| 4068 |
Section
51. Subsections (2), (4), (7), (8), (9), and (10) |
| 4069 |
of section 720.301,
Florida Statutes, are amended, and |
| 4070 |
subsection (14) is added
to that section, to read: |
| 4071 |
720.301 Definitions.--As
used in this chapter, the term: |
| 4072 |
(2) "Common
area" means all real property within a |
| 4073 |
community which is owned
or leased by an association or |
| 4074 |
dedicated
for use or maintenance by the association or its |
| 4075 |
members, including,
regardless of whether title has been |
| 4076 |
conveyed to the
association: |
| 4077 |
(a) Real
property the use of which is dedicated to the |
| 4078 |
association or its
members by a recorded plat; or |
| 4079 |
(b) Real
property committed by a declaration of covenants |
| 4080 |
to be leased or conveyed
to the association. |
| 4081 |
(4) "Declaration
of covenants," or "declaration," means a |
| 4082 |
recorded written
instrument in the nature of covenants running |
| 4083 |
with the land,
according to the recorded plat, which subjects |
| 4084 |
the land comprising the
community to the jurisdiction and |
| 4085 |
control of an association
or associations in which the owners of |
| 4086 |
the parcels,
or their association representatives, must be |
| 4087 |
members. Upon
the execution of the sale of the first lot, a |
| 4088 |
declaration
may not be amended without the vote of approval of |
| 4089 |
two-thirds
majority of the owners of residential parcels that |
| 4090 |
have
been purchased, with a tie vote resulting in a negative |
| 4091 |
vote.
Exceptions shall be amendments identifying additional |
| 4092 |
phases
of the community as they are constructed. These |
| 4093 |
amendments
may not contain any other changes to the existing |
| 4094 |
declaration. |
| 4095 |
(7) "Division"
means the Division of Florida Land Sales, |
| 4096 |
Condominiums, Homeowners'
Associations, and Mobile Homes in the |
| 4097 |
Department of Business
and Professional Regulation. |
| 4098 |
(8) "Governing
documents" means: |
| 4099 |
(a) Each
set of The recorded
declaration of covenants for |
| 4100 |
a community, and all duly
adopted and recorded amendments, |
| 4101 |
supplements, and recorded
exhibits thereto; and |
| 4102 |
(b) The
articles of incorporation and bylaws of the |
| 4103 |
homeowners' association,
and any duly adopted amendments |
| 4104 |
thereto. |
| 4105 |
|
| 4106 |
When
different sets of covenants exist for each recorded plat, |
| 4107 |
those
covenants shall only apply to the plat for which they are |
| 4108 |
recorded
and specified. The different sets of covenants may not |
| 4109 |
be
commingled. |
| 4110 |
(9) "Homeowners'
association" or "association" means a |
| 4111 |
Florida corporation,
as authorized by chapter 720 or an |
| 4112 |
authorized
not-for-profit corporation pursuant to chapter 617, |
| 4113 |
responsible for the administration
operation of a community or a |
| 4114 |
mobile home subdivision
in compliance with applicable federal, |
| 4115 |
state,
and local laws and the governing documents of the |
| 4116 |
association.
In addition, a homeowners' association means a |
| 4117 |
Florida
corporation in which the voting membership is made up of |
| 4118 |
parcel owners or their
agents, or a combination thereof, and in |
| 4119 |
which membership is a
mandatory condition of parcel ownership, |
| 4120 |
and which is authorized
to impose assessments that, if unpaid, |
| 4121 |
may become a lien on the
parcel. Any homeowners' association or |
| 4122 |
other
named association that administers a residential community |
| 4123 |
where
membership is mandatory shall be required to comply with |
| 4124 |
this
chapter, except if exempted. The term "homeowners' |
| 4125 |
association" does
not include a community development district |
| 4126 |
or other similar special
taxing district created pursuant to |
| 4127 |
statute. |
| 4128 |
(10) "Member"
means a member of an association, and may |
| 4129 |
include, but is not
limited to, a parcel owner or an association |
| 4130 |
representing
parcel owners or a combination thereof, and |
| 4131 |
includes any person or
entity obligated by the governing |
| 4132 |
documents to pay an
assessment or amenity fee. |
| 4133 |
(14) "Homeowners'
Association Advisory Council" means a |
| 4134 |
group
of persons appointed to recommend changes in laws that |
| 4135 |
affect
the administration of mandatory homeowners' associations. |
| 4136 |
Section
52. Subsections (1) and (2) of section 720.302, |
| 4137 |
Florida Statutes, are
amended to read: |
| 4138 |
720.302 Purposes,
scope, and application.-- |
| 4139 |
(1) The
purposes of this chapter are to give statutory |
| 4140 |
recognition to
corporations not for profit that administer
or |
| 4141 |
operate residential
communities in this state, to provide |
| 4142 |
regulations
procedures for operating
homeowners' associations, |
| 4143 |
and to protect the rights
of association members without unduly |
| 4144 |
impairing the ability of
such associations to perform their |
| 4145 |
functions as
authorized by federal, state, and local laws and |
| 4146 |
the
governing documents of the association. |
| 4147 |
(2) Having
provided certain powers and authority to |
| 4148 |
homeowners'
associations and deed restrictions created by |
| 4149 |
developers
of mandated properties in residential communities, |
| 4150 |
the Legislature
recognizes that it is necessary to provide |
| 4151 |
regulatory
oversight to ensure compliance with federal, state, |
| 4152 |
and
local laws. It is the intent of the Legislature to protect |
| 4153 |
the
rights of parcel owners by ensuring that the powers and |
| 4154 |
authority
granted to homeowners' associations and deed |
| 4155 |
restrictions
created by developers of mandated properties in |
| 4156 |
residential
communities conform to a system of checks and |
| 4157 |
balances
to prevent abuses of governmental authority. The |
| 4158 |
Department
of Business and Professional Regulation shall create |
| 4159 |
a
Division of Mandated Properties. No later than July 1, 2008, |
| 4160 |
the
division shall establish a process for collecting an annual |
| 4161 |
fee
which shall not exceed $4 for each association member in |
| 4162 |
communities
administered by the association during each of the |
| 4163 |
following
2 years and, thereafter, shall not exceed the Cost of |
| 4164 |
Living
Index. Funds collected shall be deposited in the Division |
| 4165 |
of
Florida Land Sales, Condominiums, Homeowners' Associations, |
| 4166 |
and
Mobile Homes Trust Fund Trust Fund. Funds shall be utilized |
| 4167 |
by the
division for, but not limited to, the review and approval |
| 4168 |
of
deed restrictions before releasing for recording at the |
| 4169 |
county
level by the developer or owner of the initial lots to be |
| 4170 |
developed;
education; enforcement; investigation; and |
| 4171 |
prosecution
of policies and procedures related to mandated |
| 4172 |
properties.
Upon transition of authorities, duties, |
| 4173 |
responsibilities,
and rights from the developer to the parcel |
| 4174 |
owners,
all amendments, alterations, or modifications to the |
| 4175 |
governing
documents must be approved by at least two-thirds of |
| 4176 |
the
parcel owners or homeowners' association members. The |
| 4177 |
governing
documents may not contain provisions that reduce this |
| 4178 |
percentage
of majority approval for changes to the governing |
| 4179 |
documents.
The ombudsman may not engage the services of industry |
| 4180 |
partisans
with a vested interest in the administration of deed- |
| 4181 |
restricted
communities or in the mandatory homeowners' |
| 4182 |
association
to implement its powers, who have practiced in this |
| 4183 |
field
within the last 3 years. Furthermore not
in the best |
| 4184 |
interest
of homeowners' associations or the individual |
| 4185 |
association
members thereof to create or impose a bureau or |
| 4186 |
other
agency of state government to regulate the affairs of |
| 4187 |
homeowners'
associations. However, in accordance with s. |
| 4188 |
720.311, the Legislature
finds that homeowners' associations and |
| 4189 |
their individual members
will benefit from an expedited |
| 4190 |
alternative process for
resolution of election and recall |
| 4191 |
disputes and presuit
mediation of other disputes involving |
| 4192 |
covenant enforcement,
disputes relating to the transition of |
| 4193 |
control
of the association from the developer or owner to |
| 4194 |
members
of the association, and authorizes the department to |
| 4195 |
hear, administer, and
determine these disputes as more fully set |
| 4196 |
forth in this chapter.
Further, the Legislature recognizes that |
| 4197 |
certain contract rights
have been created for the benefit of |
| 4198 |
homeowners' associations
and members thereof before the |
| 4199 |
effective date of this
act and that ss. 720.301-720.407 are not |
| 4200 |
intended to impair such
contract rights, as long as they are |
| 4201 |
accepted
by a two-thirds majority of the homeowners' association |
| 4202 |
members,
including, but not limited to, the rights of the |
| 4203 |
developer to complete the
community as initially contemplated. |
| 4204 |
Section
53. Section 720.303, Florida Statutes, is amended |
| 4205 |
to read: |
| 4206 |
720.303 Association
powers and duties; meetings of board; |
| 4207 |
official records;
budgets; financial reporting; association |
| 4208 |
funds; recalls.-- |
| 4209 |
(1) POWERS
AND DUTIES.-- |
| 4210 |
(a) An
association which operates a community as defined |
| 4211 |
in s. 720.301, must be incorporated
in this state, operated by |
| 4212 |
an
association that is a Florida corporation. After October 1, |
| 4213 |
1995,
the association must be incorporated and the initial |
| 4214 |
governing documents must
be recorded in the official records of |
| 4215 |
the county in which the
community is located. An association may |
| 4216 |
operate
more than one community. |
| 4217 |
(b) The
officers and directors of an association have a |
| 4218 |
fiduciary relationship of
to the members who are served by
the |
| 4219 |
association. |
| 4220 |
(c) The
powers and duties of an association include those |
| 4221 |
set forth in this chapter
and, except as expressly limited or |
| 4222 |
restricted
in this chapter, those specifically
set forth in the |
| 4223 |
governing documents. The
officers and directors of the |
| 4224 |
association
may not take any action that is inconsistent with |
| 4225 |
the
declaration of covenants. |
| 4226 |
(d) After
control of the association is obtained by |
| 4227 |
members from
other than the developer, the
association may |
| 4228 |
institute, maintain, or
settle on ,
or appeal actions or |
| 4229 |
hearings
in its name on behalf of the all
members concerning |
| 4230 |
matters of common
interest to the members, including, but not |
| 4231 |
limited
to, the common areas; roof or structural components of a |
| 4232 |
building,
or other improvements for which the association is |
| 4233 |
responsible;
mechanical, electrical, or plumbing elements |
| 4234 |
serving
an improvement or building for which the association is |
| 4235 |
responsible;
representations of the developer pertaining to any |
| 4236 |
existing
or proposed commonly used facility; and protesting ad |
| 4237 |
valorem
taxes on commonly used facilities. The association may |
| 4238 |
defend
actions in eminent domain or bring inverse condemnation |
| 4239 |
actions.
Before commencing any legal action
litigation against |
| 4240 |
any party in the name of
the association involving amounts in |
| 4241 |
controversy in excess of $50,000
$100,000, the association must |
| 4242 |
obtain the affirmative
approval of a majority of the members of |
| 4243 |
the association voting
interests at a meeting of the association |
| 4244 |
membership
at which a quorum is present has
been attained. |
| 4245 |
(e) The
association may enter into contracts for the |
| 4246 |
benefit
of the members of the association, including, but not |
| 4247 |
limited
to, contracts for maintaining, repairing, or improving |
| 4248 |
the
common areas of the association. This subsection does not |
| 4249 |
limit
any statutory or common-law right of any individual member |
| 4250 |
or
class of members to bring any action without participation by |
| 4251 |
the
association. |
| 4252 |
(f) A
member does not have the authority
to act for the |
| 4253 |
association by virtue of
being a member of the association.
An |
| 4254 |
association
may have more than one class of members and may |
| 4255 |
issue
membership certificates. |
| 4256 |
(g) In
any civil or criminal action between a member and |
| 4257 |
the
association, it shall not be a defense by the association |
| 4258 |
that
the association's actions, although incompatible with the |
| 4259 |
declaration
of covenants, have been uniformly applied. |
| 4260 |
(h) An
association may not restrict a member's freedom of |
| 4261 |
association
and may not limit the number of guests a member may |
| 4262 |
have
within a 24-hour period. |
| 4263 |
(i) An
association of 15 or fewer parcels
parcel owners |
| 4264 |
may enforce only the
requirements of those deed restrictions |
| 4265 |
established prior to the
purchase of each parcel upon an |
| 4266 |
affected parcel owner or
owners. |
| 4267 |
(j) The
officers and directors of an association may be |
| 4268 |
personally
liable for damages to a member if the actions of the |
| 4269 |
officers
and directors demonstrate a pattern of behavior |
| 4270 |
intended
to harass a member of the association. |
| 4271 |
(k) Any
action of the association by and through the |
| 4272 |
officers
and directors that limits the legal use of any portion |
| 4273 |
of a
member's property that is incompatible with the declaration |
| 4274 |
of
covenants shall entitle the member to compensation for the |
| 4275 |
fair
market value of that portion of the member's property, the |
| 4276 |
use of
which is being restricted. |
| 4277 |
(l) In
any association with more than 50 but fewer than 75 |
| 4278 |
parcels,
for purposes of establishing setback limits, any parcel |
| 4279 |
of 1
acre or less shall be deemed to have one front for purposes |
| 4280 |
of
determining the required front setback, if any. Only those |
| 4281 |
setbacks
specifically set forth in the declaration of covenants |
| 4282 |
may be
enforced by the association. Where the covenants are |
| 4283 |
silent,
the applicable county or municipal setbacks shall apply. |
| 4284 |
(2) BOARD
MEETINGS.-- |
| 4285 |
(a) A
meeting of the board of directors of an association |
| 4286 |
occurs whenever a quorum
of the board gathers to conduct |
| 4287 |
association business. All
meetings of the board must be open to |
| 4288 |
all members except for
meetings between the board and its |
| 4289 |
attorney with respect to
proposed or pending litigation where |
| 4290 |
the contents of the
discussion would otherwise be governed by |
| 4291 |
the attorney-client
privilege. |
| 4292 |
(b) Members
have the right to attend all meetings of the |
| 4293 |
board and to speak on any
matter placed on the agenda by |
| 4294 |
petition
of the voting interests for at least 3 minutes. The |
| 4295 |
association may adopt
written reasonable rules expanding the |
| 4296 |
right of members to speak
and governing the frequency, duration, |
| 4297 |
and other manner of
member statements, which rules must be |
| 4298 |
consistent with this
paragraph and may include a sign-up sheet |
| 4299 |
for
members wishing to speak. Notwithstanding any other law,
the |
| 4300 |
requirement that board
meetings and committee meetings be open |
| 4301 |
to the members is
inapplicable to meetings between the board or |
| 4302 |
a committee and the
association's attorney, with respect to |
| 4303 |
meetings of the board
held for the purpose of discussing |
| 4304 |
personnel matters. |
| 4305 |
(c) The
bylaws shall provide for giving notice to parcel |
| 4306 |
owners and members of all
board meetings and, if they do not do |
| 4307 |
so, shall be deemed to
provide the following: |
| 4308 |
1. Notices
of all board meetings and the agendas
must be |
| 4309 |
posted in a conspicuous
place in the community at least 48 hours |
| 4310 |
in advance of a meeting,
except in an emergency. In the |
| 4311 |
alternative, if notice is
not posted in a conspicuous place in |
| 4312 |
the community, notice of
each board meeting and agenda must
be |
| 4313 |
mailed or delivered to
each member at least 7 days before the |
| 4314 |
meeting, except in an
emergency. Notwithstanding this general |
| 4315 |
notice requirement, for
communities with more than 100 members, |
| 4316 |
the bylaws may provide
for a reasonable alternative to posting |
| 4317 |
or mailing of notice for
each board meeting, including |
| 4318 |
publication of notice,
provision of a schedule of board |
| 4319 |
meetings, or the
conspicuous posting and repeated broadcasting |
| 4320 |
of the notice on a
closed-circuit cable television system |
| 4321 |
serving the homeowners'
association. However, if broadcast |
| 4322 |
notice is used in lieu of
a notice posted physically in the |
| 4323 |
community, the notice
must be broadcast at least four times |
| 4324 |
every broadcast hour of
each day that a posted notice is |
| 4325 |
otherwise required. When
broadcast notice is provided, the |
| 4326 |
notice and agenda must be
broadcast in a manner and for a |
| 4327 |
sufficient continuous
length of time so as to allow an average |
| 4328 |
reader to observe the
notice and read and comprehend the entire |
| 4329 |
content of the notice and
the agenda. The bylaws or amended |
| 4330 |
bylaws may provide for
giving notice by electronic transmission |
| 4331 |
in a manner authorized by
law for meetings of the board of |
| 4332 |
directors, committee
meetings requiring notice under this |
| 4333 |
section, and annual and
special meetings of the members; |
| 4334 |
however, a member must
consent in writing to receiving notice by |
| 4335 |
electronic transmission. |
| 4336 |
2. An
assessment may not be levied at a board meeting |
| 4337 |
unless the notice of the
meeting includes a statement that |
| 4338 |
assessments will be
considered and the nature of the |
| 4339 |
assessments. Written
notice of any meeting at which special |
| 4340 |
assessments will be
considered or at which amendments to rules |
| 4341 |
regarding parcel use will
be considered must be mailed, |
| 4342 |
delivered, or
electronically transmitted to the members and |
| 4343 |
parcel owners and posted
conspicuously on the property or |
| 4344 |
broadcast on
closed-circuit cable television not less than 14 |
| 4345 |
days before the meeting. |
| 4346 |
3. Directors
may not vote by proxy or by secret ballot at |
| 4347 |
board meetings,
except that secret ballots may be used in the |
| 4348 |
election
of officers. This subsection also applies to the |
| 4349 |
meetings of any committee
or other similar body, when a final |
| 4350 |
decision will be made
regarding the expenditure of association |
| 4351 |
funds, and to any body
vested with the power to approve or |
| 4352 |
disapprove architectural
decisions with respect to a specific |
| 4353 |
parcel of residential
property owned by a member of the |
| 4354 |
community. |
| 4355 |
(d) If
10 20
percent of the total voting interests |
| 4356 |
petition the board to
address an item of business, the board |
| 4357 |
shall at its next regular
board meeting or at a special meeting |
| 4358 |
of the board, but not
later than 60 days after the receipt of |
| 4359 |
the petition, take the
petitioned item up on an agenda. The |
| 4360 |
board shall give all
members notice of the meeting at which the |
| 4361 |
petitioned item shall be
addressed in accordance with the 14-day |
| 4362 |
notice requirement
pursuant to subparagraph (c)2. Each member |
| 4363 |
shall have the right to
speak for at least 3 minutes on each |
| 4364 |
matter placed on the
agenda by petition. The board shall address |
| 4365 |
all
items on the agenda , provided
that the member signs the |
| 4366 |
sign-up
sheet, if one is provided, or submits a written request |
| 4367 |
to
speak prior to the meeting. Other than addressing the |
| 4368 |
petitioned
item at the meeting, the board is not obligated to |
| 4369 |
take
any other action requested by the petition. |
| 4370 |
(e) Detailed
agendas for board meetings with specific |
| 4371 |
items
that will be addressed shall be published and made |
| 4372 |
available
to all members no less than 7 days prior to the date |
| 4373 |
of the
board meeting. |
| 4374 |
(3) MINUTES.--Minutes
of all meetings of the members of an |
| 4375 |
association and of the
board of directors of an association must |
| 4376 |
be maintained in written
form or in another form that can be |
| 4377 |
converted into written
form within a reasonable time. A vote or |
| 4378 |
abstention from voting on
each matter voted upon by for
each |
| 4379 |
director present at a
board meeting shall must
be recorded in |
| 4380 |
the minutes. |
| 4381 |
(4) OFFICIAL
RECORDS.--The association shall maintain each |
| 4382 |
of the following items,
when applicable, which constitute the |
| 4383 |
official records of the
association: |
| 4384 |
(a) Copies
of any plans, specifications, permits, and |
| 4385 |
warranties related to
improvements constructed on the common |
| 4386 |
areas or other property as
platted and recorded that the |
| 4387 |
association is obligated
to maintain, repair, or replace. If |
| 4388 |
such
documents do not exist, the association shall obtain the |
| 4389 |
documents
or forfeit the right to assess any fees to maintain |
| 4390 |
the
common areas of property. |
| 4391 |
(b) A
copy of the bylaws of the association and of each |
| 4392 |
amendment to the bylaws. |
| 4393 |
(c) A
copy of the articles of incorporation of the |
| 4394 |
association and of each
amendment thereto. |
| 4395 |
(d) A
copy of each set of the
declaration of covenants and |
| 4396 |
a copy of each amendment
thereto. |
| 4397 |
(e) A
copy of the current rules of the homeowners' |
| 4398 |
association. |
| 4399 |
(f) The
minutes of all meetings of the board of directors |
| 4400 |
and of the members, which
minutes must be retained for at least |
| 4401 |
7 years. |
| 4402 |
(g) A
current roster of all members and their mailing |
| 4403 |
addresses and parcel
identifications. The association shall also |
| 4404 |
maintain the electronic
mailing addresses and the numbers |
| 4405 |
designated by members for
receiving notice sent by electronic |
| 4406 |
transmission of those
members consenting to receive notice by |
| 4407 |
electronic transmission.
The electronic mailing addresses and |
| 4408 |
numbers provided by unit
owners to receive notice by electronic |
| 4409 |
transmission shall be
removed from association records when |
| 4410 |
consent to receive notice
by electronic transmission is revoked. |
| 4411 |
However, the association
is not liable for an erroneous |
| 4412 |
disclosure of the
electronic mail address or the number for |
| 4413 |
receiving electronic
transmission of notices. |
| 4414 |
(h) All
of the association's insurance policies or a copy |
| 4415 |
thereof, which policies
must be retained for at least 7 years. |
| 4416 |
(i) A
current copy of all contracts to which the |
| 4417 |
association is a party,
including, without limitation, any |
| 4418 |
management agreement,
lease, or other contract under which the |
| 4419 |
association has any
obligation or responsibility. A contract or |
| 4420 |
written
agreement may not be allowed to maintain property that |
| 4421 |
is
not owned by and deeded to the association. Bids received
by |
| 4422 |
the association for work
to be performed must also be considered |
| 4423 |
official records and must
be kept for a period of 1 year. |
| 4424 |
(j) The
financial and accounting records of the |
| 4425 |
association, kept
according to good accounting practices. All |
| 4426 |
financial and accounting
records shall must
be maintained for a |
| 4427 |
period of at least 7
years. The financial and accounting records |
| 4428 |
must include: |
| 4429 |
1. Accurate,
itemized, and detailed records of all |
| 4430 |
receipts and
expenditures. |
| 4431 |
2. A
current account and a periodic statement of the |
| 4432 |
account for each member,
designating the name and current |
| 4433 |
address of each member
who is obligated to pay assessments, the |
| 4434 |
due date and amount of
each assessment or other charge against |
| 4435 |
the member, the date and
amount of each payment on the account, |
| 4436 |
and the balance due. |
| 4437 |
3. All
tax returns, financial statements, and financial |
| 4438 |
reports of the
association. |
| 4439 |
4. Any
other records that identify, measure, record, or |
| 4440 |
communicate financial
information. |
| 4441 |
(k) A
copy of the disclosure summary described in s. |
| 4442 |
720.401(1). |
| 4443 |
(l) All
other written records of the association not |
| 4444 |
specifically included in
the foregoing which are related to the |
| 4445 |
operation of the
association. |
| 4446 |
(m) All
interpretations of any governing documents, as |
| 4447 |
provided
by any legal source or attorney as long as they are not |
| 4448 |
part
of a pending lawsuit. |
| 4449 |
(n) All
architectural requests and approvals or denials, |
| 4450 |
which
shall be maintained as long as the association exists or |
| 4451 |
is
active. |
| 4452 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
| 4453 |
records shall be
maintained within the county in which the |
| 4454 |
governing
documents are recorded state
and must be open to |
| 4455 |
inspection and available
for photocopying by machine, video, |
| 4456 |
digital
cameras, or any other methods available to members or |
| 4457 |
their authorized agents
at reasonable times and places within 10 |
| 4458 |
business days after
receipt of a written request for access. |
| 4459 |
This subsection may be
complied with by having a copy of the |
| 4460 |
official records
available for inspection or copying in the |
| 4461 |
community. If the
association has a photocopy machine available |
| 4462 |
where the records are
maintained, it must provide parcel owners |
| 4463 |
with copies on request
during the inspection if the entire |
| 4464 |
request
is limited to no more than 25 pages. |
| 4465 |
(a) The
failure of an association to provide access to the |
| 4466 |
records within 10
business days after receipt of a written |
| 4467 |
request creates a
rebuttable presumption that the association |
| 4468 |
willfully failed to
comply with this subsection. |
| 4469 |
(b) A
member who is denied access to official records is |
| 4470 |
entitled to the actual
damages or minimum damages for the |
| 4471 |
association's willful
failure to comply with this subsection. |
| 4472 |
The minimum damages are
to be $100 $50 per calendar day up to 10 |
| 4473 |
days, the calculation to
begin on the 11th business day after |
| 4474 |
receipt of the written
request. |
| 4475 |
(c) The
association may adopt reasonable written rules |
| 4476 |
governing the frequency,
time, location, notice, records to be |
| 4477 |
inspected, and
manner of inspections, but may not impose a |
| 4478 |
requirement that a parcel
owner demonstrate any proper purpose |
| 4479 |
for the inspection, state
any reason for the inspection, or |
| 4480 |
limit a parcel owner's
right to inspect records to less than one |
| 4481 |
8-hour business day per
month. The association may only impose |
| 4482 |
fees to cover the actual
costs of providing copies of the |
| 4483 |
official records,
including, without limitation, the costs of |
| 4484 |
copying.
The association may charge up to 5
50 cents per page |
| 4485 |
for copies made on the
association's photocopier. If the |
| 4486 |
association does not have
a photocopy machine available where |
| 4487 |
the records are kept, or
if the records requested to be copied |
| 4488 |
exceed 25 pages in
length, the association may have copies made |
| 4489 |
by an outside vendor and
may charge the actual cost of copying |
| 4490 |
only.
The association may impose a one-time fee not
to exceed 1 |
| 4491 |
cent
per page and limited to a total of $5 if the parcel owner |
| 4492 |
provides
the necessary equipment and materials for copying and |
| 4493 |
the
labor to make the requested copies. The association shall |
| 4494 |
maintain an adequate
number of copies of the recorded governing |
| 4495 |
documents, to ensure
their availability to members and |
| 4496 |
prospective members.
Notwithstanding the provisions of this |
| 4497 |
paragraph, the following
records shall not be accessible to |
| 4498 |
members or parcel owners: |
| 4499 |
1. Any
record protected by the lawyer-client privilege as |
| 4500 |
described in s. 90.502
and any record protected by the work- |
| 4501 |
product privilege,
including, but not limited to, any record |
| 4502 |
prepared by an
association attorney or prepared at the |
| 4503 |
attorney's express
direction which reflects a mental impression, |
| 4504 |
conclusion, litigation
strategy, or legal theory of the attorney |
| 4505 |
or the association and
was prepared exclusively for civil or |
| 4506 |
criminal litigation or
for adversarial administrative |
| 4507 |
proceedings or which was
prepared in anticipation of imminent |
| 4508 |
civil or criminal
litigation or imminent adversarial |
| 4509 |
administrative
proceedings until the conclusion of the |
| 4510 |
litigation or adversarial
administrative proceedings. |
| 4511 |
2. Information
obtained by an association in connection |
| 4512 |
with the approval of the
lease, sale, or other transfer of a |
| 4513 |
parcel. |
| 4514 |
3. Disciplinary,
health, insurance, and personnel records |
| 4515 |
of the association's
employees. |
| 4516 |
4. Medical
records of parcel owners or community |
| 4517 |
residents. |
| 4518 |
(6) BUDGETS.-- |
| 4519 |
(a) The
association shall prepare an annual budget that |
| 4520 |
sets
out the annual operating expenses. The budget must reflect |
| 4521 |
the estimated revenues
and expenses for that year and the |
| 4522 |
estimated surplus or
deficit as of the end of the current year. |
| 4523 |
The budget must set out
separately all fees or charges paid for |
| 4524 |
by
the association for recreational amenities, whether owned
by |
| 4525 |
the association, the
developer, or another person. The |
| 4526 |
association shall provide
each member with a copy of the annual |
| 4527 |
budget or a written
notice that a copy of the budget is |
| 4528 |
available upon request at
no charge to the member. The copy must |
| 4529 |
be provided to the member
within the time limits set forth in |
| 4530 |
subsection (5). |
| 4531 |
(b) In
addition to annual operating expenses, the budget |
| 4532 |
may include reserve
accounts for capital expenditures and |
| 4533 |
deferred maintenance
for which the association is responsible to |
| 4534 |
the extent that the
governing documents do not limit increases |
| 4535 |
in assessments,
including reserves. If the budget of the |
| 4536 |
association includes
reserve accounts, such reserves shall be |
| 4537 |
determined,
maintained, and waived in the manner provided in |
| 4538 |
this subsection. Once
an association provides for reserve |
| 4539 |
accounts in the
budget, the association shall thereafter |
| 4540 |
determine, maintain,
and waive reserves in compliance with the |
| 4541 |
provisions of this
subsection. |
| 4542 |
(c) If
the budget of the association does not provide for |
| 4543 |
reserve
accounts governed by this subsection and the association |
| 4544 |
is
responsible for the repair and maintenance of capital |
| 4545 |
improvements
that may result in a special assessment if reserves |
| 4546 |
are
not provided, each financial report for the preceding fiscal |
| 4547 |
year
required by subsection (7) shall contain the following |
| 4548 |
statement
in conspicuous type: THE BUDGET OF THE ASSOCIATION |
| 4549 |
DOES
NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES |
| 4550 |
AND
DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS. |
| 4551 |
OWNERS
MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE |
| 4552 |
PROVISIONS
OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE |
| 4553 |
APPROVAL
OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING |
| 4554 |
INTERESTS
OF THE ASSOCIATION. |
| 4555 |
(d) An
association shall be deemed to have provided for |
| 4556 |
reserve
accounts when reserve accounts have been initially |
| 4557 |
established
by the developer or when the membership of the |
| 4558 |
association
affirmatively elects to provide for reserves. If |
| 4559 |
reserve
accounts are not initially provided for by the |
| 4560 |
developer,
the membership of the association may elect to do so |
| 4561 |
upon
the affirmative approval of not less than a majority of the |
| 4562 |
total
voting interests of the association. Such approval may be |
| 4563 |
attained
by vote of the members at a duly called meeting of the |
| 4564 |
membership
or upon a written consent executed by not less than a |
| 4565 |
majority
of the total voting interests in the community. The |
| 4566 |
approval
action of the membership shall state that reserve |
| 4567 |
accounts
shall be provided for in the budget and designate the |
| 4568 |
components
for which the reserve accounts are to be established. |
| 4569 |
Upon
approval by the membership, the board of directors shall |
| 4570 |
provide
for the required reserve accounts for inclusion in the |
| 4571 |
budget
in the next fiscal year following the approval and in |
| 4572 |
each
year thereafter. Once established as provided in this |
| 4573 |
subsection,
the reserve accounts shall be funded or maintained |
| 4574 |
or
shall have their funding waived in the manner provided in |
| 4575 |
paragraph
(f). |
| 4576 |
(e) The
amount to be reserved in any account established |
| 4577 |
shall
be computed by means of a formula that is based upon |
| 4578 |
estimated
remaining useful life and estimated replacement cost |
| 4579 |
or
deferred maintenance expense of each reserve item. The |
| 4580 |
association
may adjust replacement reserve assessments annually |
| 4581 |
to
take into account any changes in estimates of cost or useful |
| 4582 |
life
of a reserve item. |
| 4583 |
(f) Once
a reserve account or reserve accounts are |
| 4584 |
established,
the membership of the association, upon a majority |
| 4585 |
vote
at a meeting at which a quorum is present, may provide for |
| 4586 |
no
reserves or less reserves than required by this section. If a |
| 4587 |
meeting
of the unit owners is called to determine whether to |
| 4588 |
waive
or reduce the funding of reserves and no such result is |
| 4589 |
achieved
or a quorum is not present, the reserves as included in |
| 4590 |
the
budget shall go into effect. After the turnover, the |
| 4591 |
developer
may vote its voting interest to waive or reduce the |
| 4592 |
funding
of reserves. Any vote taken pursuant to this subsection |
| 4593 |
to
waive or reduce reserves shall be applicable only to one |
| 4594 |
budget
year. |
| 4595 |
(g) Funding
formulas for reserves authorized by this |
| 4596 |
section
shall be based on either a separate analysis of each of |
| 4597 |
the
required assets or a pooled analysis of two or more of the |
| 4598 |
required
assets. |
| 4599 |
1. If
the association maintains separate reserve accounts |
| 4600 |
for
each of the required assets, the amount of the contribution |
| 4601 |
to
each reserve account shall be the sum of the following two |
| 4602 |
calculations: |
| 4603 |
a. The
total amount necessary, if any, to bring a negative |
| 4604 |
component
balance to zero. |
| 4605 |
b. The
total estimated deferred maintenance expense or |
| 4606 |
estimated
replacement cost of the reserve component less the |
| 4607 |
estimated
balance of the reserve component as of the beginning |
| 4608 |
of the
period for which the budget will be in effect. The |
| 4609 |
remainder,
if greater than zero, shall be divided by the |
| 4610 |
estimated
remaining useful life of the component. |
| 4611 |
|
| 4612 |
The
formula may be adjusted each year for changes in estimates |
| 4613 |
and
deferred maintenance performed during the year and may |
| 4614 |
include
factors such as inflation and earnings on invested |
| 4615 |
funds. |
| 4616 |
2. If
the association maintains a pooled account of two or |
| 4617 |
more
of the required reserve assets, the amount of the |
| 4618 |
contribution
to the pooled reserve account as disclosed on the |
| 4619 |
proposed
budget shall not be less than that required to ensure |
| 4620 |
that
the balance at the beginning of the period for which the |
| 4621 |
budget
will go into effect plus the projected annual cash |
| 4622 |
inflows
over the remaining estimated useful life of all of the |
| 4623 |
assets
that make up the reserve pool are equal to or greater |
| 4624 |
than
the projected annual cash outflows over the remaining |
| 4625 |
estimated
useful lives of all of the assets that make up the |
| 4626 |
reserve
pool, based on the current reserve analysis. The |
| 4627 |
projected
annual cash inflows may include estimated earnings |
| 4628 |
from
investment of principal. The reserve funding formula shall |
| 4629 |
not
include any type of balloon payments. |
| 4630 |
(h) Reserve
funds and any interest accruing thereon shall |
| 4631 |
remain
in the reserve account or accounts and shall be used only |
| 4632 |
for
authorized reserve expenditures unless their use for other |
| 4633 |
purposes
is approved in advance by a majority vote at a meeting |
| 4634 |
at
which a quorum is present. Prior to turnover of control of an |
| 4635 |
association
by a developer to parcel owners, the developer- |
| 4636 |
controlled
association shall not vote to use reserves for |
| 4637 |
purposes
other than those for which they were intended without |
| 4638 |
the
approval of a majority of all nondeveloper voting interests |
| 4639 |
voting
in person or by limited proxy at a duly called meeting of |
| 4640 |
the
association. |
| 4641 |
(7) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 4642 |
the
fiscal year, or annually on a date provided in the bylaws, |
| 4643 |
the
association shall prepare and complete, or contract with a |
| 4644 |
third
party for the preparation and completion of, a financial |
| 4645 |
report
for the preceding fiscal year. Within 21 days after the |
| 4646 |
final
financial report is completed by the association or |
| 4647 |
received
from the third party, but not later than 120 days after |
| 4648 |
the
end of the fiscal year or other date as provided in the |
| 4649 |
bylaws,
the association shall prepare an annual
financial report |
| 4650 |
within
60 days after the close of the fiscal year. The |
| 4651 |
association
shall, within the time limits set forth in |
| 4652 |
subsection (5), provide
each member with a copy of the annual |
| 4653 |
financial report or a
written notice that a copy of the |
| 4654 |
financial report is
available upon request at no charge to the |
| 4655 |
member. Financial reports
shall be prepared as follows: |
| 4656 |
(a) An
association that meets the criteria of this |
| 4657 |
paragraph shall prepare
or cause to be prepared a complete set |
| 4658 |
of financial statements
in accordance with generally accepted |
| 4659 |
accounting principles as
adopted by the Board of Accountancy. |
| 4660 |
The financial statements
shall be based upon the association's |
| 4661 |
total annual revenues, as
follows: |
| 4662 |
1. An
association with total annual revenues of $100,000 |
| 4663 |
or more, but less than
$200,000, shall prepare compiled |
| 4664 |
financial statements. |
| 4665 |
2. An
association with total annual revenues of at least |
| 4666 |
$200,000, but less than
$400,000, shall prepare reviewed |
| 4667 |
financial statements. |
| 4668 |
3. An
association with total annual revenues of $400,000 |
| 4669 |
or more shall prepare
audited financial statements. |
| 4670 |
(b)1. An
association with total annual revenues of less |
| 4671 |
than $100,000 shall
prepare a report of cash receipts and |
| 4672 |
expenditures. |
| 4673 |
2. An
association in a community of fewer than 50 parcels, |
| 4674 |
regardless of the
association's annual revenues, may prepare a |
| 4675 |
report of cash receipts
and expenditures in lieu of financial |
| 4676 |
statements required by
paragraph (a) unless the governing |
| 4677 |
documents provide
otherwise. |
| 4678 |
3. A
report of cash receipts and disbursement must |
| 4679 |
disclose the amount of
receipts by accounts and receipt |
| 4680 |
classifications and the
amount of expenses by accounts and |
| 4681 |
expense classifications,
including, but not limited to, the |
| 4682 |
following, as applicable:
costs for security, professional, and |
| 4683 |
management fees and
expenses; taxes; costs for recreation |
| 4684 |
facilities; expenses for
refuse collection and utility services; |
| 4685 |
expenses for lawn care;
costs for building maintenance and |
| 4686 |
repair; insurance costs;
administration and salary expenses; and |
| 4687 |
reserves if maintained by
the association. |
| 4688 |
(c) If
20 percent of the parcel owners petition the board |
| 4689 |
for a level of financial
reporting higher than that required by |
| 4690 |
this section, the
association shall duly notice and hold a |
| 4691 |
meeting of members within
30 days of receipt of the petition for |
| 4692 |
the purpose of voting on
raising the level of reporting for that |
| 4693 |
fiscal year. Upon
approval of a majority of the total voting |
| 4694 |
interests of the parcel
owners, the association shall prepare or |
| 4695 |
cause to be prepared,
shall amend the budget or adopt a special |
| 4696 |
assessment to pay for the
financial report regardless of any |
| 4697 |
provision to the contrary
in the governing documents, and shall |
| 4698 |
provide within 90 days of
the meeting or the end of the fiscal |
| 4699 |
year, whichever occurs
later: |
| 4700 |
1. Compiled,
reviewed, or audited financial statements, if |
| 4701 |
the association is
otherwise required to prepare a report of |
| 4702 |
cash receipts and
expenditures; |
| 4703 |
2. Reviewed
or audited financial statements, if the |
| 4704 |
association is otherwise
required to prepare compiled financial |
| 4705 |
statements; or |
| 4706 |
3. Audited
financial statements if the association is |
| 4707 |
otherwise required to
prepare reviewed financial statements. |
| 4708 |
(d) If
approved by a majority of the voting interests |
| 4709 |
present at a properly
called meeting of the association, an |
| 4710 |
association may prepare
or cause to be prepared: |
| 4711 |
1. A
report of cash receipts and expenditures in lieu of a |
| 4712 |
compiled, reviewed, or
audited financial statement; |
| 4713 |
2. A
report of cash receipts and expenditures or a |
| 4714 |
compiled financial
statement in lieu of a reviewed or audited |
| 4715 |
financial statement; or |
| 4716 |
3. A
report of cash receipts and expenditures, a compiled |
| 4717 |
financial statement, or a
reviewed financial statement in lieu |
| 4718 |
of an audited financial
statement. |
| 4719 |
(8) ASSOCIATION
FUNDS; COMMINGLING.-- |
| 4720 |
(a) All
association funds held by a developer shall be |
| 4721 |
maintained separately in
the association's name. Reserve and |
| 4722 |
operating funds of the
association shall not be commingled prior |
| 4723 |
to turnover except the
association may jointly invest reserve |
| 4724 |
funds; however, such
jointly invested funds must be accounted |
| 4725 |
for separately. |
| 4726 |
(b) No
developer in control of a homeowners' association |
| 4727 |
shall commingle any
association funds with his or her funds or |
| 4728 |
with the funds of any
other homeowners' association, or |
| 4729 |
community association,
or corporation for profit created by the |
| 4730 |
developer. |
| 4731 |
(c) Association
funds may not be used by a developer to |
| 4732 |
defend a civil or
criminal action, administrative proceeding, or |
| 4733 |
arbitration proceeding
that has been filed against the developer |
| 4734 |
or directors appointed to
the association board by the |
| 4735 |
developer, even when the
subject of the action or proceeding |
| 4736 |
concerns the operation of
the developer-controlled association. |
| 4737 |
(9) APPLICABILITY.--Sections
617.1601-617.1604 do not |
| 4738 |
apply to a homeowners'
association in which the members have the |
| 4739 |
inspection and copying
rights set forth in this section. |
| 4740 |
(10) RECALL
OF DIRECTORS.-- |
| 4741 |
(a)1. Regardless
of any provision to the contrary |
| 4742 |
contained in the governing documents,
subject to the provisions |
| 4743 |
of s. 720.307 regarding transition of
association control, any |
| 4744 |
member of the board of directors shall
may be recalled and |
| 4745 |
removed from office with or without
cause by a majority of the |
| 4746 |
total voting interests who
must be the registered and recorded |
| 4747 |
owners. |
| 4748 |
2. When
the governing documents, including the |
| 4749 |
declaration, articles of
incorporation, or bylaws, provide that |
| 4750 |
only a specific class of members is
entitled to elect a board |
| 4751 |
director or directors, only that
class of members may vote to |
| 4752 |
recall those board directors so
elected. |
| 4753 |
(b)1. Board
directors may be recalled by an agreement in |
| 4754 |
writing or by written ballot without
a membership meeting. The |
| 4755 |
agreement in writing or the written
ballots, or a copy thereof, |
| 4756 |
shall be served on the association by
certified mail or by |
| 4757 |
personal service in the manner
authorized by chapter 48 and the |
| 4758 |
Florida Rules of Civil Procedure. |
| 4759 |
2. The
board shall duly notice and hold a meeting of the |
| 4760 |
board within 5 full business days
after receipt of the agreement |
| 4761 |
in writing or written ballots. At the
meeting, the board shall |
| 4762 |
either certify the written ballots or
written agreement to |
| 4763 |
recall a director or directors of the
board, in which case such |
| 4764 |
director or directors shall be
recalled effective immediately |
| 4765 |
and shall turn over to the board
within 5 full business days any |
| 4766 |
and all records and property of the
association in their |
| 4767 |
possession, or proceed as described
in paragraph (d). |
| 4768 |
3. When
it is determined by the department pursuant to |
| 4769 |
binding arbitration proceedings that
an initial recall effort |
| 4770 |
was defective, written recall
agreements or written ballots used |
| 4771 |
in the first recall effort and not
found to be defective may be |
| 4772 |
reused in one subsequent recall
effort. However, in no event is |
| 4773 |
a written agreement or written ballot
valid for more than 120 |
| 4774 |
days after it has been signed by the
member. |
| 4775 |
4. Any
rescission or revocation of a member's written |
| 4776 |
recall ballot or agreement must be in
writing and, in order to |
| 4777 |
be effective, must be delivered to
the association before the |
| 4778 |
association is served with the
written recall agreements or |
| 4779 |
ballots. |
| 4780 |
5. The
agreement in writing or ballot shall list at least |
| 4781 |
as many possible replacement
directors as there are directors |
| 4782 |
subject to the recall, when at least
a majority of the board is |
| 4783 |
sought to be recalled; the person
executing the recall |
| 4784 |
instrument may vote for as many
replacement candidates as there |
| 4785 |
are directors subject to the recall. |
| 4786 |
(c)1. If
the declaration, articles of incorporation, or |
| 4787 |
bylaws
specifically provide, the Members may also recall and |
| 4788 |
remove a board director or directors
by a vote taken at a |
| 4789 |
special meeting
of the members. If
so provided in the governing |
| 4790 |
documents,
A special meeting of the members to recall a director |
| 4791 |
or directors of the board of
administration may be called by 10 |
| 4792 |
percent of the voting interests
giving notice of the meeting as |
| 4793 |
required for a meeting of members,
and the notice shall state |
| 4794 |
the purpose of the meeting.
Electronic transmission may not be |
| 4795 |
used as a method of giving notice of
a meeting called in whole |
| 4796 |
or in part for this purpose. |
| 4797 |
2. The
board shall duly notice and hold a board meeting |
| 4798 |
within 5 full business days after the
adjournment of the member |
| 4799 |
meeting to recall one or more
directors. At the meeting, the |
| 4800 |
board shall certify the recall, in
which case such member or |
| 4801 |
members shall be recalled effective
immediately and shall turn |
| 4802 |
over to the board within 5 full
business days any and all |
| 4803 |
records and property of the
association in their possession, or |
| 4804 |
shall proceed as set forth in
subparagraph (d). |
| 4805 |
(d) If
the board determines not to certify the written |
| 4806 |
agreement or written ballots to
recall a director or directors |
| 4807 |
of the board or does not certify the
recall by a vote at a |
| 4808 |
meeting, the board shall, within 5
full business days after the |
| 4809 |
meeting, file with the department a
petition for binding |
| 4810 |
arbitration pursuant to the
applicable procedures in ss. |
| 4811 |
718.112(2)(j) and 718.1255 and the
rules adopted thereunder. For |
| 4812 |
the purposes of this section, the
members who voted at the |
| 4813 |
meeting or who executed the agreement
in writing shall |
| 4814 |
constitute one party under the
petition for arbitration. If the |
| 4815 |
arbitrator certifies the recall as to
any director or directors |
| 4816 |
of the board, the recall will be
effective upon mailing of the |
| 4817 |
final order of arbitration to the
association. The director or |
| 4818 |
directors so recalled shall deliver
to the board any and all |
| 4819 |
records of the association in their
possession within 5 full |
| 4820 |
business days after the effective
date of the recall. |
| 4821 |
(e) If
a vacancy occurs on the board as a result of a |
| 4822 |
recall and less than a majority of
the board directors are |
| 4823 |
removed, the vacancy may be filled by
the affirmative vote of a |
| 4824 |
majority of the remaining directors,
notwithstanding any |
| 4825 |
provision to the contrary contained
in this subsection or in the |
| 4826 |
association documents. If vacancies
occur on the board as a |
| 4827 |
result of a recall and a majority or
more of the board directors |
| 4828 |
are removed, the vacancies shall be
filled by members voting in |
| 4829 |
favor of the recall; if removal is at
a meeting, any vacancies |
| 4830 |
shall be filled by the members at the
meeting. If the recall |
| 4831 |
occurred by agreement in writing or
by written ballot, members |
| 4832 |
may vote for replacement directors in
the same instrument in |
| 4833 |
accordance with procedural rules
adopted by the division, which |
| 4834 |
rules need not be consistent with
this subsection. |
| 4835 |
(f) If
the board fails to duly notice and hold a board |
| 4836 |
meeting within 5 full business days
after service of an |
| 4837 |
agreement in writing or within 5 full
business days after the |
| 4838 |
adjournment of the member recall
meeting, the recall shall be |
| 4839 |
deemed effective and the board
directors so recalled shall |
| 4840 |
immediately turn over to the board
all records and property of |
| 4841 |
the association. |
| 4842 |
(g) If
a director who is removed fails to relinquish his |
| 4843 |
or her office or turn over records as
required under this |
| 4844 |
section, the circuit court in the
county where the association |
| 4845 |
maintains its principal office may,
upon the petition of the |
| 4846 |
association, summarily order the
director to relinquish his or |
| 4847 |
her office and turn over all
association records upon |
| 4848 |
application of the association. |
| 4849 |
(h) The
minutes of the board meeting at which the board |
| 4850 |
decides whether to certify the recall
are an official |
| 4851 |
association record. The minutes must
record the date and time of |
| 4852 |
the meeting, the decision of the
board, and the vote count taken |
| 4853 |
on each board member subject to the
recall. In addition, when |
| 4854 |
the board decides not to certify the
recall, as to each vote |
| 4855 |
rejected, the minutes must identify
the parcel number and the |
| 4856 |
specific reason for each such
rejection. |
| 4857 |
(i) When
the recall of more than one board director is |
| 4858 |
sought, the written agreement,
ballot, or vote at a meeting |
| 4859 |
shall provide for a separate vote for
each board director sought |
| 4860 |
to be recalled. |
| 4861 |
Section
54. Subsections (2) and (6) of section 720.304, |
| 4862 |
Florida Statutes, are amended, and
subsection (7) is added to |
| 4863 |
that section, to read: |
| 4864 |
720.304 Right
of owners to peaceably assemble; display of |
| 4865 |
flag; SLAPP suits prohibited.-- |
| 4866 |
(2) Any
homeowner may display one stationary or
portable, |
| 4867 |
removable United States flag or
official flag of the State of |
| 4868 |
Florida in a respectful manner, and
on Armed Forces Day, |
| 4869 |
Memorial Day, Flag Day, Independence
Day, and Veterans Day may |
| 4870 |
display in a respectful manner
portable, removable official |
| 4871 |
flags, not larger than 41/2 feet by 6
feet, which represent the |
| 4872 |
United States Army, Navy, Air Force,
Marine Corps, or Coast |
| 4873 |
Guard, from
a freestanding, portable, removable, or telescoping |
| 4874 |
flagpole not to
exceed 20 feet in the front, rear, or side yard |
| 4875 |
regardless of any declaration rules
or requirements dealing with |
| 4876 |
flags or decorations. |
| 4877 |
(6) Any
parcel owner may display a sign of reasonable size |
| 4878 |
provided by a contractor for security
services within 10 feet of |
| 4879 |
any entrance to the home. The
sign shall not exceed 18 inches |
| 4880 |
high by 18 inches
wide, and the bottom of the sign shall be no |
| 4881 |
higher than 24
inches from the ground elevation within the |
| 4882 |
permitted area of
installation. Other specifications may be |
| 4883 |
approved by the
association, but in no case shall the |
| 4884 |
specifications be
less than authorized by this section. |
| 4885 |
(7)(a) Rules
and regulations pertaining to common elements |
| 4886 |
shall be protected
by the First Amendment to the United States |
| 4887 |
Constitution and
s. 5, Art. I of the State Constitution, and |
| 4888 |
associations shall
not in any way abridge or deny constitutional |
| 4889 |
rights and
freedoms of homeowners with respect to use of such |
| 4890 |
common elements. |
| 4891 |
(b) All
common elements, common areas, and recreational |
| 4892 |
facilities serving
any association shall be available to unit |
| 4893 |
owners in the
association served thereby and their invited |
| 4894 |
guests for the use
intended for such common elements, common |
| 4895 |
areas, and
recreational facilities. The entity or entities |
| 4896 |
responsible for
the operation of the common elements, common |
| 4897 |
areas, and
recreational facilities may adopt reasonable rules |
| 4898 |
and regulations
pertaining to the use of such common elements, |
| 4899 |
common areas, and
recreational facilities as to the manner and |
| 4900 |
times they are
used, but not the purpose for which they are |
| 4901 |
used. No entity or
entities shall unreasonably restrict any unit |
| 4902 |
owner's right to
peaceably assemble or right to invite public |
| 4903 |
officers or
candidates for public office to appear and speak in |
| 4904 |
common elements,
common areas, and recreational facilities. |
| 4905 |
(c) Any
owner prevented from exercising rights guaranteed |
| 4906 |
by this section
may bring an action in the appropriate court of |
| 4907 |
the county in
which the alleged infringement occurred, and, upon |
| 4908 |
favorable
adjudication, the court shall enjoin the enforcement |
| 4909 |
of any provision
contained in any association. |
| 4910 |
Section
55. Section 720.305, Florida Statutes, is amended |
| 4911 |
to read: |
| 4912 |
720.305 Obligations
of members; remedies at law or in |
| 4913 |
equity; levy
of fines and suspension of use rights; failure to |
| 4914 |
fill sufficient number of vacancies
on board of directors to |
| 4915 |
constitute a quorum; appointment of
receiver upon petition of |
| 4916 |
any member.-- |
| 4917 |
(1) Each
member and the member's tenants, guests, and |
| 4918 |
invitees, and each association, are
governed by, and must comply |
| 4919 |
with, this chapter, the governing
documents of the community, |
| 4920 |
and the rules of the association.
Actions at law or in equity, |
| 4921 |
or both, to redress alleged failure
or refusal to comply with |
| 4922 |
these provisions may be brought by
the association or by any |
| 4923 |
member against: |
| 4924 |
(a) The
association; |
| 4925 |
(b) A
member; |
| 4926 |
(c) Any
director or officer of an association who |
| 4927 |
willfully and knowingly or
otherwise fails to comply with these |
| 4928 |
provisions; and |
| 4929 |
(d) Any
tenants, guests, or invitees occupying a parcel or |
| 4930 |
using the common areas. |
| 4931 |
|
| 4932 |
The prevailing party in any such
litigation is entitled to |
| 4933 |
recover reasonable attorney's fees
and costs. This section does |
| 4934 |
not deprive any person of any other
available right or remedy. |
| 4935 |
(2) If
the governing documents so provide, An association |
| 4936 |
may suspend,
for a reasonable period of time, the rights of a |
| 4937 |
member or a member's tenants, guests,
or invitees, or both, to |
| 4938 |
use common areas and facilities if
so and may levy reasonable |
| 4939 |
fines, not to
exceed $100 per violation, against any member or |
| 4940 |
any tenant, guest,
or invitee. A fine may be levied on the basis |
| 4941 |
of each day of a
continuing violation, with a single notice and |
| 4942 |
opportunity for
hearing, except that no such fine shall exceed |
| 4943 |
$1,000 in the
aggregate unless otherwise provided in the |
| 4944 |
governing documents. A
fine shall not become a lien against a |
| 4945 |
parcel. In any
action to recover a fine, the prevailing party is |
| 4946 |
entitled to
collect its reasonable attorney's fees and costs |
| 4947 |
from the
nonprevailing party as determined by the court. |
| 4948 |
(a) A
fine or suspension may not be
imposed without notice |
| 4949 |
of at least 14 days to the person
sought to be fined or |
| 4950 |
suspended and an opportunity for a
hearing before a committee of |
| 4951 |
at least three members appointed by
the board who are not |
| 4952 |
officers, directors, or employees of
the association, or the |
| 4953 |
spouse, parent, child, brother, or
sister of an officer, |
| 4954 |
director, or employee. If the
committee, by majority vote, does |
| 4955 |
not approve a proposed fine
or suspension, it may not be |
| 4956 |
imposed. |
| 4957 |
(b) The
requirements of this subsection do not apply to |
| 4958 |
the imposition of suspensions or
fines upon any member because |
| 4959 |
of the failure of the member to pay
assessments or other charges |
| 4960 |
when due if
such action is authorized by the governing |
| 4961 |
documents. |
| 4962 |
(c) Suspension
of common-area-use rights shall not impair |
| 4963 |
the right of an owner or tenant of a
parcel to have vehicular |
| 4964 |
and pedestrian ingress to and egress
from the parcel, including, |
| 4965 |
but not limited to, the right to
park. |
| 4966 |
(3) If
the governing documents so provide, an association |
| 4967 |
may suspend the voting rights of a
member for the nonpayment of |
| 4968 |
regular annual assessments that are
delinquent in excess of 90 |
| 4969 |
days. |
| 4970 |
(4) If
an association fails to fill vacancies on the board |
| 4971 |
of directors sufficient to constitute
a quorum in accordance |
| 4972 |
with the bylaws, any member may apply
to the circuit court that |
| 4973 |
has jurisdiction over the community
served by the association |
| 4974 |
for the appointment of a receiver to
manage the affairs of the |
| 4975 |
association. At least 30 days before
applying to the circuit |
| 4976 |
court, the member shall mail to the
association, by certified or |
| 4977 |
registered mail, and post, in a
conspicuous place on the |
| 4978 |
property of the community served by
the association, a notice |
| 4979 |
describing the intended action,
giving the association 30 days |
| 4980 |
to fill the vacancies. If during such
time the association fails |
| 4981 |
to fill a sufficient number of
vacancies so that a quorum can be |
| 4982 |
assembled, the member may proceed
with the petition. If a |
| 4983 |
receiver is appointed, the
homeowners' association shall be |
| 4984 |
responsible for the salary of the
receiver, court costs, |
| 4985 |
attorney's fees, and all other
expenses of the receivership. The |
| 4986 |
receiver has all the powers and
duties of a duly constituted |
| 4987 |
board of directors and shall serve
until the association fills a |
| 4988 |
sufficient number of vacancies on the
board so that a quorum can |
| 4989 |
be assembled. |
| 4990 |
Section
56. Section 720.3055, Florida Statutes, is amended |
| 4991 |
to read: |
| 4992 |
720.3055 Contracts
for products and services; in writing; |
| 4993 |
bids; exceptions.-- |
| 4994 |
(1) All
contracts as further described in this section or |
| 4995 |
any contract that is not to be fully
performed within 1 year |
| 4996 |
after the making thereof for the
purchase, lease, or renting of |
| 4997 |
materials or equipment to be used by
the association in |
| 4998 |
accomplishing its purposes under this
chapter or the governing |
| 4999 |
documents,
and all contracts for the provision of services, |
| 5000 |
shall be in writing. If a contract
for the purchase, lease, or |
| 5001 |
renting of materials or equipment, or
for the provision of |
| 5002 |
services, requires payment by the
association that exceeds 10 |
| 5003 |
percent of the total annual budget of
the association, including |
| 5004 |
reserves, the association must obtain
competitive bids for the |
| 5005 |
materials, equipment, or services.
Nothing contained in this |
| 5006 |
section shall be construed to require
the association to accept |
| 5007 |
the lowest bid. |
| 5008 |
(2)(a)1. Notwithstanding
the foregoing, Contracts with |
| 5009 |
employees of the association, and
contracts for attorney, |
| 5010 |
accountant, architect, community
association manager, |
| 5011 |
engineering, and landscape architect
services are not subject to |
| 5012 |
the provisions of this section. |
| 5013 |
2. A
contract executed before October 1, 2004, and any |
| 5014 |
renewal thereof, is not subject to
the competitive bid |
| 5015 |
requirements of this section. If a
contract was awarded under |
| 5016 |
the competitive bid procedures of
this section, any renewal of |
| 5017 |
that contract is not subject to such
competitive bid |
| 5018 |
requirements if the contract contains
a provision that allows |
| 5019 |
the board to cancel the contract on
30 days' notice. Materials, |
| 5020 |
equipment, or services provided to an
association under a local |
| 5021 |
government franchise agreement by a
franchise holder or a |
| 5022 |
manager
are not subject to the competitive bid requirements of |
| 5023 |
this section. A contract with a
manager, if made by a |
| 5024 |
competitive
bid, may be made for up to 3 years and
must contain |
| 5025 |
a 30-day
termination clause. An association whose declaration or |
| 5026 |
bylaws provide for competitive
bidding for services may operate |
| 5027 |
under the provisions of that
declaration or bylaws in lieu of |
| 5028 |
this section if those provisions are
not less stringent than the |
| 5029 |
requirements of this section. |
| 5030 |
(b) Nothing
contained in this section is intended to limit |
| 5031 |
the ability of an association to
obtain needed products and |
| 5032 |
services in an emergency. |
| 5033 |
(c) This
section does not apply if the business entity |
| 5034 |
with which the association desires to
enter into a contract is |
| 5035 |
the only source of supply within the
county serving the |
| 5036 |
association. |
| 5037 |
(d) Nothing
contained in this section shall excuse a party |
| 5038 |
contracting to provide maintenance or
management services from |
| 5039 |
compliance with s. 720.309. |
| 5040 |
Section
57. Section 720.306, Florida Statutes, is amended |
| 5041 |
to read: |
| 5042 |
720.306 Meetings
of members; voting and election |
| 5043 |
procedures; amendments.-- |
| 5044 |
(1) QUORUM;
AMENDMENTS.-- |
| 5045 |
(a) Unless
otherwise required by law, and other than those |
| 5046 |
matters set forth
in paragraph (b), any governing document of an |
| 5047 |
association shall
only be amended by the affirmative vote of |
| 5048 |
two-thirds of the
voting interests of the association subject to |
| 5049 |
the following: |
| 5050 |
1. All
amendments offered for official recording must be |
| 5051 |
submitted as
contained within the covenants and restrictions in |
| 5052 |
their entirety. |
| 5053 |
2. Within
12 months of enactment of this subsection all |
| 5054 |
duly registered
covenants and restrictions must be complete and |
| 5055 |
set forth in
plain, easily understandable English. Unless
a |
| 5056 |
lower number is
provided in the bylaws, the percentage of voting |
| 5057 |
interests required
to constitute a quorum at a meeting of the |
| 5058 |
members shall be
30 percent of the total voting interests. |
| 5059 |
Unless otherwise
provided in this chapter or in the articles of |
| 5060 |
incorporation or
bylaws, decisions that require a vote of the |
| 5061 |
members must be
made by the concurrence of at least a majority |
| 5062 |
of the voting
interests present, in person or by proxy, at a |
| 5063 |
meeting at which a
quorum has been attained. |
| 5064 |
(b) Unless
otherwise provided in the governing documents |
| 5065 |
or required by
law, and other than those matters set forth in |
| 5066 |
paragraph (c), any
governing document of an association may be |
| 5067 |
amended by the
affirmative vote of two-thirds of the voting |
| 5068 |
interests of the
association. |
| 5069 |
(b)(c) Unless
otherwise provided in the governing |
| 5070 |
documents as
originally recorded or permitted by this chapter or |
| 5071 |
chapter 617,
An amendment may not materially and adversely alter |
| 5072 |
the proportionate voting interest
appurtenant to a parcel or |
| 5073 |
increase the proportion or percentage
by which a parcel shares |
| 5074 |
in the common expenses of the
association unless the record |
| 5075 |
parcel owner and all record owners of
liens on the parcels join |
| 5076 |
in the execution of the amendment. For
purposes of this section, |
| 5077 |
a change in quorum
requirements is not an alteration of voting |
| 5078 |
interests. |
| 5079 |
(c) An
amendment restricting owners' rights relating to |
| 5080 |
the rental of
homes applies only to parcel owners who consent to |
| 5081 |
the amendment and
to parcel owners who purchase their parcels |
| 5082 |
after the
effective date of that amendment. |
| 5083 |
(2) ANNUAL
MEETING.--The association shall hold a meeting |
| 5084 |
of its members annually for the
transaction of any and all |
| 5085 |
proper business at a time, date, and
place stated in, or fixed |
| 5086 |
in accordance with, the bylaws. The
election of directors, if |
| 5087 |
one is required to be held, must be
held at, or in conjunction |
| 5088 |
with, the annual meeting or
as provided in the governing |
| 5089 |
documents. |
| 5090 |
(3) SPECIAL
MEETINGS.--Special meetings must be held when |
| 5091 |
called by the board of directors or,
unless a different |
| 5092 |
percentage
is stated in the governing documents, by at least 10 |
| 5093 |
percent of the total voting interests
of the association. |
| 5094 |
Business conducted at a special
meeting is limited to the |
| 5095 |
purposes described in the notice and
the agenda of the meeting. |
| 5096 |
(4) CONTENT
OF NOTICE.--Unless law or the governing |
| 5097 |
documents
require otherwise, Notice of an annual meeting need |
| 5098 |
not include a description of the
purpose or purposes for which |
| 5099 |
the meeting is called. Notice of a
special meeting must include |
| 5100 |
an agenda
and a description of the purpose or purposes for which |
| 5101 |
the meeting is called. |
| 5102 |
(5) NOTICE
OF MEETINGS.--The bylaws shall provide for |
| 5103 |
giving notice to members of all
member meetings, and if they do |
| 5104 |
not do so shall be deemed to provide
the following: The |
| 5105 |
association shall give all parcel
owners and members actual |
| 5106 |
notice of all membership meetings,
which shall be mailed, |
| 5107 |
delivered, or electronically
transmitted to the members not less |
| 5108 |
than 14 days prior to the meeting.
Evidence of compliance with |
| 5109 |
this 14-day notice shall be made by
an affidavit executed by the |
| 5110 |
person providing the notice and filed
upon execution among the |
| 5111 |
official records of the association.
In addition to mailing, |
| 5112 |
delivering, or electronically
transmitting the notice of any |
| 5113 |
meeting, the association may, by
reasonable rule, adopt a |
| 5114 |
procedure for conspicuously posting
and repeatedly broadcasting |
| 5115 |
the notice and the agenda on a
closed-circuit cable television |
| 5116 |
system serving the association. When
broadcast notice is |
| 5117 |
provided, the notice and agenda must
be broadcast in a manner |
| 5118 |
and for a sufficient continuous
length of time so as to allow an |
| 5119 |
average reader to observe the notice
and read and comprehend the |
| 5120 |
entire content of the notice and the
agenda. |
| 5121 |
(6) RIGHT
TO SPEAK.--Members and parcel owners have the |
| 5122 |
right to attend all membership
meetings and to speak at any |
| 5123 |
meeting with reference to any
all items opened for discussion or |
| 5124 |
included
on the agenda. Notwithstanding any provision
to the |
| 5125 |
contrary in the
governing documents or any rules adopted by the |
| 5126 |
board or by
the membership, A member and a parcel owner have the |
| 5127 |
right to speak at
least once for at least 3 minutes on each |
| 5128 |
agenda
any item,
provided that the member or parcel owner |
| 5129 |
submits a
written request to speak prior to the meeting. The |
| 5130 |
association may adopt written
reasonable rules governing the |
| 5131 |
frequency and,
duration, and other manner of
member and parcel |
| 5132 |
owner statements, which rules must be
consistent with this |
| 5133 |
subsection. |
| 5134 |
(7) ADJOURNMENT.--Unless
the bylaws require otherwise, |
| 5135 |
Adjournment of an annual or special
meeting to a different date, |
| 5136 |
time, or place must be announced at
that meeting before an |
| 5137 |
adjournment is taken, or notice must
be given of the new date, |
| 5138 |
time, or place pursuant to s.
720.303(2). Any business that |
| 5139 |
might have been transacted on the
original date of the meeting |
| 5140 |
may be transacted at the adjourned
meeting. If a new record date |
| 5141 |
for the adjourned meeting is or must
be fixed under s. 617.0707, |
| 5142 |
notice of the adjourned meeting must
be given to persons who are |
| 5143 |
entitled to vote and are members as
of the new record date but |
| 5144 |
were not members as of the previous
record date. |
| 5145 |
(8) PROXY
VOTING.--The members have the right, unless |
| 5146 |
otherwise provided in this subsection
or in the governing |
| 5147 |
documents,
to vote in person or by limited
proxy. To be valid, a |
| 5148 |
limited
proxy must be dated, must state the date, time, and |
| 5149 |
place of the meeting for which it was
given, and must be signed |
| 5150 |
by the authorized person who executed
the proxy. A limited proxy |
| 5151 |
is effective only for the specific
meeting for which it was |
| 5152 |
originally given, as the meeting may
lawfully be adjourned and |
| 5153 |
reconvened from time to time, and
automatically expires 60 90 |
| 5154 |
days after the date of the meeting
for which it was originally |
| 5155 |
given. A proxy is revocable at any
time at the pleasure of the |
| 5156 |
person who executes it. If the proxy
form expressly so provides, |
| 5157 |
any proxy holder may appoint, in
writing, a substitute to act in |
| 5158 |
his or her place. |
| 5159 |
(9) ELECTIONS.-- |
| 5160 |
(a) Election
procedures.-- |
| 5161 |
1. The
members of the board shall be elected by written |
| 5162 |
ballot or voting
machine. Proxies shall in no event be used in |
| 5163 |
electing the
board, either in general elections or elections to |
| 5164 |
fill vacancies
caused by recall, resignation, or otherwise, |
| 5165 |
unless otherwise
provided in this chapter. Not less than 60 days |
| 5166 |
before a scheduled
election, the association shall mail, |
| 5167 |
deliver, or
electronically transmit, whether by separate |
| 5168 |
association
mailing or included in another association mailing, |
| 5169 |
delivery, or
transmission, including regularly published |
| 5170 |
newsletters, to
each parcel owner entitled to a vote, a first |
| 5171 |
notice of the date
of the election. Any homeowner or other |
| 5172 |
eligible person
desiring to be a candidate for the board must |
| 5173 |
give written
notice to the association not less than 40 days |
| 5174 |
before a scheduled
election. Together with the written notice |
| 5175 |
and agenda as set
forth in this section, the association shall |
| 5176 |
mail, deliver, or
electronically transmit a second notice of the |
| 5177 |
election to all
parcel owners entitled to vote therein, with a |
| 5178 |
ballot that shall
list all candidates. Upon request of a |
| 5179 |
candidate, the
association shall include an information sheet, |
| 5180 |
no larger than 8
1/2 inches by 11 inches, which must be |
| 5181 |
furnished by the
candidate not less than 35 days before the |
| 5182 |
election, to be
included with the mailing, delivery, or |
| 5183 |
transmission of
the ballot, with the costs of mailing, delivery, |
| 5184 |
or electronic
transmission and copying to be borne by the |
| 5185 |
association. The
association is not liable for the contents of |
| 5186 |
the information
sheets prepared by the candidates. In order to |
| 5187 |
reduce costs, the
association may print or duplicate the |
| 5188 |
information sheets
on both sides of the paper. The division |
| 5189 |
shall by rule
establish voting procedures consistent with the |
| 5190 |
provisions
contained in this chapter, including rules |
| 5191 |
establishing
procedures for giving notice by electronic |
| 5192 |
transmission and
rules providing for the secrecy of ballots. |
| 5193 |
Elections shall be
decided by a plurality of those ballots cast. |
| 5194 |
There shall be no
quorum requirement; however, at least 20 |
| 5195 |
percent of the
eligible voters must cast a ballot in order to |
| 5196 |
have a valid
election of members of the board. No parcel owner |
| 5197 |
shall permit any
other person to vote his or her ballot, and any |
| 5198 |
such ballots
improperly cast shall be deemed invalid, provided |
| 5199 |
any parcel owner
who violates this provision may be fined by the |
| 5200 |
association in
accordance with s. 720.305(2). A parcel owner |
| 5201 |
needing assistance
in casting the ballot for the reasons stated |
| 5202 |
in s. 101.051 may
obtain assistance in casting the ballot. The |
| 5203 |
regular election
shall occur on the date of the annual meeting. |
| 5204 |
Notwithstanding
the provisions of this subparagraph, an election |
| 5205 |
is not required
unless more candidates file notices of intent to |
| 5206 |
run or more are
nominated than board vacancies exist. |
| 5207 |
2. Unless
otherwise provided in the bylaws, any vacancy |
| 5208 |
occurring on the
board before the expiration of a term may be |
| 5209 |
filled by the
affirmative vote of the majority of the remaining |
| 5210 |
directors, even if
the remaining directors constitute less than |
| 5211 |
a quorum, or by
the sole remaining director. In the alternative, |
| 5212 |
a board may hold
an election to fill the vacancy, in which case |
| 5213 |
the election
procedures must conform to the requirements of this |
| 5214 |
section unless the
association has opted out of the statutory |
| 5215 |
election process,
in which case the bylaws of the association |
| 5216 |
control. Unless
otherwise provided in the bylaws, a board member |
| 5217 |
appointed or
elected under this section shall fill the vacancy |
| 5218 |
for the unexpired
term of the seat being filled. Filling |
| 5219 |
vacancies created
by recall is governed by s. 720.303(10) and |
| 5220 |
rules adopted by
the division. |
| 5221 |
3. Fifteen
percent of the total voting interests in a |
| 5222 |
homeowners'
association, or six parcel owners, whichever is |
| 5223 |
greater, may
petition the division to appoint an election |
| 5224 |
monitor to attend
the annual meeting of the homeowners and |
| 5225 |
conduct the
election of directors. The division shall appoint a |
| 5226 |
division employee,
a person or persons specializing in |
| 5227 |
homeowners'
association election monitoring, or an attorney |
| 5228 |
licensed to
practice in this state as the election monitor. All |
| 5229 |
costs associated
with the election monitoring process shall be |
| 5230 |
paid by the
association. The division shall adopt a rule |
| 5231 |
establishing
procedures for the appointment of election monitors |
| 5232 |
and the scope and
extent of the monitor's role in the election |
| 5233 |
process. |
| 5234 |
(b) Terms;
eligibility of candidates.-- |
| 5235 |
1. The
terms of all members of the board shall expire at |
| 5236 |
the annual
meeting. Members may stand for reelection. |
| 5237 |
2. Coowners
of a parcel may not serve as members of the |
| 5238 |
board of
administration at the same time. |
| 5239 |
3. After
transition of control in a community, only |
| 5240 |
members as defined
in s. 720.301(1) shall be eligible as |
| 5241 |
candidates for the
board. |
| 5242 |
4. A
person who has been convicted of any felony by any |
| 5243 |
court of record in
the United States and who has not had his or |
| 5244 |
her right to vote
restored pursuant to law in the jurisdiction |
| 5245 |
of his or her
residence is not eligible for board membership. |
| 5246 |
The validity of an
action by the board is not affected if it is |
| 5247 |
later determined
that a member of the board is ineligible for |
| 5248 |
board membership
due to having been convicted of a felony. |
| 5249 |
Elections of
directors must be conducted in accordance with the |
| 5250 |
procedures set
forth in the governing documents of the |
| 5251 |
association. All
members of the association shall be eligible to |
| 5252 |
serve on the board
of directors, and a member may nominate |
| 5253 |
himself or herself
as a candidate for the board at a meeting |
| 5254 |
where the election
is to be held. Except as otherwise provided |
| 5255 |
in the governing
documents, boards of directors must be elected |
| 5256 |
by a plurality of
the votes cast by eligible voters. Any |
| 5257 |
election dispute
between a member and an association must be |
| 5258 |
submitted to
mandatory binding arbitration with the division. |
| 5259 |
Such proceedings
shall be conducted in the manner provided by s. |
| 5260 |
718.1255 and the
procedural rules adopted by the division. |
| 5261 |
(10) RECORDING.--Any
parcel owner may electronically tape |
| 5262 |
record any
or videotape meetings of the board
of directors and |
| 5263 |
meetings of the members. The board of
directors of the |
| 5264 |
association may adopt reasonable
rules governing the taping of |
| 5265 |
meetings of the board and the
membership. However, those rules |
| 5266 |
may not restrict
the parcel owners' rights to electronically |
| 5267 |
record the meeting
using, but not limited to, battery-operated |
| 5268 |
or electrical
equipment. |
| 5269 |
Section
58. Section 720.307, Florida Statutes, is amended |
| 5270 |
to read: |
| 5271 |
720.307 Transition
of association control in a |
| 5272 |
community.--With respect to
homeowners' associations: |
| 5273 |
(1) Members
other than the developer are entitled to elect |
| 5274 |
at least a majority of the members of
the board of directors of |
| 5275 |
the homeowners' association when the
earlier of the following |
| 5276 |
events occurs: |
| 5277 |
(a) Three
months after 75 90
percent of the parcels in all |
| 5278 |
phases of the community that will
ultimately be operated by the |
| 5279 |
homeowners' association have been
conveyed to members; or |
| 5280 |
(b) Such
other percentage of the parcels has been conveyed |
| 5281 |
to members, or such other date or
event has occurred, as is set |
| 5282 |
forth in the governing documents in
order to comply with the |
| 5283 |
requirements of any governmentally
chartered entity with regard |
| 5284 |
to the mortgage financing of parcels. |
| 5285 |
|
| 5286 |
For purposes of this section, the
term "members other than the |
| 5287 |
developer" shall not include
builders, contractors, or others |
| 5288 |
who purchase a parcel for the purpose
of constructing |
| 5289 |
improvements thereon for resale. |
| 5290 |
(2) The
developer is entitled to elect at least one member |
| 5291 |
of the board of directors of the
homeowners' association as long |
| 5292 |
as the developer holds for sale in
the ordinary course of |
| 5293 |
business at least 5 percent of the
parcels in all phases of the |
| 5294 |
community. After the developer
relinquishes control of the |
| 5295 |
homeowners' association, the
developer may exercise the right to |
| 5296 |
vote any developer-owned voting
interests in the same manner as |
| 5297 |
any other member, except for purposes
of reacquiring control of |
| 5298 |
the homeowners' association or
selecting the majority of the |
| 5299 |
members of the board of directors. |
| 5300 |
(3) Prior
to turnover, the developer or owner of all |
| 5301 |
common areas shall
convey the title to all common areas to the |
| 5302 |
association
immediately upon incorporation of the association. |
| 5303 |
If additional
common areas are acquired prior to transition of |
| 5304 |
control and
subject to the governing documents, title to those |
| 5305 |
common areas shall
also be immediately transferred to the |
| 5306 |
association. |
| 5307 |
(4) At
the time the members are entitled to elect at least |
| 5308 |
a majority of the board of directors
of the homeowners' |
| 5309 |
association, the developer shall, at
the developer's expense, |
| 5310 |
within no more than 30
90 days deliver the following
documents |
| 5311 |
to the board: |
| 5312 |
(a) All
deeds to common property owned by the association |
| 5313 |
or the developer. |
| 5314 |
(b) The
original of the association's declarations of |
| 5315 |
covenants and restrictions. |
| 5316 |
(c) A
certified copy of the articles of incorporation of |
| 5317 |
the association. |
| 5318 |
(d) A
copy of the bylaws. |
| 5319 |
(e) The
minute books, including all minutes. |
| 5320 |
(f) The
books and records of the association. |
| 5321 |
(g) Policies,
rules, and regulations, if any, which have |
| 5322 |
been adopted. |
| 5323 |
(h) Resignations
of directors who are required to resign |
| 5324 |
because the developer is required to
relinquish control of the |
| 5325 |
association. |
| 5326 |
(i) The
financial records of the association from the date |
| 5327 |
of incorporation through the date of
turnover. |
| 5328 |
(j) All
association funds and control thereof. |
| 5329 |
(k) All
tangible property of the association. |
| 5330 |
(l) A
copy of all contracts which may be in force with the |
| 5331 |
association as one of the parties. |
| 5332 |
(m) A
list of the names and addresses and telephone |
| 5333 |
numbers of all contractors,
subcontractors, or others in the |
| 5334 |
current employ of the association. |
| 5335 |
(n) Any
and all insurance policies in effect. |
| 5336 |
(o) Any
permits issued to the association by governmental |
| 5337 |
entities. |
| 5338 |
(p) Any
and all warranties in effect. |
| 5339 |
(q) A
roster of current homeowners and their addresses and |
| 5340 |
telephone numbers and section and lot
numbers. |
| 5341 |
(r) Employment
and service contracts in effect. |
| 5342 |
(s) All
other contracts and agreements in effect to which |
| 5343 |
the association is a party. |
| 5344 |
(t) The
financial records, including financial statements |
| 5345 |
of the
association, and source documents from the incorporation |
| 5346 |
of the association
through the date of turnover. The records |
| 5347 |
shall be audited
by an independent certified public accountant |
| 5348 |
for the period of
the incorporation of the association or for |
| 5349 |
the period covered
by the last audit, if an audit has been |
| 5350 |
performed for each
fiscal year since incorporation. All |
| 5351 |
financial
statements shall be prepared in accordance with |
| 5352 |
generally accepted
accounting standards and shall be audited in |
| 5353 |
accordance with
generally accepted auditing standards as |
| 5354 |
prescribed by the
Board of Accountancy. The accountant |
| 5355 |
performing the
review shall examine to the extent necessary |
| 5356 |
supporting
documents and records, including the cash |
| 5357 |
disbursements and
related paid invoices to determine whether |
| 5358 |
expenditures were
for association purposes and the billings, |
| 5359 |
cash receipts, and
related records to determine whether the |
| 5360 |
developer was
charged and paid the proper amounts of |
| 5361 |
assessments. This
paragraph applies to associations with a date |
| 5362 |
of incorporation
after December 31, 2007. |
| 5363 |
(5)(4) This
section applies to any mandatory homeowners' |
| 5364 |
association
existing under this chapter does
not apply to a |
| 5365 |
homeowners'
association in existence on the effective date of |
| 5366 |
this act, or to a
homeowners' association, no matter when |
| 5367 |
created, if such
association is created in a community that is |
| 5368 |
included in an
effective development-of-regional-impact |
| 5369 |
development order
as of the effective date of this act, together |
| 5370 |
with any approved
modifications thereof. |
| 5371 |
Section
59. Section 720.3071, Florida Statutes, is created |
| 5372 |
to read: |
| 5373 |
720.3071 Board
member training.--The division shall |
| 5374 |
provide training
programs for homeowners' association board |
| 5375 |
members, at the
associations' expense. Training shall be |
| 5376 |
mandatory for
newly elected board members and members currently |
| 5377 |
serving on a board
who have not previously voluntarily attended |
| 5378 |
training. |
| 5379 |
Section
60. Subsection (1) of section 720.3075, Florida |
| 5380 |
Statutes, is amended, and subsection
(5) is added to that |
| 5381 |
section, to read: |
| 5382 |
720.3075 Prohibited
clauses in association documents.-- |
| 5383 |
(1) It
is declared that the public policy of this state |
| 5384 |
prohibits the inclusion or
enforcement of certain types of |
| 5385 |
clauses in homeowners' association
documents, including |
| 5386 |
declaration of covenants, articles of
incorporation, bylaws, or |
| 5387 |
any other document of the association
which binds members of the |
| 5388 |
association, which either have the
effect of or provide that: |
| 5389 |
(a) A
developer has the unilateral ability and right to |
| 5390 |
make changes to the homeowners'
association documents after the |
| 5391 |
transition of homeowners' association
control in a community |
| 5392 |
from the developer to the
nondeveloper members, as set forth in |
| 5393 |
s. 720.307, has occurred. |
| 5394 |
(b) A
homeowners' association is prohibited or restricted |
| 5395 |
from filing a lawsuit against the
developer, or the homeowners' |
| 5396 |
association is otherwise effectively
prohibited or restricted |
| 5397 |
from bringing a lawsuit against the
developer. |
| 5398 |
(c) After
the transition of homeowners' association |
| 5399 |
control in a community from the
developer to the nondeveloper |
| 5400 |
members, as set forth in s. 720.307,
has occurred, a developer |
| 5401 |
is entitled to cast votes in an
amount that exceeds one vote per |
| 5402 |
residential lot. |
| 5403 |
(d) The
homeowners' association is restricted or prevented |
| 5404 |
from functioning,
as provided by federal, state, and local laws |
| 5405 |
and specifically
by this chapter. |
| 5406 |
(e) The
homeowners' association is prevented from amending |
| 5407 |
any document as
allowed according to Florida statutes. |
| 5408 |
|
| 5409 |
Such clauses are declared null and
void as against the public |
| 5410 |
policy of this state. |
| 5411 |
(5)(a) An
association may not restrict a homeowner from |
| 5412 |
mounting or
employing shutters or other hurricane protection. |
| 5413 |
(b) Except
as provided in paragraph (c), an association |
| 5414 |
may not restrict a
homeowner from mounting or employing |
| 5415 |
temporary or
permanent shutters or other hurricane protection |
| 5416 |
during any time
that a hurricane warning has been declared, |
| 5417 |
during any time
when an evacuation order has been given, or for |
| 5418 |
the following
period after conclusion of such hurricane watch or |
| 5419 |
evacuation order: |
| 5420 |
1. Seven
days; or |
| 5421 |
2. Fourteen
days if the hurricane watch concerns a |
| 5422 |
category 4 storm
or greater or if the evacuation order lasts |
| 5423 |
more than 3 days. |
| 5424 |
(c) If
a local government restricts homeowners' mounting |
| 5425 |
or employing
temporary or permanent shutters or other hurricane |
| 5426 |
protection, the
local government may also authorize associations |
| 5427 |
to adopt and
enforce equal or lesser restrictions. |
| 5428 |
(d) Except
as provided in paragraph (c) or paragraph (e), |
| 5429 |
an association may
not restrict a homeowner from mounting or |
| 5430 |
employing
permanent shutters or other hurricane protection |
| 5431 |
(e) If
the association otherwise properly adopts |
| 5432 |
restrictions
governing color or form of shutters or other |
| 5433 |
permanent exterior
window coverings, the association may adopt |
| 5434 |
and enforce equal
or lesser restrictions that apply to permanent |
| 5435 |
exterior hurricane
protections. |
| 5436 |
(f) An
association may not restrict the time or duration |
| 5437 |
for shutters or
other hurricane protection to be open or closed |
| 5438 |
during any period
and may not restrict homeowners from mounting |
| 5439 |
or employing
temporary shutters or other hurricane protection, |
| 5440 |
as provided in
paragraph (b). |
| 5441 |
Section
61. Section 720.3086, Florida Statutes, is amended |
| 5442 |
to read: |
| 5443 |
720.3086 Financial
report; audit; penalty; exclusivity of |
| 5444 |
properties.-- |
| 5445 |
(1) In
a residential subdivision in which the owners of |
| 5446 |
lots or parcels must pay mandatory maintenance or
amenity fees |
| 5447 |
to the subdivision developer or to the owners of
the common |
| 5448 |
areas, recreational facilities, and other
properties serving the |
| 5449 |
lots or parcels, the developer or owner of such
areas, |
| 5450 |
facilities, or properties shall make public,
within 60 days |
| 5451 |
following the end of each fiscal year, a complete
financial |
| 5452 |
report of the actual, total receipts of mandatory
maintenance or |
| 5453 |
amenity fees received by it, and an itemized
listing of the |
| 5454 |
expenditures made by it from such fees, for that
year. Such |
| 5455 |
report shall be made public by mailing it to each
lot or parcel |
| 5456 |
owner in the subdivision, by publishing it in a
publication |
| 5457 |
regularly distributed within the subdivision, or
by posting it |
| 5458 |
in prominent locations in the subdivision. Thereafter,
the |
| 5459 |
developer or the owner of the
common areas, recreational |
| 5460 |
facilities, and other
properties serving the lots or parcels |
| 5461 |
shall mail the annual
financial report, upon written request |
| 5462 |
from a lot or parcel owner. |
| 5463 |
(2) Pursuant
to this section, if the developer or the |
| 5464 |
owner fails to provide the lot
or parcel owner with the |
| 5465 |
requested annual financial
report within 30 days of delivery of |
| 5466 |
such request to the developer
or owner, the circuit court |
| 5467 |
located in the same county as
the principal office of the |
| 5468 |
corporation, or its registered
office, if no office exists in |
| 5469 |
this state, summarily may
order the corporation to furnish such |
| 5470 |
financial report, upon
application of the lot or parcel owner. |
| 5471 |
If the court orders the
corporation to furnish the financial |
| 5472 |
report, it shall also order
the corporation to pay the lot or |
| 5473 |
parcel owner's costs,
including reasonable attorney's fees that |
| 5474 |
have been incurred to obtain
the order, and otherwise shall |
| 5475 |
enforce the lot or parcel
owner's rights under this section. |
| 5476 |
(3) Lot
or parcel owners shall have exclusive and vested |
| 5477 |
rights for the use of common
areas, recreational facilities, and |
| 5478 |
other properties serving the
lots or parcels unless they have |
| 5479 |
been dedicated for
nonexclusive use by the lot or parcel owners. |
| 5480 |
Portions of governing
documents that allow guests of the |
| 5481 |
developer or facility owner
the right to use the facility are |
| 5482 |
hereby declared void, as those
portions of governing documents |
| 5483 |
violate the rights to
exclusive use of the facilities by the lot |
| 5484 |
or parcel owners and their
guests. |
| 5485 |
(4) This
section does not apply to amounts paid to |
| 5486 |
homeowner associations pursuant to chapter
617, chapter 718, |
| 5487 |
chapter 719, chapter 721, or chapter 723, or to
amounts paid to |
| 5488 |
local governmental entities, including special
districts. |
| 5489 |
Section 62. Section
720.401, Florida Statutes, is amended |
| 5490 |
to read: |
| 5491 |
720.401 Prospective
purchasers subject to association |
| 5492 |
membership requirement; disclosure required;
covenants; |
| 5493 |
assessments; contract cancellation.-- |
| 5494 |
(1)(a) A
prospective parcel owner in a community must be |
| 5495 |
presented a disclosure summary before executing
the contract for |
| 5496 |
sale. The disclosure summary must be in a form
substantially |
| 5497 |
similar to the following form: |
| 5498 |
|
| 5499 |
DISCLOSURE SUMMARY |
| 5500 |
FOR |
| 5501 |
(NAME OF COMMUNITY) |
| 5502 |
|
| 5503 |
1. AS A
PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL |
| 5504 |
BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS'
ASSOCIATION. |
| 5505 |
2. THE
PURCHASER HAS BEEN PROVIDED A COPY OF THE THERE |
| 5506 |
HAVE BEEN OR WILL BE
RECORDED RESTRICTIVE COVENANTS AND THE |
| 5507 |
ASSOCIATION GOVERNING DOCUMENTS RELATIVE TO
GOVERNING THE USE |
| 5508 |
AND OCCUPANCY OF PROPERTIES IN THIS COMMUNITY. AFFIRM
OR DENY |
| 5509 |
RECEIPT OR DOCUMENTS BY
CHECKING: |
| 5510 |
YES /box/ or NO /box/ |
| 5511 |
3. YOU WILL
(OR WILL NOT) BE OBLIGATED TO PAY
ASSESSMENTS |
| 5512 |
TO THE ASSOCIATION. ASSESSMENTS ARE
MAY BE SUBJECT TO PERIODIC |
| 5513 |
CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS
$_____ PER _____. |
| 5514 |
IN ADDITION,
YOU WILL (OR
WILL NOT) ALSO BE OBLIGATED TO PAY ANY |
| 5515 |
SPECIAL ASSESSMENTS IMPOSED BY THE ASSOCIATION.
SUCH SPECIAL |
| 5516 |
ASSESSMENTS ARE
MAY BE SUBJECT TO CHANGE. IF
APPLICABLE, THE |
| 5517 |
CURRENT AMOUNT IS $_____ PER _____. |
| 5518 |
4. YOU WILL
MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS |
| 5519 |
AND AD VALOREM TAXES AND
NON-AD VALOREM ASSESSMENTS TO THE |
| 5520 |
RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL
DISTRICT. ALL |
| 5521 |
ASSESSMENTS AND TAXES
ARE SUBJECT TO PERIODIC CHANGE. |
| 5522 |
5. YOUR
FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS |
| 5523 |
LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION
COULD RESULT IN A |
| 5524 |
LIEN AND JUDICIAL
FORECLOSURE ON YOUR PROPERTY. |
| 5525 |
6. THERE
MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES |
| 5526 |
FOR RECREATIONAL OR OTHER COMMONLY USED
FACILITIES AS AN |
| 5527 |
OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'
ASSOCIATION. IF |
| 5528 |
APPLICABLE, THE CURRENT AMOUNT IS $_____ PER
_____. |
| 5529 |
7. THE
DEVELOPER HAS MAY
HAVE THE RIGHT TO AMEND THE |
| 5530 |
RESTRICTIVE COVENANTS WHILE
STILL IN CONTROL OF THE HOMEOWNERS' |
| 5531 |
ASSOCIATION
WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP |
| 5532 |
OR THE APPROVAL OF THE PARCEL OWNERS. |
| 5533 |
8. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE |
| 5534 |
ONLY SUMMARY IN NATURE, AND, AS A
PROSPECTIVE PURCHASERS |
| 5535 |
PURCHASER,
YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION |
| 5536 |
GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY. |
| 5537 |
9. THESE
DOCUMENTS ARE EITHER MATTERS OF
PUBLIC RECORD AND |
| 5538 |
CAN BE OBTAINED FROM THE
RECORD OFFICE IN THE COUNTY WHERE THE |
| 5539 |
PROPERTY IS LOCATED, OR
ARE NOT RECORDED IN
TALLAHASSEE AND IN |
| 5540 |
THE COUNTY WHERE THE PROPERTY
IS LOCATED. A PENALTY SHALL BE |
| 5541 |
IMPOSED UPON THE DEVELOPER,
SELLER OR AGENT OF THE SELLER IF A |
| 5542 |
RECORDED COPY OF THE
RESTRICTIVE COVENANTS AND THE ASSOCIATION |
| 5543 |
GOVERNING DOCUMENTS ARE NOT
PROVIDED BEFORE CONTRACT FOR SALE |
| 5544 |
AND CAN BE OBTAINED FROM
THE DEVELOPER. |
| 5545 |
10. THE
PURCHASERS HAVE BEEN PROVIDED A COPY OF THE |
| 5546 |
RESTRICTIVE COVENANTS AND THE
ASSOCIATION GOVERNING DOCUMENTS |
| 5547 |
BEFORE CONTRACT FOR SALE.
AFFIRM OR DENY BY CHECKING |
| 5548 |
YES /box/ or NO /box/. |
| 5549 |
|
| 5550 |
DATE:PURCHASER: |
| 5551 |
PURCHASER: |
| 5552 |
|
| 5553 |
Full The
disclosure must be supplied by the developer, or by the |
| 5554 |
parcel owner if the sale is by an owner that is
not the |
| 5555 |
developer or the agent
for the owner. Any contract or agreement |
| 5556 |
for sale shall refer to and incorporate the
disclosure summary |
| 5557 |
and shall include, in prominent language, a
statement that the |
| 5558 |
potential buyer should not execute the contract
or agreement |
| 5559 |
until they have received and read the disclosure
summary, |
| 5560 |
recorded restrictive covenants
and governing documents of the |
| 5561 |
association,
required by this section. |
| 5562 |
(b) Each
contract entered into for the sale of property |
| 5563 |
with recorded
restrictive covenants governed by mandatory |
| 5564 |
homeowners' associations
covenants subject to disclosure |
| 5565 |
required by this section must contain in
conspicuous type a |
| 5566 |
clause that states: |
| 5567 |
|
| 5568 |
IF THE DISCLOSURE SUMMARY AND
FULL DISCLOSURE OF THE RECORDED |
| 5569 |
RESTRICTIVE COVENANTS AND
GOVERNING DOCUMENTS OF THE |
| 5570 |
ASSOCIATION, REQUIRED
BY SECTION 720.401, FLORIDA STATUTES, HAVE |
| 5571 |
HAS NOT BEEN
PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE |
| 5572 |
EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT
IS VOIDABLE BY |
| 5573 |
BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT
OR |
| 5574 |
REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S
INTENTION TO CANCEL |
| 5575 |
WITHIN 10 3
DAYS AFTER RECEIPT OF THE FULL DISCLOSURE SUMMARY
OR |
| 5576 |
PRIOR TO CLOSING,
WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER |
| 5577 |
OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S
RIGHT TO VOID |
| 5578 |
THIS CONTRACT SHALL TERMINATE AT CLOSING. |
| 5579 |
(c) A
certified copy of the publicly recorded governing |
| 5580 |
documents must be provided to
any prospective purchaser, any |
| 5581 |
real estate agent, financial
institution, title or closing |
| 5582 |
company upon request. |
| 5583 |
(d) If
the developer or the association willfully and |
| 5584 |
knowingly fails to disclose
material facts that negatively |
| 5585 |
affect the value of the parcel
purchased by an association |
| 5586 |
member, the individual board
members or developer shall be held |
| 5587 |
liable under applicable
federal and state civil and criminal |
| 5588 |
statutes. (e)(c) If
the disclosure summary is not provided to a |
| 5589 |
prospective purchaser before the purchaser
executes a contract |
| 5590 |
for the sale of property governed by covenants
that are subject |
| 5591 |
to disclosure pursuant to this section, the
purchaser may void |
| 5592 |
the contract by delivering to the seller or the
seller's agent |
| 5593 |
or representative written notice canceling the
contract within 3 |
| 5594 |
days after receipt of the disclosure summary or
prior to |
| 5595 |
closing, whichever occurs first. This right may
not be waived by |
| 5596 |
the purchaser but terminates at closing. |
| 5597 |
(2) This
section does not apply to any association |
| 5598 |
regulated under chapter 718, chapter 719, chapter
721, or |
| 5599 |
chapter 723 or to a
subdivider registered under chapter 498; and |
| 5600 |
also does not apply if disclosure regarding the
association is |
| 5601 |
otherwise made in connection with the
requirements of chapter |
| 5602 |
718, chapter 719, chapter 721, or chapter 723. |
| 5603 |
Section 63. Section
720.501, Florida Statutes, is created |
| 5604 |
to read: |
| 5605 |
720.501 Powers
and Duties of Division of Florida Land |
| 5606 |
Sales, Condominiums,
Homeowners' Associations, and Mobile |
| 5607 |
Homes.-- |
| 5608 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 5609 |
Homeowners' Associations, and
Mobile Homes of the Department of |
| 5610 |
Business and Professional
Regulation, referred to as the |
| 5611 |
"division" in this
part, in addition to other powers and duties |
| 5612 |
prescribed by chapter 498, has
the power to enforce and ensure |
| 5613 |
compliance with the provisions
of this chapter and rules |
| 5614 |
promulgated pursuant hereto
relating to the development, |
| 5615 |
construction, sale, lease,
ownership, operation, and management |
| 5616 |
of residential property. In
performing its duties, the division |
| 5617 |
has the following powers and
duties: |
| 5618 |
(a) The
division may make necessary public or private |
| 5619 |
investigations within or
outside this state to determine whether |
| 5620 |
any person has violated this
chapter or any rule or order |
| 5621 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
| 5622 |
in the adoption of rules or
forms hereunder. |
| 5623 |
(b) The
division may require or permit any person to file |
| 5624 |
a statement in writing, under
oath or otherwise, as the division |
| 5625 |
determines, as to the facts
and circumstances concerning a |
| 5626 |
matter to be investigated. |
| 5627 |
(c) For
the purpose of any investigation under this |
| 5628 |
chapter, the division
director, or any officer or employee |
| 5629 |
designated by the division
director may administer oaths or |
| 5630 |
affirmations, subpoena
witnesses and compel their attendance, |
| 5631 |
take evidence, and require the
production of any matter which is |
| 5632 |
relevant to the investigation,
including the existence, |
| 5633 |
description, nature, custody,
condition, and location of any |
| 5634 |
books, documents, or other
tangible things and the identity and |
| 5635 |
location of persons having
knowledge of relevant facts or any |
| 5636 |
other matter reasonably
calculated to lead to the discovery of |
| 5637 |
material evidence. Upon the
failure by a person to obey a |
| 5638 |
subpoena or to answer
questions propounded by the investigating |
| 5639 |
officer and upon reasonable
notice to all persons affected |
| 5640 |
thereby, the division may
apply to the circuit court for an |
| 5641 |
order compelling compliance. |
| 5642 |
(d) Notwithstanding
any remedies available to lot owners |
| 5643 |
and associations, if the
division has reasonable cause to |
| 5644 |
believe that a violation of
any provision of this chapter or |
| 5645 |
rule promulgated pursuant
hereto has occurred, the division may |
| 5646 |
institute enforcement
proceedings in its own name against any |
| 5647 |
developer, association,
officer, or member of the board of |
| 5648 |
administration, or its
assignees or agents, as follows: |
| 5649 |
1. The
division may permit a person whose conduct or |
| 5650 |
actions may be under
investigation to waive formal proceedings |
| 5651 |
and enter into a consent
proceeding whereby orders, rules, or |
| 5652 |
letters of censure or warning,
whether formal or informal, may |
| 5653 |
be entered against the person. |
| 5654 |
2. The
division may issue an order requiring the |
| 5655 |
developer, association,
officer, or member of the board of |
| 5656 |
administration, or its
assignees or agents, to cease and desist |
| 5657 |
from the unlawful practice and
take such affirmative action as |
| 5658 |
in the judgment of the
division will carry out the purposes of |
| 5659 |
this chapter. Such affirmative
action may include, but is not |
| 5660 |
limited to, an order requiring
a developer to pay moneys |
| 5661 |
determined to be owed to a
homeowners' association. |
| 5662 |
3. The
division may bring an action in circuit court on |
| 5663 |
behalf of a class of lot
owners, lessees, or purchasers for |
| 5664 |
declaratory relief, injunctive
relief, or restitution. |
| 5665 |
4. The
division may impose a civil penalty against a |
| 5666 |
developer or association, or
its assignee or agent for any |
| 5667 |
violation of this chapter or a
rule promulgated pursuant hereto. |
| 5668 |
The division may impose a
civil penalty individually against any |
| 5669 |
officer or board member who
willfully and knowingly violates a |
| 5670 |
provision of this chapter, a
rule adopted pursuant hereto, or a |
| 5671 |
final order of the division.
The term "willfully and knowingly" |
| 5672 |
means that the division
informed the officer or board member |
| 5673 |
that his or her action or
intended action violates this chapter, |
| 5674 |
a rule adopted under this
chapter, or a final order of the |
| 5675 |
division and that the officer
or board member refused to comply |
| 5676 |
with the requirements of this
chapter, a rule adopted under this |
| 5677 |
chapter, or a final order of
the division. The division, prior |
| 5678 |
to initiating formal agency
action under chapter 120, shall |
| 5679 |
afford the officer or board
member an opportunity to voluntarily |
| 5680 |
comply with this chapter, a
rule adopted under this chapter, or |
| 5681 |
a final order of the division.
An officer or board member who |
| 5682 |
complies within 10 days is not
subject to a civil penalty. A |
| 5683 |
penalty may be imposed on the
basis of each day of continuing |
| 5684 |
violation, but in no event
shall the penalty for any offense |
| 5685 |
exceed $5,000. By January 1,
2007, the division shall adopt, by |
| 5686 |
rule, penalty guidelines
applicable to possible violations or to |
| 5687 |
categories of violations of
this chapter or rules adopted by the |
| 5688 |
division. The guidelines must
specify a meaningful range of |
| 5689 |
civil penalties for each such
violation of the statute and rules |
| 5690 |
and must be based upon the
harm caused by the violation, the |
| 5691 |
repetition of the violation,
and upon such other factors deemed |
| 5692 |
relevant by the division. For
example, the division may consider |
| 5693 |
whether the violations were
committed by a developer-controlled |
| 5694 |
or owner-controlled
association, the size of the association, |
| 5695 |
and other factors. The
guidelines must designate the possible |
| 5696 |
mitigating or aggravating
circumstances that justify a departure |
| 5697 |
from the range of penalties
provided by the rules. It is the |
| 5698 |
legislative intent that minor
violations be distinguished from |
| 5699 |
those which endanger the
health, safety, or welfare of residents |
| 5700 |
or other persons and that such
guidelines provide reasonable and |
| 5701 |
meaningful notice to the
public of likely penalties that may be |
| 5702 |
imposed for prescribed
conduct. This subsection does not limit |
| 5703 |
the ability of the division to
informally dispose of |
| 5704 |
administrative actions or
complaints by stipulation, agreed |
| 5705 |
settlement, or consent order.
All amounts collected shall be |
| 5706 |
deposited with the Chief
Financial Officer to the credit of the |
| 5707 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 5708 |
Association, and Mobile Homes
Trust Fund. If a developer fails |
| 5709 |
to pay the civil penalty, the
division shall thereupon issue an |
| 5710 |
order directing that such
developer cease and desist from |
| 5711 |
further operation until such
time as the civil penalty is paid, |
| 5712 |
or may pursue enforcement of
the penalty in a court of competent |
| 5713 |
jurisdiction. If an
association fails to pay the civil penalty, |
| 5714 |
the division shall thereupon
pursue enforcement in a court of |
| 5715 |
competent jurisdiction, and
the order imposing the civil penalty |
| 5716 |
or the cease and desist order
will not become effective until 20 |
| 5717 |
days after the date of such
order. Any action commenced by the |
| 5718 |
division shall be brought in
the county in which the division |
| 5719 |
has its executive offices or
in the county where the violation |
| 5720 |
occurred. |
| 5721 |
(e) The
division may prepare and disseminate a prospectus |
| 5722 |
and other information to
assist prospective owners, purchasers, |
| 5723 |
lessees, and developers of
residential communities in assessing |
| 5724 |
the rights, privileges, and
duties pertaining thereto. |
| 5725 |
(f) The
division may adopt rules pursuant to ss.120.536(1) |
| 5726 |
and 120.54 to implement and
enforce the provisions of this |
| 5727 |
chapter. |
| 5728 |
(g) The
division shall establish procedures for providing |
| 5729 |
notice to an association when
the division considers the |
| 5730 |
issuance of a declaratory
statement with respect to the |
| 5731 |
declaration of restrictions or
any related document governing in |
| 5732 |
such residential community. |
| 5733 |
(h) The
division shall furnish each association which pays |
| 5734 |
the fees required by paragraph
(2)(a) a copy of this act, |
| 5735 |
subsequent changes to this act
on an annual basis, an amended |
| 5736 |
version of this act as it
becomes available from the Secretary |
| 5737 |
of State's office and the
rules promulgated pursuant thereto on |
| 5738 |
an annual basis. |
| 5739 |
(i) The
division shall annually provide each association |
| 5740 |
with a summary of declaratory
statements and formal legal |
| 5741 |
opinions relating to the
operations of residential communities |
| 5742 |
which were rendered by the
division during the previous year. |
| 5743 |
(j) The
division shall provide training programs for |
| 5744 |
residential association board
members and lot owners. |
| 5745 |
(k) The
division shall maintain a toll-free telephone |
| 5746 |
number accessible to lot
owners. |
| 5747 |
(l) The
division shall develop a program to certify both |
| 5748 |
volunteer and paid mediators
to provide mediation of disputes. |
| 5749 |
The division shall provide,
upon request, a list of such |
| 5750 |
mediators to any association,
lot owner, or other participant in |
| 5751 |
arbitration proceedings under
s. 720.311 requesting a copy of |
| 5752 |
the list. The division shall
include on the list of volunteer |
| 5753 |
mediators only the names of
persons who have received at least |
| 5754 |
20 hours of training in
mediation techniques or who have |
| 5755 |
mediated at least 20 disputes.
In order to become initially |
| 5756 |
certified by the division,
paid mediators must be certified by |
| 5757 |
the Supreme Court to mediate
court cases in either county or |
| 5758 |
circuit courts. However, the
division may adopt, by rule, |
| 5759 |
additional factors for the
certification of paid mediators, |
| 5760 |
which factors must be related
to experience, education, or |
| 5761 |
background. Any person
initially certified as a paid mediator by |
| 5762 |
the division must, in order to
continue to be certified, comply |
| 5763 |
with the factors or
requirements imposed by rules adopted by the |
| 5764 |
division. |
| 5765 |
(m) When
a complaint is made, the division shall conduct |
| 5766 |
its inquiry with due regard to
the interests of the affected |
| 5767 |
parties. Within 30 days after
receipt of a complaint, the |
| 5768 |
division shall acknowledge the
complaint in writing and notify |
| 5769 |
the complainant whether the
complaint is within the jurisdiction |
| 5770 |
of the division and whether
the division needs additional |
| 5771 |
information from the
complainant. The division shall conduct its |
| 5772 |
investigation and shall take
action upon the complaint within 90 |
| 5773 |
days after receipt of the
original complaint or of timely |
| 5774 |
requested additional
information. However, failure to complete |
| 5775 |
the investigation within 90
days does not prevent the division |
| 5776 |
from continuing the
investigation, accepting or considering |
| 5777 |
evidence obtained or received
after 90 days, or taking |
| 5778 |
administrative action if
reasonable cause exists to believe that |
| 5779 |
a violation of this chapter or
a rule of the division has |
| 5780 |
occurred. If an investigation
is not completed within the time |
| 5781 |
limits established in this
paragraph, the division shall, on a |
| 5782 |
monthly basis, notify the
complainant in writing of the status |
| 5783 |
of the investigation When
reporting its action to the |
| 5784 |
complainant, the division
shall inform the complainant of any |
| 5785 |
right to a hearing pursuant to
ss. 120.569 and 120.57. |
| 5786 |
(2) Effective
January 1, 2008, each homeowners' |
| 5787 |
association that administers
more than 10 residential homes |
| 5788 |
shall pay to the division an
annual fee in the amount of $4 for |
| 5789 |
each residence in communities
administered by the association. |
| 5790 |
If the fee is not paid by
March 1, then the association shall be |
| 5791 |
assessed a penalty of 10
percent of the amount due, and the |
| 5792 |
association will not have
standing to maintain or defend any |
| 5793 |
action in the courts of this
state until the amount due, plus |
| 5794 |
any penalty that is paid. All
fees shall be deposited in the |
| 5795 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 5796 |
Association, and Mobile Homes
Trust Fund as provided by law. |
| 5797 |
Section 64. Section
720.505, Florida Statutes, is created |
| 5798 |
to read: |
| 5799 |
720.505 Advisory
council; membership functions.-- |
| 5800 |
(1) There
is created the Advisory Council On Mandated |
| 5801 |
Properties. The council shall
consist of seven appointed |
| 5802 |
members. Two members shall be
appointed by the President of the |
| 5803 |
Senate, two members shall be
appointed by the Speaker of the |
| 5804 |
House of Representatives, and
three members shall be appointed |
| 5805 |
by the Governor. At least one
member that is appointed by the |
| 5806 |
Governor, by the Senate
President and by the Speaker of the |
| 5807 |
House shall be a homeowners'
rights advocate and parcel owner. |
| 5808 |
Members shall be appointed to
2-year terms; however, one of the |
| 5809 |
persons initially appointed by
the Governor, by the President of |
| 5810 |
the Senate, and by the Speaker
of the House of Representatives |
| 5811 |
shall be appointed to a 1-year
term. A member of the division, |
| 5812 |
appointed by the Secretary,
shall serve as an ex-officio |
| 5813 |
nonvoting member. The
selection of council members shall be made |
| 5814 |
in a manner that ensures a
fair and balanced representation from |
| 5815 |
the service-provider sector
and consumer advocates with a |
| 5816 |
substantial public record of
endeavors on behalf of homeowners' |
| 5817 |
rights and consumer interests.
The council shall be located |
| 5818 |
within the division for
administrative purposes. Members of the |
| 5819 |
council shall serve without
compensation but are entitled to |
| 5820 |
receive per diem and travel
expenses pursuant to s. 112.061 |
| 5821 |
while on official business. A
vacancy on the Advisory Council |
| 5822 |
shall be filled in the same
manner as the original appointment. |
| 5823 |
(2) The
functions of the advisory council shall be to: |
| 5824 |
(a) Receive,
from the public, input regarding issues of |
| 5825 |
concern with respect to
mandated communities and recommendations |
| 5826 |
for changes in homeowners'
association laws. The issues that the |
| 5827 |
council shall consider
include, but are not limited to, the |
| 5828 |
rights and responsibilities of
the parcel owners in relation to |
| 5829 |
the rights and
responsibilities of the association. |
| 5830 |
(b) Review,
evaluate, and advise the division concerning |
| 5831 |
revisions and adoption of
rules affecting homeowners' |
| 5832 |
associations. |
| 5833 |
(c) Recommend
improvements, if needed, in the education |
| 5834 |
programs offered by the
division. |
| 5835 |
(3) The
council may elect a chair and vice chair and such |
| 5836 |
other officers as it may deem
advisable. The council shall meet |
| 5837 |
at the call of its chair, at
the request of a majority of its |
| 5838 |
membership, at the request of
the division, or at such times as |
| 5839 |
it may prescribe. A majority
of the members of the council shall |
| 5840 |
constitute a quorum. Council
action may be taken by vote of a |
| 5841 |
majority of the voting members
who are present at a meeting |
| 5842 |
where there is a quorum. |