| 1 |
A bill to be
entitled |
| 2 |
An act relating to
community associations; amending s. |
| 3 |
718.110, F.S.; requiring
notice of a proposed amendment to |
| 4 |
the declaration to be
sent to the unit owner by certified |
| 5 |
mail; amending s.
718.111, F.S.; restricting a condominium |
| 6 |
association from waiving
a financial report for more than |
| 7 |
2 consecutive years;
providing duties for condominium |
| 8 |
boards of administration
in the event of certain |
| 9 |
casualties; providing
that certain assessments may be made |
| 10 |
against unit owners under
certain conditions; providing |
| 11 |
condominium association
guidelines for the designation of |
| 12 |
disabled parking spaces;
amending s. 718.112, F.S.; |
| 13 |
authorizing the board or
membership to determine the |
| 14 |
composition of the board
of administration under certain |
| 15 |
circumstances; requiring
the board to respond to certain |
| 16 |
inquiries by certified
mail, return receipt requested; |
| 17 |
removing a provision
allowing a condominium association to |
| 18 |
only respond once every
30 days to unit owner inquiries; |
| 19 |
providing that no action
shall be taken or resolution made |
| 20 |
without an open meeting
of the board; requiring the board |
| 21 |
to address agenda items
proposed by a petition of 20 |
| 22 |
percent of the unit
owners; revising notice procedures; |
| 23 |
revising the terms of
office and reelection of the members |
| 24 |
of a condominium
association board; providing that certain |
| 25 |
persons providing notice
of a meeting must provide an |
| 26 |
affidavit affirming that
the notices were delivered; |
| 27 |
authorizing the
association's representative to provide |
| 28 |
certain notices; removing
a provision allowing an |
| 29 |
association to print or
duplicate certain information |
| 30 |
sheets on both sides of
the paper; revising procedures |
| 31 |
relating to the filling
of a vacancy on the board; |
| 32 |
removing a provision
allowing an association to provide |
| 33 |
for different voting and
election procedures in its |
| 34 |
bylaws; authorizing unit
owners the right to have items |
| 35 |
placed on the agenda of
the annual meeting and to be voted |
| 36 |
upon under certain
conditions; requiring a vote to provide |
| 37 |
for no reserves or
percentage of reserves to be made at |
| 38 |
certain times;
authorizing the association to use reserve |
| 39 |
funds for nonscheduled
purposes under certain conditions; |
| 40 |
requiring that
assessments be made against units on a |
| 41 |
quarter-annual or more
frequent basis; providing that |
| 42 |
certain provisions shall
not preclude the right of an |
| 43 |
association to accelerate
assessments of certain owners |
| 44 |
delinquent in payment of
common expenses; providing that |
| 45 |
accelerated assessments
shall be due and payable after the |
| 46 |
claim of lien is filed;
amending s. 718.113, F.S.; |
| 47 |
requiring boards of
administration to adopt or restate |
| 48 |
hurricane shutter
specifications yearly at the annual |
| 49 |
meeting; authorizing the
board to install hurricane |
| 50 |
protection that complies
with the applicable building |
| 51 |
code; requiring the board
to have the condominium |
| 52 |
buildings periodically
inspected for structural and |
| 53 |
electrical soundness by a
professional engineer or |
| 54 |
professional architect
registered in the state; requiring |
| 55 |
the inspector to provide
a report to the association; |
| 56 |
amending s. 718.115, F.S.;
providing that a bulk contract |
| 57 |
for basic service may be
deemed a common expense; amending |
| 58 |
s. 718.116, F.S.;
removing provisions limiting the |
| 59 |
liability of a first
mortgagee or its successor or |
| 60 |
assignees who acquire
title to a unit by foreclosure or by |
| 61 |
deed; revising the order
in which payments received by the |
| 62 |
association must be
applied; restricting certain liens |
| 63 |
from being filed on a
condominium parcel until 30 days |
| 64 |
after service of a notice
of intent to file the lien; |
| 65 |
requiring that itemized
expenses and a payment schedule be |
| 66 |
included in certain
special assessments; providing that |
| 67 |
funds collected pursuant
to a special assessment shall not |
| 68 |
be commingled with any
other association funds; creating |
| 69 |
s. 718.1223, F.S.;
requiring any complaint of abuse filed |
| 70 |
with the Division of
Florida Land Sales, Condominiums, and |
| 71 |
Mobile Homes shall
immediately be investigated by the |
| 72 |
division; requiring the
division to institute enforcement |
| 73 |
proceedings under certain
circumstances; defining the term |
| 74 |
"abuse" for
purposes of the section; creating s. 718.1224, |
| 75 |
F.S.; prohibiting certain
lawsuits arising from unit |
| 76 |
owners' appearances and
presentations before a |
| 77 |
governmental entity;
providing a definition; amending s. |
| 78 |
718.1255, F.S.; requiring
the division to promptly refer |
| 79 |
certain cases to
mediation; providing that an arbitrator |
| 80 |
may refer a dispute to
mediation at any time; amending s. |
| 81 |
718.302, F.S.; conforming
provisions; amending s. |
| 82 |
718.3026, F.S.; providing
that certain contracts between a |
| 83 |
service provider and an
association shall not be for a |
| 84 |
term in excess of 3 years
and shall not contain an |
| 85 |
automatic renewal clause;
requiring that certain contracts |
| 86 |
for construction must
have the approval of an attorney |
| 87 |
hired by the association;
amending s. 718.303, F.S.; |
| 88 |
requiring that persons
subject to certain actions be |
| 89 |
notified of their
violation in a certain manner; providing |
| 90 |
a timeframe in which the
person must respond; amending s. |
| 91 |
718.501, F.S.; requiring
the division to prepare and |
| 92 |
disseminate a prospectus
and other information for use by |
| 93 |
owners, purchasers,
lessees, and developers of residential |
| 94 |
condominiums; providing
that the board member training |
| 95 |
provided by the division
shall be provided in conjunction |
| 96 |
with recommendations by
the ombudsman; amending s. |
| 97 |
718.5011, F.S.;
restricting location of the Office of the |
| 98 |
Condominium Ombudsman;
providing that the ombudsman shall |
| 99 |
exercise his or her
policymaking and other functions |
| 100 |
independently of the
Department of Business and |
| 101 |
Professional Regulation
and without approval or control of |
| 102 |
the department; requiring
the department to render |
| 103 |
administrative support
for certain matters; requiring that |
| 104 |
revenues collected by the
department for the Office of the |
| 105 |
Condominium Ombudsman be
deposited in a separate fund or |
| 106 |
account; amending s.
718.5012, F.S.; providing that the |
| 107 |
division shall process
the ombudsman's recommendations and |
| 108 |
petitions in an expedited
manner and defer to his or her |
| 109 |
findings; providing the
ombudsman with the power to order |
| 110 |
meetings between certain
parties; authorizing the |
| 111 |
ombudsman to make
recommendations to the division to |
| 112 |
pursue enforcement action
in circuit court on behalf of a |
| 113 |
class of unit owners,
lessees, or purchasers; authorizing |
| 114 |
the ombudsman to order
that any aspect of an association |
| 115 |
election be conducted by
an election monitor; authorizing |
| 116 |
the ombudsman to order an
association to implement certain |
| 117 |
remedies; authorizing the
ombudsman to order certain |
| 118 |
persons to cease and
desist from unlawful practices; |
| 119 |
repealing s. 718.50151,
F.S., to abolish the Advisory |
| 120 |
Council on Condominiums
and its functions; amending s. |
| 121 |
719.1055, F.S.; providing
that amendments restricting |
| 122 |
cooperative owners'
rights relating to the rental of units |
| 123 |
apply only to certain
unit owners; creating s. 720.4016, |
| 124 |
F.S.; creating the
Advisory Council on Mandated Properties |
| 125 |
to be located within the
division; providing membership; |
| 126 |
providing that members of
the council shall serve without |
| 127 |
compensation but are
entitled to receive per diem and |
| 128 |
travel expenses;
providing that vacancies shall be filled |
| 129 |
in the same manner as
original appointments; providing an |
| 130 |
effective date. |
| 131 |
|
| 132 |
Be It Enacted by the
Legislature of the State of Florida: |
| 133 |
|
| 134 |
Section
1. Paragraph (d) is added to subsection (1) of |
| 135 |
section 718.110, Florida
Statutes, to read: |
| 136 |
718.110 Amendment
of declaration; correction of error or |
| 137 |
omission in declaration
by circuit court.-- |
| 138 |
(1) |
| 139 |
(d) Notice
of a proposed amendment to the declaration |
| 140 |
shall
be sent to the unit owner by certified mail. |
| 141 |
Section
2. Paragraph (d) of subsection (13) of section |
| 142 |
718.111, Florida
Statutes, is amended, and subsections (15) and |
| 143 |
(16) are added to that
section, to read: |
| 144 |
718.111 The
association.-- |
| 145 |
(13) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 146 |
the fiscal year, or
annually on a date provided in the bylaws, |
| 147 |
the association shall
prepare and complete, or contract for the |
| 148 |
preparation and
completion of, a financial report for the |
| 149 |
preceding fiscal year.
Within 21 days after the final financial |
| 150 |
report is completed by
the association or received from the |
| 151 |
third party, but not
later than 120 days after the end of the |
| 152 |
fiscal year or other date
as provided in the bylaws, the |
| 153 |
association shall mail to
each unit owner at the address last |
| 154 |
furnished to the
association by the unit owner, or hand deliver |
| 155 |
to each unit owner, a
copy of the financial report or a notice |
| 156 |
that a copy of the
financial report will be mailed or hand |
| 157 |
delivered to the unit
owner, without charge, upon receipt of a |
| 158 |
written request from the
unit owner. The division shall adopt |
| 159 |
rules setting forth
uniform accounting principles and standards |
| 160 |
to be used by all
associations and shall adopt rules addressing |
| 161 |
financial reporting
requirements for multicondominium |
| 162 |
associations. In adopting
such rules, the division shall |
| 163 |
consider the number of
members and annual revenues of an |
| 164 |
association. Financial
reports shall be prepared as follows: |
| 165 |
(d) If
approved by a majority of the voting interests |
| 166 |
present at a properly
called meeting of the association, an |
| 167 |
association may prepare
or cause to be prepared: |
| 168 |
1. A
report of cash receipts and expenditures in lieu of a |
| 169 |
compiled, reviewed, or
audited financial statement; |
| 170 |
2. A
report of cash receipts and expenditures or a |
| 171 |
compiled financial
statement in lieu of a reviewed or audited |
| 172 |
financial statement; or |
| 173 |
3. A
report of cash receipts and expenditures, a compiled |
| 174 |
financial statement, or a
reviewed financial statement in lieu |
| 175 |
of an audited financial
statement. |
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|
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Such meeting and approval
must occur prior to the end of the |
| 178 |
fiscal year and is
effective only for the fiscal year in which |
| 179 |
the vote is taken. With
respect to an association to which the |
| 180 |
developer has not turned
over control of the association, all |
| 181 |
unit owners, including
the developer, may vote on issues related |
| 182 |
to the preparation of
financial reports for the first 2 fiscal |
| 183 |
years of the
association's operation, beginning with the fiscal |
| 184 |
year in which the
declaration is recorded. Thereafter, all unit |
| 185 |
owners except the
developer may vote on such issues until |
| 186 |
control is turned over to
the association by the developer. |
| 187 |
Under
no circumstances may an association or board of |
| 188 |
administration
waive the financial reporting requirements of |
| 189 |
this
section for more than 2 consecutive years. |
| 190 |
(15) RECONSTRUCTION
AFTER CASUALTY.-- |
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(a) In
the event of a casualty whereby the condominium |
| 192 |
property
and units are damaged, the board of administration |
| 193 |
shall
obtain reliable and detailed estimates of the cost |
| 194 |
necessary
to repair and replace the damaged property to |
| 195 |
substantially
the same condition existing immediately prior to |
| 196 |
the
casualty and substantially in accordance with the original |
| 197 |
plans
and specifications of the condominium as soon as possible |
| 198 |
and
not later than 60 days after the casualty. If the damage to |
| 199 |
the
condominium property exceeds 50 percent of the property's |
| 200 |
value,
the condominium may be terminated unless, within 90 days |
| 201 |
after
the casualty, 75 percent of the unit owners agree to |
| 202 |
reconstruction
and repair. |
| 203 |
(b) The
board of administration shall engage the services |
| 204 |
of a
registered architect and knowledgeable construction |
| 205 |
specialists
to prepare any necessary plans and specifications |
| 206 |
and
shall receive and approve bids for reconstruction, shall |
| 207 |
execute
all necessary contracts for restoration, and shall |
| 208 |
arrange
for disbursement of construction funds, the approval of |
| 209 |
work,
and all other matters pertaining to the repairs and |
| 210 |
reconstruction
required. |
| 211 |
(c) At
any time during reconstruction and repair, or if |
| 212 |
the
proceeds of the hazard insurance policy maintained by the |
| 213 |
association
pursuant to paragraph (11)(b) are insufficient to |
| 214 |
pay
the estimated costs of reconstruction, assessments shall be |
| 215 |
made
against all unit owners according to their share of the |
| 216 |
common
elements and expenses as set forth in the declaration of |
| 217 |
condominium. |
| 218 |
(d) Assessments
shall be made against unit owners for |
| 219 |
damage
to their units according to the cost of reconstruction or |
| 220 |
repair
of their respective units. The assessments shall be |
| 221 |
levied
and collected as all other assessments are provided for |
| 222 |
in
this chapter. |
| 223 |
(16) GUEST
DISABLED PARKING SPACES.--Where guest disabled |
| 224 |
parking
is provided, the guest disabled parking spaces shall be |
| 225 |
configured
and signed pursuant to s. 553.5041. The association |
| 226 |
may
increase the number of guest disabled parking spaces, if |
| 227 |
needed.
Residents with disabilities shall not park in a disabled |
| 228 |
guest
space unless their assigned parking space is in use |
| 229 |
illegally.
Resident disabled parking shall be assigned by the |
| 230 |
board
of directors from the spaces made available by the |
| 231 |
association
pursuant to state and federal fair housing law. When |
| 232 |
a
resident has two vehicles, one equipped with a lift, the |
| 233 |
association
shall assign a second space that satisfies the needs |
| 234 |
of the
vehicle and lift operation if additional parking space is |
| 235 |
available
and unassigned. |
| 236 |
Section
3. Paragraphs (a), (b), (c), (d), (f), and (g) of |
| 237 |
subsection (2) of section
718.112, Florida Statutes, are amended |
| 238 |
to read: |
| 239 |
718.112 Bylaws.-- |
| 240 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
| 241 |
following and, if they do
not do so, shall be deemed to include |
| 242 |
the following: |
| 243 |
(a) Administration.-- |
| 244 |
1. The
form of administration of the association shall be |
| 245 |
described indicating the
title of the officers and board of |
| 246 |
administration and
specifying the powers, duties, manner of |
| 247 |
selection and removal,
and compensation, if any, of officers and |
| 248 |
boards. In the absence of
such a provision, or determination by |
| 249 |
the
board or membership, the board of administration shall be |
| 250 |
composed of five members,
except in the case of a condominium |
| 251 |
which has five or fewer
units, in which case in a not-for-profit |
| 252 |
corporation the board
shall consist of not fewer than three |
| 253 |
members. In the absence
of provisions to the contrary in the |
| 254 |
bylaws, the board of
administration shall have a president, a |
| 255 |
secretary, and a
treasurer, who shall perform the duties of such |
| 256 |
officers customarily
performed by officers of corporations. |
| 257 |
Unless prohibited in the
bylaws, the board of administration may |
| 258 |
appoint other officers
and grant them the duties it deems |
| 259 |
appropriate. Unless
otherwise provided in the bylaws, the |
| 260 |
officers shall serve
without compensation and at the pleasure of |
| 261 |
the board of
administration. Unless otherwise provided in the |
| 262 |
bylaws, the members of
the board shall serve without |
| 263 |
compensation. |
| 264 |
2. When
a unit owner files a written inquiry by certified |
| 265 |
mail with the board of
administration, the board shall respond |
| 266 |
in writing by
certified mail, return receipt requested, to the |
| 267 |
unit owner within 30 days
of receipt of the inquiry. The board's |
| 268 |
response shall either
give a substantive response to the |
| 269 |
inquirer, notify the
inquirer that a legal opinion has been |
| 270 |
requested, or notify the
inquirer that advice has been requested |
| 271 |
from the division. If the
board requests advice from the |
| 272 |
division, the board
shall, within 10 days of its receipt of the |
| 273 |
advice, provide in
writing a substantive response to the |
| 274 |
inquirer. If a legal
opinion is requested, the board shall, |
| 275 |
within 60 days after the
receipt of the inquiry, provide in |
| 276 |
writing a substantive
response to the inquiry. The failure to |
| 277 |
provide a substantive
response to the inquiry as provided herein |
| 278 |
precludes the board from
recovering attorney's fees and costs in |
| 279 |
any subsequent
litigation, administrative proceeding, or |
| 280 |
arbitration arising out
of the inquiry. The association may |
| 281 |
through
its board of administration adopt reasonable rules and |
| 282 |
regulations
regarding the frequency and manner of responding to |
| 283 |
unit
owner inquiries, one of which may be that the association |
| 284 |
is
only obligated to respond to one written inquiry per unit in |
| 285 |
any
given 30-day period. In such a case, any additional inquiry |
| 286 |
or
inquiries must be responded to in the subsequent 30-day |
| 287 |
period,
or periods, as applicable. |
| 288 |
(b) Quorum;
voting requirements; proxies.-- |
| 289 |
1. Unless
a lower number is provided in the bylaws, the |
| 290 |
percentage of voting
interests required to constitute a quorum |
| 291 |
at a meeting of the
members shall be a majority of the voting |
| 292 |
interests. Unless
otherwise provided in this chapter or in the |
| 293 |
declaration, articles of
incorporation, or bylaws, and except as |
| 294 |
provided in subparagraph
(d)3., decisions shall be made by |
| 295 |
owners of a majority of
the voting interests represented at a |
| 296 |
meeting at which a quorum
is present. |
| 297 |
2. Except
as specifically otherwise provided herein, after |
| 298 |
January 1, 1992, unit
owners may not vote by general proxy, but |
| 299 |
may vote by limited
proxies substantially conforming to a |
| 300 |
limited proxy form
adopted by the division. Limited proxies and |
| 301 |
general proxies may be
used to establish a quorum. Limited |
| 302 |
proxies shall be used for
votes taken to waive or reduce |
| 303 |
reserves in accordance
with subparagraph (f)2.; for votes taken |
| 304 |
to waive the financial
reporting requirements of s. 718.111(13); |
| 305 |
for votes taken to amend
the declaration pursuant to s. 718.110; |
| 306 |
for votes taken to amend
the articles of incorporation or bylaws |
| 307 |
pursuant to this section;
and for any other matter for which |
| 308 |
this chapter requires or
permits a vote of the unit owners. |
| 309 |
Except
as provided in paragraph (d), after January 1, 1992, No |
| 310 |
proxy, limited or
general, shall be used in the election of |
| 311 |
board members. General
proxies may be used for other matters for |
| 312 |
which limited proxies are
not required, and may also be used in |
| 313 |
voting for nonsubstantive
changes to items for which a limited |
| 314 |
proxy is required and
given. Notwithstanding the provisions of |
| 315 |
this subparagraph, unit
owners may vote in person at unit owner |
| 316 |
meetings. Nothing
contained herein shall limit the use of |
| 317 |
general proxies or
require the use of limited proxies for any |
| 318 |
agenda item or election
at any meeting of a timeshare |
| 319 |
condominium association. |
| 320 |
3. Any
proxy given shall be effective only for the |
| 321 |
specific meeting for
which originally given and any lawfully |
| 322 |
adjourned meetings
thereof. In no event shall any proxy be valid |
| 323 |
for a period longer than
90 days after the date of the first |
| 324 |
meeting for which it was
given. Every proxy is revocable at any |
| 325 |
time at the pleasure of
the unit owner executing it. |
| 326 |
4. A
member of the board of administration or a committee |
| 327 |
may submit in writing his
or her agreement or disagreement with |
| 328 |
any action taken at a
meeting that the member did not attend. |
| 329 |
This agreement or
disagreement may not be used as a vote for or |
| 330 |
against the action taken
and may not be used for the purposes of |
| 331 |
creating a quorum. |
| 332 |
5. When
any of the board or committee members meet by |
| 333 |
telephone conference,
those board or committee members attending |
| 334 |
by telephone conference
may be counted toward obtaining a quorum |
| 335 |
and may vote by
telephone. A telephone speaker must be used so |
| 336 |
that the conversation of
those board or committee members |
| 337 |
attending by telephone
may be heard by the board or committee |
| 338 |
members attending in
person as well as by any unit owners |
| 339 |
present at a meeting. |
| 340 |
(c) Board
of administration meetings.--Meetings of the |
| 341 |
board of administration
at which a quorum of the members is |
| 342 |
present shall be open to
all unit owners. No action shall be |
| 343 |
taken
or resolution made without an open meeting of the board of |
| 344 |
administration.
The board of administration shall address agenda |
| 345 |
items
proposed by a petition of 20 percent of the unit owners. |
| 346 |
Any unit owner may tape
record or videotape meetings of the |
| 347 |
board of administration.
The right to attend such meetings |
| 348 |
includes the right to
speak at such meetings with reference to |
| 349 |
all designated agenda
items. The division shall adopt reasonable |
| 350 |
rules governing the tape
recording and videotaping of the |
| 351 |
meeting. The association
may adopt written reasonable rules |
| 352 |
governing the frequency,
duration, and manner of unit owner |
| 353 |
statements. Adequate
notice of all meetings, which notice shall |
| 354 |
specifically incorporate
an identification of agenda items, |
| 355 |
shall be posted
conspicuously on the condominium property at |
| 356 |
least 48 continuous hours
preceding the meeting except in an |
| 357 |
emergency. Any item not
included on the notice may be taken up |
| 358 |
on an emergency basis by
at least a majority plus one of the |
| 359 |
members of the board or
by a petition of 20 percent of the unit |
| 360 |
owners.
Such emergency action shall be noticed and ratified at |
| 361 |
the next regular meeting
of the board. However, written notice |
| 362 |
of any meeting at which
nonemergency special assessments, or at |
| 363 |
which amendment to rules
regarding unit use, will be considered |
| 364 |
shall be mailed,
delivered, or electronically transmitted to the |
| 365 |
unit owners and posted
conspicuously on the condominium property |
| 366 |
not less than 14 days
prior to the meeting. Evidence of |
| 367 |
compliance with this
14-day notice shall be made by an affidavit |
| 368 |
executed by the person
providing the notice and filed among the |
| 369 |
official records of the
association. Upon notice to the unit |
| 370 |
owners, the board shall
by duly adopted rule designate a |
| 371 |
specific location on the
condominium property or association |
| 372 |
property upon which all
notices of board meetings shall be |
| 373 |
posted. If there is no
condominium property or association |
| 374 |
property upon which
notices can be posted, notices of board |
| 375 |
meetings shall be mailed,
delivered, or electronically |
| 376 |
transmitted at least 14
days before the meeting to the owner of |
| 377 |
each unit. In lieu of or
in addition to the physical posting of |
| 378 |
notice of any meeting of
the board of administration on the |
| 379 |
condominium property, the
association may, by reasonable rule, |
| 380 |
adopt a procedure for
conspicuously posting and repeatedly |
| 381 |
broadcasting the notice
and the agenda on a closed-circuit cable |
| 382 |
television system serving
the condominium association. However, |
| 383 |
if broadcast notice is
used in lieu of a notice posted |
| 384 |
physically on the
condominium property, the notice and agenda |
| 385 |
must be broadcast at
least four times every broadcast hour of |
| 386 |
each day that a posted
notice is otherwise required under this |
| 387 |
section. When broadcast
notice is provided, the notice and |
| 388 |
agenda must be broadcast
in a manner and for a sufficient |
| 389 |
continuous length of time
so as to allow an average reader to |
| 390 |
observe the notice and
read and comprehend the entire content of |
| 391 |
the notice and the
agenda. Notice of any meeting in which |
| 392 |
regular or
special assessments against unit owners are to be |
| 393 |
considered for any reason
shall specifically contain a statement |
| 394 |
that assessments will be
considered and the nature, cost, and |
| 395 |
breakdown
of any such assessments. Meetings of a committee to |
| 396 |
take final action on
behalf of the board or make recommendations |
| 397 |
to the board regarding
the association budget are subject to the |
| 398 |
provisions of this
paragraph. Meetings of a committee that does |
| 399 |
not take final action on
behalf of the board or make |
| 400 |
recommendations to the
board regarding the association budget |
| 401 |
are subject to the
provisions of this section, unless those |
| 402 |
meetings are exempted
from this section by the bylaws of the |
| 403 |
association.
Notwithstanding any other law, the requirement that |
| 404 |
board meetings and
committee meetings be open to the unit owners |
| 405 |
is inapplicable to
meetings between the board or a committee and |
| 406 |
the association's
attorney, with respect to proposed or pending |
| 407 |
litigation, when the
meeting is held for the purpose of seeking |
| 408 |
or rendering legal
advice. |
| 409 |
(d) Unit
owner meetings.-- |
| 410 |
1. There
shall be an annual meeting of the unit owners. |
| 411 |
Unless the bylaws provide
otherwise, a vacancy on the board |
| 412 |
caused by the expiration
of a director's term shall be filled by |
| 413 |
electing a new board
member, and the election shall be by secret |
| 414 |
ballot; however, if the
number of vacancies equals or exceeds |
| 415 |
the number of candidates,
no election is required. If there is |
| 416 |
no provision in the
bylaws for terms of the members of the |
| 417 |
board, the terms of all
members of the board shall expire upon |
| 418 |
the election of their
successors at the annual meeting. A unit |
| 419 |
owner
may not serve on the board as a director for more than two |
| 420 |
terms
or longer than 4 years. A member may not serve as an |
| 421 |
officer
of the corporation for more that one term. Co-owners of a |
| 422 |
unit
may not serve as members of the board of administration |
| 423 |
during
the same fiscal year. Any unit owner desiring to be a |
| 424 |
candidate for board
membership shall comply with subparagraph 3. |
| 425 |
A person who has been
convicted of any felony by any court of |
| 426 |
record in the United
States and who has not had his or her right |
| 427 |
to vote restored pursuant
to law in the jurisdiction of his or |
| 428 |
her residence is not
eligible for board membership. The validity |
| 429 |
of an action by the board
is not affected if it is later |
| 430 |
determined that a member
of the board is ineligible for board |
| 431 |
membership due to having
been convicted of a felony. |
| 432 |
2. The
bylaws shall provide the method of calling meetings |
| 433 |
of unit owners, including
annual meetings. Written notice, which |
| 434 |
notice must include an
agenda, shall be mailed, hand delivered, |
| 435 |
or electronically
transmitted to each unit owner at least 14 |
| 436 |
days prior to the annual
meeting and shall be posted in a |
| 437 |
conspicuous place on the
condominium property at least 14 |
| 438 |
continuous days preceding
the annual meeting. Upon notice to the |
| 439 |
unit owners, the board
shall by duly adopted rule designate a |
| 440 |
specific location on the
condominium property or association |
| 441 |
property upon which all
notices of unit owner meetings shall be |
| 442 |
posted; however, if there
is no condominium property or |
| 443 |
association property upon
which notices can be posted, this |
| 444 |
requirement does not
apply. In lieu of or in addition to the |
| 445 |
physical posting of
notice of any meeting of the unit owners on |
| 446 |
the condominium property,
the association may, by reasonable |
| 447 |
rule, adopt a procedure
for conspicuously posting and repeatedly |
| 448 |
broadcasting the notice
and the agenda on a closed-circuit cable |
| 449 |
television system serving
the condominium association. However, |
| 450 |
if broadcast notice is
used in lieu of a notice posted |
| 451 |
physically on the
condominium property, the notice and agenda |
| 452 |
must be broadcast at
least four times every broadcast hour of |
| 453 |
each day that a posted
notice is otherwise required under this |
| 454 |
section. When broadcast
notice is provided, the notice and |
| 455 |
agenda must be broadcast
in a manner and for a sufficient |
| 456 |
continuous length of time
so as to allow an average reader to |
| 457 |
observe the notice and
read and comprehend the entire content of |
| 458 |
the notice and the
agenda. Unless a unit owner waives in writing |
| 459 |
the right to receive
notice of the annual meeting, such notice |
| 460 |
shall be hand delivered,
mailed, or electronically transmitted |
| 461 |
to each unit owner.
Notice for meetings and notice for all other |
| 462 |
purposes shall be mailed
to each unit owner at the address last |
| 463 |
furnished to the
association by the unit owner, or hand |
| 464 |
delivered to each unit
owner. However, if a unit is owned by |
| 465 |
more than one person, the
association shall provide notice, for |
| 466 |
meetings and all other
purposes, to that one address which the |
| 467 |
developer initially
identifies for that purpose and thereafter |
| 468 |
as one or more of the
owners of the unit shall so advise the |
| 469 |
association in writing,
or if no address is given or the owners |
| 470 |
of the unit do not agree,
to the address provided on the deed of |
| 471 |
record. An officer of the
association, or the manager or other |
| 472 |
person providing the
first notice of the association meeting, |
| 473 |
and
the second notice as set forth in subparagraph 3., shall |
| 474 |
provide an affidavit or
United States Postal Service certificate |
| 475 |
of mailing, to be
included in the official records of the |
| 476 |
association affirming
that the first and second notices were |
| 477 |
notice
was mailed or hand delivered, in accordance with this |
| 478 |
provision. |
| 479 |
3. The
members of the board shall be elected by written |
| 480 |
ballot or voting machine.
Proxies shall in no event be used in |
| 481 |
electing the board,
either in general elections or elections to |
| 482 |
fill vacancies caused by
recall, resignation, or otherwise, |
| 483 |
unless otherwise provided
in this chapter. Not less than 60 days |
| 484 |
before a scheduled
election, the association or its |
| 485 |
representative
shall mail, deliver, or electronically transmit, |
| 486 |
whether by separate
association mailing or included in another |
| 487 |
association mailing,
delivery, or transmission, including |
| 488 |
regularly published
newsletters, to each unit owner entitled to |
| 489 |
a vote, a first notice of
the date of the election. Any unit |
| 490 |
owner or other eligible
person desiring to be a candidate for |
| 491 |
the board must give
written notice to the association or its |
| 492 |
representative
not less than 40 days before a scheduled |
| 493 |
election. Together with
the written notice and agenda as set |
| 494 |
forth in subparagraph 2.,
the association or its representative |
| 495 |
shall mail, deliver, or
electronically transmit a second notice |
| 496 |
of the election to all
unit owners entitled to vote therein, |
| 497 |
together with a ballot
which shall list all candidates. Upon |
| 498 |
request of a candidate,
the association or its representative |
| 499 |
shall include an
information sheet, no larger than 81/2 inches |
| 500 |
by 11 inches, which must
be furnished by the candidate not less |
| 501 |
than 35 days before the
election, to be included with the |
| 502 |
mailing, delivery, or
transmission of the ballot, with the costs |
| 503 |
of mailing, delivery, or
electronic transmission and copying to |
| 504 |
be borne by the
association. The association is not liable for |
| 505 |
the contents of the
information sheets prepared by the |
| 506 |
candidates. In
order to reduce costs, the association may print |
| 507 |
or
duplicate the information sheets on both sides of the paper. |
| 508 |
The division shall by
rule establish voting procedures |
| 509 |
consistent with the
provisions contained herein, including rules |
| 510 |
establishing procedures
for giving notice by electronic |
| 511 |
transmission and rules
providing for the secrecy of ballots. |
| 512 |
Elections shall be
decided by a plurality of those ballots cast. |
| 513 |
There shall be no quorum
requirement; however, at least 20 |
| 514 |
percent of the eligible
voters must cast a ballot in order to |
| 515 |
have a valid election of
members of the board. No unit owner |
| 516 |
shall permit any other
person to vote his or her ballot, and any |
| 517 |
such ballots improperly
cast shall be deemed invalid, provided |
| 518 |
any unit owner who
violates this provision may be fined by the |
| 519 |
association in accordance
with s. 718.303. A unit owner who |
| 520 |
needs assistance in
casting the ballot for the reasons stated in |
| 521 |
s. 101.051 may obtain
assistance in casting the ballot. The |
| 522 |
regular election shall
occur on the date of the annual meeting. |
| 523 |
The provisions of this
subparagraph shall not apply to timeshare |
| 524 |
condominium associations.
Notwithstanding the provisions of this |
| 525 |
subparagraph, an election
is not required unless more candidates |
| 526 |
file notices of intent to
run or are nominated than board |
| 527 |
vacancies exist. |
| 528 |
4. Any
approval by unit owners called for by this chapter |
| 529 |
or the applicable
declaration or bylaws, including, but not |
| 530 |
limited to, the approval
requirement in s. 718.111(8), shall be |
| 531 |
made at a duly noticed
meeting of unit owners and shall be |
| 532 |
subject to all
requirements of this chapter or the applicable |
| 533 |
condominium documents
relating to unit owner decision making, |
| 534 |
except that unit owners
may take action by written agreement, |
| 535 |
without meetings, on
matters for which action by written |
| 536 |
agreement without
meetings is expressly allowed by the |
| 537 |
applicable bylaws or
declaration or any statute that provides |
| 538 |
for such action. |
| 539 |
5. Unit
owners may waive notice of specific meetings if |
| 540 |
allowed by the applicable
bylaws or declaration or any statute. |
| 541 |
If authorized by the
bylaws, notice of meetings of the board of |
| 542 |
administration, unit
owner meetings, except unit owner meetings |
| 543 |
called to recall board
members under paragraph (j), and |
| 544 |
committee meetings may be
given by electronic transmission to |
| 545 |
unit owners who consent
to receive notice by electronic |
| 546 |
transmission. |
| 547 |
6. Unit
owners shall have the right to participate in |
| 548 |
meetings of unit owners
with reference to all designated agenda |
| 549 |
items. However, the
association may adopt reasonable rules |
| 550 |
governing the frequency,
duration, and manner of unit owner |
| 551 |
participation. |
| 552 |
7. Any
unit owner may tape record or videotape a meeting |
| 553 |
of the unit owners
subject to reasonable rules adopted by the |
| 554 |
division. |
| 555 |
8. Unless
otherwise provided in the bylaws, any vacancy |
| 556 |
occurring on the board
before the expiration of a term may be |
| 557 |
filled by the affirmative
vote of the majority of the remaining |
| 558 |
directors, even if the
remaining directors constitute less than |
| 559 |
a quorum, or by the sole
remaining director. In the alternative, |
| 560 |
a board may hold an
election to fill the vacancy, in which case |
| 561 |
the election procedures
must conform to the requirements of |
| 562 |
subparagraph 3. unless
the association has opted out of the |
| 563 |
statutory
election process, in which case the bylaws of the |
| 564 |
association
control. Unless otherwise provided in the bylaws, a |
| 565 |
board member appointed or
elected under this section shall fill |
| 566 |
the vacancy for the
unexpired term of the seat being filled. |
| 567 |
Filling vacancies created
by recall is governed by paragraph (j) |
| 568 |
and rules adopted by the
division.
|
| 569 |
|
|
570
|
Notwithstanding
subparagraphs (b)2. and (d)3., an association
|
|
571
|
may,
by the affirmative vote of a majority of the total voting
|
|
572
|
interests,
provide for different voting and election procedures
|
|
573
|
in its
bylaws, which vote may be by a proxy specifically
|
|
574
|
delineating
the different voting and election procedures. The
|
|
575
|
different
voting and election procedures may provide for
|
|
576
|
elections
to be conducted by limited or general proxy.
|
|
577
|
9. Unit
owners have the right to have items placed on the
|
| 578 |
agenda
of the annual meeting and to be voted upon if a written |
| 579 |
request
is made to the board of administration by 20 percent or |
| 580 |
more
of all voting interests at least 90 days before the date of |
| 581 |
the
annual meeting. |
| 582 |
(f) Annual
budget.-- |
| 583 |
1. The
proposed annual budget of common expenses shall be |
| 584 |
detailed and shall show
the amounts budgeted by accounts and |
| 585 |
expense classifications,
including, if applicable, but not |
| 586 |
limited to, those
expenses listed in s. 718.504(21). A |
| 587 |
multicondominium
association shall adopt a separate budget of |
| 588 |
common expenses for each
condominium the association operates |
| 589 |
and shall adopt a
separate budget of common expenses for the |
| 590 |
association. In addition,
if the association maintains limited |
| 591 |
common elements with the
cost to be shared only by those |
| 592 |
entitled to use the
limited common elements as provided for in |
| 593 |
s. 718.113(1), the budget
or a schedule attached thereto shall |
| 594 |
show amounts budgeted
therefor. If, after turnover of control of |
| 595 |
the association to the
unit owners, any of the expenses listed |
| 596 |
in s. 718.504(21) are not
applicable, they need not be listed. |
| 597 |
2. In
addition to annual operating expenses, the budget |
| 598 |
shall include reserve
accounts for capital expenditures and |
| 599 |
deferred maintenance.
These accounts shall include, but are not |
| 600 |
limited to, roof
replacement, building painting, and pavement |
| 601 |
resurfacing, regardless
of the amount of deferred maintenance |
| 602 |
expense or replacement
cost, and for any other item for which |
| 603 |
the deferred maintenance
expense or replacement cost exceeds |
| 604 |
$10,000. The amount to be
reserved shall be computed by means of |
| 605 |
a formula which is based
upon estimated remaining useful life |
| 606 |
and estimated replacement
cost or deferred maintenance expense |
| 607 |
of each reserve item. The
association may adjust replacement |
| 608 |
reserve assessments
annually to take into account any changes in |
| 609 |
estimates or extension of
the useful life of a reserve item |
| 610 |
caused by deferred
maintenance. This subsection does not apply |
| 611 |
to an adopted budget in
which the members of an association have |
| 612 |
determined, by a majority
vote at a duly called meeting of the |
| 613 |
association, to provide
no reserves or less reserves than |
| 614 |
required by this
subsection. However, prior to turnover of |
| 615 |
control of an association
by a developer to unit owners other |
| 616 |
than a developer pursuant
to s. 718.301, the developer may vote |
| 617 |
to waive the reserves or
reduce the funding of reserves for the |
| 618 |
first 2 fiscal years of
the association's operation, beginning |
| 619 |
with the fiscal year in
which the initial declaration is |
| 620 |
recorded, after which
time reserves may be waived or reduced |
| 621 |
only upon the vote of a
majority of all nondeveloper voting |
| 622 |
interests voting in
person or by limited proxy at a duly called |
| 623 |
meeting of the
association. If a meeting of the unit owners has |
| 624 |
been called to determine
whether to waive or reduce the funding |
| 625 |
of reserves, and no such
result is achieved or a quorum is not |
| 626 |
attained, the reserves as
included in the budget shall go into |
| 627 |
effect. After the
turnover, the developer may vote its voting |
| 628 |
interest to waive or
reduce the funding of reserves. |
| 629 |
3. Reserve
funds and any interest accruing thereon shall |
| 630 |
remain in the reserve
account or accounts, and shall be used |
| 631 |
only for authorized
reserve expenditures unless their use for |
| 632 |
other purposes is
approved in advance by a majority vote at a |
| 633 |
duly called meeting of
the association. Prior to turnover of |
| 634 |
control of an association
by a developer to unit owners other |
| 635 |
than the developer
pursuant to s. 718.301, the developer- |
| 636 |
controlled association
shall not vote to use reserves for |
| 637 |
purposes other than that
for which they were intended without |
| 638 |
the approval of a
majority of all nondeveloper voting interests, |
| 639 |
voting in person or by
limited proxy at a duly called meeting of |
| 640 |
the association. |
| 641 |
4. The
only voting interests which are eligible to vote on |
| 642 |
questions that involve
waiving or reducing the funding of |
| 643 |
reserves, or using
existing reserve funds for purposes other |
| 644 |
than purposes for which
the reserves were intended, are the |
| 645 |
voting interests of the
units subject to assessment to fund the |
| 646 |
reserves in question. |
| 647 |
5. A
vote to provide for no reserves or percentage of |
| 648 |
reserves
shall be made at the annual meeting of the unit owners |
| 649 |
called
under paragraph (d). The division shall adopt the form |
| 650 |
for
the ballot for no reserves or percentage of reserves. |
| 651 |
6. Notwithstanding
the provisions of subparagraph 3., the |
| 652 |
association
after turnover of control of the association may, in |
| 653 |
case
of a catastrophic event, use reserve funds for nonscheduled |
| 654 |
purposes
to mitigate further damage to units or common elements |
| 655 |
or to
make the condominium accessible for repairs. |
| 656 |
(g) Assessments.--The
manner of collecting from the unit |
| 657 |
owners their shares of
the common expenses shall be stated in |
| 658 |
the bylaws. Assessments
shall be made against units on a |
| 659 |
quarter-annual,
or more frequent, basis not less
frequently than |
| 660 |
quarterly
in an amount which is not less than that required to |
| 661 |
provide funds in advance
for payment of all of the anticipated |
| 662 |
current operating
expenses and for all of the unpaid operating |
| 663 |
expenses previously
incurred. Nothing in this paragraph shall |
| 664 |
preclude the right of an
association to accelerate assessments |
| 665 |
of an owner delinquent in
payment of common expenses against |
| 666 |
whom
a lien has been filed. Accelerated assessments shall be due |
| 667 |
and payable after
on the date the claim of lien is
filed. Such |
| 668 |
accelerated assessments
shall include the amounts due for the |
| 669 |
remainder of the budget
year in which the claim of lien was |
| 670 |
filed. |
| 671 |
Section
4. Subsection (5) of section 718.113, Florida |
| 672 |
Statutes, is amended, and
subsection (6) is added to that |
| 673 |
section, to read: |
| 674 |
718.113 Maintenance;
limitation upon improvement; display |
| 675 |
of flag; hurricane
shutters.-- |
| 676 |
(5) Each
board of administration shall adopt or,
yearly at |
| 677 |
the
annual meeting, restate hurricane shutter specifications
for |
| 678 |
each building within each
condominium operated by the |
| 679 |
association which shall
include color, style, and other factors |
| 680 |
deemed relevant by the
board. All specifications adopted by the |
| 681 |
board shall comply with
the applicable building code. |
| 682 |
Notwithstanding any
provision to the contrary in the condominium |
| 683 |
documents, if approval is
required by the documents, a board |
| 684 |
shall not refuse to
approve the installation or replacement of |
| 685 |
hurricane shutters
conforming to the specifications adopted by |
| 686 |
the board. The board may,
subject to the provisions of s. |
| 687 |
718.3026, and the
approval of a majority of voting interests of |
| 688 |
the condominium, install
hurricane shutters or hurricane |
| 689 |
protection
that complies with the applicable building code and |
| 690 |
may maintain, repair, or
replace such approved hurricane |
| 691 |
shutters, whether on or
within common elements, limited common |
| 692 |
elements, units, or
association property. However, where |
| 693 |
laminated glass or window
film architecturally designed to |
| 694 |
function as hurricane
protection which complies with the |
| 695 |
applicable building code
has been installed, the board may not |
| 696 |
install hurricane
shutters. The board may operate shutters |
| 697 |
installed pursuant to
this subsection without permission of the |
| 698 |
unit owners only where
such operation is necessary to preserve |
| 699 |
and protect the
condominium property and association property. |
| 700 |
The installation,
replacement, operation, repair, and |
| 701 |
maintenance of such
shutters in accordance with the procedures |
| 702 |
set forth herein shall
not be deemed a material alteration to |
| 703 |
the common elements or
association property within the meaning |
| 704 |
of this section. |
| 705 |
(6) Every
5 years the board of administration shall have |
| 706 |
the
condominium buildings inspected by a professional engineer |
| 707 |
or
professional architect registered in the state for the |
| 708 |
purpose
of determining that the building is structurally and |
| 709 |
electrically
safe. The engineer or architect shall render a |
| 710 |
report
that shall indicate the manner and type of inspection |
| 711 |
forming
the basis for the report and description of any matters |
| 712 |
identified
as requiring remedial action. The report shall become |
| 713 |
an
official record of the association to be provided to the |
| 714 |
members
upon request pursuant to section 718.111(12). |
| 715 |
Section
5. Paragraph (d) of subsection (1) of section |
| 716 |
718.115, Florida
Statutes, is amended to read: |
| 717 |
718.115 Common
expenses and common surplus.-- |
| 718 |
(1) |
| 719 |
(d) If
so provided in the declaration, the cost of a |
| 720 |
master antenna television
system or duly franchised cable |
| 721 |
television service
obtained pursuant to a bulk contract for |
| 722 |
basic
service shall be deemed a common expense. If the |
| 723 |
declaration does not
provide for the cost of a master antenna |
| 724 |
television system or duly
franchised basic cable television |
| 725 |
service obtained under a basic
bulk contract as a common |
| 726 |
expense, the board may
enter into such a contract, and the cost |
| 727 |
of the service will be a
common expense but allocated on a per- |
| 728 |
unit basis rather than a
percentage basis if the declaration |
| 729 |
provides for other than
an equal sharing of common expenses, and |
| 730 |
any contract entered into
before July 1, 1998, in which the cost |
| 731 |
of the service is not
equally divided among all unit owners, may |
| 732 |
be changed by vote of a
majority of the voting interests present |
| 733 |
at a regular or special
meeting of the association, to allocate |
| 734 |
the cost equally among
all units. The contract shall be for a |
| 735 |
term of not less than 2
years. |
| 736 |
1. Any
contract made by the board after the effective date |
| 737 |
hereof for a community
antenna system or duly franchised basic |
| 738 |
cable television service
may be canceled by a majority of the |
| 739 |
voting interests present
at the next regular or special meeting |
| 740 |
of the association. Any
member may make a motion to cancel said |
| 741 |
contract, but if no
motion is made or if such motion fails to |
| 742 |
obtain the required
majority at the next regular or special |
| 743 |
meeting, whichever is
sooner, following the making of the |
| 744 |
contract, then such
contract shall be deemed ratified for the |
| 745 |
term therein expressed. |
| 746 |
2. Any
such contract shall provide, and shall be deemed to |
| 747 |
provide if not expressly
set forth, that any hearing-impaired or |
| 748 |
legally blind unit owner
who does not occupy the unit with a |
| 749 |
non-hearing-impaired or
sighted person, or any unit owner |
| 750 |
receiving supplemental
security income under Title XVI of the |
| 751 |
Social Security Act or
food stamps as administered by the |
| 752 |
Department of Children
and Family Services pursuant to s. |
| 753 |
414.31, may discontinue
the service without incurring disconnect |
| 754 |
fees, penalties, or
subsequent service charges, and, as to such |
| 755 |
units, the owners shall
not be required to pay any common |
| 756 |
expenses charge related
to such service. If less than all |
| 757 |
members of an association
share the expenses of cable |
| 758 |
television, the expense
shall be shared equally by all |
| 759 |
participating unit
owners. The association may use the |
| 760 |
provisions of s. 718.116
to enforce payment of the shares of |
| 761 |
such costs by the unit
owners receiving cable television. |
| 762 |
Section
6. Subsections (1) and (3), paragraph (a) of |
| 763 |
subsection (5), and
subsection (10) of section 718.116, Florida |
| 764 |
Statutes, are amended to
read: |
| 765 |
718.116 Assessments;
liability; lien and priority; |
| 766 |
interest; collection.-- |
| 767 |
(1)(a) A
unit owner, regardless of how his or her title |
| 768 |
has been acquired,
including by purchase at a foreclosure sale |
| 769 |
or by deed in lieu of
foreclosure, is liable for all assessments |
| 770 |
which come due while he
or she is the unit owner. Additionally, |
| 771 |
a unit owner is jointly
and severally liable with the previous |
| 772 |
owner for all unpaid
assessments that came due up to the time of |
| 773 |
transfer of title. This
liability is without prejudice to any |
| 774 |
right the owner may have
to recover from the previous owner the |
| 775 |
amounts paid by the
owner. |
| 776 |
(b) The
liability of a first mortgagee or its successor or |
| 777 |
assignees
who acquire title to a unit by foreclosure or by deed |
| 778 |
in
lieu of foreclosure for the unpaid assessments that became |
| 779 |
due
prior to the mortgagee's acquisition of title is limited to |
| 780 |
the
lesser of: |
| 781 |
1. The
unit's unpaid common expenses and regular periodic |
| 782 |
assessments
which accrued or came due during the 6 months |
| 783 |
immediately
preceding the acquisition of title and for which |
| 784 |
payment
in full has not been received by the association; or |
| 785 |
2. One
percent of the original mortgage debt. The |
| 786 |
provisions
of this paragraph apply only if the first mortgagee |
| 787 |
joined
the association as a defendant in the foreclosure action. |
| 788 |
Joinder
of the association is not required if, on the date the |
| 789 |
complaint
is filed, the association was dissolved or did not |
| 790 |
maintain
an office or agent for service of process at a location |
| 791 |
which
was known to or reasonably discoverable by the mortgagee. |
| 792 |
(b)(c) The
person acquiring title shall pay the amount |
| 793 |
owed to the association
within 30 days after transfer of title. |
| 794 |
Failure to pay the full
amount when due shall entitle the |
| 795 |
association to record a
claim of lien against the parcel and |
| 796 |
proceed in the same
manner as provided in this section for the |
| 797 |
collection of unpaid
assessments. |
| 798 |
(c)(d) With
respect to each timeshare unit, each owner of |
| 799 |
a timeshare estate
therein is jointly and severally liable for |
| 800 |
the payment of all
assessments and other charges levied against |
| 801 |
or with respect to that
unit pursuant to the declaration or |
| 802 |
bylaws, except to the
extent that the declaration or bylaws may |
| 803 |
provide to the contrary. |
| 804 |
(d)(e) Notwithstanding
the provisions of paragraph (b), A |
| 805 |
first mortgagee or its
successor or assignees who acquire title |
| 806 |
to a condominium unit as
a result of the foreclosure of the |
| 807 |
mortgage or by deed in
lieu of foreclosure of the mortgage shall |
| 808 |
be exempt from liability
for all unpaid assessments attributable |
| 809 |
to the parcel or
chargeable to the previous owner which came due |
| 810 |
prior to acquisition of
title if the first mortgage was recorded |
| 811 |
prior to April 1, 1992. If,
however, the first mortgage was |
| 812 |
recorded
on or after April 1, 1992, or on the date the mortgage |
| 813 |
was
recorded, the declaration included language incorporating by |
| 814 |
reference
future amendments to this chapter, the provisions of |
| 815 |
paragraph
(b) shall apply. |
| 816 |
(e)(f) The
provisions of this subsection are intended to |
| 817 |
clarify existing law, and
shall not be available in any case |
| 818 |
where the unpaid
assessments sought to be recovered by the |
| 819 |
association are secured
by a lien recorded prior to the |
| 820 |
recording of the
mortgage. Notwithstanding the provisions of |
| 821 |
chapter 48, the
association shall be a proper party to intervene |
| 822 |
in any foreclosure
proceeding to seek equitable relief. |
| 823 |
(f)(g) For
purposes of this subsection, the term |
| 824 |
"successor or
assignee" as used with respect to a first |
| 825 |
mortgagee includes only a
subsequent holder of the first |
| 826 |
mortgage. |
| 827 |
(3) Assessments
and installments on them which are not |
| 828 |
paid when due bear
interest at the rate provided in the |
| 829 |
declaration, from the due
date until paid. This rate may not |
| 830 |
exceed the rate allowed
by law, and, if no rate is provided in |
| 831 |
the declaration, interest
shall accrue at the rate of 18 percent |
| 832 |
per year. Also, if the
declaration or bylaws so provide, the |
| 833 |
association may charge an
administrative late fee in addition to |
| 834 |
such interest, in an
amount not to exceed the greater of $25 or |
| 835 |
5 percent of each
installment of the assessment for each |
| 836 |
delinquent installment
that the payment is late. Any payment |
| 837 |
received by an
association shall be applied first to any |
| 838 |
interest accrued by the
association, then to any administrative |
| 839 |
late fee, then to the
delinquent assessment, and then to any |
| 840 |
costs and reasonable
attorney's fees incurred in collection, and |
| 841 |
then
to the delinquent assessment. The foregoing shall be |
| 842 |
applicable
notwithstanding any restrictive endorsement, |
| 843 |
designation, or
instruction placed on or accompanying a payment. |
| 844 |
A late fee shall not be
subject to the provisions in chapter 687 |
| 845 |
or s. 718.303(3). |
| 846 |
(5)(a) The
association has a lien on each condominium |
| 847 |
parcel to secure the
payment of assessments. A lien may not be |
| 848 |
filed
on a condominium parcel until 30 days after the date of a |
| 849 |
notice
of intent to file a lien has been served on the owner of |
| 850 |
the
condominium parcel by certified mail or by personal service |
| 851 |
in the
manner authorized by chapter 48 and the Florida Rules of |
| 852 |
Civil
Procedure. Except as otherwise provided in subsection (1) |
| 853 |
and as set forth below,
the lien is effective from and shall |
| 854 |
relate back to the
recording of the original declaration of |
| 855 |
condominium, or, in the
case of lien on a parcel located in a |
| 856 |
phase condominium, the
last to occur of the recording of the |
| 857 |
original declaration or
amendment thereto creating the parcel. |
| 858 |
However, as to first
mortgages of record, the lien is effective |
| 859 |
from and after recording
of a claim of lien in the public |
| 860 |
records of the county in
which the condominium parcel is |
| 861 |
located. Nothing in this
subsection shall be construed to bestow |
| 862 |
upon any lien, mortgage,
or certified judgment of record on |
| 863 |
April 1, 1992, including
the lien for unpaid assessments created |
| 864 |
herein, a priority which,
by law, the lien, mortgage, or |
| 865 |
judgment did not have
before that date. |
| 866 |
|
| 867 |
After notice of contest
of lien has been recorded, the clerk of |
| 868 |
the circuit court shall
mail a copy of the recorded notice to |
| 869 |
the association by
certified mail, return receipt requested, at |
| 870 |
the address shown in the
claim of lien or most recent amendment |
| 871 |
to it and shall certify
to the service on the face of the |
| 872 |
notice. Service is
complete upon mailing. After service, the |
| 873 |
association has 90 days
in which to file an action to enforce |
| 874 |
the lien; and, if the
action is not filed within the 90-day |
| 875 |
period, the lien is void.
However, the 90-day period shall be |
| 876 |
extended for any length
of time that the association is |
| 877 |
prevented from filing its
action because of an automatic stay |
| 878 |
resulting from the filing
of a bankruptcy petition by the unit |
| 879 |
owner or by any other
person claiming an interest in the parcel. |
| 880 |
(10) The
specific purpose or purposes including
itemized |
| 881 |
expenses
of any special assessment approved in accordance with |
| 882 |
the condominium documents
shall be set forth in a written notice |
| 883 |
of such assessment sent
or delivered to each unit owner. A |
| 884 |
payment
schedule shall be provided with due regard to the |
| 885 |
financial
burden of the assessment on the unit owner. The funds |
| 886 |
collected pursuant to a
special assessment shall not be |
| 887 |
commingled
with any of the other association funds and shall be |
| 888 |
used only for the
specific purpose or purposes set forth in such |
| 889 |
notice. However, upon
completion of such specific purpose or |
| 890 |
purposes, any excess
funds will be considered common surplus, |
| 891 |
and may, at the
discretion of the board, either be returned to |
| 892 |
the unit owners or
applied as a credit toward future |
| 893 |
assessments. |
| 894 |
Section
7. Section 718.1223, Florida Statutes, is created |
| 895 |
to read: |
| 896 |
718.1223 Protection
against abuse.-- |
| 897 |
(1) In
order to protect the safety, health, and welfare of |
| 898 |
the
people of this state and to ensure protection of condominium |
| 899 |
owners,
especially the infirm, and elderly, any complaint of |
| 900 |
abuse
filed with the Division of Florida Land Sales, |
| 901 |
Condominiums,
and Mobile Homes shall immediately be investigated |
| 902 |
by the
division. Where the division then has reasonable cause to |
| 903 |
believe
that abuse has occurred against any unit owner, the |
| 904 |
division
shall institute enforcement proceedings pursuant to its |
| 905 |
powers
and duties as set forth in s. 718.501. |
| 906 |
(2) For
purposes of this section, the term "abuse" means |
| 907 |
any
willful act or threatened act by a member of the board of |
| 908 |
directors
of a condominium association or any member of a |
| 909 |
committee
or subcommittee appointed by the board of directors, |
| 910 |
any
employee, volunteer, or agent purporting to act on behalf of |
| 911 |
the
board of directors, or any officer, director, employee, or |
| 912 |
agent
of any management company acting on behalf of a |
| 913 |
condominium
association who denies or is likely to deny a |
| 914 |
condominium
unit owner or dweller any of the rights and |
| 915 |
protections
afforded to the unit owner or dweller under |
| 916 |
applicable
state and federal laws, administrative rules, and the |
| 917 |
governing
documents of the condominium association. |
| 918 |
Section
8. Section 718.1224, Florida Statutes, is created |
| 919 |
to read: |
| 920 |
718.1224 Prohibition
against SLAPP suits.-- |
| 921 |
(1) It
is the intent of the Legislature to protect the |
| 922 |
right
of condominium unit owners to exercise their rights to |
| 923 |
instruct
their representatives and petition for redress of |
| 924 |
grievances
before the various governmental entities of this |
| 925 |
state
as protected by the First Amendment to the United States |
| 926 |
Constitution
and s. 5, Art. I of the State Constitution. The |
| 927 |
Legislature
recognizes that strategic lawsuits against public |
| 928 |
participation,
or "SLAPP" suits as they are typically referred |
| 929 |
to,
have occurred when association members are sued by |
| 930 |
individuals,
business entities, or governmental entities arising |
| 931 |
out of
a condominium unit owner's appearance and presentation |
| 932 |
before
a governmental entity on matters related to the |
| 933 |
condominium
association. However, it is the public policy of |
| 934 |
this
state that governmental entities, business organizations, |
| 935 |
and
individuals not engage in SLAPP suits, because such actions |
| 936 |
are
inconsistent with the right of condominium unit owners to |
| 937 |
participate
in the state's institutions of government. |
| 938 |
Therefore,
the Legislature finds and declares that prohibiting |
| 939 |
such
lawsuits by governmental entities, business entities, and |
| 940 |
individuals
against condominium unit owners who address matters |
| 941 |
concerning
their condominium association will preserve this |
| 942 |
fundamental
state policy, preserve the constitutional rights of |
| 943 |
condominium
unit owners, and ensure the continuation of |
| 944 |
representative
government in this state. It is the intent of the |
| 945 |
Legislature
that such lawsuits be expeditiously disposed of by |
| 946 |
the
courts. As used in this subsection, the term "governmental |
| 947 |
entity" means the
state, including the executive, legislative, |
| 948 |
and
judicial branches of government, the independent |
| 949 |
establishments
of the state, counties, municipalities, |
| 950 |
districts,
authorities, boards, or commissions, or any agencies |
| 951 |
of
these branches that are subject to chapter 286. |
| 952 |
(2) No
governmental entity, business organization, or |
| 953 |
individual
in this state shall file or cause to be filed through |
| 954 |
its
employees or agents, any lawsuit, cause of action, claim, |
| 955 |
cross-claim,
or counterclaim against a condominium unit owner |
| 956 |
without
merit and solely because such condominium unit owner has |
| 957 |
exercised
the right to instruct his or her representatives of |
| 958 |
the
right to petition for redress of grievances before the |
| 959 |
various
governmental entities of this state, as protected by the |
| 960 |
First
Amendment to the United States Constitution and s. 5, Art. |
| 961 |
I of
the State Constitution. |
| 962 |
(3) A
condominium unit owner sued by a governmental |
| 963 |
entity,
business organization, or individual in violation of |
| 964 |
this
section has a right to an expeditious resolution of a claim |
| 965 |
that
the suit is in violation of this section. A condominium |
| 966 |
unit
owner may petition the court for an order dismissing the |
| 967 |
action
or granting final judgment in favor of that condominium |
| 968 |
unit owner. The
petitioner may file a motion for summary |
| 969 |
judgment,
together with supplemental affidavits, seeking a |
| 970 |
determination
that the governmental entity's, business |
| 971 |
organization's,
or individual's lawsuit has been brought in |
| 972 |
violation
of this section. The governmental entity, business |
| 973 |
organization,
or individual shall thereafter file its response |
| 974 |
and
any supplemental affidavits. As soon as practicable, the |
| 975 |
court
shall set a hearing on the petitioner's motion, which |
| 976 |
shall
be held at the earliest possible time after the filing of |
| 977 |
the
governmental entity's, business organization's, or |
| 978 |
individual's
response. The court may award the condominium unit |
| 979 |
owner
sued by the governmental entity, business organization, or |
| 980 |
individual
actual damages arising from the governmental |
| 981 |
entity's,
individual's, or business organization's violation of |
| 982 |
this
section. A court may treble the damages awarded to a |
| 983 |
prevailing
condominium unit owner and shall state the basis for |
| 984 |
the
treble damages award in its judgment. The court shall award |
| 985 |
the
prevailing party reasonable attorney's fees and costs |
| 986 |
incurred
in connection with a claim that an action was filed in |
| 987 |
violation
of this section. |
| 988 |
(4) Condominium
associations may not expend association |
| 989 |
funds
in prosecuting a SLAPP suit against a condominium unit |
| 990 |
owner. |
| 991 |
Section
9. Paragraphs (e) and (h) of subsection (4) of |
| 992 |
section 718.1255, Florida
Statutes, are amended to read: |
| 993 |
718.1255 Alternative
dispute resolution; voluntary |
| 994 |
mediation; mandatory
nonbinding arbitration; legislative |
| 995 |
findings.-- |
| 996 |
(4) MANDATORY
NONBINDING ARBITRATION AND MEDIATION OF |
| 997 |
DISPUTES.--The Division
of Florida Land Sales, Condominiums, and |
| 998 |
Mobile Homes of the
Department of Business and Professional |
| 999 |
Regulation shall employ
full-time attorneys to act as |
| 1000 |
arbitrators to conduct
the arbitration hearings provided by this |
| 1001 |
chapter. The division may
also certify attorneys who are not |
| 1002 |
employed by the division
to act as arbitrators to conduct the |
| 1003 |
arbitration hearings
provided by this section. No person may be |
| 1004 |
employed by the
department as a full-time arbitrator unless he |
| 1005 |
or she is a member in
good standing of The Florida Bar. The |
| 1006 |
department shall
promulgate rules of procedure to govern such |
| 1007 |
arbitration hearings
including mediation incident thereto. The |
| 1008 |
decision of an arbitrator
shall be final; however, such a |
| 1009 |
decision shall not be
deemed final agency action. Nothing in |
| 1010 |
this provision shall be
construed to foreclose parties from |
| 1011 |
proceeding in a trial de
novo unless the parties have agreed |
| 1012 |
that the arbitration is
binding. If such judicial proceedings |
| 1013 |
are initiated, the final
decision of the arbitrator shall be |
| 1014 |
admissible in evidence in
the trial de novo. |
| 1015 |
(e) Either
before or after the filing of the respondents' |
| 1016 |
answer to the petition,
any party may request that the |
| 1017 |
arbitrator refer the case
to mediation under this section and |
| 1018 |
any rules adopted by the
division. Upon receipt of a request for |
| 1019 |
mediation, the division
shall promptly refer the case contact |
| 1020 |
the
parties to determine if there is agreement that mediation |
| 1021 |
would
be appropriate. If all parties agree, the dispute must be |
| 1022 |
referred
to mediation. Notwithstanding a lack of an
agreement by |
| 1023 |
all
parties, The arbitrator may refer a dispute to mediation at |
| 1024 |
any time. |
| 1025 |
(h) Mediation
proceedings must generally be conducted in |
| 1026 |
accordance with the
Florida Rules of Civil Procedure, and these |
| 1027 |
proceedings are
privileged and confidential to the same extent |
| 1028 |
as court-ordered
mediation. Persons who are not parties to the |
| 1029 |
dispute are not allowed
to attend the mediation conference |
| 1030 |
without the consent of
all parties, with the exception of |
| 1031 |
counsel for the parties
and corporate representatives designated |
| 1032 |
to appear for a party. If
the mediator declares an impasse after |
| 1033 |
a mediation conference
has been held, the arbitration proceeding |
| 1034 |
terminates, unless all
parties agree in writing to continue the |
| 1035 |
arbitration proceeding,
in which case the arbitrator's decision |
| 1036 |
shall be either binding
or nonbinding, as agreed upon by the |
| 1037 |
parties; in the
arbitration proceeding, the arbitrator shall not |
| 1038 |
consider any evidence
relating to the unsuccessful mediation |
| 1039 |
except in a proceeding to
impose sanctions for failure to appear |
| 1040 |
at the mediation
conference. If the parties do not agree to |
| 1041 |
continue arbitration, the
arbitrator shall enter an order of |
| 1042 |
dismissal, and either
party may institute a suit in a court of |
| 1043 |
competent jurisdiction.
The parties may seek to recover any |
| 1044 |
costs and attorneys' fees
incurred in connection with |
| 1045 |
arbitration and
mediation proceedings under this section as part |
| 1046 |
of the costs and fees
that may be recovered by the prevailing |
| 1047 |
party in any subsequent
litigation. |
| 1048 |
Section
10. Subsection (1) of section 718.302, Florida |
| 1049 |
Statutes, is amended to
read: |
| 1050 |
718.302 Agreements
entered into by the association.-- |
| 1051 |
(1) Any
grant or reservation made by a declaration, lease, |
| 1052 |
or other document, and
any contract made by an association prior |
| 1053 |
to assumption of control
of the association by unit owners other |
| 1054 |
than the developer, that
provides for services, products, |
| 1055 |
operation, maintenance,
or management of a condominium |
| 1056 |
association or property
serving the unit owners of a condominium |
| 1057 |
shall be fair and
reasonable, and such grant, reservation, or |
| 1058 |
contract may be canceled
by unit owners other than the |
| 1059 |
developer: |
| 1060 |
(a) If
the association operates only one condominium and |
| 1061 |
the unit owners other
than the developer have assumed control of |
| 1062 |
the association, or if
unit owners other than the developer own |
| 1063 |
not less than 75 percent
of the voting interests in the |
| 1064 |
condominium, the
cancellation shall be by concurrence of the |
| 1065 |
owners of not less than
75 percent of the voting interests other |
| 1066 |
than the voting interests
owned by the developer. If a grant, |
| 1067 |
reservation, or contract
is so canceled and the unit owners |
| 1068 |
other than the developer
have not assumed control of the |
| 1069 |
association, the
association shall make a new contract or |
| 1070 |
otherwise provide for
maintenance, management, or operation in |
| 1071 |
lieu of the canceled
obligation, at the direction of the owners |
| 1072 |
of not less than a
majority of the voting interests in the |
| 1073 |
condominium other than
the voting interests owned by the |
| 1074 |
developer. |
| 1075 |
(b) If
the association operates more than one condominium |
| 1076 |
and the unit owners other
than the developer have not assumed |
| 1077 |
control of the
association, and if unit owners other than the |
| 1078 |
developer own at least 75
percent of the voting interests in a |
| 1079 |
condominium operated by
the association, any grant, reservation, |
| 1080 |
or contract for
maintenance, management, or operation of |
| 1081 |
buildings containing the
units in that condominium or of |
| 1082 |
improvements used only by
unit owners of that condominium may be |
| 1083 |
canceled by concurrence
of the owners of at least 75 percent of |
| 1084 |
the voting interests in
the condominium other than the voting |
| 1085 |
interests owned by the
developer. No grant, reservation, or |
| 1086 |
contract for maintenance,
management, or operation of |
| 1087 |
recreational areas or any
other property serving more than one |
| 1088 |
condominium, and operated
by more than one association, may be |
| 1089 |
canceled except pursuant
to paragraph (d). |
| 1090 |
(c) If
the association operates more than one condominium |
| 1091 |
and the unit owners other
than the developer have assumed |
| 1092 |
control of the
association, the cancellation shall be by |
| 1093 |
concurrence of the owners
of not less than 75 percent of the |
| 1094 |
total number of voting
interests in all condominiums operated by |
| 1095 |
the association other
than the voting interests owned by the |
| 1096 |
developer. |
| 1097 |
(d) If
the owners of units in a condominium have the right |
| 1098 |
to use property in common
with owners of units in other |
| 1099 |
condominiums and those
condominiums are operated by more than |
| 1100 |
one association, no
grant, reservation, or contract for |
| 1101 |
maintenance, management,
or operation of the property serving |
| 1102 |
more than one condominium
may be canceled until unit owners |
| 1103 |
other than the developer
have assumed control of all of the |
| 1104 |
associations operating
the condominiums that are to be served by |
| 1105 |
the recreational area or
other property, after which |
| 1106 |
cancellation may be
effected by concurrence of the owners of not |
| 1107 |
less than 75 percent of
the total number of voting interests in |
| 1108 |
those condominiums other
than voting interests owned by the |
| 1109 |
developer. |
| 1110 |
Section
11. Paragraph (a) of subsection (2) of section |
| 1111 |
718.3026, Florida
Statutes, is amended to read: |
| 1112 |
718.3026 Contracts
for products and services; in writing; |
| 1113 |
bids;
exceptions.--Associations with less than 100 units may opt |
| 1114 |
out of the provisions of
this section if two-thirds of the unit |
| 1115 |
owners vote to do so,
which opt-out may be accomplished by a |
| 1116 |
proxy specifically
setting forth the exception from this |
| 1117 |
section. |
| 1118 |
(2)(a)1. Notwithstanding
the foregoing, contracts with |
| 1119 |
employees of the
association, and contracts for attorney, |
| 1120 |
accountant, architect,
community association manager, timeshare |
| 1121 |
management firm,
engineering, and landscape architect services |
| 1122 |
are not subject to the
provisions of this section. |
| 1123 |
2. A
contract executed before January 1, 1992, and any |
| 1124 |
renewal thereof, is not
subject to the competitive bid |
| 1125 |
requirements of this
section. If a contract was awarded under |
| 1126 |
the competitive bid
procedures of this section, any renewal of |
| 1127 |
that contract is not
subject to such competitive bid |
| 1128 |
requirements if the
contract contains a provision that allows |
| 1129 |
the board to cancel the
contract on 30 days' notice. Materials, |
| 1130 |
equipment, or services
provided to a condominium under a local |
| 1131 |
government franchise
agreement by a franchise holder are not |
| 1132 |
subject to the
competitive bid requirements of this section. A |
| 1133 |
contract with a manager,
if made by a competitive bid, may be |
| 1134 |
made for up to 3 years. A
condominium whose declaration or |
| 1135 |
bylaws provides for
competitive bidding for services may operate |
| 1136 |
under the provisions of
that declaration or bylaws in lieu of |
| 1137 |
this section if those
provisions are not less stringent than the |
| 1138 |
requirements of this
section. |
| 1139 |
3. A
contract by and between a service provider and an |
| 1140 |
association
shall not be for a term in excess of 3 years and |
| 1141 |
shall
not contain an automatic renewal clause. |
| 1142 |
4. A
contract for construction or repair of the property |
| 1143 |
that
exceeds 10 percent of the total annual budget of the |
| 1144 |
association,
including reserves, must have the approval of an |
| 1145 |
attorney
hired by the association. |
| 1146 |
Section
12. Subsection (4) is added to section 718.303, |
| 1147 |
Florida Statutes, to
read: |
| 1148 |
718.303 Obligations
of owners; waiver; levy of fine |
| 1149 |
against unit by
association.-- |
| 1150 |
(4) Anyone
subject to an action under this section shall |
| 1151 |
be
notified of the violation by certified mail, return receipt |
| 1152 |
requested,
and, except in the case of imminent danger to person |
| 1153 |
or
property, shall have 30 days in which to respond in writing. |
| 1154 |
If no
response is provided and the violation continues or is |
| 1155 |
repeated,
the association may proceed under subsections (1) and |
| 1156 |
(2)
without further notice except as provided in subsection (3). |
| 1157 |
Section
13. Paragraphs (e) and (j) of subsection (1) of |
| 1158 |
section 718.501, Florida
Statutes, are amended to read: |
| 1159 |
718.501 Powers
and duties of Division of Florida Land |
| 1160 |
Sales, Condominiums, and
Mobile Homes.-- |
| 1161 |
(1) The
Division of Florida Land Sales, Condominiums, and |
| 1162 |
Mobile Homes of the
Department of Business and Professional |
| 1163 |
Regulation, referred to
as the "division" in this part, in |
| 1164 |
addition to other powers
and duties prescribed by chapter 498, |
| 1165 |
has the power to enforce
and ensure compliance with the |
| 1166 |
provisions of this
chapter and rules promulgated pursuant hereto |
| 1167 |
relating to the
development, construction, sale, lease, |
| 1168 |
ownership, operation, and
management of residential condominium |
| 1169 |
units. In performing its
duties, the division has the following |
| 1170 |
powers and duties: |
| 1171 |
(e) The
division shall is
authorized to prepare and |
| 1172 |
disseminate a prospectus
and other information to assist |
| 1173 |
prospective owners,
purchasers, lessees, and developers of |
| 1174 |
residential condominiums
in assessing the rights, privileges, |
| 1175 |
and duties pertaining
thereto. |
| 1176 |
(j) The
division shall provide training programs for |
| 1177 |
condominium association
board members and unit owners in |
| 1178 |
conjunction
with the recommendations of the ombudsman. |
| 1179 |
Section
14. Subsection (1) of section 718.5011, Florida |
| 1180 |
Statutes, is amended to
read: |
| 1181 |
718.5011 Ombudsman;
appointment; administration.-- |
| 1182 |
(1) There
is created an Office of the Condominium |
| 1183 |
Ombudsman, to be located
for administrative purposes only within |
| 1184 |
the Division of Florida
Land Sales, Condominiums, and Mobile |
| 1185 |
Homes. The
ombudsman shall exercise his or her policymaking and |
| 1186 |
other
functions authorized by this chapter independently of the |
| 1187 |
Department
of Business and Professional Regulation and without |
| 1188 |
approval
or control of the department. The department shall |
| 1189 |
render
administrative support to the office in matters |
| 1190 |
pertaining
to budget, personnel, office space, equipment, and |
| 1191 |
supplies.
All revenues collected for the office by the |
| 1192 |
department
shall be deposited in a separate fund or account from |
| 1193 |
which
the department may not use or divert the revenues. The |
| 1194 |
functions of the office
shall be funded by the Division of |
| 1195 |
Florida Land Sales,
Condominiums, and Mobile Homes Trust Fund. |
| 1196 |
The ombudsman shall be a
bureau chief of the division, and the |
| 1197 |
office shall be set
within the division in the same manner as |
| 1198 |
any other bureau is
staffed and funded. |
| 1199 |
Section
15. Section 718.5012, Florida Statutes, is amended |
| 1200 |
to read: |
| 1201 |
718.5012 Ombudsman;
powers and duties.-- |
| 1202 |
(1) The
ombudsman shall have the powers that are necessary |
| 1203 |
to carry out the duties
of his or her office, including the |
| 1204 |
following specific
powers: |
| 1205 |
(a)(1) To
have access to and use of all files and records |
| 1206 |
of the division. |
| 1207 |
(b)(2) To
employ professional and clerical staff as |
| 1208 |
necessary for the
efficient operation of the office. |
| 1209 |
(c)(3) To
prepare and issue reports and recommendations to |
| 1210 |
the Governor, the
department, the division, the Advisory
Council |
| 1211 |
on
Condominiums, the President of the Senate, and the Speaker
of |
| 1212 |
the House of
Representatives on any matter or subject within the |
| 1213 |
jurisdiction of the
division. The ombudsman shall make |
| 1214 |
recommendations he or she
deems appropriate for legislation |
| 1215 |
relative to division
procedures, rules, jurisdiction, personnel, |
| 1216 |
and functions. |
| 1217 |
(d)(4) To
act as liaison between the division, unit |
| 1218 |
owners, boards of
directors, board members, community |
| 1219 |
association managers, and
other affected parties. The ombudsman |
| 1220 |
shall develop policies
and procedures to assist unit owners, |
| 1221 |
boards of directors,
board members, community association |
| 1222 |
managers, and other
affected parties to understand their rights |
| 1223 |
and responsibilities as
set forth in this chapter and the |
| 1224 |
condominium documents
governing their respective association. |
| 1225 |
The ombudsman shall
coordinate and assist in the preparation and |
| 1226 |
adoption of educational
and reference material, and shall |
| 1227 |
endeavor to coordinate
with private or volunteer providers of |
| 1228 |
these services, so that
the availability of these resources is |
| 1229 |
made known to the largest
possible audience. |
| 1230 |
(e)(5) To
monitor and review procedures and disputes |
| 1231 |
concerning condominium
elections or meetings, including, but not |
| 1232 |
limited to, recommending
that the division pursue enforcement |
| 1233 |
action in any manner
where there is reasonable cause to believe |
| 1234 |
that election misconduct
has occurred. The division shall |
| 1235 |
process
the ombudsman's recommendations and petitions in an |
| 1236 |
expedited
manner and shall defer to his or her findings. |
| 1237 |
(f)(6) To
make recommendations to the division for changes |
| 1238 |
in rules and procedures
for the filing, investigation, and |
| 1239 |
resolution of complaints
filed by unit owners, associations, and |
| 1240 |
managers. |
| 1241 |
(g)(7) To
provide resources to assist members of boards of |
| 1242 |
directors and officers of
associations to carry out their powers |
| 1243 |
and duties consistent
with this chapter, division rules, and the |
| 1244 |
condominium documents
governing the association. |
| 1245 |
(h)(8) To
order, encourage, and
facilitate voluntary |
| 1246 |
meetings with and between
unit owners, boards of directors, |
| 1247 |
board members, community
association managers, and other |
| 1248 |
affected parties when the
meetings may assist in resolving a |
| 1249 |
dispute within a
community association before a person submits a |
| 1250 |
dispute for a formal or
administrative remedy. It is the intent |
| 1251 |
of the Legislature that
the ombudsman act as a neutral resource |
| 1252 |
for both the rights and
responsibilities of unit owners, |
| 1253 |
associations, and board
members. |
| 1254 |
(i) To
make recommendations to the division to pursue |
| 1255 |
enforcement
action in circuit court on behalf of a class of unit |
| 1256 |
owners,
lessees, or purchasers for declaratory relief, |
| 1257 |
injunctive
relief, or restitution against any developer, |
| 1258 |
association,
officer, or member of the board of administration |
| 1259 |
or its
assignees or agents when there is reasonable cause to |
| 1260 |
believe
misconduct has occurred. The division shall process the |
| 1261 |
ombudsman's
recommendations and petitions in an expedited manner |
| 1262 |
and
shall defer to his or her findings. |
| 1263 |
(2)(9) Fifteen
percent of the total voting interests in a |
| 1264 |
condominium association,
or six unit owners, whichever is |
| 1265 |
greater, may petition the
ombudsman to appoint an election |
| 1266 |
monitor to attend the
annual meeting of the unit owners and |
| 1267 |
conduct the election of
directors. The ombudsman upon petition |
| 1268 |
may
order any aspect of the election process as set forth in s. |
| 1269 |
718.112(2)(d)3.
to be conducted by the election monitor. No |
| 1270 |
association
or person may reject an election monitor appointed |
| 1271 |
by the
ombudsman or interfere with an election monitor in the |
| 1272 |
performance
of his or her duties. The ombudsman may order an |
| 1273 |
association
to implement a known division remedy for a |
| 1274 |
procedural
violation of s. 718.112(2)(d)3. prior to and during a |
| 1275 |
monitored
election. The ombudsman shall appoint a division |
| 1276 |
employee, a person or
persons specializing in condominium |
| 1277 |
election monitoring, or
an attorney licensed to practice in this |
| 1278 |
state as the election
monitor. All costs associated with the |
| 1279 |
election monitoring
process shall be paid by the association. |
| 1280 |
The division shall adopt
a rule establishing procedures for the |
| 1281 |
appointment of election
monitors and the scope and extent of the |
| 1282 |
monitor's role in the
election process. |
| 1283 |
(3) Any
unit owner or association acting in good faith on |
| 1284 |
the
advice or opinion of the office of the ombudsman shall be |
| 1285 |
immune
from any penalties or actions. |
| 1286 |
(4) If
the ombudsman has reasonable cause to believe that |
| 1287 |
a
violation of any provision of this chapter or of any rule |
| 1288 |
adopted
hereto has occurred, the ombudsman may issue an order |
| 1289 |
requiring
any developer, association, officer, or member of the |
| 1290 |
board
of administration, or its assignees or agents, to cease |
| 1291 |
and
desist from the unlawful practice and to take affirmative |
| 1292 |
action
to carry out the purposes of this chapter. |
| 1293 |
Section
16. Section 718.50151, Florida
Statutes, is |
| 1294 |
repealed. |
| 1295 |
Section
17. Subsection (7) is added to section 719.1055, |
| 1296 |
Florida Statutes, to
read: |
| 1297 |
719.1055 Amendment
of cooperative documents; alteration |
| 1298 |
and acquisition of
property.-- |
| 1299 |
(7) Any
amendment restricting cooperative owners' rights |
| 1300 |
relating
to the rental of units applies only to unit owners who |
| 1301 |
consent
to the amendment and unit owners who purchase their |
| 1302 |
units
after the effective date of that amendment. |
| 1303 |
Section
18. Section 720.4016, Florida Statutes, is created |
| 1304 |
to read: |
| 1305 |
720.4016 Advisory
Council on Mandated Properties.--There |
| 1306 |
is
created the Advisory Council on Mandated Properties. The |
| 1307 |
council
shall consist of seven appointed members. Two members |
| 1308 |
shall
be appointed by the President of the Senate, two members |
| 1309 |
shall
be appointed by the Speaker of the House of |
| 1310 |
Representatives,
and three members shall be appointed by the |
| 1311 |
Governor.
At least one member each appointed by the Governor, by |
| 1312 |
the
President, and by the Speaker shall be a homeowners' rights |
| 1313 |
advocate
and parcel owner. Members shall be appointed to 2-year |
| 1314 |
terms;
however, one of the persons initially appointed by the |
| 1315 |
Governor,
by the President, and by the Speaker shall be |
| 1316 |
appointed
to a 1-year term. A member of the division, appointed |
| 1317 |
by the
secretary, shall serve as an ex officio nonvoting member. |
| 1318 |
The
selection of council members shall be made in a manner that |
| 1319 |
ensures
a fair and balanced representation from the service- |
| 1320 |
provider
sector and consumer advocates with a substantial public |
| 1321 |
record
of endeavors on behalf of homeowners' rights and consumer |
| 1322 |
interests.
The council shall be located within the division for |
| 1323 |
administrative
purposes. Members of the council shall serve |
| 1324 |
without
compensation but are entitled to receive per diem and |
| 1325 |
travel
expenses pursuant to s. 112.061 while on official |
| 1326 |
business.
A vacancy on the advisory council shall be filled in |
| 1327 |
the
same manner as the original appointment. |
| 1328 |
Section
19. This act shall take effect July 1, 2006. |