |
initiating formal agency action under chapter 120,
shall afford |
| 535 |
the officer or board member an opportunity to
voluntarily comply |
| 536 |
with this chapter, a rule adopted under this
chapter, or a final |
| 537 |
order of the division. An officer or board member
who complies |
| 538 |
within 10 days is not subject to a civil penalty.
A penalty may |
| 539 |
be imposed on the basis of each day of continuing
violation, but |
| 540 |
in no event shall the penalty for any offense
exceed $5,000. By |
| 541 |
January 1, 2006, the division shall adopt, by
rule, penalty |
| 542 |
guidelines applicable to possible violations or to
categories of |
| 543 |
violations of this chapter or rules adopted by the
division. The |
| 544 |
guidelines must specify a meaningful range of
civil penalties |
| 545 |
for each such violation of the statute and rules
and must be |
| 546 |
based upon the harm caused by the violation, the
repetition of |
| 547 |
the violation, and such other factors deemed
relevant by the |
| 548 |
division. For example, the division may consider
whether the |
| 549 |
violations were committed by a association, the
size of the |
| 550 |
association, and other factors. The guidelines
must designate |
| 551 |
the possible mitigating or aggravating
circumstances that |
| 552 |
justify a departure from the range of penalties
provided by the |
| 553 |
rules. It is the legislative intent that minor
violations be |
| 554 |
distinguished from those which endanger the
health, safety, or |
| 555 |
welfare of the homeowners' association members or
other persons |
| 556 |
and that such guidelines provide reasonable and
meaningful |
| 557 |
notice to the public of likely penalties that may
be imposed for |
| 558 |
proscribed conduct. This paragraph does not limit
the ability of |
| 559 |
the division to informally dispose of
administrative actions or |
| 560 |
complaints by stipulation, agreed settlement, or
consent order. |
| 561 |
All amounts collected shall be deposited with the
Chief |
| 562 |
Financial Officer to the credit of the Division of
Florida Land |
| 563 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 564 |
Association Management, and Mobile Homes Trust
Fund. If an |
| 565 |
association fails to pay the civil penalty, the
division shall |
| 566 |
thereupon pursue enforcement in a court of
competent |
| 567 |
jurisdiction, and the order imposing the civil
penalty or the |
| 568 |
cease and desist order will not become effective
until 20 days |
| 569 |
after the date of such order. Any action commenced
by the |
| 570 |
division shall be brought in the county in which
the division |
| 571 |
has its executive offices or in the county in
which the |
| 572 |
violation occurred. |
| 573 |
(5) The
division is authorized to prepare and disseminate |
| 574 |
a prospectus and other information to assist
prospective owners, |
| 575 |
purchasers, lessees, and developers of communities
with |
| 576 |
homeowners' associations in assessing the rights,
privileges, |
| 577 |
and duties pertaining thereto. |
| 578 |
(6) The
division has authority to adopt rules pursuant to |
| 579 |
ss. 120.536(1) and 120.54 to implement and enforce
the |
| 580 |
provisions of this chapter. |
| 581 |
(7) The
division shall establish procedures for providing |
| 582 |
notice to an association when the division is
considering the |
| 583 |
issuance of a declaratory statement with respect
to the |
| 584 |
homeowners' association documents governing such
communities. |
| 585 |
(8) The
division shall furnish each association a copy of |
| 586 |
this act, subsequent changes to this act on an
annual basis, an |
| 587 |
amended version of this act as it becomes
available from the |
| 588 |
Secretary of State's office on a biennial basis,
and the rules |
| 589 |
adopted pursuant thereto on an annual basis. |
| 590 |
(9) The
division shall annually provide each association |
| 591 |
with a summary of declaratory statements and
formal legal |
| 592 |
opinions relating to the operations of homeowners'
associations |
| 593 |
which were rendered by the division during the
previous year. |
| 594 |
(10) The
division shall provide training programs for |
| 595 |
homeowners' association board members. Training
shall be |
| 596 |
mandatory for newly elected board members and
members currently |
| 597 |
serving on a board who have not previously
voluntarily attended |
| 598 |
training. |
| 599 |
(11) The
division shall maintain a toll-free telephone |
| 600 |
number accessible to homeowners' association
members. |
| 601 |
(12) The
division shall develop a program to certify both |
| 602 |
volunteer and paid mediators to provide mediation
of homeowners' |
| 603 |
association disputes. The division shall provide,
upon request, |
| 604 |
a list of such mediators to any association, unit
owner, or |
| 605 |
other participant in arbitration proceedings under
s. 718.1255. |
| 606 |
The division shall include on the list of
volunteer mediators |
| 607 |
only the names of persons who have received at
least 20 hours of |
| 608 |
training in mediation techniques or who have
mediated at least |
| 609 |
20 disputes. In order to become initially
certified by the |
| 610 |
division, paid mediators must be certified by the
Supreme Court |
| 611 |
to mediate court cases in either county or circuit
courts. |
| 612 |
However, the division may adopt, by rule,
additional factors for |
| 613 |
the certification of paid mediators, which factors
must be |
| 614 |
related to experience, education, or background.
Any person |
| 615 |
initially certified as a paid mediator by the
division must, in |
| 616 |
order to remain certified, comply with the factors
or |
| 617 |
requirements imposed by rules adopted by the
division. |
| 618 |
(13) When
a complaint is made, the division shall conduct |
| 619 |
its inquiry with due regard to the interests of
the affected |
| 620 |
parties. Within 30 days after receipt of a
complaint, the |
| 621 |
division shall acknowledge the complaint in
writing and notify |
| 622 |
the complainant whether the complaint is within
the jurisdiction |
| 623 |
of the division and whether additional information
is needed by |
| 624 |
the division from the complainant. The division
shall conduct |
| 625 |
its investigation and shall, within 90 days after
receipt of the |
| 626 |
original complaint or of timely requested
additional |
| 627 |
information, take action upon the complaint.
However, the |
| 628 |
failure to complete the investigation within 90
days does not |
| 629 |
prevent the division from continuing the
investigation, |
| 630 |
accepting or considering evidence obtained or
received after 90 |
| 631 |
days, or taking administrative action if
reasonable cause exists |
| 632 |
to believe that a violation of this chapter or a
rule of the |
| 633 |
division has occurred. If an investigation is not
completed |
| 634 |
within the time limits established in this
subsection, the |
| 635 |
division shall, on a monthly basis, notify the
complainant in |
| 636 |
writing of the status of the investigation. When
reporting its |
| 637 |
action to the complainant, the division shall
inform the |
| 638 |
complainant of any right to a hearing pursuant to
ss. 120.569 |
| 639 |
and 120.57. |
| 640 |
(14) Any
homeowner's association member found to be in |
| 641 |
violation of this chapter shall be notified by the
department by |
| 642 |
certified mail, return receipt requested, at which
time the |
| 643 |
homeowners' association member will have 30 days
in which to |
| 644 |
respond in writing. |
| 645 |
Section 12. Section
720.3071, Florida Statutes, is created |
| 646 |
to read: |
| 647 |
720.3071 Board
member training.--The division shall |
| 648 |
provide training programs for homeowners'
association board |
| 649 |
members and unit owners. Training shall be
mandatory for newly |
| 650 |
elected board members and members currently
serving on a board |
| 651 |
who have not previously voluntarily attended
training. |
| 652 |
Section 13. Subsection
(2) of section 73.073, Florida |
| 653 |
Statutes, is amended to read: |
| 654 |
73.073 Eminent
domain procedure with respect to |
| 655 |
condominium common elements.-- |
| 656 |
(2) With
respect to the exercise of eminent domain or a |
| 657 |
negotiated sale for the purchase or taking of a
portion of the |
| 658 |
common elements of a condominium, the condemning
authority shall |
| 659 |
have the responsibility of contacting the condominium |
| 660 |
association and acquiring the most recent rolls
indicating the |
| 661 |
names of the unit owners or contacting the
appropriate taxing |
| 662 |
authority to obtain the names of the owners of record
on the tax |
| 663 |
rolls. Notification shall thereupon be sent by
certified mail, |
| 664 |
return receipt requested, to the unit owners of
record of the |
| 665 |
condominium units by the condemning authority
indicating the |
| 666 |
intent to purchase or take the required property and
requesting |
| 667 |
a response from the unit owner. The condemning
authority shall |
| 668 |
be responsible for the expense of sending
notification pursuant |
| 669 |
to this section. Such notice shall, at a minimum,
include: |
| 670 |
(a) The name
and address of the condemning authority. |
| 671 |
(b) A
written or visual description of the property. |
| 672 |
(c) The
public purpose for which the property is needed. |
| 673 |
(d) The
appraisal value of the property. |
| 674 |
(e) A clear,
concise statement relating to the unit |
| 675 |
owner's right to object to the taking or appraisal
value and the |
| 676 |
procedures and effects of exercising that right. |
| 677 |
(f) A clear,
concise statement relating to the power of |
| 678 |
the association to convey the property on behalf of
the unit |
| 679 |
owners if no objection to the taking or appraisal
value is |
| 680 |
raised, and the effects of this alternative on the
unit owner. |
| 681 |
|
| 682 |
The Division of Florida Land Sales, Condominiums, Homeowners' |
| 683 |
Associations, Community Association Management,
and Mobile Homes |
| 684 |
of the Department of Business and Professional
Regulation may |
| 685 |
adopt, by rule, a standard form for such notice and
may require |
| 686 |
the notice to include any additional relevant
information. |
| 687 |
Section 14. Subsection
(2) of section 190.009, Florida |
| 688 |
Statutes, is amended to read: |
| 689 |
190.009 Disclosure
of public financing.-- |
| 690 |
(2) The
Division of Florida Land Sales, Condominiums, |
| 691 |
Homeowners' Associations, Community Association
Management, and |
| 692 |
Mobile Homes of the Department of Business and
Professional |
| 693 |
Regulation shall ensure that disclosures made by
developers |
| 694 |
pursuant to chapter 498 meet the requirements of
subsection (1). |
| 695 |
Section 15. Paragraph
(e) of subsection (6) of section |
| 696 |
192.037, Florida Statutes, is amended to read: |
| 697 |
192.037 Fee
timeshare real property; taxes and |
| 698 |
assessments; escrow.-- |
| 699 |
(6) |
| 700 |
(e) On or
before May 1 of each year, a statement of |
| 701 |
receipts and disbursements of the escrow account must
be filed |
| 702 |
with the Division of Florida Land Sales,
Condominiums, |
| 703 |
Homeowners' Associations, Community Association
Management, and |
| 704 |
Mobile Homes of the Department of Business and
Professional |
| 705 |
Regulation, which may enforce this paragraph pursuant
to s. |
| 706 |
721.26. This statement must appropriately show the
amount of |
| 707 |
principal and interest in such account. |
| 708 |
Section 16. Paragraph
(i) of subsection (7) of section |
| 709 |
213.053, Florida Statutes, is amended to read: |
| 710 |
213.053 Confidentiality
and information sharing.-- |
| 711 |
(7) Notwithstanding
any other provision of this section, |
| 712 |
the department may provide: |
| 713 |
(i) Information
relative to chapters 212 and 326 to the |
| 714 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 715 |
Associations, Community Association Management,
and Mobile Homes |
| 716 |
of the Department of Business and Professional
Regulation in the |
| 717 |
conduct of its official duties. |
| 718 |
|
| 719 |
Disclosure of information under this subsection shall
be |
| 720 |
pursuant to a written agreement between the executive
director |
| 721 |
and the agency. Such agencies, governmental or
nongovernmental, |
| 722 |
shall be bound by the same requirements of
confidentiality as |
| 723 |
the Department of Revenue. Breach of confidentiality
is a |
| 724 |
misdemeanor of the first degree, punishable as
provided by s. |
| 725 |
775.082 or s. 775.083. |
| 726 |
Section 17. Paragraph
(d) of subsection (4) of section |
| 727 |
215.20, Florida Statutes, is amended to read: |
| 728 |
215.20 Certain
income and certain trust funds to |
| 729 |
contribute to the General Revenue Fund.-- |
| 730 |
(4) The
income of a revenue nature deposited in the |
| 731 |
following described trust funds, by whatever name
designated, is |
| 732 |
that from which the appropriations authorized by
subsection (3) |
| 733 |
shall be made: |
| 734 |
(d) Within
the Department of Business and Professional |
| 735 |
Regulation: |
| 736 |
1. The
Administrative Trust Fund. |
| 737 |
2. The
Alcoholic Beverage and Tobacco Trust Fund. |
| 738 |
3. The
Cigarette Tax Collection Trust Fund. |
| 739 |
4. The
Division of Florida Land Sales, Condominiums, |
| 740 |
Homeowners' Associations, Community Association
Management, and |
| 741 |
Mobile Homes Trust Fund. |
| 742 |
5. The Hotel
and Restaurant Trust Fund, with the exception |
| 743 |
of those fees collected for the purpose of funding of
the |
| 744 |
hospitality education program as stated in s.
509.302. |
| 745 |
6. The
Professional Regulation Trust Fund. |
| 746 |
7. The trust
funds administered by the Division of Pari- |
| 747 |
mutuel Wagering. |
| 748 |
|
| 749 |
The enumeration of the foregoing moneys or trust
funds shall not |
| 750 |
prohibit the applicability thereto of s. 215.24
should the |
| 751 |
Governor determine that for the reasons mentioned in
s. 215.24 |
| 752 |
the money or trust funds should be exempt herefrom,
as it is the |
| 753 |
purpose of this law to exempt income from its force
and effect |
| 754 |
when, by the operation of this law, federal matching
funds or |
| 755 |
contributions or private grants to any trust fund
would be lost |
| 756 |
to the state. |
| 757 |
Section 18. Subsection
(2) of section 326.002, Florida |
| 758 |
Statutes, is amended to read: |
| 759 |
326.002 Definitions.--As
used in ss. 326.001-326.006, the |
| 760 |
term: |
| 761 |
(2) "Division"
means the Division of Florida Land Sales, |
| 762 |
Condominiums, Homeowners' Associations, Community
Association |
| 763 |
Management, and Mobile Homes of the Department
of Business and |
| 764 |
Professional Regulation. |
| 765 |
Section 19. Paragraph
(d) of subsection (2) and subsection |
| 766 |
(3) of section 326.006, Florida Statutes, are amended
to read: |
| 767 |
326.006 Powers
and duties of division.-- |
| 768 |
(2) The
division has the power to enforce and ensure |
| 769 |
compliance with the provisions of this chapter and
rules adopted |
| 770 |
under this chapter relating to the sale and ownership
of yachts |
| 771 |
and ships. In performing its duties, the division has
the |
| 772 |
following powers and duties: |
| 773 |
(d) Notwithstanding
any remedies available to a yacht or |
| 774 |
ship purchaser, if the division has reasonable cause
to believe |
| 775 |
that a violation of any provision of this chapter or
rule |
| 776 |
adopted under this chapter has occurred, the division
may |
| 777 |
institute enforcement proceedings in its own name
against any |
| 778 |
broker or salesperson or any of his or her assignees
or agents, |
| 779 |
or against any unlicensed person or any of his or her
assignees |
| 780 |
or agents, as follows: |
| 781 |
1. The
division may permit a person whose conduct or |
| 782 |
actions are under investigation to waive formal
proceedings and |
| 783 |
enter into a consent proceeding whereby orders,
rules, or |
| 784 |
letters of censure or warning, whether formal or
informal, may |
| 785 |
be entered against the person. |
| 786 |
2. The
division may issue an order requiring the broker or |
| 787 |
salesperson or any of his or her assignees or agents,
or |
| 788 |
requiring any unlicensed person or any of his or her
assignees |
| 789 |
or agents, to cease and desist from the unlawful
practice and |
| 790 |
take such affirmative action as in the judgment of
the division |
| 791 |
will carry out the purposes of this chapter. |
| 792 |
3. The
division may bring an action in circuit court on |
| 793 |
behalf of a class of yacht or ship purchasers for
declaratory |
| 794 |
relief, injunctive relief, or restitution. |
| 795 |
4. The
division may impose a civil penalty against a |
| 796 |
broker or salesperson or any of his or her assignees
or agents, |
| 797 |
or against an unlicensed person or any of his or her
assignees |
| 798 |
or agents, for any violation of this chapter or a
rule adopted |
| 799 |
under this chapter. A penalty may be imposed for each
day of |
| 800 |
continuing violation, but in no event may the penalty
for any |
| 801 |
offense exceed $10,000. All amounts collected must be
deposited |
| 802 |
with the Chief Financial Officer to the credit of the
Division |
| 803 |
of Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 804 |
Community Association Management, and Mobile
Homes Trust Fund. |
| 805 |
If a broker, salesperson, or unlicensed person
working for a |
| 806 |
broker, fails to pay the civil penalty, the division
shall |
| 807 |
thereupon issue an order suspending the broker's
license until |
| 808 |
such time as the civil penalty is paid or may pursue
enforcement |
| 809 |
of the penalty in a court of competent jurisdiction.
The order |
| 810 |
imposing the civil penalty or the order of suspension
may not |
| 811 |
become effective until 20 days after the date of such
order. Any |
| 812 |
action commenced by the division must be brought in
the county |
| 813 |
in which the division has its executive offices or in
the county |
| 814 |
where the violation occurred. |
| 815 |
(3) All fees
must be deposited in the Division of Florida |
| 816 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 817 |
Association Management, and Mobile Homes Trust
Fund as provided |
| 818 |
by law. |
| 819 |
Section 20. Paragraph
(a) of subsection (4) of section |
| 820 |
380.0651, Florida Statutes, is amended to read: |
| 821 |
380.0651 Statewide
guidelines and standards.-- |
| 822 |
(4) Two or
more developments, represented by their owners |
| 823 |
or developers to be separate developments, shall be
aggregated |
| 824 |
and treated as a single development under this
chapter when they |
| 825 |
are determined to be part of a unified plan of
development and |
| 826 |
are physically proximate to one other. |
| 827 |
(a) The
criteria of two of the following subparagraphs |
| 828 |
must be met in order for the state land planning
agency to |
| 829 |
determine that there is a unified plan of
development: |
| 830 |
1.a. The
same person has retained or shared control of the |
| 831 |
developments; |
| 832 |
b. The same
person has ownership or a significant legal or |
| 833 |
equitable interest in the developments; or |
| 834 |
c. There is
common management of the developments |
| 835 |
controlling the form of physical development or
disposition of |
| 836 |
parcels of the development. |
| 837 |
2. There is
a reasonable closeness in time between the |
| 838 |
completion of 80 percent or less of one development
and the |
| 839 |
submission to a governmental agency of a master plan
or series |
| 840 |
of plans or drawings for the other development which
is |
| 841 |
indicative of a common development effort. |
| 842 |
3. A master
plan or series of plans or drawings exists |
| 843 |
covering the developments sought to be aggregated
which have |
| 844 |
been submitted to a local general-purpose government,
water |
| 845 |
management district, the Florida Department of
Environmental |
| 846 |
Protection, or the Division of Florida Land Sales,
Condominiums, |
| 847 |
Homeowners' Associations, Community Association
Management, and |
| 848 |
Mobile Homes for authorization to commence
development. The |
| 849 |
existence or implementation of a utility's master
utility plan |
| 850 |
required by the Public Service Commission or
general-purpose |
| 851 |
local government or a master drainage plan shall not
be the sole |
| 852 |
determinant of the existence of a master plan. |
| 853 |
4. The
voluntary sharing of infrastructure that is |
| 854 |
indicative of a common development effort or is
designated |
| 855 |
specifically to accommodate the developments sought
to be |
| 856 |
aggregated, except that which was implemented because
it was |
| 857 |
required by a local general-purpose government; water
management |
| 858 |
district; the Department of Environmental Protection;
the |
| 859 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 860 |
Associations, Community Association Management,
and Mobile |
| 861 |
Homes; or the Public Service Commission. |
| 862 |
5. There is
a common advertising scheme or promotional |
| 863 |
plan in effect for the developments sought to be
aggregated. |
| 864 |
Section 21. Subsection
(5) of section 455.116, Florida |
| 865 |
Statutes, is amended to read: |
| 866 |
455.116 Regulation
trust funds.--The following trust funds |
| 867 |
shall be placed in the department: |
| 868 |
(5) Division
of Florida Land Sales, Condominiums, |
| 869 |
Homeowners' Associations, Community Association
Management, and |
| 870 |
Mobile Homes Trust Fund. |
| 871 |
Section 22. Section
475.455, Florida Statutes, is amended |
| 872 |
to read: |
| 873 |
475.455 Exchange
of disciplinary information.--The |
| 874 |
commission shall inform the Division of Florida Land
Sales, |
| 875 |
Condominiums, Homeowners' Associations, Community
Association |
| 876 |
Management, and Mobile Homes of the Department
of Business and |
| 877 |
Professional Regulation of any disciplinary action
the |
| 878 |
commission has taken against any of its licensees.
The division |
| 879 |
shall inform the commission of any disciplinary
action the |
| 880 |
division has taken against any broker or sales
associate |
| 881 |
registered with the division. |
| 882 |
Section 23. Subsection
(5) of section 498.005, Florida |
| 883 |
Statutes, is amended to read: |
| 884 |
498.005 Definitions.--As
used in this chapter, unless the |
| 885 |
context otherwise requires, the term: |
| 886 |
(5) "Division"
means the Division of Florida Land Sales, |
| 887 |
Condominiums, Homeowners' Associations, Community
Association |
| 888 |
Management, and Mobile Homes of the Department
of Business and |
| 889 |
Professional Regulation. |
| 890 |
Section 24. Section
498.019, Florida Statutes, is amended |
| 891 |
to read: |
| 892 |
498.019 Division
of Florida Land Sales, Condominiums, |
| 893 |
Homeowners' Associations, Community Association
Management, and |
| 894 |
Mobile Homes Trust Fund.-- |
| 895 |
(1) There is
created within the State Treasury the |
| 896 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 897 |
Associations, Community Association Management,
and Mobile Homes |
| 898 |
Trust Fund to be used for the administration and
operation of |
| 899 |
this chapter, part VIII of chapter 468, and
chapters 718, 719, |
| 900 |
720, 721, and 723 by the division. |
| 901 |
(2) All
moneys collected by the division from fees, fines, |
| 902 |
or penalties or from costs awarded to the division by
a court |
| 903 |
shall be paid into the Division of Florida Land
Sales, |
| 904 |
Condominiums, Homeowners' Associations, Community
Association |
| 905 |
Management, and Mobile Homes Trust Fund. The
Legislature shall |
| 906 |
appropriate funds from this trust fund sufficient to
carry out |
| 907 |
the provisions of this chapter and the provisions of
law with |
| 908 |
respect to each category of business covered by this
trust fund. |
| 909 |
The division shall maintain separate revenue accounts
in the |
| 910 |
trust fund for each of the businesses regulated by
the division. |
| 911 |
The division shall provide for the proportionate
allocation |
| 912 |
among the accounts of expenses incurred by the
division in the |
| 913 |
performance of its duties with respect to each of
these |
| 914 |
businesses. As part of its normal budgetary process,
the |
| 915 |
division shall prepare an annual report of revenue
and allocated |
| 916 |
expenses related to the operation of each of these
businesses |
| 917 |
which may be used to determine fees charged by the
division. |
| 918 |
This subsection shall operate pursuant to the
provisions of s. |
| 919 |
215.20. |
| 920 |
Section 25. Paragraph
(a) of subsection (8) of section |
| 921 |
498.047, Florida Statutes, is amended to read: |
| 922 |
498.047 Investigations.-- |
| 923 |
(8)(a) Information
held by the Division of Florida Land |
| 924 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 925 |
Association Management, and Mobile Homes
relative to an |
| 926 |
investigation pursuant to this chapter, including any
consumer |
| 927 |
complaint, is confidential and exempt from s.
119.07(1) and s. |
| 928 |
24(a), Art. I of the State Constitution, until 10
days after a |
| 929 |
notice to show cause has been filed by the division,
or, in the |
| 930 |
case in which no notice to show cause is filed, the |
| 931 |
investigation is completed or ceases to be active.
For purposes |
| 932 |
of this section, an investigation shall be considered
"active" |
| 933 |
so long as the division or any law enforcement or
administrative |
| 934 |
agency or regulatory organization is proceeding with
reasonable |
| 935 |
dispatch and has a reasonable good faith belief that
the |
| 936 |
investigation may lead to the filing of an
administrative, |
| 937 |
civil, or criminal proceeding or to the denial or
conditional |
| 938 |
grant of a license or registration. However, in
response to a |
| 939 |
specific inquiry about the registration status of a
registered |
| 940 |
or unregistered subdivider, the division may disclose
the |
| 941 |
existence and the status of an active investigation.
This |
| 942 |
subsection shall not be construed to prohibit
disclosure of |
| 943 |
information which is required by law to be filed with
the |
| 944 |
division and which, but for the investigation, would
be subject |
| 945 |
to s. 119.07(1). |
| 946 |
Section 26. Subsection
(5) of section 498.049, Florida |
| 947 |
Statutes, is amended to read: |
| 948 |
498.049 Suspension;
revocation; civil penalties.-- |
| 949 |
(5) Each
person who materially participates in any offer |
| 950 |
or disposition of any interest in subdivided lands in
violation |
| 951 |
of this chapter or relevant rules involving fraud,
deception, |
| 952 |
false pretenses, misrepresentation, or false
advertising or the |
| 953 |
disposition, concealment, or diversion of any funds
or assets of |
| 954 |
any person which adversely affects the interests of a
purchaser |
| 955 |
of any interest in subdivided lands, and who directly
or |
| 956 |
indirectly controls a subdivider or is a general
partner, |
| 957 |
officer, director, agent, or employee of a subdivider
shall also |
| 958 |
be liable under this subsection jointly and severally
with and |
| 959 |
to the same extent as the subdivider, unless that
person did not |
| 960 |
know, and in the exercise of reasonable care could
not have |
| 961 |
known, of the existence of the facts creating the
alleged |
| 962 |
liability. Among these persons a right of
contribution shall |
| 963 |
exist, except that a creditor of a subdivider shall
not be |
| 964 |
jointly and severally liable unless the creditor has
assumed |
| 965 |
managerial or fiduciary responsibility in a manner
related to |
| 966 |
the basis for the liability of the subdivider under
this |
| 967 |
subsection. Civil penalties shall be limited to
$10,000 for each |
| 968 |
offense, and all amounts collected shall be deposited
with the |
| 969 |
Chief Financial Officer to the credit of the Division
of Florida |
| 970 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 971 |
Association Management, and Mobile Homes Trust
Fund. No order |
| 972 |
requiring the payment of a civil penalty shall become
effective |
| 973 |
until 20 days after the date of the order, unless
otherwise |
| 974 |
agreed in writing by the person on whom the penalty
is imposed. |
| 975 |
Section 27. Section
509.512, Florida Statutes, is amended |
| 976 |
to read: |
| 977 |
509.512 Timeshare
plan developer and exchange company |
| 978 |
exemption.--Sections 509.501-509.511 do not apply to
a developer |
| 979 |
of a timeshare plan or an exchange company approved
by the |
| 980 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 981 |
Associations, Community Association Management,
and Mobile Homes |
| 982 |
pursuant to chapter 721, but only to the extent that
the |
| 983 |
developer or exchange company engages in conduct
regulated under |
| 984 |
chapter 721. |
| 985 |
Section 28. Paragraph
(h) of subsection (1) of section |
| 986 |
559.935, Florida Statutes, is amended to read: |
| 987 |
559.935 Exemptions.-- |
| 988 |
(1) This
part does not apply to: |
| 989 |
(h) A
developer of a timeshare plan or an exchange company |
| 990 |
approved by the Division of Florida Land Sales,
Condominiums, |
| 991 |
Homeowners' Associations, Community Association
Management, and |
| 992 |
Mobile Homes pursuant to chapter 721, but only to the
extent |
| 993 |
that the developer or exchange company engages in
conduct |
| 994 |
regulated under chapter 721; or |
| 995 |
Section 29. Subsection
(17) of section 718.103, Florida |
| 996 |
Statutes, is amended to read: |
| 997 |
718.103 Definitions.--As
used in this chapter, the term: |
| 998 |
(17) "Division"
means the Division of Florida Land Sales, |
| 999 |
Condominiums, Homeowners' Associations, Community
Association |
| 1000 |
Management, and Mobile Homes of the Department
of Business and |
| 1001 |
Professional Regulation. |
| 1002 |
Section 30. Paragraph
(c) of subsection (4) of section |
| 1003 |
718.105, Florida Statutes, is amended to read: |
| 1004 |
718.105 Recording
of declaration.-- |
| 1005 |
(4) |
| 1006 |
(c) If the
sum of money held by the clerk has not been |
| 1007 |
paid to the developer or association as provided in
paragraph |
| 1008 |
(b) by 3 years after the date the declaration was
originally |
| 1009 |
recorded, the clerk in his or her discretion may
notify, in |
| 1010 |
writing, the registered agent of the association that
the sum is |
| 1011 |
still available and the purpose for which it was
deposited. If |
| 1012 |
the association does not record the certificate
within 90 days |
| 1013 |
after the clerk has given the notice, the clerk may
disburse the |
| 1014 |
money to the developer. If the developer cannot be
located, the |
| 1015 |
clerk shall disburse the money to the Division of
Florida Land |
| 1016 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 1017 |
Association Management, and Mobile Homes for
deposit in the |
| 1018 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 1019 |
Associations, Community Association Management,
and Mobile Homes |
| 1020 |
Trust Fund. |
| 1021 |
Section 31. Subsection
(4) of section 718.1255, Florida |
| 1022 |
Statutes, is amended to read: |
| 1023 |
718.1255 Alternative
dispute resolution; voluntary |
| 1024 |
mediation; mandatory nonbinding arbitration;
legislative |
| 1025 |
findings.-- |
| 1026 |
(4) MANDATORY
NONBINDING ARBITRATION AND MEDIATION OF |
| 1027 |
DISPUTES.--The Division of Florida Land Sales,
Condominiums, |
| 1028 |
Homeowners' Associations, Community Association
Management, and |
| 1029 |
Mobile Homes of the Department of Business and
Professional |
| 1030 |
Regulation shall employ full-time attorneys to act as |
| 1031 |
arbitrators to conduct the arbitration hearings
provided by this |
| 1032 |
chapter. The division may also certify attorneys who
are not |
| 1033 |
employed by the division to act as arbitrators to
conduct the |
| 1034 |
arbitration hearings provided by this section. No
person may be |
| 1035 |
employed by the department as a full-time arbitrator
unless he |
| 1036 |
or she is a member in good standing of The Florida
Bar. The |
| 1037 |
department shall promulgate rules of procedure to
govern such |
| 1038 |
arbitration hearings including mediation incident
thereto. The |
| 1039 |
decision of an arbitrator shall be final; however,
such a |
| 1040 |
decision shall not be deemed final agency action.
Nothing in |
| 1041 |
this provision shall be construed to foreclose
parties from |
| 1042 |
proceeding in a trial de novo unless the parties have
agreed |
| 1043 |
that the arbitration is binding. If such judicial
proceedings |
| 1044 |
are initiated, the final decision of the arbitrator
shall be |
| 1045 |
admissible in evidence in the trial de novo. |
| 1046 |
(a) Prior to
the institution of court litigation, a party |
| 1047 |
to a dispute shall petition the division for
nonbinding |
| 1048 |
arbitration. The petition must be accompanied by a
filing fee in |
| 1049 |
the amount of $50. Filing fees collected under this
section must |
| 1050 |
be used to defray the expenses of the alternative
dispute |
| 1051 |
resolution program. |
| 1052 |
(b) The
petition must recite, and have attached thereto, |
| 1053 |
supporting proof that the petitioner gave the
respondents: |
| 1054 |
1. Advance
written notice of the specific nature of the |
| 1055 |
dispute; |
| 1056 |
2. A demand
for relief, and a reasonable opportunity to |
| 1057 |
comply or to provide the relief; and |
| 1058 |
3. Notice of
the intention to file an arbitration petition |
| 1059 |
or other legal action in the absence of a resolution
of the |
| 1060 |
dispute. |
| 1061 |
|
| 1062 |
Failure to include the allegations or proof of
compliance with |
| 1063 |
these prerequisites requires dismissal of the
petition without |
| 1064 |
prejudice. |
| 1065 |
(c) Upon
receipt, the petition shall be promptly reviewed |
| 1066 |
by the division to determine the existence of a
dispute and |
| 1067 |
compliance with the requirements of paragraphs (a)
and (b). If |
| 1068 |
emergency relief is required and is not available
through |
| 1069 |
arbitration, a motion to stay the arbitration may be
filed. The |
| 1070 |
motion must be accompanied by a verified petition
alleging facts |
| 1071 |
that, if proven, would support entry of a temporary
injunction, |
| 1072 |
and if an appropriate motion and supporting papers
are filed, |
| 1073 |
the division may abate the arbitration pending a
court hearing |
| 1074 |
and disposition of a motion for temporary injunction. |
| 1075 |
(d) Upon
determination by the division that a dispute |
| 1076 |
exists and that the petition substantially meets the |
| 1077 |
requirements of paragraphs (a) and (b) and any other
applicable |
| 1078 |
rules, a copy of the petition shall forthwith be
served by the |
| 1079 |
division upon all respondents. |
| 1080 |
(e) Either
before or after the filing of the respondents' |
| 1081 |
answer to the petition, any party may request that
the |
| 1082 |
arbitrator refer the case to mediation under this
section and |
| 1083 |
any rules adopted by the division. Upon receipt of a
request for |
| 1084 |
mediation, the division shall promptly contact the
parties to |
| 1085 |
determine if there is agreement that mediation would
be |
| 1086 |
appropriate. If all parties agree, the dispute must
be referred |
| 1087 |
to mediation. Notwithstanding a lack of an agreement
by all |
| 1088 |
parties, the arbitrator may refer a dispute to
mediation at any |
| 1089 |
time. |
| 1090 |
(f) Upon
referral of a case to mediation, the parties must |
| 1091 |
select a mutually acceptable mediator. To assist in
the |
| 1092 |
selection, the arbitrator shall provide the parties
with a list |
| 1093 |
of both volunteer and paid mediators that have been
certified by |
| 1094 |
the division under s. 718.501. If the parties are
unable to |
| 1095 |
agree on a mediator within the time allowed by the
arbitrator, |
| 1096 |
the arbitrator shall appoint a mediator from the list
of |
| 1097 |
certified mediators. If a case is referred to
mediation, the |
| 1098 |
parties shall attend a mediation conference, as
scheduled by the |
| 1099 |
parties and the mediator. If any party fails to
attend a duly |
| 1100 |
noticed mediation conference, without the permission
or approval |
| 1101 |
of the arbitrator or mediator, the arbitrator must
impose |
| 1102 |
sanctions against the party, including the striking
of any |
| 1103 |
pleadings filed, the entry of an order of dismissal
or default |
| 1104 |
if appropriate, and the award of costs and attorneys'
fees |
| 1105 |
incurred by the other parties. Unless otherwise
agreed to by the |
| 1106 |
parties or as provided by order of the arbitrator, a
party is |
| 1107 |
deemed to have appeared at a mediation conference by
the |
| 1108 |
physical presence of the party or its representative
having full |
| 1109 |
authority to settle without further consultation,
provided that |
| 1110 |
an association may comply by having one or more
representatives |
| 1111 |
present with full authority to negotiate a settlement
and |
| 1112 |
recommend that the board of administration ratify and
approve |
| 1113 |
such a settlement within 5 days from the date of the
mediation |
| 1114 |
conference. The parties shall share equally the
expense of |
| 1115 |
mediation, unless they agree otherwise. |
| 1116 |
(g) The
purpose of mediation as provided for by this |
| 1117 |
section is to present the parties with an opportunity
to resolve |
| 1118 |
the underlying dispute in good faith, and with a
minimum |
| 1119 |
expenditure of time and resources. |
| 1120 |
(h) Mediation
proceedings must generally be conducted in |
| 1121 |
accordance with the Florida Rules of Civil Procedure,
and these |
| 1122 |
proceedings are privileged and confidential to the
same extent |
| 1123 |
as court-ordered mediation. Persons who are not
parties to the |
| 1124 |
dispute are not allowed to attend the mediation
conference |
| 1125 |
without the consent of all parties, with the
exception of |
| 1126 |
counsel for the parties and corporate representatives
designated |
| 1127 |
to appear for a party. If the mediator declares an
impasse after |
| 1128 |
a mediation conference has been held, the arbitration
proceeding |
| 1129 |
terminates, unless all parties agree in writing to
continue the |
| 1130 |
arbitration proceeding, in which case the
arbitrator's decision |
| 1131 |
shall be either binding or nonbinding, as agreed upon
by the |
| 1132 |
parties; in the arbitration proceeding, the
arbitrator shall not |
| 1133 |
consider any evidence relating to the unsuccessful
mediation |
| 1134 |
except in a proceeding to impose sanctions for
failure to appear |
| 1135 |
at the mediation conference. If the parties do not
agree to |
| 1136 |
continue arbitration, the arbitrator shall enter an
order of |
| 1137 |
dismissal, and either party may institute a suit in a
court of |
| 1138 |
competent jurisdiction. The parties may seek to
recover any |
| 1139 |
costs and attorneys' fees incurred in connection with |
| 1140 |
arbitration and mediation proceedings under this
section as part |
| 1141 |
of the costs and fees that may be recovered by the
prevailing |
| 1142 |
party in any subsequent litigation. |
| 1143 |
(i) Arbitration
shall be conducted according to rules |
| 1144 |
promulgated by the division. The filing of a petition
for |
| 1145 |
arbitration shall toll the applicable statute of
limitations. |
| 1146 |
(j) At the
request of any party to the arbitration, such |
| 1147 |
arbitrator shall issue subpoenas for the attendance
of witnesses |
| 1148 |
and the production of books, records, documents, and
other |
| 1149 |
evidence and any party on whose behalf a subpoena is
issued may |
| 1150 |
apply to the court for orders compelling such
attendance and |
| 1151 |
production. Subpoenas shall be served and shall be
enforceable |
| 1152 |
in the manner provided by the Florida Rules of Civil
Procedure. |
| 1153 |
Discovery may, in the discretion of the arbitrator,
be permitted |
| 1154 |
in the manner provided by the Florida Rules of Civil
Procedure. |
| 1155 |
Rules adopted by the division may authorize any
reasonable |
| 1156 |
sanctions except contempt for a violation of the
arbitration |
| 1157 |
procedural rules of the division or for the failure
of a party |
| 1158 |
to comply with a reasonable nonfinal order issued by
an |
| 1159 |
arbitrator which is not under judicial review. |
| 1160 |
(k) The
arbitration decision shall be presented to the |
| 1161 |
parties in writing. An arbitration decision is final
in those |
| 1162 |
disputes in which the parties have agreed to be
bound. An |
| 1163 |
arbitration decision is also final if a complaint for
a trial de |
| 1164 |
novo is not filed in a court of competent
jurisdiction in which |
| 1165 |
the condominium is located within 30 days. The right
to file for |
| 1166 |
a trial de novo entitles the parties to file a
complaint in the |
| 1167 |
appropriate trial court for a judicial resolution of
the |
| 1168 |
dispute. The prevailing party in an arbitration
proceeding shall |
| 1169 |
be awarded the costs of the arbitration and
reasonable |
| 1170 |
attorney's fees in an amount determined by the
arbitrator. Such |
| 1171 |
an award shall include the costs and reasonable
attorney's fees |
| 1172 |
incurred in the arbitration proceeding as well as the
costs and |
| 1173 |
reasonable attorney's fees incurred in preparing for
and |
| 1174 |
attending any scheduled mediation. |
| 1175 |
(l) The
party who files a complaint for a trial de novo |
| 1176 |
shall be assessed the other party's arbitration
costs, court |
| 1177 |
costs, and other reasonable costs, including
attorney's fees, |
| 1178 |
investigation expenses, and expenses for expert or
other |
| 1179 |
testimony or evidence incurred after the arbitration
hearing if |
| 1180 |
the judgment upon the trial de novo is not more
favorable than |
| 1181 |
the arbitration decision. If the judgment is more
favorable, the |
| 1182 |
party who filed a complaint for trial de novo shall
be awarded |
| 1183 |
reasonable court costs and attorney's fees. |
| 1184 |
(m) Any
party to an arbitration proceeding may enforce an |
| 1185 |
arbitration award by filing a petition in a court of
competent |
| 1186 |
jurisdiction in which the condominium is located. A
petition may |
| 1187 |
not be granted unless the time for appeal by the
filing of a |
| 1188 |
complaint for trial de novo has expired. If a
complaint for a |
| 1189 |
trial de novo has been filed, a petition may not be
granted with |
| 1190 |
respect to an arbitration award that has been stayed.
If the |
| 1191 |
petition for enforcement is granted, the petitioner
shall |
| 1192 |
recover reasonable attorney's fees and costs incurred
in |
| 1193 |
enforcing the arbitration award. A mediation
settlement may also |
| 1194 |
be enforced through the county or circuit court, as
applicable, |
| 1195 |
and any costs and fees incurred in the enforcement of
a |
| 1196 |
settlement agreement reached at mediation must be
awarded to the |
| 1197 |
prevailing party in any enforcement action. |
| 1198 |
Section 32. Subsection
(1) of section 718.5011, Florida |
| 1199 |
Statutes, is amended to read: |
| 1200 |
718.5011 Ombudsman;
appointment; administration.-- |
| 1201 |
(1) There is
created an Office of the Condominium |
| 1202 |
Ombudsman, to be located for administrative purposes
within the |
| 1203 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 1204 |
Associations, Community Association Management,
and Mobile |
| 1205 |
Homes. The functions of the office shall be funded by
the |
| 1206 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 1207 |
Associations, Community Association Management,
and Mobile Homes |
| 1208 |
Trust Fund. The ombudsman shall be a bureau chief of
the |
| 1209 |
division, and the office shall be set within the
division in the |
| 1210 |
same manner as any other bureau is staffed and
funded. |
| 1211 |
Section 33. Paragraph
(a) of subsection (2) of section |
| 1212 |
718.502, Florida Statutes, is amended to read: |
| 1213 |
718.502 Filing
prior to sale or lease.-- |
| 1214 |
(2)(a) Prior
to filing as required by subsection (1), and |
| 1215 |
prior to acquiring an ownership, leasehold, or
contractual |
| 1216 |
interest in the land upon which the condominium is to
be |
| 1217 |
developed, a developer shall not offer a contract for
purchase |
| 1218 |
of a unit or lease of a unit for more than 5 years.
However, the |
| 1219 |
developer may accept deposits for reservations upon
the approval |
| 1220 |
of a fully executed escrow agreement and reservation
agreement |
| 1221 |
form properly filed with the Division of Florida Land
Sales, |
| 1222 |
Condominiums, Homeowners' Associations, Community
Association |
| 1223 |
Management, and Mobile Homes. Each filing of a
proposed |
| 1224 |
reservation program shall be accompanied by a filing
fee of |
| 1225 |
$250. Reservations shall not be taken on a proposed
condominium |
| 1226 |
unless the developer has an ownership, leasehold, or
contractual |
| 1227 |
interest in the land upon which the condominium is to
be |
| 1228 |
developed. The division shall notify the developer
within 20 |
| 1229 |
days of receipt of the reservation filing of any
deficiencies |
| 1230 |
contained therein. Such notification shall not
preclude the |
| 1231 |
determination of reservation filing deficiencies at a
later |
| 1232 |
date, nor shall it relieve the developer of any
responsibility |
| 1233 |
under the law. The escrow agreement and the
reservation |
| 1234 |
agreement form shall include a statement of the right
of the |
| 1235 |
prospective purchaser to an immediate unqualified
refund of the |
| 1236 |
reservation deposit moneys upon written request to
the escrow |
| 1237 |
agent by the prospective purchaser or the developer. |
| 1238 |
Section 34. Section
718.504, Florida Statutes, is amended |
| 1239 |
to read: |
| 1240 |
718.504 Prospectus
or offering circular.--Every developer |
| 1241 |
of a residential condominium which contains more than
20 |
| 1242 |
residential units, or which is part of a group of
residential |
| 1243 |
condominiums which will be served by property to be
used in |
| 1244 |
common by unit owners of more than 20 residential
units, shall |
| 1245 |
prepare a prospectus or offering circular and file it
with the |
| 1246 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 1247 |
Associations, Community Association Management,
and Mobile Homes |
| 1248 |
prior to entering into an enforceable contract of
purchase and |
| 1249 |
sale of any unit or lease of a unit for more than 5
years and |
| 1250 |
shall furnish a copy of the prospectus or offering
circular to |
| 1251 |
each buyer. In addition to the prospectus or offering
circular, |
| 1252 |
each buyer shall be furnished a separate page
entitled |
| 1253 |
"Frequently Asked Questions and Answers,"
which shall be in |
| 1254 |
accordance with a format approved by the division and
a copy of |
| 1255 |
the financial information required by s. 718.111.
This page |
| 1256 |
shall, in readable language, inform prospective
purchasers |
| 1257 |
regarding their voting rights and unit use
restrictions, |
| 1258 |
including restrictions on the leasing of a unit;
shall indicate |
| 1259 |
whether and in what amount the unit owners or the
association is |
| 1260 |
obligated to pay rent or land use fees for
recreational or other |
| 1261 |
commonly used facilities; shall contain a statement
identifying |
| 1262 |
that amount of assessment which, pursuant to the
budget, would |
| 1263 |
be levied upon each unit type, exclusive of any
special |
| 1264 |
assessments, and which shall further identify the
basis upon |
| 1265 |
which assessments are levied, whether monthly,
quarterly, or |
| 1266 |
otherwise; shall state and identify any court cases
in which the |
| 1267 |
association is currently a party of record in which
the |
| 1268 |
association may face liability in excess of $100,000;
and which |
| 1269 |
shall further state whether membership in a
recreational |
| 1270 |
facilities association is mandatory, and if so, shall
identify |
| 1271 |
the fees currently charged per unit type. The
division shall by |
| 1272 |
rule require such other disclosure as in its judgment
will |
| 1273 |
assist prospective purchasers. The prospectus or
offering |
| 1274 |
circular may include more than one condominium,
although not all |
| 1275 |
such units are being offered for sale as of the date
of the |
| 1276 |
prospectus or offering circular. The prospectus or
offering |
| 1277 |
circular must contain the following information: |
| 1278 |
(1) The
front cover or the first page must contain only: |
| 1279 |
(a) The name
of the condominium. |
| 1280 |
(b) The
following statements in conspicuous type: |
| 1281 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
| 1282 |
MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM
UNIT. |
| 1283 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
| 1284 |
NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL
REFERENCES, |
| 1285 |
ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND
SALES |
| 1286 |
MATERIALS. |
| 1287 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
| 1288 |
STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER
TO THIS |
| 1289 |
PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR
CORRECT |
| 1290 |
REPRESENTATIONS. |
| 1291 |
(2) Summary:
The next page must contain all statements |
| 1292 |
required to be in conspicuous type in the prospectus
or offering |
| 1293 |
circular. |
| 1294 |
(3) A
separate index of the contents and exhibits of the |
| 1295 |
prospectus. |
| 1296 |
(4) Beginning
on the first page of the text (not including |
| 1297 |
the summary and index), a description of the
condominium, |
| 1298 |
including, but not limited to, the following
information: |
| 1299 |
(a) Its name
and location. |
| 1300 |
(b) A
description of the condominium property, including, |
| 1301 |
without limitation: |
| 1302 |
1. The
number of buildings, the number of units in each |
| 1303 |
building, the number of bathrooms and bedrooms in
each unit, and |
| 1304 |
the total number of units, if the condominium is not
a phase |
| 1305 |
condominium, or the maximum number of buildings that
may be |
| 1306 |
contained within the condominium, the minimum and
maximum |
| 1307 |
numbers of units in each building, the minimum and
maximum |
| 1308 |
numbers of bathrooms and bedrooms that may be
contained in each |
| 1309 |
unit, and the maximum number of units that may be
contained |
| 1310 |
within the condominium, if the condominium is a phase |
| 1311 |
condominium. |
| 1312 |
2. The page
in the condominium documents where a copy of |
| 1313 |
the plot plan and survey of the condominium is
located. |
| 1314 |
3. The
estimated latest date of completion of |
| 1315 |
constructing, finishing, and equipping. In lieu of a
date, the |
| 1316 |
description shall include a statement that the
estimated date of |
| 1317 |
completion of the condominium is in the purchase
agreement and a |
| 1318 |
reference to the article or paragraph containing that |
| 1319 |
information. |
| 1320 |
(c) The
maximum number of units that will use facilities |
| 1321 |
in common with the condominium. If the maximum number
of units |
| 1322 |
will vary, a description of the basis for variation
and the |
| 1323 |
minimum amount of dollars per unit to be spent for
additional |
| 1324 |
recreational facilities or enlargement of such
facilities. If |
| 1325 |
the addition or enlargement of facilities will result
in a |
| 1326 |
material increase of a unit owner's maintenance
expense or |
| 1327 |
rental expense, if any, the maximum increase and
limitations |
| 1328 |
thereon shall be stated. |
| 1329 |
(5)(a) A
statement in conspicuous type describing whether |
| 1330 |
the condominium is created and being sold as fee
simple |
| 1331 |
interests or as leasehold interests. If the
condominium is |
| 1332 |
created or being sold on a leasehold, the location of
the lease |
| 1333 |
in the disclosure materials shall be stated. |
| 1334 |
(b) If
timeshare estates are or may be created with |
| 1335 |
respect to any unit in the condominium, a statement
in |
| 1336 |
conspicuous type stating that timeshare estates are
created and |
| 1337 |
being sold in units in the condominium. |
| 1338 |
(6) A
description of the recreational and other commonly |
| 1339 |
used facilities that will be used only by unit owners
of the |
| 1340 |
condominium, including, but not limited to, the
following: |
| 1341 |
(a) Each
room and its intended purposes, location, |
| 1342 |
approximate floor area, and capacity in numbers of
people. |
| 1343 |
(b) Each
swimming pool, as to its general location, |
| 1344 |
approximate size and depths, approximate deck size
and capacity, |
| 1345 |
and whether heated. |
| 1346 |
(c) Additional
facilities, as to the number of each |
| 1347 |
facility, its approximate location, approximate size,
and |
| 1348 |
approximate capacity. |
| 1349 |
(d) A
general description of the items of personal |
| 1350 |
property and the approximate number of each item of
personal |
| 1351 |
property that the developer is committing to furnish
for each |
| 1352 |
room or other facility or, in the alternative, a
representation |
| 1353 |
as to the minimum amount of expenditure that will be
made to |
| 1354 |
purchase the personal property for the facility. |
| 1355 |
(e) The
estimated date when each room or other facility |
| 1356 |
will be available for use by the unit owners. |
| 1357 |
(f)1. An
identification of each room or other facility to |
| 1358 |
be used by unit owners that will not be owned by the
unit owners |
| 1359 |
or the association; |
| 1360 |
2. A
reference to the location in the disclosure materials |
| 1361 |
of the lease or other agreements providing for the
use of those |
| 1362 |
facilities; and |
| 1363 |
3. A
description of the terms of the lease or other |
| 1364 |
agreements, including the length of the term; the
rent payable, |
| 1365 |
directly or indirectly, by each unit owner, and the
total rent |
| 1366 |
payable to the lessor, stated in monthly and annual
amounts for |
| 1367 |
the entire term of the lease; and a description of
any option to |
| 1368 |
purchase the property leased under any such lease,
including the |
| 1369 |
time the option may be exercised, the purchase price
or how it |
| 1370 |
is to be determined, the manner of payment, and
whether the |
| 1371 |
option may be exercised for a unit owner's share or
only as to |
| 1372 |
the entire leased property. |
| 1373 |
(g) A
statement as to whether the developer may provide |
| 1374 |
additional facilities not described above; their
general |
| 1375 |
locations and types; improvements or changes that may
be made; |
| 1376 |
the approximate dollar amount to be expended; and the
maximum |
| 1377 |
additional common expense or cost to the individual
unit owners |
| 1378 |
that may be charged during the first annual period of
operation |
| 1379 |
of the modified or added facilities. |
| 1380 |
|
| 1381 |
Descriptions as to locations, areas, capacities,
numbers, |
| 1382 |
volumes, or sizes may be stated as approximations or
minimums. |
| 1383 |
(7) A
description of the recreational and other facilities |
| 1384 |
that will be used in common with other condominiums,
community |
| 1385 |
associations, or planned developments which require
the payment |
| 1386 |
of the maintenance and expenses of such facilities,
either |
| 1387 |
directly or indirectly, by the unit owners. The
description |
| 1388 |
shall include, but not be limited to, the following: |
| 1389 |
(a) Each
building and facility committed to be built. |
| 1390 |
(b) Facilities
not committed to be built except under |
| 1391 |
certain conditions, and a statement of those
conditions or |
| 1392 |
contingencies. |
| 1393 |
(c) As to
each facility committed to be built, or which |
| 1394 |
will be committed to be built upon the happening of
one of the |
| 1395 |
conditions in paragraph (b), a statement of whether
it will be |
| 1396 |
owned by the unit owners having the use thereof or by
an |
| 1397 |
association or other entity which will be controlled
by them, or |
| 1398 |
others, and the location in the exhibits of the lease
or other |
| 1399 |
document providing for use of those facilities. |
| 1400 |
(d) The year
in which each facility will be available for |
| 1401 |
use by the unit owners or, in the alternative, the
maximum |
| 1402 |
number of unit owners in the project at the time each
of all of |
| 1403 |
the facilities is committed to be completed. |
| 1404 |
(e) A
general description of the items of personal |
| 1405 |
property, and the approximate number of each item of
personal |
| 1406 |
property, that the developer is committing to furnish
for each |
| 1407 |
room or other facility or, in the alternative, a
representation |
| 1408 |
as to the minimum amount of expenditure that will be
made to |
| 1409 |
purchase the personal property for the facility. |
| 1410 |
(f) If there
are leases, a description thereof, including |
| 1411 |
the length of the term, the rent payable, and a
description of |
| 1412 |
any option to purchase. |
| 1413 |
|
| 1414 |
Descriptions shall include location, areas,
capacities, numbers, |
| 1415 |
volumes, or sizes and may be stated as approximations
or |
| 1416 |
minimums. |
| 1417 |
(8) Recreation
lease or associated club membership: |
| 1418 |
(a) If any
recreational facilities or other facilities |
| 1419 |
offered by the developer and available to, or to be
used by, |
| 1420 |
unit owners are to be leased or have club membership
associated, |
| 1421 |
the following statement in conspicuous type shall be
included: |
| 1422 |
THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED
WITH THIS |
| 1423 |
CONDOMINIUM; or, THERE IS A CLUB MEMBERSHIP
ASSOCIATED WITH THIS |
| 1424 |
CONDOMINIUM. There shall be a reference to the
location in the |
| 1425 |
disclosure materials where the recreation lease or
club |
| 1426 |
membership is described in detail. |
| 1427 |
(b) If it is
mandatory that unit owners pay a fee, rent, |
| 1428 |
dues, or other charges under a recreational
facilities lease or |
| 1429 |
club membership for the use of facilities, there
shall be in |
| 1430 |
conspicuous type the applicable statement: |
| 1431 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
| 1432 |
MANDATORY FOR UNIT OWNERS; or |
| 1433 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
| 1434 |
TO BE LESSEES UNDER THE RECREATIONAL FACILITIES
LEASE; or |
| 1435 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
| 1436 |
COSTS AND EXPENSES OF MAINTENANCE, MANAGEMENT,
UPKEEP, |
| 1437 |
REPLACEMENT, RENT, AND FEES UNDER THE RECREATIONAL
FACILITIES |
| 1438 |
LEASE (OR THE OTHER INSTRUMENTS PROVIDING THE
FACILITIES); or |
| 1439 |
4. A similar
statement of the nature of the organization |
| 1440 |
or the manner in which the use rights are created,
and that unit |
| 1441 |
owners are required to pay. |
| 1442 |
|
| 1443 |
Immediately following the applicable statement, the
location in |
| 1444 |
the disclosure materials where the development is
described in |
| 1445 |
detail shall be stated. |
| 1446 |
(c) If the
developer, or any other person other than the |
| 1447 |
unit owners and other persons having use rights in
the |
| 1448 |
facilities, reserves, or is entitled to receive, any
rent, fee, |
| 1449 |
or other payment for the use of the facilities, then
there shall |
| 1450 |
be the following statement in conspicuous type: THE
UNIT OWNERS |
| 1451 |
OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES
FOR |
| 1452 |
RECREATIONAL OR OTHER COMMONLY USED FACILITIES.
Immediately |
| 1453 |
following this statement, the location in the
disclosure |
| 1454 |
materials where the rent or land use fees are
described in |
| 1455 |
detail shall be stated. |
| 1456 |
(d) If, in
any recreation format, whether leasehold, club, |
| 1457 |
or other, any person other than the association has
the right to |
| 1458 |
a lien on the units to secure the payment of
assessments, rent, |
| 1459 |
or other exactions, there shall appear a statement in |
| 1460 |
conspicuous type in substantially the following form: |
| 1461 |
1. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 1462 |
SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER
THE |
| 1463 |
RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE
THESE |
| 1464 |
PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or |
| 1465 |
2. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 1466 |
SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS
COMING DUE |
| 1467 |
FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE
RECREATIONAL |
| 1468 |
OR COMMONLY USED FACILITIES. THE UNIT OWNER'S FAILURE
TO MAKE |
| 1469 |
THESE PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN. |
| 1470 |
|
| 1471 |
Immediately following the applicable statement, the
location in |
| 1472 |
the disclosure materials where the lien or lien right
is |
| 1473 |
described in detail shall be stated. |
| 1474 |
(9) If the
developer or any other person has the right to |
| 1475 |
increase or add to the recreational facilities at any
time after |
| 1476 |
the establishment of the condominium whose unit
owners have use |
| 1477 |
rights therein, without the consent of the unit
owners or |
| 1478 |
associations being required, there shall appear a
statement in |
| 1479 |
conspicuous type in substantially the following form: |
| 1480 |
RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED
WITHOUT CONSENT |
| 1481 |
OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately
following this |
| 1482 |
statement, the location in the disclosure materials
where such |
| 1483 |
reserved rights are described shall be stated. |
| 1484 |
(10) A
statement of whether the developer's plan includes |
| 1485 |
a program of leasing units rather than selling them,
or leasing |
| 1486 |
units and selling them subject to such leases. If so,
there |
| 1487 |
shall be a description of the plan, including the
number and |
| 1488 |
identification of the units and the provisions and
term of the |
| 1489 |
proposed leases, and a statement in boldfaced type
that: THE |
| 1490 |
UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE. |
| 1491 |
(11) The
arrangements for management of the association |
| 1492 |
and maintenance and operation of the condominium
property and of |
| 1493 |
other property that will serve the unit owners of the |
| 1494 |
condominium property, and a description of the
management |
| 1495 |
contract and all other contracts for these purposes
having a |
| 1496 |
term in excess of 1 year, including the following: |
| 1497 |
(a) The
names of contracting parties. |
| 1498 |
(b) The term
of the contract. |
| 1499 |
(c) The
nature of the services included. |
| 1500 |
(d) The
compensation, stated on a monthly and annual |
| 1501 |
basis, and provisions for increases in the
compensation. |
| 1502 |
(e) A
reference to the volumes and pages of the |
| 1503 |
condominium documents and of the exhibits containing
copies of |
| 1504 |
such contracts. |
| 1505 |
|
| 1506 |
Copies of all described contracts shall be attached
as exhibits. |
| 1507 |
If there is a contract for the management of the
condominium |
| 1508 |
property, then a statement in conspicuous type in
substantially |
| 1509 |
the following form shall appear, identifying the
proposed or |
| 1510 |
existing contract manager: THERE IS (IS TO BE) A
CONTRACT FOR |
| 1511 |
THE MANAGEMENT OF THE CONDOMINIUM PROPERTY WITH (NAME
OF THE |
| 1512 |
CONTRACT MANAGER). Immediately following this
statement, the |
| 1513 |
location in the disclosure materials of the contract
for |
| 1514 |
management of the condominium property shall be
stated. |
| 1515 |
(12) If the
developer or any other person or persons other |
| 1516 |
than the unit owners has the right to retain control
of the |
| 1517 |
board of administration of the association for a
period of time |
| 1518 |
which can exceed 1 year after the closing of the sale
of a |
| 1519 |
majority of the units in that condominium to persons
other than |
| 1520 |
successors or alternate developers, then a statement
in |
| 1521 |
conspicuous type in substantially the following form
shall be |
| 1522 |
included: THE DEVELOPER (OR OTHER PERSON) HAS THE
RIGHT TO |
| 1523 |
RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF
THE UNITS |
| 1524 |
HAVE BEEN SOLD. Immediately following this statement,
the |
| 1525 |
location in the disclosure materials where this right
to control |
| 1526 |
is described in detail shall be stated. |
| 1527 |
(13) If
there are any restrictions upon the sale, |
| 1528 |
transfer, conveyance, or leasing of a unit, then a
statement in |
| 1529 |
conspicuous type in substantially the following form
shall be |
| 1530 |
included: THE SALE, LEASE, OR TRANSFER OF UNITS IS
RESTRICTED OR |
| 1531 |
CONTROLLED. Immediately following this statement, the
location |
| 1532 |
in the disclosure materials where the restriction,
limitation, |
| 1533 |
or control on the sale, lease, or transfer of units
is described |
| 1534 |
in detail shall be stated. |
| 1535 |
(14) If the
condominium is part of a phase project, the |
| 1536 |
following information shall be stated: |
| 1537 |
(a) A
statement in conspicuous type in substantially the |
| 1538 |
following form: THIS IS A PHASE CONDOMINIUM.
ADDITIONAL LAND AND |
| 1539 |
UNITS MAY BE ADDED TO THIS CONDOMINIUM. Immediately
following |
| 1540 |
this statement, the location in the disclosure
materials where |
| 1541 |
the phasing is described shall be stated. |
| 1542 |
(b) A
summary of the provisions of the declaration which |
| 1543 |
provide for the phasing. |
| 1544 |
(c) A
statement as to whether or not residential buildings |
| 1545 |
and units which are added to the condominium may be |
| 1546 |
substantially different from the residential
buildings and units |
| 1547 |
originally in the condominium. If the added
residential |
| 1548 |
buildings and units may be substantially different,
there shall |
| 1549 |
be a general description of the extent to which such
added |
| 1550 |
residential buildings and units may differ, and a
statement in |
| 1551 |
conspicuous type in substantially the following form
shall be |
| 1552 |
included: BUILDINGS AND UNITS WHICH ARE ADDED TO THE
CONDOMINIUM |
| 1553 |
MAY BE SUBSTANTIALLY DIFFERENT FROM THE OTHER
BUILDINGS AND |
| 1554 |
UNITS IN THE CONDOMINIUM. Immediately following this
statement, |
| 1555 |
the location in the disclosure materials where the
extent to |
| 1556 |
which added residential buildings and units may
substantially |
| 1557 |
differ is described shall be stated. |
| 1558 |
(d) A
statement of the maximum number of buildings |
| 1559 |
containing units, the maximum and minimum numbers of
units in |
| 1560 |
each building, the maximum number of units, and the
minimum and |
| 1561 |
maximum square footage of the units that may be
contained within |
| 1562 |
each parcel of land which may be added to the
condominium. |
| 1563 |
(15) If a
condominium created on or after July 1, 2000, is |
| 1564 |
or may become part of a multicondominium, the
following |
| 1565 |
information must be provided: |
| 1566 |
(a) A
statement in conspicuous type in substantially the |
| 1567 |
following form: THIS CONDOMINIUM IS (MAY BE) PART OF
A |
| 1568 |
MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER
CONDOMINIUMS WILL |
| 1569 |
(MAY) BE OPERATED BY THE SAME ASSOCIATION.
Immediately following |
| 1570 |
this statement, the location in the prospectus or
offering |
| 1571 |
circular and its exhibits where the multicondominium
aspects of |
| 1572 |
the offering are described must be stated. |
| 1573 |
(b) A
summary of the provisions in the declaration, |
| 1574 |
articles of incorporation, and bylaws which establish
and |
| 1575 |
provide for the operation of the multicondominium,
including a |
| 1576 |
statement as to whether unit owners in the
condominium will have |
| 1577 |
the right to use recreational or other facilities
located or |
| 1578 |
planned to be located in other condominiums operated
by the same |
| 1579 |
association, and the manner of sharing the common
expenses |
| 1580 |
related to such facilities. |
| 1581 |
(c) A
statement of the minimum and maximum number of |
| 1582 |
condominiums, and the minimum and maximum number of
units in |
| 1583 |
each of those condominiums, which will or may be
operated by the |
| 1584 |
association, and the latest date by which the exact
number will |
| 1585 |
be finally determined. |
| 1586 |
(d) A
statement as to whether any of the condominiums in |
| 1587 |
the multicondominium may include units intended to be
used for |
| 1588 |
nonresidential purposes and the purpose or purposes
permitted |
| 1589 |
for such use. |
| 1590 |
(e) A
general description of the location and approximate |
| 1591 |
acreage of any land on which any additional
condominiums to be |
| 1592 |
operated by the association may be located. |
| 1593 |
(16) If the
condominium is created by conversion of |
| 1594 |
existing improvements, the following information
shall be |
| 1595 |
stated: |
| 1596 |
(a) The
information required by s. 718.616. |
| 1597 |
(b) A caveat
that there are no express warranties unless |
| 1598 |
they are stated in writing by the developer. |
| 1599 |
(17) A
summary of the restrictions, if any, to be imposed |
| 1600 |
on units concerning the use of any of the condominium
property, |
| 1601 |
including statements as to whether there are
restrictions upon |
| 1602 |
children and pets, and reference to the volumes and
pages of the |
| 1603 |
condominium documents where such restrictions are
found, or if |
| 1604 |
such restrictions are contained elsewhere, then a
copy of the |
| 1605 |
documents containing the restrictions shall be
attached as an |
| 1606 |
exhibit. |
| 1607 |
(18) If
there is any land that is offered by the developer |
| 1608 |
for use by the unit owners and that is neither owned
by them nor |
| 1609 |
leased to them, the association, or any entity
controlled by |
| 1610 |
unit owners and other persons having the use rights
to such |
| 1611 |
land, a statement shall be made as to how such land
will serve |
| 1612 |
the condominium. If any part of such land will serve
the |
| 1613 |
condominium, the statement shall describe the land
and the |
| 1614 |
nature and term of service, and the declaration or
other |
| 1615 |
instrument creating such servitude shall be included
as an |
| 1616 |
exhibit. |
| 1617 |
(19) The
manner in which utility and other services, |
| 1618 |
including, but not limited to, sewage and waste
disposal, water |
| 1619 |
supply, and storm drainage, will be provided and the
person or |
| 1620 |
entity furnishing them. |
| 1621 |
(20) An
explanation of the manner in which the |
| 1622 |
apportionment of common expenses and ownership of the
common |
| 1623 |
elements has been determined. |
| 1624 |
(21) An
estimated operating budget for the condominium and |
| 1625 |
the association, and a schedule of the unit owner's
expenses |
| 1626 |
shall be attached as an exhibit and shall contain the
following |
| 1627 |
information: |
| 1628 |
(a) The
estimated monthly and annual expenses of the |
| 1629 |
condominium and the association that are collected
from unit |
| 1630 |
owners by assessments. |
| 1631 |
(b) The
estimated monthly and annual expenses of each unit |
| 1632 |
owner for a unit, other than common expenses paid by
all unit |
| 1633 |
owners, payable by the unit owner to persons or
entities other |
| 1634 |
than the association, as well as to the association,
including |
| 1635 |
fees assessed pursuant to s. 718.113(1) for
maintenance of |
| 1636 |
limited common elements where such costs are shared
only by |
| 1637 |
those entitled to use the limited common element, and
the total |
| 1638 |
estimated monthly and annual expense. There may be
excluded from |
| 1639 |
this estimate expenses which are not provided for or |
| 1640 |
contemplated by the condominium documents, including,
but not |
| 1641 |
limited to, the costs of private telephone;
maintenance of the |
| 1642 |
interior of condominium units, which is not the
obligation of |
| 1643 |
the association; maid or janitorial services
privately |
| 1644 |
contracted for by the unit owners; utility bills
billed directly |
| 1645 |
to each unit owner for utility services to his or her
unit; |
| 1646 |
insurance premiums other than those incurred for
policies |
| 1647 |
obtained by the condominium; and similar personal
expenses of |
| 1648 |
the unit owner. A unit owner's estimated payments for |
| 1649 |
assessments shall also be stated in the estimated
amounts for |
| 1650 |
the times when they will be due. |
| 1651 |
(c) The
estimated items of expenses of the condominium and |
| 1652 |
the association, except as excluded under paragraph
(b), |
| 1653 |
including, but not limited to, the following items,
which shall |
| 1654 |
be stated either as an association expense
collectible by |
| 1655 |
assessments or as unit owners' expenses payable to
persons other |
| 1656 |
than the association: |
| 1657 |
1. Expenses
for the association and condominium: |
| 1658 |
a. Administration
of the association. |
| 1659 |
b. Management
fees. |
| 1660 |
c. Maintenance. |
| 1661 |
d. Rent for
recreational and other commonly used |
| 1662 |
facilities. |
| 1663 |
e. Taxes
upon association property. |
| 1664 |
f. Taxes
upon leased areas. |
| 1665 |
g. Insurance. |
| 1666 |
h. Security
provisions. |
| 1667 |
i. Other
expenses. |
| 1668 |
j. Operating
capital. |
| 1669 |
k. Reserves. |
| 1670 |
l. Fees
payable to the division. |
| 1671 |
2. Expenses
for a unit owner: |
| 1672 |
a. Rent for
the unit, if subject to a lease. |
| 1673 |
b. Rent
payable by the unit owner directly to the lessor |
| 1674 |
or agent under any recreational lease or lease for
the use of |
| 1675 |
commonly used facilities, which use and payment is a
mandatory |
| 1676 |
condition of ownership and is not included in the
common expense |
| 1677 |
or assessments for common maintenance paid by the
unit owners to |
| 1678 |
the association. |
| 1679 |
(d) The
estimated amounts shall be stated for a period of |
| 1680 |
at least 12 months and may distinguish between the
period prior |
| 1681 |
to the time unit owners other than the developer
elect a |
| 1682 |
majority of the board of administration and the
period after |
| 1683 |
that date. |
| 1684 |
(22) A
schedule of estimated closing expenses to be paid |
| 1685 |
by a buyer or lessee of a unit and a statement of
whether title |
| 1686 |
opinion or title insurance policy is available to the
buyer and, |
| 1687 |
if so, at whose expense. |
| 1688 |
(23) The
identity of the developer and the chief operating |
| 1689 |
officer or principal directing the creation and sale
of the |
| 1690 |
condominium and a statement of its and his or her
experience in |
| 1691 |
this field. |
| 1692 |
(24) Copies
of the following, to the extent they are |
| 1693 |
applicable, shall be included as exhibits: |
| 1694 |
(a) The
declaration of condominium, or the proposed |
| 1695 |
declaration if the declaration has not been recorded. |
| 1696 |
(b) The
articles of incorporation creating the |
| 1697 |
association. |
| 1698 |
(c) The
bylaws of the association. |
| 1699 |
(d) The
ground lease or other underlying lease of the |
| 1700 |
condominium. |
| 1701 |
(e) The
management agreement and all maintenance and other |
| 1702 |
contracts for management of the association and
operation of the |
| 1703 |
condominium and facilities used by the unit owners
having a |
| 1704 |
service term in excess of 1 year. |
| 1705 |
(f) The
estimated operating budget for the condominium and |
| 1706 |
the required schedule of unit owners' expenses. |
| 1707 |
(g) A copy
of the floor plan of the unit and the plot plan |
| 1708 |
showing the location of the residential buildings and
the |
| 1709 |
recreation and other common areas. |
| 1710 |
(h) The
lease of recreational and other facilities that |
| 1711 |
will be used only by unit owners of the subject
condominium. |
| 1712 |
(i) The
lease of facilities used by owners and others. |
| 1713 |
(j) The form
of unit lease, if the offer is of a |
| 1714 |
leasehold. |
| 1715 |
(k) A
declaration of servitude of properties serving the |
| 1716 |
condominium but not owned by unit owners or leased to
them or |
| 1717 |
the association. |
| 1718 |
(l) The
statement of condition of the existing building or |
| 1719 |
buildings, if the offering is of units in an
operation being |
| 1720 |
converted to condominium ownership. |
| 1721 |
(m) The
statement of inspection for termite damage and |
| 1722 |
treatment of the existing improvements, if the
condominium is a |
| 1723 |
conversion. |
| 1724 |
(n) The form
of agreement for sale or lease of units. |
| 1725 |
(o) A copy
of the agreement for escrow of payments made to |
| 1726 |
the developer prior to closing. |
| 1727 |
(p) A copy
of the documents containing any restrictions on |
| 1728 |
use of the property required by subsection (17). |
| 1729 |
(25) Any
prospectus or offering circular complying, prior |
| 1730 |
to the effective date of this act, with the
provisions of former |
| 1731 |
ss. 711.69 and 711.802 may continue to be used
without amendment |
| 1732 |
or may be amended to comply with the provisions of
this chapter. |
| 1733 |
(26) A brief
narrative description of the location and |
| 1734 |
effect of all existing and intended easements located
or to be |
| 1735 |
located on the condominium property other than those
described |
| 1736 |
in the declaration. |
| 1737 |
(27) If the
developer is required by state or local |
| 1738 |
authorities to obtain acceptance or approval of any
dock or |
| 1739 |
marina facilities intended to serve the condominium,
a copy of |
| 1740 |
any such acceptance or approval acquired by the time
of filing |
| 1741 |
with the division under s. 718.502(1) or a statement
that such |
| 1742 |
acceptance or approval has not been acquired or
received. |
| 1743 |
(28) Evidence
demonstrating that the developer has an |
| 1744 |
ownership, leasehold, or contractual interest in the
land upon |
| 1745 |
which the condominium is to be developed. |
| 1746 |
Section 35. Section
718.508, Florida Statutes, is amended |
| 1747 |
to read: |
| 1748 |
718.508 Regulation
by Division of Hotels and |
| 1749 |
Restaurants.--In addition to the authority,
regulation, or |
| 1750 |
control exercised by the Division of Florida Land
Sales, |
| 1751 |
Condominiums, Homeowners' Associations, Community
Association |
| 1752 |
Management, and Mobile Homes pursuant to this
act with respect |
| 1753 |
to condominiums, buildings included in a condominium
property |
| 1754 |
shall be subject to the authority, regulation, or
control of the |
| 1755 |
Division of Hotels and Restaurants of the Department
of Business |
| 1756 |
and Professional Regulation, to the extent provided
for in |
| 1757 |
chapter 399. |
| 1758 |
Section 36. Section
718.509, Florida Statutes, is amended |
| 1759 |
to read: |
| 1760 |
718.509 Division
of Florida Land Sales, Condominiums, |
| 1761 |
Homeowners' Associations, Community Association
Management, and |
| 1762 |
Mobile Homes Trust Fund.--All funds collected by the
division |
| 1763 |
and any amount paid for a fee or penalty under this
chapter |
| 1764 |
shall be deposited in the State Treasury to the
credit of the |
| 1765 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 1766 |
Associations, Community Association Management,
and Mobile Homes |
| 1767 |
Trust Fund created by s. 498.019. |
| 1768 |
Section 37. Paragraph
(a) of subsection (2) of section |
| 1769 |
718.608, Florida Statutes, is amended to read: |
| 1770 |
718.608 Notice
of intended conversion; time of delivery; |
| 1771 |
content.-- |
| 1772 |
(2)(a) Each
notice of intended conversion shall be dated |
| 1773 |
and in writing. The notice shall contain the
following |
| 1774 |
statement, with the phrases of the following
statement which |
| 1775 |
appear in upper case printed in conspicuous type: |
| 1776 |
|
| 1777 |
These apartments are being
converted to condominium by |
| 1778 |
(name of developer) , the developer. |
| 1779 |
1. YOU
MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
| 1780 |
YOUR RENTAL AGREEMENT. FURTHER, YOU MAY
EXTEND YOUR RENTAL |
| 1781 |
AGREEMENT AS FOLLOWS: |
| 1782 |
a. If
you have continuously been a resident of these |
| 1783 |
apartments during the last 180 days and
your rental agreement |
| 1784 |
expires during the next 270 days, you may
extend your rental |
| 1785 |
agreement for up to 270 days after the
date of this notice. |
| 1786 |
b. If
you have not been a continuous resident of these |
| 1787 |
apartments for the last 180 days and your
rental agreement |
| 1788 |
expires during the next 180 days, you may
extend your rental |
| 1789 |
agreement for up to 180 days after the
date of this notice. |
| 1790 |
c. IN
ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
| 1791 |
MUST GIVE THE DEVELOPER WRITTEN NOTICE
WITHIN 45 DAYS AFTER THE |
| 1792 |
DATE OF THIS NOTICE. |
| 1793 |
2. IF
YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
| 1794 |
you may extend your rental agreement for
up to 45 days after the |
| 1795 |
date of this notice while you decide
whether to extend your |
| 1796 |
rental agreement as explained above. To
do so, you must notify |
| 1797 |
the developer in writing. You will then
have the full 45 days to |
| 1798 |
decide whether to extend your rental
agreement as explained |
| 1799 |
above. |
| 1800 |
3. During
the extension of your rental agreement you will |
| 1801 |
be charged the same rent that you are now
paying. |
| 1802 |
4. YOU
MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
| 1803 |
OF THE RENTAL AGREEMENT AS FOLLOWS: |
| 1804 |
a. If
your rental agreement began or was extended or |
| 1805 |
renewed after May 1, 1980, and your
rental agreement, including |
| 1806 |
extensions and renewals, has an unexpired
term of 180 days or |
| 1807 |
less, you may cancel your rental
agreement upon 30 days' written |
| 1808 |
notice and move. Also, upon 30 days'
written notice, you may |
| 1809 |
cancel any extension of the rental
agreement. |
| 1810 |
b. If
your rental agreement was not begun or was not |
| 1811 |
extended or renewed after May 1, 1980,
you may not cancel the |
| 1812 |
rental agreement without the consent of
the developer. If your |
| 1813 |
rental agreement, including extensions
and renewals, has an |
| 1814 |
unexpired term of 180 days or less, you
may, however, upon 30 |
| 1815 |
days' written notice cancel any extension
of the rental |
| 1816 |
agreement. |
| 1817 |
5. All
notices must be given in writing and sent by mail, |
| 1818 |
return receipt requested, or delivered in
person to the |
| 1819 |
developer at this address:
(name and address of developer) . |
| 1820 |
6. If
you have continuously been a resident of these |
| 1821 |
apartments during the last 180 days: |
| 1822 |
a. You
have the right to purchase your apartment and will |
| 1823 |
have 45 days to decide whether to
purchase. If you do not buy |
| 1824 |
the unit at that price and the unit is
later offered at a lower |
| 1825 |
price, you will have the opportunity to
buy the unit at the |
| 1826 |
lower price. However, in all events your
right to purchase the |
| 1827 |
unit ends when the rental agreement or
any extension of the |
| 1828 |
rental agreement ends or when you waive
this right in writing. |
| 1829 |
b. Within
90 days you will be provided purchase |
| 1830 |
information relating to your apartment,
including the price of |
| 1831 |
your unit and the condition of the
building. If you do not |
| 1832 |
receive this information within 90 days,
your rental agreement |
| 1833 |
and any extension will be extended 1 day
for each day over 90 |
| 1834 |
days until you are given the purchase
information. If you do not |
| 1835 |
want this rental agreement extension, you
must notify the |
| 1836 |
developer in writing. |
| 1837 |
7. If
you have any questions regarding this conversion or |
| 1838 |
the Condominium Act, you may contact the
developer or the state |
| 1839 |
agency which regulates condominiums: The
Division of Florida |
| 1840 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 1841 |
Association Management, and Mobile
Homes, (Tallahassee address |
| 1842 |
and telephone number of division). |
| 1843 |
Section 38. Subsection
(17) of section 719.103, Florida |
| 1844 |
Statutes, is amended to read: |
| 1845 |
719.103 Definitions.--As
used in this chapter: |
| 1846 |
(17) "Division"
means the Division of Florida Land Sales, |
| 1847 |
Condominiums, Homeowners'
Associations, Community Association |
| 1848 |
Management, and Mobile Homes of
the Department of Business and |
| 1849 |
Professional Regulation. |
| 1850 |
Section 39. Section
719.1255, Florida Statutes, is amended |
| 1851 |
to read: |
| 1852 |
719.1255 Alternative
resolution of disputes.--The Division |
| 1853 |
of Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 1854 |
Community Association Management,
and Mobile Homes of the |
| 1855 |
Department of Business and Professional
Regulation shall provide |
| 1856 |
for alternative dispute resolution in
accordance with s. |
| 1857 |
718.1255. |
| 1858 |
Section 40. Section
719.501, Florida Statutes, is amended |
| 1859 |
to read: |
| 1860 |
719.501 Powers
and duties of Division of Florida Land |
| 1861 |
Sales, Condominiums, Homeowners'
Associations, Community |
| 1862 |
Association Management, and Mobile
Homes.-- |
| 1863 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 1864 |
Homeowners' Associations, Community
Association Management, and |
| 1865 |
Mobile Homes of the Department of
Business and Professional |
| 1866 |
Regulation, referred to as the
"division" in this part, in |
| 1867 |
addition to other powers and duties
prescribed by chapter 498, |
| 1868 |
has the power to enforce and ensure
compliance with the |
| 1869 |
provisions of this chapter and rules
promulgated pursuant hereto |
| 1870 |
relating to the development,
construction, sale, lease, |
| 1871 |
ownership, operation, and management of
residential cooperative |
| 1872 |
units. In performing its duties, the
division shall have the |
| 1873 |
following powers and duties: |
| 1874 |
(a) The
division may make necessary public or private |
| 1875 |
investigations within or outside this
state to determine whether |
| 1876 |
any person has violated this chapter or
any rule or order |
| 1877 |
hereunder, to aid in the enforcement of
this chapter, or to aid |
| 1878 |
in the adoption of rules or forms
hereunder. |
| 1879 |
(b) The
division may require or permit any person to file |
| 1880 |
a statement in writing, under oath or
otherwise, as the division |
| 1881 |
determines, as to the facts and
circumstances concerning a |
| 1882 |
matter to be investigated. |
| 1883 |
(c) For
the purpose of any investigation under this |
| 1884 |
chapter, the division director or any
officer or employee |
| 1885 |
designated by the division director may
administer oaths or |
| 1886 |
affirmations, subpoena witnesses and
compel their attendance, |
| 1887 |
take evidence, and require the production
of any matter which is |
| 1888 |
relevant to the investigation, including
the existence, |
| 1889 |
description, nature, custody, condition,
and location of any |
| 1890 |
books, documents, or other tangible
things and the identity and |
| 1891 |
location of persons having knowledge of
relevant facts or any |
| 1892 |
other matter reasonably calculated to
lead to the discovery of |
| 1893 |
material evidence. Upon failure by a
person to obey a subpoena |
| 1894 |
or to answer questions propounded by the
investigating officer |
| 1895 |
and upon reasonable notice to all persons
affected thereby, the |
| 1896 |
division may apply to the circuit court
for an order compelling |
| 1897 |
compliance. |
| 1898 |
(d) Notwithstanding
any remedies available to unit owners |
| 1899 |
and associations, if the division has
reasonable cause to |
| 1900 |
believe that a violation of any provision
of this chapter or |
| 1901 |
rule promulgated pursuant hereto has
occurred, the division may |
| 1902 |
institute enforcement proceedings in its
own name against a |
| 1903 |
developer, association, officer, or
member of the board, or its |
| 1904 |
assignees or agents, as follows: |
| 1905 |
1. The
division may permit a person whose conduct or |
| 1906 |
actions may be under investigation to
waive formal proceedings |
| 1907 |
and enter into a consent proceeding
whereby orders, rules, or |
| 1908 |
letters of censure or warning, whether
formal or informal, may |
| 1909 |
be entered against the person. |
| 1910 |
2. The
division may issue an order requiring the |
| 1911 |
developer, association, officer, or
member of the board, or its |
| 1912 |
assignees or agents, to cease and desist
from the unlawful |
| 1913 |
practice and take such affirmative action
as in the judgment of |
| 1914 |
the division will carry out the purposes
of this chapter. Such |
| 1915 |
affirmative action may include, but is
not limited to, an order |
| 1916 |
requiring a developer to pay moneys
determined to be owed to a |
| 1917 |
condominium association. |
| 1918 |
3. The
division may bring an action in circuit court on |
| 1919 |
behalf of a class of unit owners,
lessees, or purchasers for |
| 1920 |
declaratory relief, injunctive relief, or
restitution. |
| 1921 |
4. The
division may impose a civil penalty against a |
| 1922 |
developer or association, or its
assignees or agents, for any |
| 1923 |
violation of this chapter or a rule
promulgated pursuant hereto. |
| 1924 |
The division may impose a civil penalty
individually against any |
| 1925 |
officer or board member who willfully and
knowingly violates a |
| 1926 |
provision of this chapter, a rule adopted
pursuant to this |
| 1927 |
chapter, or a final order of the
division. The term "willfully |
| 1928 |
and knowingly" means that the
division informed the officer or |
| 1929 |
board member that his or her action or
intended action violates |
| 1930 |
this chapter, a rule adopted under this
chapter, or a final |
| 1931 |
order of the division, and that the
officer or board member |
| 1932 |
refused to comply with the requirements
of this chapter, a rule |
| 1933 |
adopted under this chapter, or a final
order of the division. |
| 1934 |
The division, prior to initiating formal
agency action under |
| 1935 |
chapter 120, shall afford the officer or
board member an |
| 1936 |
opportunity to voluntarily comply with
this chapter, a rule |
| 1937 |
adopted under this chapter, or a final
order of the division. An |
| 1938 |
officer or board member who complies
within 10 days is not |
| 1939 |
subject to a civil penalty. A penalty may
be imposed on the |
| 1940 |
basis of each day of continuing
violation, but in no event shall |
| 1941 |
the penalty for any offense exceed
$5,000. By January 1, 1998, |
| 1942 |
the division shall adopt, by rule,
penalty guidelines applicable |
| 1943 |
to possible violations or to categories
of violations of this |
| 1944 |
chapter or rules adopted by the division.
The guidelines must |
| 1945 |
specify a meaningful range of civil
penalties for each such |
| 1946 |
violation of the statute and rules and
must be based upon the |
| 1947 |
harm caused by the violation, the
repetition of the violation, |
| 1948 |
and upon such other factors deemed
relevant by the division. For |
| 1949 |
example, the division may consider
whether the violations were |
| 1950 |
committed by a developer or
owner-controlled association, the |
| 1951 |
size of the association, and other
factors. The guidelines must |
| 1952 |
designate the possible mitigating or
aggravating circumstances |
| 1953 |
that justify a departure from the range
of penalties provided by |
| 1954 |
the rules. It is the legislative intent
that minor violations be |
| 1955 |
distinguished from those which endanger
the health, safety, or |
| 1956 |
welfare of the cooperative residents or
other persons and that |
| 1957 |
such guidelines provide reasonable and
meaningful notice to the |
| 1958 |
public of likely penalties that may be
imposed for proscribed |
| 1959 |
conduct. This subsection does not limit
the ability of the |
| 1960 |
division to informally dispose of
administrative actions or |
| 1961 |
complaints by stipulation, agreed
settlement, or consent order. |
| 1962 |
All amounts collected shall be deposited
with the Chief |
| 1963 |
Financial Officer to the credit of the
Division of Florida Land |
| 1964 |
Sales, Condominiums, Homeowners'
Associations, Community |
| 1965 |
Association Management, and Mobile
Homes Trust Fund. If a |
| 1966 |
developer fails to pay the civil penalty,
the division shall |
| 1967 |
thereupon issue an order directing that
such developer cease and |
| 1968 |
desist from further operation until such
time as the civil |
| 1969 |
penalty is paid or may pursue enforcement
of the penalty in a |
| 1970 |
court of competent jurisdiction. If an
association fails to pay |
| 1971 |
the civil penalty, the division shall
thereupon pursue |
| 1972 |
enforcement in a court of competent
jurisdiction, and the order |
| 1973 |
imposing the civil penalty or the cease
and desist order shall |
| 1974 |
not become effective until 20 days after
the date of such order. |
| 1975 |
Any action commenced by the division
shall be brought in the |
| 1976 |
county in which the division has its
executive offices or in the |
| 1977 |
county where the violation occurred. |
| 1978 |
(e) The
division is authorized to prepare and disseminate |
| 1979 |
a prospectus and other information to
assist prospective owners, |
| 1980 |
purchasers, lessees, and developers of
residential cooperatives |
| 1981 |
in assessing the rights, privileges, and
duties pertaining |
| 1982 |
thereto. |
| 1983 |
(f) The
division has authority to adopt rules pursuant to |
| 1984 |
ss. 120.536(1) and 120.54 to implement
and enforce the |
| 1985 |
provisions of this chapter. |
| 1986 |
(g) The
division shall establish procedures for providing |
| 1987 |
notice to an association when the
division is considering the |
| 1988 |
issuance of a declaratory statement with
respect to the |
| 1989 |
cooperative documents governing such
cooperative community. |
| 1990 |
(h) The
division shall furnish each association which pays |
| 1991 |
the fees required by paragraph (2)(a) a
copy of this act, |
| 1992 |
subsequent changes to this act on an
annual basis, an amended |
| 1993 |
version of this act as it becomes
available from the Secretary |
| 1994 |
of State's office on a biennial basis,
and the rules promulgated |
| 1995 |
pursuant thereto on an annual basis. |
| 1996 |
(i) The
division shall annually provide each association |
| 1997 |
with a summary of declaratory statements
and formal legal |
| 1998 |
opinions relating to the operations of
cooperatives which were |
| 1999 |
rendered by the division during the
previous year. |
| 2000 |
(j) The
division shall adopt uniform accounting |
| 2001 |
principles, policies, and standards to be
used by all |
| 2002 |
associations in the preparation and
presentation of all |
| 2003 |
financial statements required by this
chapter. The principles, |
| 2004 |
policies, and standards shall take into
consideration the size |
| 2005 |
of the association and the total revenue
collected by the |
| 2006 |
association. |
| 2007 |
(k) The
division shall provide training programs for |
| 2008 |
cooperative association board members and
unit owners. |
| 2009 |
(l) The
division shall maintain a toll-free telephone |
| 2010 |
number accessible to cooperative unit
owners. |
| 2011 |
(m) When
a complaint is made to the division, the division |
| 2012 |
shall conduct its inquiry with reasonable
dispatch and with due |
| 2013 |
regard to the interests of the affected
parties. Within 30 days |
| 2014 |
after receipt of a complaint, the
division shall acknowledge the |
| 2015 |
complaint in writing and notify the
complainant whether the |
| 2016 |
complaint is within the jurisdiction of
the division and whether |
| 2017 |
additional information is needed by the
division from the |
| 2018 |
complainant. The division shall conduct
its investigation and |
| 2019 |
shall, within 90 days after receipt of
the original complaint or |
| 2020 |
timely requested additional information,
take action upon the |
| 2021 |
complaint. However, the failure to
complete the investigation |
| 2022 |
within 90 days does not prevent the
division from continuing the |
| 2023 |
investigation, accepting or considering
evidence obtained or |
| 2024 |
received after 90 days, or taking
administrative action if |
| 2025 |
reasonable cause exists to believe that a
violation of this |
| 2026 |
chapter or a rule of the division has
occurred. If an |
| 2027 |
investigation is not completed within the
time limits |
| 2028 |
established in this paragraph, the
division shall, on a monthly |
| 2029 |
basis, notify the complainant in writing
of the status of the |
| 2030 |
investigation. When reporting its action
to the complainant, the |
| 2031 |
division shall inform the complainant of
any right to a hearing |
| 2032 |
pursuant to ss. 120.569 and 120.57. |
| 2033 |
(n) The
division shall develop a program to certify both |
| 2034 |
volunteer and paid mediators to provide
mediation of cooperative |
| 2035 |
disputes. The division shall provide,
upon request, a list of |
| 2036 |
such mediators to any association, unit
owner, or other |
| 2037 |
participant in arbitration proceedings
under s. 718.1255 |
| 2038 |
requesting a copy of the list. The
division shall include on the |
| 2039 |
list of voluntary mediators only persons
who have received at |
| 2040 |
least 20 hours of training in mediation
techniques or have |
| 2041 |
mediated at least 20 disputes. In order
to become initially |
| 2042 |
certified by the division, paid mediators
must be certified by |
| 2043 |
the Supreme Court to mediate court cases
in either county or |
| 2044 |
circuit courts. However, the division may
adopt, by rule, |
| 2045 |
additional factors for the certification
of paid mediators, |
| 2046 |
which factors must be related to
experience, education, or |
| 2047 |
background. Any person initially
certified as a paid mediator by |
| 2048 |
the division must, in order to continue
to be certified, comply |
| 2049 |
with the factors or requirements imposed
by rules adopted by the |
| 2050 |
division. |
| 2051 |
(2)(a) Each
cooperative association shall pay to the |
| 2052 |
division, on or before January 1 of each year, an
annual fee in |
| 2053 |
the amount of $4 for each residential unit in
cooperatives |
| 2054 |
operated by the association. If the fee is not paid
by March 1, |
| 2055 |
then the association shall be assessed a penalty of
10 percent |
| 2056 |
of the amount due, and the association shall not have
the |
| 2057 |
standing to maintain or defend any action in the
courts of this |
| 2058 |
state until the amount due is paid. |
| 2059 |
(b) All fees
shall be deposited in the Division of Florida |
| 2060 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 2061 |
Association Management, and Mobile Homes Trust
Fund as provided |
| 2062 |
by law. |
| 2063 |
Section 41. Paragraph
(a) of subsection (2) of section |
| 2064 |
719.502, Florida Statutes, is amended to read: |
| 2065 |
719.502 Filing
prior to sale or lease.-- |
| 2066 |
(2)(a) Prior
to filing as required by subsection (1), and |
| 2067 |
prior to acquiring an ownership, leasehold, or
contractual |
| 2068 |
interest in the land upon which the cooperative is to
be |
| 2069 |
developed, a developer shall not offer a contract for
purchase |
| 2070 |
or lease of a unit for more than 5 years. However,
the developer |
| 2071 |
may accept deposits for reservations upon the
approval of a |
| 2072 |
fully executed escrow agreement and reservation
agreement form |
| 2073 |
properly filed with the Division of Florida Land
Sales, |
| 2074 |
Condominiums, Homeowners' Associations, Community
Association |
| 2075 |
Management, and Mobile Homes. Each filing of a
proposed |
| 2076 |
reservation program shall be accompanied by a filing
fee of |
| 2077 |
$250. Reservations shall not be taken on a proposed
cooperative |
| 2078 |
unless the developer has an ownership, leasehold, or
contractual |
| 2079 |
interest in the land upon which the cooperative is to
be |
| 2080 |
developed. The division shall notify the developer
within 20 |
| 2081 |
days of receipt of the reservation filing of any
deficiencies |
| 2082 |
contained therein. Such notification shall not
preclude the |
| 2083 |
determination of reservation filing deficiencies at a
later |
| 2084 |
date, nor shall it relieve the developer of any
responsibility |
| 2085 |
under the law. The escrow agreement and the
reservation |
| 2086 |
agreement form shall include a statement of the right
of the |
| 2087 |
prospective purchaser to an immediate unqualified
refund of the |
| 2088 |
reservation deposit moneys upon written request to
the escrow |
| 2089 |
agent by the prospective purchaser or the developer. |
| 2090 |
Section 42. Section
719.504, Florida Statutes, is amended |
| 2091 |
to read: |
| 2092 |
719.504 Prospectus
or offering circular.--Every developer |
| 2093 |
of a residential cooperative which contains more than
20 |
| 2094 |
residential units, or which is part of a group of
residential |
| 2095 |
cooperatives which will be served by property to be
used in |
| 2096 |
common by unit owners of more than 20 residential
units, shall |
| 2097 |
prepare a prospectus or offering circular and file it
with the |
| 2098 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 2099 |
Associations, Community Association Management,
and Mobile Homes |
| 2100 |
prior to entering into an enforceable contract of
purchase and |
| 2101 |
sale of any unit or lease of a unit for more than 5
years and |
| 2102 |
shall furnish a copy of the prospectus or offering
circular to |
| 2103 |
each buyer. In addition to the prospectus or offering
circular, |
| 2104 |
each buyer shall be furnished a separate page
entitled |
| 2105 |
"Frequently Asked Questions and Answers,"
which must be in |
| 2106 |
accordance with a format approved by the division.
This page |
| 2107 |
must, in readable language: inform prospective
purchasers |
| 2108 |
regarding their voting rights and unit use
restrictions, |
| 2109 |
including restrictions on the leasing of a unit;
indicate |
| 2110 |
whether and in what amount the unit owners or the
association is |
| 2111 |
obligated to pay rent or land use fees for
recreational or other |
| 2112 |
commonly used facilities; contain a statement
identifying that |
| 2113 |
amount of assessment which, pursuant to the budget,
would be |
| 2114 |
levied upon each unit type, exclusive of any special |
| 2115 |
assessments, and which identifies the basis upon
which |
| 2116 |
assessments are levied, whether monthly, quarterly,
or |
| 2117 |
otherwise; state and identify any court cases in
which the |
| 2118 |
association is currently a party of record in which
the |
| 2119 |
association may face liability in excess of $100,000;
and state |
| 2120 |
whether membership in a recreational facilities
association is |
| 2121 |
mandatory and, if so, identify the fees currently
charged per |
| 2122 |
unit type. The division shall by rule require such
other |
| 2123 |
disclosure as in its judgment will assist prospective |
| 2124 |
purchasers. The prospectus or offering circular may
include more |
| 2125 |
than one cooperative, although not all such units are
being |
| 2126 |
offered for sale as of the date of the prospectus or
offering |
| 2127 |
circular. The prospectus or offering circular must
contain the |
| 2128 |
following information: |
| 2129 |
(1) The
front cover or the first page must contain only: |
| 2130 |
(a) The name
of the cooperative. |
| 2131 |
(b) The
following statements in conspicuous type: |
| 2132 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
| 2133 |
MATTERS TO BE CONSIDERED IN ACQUIRING A COOPERATIVE
UNIT. |
| 2134 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
| 2135 |
NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL
REFERENCES, |
| 2136 |
ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND
SALES |
| 2137 |
MATERIALS. |
| 2138 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
| 2139 |
STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER
TO THIS |
| 2140 |
PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR
CORRECT |
| 2141 |
REPRESENTATIONS. |
| 2142 |
(2) Summary:
The next page must contain all statements |
| 2143 |
required to be in conspicuous type in the prospectus
or offering |
| 2144 |
circular. |
| 2145 |
(3) A
separate index of the contents and exhibits of the |
| 2146 |
prospectus. |
| 2147 |
(4) Beginning
on the first page of the text (not including |
| 2148 |
the summary and index), a description of the
cooperative, |
| 2149 |
including, but not limited to, the following
information: |
| 2150 |
(a) Its name
and location. |
| 2151 |
(b) A
description of the cooperative property, including, |
| 2152 |
without limitation: |
| 2153 |
1. The
number of buildings, the number of units in each |
| 2154 |
building, the number of bathrooms and bedrooms in
each unit, and |
| 2155 |
the total number of units, if the cooperative is not
a phase |
| 2156 |
cooperative; or, if the cooperative is a phase
cooperative, the |
| 2157 |
maximum number of buildings that may be contained
within the |
| 2158 |
cooperative, the minimum and maximum number of units
in each |
| 2159 |
building, the minimum and maximum number of bathrooms
and |
| 2160 |
bedrooms that may be contained in each unit, and the
maximum |
| 2161 |
number of units that may be contained within the
cooperative. |
| 2162 |
2. The page
in the cooperative documents where a copy of |
| 2163 |
the survey and plot plan of the cooperative is
located. |
| 2164 |
3. The
estimated latest date of completion of |
| 2165 |
constructing, finishing, and equipping. In lieu of a
date, a |
| 2166 |
statement that the estimated date of completion of
the |
| 2167 |
cooperative is in the purchase agreement and a
reference to the |
| 2168 |
article or paragraph containing that information. |
| 2169 |
(c) The
maximum number of units that will use facilities |
| 2170 |
in common with the cooperative. If the maximum number
of units |
| 2171 |
will vary, a description of the basis for variation
and the |
| 2172 |
minimum amount of dollars per unit to be spent for
additional |
| 2173 |
recreational facilities or enlargement of such
facilities. If |
| 2174 |
the addition or enlargement of facilities will result
in a |
| 2175 |
material increase of a unit owner's maintenance
expense or |
| 2176 |
rental expense, if any, the maximum increase and
limitations |
| 2177 |
thereon shall be stated. |
| 2178 |
(5)(a) A
statement in conspicuous type describing whether |
| 2179 |
the cooperative is created and being sold as fee
simple |
| 2180 |
interests or as leasehold interests. If the
cooperative is |
| 2181 |
created or being sold on a leasehold, the location of
the lease |
| 2182 |
in the disclosure materials shall be stated. |
| 2183 |
(b) If
timeshare estates are or may be created with |
| 2184 |
respect to any unit in the cooperative, a statement
in |
| 2185 |
conspicuous type stating that timeshare estates are
created and |
| 2186 |
being sold in such specified units in the
cooperative. |
| 2187 |
(6) A
description of the recreational and other common |
| 2188 |
areas that will be used only by unit owners of the
cooperative, |
| 2189 |
including, but not limited to, the following: |
| 2190 |
(a) Each
room and its intended purposes, location, |
| 2191 |
approximate floor area, and capacity in numbers of
people. |
| 2192 |
(b) Each
swimming pool, as to its general location, |
| 2193 |
approximate size and depths, approximate deck size
and capacity, |
| 2194 |
and whether heated. |
| 2195 |
(c) Additional
facilities, as to the number of each |
| 2196 |
facility, its approximate location, approximate size,
and |
| 2197 |
approximate capacity. |
| 2198 |
(d) A
general description of the items of personal |
| 2199 |
property and the approximate number of each item of
personal |
| 2200 |
property that the developer is committing to furnish
for each |
| 2201 |
room or other facility or, in the alternative, a
representation |
| 2202 |
as to the minimum amount of expenditure that will be
made to |
| 2203 |
purchase the personal property for the facility. |
| 2204 |
(e) The
estimated date when each room or other facility |
| 2205 |
will be available for use by the unit owners. |
| 2206 |
(f)1. An
identification of each room or other facility to |
| 2207 |
be used by unit owners that will not be owned by the
unit owners |
| 2208 |
or the association; |
| 2209 |
2. A
reference to the location in the disclosure materials |
| 2210 |
of the lease or other agreements providing for the
use of those |
| 2211 |
facilities; and |
| 2212 |
3. A
description of the terms of the lease or other |
| 2213 |
agreements, including the length of the term; the
rent payable, |
| 2214 |
directly or indirectly, by each unit owner, and the
total rent |
| 2215 |
payable to the lessor, stated in monthly and annual
amounts for |
| 2216 |
the entire term of the lease; and a description of
any option to |
| 2217 |
purchase the property leased under any such lease,
including the |
| 2218 |
time the option may be exercised, the purchase price
or how it |
| 2219 |
is to be determined, the manner of payment, and
whether the |
| 2220 |
option may be exercised for a unit owner's share or
only as to |
| 2221 |
the entire leased property. |
| 2222 |
(g) A
statement as to whether the developer may provide |
| 2223 |
additional facilities not described above, their
general |
| 2224 |
locations and types, improvements or changes that may
be made, |
| 2225 |
the approximate dollar amount to be expended, and the
maximum |
| 2226 |
additional common expense or cost to the individual
unit owners |
| 2227 |
that may be charged during the first annual period of
operation |
| 2228 |
of the modified or added facilities. |
| 2229 |
|
| 2230 |
Descriptions as to locations, areas, capacities,
numbers, |
| 2231 |
volumes, or sizes may be stated as approximations or
minimums. |
| 2232 |
(7) A
description of the recreational and other facilities |
| 2233 |
that will be used in common with other cooperatives,
community |
| 2234 |
associations, or planned developments which require
the payment |
| 2235 |
of the maintenance and expenses of such facilities,
either |
| 2236 |
directly or indirectly, by the unit owners. The
description |
| 2237 |
shall include, but not be limited to, the following: |
| 2238 |
(a) Each
building and facility committed to be built. |
| 2239 |
(b) Facilities
not committed to be built except under |
| 2240 |
certain conditions, and a statement of those
conditions or |
| 2241 |
contingencies. |
| 2242 |
(c) As to
each facility committed to be built, or which |
| 2243 |
will be committed to be built upon the happening of
one of the |
| 2244 |
conditions in paragraph (b), a statement of whether
it will be |
| 2245 |
owned by the unit owners having the use thereof or by
an |
| 2246 |
association or other entity which will be controlled
by them, or |
| 2247 |
others, and the location in the exhibits of the lease
or other |
| 2248 |
document providing for use of those facilities. |
| 2249 |
(d) The year
in which each facility will be available for |
| 2250 |
use by the unit owners or, in the alternative, the
maximum |
| 2251 |
number of unit owners in the project at the time each
of all of |
| 2252 |
the facilities is committed to be completed. |
| 2253 |
(e) A
general description of the items of personal |
| 2254 |
property, and the approximate number of each item of
personal |
| 2255 |
property, that the developer is committing to furnish
for each |
| 2256 |
room or other facility or, in the alternative, a
representation |
| 2257 |
as to the minimum amount of expenditure that will be
made to |
| 2258 |
purchase the personal property for the facility. |
| 2259 |
(f) If there
are leases, a description thereof, including |
| 2260 |
the length of the term, the rent payable, and a
description of |
| 2261 |
any option to purchase. |
| 2262 |
|
| 2263 |
Descriptions shall include location, areas,
capacities, numbers, |
| 2264 |
volumes, or sizes and may be stated as approximations
or |
| 2265 |
minimums. |
| 2266 |
(8) Recreation
lease or associated club membership: |
| 2267 |
(a) If any
recreational facilities or other common areas |
| 2268 |
offered by the developer and available to, or to be
used by, |
| 2269 |
unit owners are to be leased or have club membership
associated, |
| 2270 |
the following statement in conspicuous type shall be
included: |
| 2271 |
THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED
WITH THIS |
| 2272 |
COOPERATIVE; or, THERE IS A CLUB MEMBERSHIP
ASSOCIATED WITH THIS |
| 2273 |
COOPERATIVE. There shall be a reference to the
location in the |
| 2274 |
disclosure materials where the recreation lease or
club |
| 2275 |
membership is described in detail. |
| 2276 |
(b) If it is
mandatory that unit owners pay a fee, rent, |
| 2277 |
dues, or other charges under a recreational
facilities lease or |
| 2278 |
club membership for the use of facilities, there
shall be in |
| 2279 |
conspicuous type the applicable statement: |
| 2280 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
| 2281 |
MANDATORY FOR UNIT OWNERS; or |
| 2282 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
| 2283 |
TO BE LESSEES UNDER THE RECREATIONAL FACILITIES
LEASE; or |
| 2284 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
| 2285 |
COSTS AND EXPENSES OF MAINTENANCE, MANAGEMENT,
UPKEEP, |
| 2286 |
REPLACEMENT, RENT, AND FEES UNDER THE RECREATIONAL
FACILITIES |
| 2287 |
LEASE (OR THE OTHER INSTRUMENTS PROVIDING THE
FACILITIES); or |
| 2288 |
4. A similar
statement of the nature of the organization |
| 2289 |
or manner in which the use rights are created, and
that unit |
| 2290 |
owners are required to pay. |
| 2291 |
|
| 2292 |
Immediately following the applicable statement, the
location in |
| 2293 |
the disclosure materials where the development is
described in |
| 2294 |
detail shall be stated. |
| 2295 |
(c) If the
developer, or any other person other than the |
| 2296 |
unit owners and other persons having use rights in
the |
| 2297 |
facilities, reserves, or is entitled to receive, any
rent, fee, |
| 2298 |
or other payment for the use of the facilities, then
there shall |
| 2299 |
be the following statement in conspicuous type: THE
UNIT OWNERS |
| 2300 |
OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES
FOR |
| 2301 |
RECREATIONAL OR OTHER COMMON AREAS. Immediately
following this |
| 2302 |
statement, the location in the disclosure materials
where the |
| 2303 |
rent or land use fees are described in detail shall
be stated. |
| 2304 |
(d) If, in
any recreation format, whether leasehold, club, |
| 2305 |
or other, any person other than the association has
the right to |
| 2306 |
a lien on the units to secure the payment of
assessments, rent, |
| 2307 |
or other exactions, there shall appear a statement in |
| 2308 |
conspicuous type in substantially the following form: |
| 2309 |
1. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 2310 |
SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER
THE |
| 2311 |
RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE
THESE |
| 2312 |
PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or |
| 2313 |
2. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 2314 |
SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS
COMING DUE |
| 2315 |
FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE
RECREATIONAL |
| 2316 |
OR COMMONLY USED AREAS. THE UNIT OWNER'S FAILURE TO
MAKE THESE |
| 2317 |
PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN. |
| 2318 |
|
| 2319 |
Immediately following the applicable statement, the
location in |
| 2320 |
the disclosure materials where the lien or lien right
is |
| 2321 |
described in detail shall be stated. |
| 2322 |
(9) If the
developer or any other person has the right to |
| 2323 |
increase or add to the recreational facilities at any
time after |
| 2324 |
the establishment of the cooperative whose unit
owners have use |
| 2325 |
rights therein, without the consent of the unit
owners or |
| 2326 |
associations being required, there shall appear a
statement in |
| 2327 |
conspicuous type in substantially the following form: |
| 2328 |
RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED
WITHOUT CONSENT |
| 2329 |
OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately
following this |
| 2330 |
statement, the location in the disclosure materials
where such |
| 2331 |
reserved rights are described shall be stated. |
| 2332 |
(10) A
statement of whether the developer's plan includes |
| 2333 |
a program of leasing units rather than selling them,
or leasing |
| 2334 |
units and selling them subject to such leases. If so,
there |
| 2335 |
shall be a description of the plan, including the
number and |
| 2336 |
identification of the units and the provisions and
term of the |
| 2337 |
proposed leases, and a statement in boldfaced type
that: THE |
| 2338 |
UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE. |
| 2339 |
(11) The
arrangements for management of the association |
| 2340 |
and maintenance and operation of the cooperative
property and of |
| 2341 |
other property that will serve the unit owners of the |
| 2342 |
cooperative property, and a description of the
management |
| 2343 |
contract and all other contracts for these purposes
having a |
| 2344 |
term in excess of 1 year, including the following: |
| 2345 |
(a) The
names of contracting parties. |
| 2346 |
(b) The term
of the contract. |
| 2347 |
(c) The
nature of the services included. |
| 2348 |
(d) The
compensation, stated on a monthly and annual |
| 2349 |
basis, and provisions for increases in the
compensation. |
| 2350 |
(e) A
reference to the volumes and pages of the |
| 2351 |
cooperative documents and of the exhibits containing
copies of |
| 2352 |
such contracts. |
| 2353 |
|
| 2354 |
Copies of all described contracts shall be attached
as exhibits. |
| 2355 |
If there is a contract for the management of the
cooperative |
| 2356 |
property, then a statement in conspicuous type in
substantially |
| 2357 |
the following form shall appear, identifying the
proposed or |
| 2358 |
existing contract manager: THERE IS (IS TO BE) A
CONTRACT FOR |
| 2359 |
THE MANAGEMENT OF THE COOPERATIVE PROPERTY WITH (NAME
OF THE |
| 2360 |
CONTRACT MANAGER). Immediately following this
statement, the |
| 2361 |
location in the disclosure materials of the contract
for |
| 2362 |
management of the cooperative property shall be
stated. |
| 2363 |
(12) If the
developer or any other person or persons other |
| 2364 |
than the unit owners has the right to retain control
of the |
| 2365 |
board of administration of the association for a
period of time |
| 2366 |
which can exceed 1 year after the closing of the sale
of a |
| 2367 |
majority of the units in that cooperative to persons
other than |
| 2368 |
successors or alternate developers, then a statement
in |
| 2369 |
conspicuous type in substantially the following form
shall be |
| 2370 |
included: THE DEVELOPER (OR OTHER PERSON) HAS THE
RIGHT TO |
| 2371 |
RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF
THE UNITS |
| 2372 |
HAVE BEEN SOLD. Immediately following this statement,
the |
| 2373 |
location in the disclosure materials where this right
to control |
| 2374 |
is described in detail shall be stated. |
| 2375 |
(13) If
there are any restrictions upon the sale, |
| 2376 |
transfer, conveyance, or leasing of a unit, then a
statement in |
| 2377 |
conspicuous type in substantially the following form
shall be |
| 2378 |
included: THE SALE, LEASE, OR TRANSFER OF UNITS IS
RESTRICTED OR |
| 2379 |
CONTROLLED. Immediately following this statement, the
location |
| 2380 |
in the disclosure materials where the restriction,
limitation, |
| 2381 |
or control on the sale, lease, or transfer of units
is described |
| 2382 |
in detail shall be stated. |
| 2383 |
(14) If the
cooperative is part of a phase project, the |
| 2384 |
following shall be stated: |
| 2385 |
(a) A
statement in conspicuous type in substantially the |
| 2386 |
following form shall be included: THIS IS A PHASE
COOPERATIVE. |
| 2387 |
ADDITIONAL LAND AND UNITS MAY BE ADDED TO THIS
COOPERATIVE. |
| 2388 |
Immediately following this statement, the location in
the |
| 2389 |
disclosure materials where the phasing is described
shall be |
| 2390 |
stated. |
| 2391 |
(b) A
summary of the provisions of the declaration |
| 2392 |
providing for the phasing. |
| 2393 |
(c) A
statement as to whether or not residential buildings |
| 2394 |
and units which are added to the cooperative may be |
| 2395 |
substantially different from the residential
buildings and units |
| 2396 |
originally in the cooperative, and, if the added
residential |
| 2397 |
buildings and units may be substantially different,
there shall |
| 2398 |
be a general description of the extent to which such
added |
| 2399 |
residential buildings and units may differ, and a
statement in |
| 2400 |
conspicuous type in substantially the following form
shall be |
| 2401 |
included: BUILDINGS AND UNITS WHICH ARE ADDED TO THE
COOPERATIVE |
| 2402 |
MAY BE SUBSTANTIALLY DIFFERENT FROM THE OTHER
BUILDINGS AND |
| 2403 |
UNITS IN THE COOPERATIVE. Immediately following this
statement, |
| 2404 |
the location in the disclosure materials where the
extent to |
| 2405 |
which added residential buildings and units may
substantially |
| 2406 |
differ is described shall be stated. |
| 2407 |
(d) A
statement of the maximum number of buildings |
| 2408 |
containing units, the maximum and minimum number of
units in |
| 2409 |
each building, the maximum number of units, and the
minimum and |
| 2410 |
maximum square footage of the units that may be
contained within |
| 2411 |
each parcel of land which may be added to the
cooperative. |
| 2412 |
(15) If the
cooperative is created by conversion of |
| 2413 |
existing improvements, the following information
shall be |
| 2414 |
stated: |
| 2415 |
(a) The
information required by s. 719.616. |
| 2416 |
(b) A caveat
that there are no express warranties unless |
| 2417 |
they are stated in writing by the developer. |
| 2418 |
(16) A
summary of the restrictions, if any, to be imposed |
| 2419 |
on units concerning the use of any of the cooperative
property, |
| 2420 |
including statements as to whether there are
restrictions upon |
| 2421 |
children and pets, and reference to the volumes and
pages of the |
| 2422 |
cooperative documents where such restrictions are
found, or if |
| 2423 |
such restrictions are contained elsewhere, then a
copy of the |
| 2424 |
documents containing the restrictions shall be
attached as an |
| 2425 |
exhibit. |
| 2426 |
(17) If
there is any land that is offered by the developer |
| 2427 |
for use by the unit owners and that is neither owned
by them nor |
| 2428 |
leased to them, the association, or any entity
controlled by |
| 2429 |
unit owners and other persons having the use rights
to such |
| 2430 |
land, a statement shall be made as to how such land
will serve |
| 2431 |
the cooperative. If any part of such land will serve
the |
| 2432 |
cooperative, the statement shall describe the land
and the |
| 2433 |
nature and term of service, and the cooperative
documents or |
| 2434 |
other instrument creating such servitude shall be
included as an |
| 2435 |
exhibit. |
| 2436 |
(18) The
manner in which utility and other services, |
| 2437 |
including, but not limited to, sewage and waste
disposal, water |
| 2438 |
supply, and storm drainage, will be provided and the
person or |
| 2439 |
entity furnishing them. |
| 2440 |
(19) An
explanation of the manner in which the |
| 2441 |
apportionment of common expenses and ownership of the
common |
| 2442 |
areas have been determined. |
| 2443 |
(20) An
estimated operating budget for the cooperative and |
| 2444 |
the association, and a schedule of the unit owner's
expenses |
| 2445 |
shall be attached as an exhibit and shall contain the
following |
| 2446 |
information: |
| 2447 |
(a) The
estimated monthly and annual expenses of the |
| 2448 |
cooperative and the association that are collected
from unit |
| 2449 |
owners by assessments. |
| 2450 |
(b) The
estimated monthly and annual expenses of each unit |
| 2451 |
owner for a unit, other than assessments payable to
the |
| 2452 |
association, payable by the unit owner to persons or
entities |
| 2453 |
other than the association, and the total estimated
monthly and |
| 2454 |
annual expense. There may be excluded from this
estimate |
| 2455 |
expenses that are personal to unit owners, which are
not |
| 2456 |
uniformly incurred by all unit owners, or which are
not provided |
| 2457 |
for or contemplated by the cooperative documents,
including, but |
| 2458 |
not limited to, the costs of private telephone;
maintenance of |
| 2459 |
the interior of cooperative units, which is not the
obligation |
| 2460 |
of the association; maid or janitorial services
privately |
| 2461 |
contracted for by the unit owners; utility bills
billed directly |
| 2462 |
to each unit owner for utility services to his or her
unit; |
| 2463 |
insurance premiums other than those incurred for
policies |
| 2464 |
obtained by the cooperative; and similar personal
expenses of |
| 2465 |
the unit owner. A unit owner's estimated payments for |
| 2466 |
assessments shall also be stated in the estimated
amounts for |
| 2467 |
the times when they will be due. |
| 2468 |
(c) The
estimated items of expenses of the cooperative and |
| 2469 |
the association, except as excluded under paragraph
(b), |
| 2470 |
including, but not limited to, the following items,
which shall |
| 2471 |
be stated either as an association expense
collectible by |
| 2472 |
assessments or as unit owners' expenses payable to
persons other |
| 2473 |
than the association: |
| 2474 |
1. Expenses
for the association and cooperative: |
| 2475 |
a. Administration
of the association. |
| 2476 |
b. Management
fees. |
| 2477 |
c. Maintenance. |
| 2478 |
d. Rent for
recreational and other commonly used areas. |
| 2479 |
e. Taxes
upon association property. |
| 2480 |
f. Taxes
upon leased areas. |
| 2481 |
g. Insurance. |
| 2482 |
h. Security
provisions. |
| 2483 |
i. Other
expenses. |
| 2484 |
j. Operating
capital. |
| 2485 |
k. Reserves. |
| 2486 |
l. Fee
payable to the division. |
| 2487 |
2. Expenses
for a unit owner: |
| 2488 |
a. Rent for
the unit, if subject to a lease. |
| 2489 |
b. Rent
payable by the unit owner directly to the lessor |
| 2490 |
or agent under any recreational lease or lease for
the use of |
| 2491 |
commonly used areas, which use and payment are a
mandatory |
| 2492 |
condition of ownership and are not included in the
common |
| 2493 |
expense or assessments for common maintenance paid by
the unit |
| 2494 |
owners to the association. |
| 2495 |
(d) The
estimated amounts shall be stated for a period of |
| 2496 |
at least 12 months and may distinguish between the
period prior |
| 2497 |
to the time unit owners other than the developer
elect a |
| 2498 |
majority of the board of administration and the
period after |
| 2499 |
that date. |
| 2500 |
(21) A
schedule of estimated closing expenses to be paid |
| 2501 |
by a buyer or lessee of a unit and a statement of
whether title |
| 2502 |
opinion or title insurance policy is available to the
buyer and, |
| 2503 |
if so, at whose expense. |
| 2504 |
(22) The
identity of the developer and the chief operating |
| 2505 |
officer or principal directing the creation and sale
of the |
| 2506 |
cooperative and a statement of its and his or her
experience in |
| 2507 |
this field. |
| 2508 |
(23) Copies
of the following, to the extent they are |
| 2509 |
applicable, shall be included as exhibits: |
| 2510 |
(a) The
cooperative documents, or the proposed cooperative |
| 2511 |
documents if the documents have not been recorded. |
| 2512 |
(b) The
articles of incorporation creating the |
| 2513 |
association. |
| 2514 |
(c) The
bylaws of the association. |
| 2515 |
(d) The
ground lease or other underlying lease of the |
| 2516 |
cooperative. |
| 2517 |
(e) The
management agreement and all maintenance and other |
| 2518 |
contracts for management of the association and
operation of the |
| 2519 |
cooperative and facilities used by the unit owners
having a |
| 2520 |
service term in excess of 1 year. |
| 2521 |
(f) The
estimated operating budget for the cooperative and |
| 2522 |
the required schedule of unit owners' expenses. |
| 2523 |
(g) A copy
of the floor plan of the unit and the plot plan |
| 2524 |
showing the location of the residential buildings and
the |
| 2525 |
recreation and other common areas. |
| 2526 |
(h) The
lease of recreational and other facilities that |
| 2527 |
will be used only by unit owners of the subject
cooperative. |
| 2528 |
(i) The
lease of facilities used by owners and others. |
| 2529 |
(j) The form
of unit lease, if the offer is of a |
| 2530 |
leasehold. |
| 2531 |
(k) A
declaration of servitude of properties serving the |
| 2532 |
cooperative but not owned by unit owners or leased to
them or |
| 2533 |
the association. |
| 2534 |
(l) The
statement of condition of the existing building or |
| 2535 |
buildings, if the offering is of units in an
operation being |
| 2536 |
converted to cooperative ownership. |
| 2537 |
(m) The
statement of inspection for termite damage and |
| 2538 |
treatment of the existing improvements, if the
cooperative is a |
| 2539 |
conversion. |
| 2540 |
(n) The form
of agreement for sale or lease of units. |
| 2541 |
(o) A copy
of the agreement for escrow of payments made to |
| 2542 |
the developer prior to closing. |
| 2543 |
(p) A copy
of the documents containing any restrictions on |
| 2544 |
use of the property required by subsection (16). |
| 2545 |
(24) Any
prospectus or offering circular complying with |
| 2546 |
the provisions of former ss. 711.69 and 711.802 may
continue to |
| 2547 |
be used without amendment, or may be amended to
comply with the |
| 2548 |
provisions of this chapter. |
| 2549 |
(25) A brief
narrative description of the location and |
| 2550 |
effect of all existing and intended easements located
or to be |
| 2551 |
located on the cooperative property other than those
in the |
| 2552 |
declaration. |
| 2553 |
(26) If the
developer is required by state or local |
| 2554 |
authorities to obtain acceptance or approval of any
dock or |
| 2555 |
marina facility intended to serve the cooperative, a
copy of |
| 2556 |
such acceptance or approval acquired by the time of
filing with |
| 2557 |
the division pursuant to s. 719.502 or a statement
that such |
| 2558 |
acceptance has not been acquired or received. |
| 2559 |
(27) Evidence
demonstrating that the developer has an |
| 2560 |
ownership, leasehold, or contractual interest in the
land upon |
| 2561 |
which the cooperative is to be developed. |
| 2562 |
Section 43. Section
719.508, Florida Statutes, is amended |
| 2563 |
to read: |
| 2564 |
719.508 Regulation
by Division of Hotels and |
| 2565 |
Restaurants.--In addition to the authority,
regulation, or |
| 2566 |
control exercised by the Division of Florida Land
Sales, |
| 2567 |
Condominiums, Homeowners' Associations, Community
Association |
| 2568 |
Management, and Mobile Homes pursuant to this
act with respect |
| 2569 |
to cooperatives, buildings included in a cooperative
property |
| 2570 |
shall be subject to the authority, regulation, or
control of the |
| 2571 |
Division of Hotels and Restaurants of the Department
of Business |
| 2572 |
and Professional Regulation, to the extent provided
for in |
| 2573 |
chapters 399 and 509. |
| 2574 |
Section 44. Paragraph
(a) of subsection (2) of section |
| 2575 |
719.608, Florida Statutes, is amended to read: |
| 2576 |
719.608 Notice
of intended conversion; time of delivery; |
| 2577 |
content.-- |
| 2578 |
(2)(a) Each
notice of intended conversion shall be dated |
| 2579 |
and in writing. The notice shall contain the
following |
| 2580 |
statement, with the phrases of the following
statement which |
| 2581 |
appear in upper case printed in conspicuous type: |
| 2582 |
|
| 2583 |
These apartments are
being converted to cooperative by |
| 2584 |
(name of developer) , the developer. |
| 2585 |
1. YOU MAY
REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
| 2586 |
YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR
RENTAL |
| 2587 |
AGREEMENT AS FOLLOWS: |
| 2588 |
a. If you
have continuously been a resident of these |
| 2589 |
apartments during the last 180 days and your rental
agreement |
| 2590 |
expires during the next 270 days, you may extend your
rental |
| 2591 |
agreement for up to 270 days after the date of this
notice. |
| 2592 |
b. If you
have not been a continuous resident of these |
| 2593 |
apartments for the last 180 days and your rental
agreement |
| 2594 |
expires during the next 180 days, you may extend your
rental |
| 2595 |
agreement for up to 180 days after the date of this
notice. |
| 2596 |
c. IN ORDER
FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
| 2597 |
MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS
AFTER THE |
| 2598 |
DATE OF THIS NOTICE. |
| 2599 |
2. IF YOUR
RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
| 2600 |
you may extend your rental agreement for up to 45
days after the |
| 2601 |
date of this notice while you decide whether to
extend your |
| 2602 |
rental agreement as explained above. To do so, you
must notify |
| 2603 |
the developer in writing. You will then have the full
45 days to |
| 2604 |
decide whether to extend your rental agreement as
explained |
| 2605 |
above. |
| 2606 |
3. During
the extension of your rental agreement you will |
| 2607 |
be charged the same rent that you are now paying. |
| 2608 |
4. YOU MAY
CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
| 2609 |
OF THE RENTAL AGREEMENT AS FOLLOWS: |
| 2610 |
a. If your
rental agreement began or was extended or |
| 2611 |
renewed after May 1, 1980, and your rental agreement,
including |
| 2612 |
extensions and renewals, has an unexpired term of 180
days or |
| 2613 |
less, you may cancel your rental agreement upon 30
days' written |
| 2614 |
notice and move. Also, upon 30 days' written notice,
you may |
| 2615 |
cancel any extension of the rental agreement. |
| 2616 |
b. If your
rental agreement was not begun or was not |
| 2617 |
extended or renewed after May 1, 1980, you may not
cancel the |
| 2618 |
rental agreement without the consent of the
developer. If your |
| 2619 |
rental agreement, including extensions and renewals,
has an |
| 2620 |
unexpired term of 180 days or less, you may, however,
upon 30 |
| 2621 |
days' written notice cancel any extension of the
rental |
| 2622 |
agreement. |
| 2623 |
5. All
notices must be given in writing and sent by mail, |
| 2624 |
return receipt requested, or delivered in person to
the |
| 2625 |
developer at this address: (name and
address of developer) . |
| 2626 |
6. If you
have continuously been a resident of these |
| 2627 |
apartments during the last 180 days: |
| 2628 |
a. You have
the right to purchase your apartment and will |
| 2629 |
have 45 days to decide whether to purchase. If you do
not buy |
| 2630 |
the unit at that price and the unit is later offered
at a lower |
| 2631 |
price, you will have the opportunity to buy the unit
at the |
| 2632 |
lower price. However, in all events your right to
purchase the |
| 2633 |
unit ends when the rental agreement or any extension
of the |
| 2634 |
rental agreement ends or when you waive this right in
writing. |
| 2635 |
b. Within 90
days you will be provided purchase |
| 2636 |
information relating to your apartment, including the
price of |
| 2637 |
your unit and the condition of the building. If you
do not |
| 2638 |
receive this information within 90 days, your rental
agreement |
| 2639 |
and any extension will be extended 1 day for each day
over 90 |
| 2640 |
days until you are given the purchase information. If
you do not |
| 2641 |
want this rental agreement extension, you must notify
the |
| 2642 |
developer in writing. |
| 2643 |
7. If you
have any questions regarding this conversion or |
| 2644 |
the Cooperative Act, you may contact the developer or
the state |
| 2645 |
agency which regulates cooperatives: The Division of
Florida |
| 2646 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 2647 |
Association Management, and Mobile Homes,
(Tallahassee address |
| 2648 |
and telephone number of division). |
| 2649 |
Section 45. Subsection
(7) of section 720.301, Florida |
| 2650 |
Statutes, is amended to read: |
| 2651 |
720.301 Definitions.--As
used in this chapter, the term: |
| 2652 |
(7) "Division"
means the Division of Florida Land Sales, |
| 2653 |
Condominiums, Homeowners' Associations, Community
Association |
| 2654 |
Management, and Mobile Homes in the Department
of Business and |
| 2655 |
Professional Regulation. |
| 2656 |
Section 46. Subsection
(11) of section 721.05, Florida |
| 2657 |
Statutes, is amended to read: |
| 2658 |
721.05 Definitions.--As
used in this chapter, the term: |
| 2659 |
(11) "Division"
means the Division of Florida Land Sales, |
| 2660 |
Condominiums, Homeowners' Associations, Community
Association |
| 2661 |
Management, and Mobile Homes of the Department
of Business and |
| 2662 |
Professional Regulation. |
| 2663 |
Section 47. Paragraph
(d) of subsection (2) of section |
| 2664 |
721.07, Florida Statutes, is amended to read: |
| 2665 |
721.07 Public
offering statement.--Prior to offering any |
| 2666 |
timeshare plan, the developer must submit a filed
public |
| 2667 |
offering statement to the division for approval as
prescribed by |
| 2668 |
s. 721.03, s. 721.55, or this section. Until the
division |
| 2669 |
approves such filing, any contract regarding the sale
of that |
| 2670 |
timeshare plan is subject to cancellation by the
purchaser |
| 2671 |
pursuant to s. 721.10. |
| 2672 |
(2) |
| 2673 |
(d) A
developer shall have the authority to deliver to |
| 2674 |
purchasers any purchaser public offering statement
that is not |
| 2675 |
yet approved by the division, provided that the
following shall |
| 2676 |
apply: |
| 2677 |
1. At the
time the developer delivers an unapproved |
| 2678 |
purchaser public offering statement to a purchaser
pursuant to |
| 2679 |
this paragraph, the developer shall deliver a fully
completed |
| 2680 |
and executed copy of the purchase contract required
by s. 721.06 |
| 2681 |
that contains the following statement in conspicuous
type in |
| 2682 |
substantially the following form which shall replace
the |
| 2683 |
statements required by s. 721.06(1)(g): |
| 2684 |
|
| 2685 |
The developer is delivering to you a public offering
statement |
| 2686 |
that has been filed with but not yet approved by the
Division of |
| 2687 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 2688 |
Community Association Management, and Mobile
Homes. Any |
| 2689 |
revisions to the unapproved public offering statement
you have |
| 2690 |
received must be delivered to you, but only if the
revisions |
| 2691 |
materially alter or modify the offering in a manner
adverse to |
| 2692 |
you. After the division approves the public offering
statement, |
| 2693 |
you will receive notice of the approval from the
developer and |
| 2694 |
the required revisions, if any. |
| 2695 |
|
| 2696 |
Your statutory right to cancel this transaction
without any |
| 2697 |
penalty or obligation expires 10 calendar days after
the date |
| 2698 |
you signed your purchase contract or the date on
which you |
| 2699 |
receive the last of all documents required to be
given to you |
| 2700 |
pursuant to section 721.07(6), Florida Statutes, or
10 calendar |
| 2701 |
days after you receive revisions required to be
delivered to |
| 2702 |
you, if any, whichever is later. If you decide to
cancel this |
| 2703 |
contract, you must notify the seller in writing of
your intent |
| 2704 |
to cancel. Your notice of cancellation shall be
effective upon |
| 2705 |
the date sent and shall be sent to (Name
of Seller) at |
| 2706 |
(Address of Seller) . Any attempt to
obtain a waiver of your |
| 2707 |
cancellation right is void and of no effect. While
you may |
| 2708 |
execute all closing documents in advance, the
closing, as |
| 2709 |
evidenced by delivery of the deed or other document,
before |
| 2710 |
expiration of your 10-day cancellation period, is
prohibited. |
| 2711 |
|
| 2712 |
2. After
receipt of approval from the division and prior |
| 2713 |
to closing, if any revisions made to the documents
contained in |
| 2714 |
the purchaser public offering statement materially
alter or |
| 2715 |
modify the offering in a manner adverse to a
purchaser, the |
| 2716 |
developer shall send the purchaser such revisions
together with |
| 2717 |
a notice containing a statement in conspicuous type
in |
| 2718 |
substantially the following form: |
| 2719 |
|
| 2720 |
The unapproved public offering statement previously
delivered to |
| 2721 |
you, together with the enclosed revisions, has been
approved by |
| 2722 |
the Division of Florida Land Sales, Condominiums, Homeowners' |
| 2723 |
Associations, Community Association Management,
and Mobile |
| 2724 |
Homes. Accordingly, your cancellation right expires
10 calendar |
| 2725 |
days after you sign your purchase contract or 10
calendar days |
| 2726 |
after you receive these revisions, whichever is
later. If you |
| 2727 |
have any questions regarding your cancellation
rights, you may |
| 2728 |
contact the division at [insert division's current
address]. |
| 2729 |
|
| 2730 |
3. After
receipt of approval from the division and prior |
| 2731 |
to closing, if no revisions have been made to the
documents |
| 2732 |
contained in the unapproved purchaser public offering
statement, |
| 2733 |
or if such revisions do not materially alter or
modify the |
| 2734 |
offering in a manner adverse to a purchaser, the
developer shall |
| 2735 |
send the purchaser a notice containing a statement in |
| 2736 |
conspicuous type in substantially the following form: |
| 2737 |
|
| 2738 |
The unapproved public offering statement previously
delivered to |
| 2739 |
you has been approved by the Division of Florida Land
Sales, |
| 2740 |
Condominiums, Homeowners' Associations, Community
Association |
| 2741 |
Management, and Mobile Homes. Revisions made
to the unapproved |
| 2742 |
public offering statement, if any, are either not
required to be |
| 2743 |
delivered to you or are not deemed by the developer,
in its |
| 2744 |
opinion, to materially alter or modify the offering
in a manner |
| 2745 |
that is adverse to you. Accordingly, your
cancellation right |
| 2746 |
expired 10 days after you signed your purchase
contract. A |
| 2747 |
complete copy of the approved public offering
statement is |
| 2748 |
available through the managing entity for inspection
as part of |
| 2749 |
the books and records of the plan. If you have any
questions |
| 2750 |
regarding your cancellation rights, you may contact
the division |
| 2751 |
at [insert division's current address]. |
| 2752 |
Section 48. Subsection
(8) of section 721.08, Florida |
| 2753 |
Statutes, is amended to read: |
| 2754 |
721.08 Escrow
accounts; nondisturbance instruments; |
| 2755 |
alternate security arrangements; transfer of legal
title.-- |
| 2756 |
(8) An
escrow agent holding escrowed funds pursuant to |
| 2757 |
this chapter that have not been claimed for a period
of 5 years |
| 2758 |
after the date of deposit shall make at least one
reasonable |
| 2759 |
attempt to deliver such unclaimed funds to the
purchaser who |
| 2760 |
submitted such funds to escrow. In making such
attempt, an |
| 2761 |
escrow agent is entitled to rely on a purchaser's
last known |
| 2762 |
address as set forth in the books and records of the
escrow |
| 2763 |
agent and is not required to conduct any further
search for the |
| 2764 |
purchaser. If an escrow agent's attempt to deliver
unclaimed |
| 2765 |
funds to any purchaser is unsuccessful, the escrow
agent may |
| 2766 |
deliver such unclaimed funds to the division and the
division |
| 2767 |
shall deposit such unclaimed funds in the Division of
Florida |
| 2768 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
| 2769 |
Association Management, and Mobile Homes Trust
Fund, 30 days |
| 2770 |
after giving notice in a publication of general
circulation in |
| 2771 |
the county in which the timeshare property containing
the |
| 2772 |
purchaser's timeshare interest is located. The
purchaser may |
| 2773 |
claim the same at any time prior to the delivery of
such funds |
| 2774 |
to the division. After delivery of such funds to the
division, |
| 2775 |
the purchaser shall have no more rights to the
unclaimed funds. |
| 2776 |
The escrow agent shall not be liable for any claims
from any |
| 2777 |
party arising out of the escrow agent's delivery of
the |
| 2778 |
unclaimed funds to the division pursuant to this
section. |
| 2779 |
Section 49. Paragraph
(e) of subsection (5) of section |
| 2780 |
721.26, Florida Statutes, is amended to read: |
| 2781 |
721.26 Regulation
by division.--The division has the power |
| 2782 |
to enforce and ensure compliance with the provisions
of this |
| 2783 |
chapter, except for parts III and IV, using the
powers provided |
| 2784 |
in this chapter, as well as the powers prescribed in
chapters |
| 2785 |
498, 718, and 719. In performing its duties, the
division shall |
| 2786 |
have the following powers and duties: |
| 2787 |
(5) Notwithstanding
any remedies available to purchasers, |
| 2788 |
if the division has reasonable cause to believe that
a violation |
| 2789 |
of this chapter, or of any division rule or order
promulgated or |
| 2790 |
issued pursuant to this chapter, has occurred, the
division may |
| 2791 |
institute enforcement proceedings in its own name
against any |
| 2792 |
regulated party, as such term is defined in this
subsection: |
| 2793 |
(e)1. The
division may impose a penalty against any |
| 2794 |
regulated party for a violation of this chapter or
any rule |
| 2795 |
adopted thereunder. A penalty may be imposed on the
basis of |
| 2796 |
each day of continuing violation, but in no event may
the |
| 2797 |
penalty for any offense exceed $10,000. All accounts
collected |
| 2798 |
shall be deposited with the Chief Financial Officer
to the |
| 2799 |
credit of the Division of Florida Land Sales,
Condominiums, |
| 2800 |
Homeowners' Associations, Community Association
Management, and |
| 2801 |
Mobile Homes Trust Fund. |
| 2802 |
2.a. If a
regulated party fails to pay a penalty, the |
| 2803 |
division shall thereupon issue an order directing
that such |
| 2804 |
regulated party cease and desist from further
operation until |
| 2805 |
such time as the penalty is paid; or the division may
pursue |
| 2806 |
enforcement of the penalty in a court of competent
jurisdiction. |
| 2807 |
b. If an
owners' association or managing entity fails to |
| 2808 |
pay a civil penalty, the division may pursue
enforcement in a |
| 2809 |
court of competent jurisdiction. |
| 2810 |
Section 50. Section
721.28, Florida Statutes, is amended |
| 2811 |
to read: |
| 2812 |
721.28 Division
of Florida Land Sales, Condominiums, |
| 2813 |
Homeowners' Associations, Community Association
Management, and |
| 2814 |
Mobile Homes Trust Fund.--All funds collected by the
division |
| 2815 |
and any amounts paid as fees or penalties under this
chapter |
| 2816 |
shall be deposited in the State Treasury to the
credit of the |
| 2817 |
Division of Florida Land Sales, Condominiums, Homeowners' |
| 2818 |
Associations, Community Association Management,
and Mobile Homes |
| 2819 |
Trust Fund created by s. 498.019. |
| 2820 |
Section 51. Paragraph
(c) of subsection (1) of section |
| 2821 |
721.301, Florida Statutes, is amended to read: |
| 2822 |
721.301 Florida
Timesharing, Vacation Club, and |
| 2823 |
Hospitality Program.-- |
| 2824 |
(1) |
| 2825 |
(c) The
director may designate funds from the Division of |
| 2826 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 2827 |
Community Association Management, and Mobile
Homes Trust Fund, |
| 2828 |
not to exceed $50,000 annually, to support the
projects and |
| 2829 |
proposals undertaken pursuant to paragraph (b). All
state trust |
| 2830 |
funds to be expended pursuant to this section must be
matched |
| 2831 |
equally with private moneys and shall comprise no
more than half |
| 2832 |
of the total moneys expended annually. |
| 2833 |
Section 52. Section
721.50, Florida Statutes, is amended |
| 2834 |
to read: |
| 2835 |
721.50 Short
title.--This part may be cited as the |
| 2836 |
"McAllister Act" in recognition and
appreciation for the years |
| 2837 |
of extraordinary and insightful contributions by Mr.
Bryan C. |
| 2838 |
McAllister, Examinations Supervisor, Division of
Florida Land |
| 2839 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 2840 |
Association Management, and Mobile Homes. |
| 2841 |
Section 53. Subsection
(1) of section 723.003, Florida |
| 2842 |
Statutes, is amended to read: |
| 2843 |
723.003 Definitions.--As
used in this chapter, the |
| 2844 |
following words and terms have the following meanings
unless |
| 2845 |
clearly indicated otherwise: |
| 2846 |
(1) The term
"division" means the Division of Florida Land |
| 2847 |
Sales, Condominiums, Homeowners' Associations,
Community |
| 2848 |
Association Management, and Mobile Homes of
the Department of |
| 2849 |
Business and Professional Regulation. |
| 2850 |
Section 54. Paragraph
(e) of subsection (5) of section |
| 2851 |
723.006, Florida Statutes, is amended to read: |
| 2852 |
723.006 Powers
and duties of division.--In performing its |
| 2853 |
duties, the division has the following powers and
duties: |
| 2854 |
(5) Notwithstanding
any remedies available to mobile home |
| 2855 |
owners, mobile home park owners, and homeowners'
associations, |
| 2856 |
if the division has reasonable cause to believe that
a violation |
| 2857 |
of any provision of this chapter or any rule
promulgated |
| 2858 |
pursuant hereto has occurred, the division may
institute |
| 2859 |
enforcement proceedings in its own name against a
developer, |
| 2860 |
mobile home park owner, or homeowners' association,
or its |
| 2861 |
assignee or agent, as follows: |
| 2862 |
(e)1. The
division may impose a civil penalty against a |
| 2863 |
mobile home park owner or homeowners' association, or
its |
| 2864 |
assignee or agent, for any violation of this chapter,
a properly |
| 2865 |
promulgated park rule or regulation, or a rule or
regulation |
| 2866 |
promulgated pursuant hereto. A penalty may be imposed
on the |
| 2867 |
basis of each separate violation and, if the
violation is a |
| 2868 |
continuing one, for each day of continuing violation,
but in no |
| 2869 |
event may the penalty for each separate violation or
for each |
| 2870 |
day of continuing violation exceed $5,000. All
amounts collected |
| 2871 |
shall be deposited with the Chief Financial Officer
to the |
| 2872 |
credit of the Division of Florida Land Sales,
Condominiums, |
| 2873 |
Homeowners' Associations, Community Association
Management, and |
| 2874 |
Mobile Homes Trust Fund. |
| 2875 |
2. If a
violator fails to pay the civil penalty, the |
| 2876 |
division shall thereupon issue an order directing
that such |
| 2877 |
violator cease and desist from further violation
until such time |
| 2878 |
as the civil penalty is paid or may pursue
enforcement of the |
| 2879 |
penalty in a court of competent jurisdiction. If a
homeowners' |
| 2880 |
association fails to pay the civil penalty, the
division shall |
| 2881 |
thereupon pursue enforcement in a court of competent |
| 2882 |
jurisdiction, and the order imposing the civil
penalty or the |
| 2883 |
cease and desist order shall not become effective
until 20 days |
| 2884 |
after the date of such order. Any action commenced by
the |
| 2885 |
division shall be brought in the county in which the
division |
| 2886 |
has its executive offices or in which the violation
occurred. |
| 2887 |
Section 55. Section
723.009, Florida Statutes, is amended |
| 2888 |
to read: |
| 2889 |
723.009 Division
of Florida Land Sales, Condominiums, |
| 2890 |
Homeowners' Associations, Community Association
Management, and |
| 2891 |
Mobile Homes Trust Fund.--All proceeds from the fees,
penalties, |
| 2892 |
and fines imposed pursuant to this chapter shall be
deposited |
| 2893 |
into the Division of Florida Land Sales,
Condominiums, |
| 2894 |
Homeowners' Associations, Community Association
Management, and |
| 2895 |
Mobile Homes Trust Fund created by s. 498.019. Moneys
in this |
| 2896 |
fund, as appropriated by the Legislature pursuant to
chapter |
| 2897 |
216, may be used to defray the expenses incurred by
the division |
| 2898 |
in administering the provisions of this chapter. |
| 2899 |
Section 56. Paragraph
(c) of subsection (2) of section |
| 2900 |
723.0611, Florida Statutes, is amended to read: |
| 2901 |
723.0611 Florida
Mobile Home Relocation Corporation.-- |
| 2902 |
(2) |
| 2903 |
(c) There
shall be no liability on the part of, and no |
| 2904 |
cause of action of any nature shall arise against,
agents or |
| 2905 |
employees of the corporation, members of the board of
directors |
| 2906 |
of the corporation, or representatives of the
Division of |
| 2907 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 2908 |
Community Association Management, and Mobile
Homes for any act |
| 2909 |
or omission of the board of directors in the
performance of |
| 2910 |
their powers and duties under this section, unless
such act or |
| 2911 |
omission by such person is in intentional disregard
of the |
| 2912 |
rights of the claimant. |
| 2913 |
Section 57. This
act shall take effect July 1, 2005. |
CODING: Words stricken
are deletions; words underlined are
additions. |