1 |
The Judiciary Appropriations Committee
recommends the following: |
2 |
|
3 |
Council/Committee
Substitute |
4 |
Remove the
entire bill and insert: |
5 |
A bill to be entitled |
6 |
An act relating to community associations;
creating s. |
7 |
712.11, F.S.; providing for the revival of
certain |
8 |
covenants that have lapsed; amending s.
718.106, F.S.; |
9 |
prohibiting local ordinances that limit the
access of |
10 |
certain persons to beaches that adjoin
condominiums; |
11 |
amending s. 718.110, F.S.; revising
provisions relating to |
12 |
the amendment of declarations; providing
legislative |
13 |
findings and a finding of compelling state
interest; |
14 |
providing criteria for consent to an
amendment; requiring |
15 |
notice regarding proposed amendments to
mortgagees; |
16 |
providing criteria for notification;
providing for voiding |
17 |
certain amendments; amending s. 718.112, F.S.;
revising |
18 |
the implementation date for retrofitting of
common areas |
19 |
with a sprinkler system; amending s. 718.114,
F.S.; |
20 |
providing that certain leaseholds,
memberships, or other |
21 |
possessory or use interests shall be
considered a material |
22 |
alteration or substantial addition to certain
real |
23 |
property; amending s. 718.404, F.S.;
providing retroactive |
24 |
application of provisions relating to
mixed-use |
25 |
condominiums; amending s. 719.103, F.S.;
providing a |
26 |
definition; amending s. 719.507, F.S.;
prohibiting laws, |
27 |
ordinances, or regulations that apply only to
improvements |
28 |
that are or may be subjected to an equity
club form of |
29 |
ownership; amending s. 720.302, F.S.;
revising governing |
30 |
provisions relating to corporations that
operate |
31 |
residential homeowners' associations;
amending s. 720.303, |
32 |
F.S.; revising application to include certain
meetings; |
33 |
requiring the association to provide certain
information |
34 |
to prospective purchasers or lienholders;
authorizing the |
35 |
association to charge a reasonable fee for
providing |
36 |
certain information; requiring the budget to
provide for |
37 |
annual operating expenses; authorizing the
budget to |
38 |
include reserve accounts for capital
expenditures and |
39 |
deferred maintenance; providing a formula for
calculating |
40 |
the amount to be reserved; authorizing the
association to |
41 |
adjust replacement reserve assessments
annually; |
42 |
authorizing the developer to vote to waive
the reserves or |
43 |
reduce the funding of reserves for a certain
period; |
44 |
revising provisions relating to financial
reporting; |
45 |
revising time periods in which the
association must |
46 |
complete its reporting; repealing s.
720.303(2), F.S., as |
47 |
amended, relating to board meetings, to
remove conflicting |
48 |
versions of that subsection; creating s.
720.3035, F.S.; |
49 |
providing for architectural control covenants
and parcel |
50 |
owner improvements; authorizing the review
and approval of |
51 |
plans and specifications; providing
limitations; providing |
52 |
rights and privileges for parcel owners as
set forth in |
53 |
the declaration of covenants; amending s.
720.305, F.S.; |
54 |
providing that, where a member is entitled to
collect |
55 |
attorney's fees against the association, the
member may |
56 |
also recover additional amounts as determined
by the |
57 |
court; amending s. 720.306, F.S.; providing
that certain |
58 |
mergers or consolidations of an association
shall not be |
59 |
considered a material or adverse alteration
of the |
60 |
proportionate voting interest appurtenant to
a parcel; |
61 |
amending s. 720.307, F.S.; requiring
developers to deliver |
62 |
financial records to the board in any
transition of |
63 |
association control to members; requiring
certain |
64 |
information to be included in the records and
for the |
65 |
records to be prepared in a specified manner;
amending s. |
66 |
720.308, F.S.; providing circumstances under
which a |
67 |
guarantee of common expenses shall be
effective; providing |
68 |
for approval of the guarantee by association
members; |
69 |
providing for a guarantee period and
extension thereof; |
70 |
requiring the stated dollar amount of the
guarantee to be |
71 |
an exact dollar amount for each parcel
identified in the |
72 |
declaration; providing payments required from
the |
73 |
guarantor to be determined in a certain
manner; providing |
74 |
a formula to determine the guarantor's total
financial |
75 |
obligation to the association; providing that
certain |
76 |
expenses incurred in the production of
certain revenues |
77 |
shall not be included in the operating
expenses; amending |
78 |
s. 720.311, F.S.; revising provisions
relating to dispute |
79 |
resolution; providing that the filing of any
petition for |
80 |
arbitration or the serving of an offer for
presuit |
81 |
mediation shall toll the applicable statute
of |
82 |
limitations; providing that certain disputes
between an |
83 |
association and a parcel owner shall be
subject to presuit |
84 |
mediation; revising provisions to conform;
providing that |
85 |
temporary injunctive relief may be sought in
certain |
86 |
disputes subject to presuit mediation;
authorizing the |
87 |
court to refer the parties to mediation under
certain |
88 |
circumstances; requiring the aggrieved party
to serve on |
89 |
the responding party a written offer to
participate in |
90 |
presuit mediation; providing a form for such
offer; |
91 |
providing that service of the offer is
effected by the |
92 |
sending of such an offer in a certain manner;
providing |
93 |
that the prevailing party in any subsequent
arbitration or |
94 |
litigation proceedings is entitled to seek
recovery of all |
95 |
costs and attorney's fees incurred in the
presuit |
96 |
mediation process; requiring the mediator or
arbitrator to |
97 |
meet certain certification requirements;
removing a |
98 |
requirement relating to development of an
education |
99 |
program to increase awareness of the
operation of |
100 |
homeowners' associations and the use of
alternative |
101 |
dispute resolution techniques; providing
effective dates. |
102 |
|
103 |
Be It Enacted by the Legislature of the State
of Florida: |
104 |
|
105 |
Section 1. Section
712.11, Florida Statutes, is created to |
106 |
read: |
107 |
712.11 Covenant
revitalization.--A homeowners' association |
108 |
not otherwise subject to chapter 720 may
use the procedures set |
109 |
forth in ss. 720.403-720.407 to revive
covenants that have |
110 |
lapsed under the terms of this chapter. |
111 |
Section 2. Subsection
(5) is added to section 718.106, |
112 |
Florida Statutes, to read: |
113 |
718.106 Condominium
parcels; appurtenances; possession and |
114 |
enjoyment.-- |
115 |
(5) A
local ordinance or regulation may not establish any |
116 |
limitation on the ability of unit owners
or an association to |
117 |
permit guests, licensees, members, or
invitees to use or access |
118 |
their units or common elements for the
purpose of accessing a |
119 |
public beach or private beach adjacent to
the condominium. |
120 |
Section 3. Effective
October 1, 2006, subsection (11) of |
121 |
section 718.110, Florida Statutes, is amended
to read: |
122 |
718.110 Amendment
of declaration; correction of error or |
123 |
omission in declaration by circuit court.-- |
124 |
(11) The
Legislature finds that the procurement of |
125 |
mortgagee consent to amendments that do
not affect the rights or |
126 |
interests of mortgagees is an unreasonable
and substantial |
127 |
logistical and financial burden on the
unit owners and that |
128 |
there is a compelling state interest in
enabling the members of |
129 |
a condominium association to approve
amendments to the |
130 |
condominium documents through legal means.
Accordingly, and |
131 |
notwithstanding any provision to the contrary
contained in this |
132 |
section: |
133 |
(a) As
to any mortgage recorded on or after October 1, |
134 |
2006, any provision in the
declaration, articles of |
135 |
incorporation, or bylaws that requires
recorded after April 1, |
136 |
1992, may not require the consent or
joinder of some or all |
137 |
mortgagees of units or any other portion
of the condominium |
138 |
property to or in amendments to the
declaration, articles of |
139 |
incorporation, or bylaws or for any other
matter shall be |
140 |
enforceable only as to the following
matters: unless the |
141 |
requirement is limited to amendments
materially affecting the |
142 |
rights or interests of the mortgagees, or
as otherwise required |
143 |
by the Federal National Mortgage
Association or the Federal Home |
144 |
Loan Mortgage Corporation, and unless the
requirement provides |
145 |
that such consent may not be unreasonably
withheld. It shall be |
146 |
presumed that, except as to |
147 |
1. Those
matters described in subsections (4) and (8)., |
148 |
2. Amendments
to the declaration, articles of |
149 |
incorporation, or bylaws that adversely
affect the priority of |
150 |
the mortgagee's lien or the mortgagee's
rights to foreclose its |
151 |
lien or that otherwise materially affect
the rights and |
152 |
interests of the mortgagees. |
153 |
(b) As
to mortgages recorded before October 1, 2006, any |
154 |
existing provisions in the declaration,
articles of |
155 |
incorporation, or bylaws requiring
mortgagee consent shall be |
156 |
enforceable. |
157 |
(c) In
securing consent or joinder, the association shall |
158 |
be entitled to rely upon the public
records to identify the |
159 |
holders of outstanding mortgages. The
association may use the |
160 |
address provided in the original recorded
mortgage document, |
161 |
unless there is a different address for
the holder of the |
162 |
mortgage in a recorded assignment or
modification of the |
163 |
mortgage, which recorded assignment or
modification must |
164 |
reference the official records book and
page on which the |
165 |
original mortgage was recorded. Once the
association has |
166 |
identified the recorded mortgages of
record, the association |
167 |
shall, in writing, request of each unit
owner whose unit is |
168 |
encumbered by a mortgage of record any
information the owner has |
169 |
in his or her possession regarding the
name and address of the |
170 |
person to whom mortgage payments are
currently being made. |
171 |
Notice shall be sent to such person if the
address provided in |
172 |
the original recorded mortgage document is
different from the |
173 |
name and address of the mortgagee or
assignee of the mortgage as |
174 |
shown by the public record. The
association shall be deemed to |
175 |
have complied with this requirement by
making the written |
176 |
request of the unit owners required under
this paragraph. Any |
177 |
notices required to be sent to the
mortgagees under this |
178 |
paragraph shall be sent to all available
addresses provided to |
179 |
the association. |
180 |
(d) Any
notice to the mortgagees required under paragraph |
181 |
(c) may be sent by a method that
establishes proof of delivery, |
182 |
and any mortgagee who fails to respond
within 60 days after the |
183 |
date of mailing shall be deemed to have
consented to the |
184 |
amendment. |
185 |
(e) For
those amendments requiring mortgagee consent on or |
186 |
after October 1, 2006, do not
materially affect the rights or |
187 |
interests of mortgagees. in the event
mortgagee consent is |
188 |
provided other than by properly recorded
joinder, such consent |
189 |
shall be evidenced by affidavit of the
association recorded in |
190 |
the public records of the county where the
declaration is |
191 |
recorded. Any amendment adopted without
the required consent of |
192 |
a mortgagee shall be voidable only by a
mortgagee who was |
193 |
entitled to notice and an opportunity to
consent. An action to |
194 |
void an amendment shall be subject to the
statute of limitations |
195 |
beginning 5 years from the date of
discovery as to the |
196 |
amendments described in subparagraph (a)2.
and 5 years from the |
197 |
date of recordation of the certificate of
amendment for all |
198 |
other amendments. This provision shall
apply to all mortgages, |
199 |
regardless of the date of recordation of
the mortgage. |
200 |
Section 4. Paragraph
(l) of subsection (2) of section |
201 |
718.112, Florida Statutes, is amended to
read: |
202 |
718.112 Bylaws.-- |
203 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
204 |
following and, if they do not do so, shall be
deemed to include |
205 |
the following: |
206 |
(l) Certificate
of compliance.--There shall be a provision |
207 |
that a certificate of compliance from a
licensed electrical |
208 |
contractor or electrician may be accepted by
the association's |
209 |
board as evidence of compliance of the
condominium units with |
210 |
the applicable fire and life safety code.
Notwithstanding the |
211 |
provisions of chapter 633 or of any other
code, statute, |
212 |
ordinance, administrative rule, or
regulation, or any |
213 |
interpretation of the foregoing, an
association, condominium, or |
214 |
unit owner is not obligated to retrofit the
common elements or |
215 |
units of a residential condominium with a
fire sprinkler system |
216 |
or other engineered lifesafety system in a
building that has |
217 |
been certified for occupancy by the
applicable governmental |
218 |
entity, if the unit owners have voted to
forego such |
219 |
retrofitting and engineered lifesafety system
by the affirmative |
220 |
vote of two-thirds of all voting interests in
the affected |
221 |
condominium. However, a condominium
association may not vote to |
222 |
forego the retrofitting with a fire sprinkler
system of common |
223 |
areas in a high-rise building. For purposes
of this subsection, |
224 |
the term "high-rise building" means
a building that is greater |
225 |
than 75 feet in height where the building
height is measured |
226 |
from the lowest level of fire department
access to the floor of |
227 |
the highest occupiable story. For purposes of
this subsection, |
228 |
the term "common areas" means any
enclosed hallway, corridor, |
229 |
lobby, stairwell, or entryway. In no event
shall the local |
230 |
authority having jurisdiction require
completion of retrofitting |
231 |
of common areas with a sprinkler system
before the end of 2025 |
232 |
2014. |
233 |
1. A
vote to forego retrofitting may be obtained by |
234 |
limited proxy or by a ballot personally cast
at a duly called |
235 |
membership meeting, or by execution of a
written consent by the |
236 |
member, and shall be effective upon the
recording of a |
237 |
certificate attesting to such vote in the
public records of the |
238 |
county where the condominium is located. The
association shall |
239 |
mail, hand deliver, or electronically
transmit to each unit |
240 |
owner written notice at least 14 days prior
to such membership |
241 |
meeting in which the vote to forego
retrofitting of the required |
242 |
fire sprinkler system is to take place.
Within 30 days after the |
243 |
association's opt-out vote, notice of the
results of the opt-out |
244 |
vote shall be mailed, hand delivered, or
electronically |
245 |
transmitted to all unit owners. Evidence of
compliance with this |
246 |
30-day notice shall be made by an affidavit
executed by the |
247 |
person providing the notice and filed among
the official records |
248 |
of the association. After such notice is
provided to each owner, |
249 |
a copy of such notice shall be provided by
the current owner to |
250 |
a new owner prior to closing and shall be
provided by a unit |
251 |
owner to a renter prior to signing a lease. |
252 |
2. As
part of the information collected annually from |
253 |
condominiums, the division shall require
condominium |
254 |
associations to report the membership vote
and recording of a |
255 |
certificate under this subsection and, if
retrofitting has been |
256 |
undertaken, the per-unit cost of such work.
The division shall |
257 |
annually report to the Division of State Fire
Marshal of the |
258 |
Department of Financial Services the number
of condominiums that |
259 |
have elected to forego retrofitting. |
260 |
Section 5. Section
718.114, Florida Statutes, is amended |
261 |
to read: |
262 |
718.114 Association
powers.--An association has the power |
263 |
to enter into agreements, to acquire
leaseholds, memberships, |
264 |
and other possessory or use interests in
lands or facilities |
265 |
such as country clubs, golf courses, marinas,
and other |
266 |
recreational facilities. It has this power
whether or not the |
267 |
lands or facilities are contiguous to the
lands of the |
268 |
condominium, if they are intended to provide
enjoyment, |
269 |
recreation, or other use or benefit to the
unit owners. All of |
270 |
these leaseholds, memberships, and other
possessory or use |
271 |
interests existing or created at the time of
recording the |
272 |
declaration must be stated and fully
described in the |
273 |
declaration. Subsequent to the recording of
the declaration, |
274 |
agreements acquiring these leaseholds,
memberships, or other |
275 |
possessory or use interests not entered
into within 12 months |
276 |
following the recording of the declaration
shall be considered a |
277 |
material alteration or substantial
addition to the real property |
278 |
that is association property, and the
association may not |
279 |
acquire or enter into agreements acquiring
these leaseholds, |
280 |
memberships, or other possessory or use
interests except as |
281 |
authorized by the declaration as provided
in s. 718.113. The |
282 |
declaration may provide that the rental,
membership fees, |
283 |
operations, replacements, and other expenses
are common expenses |
284 |
and may impose covenants and restrictions
concerning their use |
285 |
and may contain other provisions not
inconsistent with this |
286 |
chapter. A condominium association may
conduct bingo games as |
287 |
provided in s. 849.0931. |
288 |
Section 6. Subsections
(1) and (2) of section 718.404, |
289 |
Florida Statutes, are amended to read: |
290 |
718.404 Mixed-use
condominiums.--When a condominium |
291 |
consists of both residential and commercial
units, the following |
292 |
provisions shall apply: |
293 |
(1) The
condominium documents shall not provide that the |
294 |
owner of any commercial unit shall have the
authority to veto |
295 |
amendments to the declaration, articles of
incorporation, |
296 |
bylaws, or rules or regulations of the
association. This |
297 |
subsection shall apply retroactively as a
remedial measure. |
298 |
(2) Subject
to s. 718.301, where the number of residential |
299 |
units in the condominium equals or exceeds 50
percent of the |
300 |
total units operated by the association,
owners of the |
301 |
residential units shall be entitled to vote
for a majority of |
302 |
the seats on the board of administration. This
subsection shall |
303 |
apply retroactively as a remedial measure. |
304 |
Section 7. Subsections
(18) through (27) of section |
305 |
719.103, Florida Statutes, are renumbered as
subsections (19) |
306 |
through (28), respectively, and a new
subsection (18) is added |
307 |
to that section to read: |
308 |
719.103 Definitions.--As
used in this chapter: |
309 |
(18) "Equity
facilities club" means a club comprised of |
310 |
recreational facilities in which
proprietary membership |
311 |
interests are sold to individuals, which
membership interests |
312 |
entitle the individuals to use certain
physical facilities owned |
313 |
by the equity club. Such physical
facilities do not include a |
314 |
residential unit or accommodation. For
purposes of this |
315 |
definition, the term
"accommodation" shall include, but is not |
316 |
limited to, any apartment, residential
cooperative unit, |
317 |
residential condominium unit, cabin,
lodge, hotel or motel room, |
318 |
or any other accommodation designed for
overnight occupancy for |
319 |
one or more individuals. |
320 |
Section 8. Section
719.507, Florida Statutes, is amended |
321 |
to read: |
322 |
719.507 Zoning
and building laws, ordinances, and |
323 |
regulations.--All laws, ordinances, and
regulations concerning |
324 |
buildings or zoning shall be construed and
applied with |
325 |
reference to the nature and use of such
property, without regard |
326 |
to the form of ownership. No law, ordinance,
or regulation shall |
327 |
establish any requirement concerning the use,
location, |
328 |
placement, or construction of buildings or
other improvements |
329 |
which are, or may thereafter be, subjected to
the cooperative or |
330 |
equity facilities club form of
ownership, unless such |
331 |
requirement shall be equally applicable to
all buildings and |
332 |
improvements of the same kind not then, or
thereafter to be, |
333 |
subjected to the cooperative or equity
facilities club form of |
334 |
ownership. This section does not apply if the
owner in fee of |
335 |
any land enters into and records a covenant
that existing |
336 |
improvements or improvements to be
constructed shall not be |
337 |
converted to the cooperative form of
residential ownership prior |
338 |
to 5 years after the later of the date of the
covenant or |
339 |
completion date of the improvements. Such
covenant shall be |
340 |
entered into with the governing body of the
municipality in |
341 |
which the land is located or, if the land is
not located in a |
342 |
municipality, with the governing body of the
county in which the |
343 |
land is located. |
344 |
Section 9. Subsections
(4) and (5) of section 720.302, |
345 |
Florida Statutes, are amended to read: |
346 |
720.302 Purposes,
scope, and application.-- |
347 |
(4) This
chapter does not apply to any association that is |
348 |
subject to regulation under chapter 718,
chapter 719, or chapter |
349 |
721; or to any nonmandatory
association formed under chapter |
350 |
723, except to the extent that a provision
of chapter 718, |
351 |
chapter 719, or chapter 721 is expressly
incorporated into this |
352 |
chapter for the purpose of regulating
homeowners' associations. |
353 |
(5) Unless
expressly stated to the contrary, corporations |
354 |
not for profit that operate
residential homeowners' associations |
355 |
in this state shall be governed by and
subject to chapter 607, |
356 |
if the association was incorporated under
that chapter, or to |
357 |
chapter 617, if the association was
incorporated under that |
358 |
chapter, and this chapter. This
subsection is intended to |
359 |
clarify existing law. |
360 |
Section 10. Paragraph
(a) of subsection (2), subsection |
361 |
(6), and subsection (7) of section 720.303,
Florida Statutes, as |
362 |
amended by section 18 of chapter 2004-345 and
section 135 of |
363 |
chapter 2005-2, Laws of Florida, are amended,
and paragraph (d) |
364 |
is added to subsection (5) of that section,
to read: |
365 |
720.303 Association
powers and duties; meetings of board; |
366 |
official records; budgets; financial
reporting; association |
367 |
funds; recalls.-- |
368 |
(2) BOARD
MEETINGS.-- |
369 |
(a) A
meeting of the board of directors of an association |
370 |
occurs whenever a quorum of the board gathers
to conduct |
371 |
association business. All meetings of the
board must be open to |
372 |
all members except for meetings between the
board and its |
373 |
attorney with respect to proposed or pending
litigation where |
374 |
the contents of the discussion would
otherwise be governed by |
375 |
the attorney-client privilege. The
provisions of this subsection |
376 |
shall also apply to the meetings of any
committee or other |
377 |
similar body when a final decision will be
made regarding the |
378 |
expenditure of association funds and to
meetings of any body |
379 |
vested with the power to approve or
disapprove architectural |
380 |
decisions with respect to a specific
parcel of residential |
381 |
property owned by a member of the
community. |
382 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
383 |
records shall be maintained within the state
and must be open to |
384 |
inspection and available for photocopying by
members or their |
385 |
authorized agents at reasonable times and
places within 10 |
386 |
business days after receipt of a written
request for access. |
387 |
This subsection may be complied with by
having a copy of the |
388 |
official records available for inspection or
copying in the |
389 |
community. If the association has a photocopy
machine available |
390 |
where the records are maintained, it must
provide parcel owners |
391 |
with copies on request during the inspection
if the entire |
392 |
request is limited to no more than 25 pages. |
393 |
(d) The
association or its authorized agent is not |
394 |
required to provide a prospective
purchaser or lienholder with |
395 |
information about the residential
subdivision or the association |
396 |
other than information or documents
required by this chapter to |
397 |
be made available or disclosed. The
association or its |
398 |
authorized agent may charge a reasonable
fee to the prospective |
399 |
purchaser or lienholder or the current
parcel owner or member |
400 |
for providing good faith responses to
requests for information |
401 |
by or on behalf of a prospective purchaser
or lienholder, other |
402 |
than that required by law, if the fee does
not exceed $50 plus |
403 |
the reasonable cost of photocopying and
any attorney's fees |
404 |
incurred by the association in connection
with the response. |
405 |
(6) BUDGETS.-- |
406 |
(a) The
association shall prepare an annual budget that |
407 |
sets out the annual operating expenses.
The budget must reflect |
408 |
the estimated revenues and expenses for that
year and the |
409 |
estimated surplus or deficit as of the end of
the current year. |
410 |
The budget must set out separately all fees
or charges paid for |
411 |
by the association for recreational
amenities, whether owned by |
412 |
the association, the developer, or another
person. The |
413 |
association shall provide each member with a
copy of the annual |
414 |
budget or a written notice that a copy of the
budget is |
415 |
available upon request at no charge to the
member. The copy must |
416 |
be provided to the member within the time
limits set forth in |
417 |
subsection (5). |
418 |
(b) In
addition to annual operating expenses, the budget |
419 |
may include reserve accounts for capital
expenditures and |
420 |
deferred maintenance for which the
association is responsible to |
421 |
the extent that the governing documents do
not limit increases |
422 |
in assessments, including reserves. If the
budget of the |
423 |
association includes reserve accounts,
such reserves shall be |
424 |
determined, maintained, and waived in the
manner provided in |
425 |
this subsection. Once an association
provides for reserve |
426 |
accounts in the budget, the association
shall thereafter |
427 |
determine, maintain, and waive reserves in
compliance with the |
428 |
provisions of this subsection. |
429 |
(c) If
the budget of the association does not provide for |
430 |
reserve accounts governed by this
subsection and the association |
431 |
is responsible for the repair and
maintenance of capital |
432 |
improvements that may result in a special
assessment if reserves |
433 |
are not provided, each financial report
for the preceding fiscal |
434 |
year required by subsection (7) shall
contain the following |
435 |
statement in conspicuous type: THE BUDGET
OF THE ASSOCIATION |
436 |
DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR
CAPITAL EXPENDITURES |
437 |
AND DEFERRED MAINTENANCE THAT MAY RESULT
IN SPECIAL ASSESSMENTS. |
438 |
OWNERS MAY ELECT TO PROVIDE FOR RESERVE
ACCOUNTS PURSUANT TO THE |
439 |
PROVISIONS OF SECTION 720.303(6), FLORIDA
STATUTES, UPON THE |
440 |
APPROVAL OF NOT LESS THAN A MAJORITY OF
THE TOTAL VOTING |
441 |
INTERESTS OF THE ASSOCIATION. |
442 |
(d) An
association shall be deemed to have provided for |
443 |
reserve accounts when reserve accounts
have been initially |
444 |
established by the developer or when the
membership of the |
445 |
association affirmatively elects to
provide for reserves. If |
446 |
reserve accounts are not initially
provided for by the |
447 |
developer, the membership of the
association may elect to do so |
448 |
upon the affirmative approval of not less
than a majority of the |
449 |
total voting interests of the association.
Such approval may be |
450 |
attained by vote of the members at a duly
called meeting of the |
451 |
membership or upon a written consent
executed by not less than a |
452 |
majority of the total voting interests in
the community. The |
453 |
approval action of the membership shall
state that reserve |
454 |
accounts shall be provided for in the
budget and designate the |
455 |
components for which the reserve accounts
are to be established. |
456 |
Upon approval by the membership, the board
of directors shall |
457 |
provide for the required reserve accounts
for inclusion in the |
458 |
budget in the next fiscal year following
the approval and in |
459 |
each year thereafter. Once established as
provided in this |
460 |
subsection, the reserve accounts shall be
funded or maintained |
461 |
or shall have their funding waived in the
manner provided in |
462 |
paragraph (f). |
463 |
(e) The
amount to be reserved in any account established |
464 |
shall be computed by means of a formula
that is based upon |
465 |
estimated remaining useful life and
estimated replacement cost |
466 |
or deferred maintenance expense of each
reserve item. The |
467 |
association may adjust replacement reserve
assessments annually |
468 |
to take into account any changes in
estimates of cost or useful |
469 |
life of a reserve item. |
470 |
(f) Once
a reserve account or reserve accounts are |
471 |
established, the membership of the
association, upon a majority |
472 |
vote at a meeting at which a quorum is
present, may provide for |
473 |
no reserves or less reserves than required
by this section. If a |
474 |
meeting of the unit owners has been called
to determine whether |
475 |
to waive or reduce the funding of reserves
and no such result is |
476 |
achieved or a quorum is not present, the
reserves as included in |
477 |
the budget shall go into effect. After the
turnover, the |
478 |
developer may vote its voting interest to
waive or reduce the |
479 |
funding of reserves. Any vote taken
pursuant to this subsection |
480 |
to waive or reduce reserves shall be
applicable only to one |
481 |
budget year. |
482 |
(g) Funding
formulas for reserves authorized by this |
483 |
section shall be based on either a
separate analysis of each of |
484 |
the required assets or a pooled analysis
of two or more of the |
485 |
required assets. |
486 |
1. If
the association maintains separate reserve accounts |
487 |
for each of the required assets, the
amount of the contribution |
488 |
to each reserve account shall be the sum
of the following two |
489 |
calculations: |
490 |
a. The
total amount necessary, if any, to bring a negative |
491 |
component balance to zero. |
492 |
b. The
total estimated deferred maintenance expense or |
493 |
estimated replacement cost of the reserve
component less the |
494 |
estimated balance of the reserve component
as of the beginning |
495 |
of the period for which the budget will be
in effect. The |
496 |
remainder, if greater than zero, shall be
divided by the |
497 |
estimated remaining useful life of the
component. |
498 |
|
499 |
The formula may be adjusted each year for
changes in estimates |
500 |
and deferred maintenance performed during
the year and may |
501 |
include factors such as inflation and
earnings on invested |
502 |
funds. |
503 |
2. If
the association maintains a pooled account of two or |
504 |
more of the required reserve assets, the
amount of the |
505 |
contribution to the pooled reserve account
as disclosed on the |
506 |
proposed budget shall not be less than
that required to ensure |
507 |
that the balance on hand at the beginning
of the period for |
508 |
which the budget will go into effect plus
the projected annual |
509 |
cash inflows over the remaining estimated
useful life of all of |
510 |
the assets that make up the reserve pool
are equal to or greater |
511 |
than the projected annual cash outflows
over the remaining |
512 |
estimated useful lives of all of the
assets that make up the |
513 |
reserve pool, based on the current reserve
analysis. The |
514 |
projected annual cash inflows may include
estimated earnings |
515 |
from investment of principal. The reserve
funding formula shall |
516 |
not include any type of balloon payments. |
517 |
(h) Reserve
funds and any interest accruing thereon shall |
518 |
remain in the reserve account or accounts
and shall be used only |
519 |
for authorized reserve expenditures unless
their use for other |
520 |
purposes is approved in advance by a
majority vote at a meeting |
521 |
at which a quorum is present. Prior to
turnover of control of an |
522 |
association by a developer to parcel
owners, the developer- |
523 |
controlled association shall not vote to
use reserves for |
524 |
purposes other than those for which they
were intended without |
525 |
the approval of a majority of all
nondeveloper voting interests |
526 |
voting in person or by limited proxy at a
duly called meeting of |
527 |
the association. |
528 |
(7) FINANCIAL
REPORTING.--Within 90 days after the end of |
529 |
the fiscal year, or annually on the date
provided in the bylaws, |
530 |
the association shall prepare and
complete, or contract with a |
531 |
third party for the preparation and
completion of, a financial |
532 |
report for the preceding fiscal year.
Within 21 days after the |
533 |
final financial report is completed by the
association or |
534 |
received from the third party, but not
later than 120 days after |
535 |
the end of the fiscal year or other date
as provided in the |
536 |
bylaws, the association shall prepare
an annual financial report |
537 |
within 60 days after the close of the
fiscal year. The |
538 |
association shall, within the time
limits set forth in |
539 |
subsection (5), provide each member with a
copy of the annual |
540 |
financial report or a written notice that a
copy of the |
541 |
financial report is available upon request at
no charge to the |
542 |
member. Financial reports shall be prepared
as follows: |
543 |
(a) An
association that meets the criteria of this |
544 |
paragraph shall prepare or cause to be
prepared a complete set |
545 |
of financial statements in accordance with
generally accepted |
546 |
accounting principles as adopted by the
Board of Accountancy. |
547 |
The financial statements shall be based upon
the association's |
548 |
total annual revenues, as follows: |
549 |
1. An
association with total annual revenues of $100,000 |
550 |
or more, but less than $200,000, shall
prepare compiled |
551 |
financial statements. |
552 |
2. An
association with total annual revenues of at least |
553 |
$200,000, but less than $400,000, shall
prepare reviewed |
554 |
financial statements. |
555 |
3. An
association with total annual revenues of $400,000 |
556 |
or more shall prepare audited financial
statements. |
557 |
(b)1. An
association with total annual revenues of less |
558 |
than $100,000 shall prepare a report of cash
receipts and |
559 |
expenditures. |
560 |
2. An
association in a community of fewer than 50 parcels, |
561 |
regardless of the association's annual
revenues, may prepare a |
562 |
report of cash receipts and expenditures in
lieu of financial |
563 |
statements required by paragraph (a) unless
the governing |
564 |
documents provide otherwise. |
565 |
3. A
report of cash receipts and disbursement must |
566 |
disclose the amount of receipts by accounts
and receipt |
567 |
classifications and the amount of expenses by
accounts and |
568 |
expense classifications, including, but not
limited to, the |
569 |
following, as applicable: costs for security,
professional, and |
570 |
management fees and expenses; taxes; costs
for recreation |
571 |
facilities; expenses for refuse collection
and utility services; |
572 |
expenses for lawn care; costs for building
maintenance and |
573 |
repair; insurance costs; administration and
salary expenses; and |
574 |
reserves if maintained by the association. |
575 |
(c) If
20 percent of the parcel owners petition the board |
576 |
for a level of financial reporting higher
than that required by |
577 |
this section, the association shall duly
notice and hold a |
578 |
meeting of members within 30 days of receipt
of the petition for |
579 |
the purpose of voting on raising the level of
reporting for that |
580 |
fiscal year. Upon approval of a majority of
the total voting |
581 |
interests of the parcel owners, the
association shall prepare or |
582 |
cause to be prepared, shall amend the budget
or adopt a special |
583 |
assessment to pay for the financial report
regardless of any |
584 |
provision to the contrary in the governing
documents, and shall |
585 |
provide within 90 days of the meeting or the
end of the fiscal |
586 |
year, whichever occurs later: |
587 |
1. Compiled,
reviewed, or audited financial statements, if |
588 |
the association is otherwise required to
prepare a report of |
589 |
cash receipts and expenditures; |
590 |
2. Reviewed
or audited financial statements, if the |
591 |
association is otherwise required to prepare
compiled financial |
592 |
statements; or |
593 |
3. Audited
financial statements if the association is |
594 |
otherwise required to prepare reviewed
financial statements. |
595 |
(d) If
approved by a majority of the voting interests |
596 |
present at a properly called meeting of the
association, an |
597 |
association may prepare or cause to be
prepared: |
598 |
1. A
report of cash receipts and expenditures in lieu of a |
599 |
compiled, reviewed, or audited financial
statement; |
600 |
2. A
report of cash receipts and expenditures or a |
601 |
compiled financial statement in lieu of a
reviewed or audited |
602 |
financial statement; or |
603 |
3. A
report of cash receipts and expenditures, a compiled |
604 |
financial statement, or a reviewed financial
statement in lieu |
605 |
of an audited financial statement. |
606 |
Section 11. Subsection
(2) of section 720.303, Florida |
607 |
Statutes, as amended by section 2 of
chapter 2004-345 and |
608 |
section 15 of chapter 2004-353, Laws of
Florida, is repealed. |
609 |
Section 12. Section
720.3035, Florida Statutes, is created |
610 |
to read: |
611 |
720.3035 Architectural
control covenants; parcel owner |
612 |
improvements; rights and privileges.-- |
613 |
(1) The
authority of an association or any architectural, |
614 |
construction improvement, or other such
similar committee of an |
615 |
association to review and approve plans
and specifications for |
616 |
the location, size, type, or appearance of
any structure or |
617 |
other improvement on a parcel, or to
enforce standards for the |
618 |
external appearance of any structure or
improvement located on a |
619 |
parcel, shall only be permitted to the
extent that the authority |
620 |
is specifically stated or reasonably
inferred as to such |
621 |
location, size, type, or appearance in the
declaration of |
622 |
covenants or other published guidelines
and standards authorized |
623 |
by the declaration of covenants. |
624 |
(2) If
the declaration of covenants or other published |
625 |
guidelines and standards authorized by the
declaration of |
626 |
covenants provides options for the use of
material, the size of |
627 |
the structure or improvement, the design
of the structure or |
628 |
improvement, or the location of the
structure or improvement on |
629 |
the parcel, neither the association nor
any architectural, |
630 |
construction improvement, or other such
similar committee of the |
631 |
association shall restrict the right of a
parcel owner to select |
632 |
from the options provided in the
declaration of covenants or |
633 |
other published guidelines and standards
authorized by the |
634 |
declaration of covenants. |
635 |
(3) Unless
otherwise specifically stated in the |
636 |
declaration of covenants or other
published guidelines and |
637 |
standards authorized by the declaration of
covenants, each |
638 |
parcel shall be deemed to have only one
front for purposes of |
639 |
determining the required front setback
even if the parcel is |
640 |
bounded by a roadway or other easement on
more than one side. |
641 |
When the declaration of covenants or other
published guidelines |
642 |
and standards authorized by the
declaration of covenants do not |
643 |
provide for specific setback limitations,
the applicable county |
644 |
or municipal setback limitations shall
apply, and neither the |
645 |
association nor any architectural,
construction improvement, or |
646 |
other such similar committee of the
association shall enforce or |
647 |
attempt to enforce any setback limitation
that is inconsistent |
648 |
with the applicable county or municipal
standard or standards. |
649 |
(4) Each
parcel owner shall be entitled to the rights and |
650 |
privileges set forth in the declaration of
covenants or other |
651 |
published guidelines and standards
authorized by the declaration |
652 |
of covenants concerning the use of the
parcel, and the |
653 |
construction of permitted structures and
improvements on the |
654 |
parcel and such rights and privileges
shall not be unreasonably |
655 |
infringed upon or impaired by the
association or any |
656 |
architectural, construction improvement,
or other such similar |
657 |
committee of the association. If the
association or any |
658 |
architectural, construction improvement,
or other such similar |
659 |
committee of the association should
knowingly and willfully |
660 |
infringe upon or impair the rights and
privileges set forth in |
661 |
the declaration of covenants or other
published guidelines and |
662 |
standards authorized by the declaration of
covenants, the |
663 |
adversely affected parcel owner shall be
entitled to recover |
664 |
damages caused by such infringement or
impairment, including any |
665 |
costs and reasonable attorney's fees
incurred in preserving or |
666 |
restoring the rights and privileges of the
parcel owner set |
667 |
forth in the declaration of covenants or
other published |
668 |
guidelines and standards authorized by the
declaration of |
669 |
covenants. |
670 |
(5) Neither
the association nor any architectural, |
671 |
construction improvement, or other such
similar committee of the |
672 |
association shall enforce any policy or
restriction that is |
673 |
inconsistent with the rights and
privileges of a parcel owner |
674 |
set forth in the declaration of covenants
or other published |
675 |
guidelines and standards authorized by the
declaration of |
676 |
covenants, whether uniformly applied or
not. Neither the |
677 |
association nor any architectural,
construction improvement, or |
678 |
other such similar committee of the
association may rely upon a |
679 |
policy or restriction that is inconsistent
with the declaration |
680 |
of covenants or other published guidelines
and standards |
681 |
authorized by the declaration of
covenants, whether uniformly |
682 |
applied or not, in defense of any action
taken in the name of or |
683 |
on behalf of the association against a
parcel owner. |
684 |
Section 13. Subsection
(1) of section 720.305, Florida |
685 |
Statutes, is amended to read: |
686 |
720.305 Obligations
of members; remedies at law or in |
687 |
equity; levy of fines and suspension of use
rights; failure to |
688 |
fill sufficient number of vacancies on board
of directors to |
689 |
constitute a quorum; appointment of receiver
upon petition of |
690 |
any member.-- |
691 |
(1) Each
member and the member's tenants, guests, and |
692 |
invitees, and each association, are governed
by, and must comply |
693 |
with, this chapter, the governing documents
of the community, |
694 |
and the rules of the association. Actions at
law or in equity, |
695 |
or both, to redress alleged failure or
refusal to comply with |
696 |
these provisions may be brought by the
association or by any |
697 |
member against: |
698 |
(a) The
association; |
699 |
(b) A
member; |
700 |
(c) Any
director or officer of an association who |
701 |
willfully and knowingly fails to comply with
these provisions; |
702 |
and |
703 |
(d) Any
tenants, guests, or invitees occupying a parcel or |
704 |
using the common areas. |
705 |
|
706 |
The prevailing party in any such litigation
is entitled to |
707 |
recover reasonable attorney's fees and costs.
A member |
708 |
prevailing in an action between the
association and the member |
709 |
under this section, in addition to
recovering his or her |
710 |
reasonable attorney's fees, may recover
additional amounts as |
711 |
determined by the court to be necessary to
reimburse the member |
712 |
for his or her share of assessments levied
by the association to |
713 |
fund its expenses of the litigation. This
relief does not |
714 |
exclude other remedies provided by law.
This section does not |
715 |
deprive any person of any other available
right or remedy. |
716 |
Section 14. Paragraph
(c) of subsection (1) of section |
717 |
720.306, Florida Statutes, is amended to
read: |
718 |
720.306 Meetings
of members; voting and election |
719 |
procedures; amendments.-- |
720 |
(1) QUORUM;
AMENDMENTS.-- |
721 |
(c) Unless
otherwise provided in the governing documents |
722 |
as originally recorded or permitted by this
chapter or chapter |
723 |
617, an amendment may not materially and
adversely alter the |
724 |
proportionate voting interest appurtenant to
a parcel or |
725 |
increase the proportion or percentage by
which a parcel shares |
726 |
in the common expenses of the association
unless the record |
727 |
parcel owner and all record owners of liens
on the parcels join |
728 |
in the execution of the amendment. For
purposes of this section, |
729 |
a change in quorum requirements is not an
alteration of voting |
730 |
interests. The merger or consolidation of
one or more |
731 |
associations under a plan of merger or
consolidation under |
732 |
chapter 607 or chapter 617 shall not be
considered a material or |
733 |
adverse alteration of the proportionate
voting interest |
734 |
appurtenant to a parcel. |
735 |
Section 15. Paragraph
(t) is added to subsection (3) of |
736 |
section 720.307, Florida Statutes, to read: |
737 |
720.307 Transition
of association control in a |
738 |
community.--With respect to homeowners'
associations: |
739 |
(3) At
the time the members are entitled to elect at least |
740 |
a majority of the board of directors of the
homeowners' |
741 |
association, the developer shall, at the
developer's expense, |
742 |
within no more than 90 days deliver the
following documents to |
743 |
the board: |
744 |
(t) The
financial records, including financial statements |
745 |
of the association, and source documents
from the incorporation |
746 |
of the association through the date of
turnover. The records |
747 |
shall be audited by an independent
certified public accountant |
748 |
for the period from the incorporation of
the association or from |
749 |
the period covered by the last audit, if
an audit has been |
750 |
performed for each fiscal year since
incorporation. All |
751 |
financial statements shall be prepared in
accordance with |
752 |
generally accepted accounting principles
and shall be audited in |
753 |
accordance with generally accepted
auditing standards, as |
754 |
prescribed by the Board of Accountancy,
pursuant to chapter 473. |
755 |
The certified public accountant performing
the audit shall |
756 |
examine to the extent necessary supporting
documents and |
757 |
records, including the cash disbursements
and related paid |
758 |
invoices to determine if expenditures were
for association |
759 |
purposes and the billings, cash receipts,
and related records of |
760 |
the association to determine that the
developer was charged and |
761 |
paid the proper amounts of assessments.
This paragraph applies |
762 |
to associations with a date of
incorporation after December 31, |
763 |
2006. |
764 |
Section 16. Section
720.308, Florida Statutes, is amended |
765 |
to read: |
766 |
720.308 Assessments
and charges.-- |
767 |
(1) ASSESSMENTS.--For
any community created after October |
768 |
1, 1995, the governing documents must
describe the manner in |
769 |
which expenses are shared and specify the
member's proportional |
770 |
share thereof. Assessments levied pursuant to
the annual budget |
771 |
or special assessment must be in the member's
proportional share |
772 |
of expenses as described in the governing
document, which share |
773 |
may be different among classes of parcels
based upon the state |
774 |
of development thereof, levels of services
received by the |
775 |
applicable members, or other relevant
factors. While the |
776 |
developer is in control of the homeowners'
association, it may |
777 |
be excused from payment of its share of the
operating expenses |
778 |
and assessments related to its parcels for
any period of time |
779 |
for which the developer has, in the
declaration, obligated |
780 |
itself to pay any operating expenses incurred
that exceed the |
781 |
assessments receivable from other members and
other income of |
782 |
the association. This section does not apply
to an association, |
783 |
no matter when created, if the association is
created in a |
784 |
community that is included in an effective
development-of- |
785 |
regional-impact development order as of the
effective date of |
786 |
this act, together with any approved
modifications thereto. |
787 |
(2) GUARANTEES
OF COMMON EXPENSES.-- |
788 |
(a) Establishment
of a guarantee.--If a guarantee of the |
789 |
assessments of parcel owners is not
included in the purchase |
790 |
contracts or declaration, any agreement
establishing a guarantee |
791 |
shall only be effective upon the approval
of a majority of the |
792 |
voting interests of the members other than
the developer. |
793 |
Approval shall be expressed at a meeting
of the members voting |
794 |
in person or by limited proxy or by
agreement in writing without |
795 |
a meeting if provided in the bylaws. Such
guarantee shall meet |
796 |
the requirements of this section. |
797 |
(b) Guarantee
period.--The period of time for the |
798 |
guarantee shall be indicated by a specific
beginning and ending |
799 |
date or event. |
800 |
1. The
ending date or event shall be the same for all of |
801 |
the members of an association, including
members in different |
802 |
phases of the development. |
803 |
2. The
guarantee may provide for different intervals of |
804 |
time during a guarantee period with
different dollar amounts for |
805 |
each such interval. |
806 |
3. The
guarantee may provide that after the initial stated |
807 |
period, the developer has an option to
extend the guarantee for |
808 |
one or more additional stated periods. The
extension of a |
809 |
guarantee is limited to extending the
ending date or event; |
810 |
therefore, the developer does not have the
option of changing |
811 |
the level of assessments guaranteed. |
812 |
(3) MAXIMUM
LEVEL OF ASSESSMENTS.--The stated dollar |
813 |
amount of the guarantee shall be an exact
dollar amount for each |
814 |
parcel identified in the declaration.
Regardless of the stated |
815 |
dollar amount of the guarantee,
assessments charged to a member |
816 |
shall not exceed the maximum obligation of
the member based on |
817 |
the total amount of the adopted budget and
the member's |
818 |
proportionate ownership share of the
common elements. |
819 |
(4) CASH
FUNDING REQUIREMENTS DURING GUARANTEE.--The cash |
820 |
payments required from the guarantor
during the guarantee period |
821 |
shall be determined as follows: |
822 |
(a) If
at any time during the guarantee period the funds |
823 |
collected from member assessments at the
guaranteed level and |
824 |
other revenues collected by the
association are not sufficient |
825 |
to provide payment, on a timely basis, of
all assessments, |
826 |
including the full funding of the reserves
unless properly |
827 |
waived, the guarantor shall advance
sufficient cash to the |
828 |
association at the time such payments are
due. |
829 |
(b) Expenses
incurred in the production of nonassessment |
830 |
revenues, not in excess of the
nonassessment revenues, shall not |
831 |
be included in the assessments. If the
expenses attributable to |
832 |
nonassessment revenues exceed
nonassessment revenues, only the |
833 |
excess expenses must be funded by the
guarantor. Interest earned |
834 |
on the investment of association funds may
be used to pay the |
835 |
income tax expense incurred as a result of
the investment; such |
836 |
expense shall not be charged to the
guarantor; and the net |
837 |
investment income shall be retained by the
association. Each |
838 |
such nonassessment-revenue-generating
activity shall be |
839 |
considered separately. Any portion of the
parcel assessment that |
840 |
is budgeted for designated capital
contributions of the |
841 |
association shall not be used to pay
operating expenses. |
842 |
(5) CALCULATION
OF GUARANTOR'S FINAL OBLIGATION.--The |
843 |
guarantor's total financial obligation to
the association at the |
844 |
end of the guarantee period shall be
determined on the accrual |
845 |
basis using the following formula: the
guarantor shall pay any |
846 |
deficits that exceed the guaranteed
amount, less the total |
847 |
regular periodic assessments earned by the
association from the |
848 |
members other than the guarantor during
the guarantee period |
849 |
regardless of whether the actual level
charged was less than the |
850 |
maximum guaranteed amount. |
851 |
(6) EXPENSES.--Expenses
incurred in the production of |
852 |
nonassessment revenues, not in excess of
the nonassessment |
853 |
revenues, shall not be included in the
operating expenses. If |
854 |
the expenses attributable to nonassessment
revenues exceed |
855 |
nonassessment revenues, only the excess
expenses must be funded |
856 |
by the guarantor. Interest earned on the
investment of |
857 |
association funds may be used to pay the
income tax expense |
858 |
incurred as a result of the investment;
such expense shall not |
859 |
be charged to the guarantor; and the net
investment income shall |
860 |
be retained by the association. Each such
nonassessment-revenue- |
861 |
generating activity shall be considered
separately. Any portion |
862 |
of the parcel assessment that is budgeted
for designated capital |
863 |
contributions of the association shall not
be used to pay |
864 |
operating expenses. |
865 |
Section 17. Section
720.311, Florida Statutes, is amended |
866 |
to read: |
867 |
720.311 Dispute
resolution.-- |
868 |
(1) The
Legislature finds that alternative dispute |
869 |
resolution has made progress in reducing
court dockets and |
870 |
trials and in offering a more efficient,
cost-effective option |
871 |
to litigation. The filing of any petition for
mediation or |
872 |
arbitration or the serving of an offer for
presuit mediation as |
873 |
provided for in this section shall toll the
applicable statute |
874 |
of limitations. Any recall dispute filed with
the department |
875 |
pursuant to s. 720.303(10) shall be conducted
by the department |
876 |
in accordance with the provisions of ss.
718.112(2)(j) and |
877 |
718.1255 and the rules adopted by the
division. In addition, the |
878 |
department shall conduct mandatory binding
arbitration of |
879 |
election disputes between a member and an
association pursuant |
880 |
to s. 718.1255 and rules adopted by the
division. Neither |
881 |
election disputes nor recall disputes are
eligible for presuit |
882 |
mediation; these disputes shall be arbitrated
by the department. |
883 |
At the conclusion of the proceeding, the
department shall charge |
884 |
the parties a fee in an amount adequate to
cover all costs and |
885 |
expenses incurred by the department in
conducting the |
886 |
proceeding. Initially, the petitioner shall
remit a filing fee |
887 |
of at least $200 to the department. The fees
paid to the |
888 |
department shall become a recoverable cost in
the arbitration |
889 |
proceeding, and the prevailing party in an
arbitration |
890 |
proceeding shall recover its reasonable costs
and attorney's |
891 |
fees in an amount found reasonable by the
arbitrator. The |
892 |
department shall adopt rules to effectuate
the purposes of this |
893 |
section. |
894 |
(2)(a) Disputes
between an association and a parcel owner |
895 |
regarding use of or changes to the parcel or
the common areas |
896 |
and other covenant enforcement disputes,
disputes regarding |
897 |
amendments to the association documents,
disputes regarding |
898 |
meetings of the board and committees
appointed by the board, |
899 |
membership meetings not including election
meetings, and access |
900 |
to the official records of the association
shall be the subject |
901 |
of an offer filed with the
department for presuit mandatory |
902 |
mediation served by an aggrieved party
before the dispute is |
903 |
filed in court. Presuit mediation
proceedings must be conducted |
904 |
in accordance with the applicable Florida
Rules of Civil |
905 |
Procedure, and these proceedings are
privileged and confidential |
906 |
to the same extent as court-ordered
mediation. Disputes subject |
907 |
to presuit mediation under this section
shall not include the |
908 |
collection of any assessment, fine, or
other financial |
909 |
obligation, including attorney's fees and
costs, claimed to be |
910 |
due or any action to enforce a prior
mediation settlement |
911 |
agreement between the parties. Also, in
any dispute subject to |
912 |
presuit mediation under this section where
emergency relief is |
913 |
required, a motion for temporary
injunctive relief may be filed |
914 |
with the court without first complying
with the presuit |
915 |
mediation requirements of this section.
After any issues |
916 |
regarding emergency or temporary relief
are resolved, the court |
917 |
may either refer the parties to a
mediation program administered |
918 |
by the courts or require mediation under
this section. An |
919 |
arbitrator or judge may not consider any
information or evidence |
920 |
arising from the presuit mediation
proceeding except in a |
921 |
proceeding to impose sanctions for failure to
attend a presuit |
922 |
mediation session or with the parties'
agreement in a proceeding |
923 |
seeking to enforce the agreement.
Persons who are not parties to |
924 |
the dispute may not attend the presuit
mediation conference |
925 |
without the consent of all parties, except
for counsel for the |
926 |
parties and a corporate representative
designated by the |
927 |
association. When mediation is attended by a
quorum of the |
928 |
board, such mediation is not a board meeting
for purposes of |
929 |
notice and participation set forth in s.
720.303. An aggrieved |
930 |
party shall serve on the responding party
a written offer to |
931 |
participate in presuit mediation in
substantially the following |
932 |
form: |
933 |
|
934 |
STATUTORY OFFER TO PARTICIPATE IN
PRESUIT MEDIATION |
935 |
|
936 |
The alleged aggrieved
party,__________________, hereby |
937 |
offers to _________________, as the
responding party, |
938 |
to enter into presuit mediation in
connection with the |
939 |
following dispute, which by statute is of
a type that |
940 |
is subject to presuit mediation: |
941 |
|
942 |
(List specific nature of the dispute or
disputes to be |
943 |
mediated and the authority supporting a
finding of a |
944 |
violation as to each dispute.) |
945 |
|
946 |
Pursuant to section 720.311, Florida
Statutes, this |
947 |
offer to resolve the dispute through
presuit mediation |
948 |
is required before a lawsuit can be filed
concerning |
949 |
the dispute. Pursuant to the statute, the
aggrieved |
950 |
party is hereby offering to engage in
presuit |
951 |
mediation with a neutral third-party
mediator in order |
952 |
to attempt to resolve this dispute without
court |
953 |
action, and the aggrieved party demands
that you |
954 |
likewise agree to this process. If you
fail to agree |
955 |
to presuit mediation, or if you agree and
later fail |
956 |
to follow through with your agreement to
mediate, suit |
957 |
may be brought against you without further
warning. |
958 |
|
959 |
The process of mediation involves a
supervised |
960 |
negotiation process in which a trained,
neutral third- |
961 |
party mediator meets with both parties and
assists |
962 |
them in exploring possible opportunities
for resolving |
963 |
part or all of the dispute. The mediation
process is a |
964 |
voluntary one. By agreeing to participate
in presuit |
965 |
mediation, you are not bound in any way to
change your |
966 |
position or to enter into any type of
agreement. |
967 |
Furthermore, the mediator has no authority
to make any |
968 |
decisions in this matter or to determine
who is right |
969 |
or wrong and merely acts as a facilitator
to ensure |
970 |
that each party understands the position
of the other |
971 |
party and that all reasonable settlement
options are |
972 |
fully explored. All mediation
communications are |
973 |
confidential under the Mediation
Confidentiality and |
974 |
Privilege Act pursuant to sections
44.401-44.406, |
975 |
Florida Statutes, and a mediation
participant may not |
976 |
disclose a mediation communication to a
person other |
977 |
than a mediation participant or a
participant's |
978 |
counsel. |
979 |
|
980 |
If an agreement is reached, it shall be
reduced to |
981 |
writing and becomes a binding and
enforceable |
982 |
commitment of the parties. A resolution of
one or more |
983 |
disputes in this fashion avoids the need
to litigate |
984 |
these issues in court. The failure to
reach an |
985 |
agreement, or the failure of a party to
participate in |
986 |
the process, results in the mediator's
declaring an |
987 |
impasse in the mediation, after which the
aggrieved |
988 |
party may proceed to court on all
outstanding, |
989 |
unsettled disputes. |
990 |
|
991 |
The aggrieved party has selected and
hereby lists |
992 |
three certified mediators who we believe
to be neutral |
993 |
and qualified to mediate the dispute. You
have the |
994 |
right to select any one of these
mediators. The fact |
995 |
that one party may be familiar with one or
more of the |
996 |
listed mediators does not mean that the
mediator |
997 |
cannot act as a neutral and impartial
facilitator. Any |
998 |
mediator who cannot act in this capacity
ethically |
999 |
must decline to accept engagement. The
mediators that |
1000 |
we suggest, and their current hourly
rates, are as |
1001 |
follows: |
1002 |
|
1003 |
(List the names, addresses, telephone
numbers, and |
1004 |
hourly rates of the mediators. Other
pertinent |
1005 |
information about the background of the
mediators may |
1006 |
be included as an attachment.) |
1007 |
|
1008 |
You may contact the offices of these
mediators to |
1009 |
confirm that the listed mediators will be
neutral and |
1010 |
will not show any favoritism toward either
party. The |
1011 |
names of certified mediators may be found
through the |
1012 |
office of the clerk of the circuit court
for this |
1013 |
circuit. |
1014 |
|
1015 |
If you agree to participate in the presuit
mediation |
1016 |
process, the statute requires that each
party is to |
1017 |
pay one-half of the costs and fees
involved in the |
1018 |
presuit mediation process unless otherwise
agreed by |
1019 |
all parties. An average mediation may
require 3 to 4 |
1020 |
hours of the mediator's time, including
some |
1021 |
preparation time, and each party would
need to pay |
1022 |
one-half of the mediator's fees as well as
his or her |
1023 |
own attorney's fees if he or she chooses
to employ an |
1024 |
attorney in connection with the mediation.
However, |
1025 |
use of an attorney is not required and is
at the |
1026 |
option of each party. The mediator may
require the |
1027 |
advance payment of some or all of the
anticipated |
1028 |
fees. The aggrieved party hereby agrees to
pay or |
1029 |
prepay one-half of the mediator's
estimated fees and |
1030 |
to forward this amount or such other
reasonable |
1031 |
advance deposits as the mediator may
require for this |
1032 |
purpose. Any funds deposited will be
returned to you |
1033 |
if these are in excess of your share of
the fees |
1034 |
incurred. |
1035 |
|
1036 |
If you agree to participate in presuit
mediation in |
1037 |
order to attempt to resolve the dispute
and thereby |
1038 |
avoid further legal action, please sign
below and |
1039 |
clearly indicate which mediator is
acceptable to you. |
1040 |
We will then ask the mediator to schedule
a mutually |
1041 |
convenient time and place for the
mediation conference |
1042 |
to be held. The mediation conference must
be held |
1043 |
within 90 days after the date of this
letter unless |
1044 |
extended by mutual written agreement. In
the event |
1045 |
that you fail to respond within 20 days
after the date |
1046 |
of this letter, or if you fail to agree to
at least |
1047 |
one of the mediators that we have
suggested and to pay |
1048 |
or prepay to the mediator one-half of the
costs |
1049 |
involved, the aggrieved party will be
authorized to |
1050 |
proceed with the filing of a lawsuit
against you |
1051 |
without further notice and may seek an
award of |
1052 |
attorney's fees or costs incurred in
attempting to |
1053 |
obtain mediation. |
1054 |
|
1055 |
Should you wish, you may also elect to
waive presuit |
1056 |
mediation so that this matter may proceed
directly to |
1057 |
court. |
1058 |
|
1059 |
Therefore, please give this matter your
immediate |
1060 |
attention. By law, your response must be
mailed by |
1061 |
certified mail, return receipt requested,
with an |
1062 |
additional copy being sent by regular
first-class mail |
1063 |
to the address shown on this offer. |
1064 |
|
1065 |
_____________________ |
1066 |
_____________________ |
1067 |
|
1068 |
RESPONDING PARTY: CHOOSE ONLY ONE OF THE
TWO OPTIONS |
1069 |
BELOW. YOUR SIGNATURE INDICATES YOUR
AGREEMENT TO THAT |
1070 |
CHOICE. |
1071 |
|
1072 |
AGREEMENT TO MEDIATE |
1073 |
|
1074 |
The undersigned hereby agrees to
participate in |
1075 |
presuit mediation and agrees to the
following mediator |
1076 |
or mediators as acceptable to mediate this
dispute: |
1077 |
|
1078 |
(List acceptable mediator or mediators.) |
1079 |
|
1080 |
I/we further agree to pay or prepay
one-half of the |
1081 |
mediator's fees and to forward such
advance deposits |
1082 |
as the mediator may require for this
purpose. |
1083 |
|
1084 |
_______________________ |
1085 |
Signature of responding party #1 |
1086 |
|
1087 |
_______________________ |
1088 |
Signature of responding party #2 (if
applicable)(if |
1089 |
property is owned by more than one person,
all owners |
1090 |
must sign) |
1091 |
|
1092 |
WAIVER OF MEDIATION |
1093 |
|
1094 |
The undersigned hereby waives the right to
participate |
1095 |
in presuit mediation of the dispute listed
above and |
1096 |
agrees to allow the aggrieved party to
proceed in |
1097 |
court on such matters. |
1098 |
|
1099 |
__________________________ |
1100 |
Signature of responding party #1 |
1101 |
|
1102 |
___________________________ |
1103 |
Signature of responding party #2 (if
applicable)(if |
1104 |
property is owned by more than one person,
all owners |
1105 |
must sign) |
1106 |
|
1107 |
(b) Service
of the statutory offer to participate in |
1108 |
presuit mediation shall be effected by
sending a letter in |
1109 |
substantial conformity with the above form
by certified mail, |
1110 |
return receipt requested, with an
additional copy being sent by |
1111 |
regular first-class mail, to the address
of the responding party |
1112 |
as it last appears on the books and
records of the association. |
1113 |
The responding party shall have 20 days
from the date of the |
1114 |
mailing of the statutory offer to serve a
response to the |
1115 |
aggrieved party in writing. The response
shall be served by |
1116 |
certified mail, return receipt requested,
with an additional |
1117 |
copy being sent by regular first-class
mail, to the address |
1118 |
shown on the statutory offer. In the
alternative, the responding |
1119 |
party may waive mediation in writing.
Notwithstanding the |
1120 |
foregoing, once the parties have agreed on
a mediator, the |
1121 |
mediator may reschedule the mediation for
a date and time |
1122 |
mutually convenient to the parties. The
department shall conduct |
1123 |
the proceedings through the use of
department mediators or refer |
1124 |
the disputes to private mediators who have
been duly certified |
1125 |
by the department as provided in paragraph
(c). The parties |
1126 |
shall share the costs of presuit
mediation equally, including |
1127 |
the fee charged by the mediator, if any,
unless the parties |
1128 |
agree otherwise, and the mediator may
require advance payment of |
1129 |
its reasonable fees and costs. The failure
of any party to |
1130 |
respond to a demand or response, to agree
upon a mediator, to |
1131 |
make payment of fees and costs within the
time established by |
1132 |
the mediator, or to appear for a scheduled
mediation session |
1133 |
shall operate as an impasse in the presuit
mediation by such |
1134 |
party, entitling the other party to
proceed in court and to seek |
1135 |
an award of the costs and fees associated
with the mediation. |
1136 |
Additionally, if any presuit mediation
session cannot be |
1137 |
scheduled and conducted within 90 days
after the offer to |
1138 |
participate in mediation was filed, an
impasse shall be deemed |
1139 |
to have occurred unless both parties agree
to extend this |
1140 |
deadline. If a department mediator
is used, the department may |
1141 |
charge such fee as is necessary to pay
expenses of the |
1142 |
mediation, including, but not limited to,
the salary and |
1143 |
benefits of the mediator and any travel
expenses incurred. The |
1144 |
petitioner shall initially file with the
department upon filing |
1145 |
the disputes, a filing fee of $200, which
shall be used to |
1146 |
defray the costs of the mediation. At the
conclusion of the |
1147 |
mediation, the department shall charge to
the parties, to be |
1148 |
shared equally unless otherwise agreed by
the parties, such |
1149 |
further fees as are necessary to fully
reimburse the department |
1150 |
for all expenses incurred in the
mediation. |
1151 |
(c)(b) If
presuit mediation as described in paragraph (a) |
1152 |
is not successful in resolving all issues
between the parties, |
1153 |
the parties may file the unresolved dispute
in a court of |
1154 |
competent jurisdiction or elect to enter into
binding or |
1155 |
nonbinding arbitration pursuant to the
procedures set forth in |
1156 |
s. 718.1255 and rules adopted by the
division, with the |
1157 |
arbitration proceeding to be conducted by a
department |
1158 |
arbitrator or by a private arbitrator
certified by the |
1159 |
department. If all parties do not agree to
arbitration |
1160 |
proceedings following an unsuccessful presuit
mediation, any |
1161 |
party may file the dispute in court. A final
order resulting |
1162 |
from nonbinding arbitration is final and
enforceable in the |
1163 |
courts if a complaint for trial de novo is
not filed in a court |
1164 |
of competent jurisdiction within 30 days
after entry of the |
1165 |
order. As to any issue or dispute that is
not resolved at |
1166 |
presuit mediation, and as to any issue
that is settled at |
1167 |
presuit mediation but is thereafter
subject to an action seeking |
1168 |
enforcement of the mediation settlement,
the prevailing party in |
1169 |
any subsequent arbitration or litigation
proceeding shall be |
1170 |
entitled to seek recovery of all costs and
attorney's fees |
1171 |
incurred in the presuit mediation process. |
1172 |
(d)(c) The
department shall develop a certification and |
1173 |
training program for private mediators and
private arbitrators |
1174 |
which shall emphasize experience and
expertise in the area of |
1175 |
the operation of community associations.
A mediator or |
1176 |
arbitrator shall be certified to conduct
mediation or |
1177 |
arbitration under this section by
the department only if he or |
1178 |
she has been certified as a circuit court
civil mediator or |
1179 |
arbitrator, respectively, pursuant to the
requirements |
1180 |
established attended at least 20
hours of training in mediation |
1181 |
or arbitration, as appropriate, and only
if the applicant has |
1182 |
mediated or arbitrated at least 10
disputes involving community |
1183 |
associations within 5 years prior to the
date of the |
1184 |
application, or has mediated or arbitrated
10 disputes in any |
1185 |
area within 5 years prior to the date of
application and has |
1186 |
completed 20 hours of training in
community association |
1187 |
disputes. In order to be certified by the
department, any |
1188 |
mediator must also be certified by the
Florida Supreme Court. |
1189 |
The department may conduct the training
and certification |
1190 |
program within the department or may
contract with an outside |
1191 |
vendor to perform the training or
certification. The expenses of |
1192 |
operating the training and certification
and training program |
1193 |
shall be paid by the moneys and filing
fees generated by the |
1194 |
arbitration of recall and election
disputes and by the mediation |
1195 |
of those disputes referred to in this
subsection and by the |
1196 |
training fees. |
1197 |
(e)(d) The
presuit mediation procedures provided by this |
1198 |
subsection may be used by a Florida
corporation responsible for |
1199 |
the operation of a community in which the
voting members are |
1200 |
parcel owners or their representatives, in
which membership in |
1201 |
the corporation is not a mandatory condition
of parcel |
1202 |
ownership, or which is not authorized to
impose an assessment |
1203 |
that may become a lien on the parcel. |
1204 |
(3) The
department shall develop an education program to |
1205 |
assist homeowners, associations, board
members, and managers in |
1206 |
understanding and increasing awareness of
the operation of |
1207 |
homeowners' associations pursuant to this
chapter and in |
1208 |
understanding the use of alternative
dispute resolution |
1209 |
techniques in resolving disputes between
parcel owners and |
1210 |
associations or between owners. Such
education program may |
1211 |
include the development of pamphlets and
other written |
1212 |
instructional guides, the holding of
classes and meetings by |
1213 |
department employees or outside vendors,
as the department |
1214 |
determines, and the creation and
maintenance of a website |
1215 |
containing instructional materials. The
expenses of operating |
1216 |
the education program shall be initially
paid by the moneys and |
1217 |
filing fees generated by the arbitration
of recall and election |
1218 |
disputes and by the mediation of those
disputes referred to in |
1219 |
this subsection. |
1220 |
Section 18. Except
as otherwise expressly provided in this |
1221 |
act, this act shall take effect July 1, 2006. |