1018 |
(b) Quorum;
voting requirements; proxies.-- |
1019 |
1. Unless
a lower number is provided in the bylaws, the |
1020 |
percentage of voting interests required
to constitute a quorum |
1021 |
at a meeting of the members shall be a
majority of the voting |
1022 |
interests. Unless otherwise provided in
this chapter or in the |
1023 |
declaration, articles of incorporation,
or bylaws, and except as |
1024 |
provided in subparagraph (d)3.,
decisions shall be made by |
1025 |
owners of a majority of the voting
interests represented at a |
1026 |
meeting at which a quorum is present. |
1027 |
2. Except
as specifically otherwise provided herein, after |
1028 |
January 1, 1992, unit owners may not
vote by general proxy, but |
1029 |
may vote by limited proxies
substantially conforming to a |
1030 |
limited proxy form adopted by the
division. Limited proxies and |
1031 |
general proxies may be used to establish
a quorum. Limited |
1032 |
proxies shall be used for votes taken to
waive or reduce |
1033 |
reserves in accordance with subparagraph
(f)2.; for votes taken |
1034 |
to waive the financial reporting
requirements of s. 718.111(13); |
1035 |
for votes taken to amend the declaration
pursuant to s. 718.110; |
1036 |
for votes taken to amend the articles of
incorporation or bylaws |
1037 |
pursuant to this section; and for any
other matter for which |
1038 |
this chapter requires or permits a vote
of the unit owners. |
1039 |
Except as
provided in paragraph (d), after January 1, 1992, No |
1040 |
proxy, limited or general, shall be used
in the election of |
1041 |
board members. General proxies may be
used for other matters for |
1042 |
which limited proxies are not required,
and may also be used in |
1043 |
voting for nonsubstantive changes to
items for which a limited |
1044 |
proxy is required and given.
Notwithstanding the provisions of |
1045 |
this subparagraph, unit owners may vote
in person at unit owner |
1046 |
meetings. Nothing contained herein shall
limit the use of |
1047 |
general proxies or require the use of
limited proxies for any |
1048 |
agenda item or election at any meeting
of a timeshare |
1049 |
condominium association. |
1050 |
3. Any
proxy given shall be effective only for the |
1051 |
specific meeting for which originally
given and any lawfully |
1052 |
adjourned meetings thereof. In no event
shall any proxy be valid |
1053 |
for a period longer than 90 days after
the date of the first |
1054 |
meeting for which it was given. Every
proxy is revocable at any |
1055 |
time at the pleasure of the unit owner
executing it. |
1056 |
4. A
member of the board of administration or a committee |
1057 |
may submit in writing his or her
agreement or disagreement with |
1058 |
any action taken at a meeting that the
member did not attend. |
1059 |
This agreement or disagreement may not
be used as a vote for or |
1060 |
against the action taken and may not be
used for the purposes of |
1061 |
creating a quorum. |
1062 |
5. When
any of the board or committee members meet by |
1063 |
telephone conference, those board or
committee members attending |
1064 |
by telephone conference may be counted
toward obtaining a quorum |
1065 |
and may vote by telephone. A telephone
speaker must be used so |
1066 |
that the conversation of those board or
committee members |
1067 |
attending by telephone may be heard by
the board or committee |
1068 |
members attending in person as well as
by any unit owners |
1069 |
present at a meeting. |
1070 |
(c) Board
of administration meetings.--Meetings of the |
1071 |
board of administration at which a
quorum of the members is |
1072 |
present shall be open to all unit
owners. No action shall be |
1073 |
taken or resolution
made without an open meeting of the board of |
1074 |
administration. The
board of administration shall address agenda |
1075 |
items proposed by a
petition of 20 percent of the unit owners. |
1076 |
Unless otherwise
provided in the bylaws, boards of |
1077 |
administration shall
use rules of parliamentary procedure in |
1078 |
conducting all
association meetings and business. A unit owner's |
1079 |
facsimile signature
shall constitute the unit owner's original |
1080 |
signature in any
matter under this chapter that requires the |
1081 |
unit owner's
signature. Correspondence from the board of |
1082 |
administration to
unit owners shall be accomplished by the same |
1083 |
delivery method used
by the unit owner except as otherwise |
1084 |
provided in
this paragraph. Any unit owner may tape record or |
1085 |
videotape meetings of the board of
administration. The right to |
1086 |
attend such meetings includes the right
to speak at such |
1087 |
meetings with reference to all
designated agenda items. The |
1088 |
division shall adopt reasonable rules
governing the tape |
1089 |
recording and videotaping of the
meeting. The association may |
1090 |
adopt written reasonable rules governing
the frequency, |
1091 |
duration, and manner of unit owner
statements. Adequate notice |
1092 |
of all meetings, which notice shall
specifically incorporate an |
1093 |
identification of agenda items, shall be
posted conspicuously on |
1094 |
the condominium property at least 48
continuous hours preceding |
1095 |
the meeting except in an emergency. Any
item not included on the |
1096 |
notice may be taken up on an emergency
basis by at least a |
1097 |
majority plus one of the members of the
board or by a petition |
1098 |
of 20 percent
of the unit owners. Such emergency action shall be |
1099 |
noticed and ratified at the next regular
meeting of the board. |
1100 |
However, written notice of any meeting
at which nonemergency |
1101 |
special assessments, or at which
amendment to rules regarding |
1102 |
unit use, will be considered shall be
mailed, delivered, or |
1103 |
electronically transmitted to the unit
owners and posted |
1104 |
conspicuously on the condominium
property not less than 14 days |
1105 |
prior to the meeting. Evidence of
compliance with this 14-day |
1106 |
notice shall be made by an affidavit
executed by the person |
1107 |
providing the notice and filed among the
official records of the |
1108 |
association. Upon notice to the unit
owners, the board shall by |
1109 |
duly adopted rule designate a specific
location on the |
1110 |
condominium property or association
property upon which all |
1111 |
notices of board meetings shall be
posted. If there is no |
1112 |
condominium property or association
property upon which notices |
1113 |
can be posted, notices of board meetings
shall be mailed, |
1114 |
delivered, or electronically transmitted
at least 14 days before |
1115 |
the meeting to the owner of each unit.
In lieu of or in addition |
1116 |
to the physical posting of notice of any
meeting of the board of |
1117 |
administration on the condominium
property, the association may, |
1118 |
by reasonable rule, adopt a procedure
for conspicuously posting |
1119 |
and repeatedly broadcasting the notice
and the agenda on a |
1120 |
closed-circuit cable television system
serving the condominium |
1121 |
association. However, if broadcast
notice is used in lieu of a |
1122 |
notice posted physically on the
condominium property, the notice |
1123 |
and agenda must be broadcast at least
four times every broadcast |
1124 |
hour of each day that a posted notice is
otherwise required |
1125 |
under this section. When broadcast
notice is provided, the |
1126 |
notice and agenda must be broadcast in a
manner and for a |
1127 |
sufficient continuous length of time so
as to allow an average |
1128 |
reader to observe the notice and read
and comprehend the entire |
1129 |
content of the notice and the agenda.
Notice of any meeting in |
1130 |
which regular or
special assessments against unit owners are to |
1131 |
be considered for any reason shall
specifically state contain
a |
1132 |
statement
that assessments will be considered and the nature, |
1133 |
cost, and
breakdown of any such assessments. Meetings of a |
1134 |
committee to take final action on behalf
of the board or make |
1135 |
recommendations to the board regarding
the association budget |
1136 |
are subject to the provisions of this
paragraph. Meetings of a |
1137 |
committee that does not take final
action on behalf of the board |
1138 |
or make recommendations to the board
regarding the association |
1139 |
budget are subject to the provisions of
this section, unless |
1140 |
those meetings are exempted from this
section by the bylaws of |
1141 |
the association. Notwithstanding any
other law, the requirement |
1142 |
that board meetings and committee
meetings be open to the unit |
1143 |
owners is inapplicable to meetings
between the board or a |
1144 |
committee and the association's
attorney, with respect to |
1145 |
proposed or pending litigation, when the
meeting is held for the |
1146 |
purpose of seeking or rendering legal
advice. |
1147 |
(d) Unit
owner meetings.-- |
1148 |
1. There
shall be an annual meeting of the unit owners. |
1149 |
Unless the bylaws provide otherwise, a
vacancy on the board |
1150 |
caused by the expiration of a director's
term shall be filled by |
1151 |
electing a new board member, and the
election shall be by secret |
1152 |
ballot; however, if the number of
vacancies equals or exceeds |
1153 |
the number of candidates, no election is
required. If there is |
1154 |
no provision in the bylaws for terms of
the members of the |
1155 |
board, the terms of all members of the
board shall expire upon |
1156 |
the election of their successors at the
annual meeting. Any unit |
1157 |
owner desiring to be a candidate for
board membership shall |
1158 |
comply with subparagraph 3. The
only prohibition against |
1159 |
eligibility for
board membership shall be for a person who has |
1160 |
been convicted of any felony by any
court of record in the |
1161 |
United States and who has not had his or
her right to vote |
1162 |
restored pursuant to law in the
jurisdiction of his or her |
1163 |
residence is
not eligible for board membership. The validity of |
1164 |
an action by the board is not affected
if it is later determined |
1165 |
that a member of the board is ineligible
for board membership |
1166 |
due to having been convicted of a
felony. |
1167 |
2. The
bylaws shall provide the method of calling meetings |
1168 |
of unit owners, including annual
meetings. Written notice, which |
1169 |
notice must include an agenda, shall be
mailed, hand delivered, |
1170 |
or electronically transmitted to each
unit owner at least 14 |
1171 |
days prior to the annual meeting and
shall be posted in a |
1172 |
conspicuous place on the condominium
property at least 14 |
1173 |
continuous days preceding the annual
meeting. Upon notice to the |
1174 |
unit owners, the board shall by duly
adopted rule designate a |
1175 |
specific location on the condominium
property or association |
1176 |
property upon which all notices of unit
owner meetings shall be |
1177 |
posted; however, if there is no
condominium property or |
1178 |
association property upon which notices
can be posted, this |
1179 |
requirement does not apply. In lieu of
or in addition to the |
1180 |
physical posting of notice of any
meeting of the unit owners on |
1181 |
the condominium property, the
association may, by reasonable |
1182 |
rule, adopt a procedure for
conspicuously posting and repeatedly |
1183 |
broadcasting the notice and the agenda
on a closed-circuit cable |
1184 |
television system serving the
condominium association. However, |
1185 |
if broadcast notice is used in lieu of a
notice posted |
1186 |
physically on the condominium property,
the notice and agenda |
1187 |
must be broadcast at least four times
every broadcast hour of |
1188 |
each day that a posted notice is
otherwise required under this |
1189 |
section. When broadcast notice is
provided, the notice and |
1190 |
agenda must be broadcast in a manner and
for a sufficient |
1191 |
continuous length of time so as to allow
an average reader to |
1192 |
observe the notice and read and
comprehend the entire content of |
1193 |
the notice and the agenda. Unless a unit
owner waives in writing |
1194 |
the right to receive notice of the
annual meeting, such notice |
1195 |
shall be hand delivered, mailed, or
electronically transmitted |
1196 |
to each unit owner. Notice for meetings
and notice for all other |
1197 |
purposes shall be mailed to each unit
owner at the address last |
1198 |
furnished to the association by the unit
owner, or hand |
1199 |
delivered to each unit owner. However,
if a unit is owned by |
1200 |
more than one person, the association
shall provide notice, for |
1201 |
meetings and all other purposes, to that
one address which the |
1202 |
developer initially identifies for that
purpose and thereafter |
1203 |
as one or more of the owners of the unit
shall so advise the |
1204 |
association in writing, or if no address
is given or the owners |
1205 |
of the unit do not agree, to the address
provided on the deed of |
1206 |
record. An officer of the association,
or the manager or other |
1207 |
person providing the
first notice of the association meeting, |
1208 |
and the second
notice as provided for in subparagraph 3., shall |
1209 |
provide an affidavit or United States
Postal Service certificate |
1210 |
of mailing, to be included in the
official records of the |
1211 |
association affirming that the notices
were notice was mailed
or |
1212 |
hand delivered, in accordance with this
provision. |
1213 |
3. The
members of the board shall be elected by written |
1214 |
ballot or voting machine. Proxies shall
in no event be used in |
1215 |
electing the board, either in general
elections or elections to |
1216 |
fill vacancies caused by recall,
resignation, or otherwise, |
1217 |
unless otherwise provided in this
chapter. Not less than 60 days |
1218 |
before a scheduled election, the
association or its |
1219 |
representative
shall mail, deliver, or electronically transmit, |
1220 |
whether by separate association mailing
or included in another |
1221 |
association mailing, delivery, or
transmission, including |
1222 |
regularly published newsletters, to each
unit owner entitled to |
1223 |
a vote, a first notice of the date of
the election. Any unit |
1224 |
owner or other eligible person desiring
to be a candidate for |
1225 |
the board must give written notice to
the association or its |
1226 |
representative
not less than 40 days before a scheduled |
1227 |
election. Together with the written
notice and agenda as set |
1228 |
forth in subparagraph 2., the
association or its representative |
1229 |
shall mail, deliver, or electronically
transmit a second notice |
1230 |
of the election to all unit owners
entitled to vote therein, |
1231 |
together with a ballot which shall list
all candidates. Upon |
1232 |
request of a candidate, the association or
its representative |
1233 |
shall include an information sheet, no
larger than 81/2 inches |
1234 |
by 11 inches, which must be furnished by
the candidate not less |
1235 |
than 35 days before the election, to be
included with the |
1236 |
mailing, delivery, or transmission of
the ballot, with the costs |
1237 |
of mailing, delivery, or electronic
transmission and copying to |
1238 |
be borne by the association. The
association or its |
1239 |
representative
is not liable for the contents of the information |
1240 |
sheets prepared by the candidates.
In order to reduce costs, the |
1241 |
association may print or duplicate the information sheets on |
1242 |
both sides of the paper. The division shall by rule establish |
1243 |
voting procedures consistent with the
provisions contained |
1244 |
herein, including rules establishing
procedures for giving |
1245 |
notice by electronic transmission and
rules providing for the |
1246 |
secrecy of ballots. All
ballot envelopes must be placed in a |
1247 |
locked or sealed
ballot drop box immediately upon receipt, and |
1248 |
the box shall not be
opened in advance of the election meeting. |
1249 |
Elections shall be decided by a
plurality of those ballots cast. |
1250 |
There shall be no quorum requirement;
however, at least 20 |
1251 |
percent of the eligible voters must cast
a ballot in order to |
1252 |
have a valid election of members of the
board. No unit owner |
1253 |
shall permit any other person to vote
his or her ballot, and any |
1254 |
such ballots improperly cast shall be
deemed invalid, provided |
1255 |
any unit owner who violates this
provision may be fined by the |
1256 |
association in accordance with s.
718.303. A unit owner who |
1257 |
needs assistance in casting the ballot
for the reasons stated in |
1258 |
s. 101.051 may obtain assistance in
casting the ballot. The |
1259 |
regular election shall occur on the date
of the annual meeting. |
1260 |
The provisions of this subparagraph
shall not apply to timeshare |
1261 |
condominium associations.
Notwithstanding the provisions of this |
1262 |
subparagraph, an election is not
required unless more candidates |
1263 |
file notices of intent to run or are
nominated than board |
1264 |
vacancies exist. |
1265 |
4. Any
approval by unit owners called for by this chapter |
1266 |
or the applicable declaration or bylaws,
including, but not |
1267 |
limited to, the approval requirement in
s. 718.111(8), shall be |
1268 |
made at a duly noticed meeting of unit
owners and shall be |
1269 |
subject to all requirements of this
chapter or the applicable |
1270 |
condominium documents relating to unit
owner decisionmaking, |
1271 |
except that unit owners may take action
by written agreement, |
1272 |
without meetings, on matters for which
action by written |
1273 |
agreement without meetings is expressly
allowed by the |
1274 |
applicable bylaws or declaration or any
statute that provides |
1275 |
for such action. |
1276 |
5. Unit
owners may waive notice of specific meetings if |
1277 |
allowed by the applicable bylaws or
declaration or any statute. |
1278 |
If authorized by the bylaws, notice of
meetings of the board of |
1279 |
administration, unit owner meetings,
except unit owner meetings |
1280 |
called to recall board members under
paragraph (j), and |
1281 |
committee meetings may be given by
electronic transmission to |
1282 |
unit owners who consent to receive
notice by electronic |
1283 |
transmission. |
1284 |
6. Unit
owners shall have the right to participate in |
1285 |
meetings of unit owners with reference
to all designated agenda |
1286 |
items. However, the association may
adopt reasonable rules |
1287 |
governing the frequency, duration, and
manner of unit owner |
1288 |
participation. |
1289 |
7. Any
unit owner may tape record or videotape a meeting |
1290 |
of the unit owners subject to reasonable
rules adopted by the |
1291 |
division. |
1292 |
8. Unless
otherwise provided in the bylaws, any vacancy |
1293 |
occurring on the board before the
expiration of a term may be |
1294 |
filled by the affirmative vote of the
majority of the remaining |
1295 |
directors, even if the remaining
directors constitute less than |
1296 |
a quorum, or by the sole remaining
director. In the alternative, |
1297 |
a board may hold an election to fill the
vacancy, in which case |
1298 |
the election procedures must conform to
the requirements of |
1299 |
subparagraph 3. unless
the association has opted out of the |
1300 |
statutory election
process, in which case the bylaws of the |
1301 |
association
control. Unless otherwise provided in the bylaws, a |
1302 |
board member appointed or elected under
this section shall fill |
1303 |
the vacancy for the unexpired term of
the seat being filled. |
1304 |
Filling vacancies created by recall is
governed by paragraph (j) |
1305 |
and rules adopted by the division. |
1306 |
9. Unit
owners shall have the right to have items placed |
1307 |
on the agenda of the
annual meeting and voted upon if a written |
1308 |
request is made to
the board of administration by 20 percent or |
1309 |
more of all voting
interests at least 90 days before the date of |
1310 |
the annual meeting. |
1311 |
|
1312 |
Notwithstanding
subparagraphs (b)2. and (d)3., an association |
1313 |
may, by the
affirmative vote of a majority of the total voting |
1314 |
interests, provide
for different voting and election procedures |
1315 |
in its bylaws, which
vote may be by a proxy specifically |
1316 |
delineating the
different voting and election procedures. The |
1317 |
different voting and
election procedures may provide for |
1318 |
elections to be
conducted by limited or general proxy. |
1319 |
(e) Budget
meeting.-- |
1320 |
1. Any
meeting at which a proposed annual budget of an |
1321 |
association will be considered by the
board or unit owners shall |
1322 |
be open to all unit owners. At least 14
days prior to such a |
1323 |
meeting, the board shall hand deliver to
each unit owner, mail |
1324 |
to each unit owner at the address last
furnished to the |
1325 |
association by the unit owner, or
electronically transmit to the |
1326 |
location furnished by the unit owner for
that purpose a notice |
1327 |
of such meeting and a copy of the
proposed annual budget. An |
1328 |
officer or manager of the association,
or other person providing |
1329 |
notice of such meeting, shall execute an
affidavit evidencing |
1330 |
compliance with such notice requirement,
and such affidavit |
1331 |
shall be filed among the official
records of the association. |
1332 |
2.a. If
a board adopts in any fiscal year an annual budget |
1333 |
which requires assessments against unit
owners which exceed 115 |
1334 |
percent of assessments for the preceding
fiscal year, the board |
1335 |
shall conduct a special meeting of the
unit owners to consider a |
1336 |
substitute budget if the board receives,
within 21 days after |
1337 |
adoption of the annual budget, a written
request for a special |
1338 |
meeting from at least 10 percent of all
voting interests. The |
1339 |
special meeting shall be conducted
within 60 days after adoption |
1340 |
of the annual budget. At least 14 days
prior to such special |
1341 |
meeting, the board shall hand deliver to
each unit owner, or |
1342 |
mail to each unit owner at the address
last furnished to the |
1343 |
association, a notice of the meeting. An
officer or manager of |
1344 |
the association, or other person
providing notice of such |
1345 |
meeting shall execute an affidavit
evidencing compliance with |
1346 |
this notice requirement, and such
affidavit shall be filed among |
1347 |
the official records of the association.
Unit owners may |
1348 |
consider and adopt a substitute budget
at the special meeting. A |
1349 |
substitute budget is adopted if approved
by a majority of all |
1350 |
voting interests unless the bylaws
require adoption by a greater |
1351 |
percentage of voting interests. If there
is not a quorum at the |
1352 |
special meeting or a substitute budget
is not adopted, the |
1353 |
annual budget previously adopted by the
board shall take effect |
1354 |
as scheduled. |
1355 |
b. Any
determination of whether assessments exceed 115 |
1356 |
percent of assessments for the prior
fiscal year shall exclude |
1357 |
any authorized provision for reasonable
reserves for repair or |
1358 |
replacement of the condominium property,
anticipated expenses of |
1359 |
the association which the board does not
expect to be incurred |
1360 |
on a regular or annual basis, or
assessments for betterments to |
1361 |
the condominium property. |
1362 |
c. If
the developer controls the board, assessments shall |
1363 |
not exceed 115 percent of assessments
for the prior fiscal year |
1364 |
unless approved by a majority of all
voting interests. |
1365 |
(f) Annual
budget.-- |
1366 |
1. The
association shall prepare an annual budget of |
1367 |
estimated revenues
and expenses. The adopted budget of the prior |
1368 |
fiscal year shall
remain in effect until the association has |
1369 |
adopted a new
budget for the current fiscal year. The proposed |
1370 |
annual budget of estimated
revenues and common
expenses shall be |
1371 |
detailed and shall show the amounts
budgeted by accounts and |
1372 |
expense classifications, including, if
applicable, but not |
1373 |
limited to, those expenses listed in s.
718.504(21). A |
1374 |
multicondominium association shall adopt
a separate budget of |
1375 |
common expenses for each condominium the
association operates |
1376 |
and shall adopt a separate budget of
common expenses for the |
1377 |
association. In addition, if the
association maintains limited |
1378 |
common elements with the cost to be
shared only by those |
1379 |
entitled to use the limited common
elements as provided for in |
1380 |
s. 718.113(1), the budget or a schedule
attached thereto shall |
1381 |
show amounts budgeted therefor. If,
after turnover of control of |
1382 |
the association to the unit owners, any
of the expenses listed |
1383 |
in s. 718.504(21) are not applicable,
they need not be listed. |
1384 |
2. In
addition to annual operating expenses, the budget |
1385 |
shall include reserve accounts for
capital expenditures and |
1386 |
deferred maintenance. These accounts
shall include, but are not |
1387 |
limited to, structural
repairs, roof replacement, building |
1388 |
painting, and pavement resurfacing,
regardless of the amount of |
1389 |
deferred maintenance expense or
replacement cost, and for any |
1390 |
other item for which the deferred
maintenance expense or |
1391 |
replacement cost exceeds $10,000. The
amount to be reserved |
1392 |
shall be computed by means of a formula
which is based upon |
1393 |
estimated remaining useful life and
estimated replacement cost |
1394 |
or deferred maintenance expense of each
reserve item. The |
1395 |
association may adjust replacement
reserve assessments annually |
1396 |
to take into account any changes in
estimates or extension of |
1397 |
the useful life of a reserve item caused
by deferred |
1398 |
maintenance. This subsection does not
apply to an adopted budget |
1399 |
in which the members of an association
have determined, by a |
1400 |
majority vote at a duly called meeting
of the association, to |
1401 |
provide no reserves or less reserves
than required by this |
1402 |
subsection. However, prior to turnover
of control of an |
1403 |
association by a developer to unit
owners other than a developer |
1404 |
pursuant to s. 718.301, the developer
may vote to waive the |
1405 |
reserves or reduce the funding of
reserves for the first 2 |
1406 |
fiscal years of the association's
operation, beginning with the |
1407 |
fiscal year in which the initial
declaration is recorded, after |
1408 |
which time reserves may be waived or
reduced only upon the vote |
1409 |
of a majority of all nondeveloper voting
interests voting in |
1410 |
person or by limited proxy at a duly
called meeting of the |
1411 |
association. If a meeting of the unit
owners has been called to |
1412 |
determine whether to waive or reduce the
funding of reserves, |
1413 |
and no such result is achieved or a
quorum is not attained, the |
1414 |
reserves as included in the budget shall
go into effect. After |
1415 |
the turnover, the developer may vote its
voting interest to |
1416 |
waive or reduce the funding of reserves. |
1417 |
3. Reserve
funds and any interest accruing thereon shall |
1418 |
remain in the reserve account or
accounts, and shall be used |
1419 |
only for authorized reserve expenditures
unless their use for |
1420 |
other purposes is approved in advance by
a majority vote at a |
1421 |
duly called meeting of the association.
Prior to turnover of |
1422 |
control of an association by a developer
to unit owners other |
1423 |
than the developer pursuant to s.
718.301, the developer- |
1424 |
controlled association shall not vote to
use reserves for |
1425 |
purposes other than that for which they
were intended without |
1426 |
the approval of a majority of all
nondeveloper voting interests, |
1427 |
voting in person or by limited proxy at
a duly called meeting of |
1428 |
the association. |
1429 |
4. The
only voting interests which are eligible to vote on |
1430 |
questions that involve waiving or
reducing the funding of |
1431 |
reserves, or using existing reserve
funds for purposes other |
1432 |
than purposes for which the reserves
were intended, are the |
1433 |
voting interests of the units subject to
assessment to fund the |
1434 |
reserves in question. The
face of all ballots that involve |
1435 |
questions relating to
waiving or reducing the funding of |
1436 |
reserves, or using
existing reserve funds for purposes other |
1437 |
than purposes for
which the reserves were intended, shall |
1438 |
contain the following
statement in capitalized, bold letters in |
1439 |
a font size larger
than any other used on the face of the |
1440 |
ballot: WAIVING OF
RESERVES, IN WHOLE OR IN PART, OR ALLOWING |
1441 |
ALTERNATE USES OF
EXISTING RESERVES, MAY RESULT IN UNIT OWNER |
1442 |
LIABILITY FOR PAYMENT
OF UNANTICIPATED SPECIAL ASSESSMENTS |
1443 |
REGARDING THOSE
RESERVE ITEMS. |
1444 |
5. A
vote to provide for no reserves or a percentage of |
1445 |
reserves shall be
made at the annual meeting of the unit owners |
1446 |
called under
paragraph (d). The division shall adopt the form |
1447 |
for the ballot for no
reserves and a percentage of reserves. |
1448 |
6. Notwithstanding
subparagraph 3., the association after |
1449 |
turnover of control
of the association may, in case of a |
1450 |
catastrophic event,
use reserve funds for nonscheduled purposes |
1451 |
to mitigate further
damage to units or common elements or to |
1452 |
make the condominium
accessible for repairs. |
1453 |
7. Except
in cases of emergency, or unless otherwise |
1454 |
provided for in the
bylaws or approved by a vote of a majority |
1455 |
of the unit owners in
advance, the board of administration may |
1456 |
not apply for or
accept a loan or line of credit in an amount |
1457 |
that exceeds 10
percent of the association's annual budget for |
1458 |
the current year. |
1459 |
(g) Assessments.--After
the declaration has been recorded, |
1460 |
and until such time
as the association has been created, all |
1461 |
common expenses shall
be paid by the developer. Assessments |
1462 |
shall be levied in an
amount determined by the adopted budget or |
1463 |
an authorized
special assessment. The manner of collecting from |
1464 |
the unit owners their shares of the
common expenses shall be |
1465 |
stated in the bylaws. Assessments shall
be made against units on |
1466 |
a
quarter-annual, or more frequent, basis not
less frequently |
1467 |
than quarterly
in an amount which is not less than that required |
1468 |
to provide funds in advance for payment
of all of the |
1469 |
anticipated current operating expenses
and for all of the unpaid |
1470 |
operating expenses previously incurred.
Nothing in this |
1471 |
paragraph shall preclude the right of an
association to |
1472 |
accelerate assessments of an owner
delinquent in payment of |
1473 |
common expenses against
whom a lien has been filed. Accelerated |
1474 |
assessments shall be due and payable after
on the date the claim |
1475 |
of lien is filed. Such accelerated
assessments shall include the |
1476 |
amounts due for the remainder of the
budget year in which the |
1477 |
claim of lien was filed. |
1478 |
(h) Amendment
of bylaws.-- |
1479 |
1. The
method by which the bylaws may be amended |
1480 |
consistent with the provisions of this
chapter shall be stated. |
1481 |
If the bylaws fail to provide a method
of amendment, the bylaws |
1482 |
may be amended if the amendment is
approved by the owners of not |
1483 |
less than two-thirds of the voting
interests. |
1484 |
2. No
bylaw shall be revised or amended by reference to |
1485 |
its title or number only. Proposals to
amend existing bylaws |
1486 |
shall contain the full text of the
bylaws to be amended; new |
1487 |
words shall be inserted in the text
underlined, and words to be |
1488 |
deleted shall be lined through with
hyphens. However, if the |
1489 |
proposed change is so extensive that
this procedure would |
1490 |
hinder, rather than assist, the
understanding of the proposed |
1491 |
amendment, it is not necessary to use
underlining and hyphens as |
1492 |
indicators of words added or deleted,
but, instead, a notation |
1493 |
must be inserted immediately preceding
the proposed amendment in |
1494 |
substantially the following language:
"Substantial rewording of |
1495 |
bylaw. See bylaw _____ for present
text." |
1496 |
3. Nonmaterial
errors or omissions in the bylaw process |
1497 |
will not invalidate an otherwise
properly promulgated amendment. |
1498 |
(i) Transfer
fees.--No charge shall be made by the |
1499 |
association or any body thereof in
connection with the sale, |
1500 |
mortgage, lease, sublease, or other
transfer of a unit unless |
1501 |
the association is required to approve
such transfer and a fee |
1502 |
for such approval is provided for in the
declaration, articles, |
1503 |
or bylaws. Any such fee may be preset,
but in no event may such |
1504 |
fee exceed $100 per applicant other than
husband/wife or |
1505 |
parent/dependent child, which are
considered one applicant. |
1506 |
However, if the lease or sublease is a
renewal of a lease or |
1507 |
sublease with the same lessee or
sublessee, no charge shall be |
1508 |
made. The foregoing notwithstanding, an
association may, if the |
1509 |
authority to do so appears in the
declaration or bylaws, require |
1510 |
that a prospective lessee place a
security deposit, in an amount |
1511 |
not to exceed the equivalent of 1
month's rent, into an escrow |
1512 |
account maintained by the association.
The security deposit |
1513 |
shall protect against damages to the
common elements or |
1514 |
association property. Payment of
interest, claims against the |
1515 |
deposit, refunds, and disputes under
this paragraph shall be |
1516 |
handled in the same fashion as provided
in part II of chapter |
1517 |
83. |
1518 |
(j) Recall
of board members.--Subject to the provisions of |
1519 |
s. 718.301, any member of the board of
administration may be |
1520 |
recalled and removed from office with or
without cause by the |
1521 |
vote or agreement in writing by a
majority of all the voting |
1522 |
interests. A special meeting of the unit
owners to recall a |
1523 |
member or members of the board of
administration may be called |
1524 |
by 10 percent of the voting interests
giving notice of the |
1525 |
meeting as required for a meeting of
unit owners, and the notice |
1526 |
shall state the purpose of the meeting.
Electronic transmission |
1527 |
may not be used as a method of giving
notice of a meeting called |
1528 |
in whole or in part for this purpose. |
1529 |
1. If
the recall is approved by a majority of all voting |
1530 |
interests by a vote at a meeting, the
recall will be effective |
1531 |
as provided herein. The board shall duly notice and hold a board |
1532 |
meeting within 5 full business days of the adjournment of the |
1533 |
unit owner meeting to recall one or more board members. At the |
1534 |
meeting, the board shall either certify the recall, in which |
1535 |
case such member or members shall be recalled effective |
1536 |
immediately, and the
member or members recalled shall turn over |
1537 |
to the board within 5 full business days
any and all records and |
1538 |
property of the association in their
possession, or shall |
1539 |
proceed as set forth in subparagraph 3. |
1540 |
2. Beginning
January 1, 2008, if the proposed recall is by |
1541 |
an agreement in writing by a majority of
all voting interests, |
1542 |
the agreement in writing or a copy
thereof shall be served on |
1543 |
the association and
the ombudsman appointed pursuant to s. |
1544 |
718.5011, together
with a current copy of the unit owner roster, |
1545 |
by
certified mail or by
personal service, Monday through Friday, |
1546 |
excluding legal
holidays, between the hours of 8:00 a.m. and |
1547 |
5:00 p.m.,
in the manner authorized by chapter 48 and the |
1548 |
Florida Rules of Civil Procedure.
The |
1555 |
board of administration shall duly notice and hold a meeting of |
1556 |
the board within 5 full business days after receipt of the |
1557 |
agreement in writing. At the meeting, the board shall either |
1558 |
certify the written agreement to recall
a member or members of |
1559 |
the board, the in which case such
member
or members shall be |
1560 |
recalled effective immediately and shall
turn over to the board |
1561 |
within 5 full business days any and all
records and property of |
1562 |
the association in their possession, or proceed as described in |
1563 |
subparagraph 3. |
1564 |
3. If
the board determines not to certify the |
1565 |
written agreement to recall a member or
members of the board, or |
1566 |
does not certify the recall by a vote at a meeting,
the |
1567 |
board shall, within 5 full
business days after the |
1585 |
meeting, file with the division a |
1586 |
petition for arbitration pursuant to the procedures in s. |
1587 |
718.1255. For the purposes of this section, the unit owners who |
1588 |
voted at the meeting or who executed the agreement in writing |
1589 |
shall constitute one party under the petition for arbitration. |
1590 |
If the arbitrator certifies the recall as to any member or |
1591 |
members of the board, the recall will be effective upon mailing |
1592 |
of the final order of arbitration to the association. If the |
1593 |
association fails to comply with the order of the arbitrator, |
1594 |
the division may take action pursuant to s. 718.501. Any member |
1595 |
or members so recalled shall deliver to the board any and all |
1596 |
records of the association in their possession within 5 full |
1597 |
business days of the effective date of the recall. |
1598 |
4. If the board fails to duly notice and hold a board |
1599 |
meeting within 5 full business days of service of an agreement |
1600 |
in writing or within 5 full business days of the adjournment of |
1601 |
the unit owner recall meeting, the recall shall be deemed |
1602 |
effective and the board members so recalled shall immediately |
1603 |
turn over to the board any and all records and property of the |
1604 |
association. |
1605 |
5. If
a vacancy occurs on the board as a result of a |
1606 |
recall and less than a majority of the
board members are |
1607 |
removed, the vacancy may be filled by
the affirmative vote of a |
1608 |
majority of the remaining directors,
notwithstanding any |
1609 |
provision to the contrary contained in
this subsection. If |
1610 |
vacancies occur on the board as a result
of a recall and a |
1611 |
majority or more of the board members
are removed, the vacancies |
1612 |
shall be filled in accordance with
procedural rules to be |
1613 |
adopted by the division, which rules
need not be consistent with |
1614 |
this subsection. The rules must provide
procedures governing the |
1615 |
conduct of the recall election as well
as the operation of the |
1616 |
association during the period after a
recall but prior to the |
1617 |
recall election. |
1618 |
(k) Arbitration.--There
shall be a provision for mandatory |
1619 |
nonbinding
arbitration as provided for in s. 718.1255. |
1620 |
(k)(l) Certificate
of compliance.--There shall be a |
1621 |
provision that a certificate of
compliance from a licensed |
1622 |
electrical contractor or electrician may
be accepted by the |
1623 |
association's board as evidence of
compliance of the condominium |
1624 |
units with the applicable fire and life
safety code. |
1625 |
Notwithstanding the provisions of
chapter 633 or of any other |
1626 |
code, statute, ordinance, administrative
rule, or regulation, or |
1627 |
any interpretation of the foregoing, an
association, |
1628 |
condominium, or unit owner is not
obligated to retrofit the |
1629 |
common elements or units of a
residential condominium with a |
1630 |
fire sprinkler system or other
engineered lifesafety system in a |
1631 |
building that has been certified for
occupancy by the applicable |
1632 |
governmental entity, if the unit owners
have voted to forego |
1633 |
such retrofitting and engineered
lifesafety system by the |
1634 |
affirmative vote of two-thirds of all
voting interests in the |
1635 |
affected condominium. However, a
condominium association may not |
1636 |
vote to forego the retrofitting with a
fire sprinkler system of |
1637 |
common areas in a high-rise building.
For purposes of this |
1638 |
subsection, the term "high-rise
building" means a building that |
1639 |
is greater than 75 feet in height where
the building height is |
1640 |
measured from the lowest level of fire
department access to the |
1641 |
floor of the highest occupiable story.
For purposes of this |
1642 |
subsection, the term "common
areas" means any enclosed hallway, |
1643 |
corridor, lobby, stairwell, or entryway.
In no event shall the |
1644 |
local authority having jurisdiction
require completion of |
1645 |
retrofitting of common areas with a
sprinkler system before the |
1646 |
end of 2014. |
1647 |
1. A
vote to forego retrofitting may be obtained by |
1648 |
limited proxy or by a ballot personally
cast at a duly called |
1649 |
membership meeting, or by execution of a
written consent by the |
1650 |
member, and shall be effective upon the
recording of a |
1651 |
certificate attesting to such vote in
the public records of the |
1652 |
county where the condominium is located.
The association shall |
1653 |
mail, hand deliver, or electronically
transmit to each unit |
1654 |
owner written notice at least 14 days
prior to such membership |
1655 |
meeting in which the vote to forego
retrofitting of the required |
1656 |
fire sprinkler system is to take place.
Within 30 days after the |
1657 |
association's opt-out vote, notice of
the results of the opt-out |
1658 |
vote shall be mailed, hand delivered, or
electronically |
1659 |
transmitted to all unit owners. Evidence
of compliance with this |
1660 |
30-day notice shall be made by an
affidavit executed by the |
1661 |
person providing the notice and filed
among the official records |
1662 |
of the association. After such notice is
provided to each owner, |
1663 |
a copy of such notice shall be provided
by the current owner to |
1664 |
a new owner prior to closing and shall
be provided by a unit |
1665 |
owner to a renter prior to signing a
lease. |
1666 |
2. As
part of the information collected annually from |
1667 |
condominiums, the division shall require
condominium |
1668 |
associations to report the membership
vote and recording of a |
1669 |
certificate under this subsection and,
if retrofitting has been |
1670 |
undertaken, the per-unit cost of such
work. The division shall |
1671 |
annually report to the Division of State
Fire Marshal of the |
1672 |
Department of Financial Services the
number of condominiums that |
1673 |
have elected to forego retrofitting. |
1674 |
(l)(m) Common
elements; limited power to convey.-- |
1675 |
1. With
respect to condominiums created on or after |
1676 |
October 1, 1994, the bylaws shall
include a provision granting |
1677 |
the association a limited power to
convey a portion of the |
1678 |
common elements to a condemning
authority for the purpose of |
1679 |
providing utility easements,
right-of-way expansion, or other |
1680 |
public purposes, whether negotiated or
as a result of eminent |
1681 |
domain proceedings. |
1682 |
2. In
any case where the bylaws are silent as to the |
1683 |
association's power to convey common
elements as described in |
1684 |
subparagraph 1., the bylaws shall be
deemed to include the |
1685 |
provision described in subparagraph 1. |
1686 |
Section
7. Section 718.113, Florida Statutes, is amended |
1687 |
to read: |
1688 |
718.113 Maintenance;
limitation upon improvement; display |
1689 |
of flag; display
of religious decorations; hurricane shutters.-- |
1690 |
(1) Maintenance
of the common elements is the |
1691 |
responsibility of the association. The
declaration may provide |
1692 |
that certain limited common elements
shall be maintained by |
1693 |
those entitled to use the limited common
elements or that the |
1694 |
association shall provide the
maintenance, either as a common |
1695 |
expense or
with the cost shared only by those entitled to use |
1696 |
the limited common elements. If the
maintenance is to be by the |
1697 |
association at the expense of only those
entitled to use the |
1698 |
limited common elements, the declaration
shall describe in |
1699 |
detail the method of apportioning such
costs among those |
1700 |
entitled to use the limited common
elements, and the association |
1701 |
may use the provisions of s. 718.116 to
enforce payment of the |
1702 |
shares of such costs by the unit owners
entitled to use the |
1703 |
limited common elements. |
1704 |
(2)(a) Except
as otherwise provided in this section, there |
1705 |
shall be no material alteration or
substantial additions to the |
1706 |
common elements or to real property
which is association |
1707 |
property, except in a manner provided in
the declaration as |
1708 |
originally recorded or as amended under
the procedures provided |
1709 |
therein. If the declaration as
originally recorded or as amended |
1710 |
under the procedures provided therein
does not specify the |
1711 |
procedure for approval of material
alterations or substantial |
1712 |
additions, 75 percent of the total
voting interests of the |
1713 |
association must approve the alterations
or additions. |
1714 |
(b) There
shall not be any material alteration of, or |
1715 |
substantial addition to, the common
elements of any condominium |
1716 |
operated by a multicondominium
association unless approved in |
1717 |
the manner provided in the declaration
of the affected |
1718 |
condominium or condominiums as
originally recorded or as amended |
1719 |
under the procedures provided therein.
If a declaration as |
1720 |
originally recorded or as amended under
the procedures provided |
1721 |
therein does not specify a procedure for
approving such an |
1722 |
alteration or addition, the approval of
75 percent of the total |
1723 |
voting interests of each affected
condominium is required. This |
1724 |
subsection does not prohibit a provision
in any declaration, |
1725 |
articles of incorporation, or bylaws as
originally recorded or |
1726 |
as amended under the procedures provided
therein requiring the |
1727 |
approval of unit owners in any
condominium operated by the same |
1728 |
association or requiring board approval
before a material |
1729 |
alteration or substantial addition to
the common elements is |
1730 |
permitted. This paragraph is intended to
clarify existing law |
1731 |
and applies to associations existing on
the effective date of |
1732 |
this act. |
1733 |
(c) There
shall not be any material alteration or |
1734 |
substantial addition made to association
real property operated |
1735 |
by a multicondominium association,
except as provided in the |
1736 |
declaration, articles of incorporation,
or bylaws as originally |
1737 |
recorded or as amended under the
procedures provided therein. If |
1738 |
the declaration, articles of
incorporation, or bylaws as |
1739 |
originally recorded or as amended under
the procedures provided |
1740 |
therein do not specify the procedure for
approving an alteration |
1741 |
or addition to association real
property, the approval of 75 |
1742 |
percent of the total voting interests of
the association is |
1743 |
required. This paragraph is intended to
clarify existing law and |
1744 |
applies to associations existing on the
effective date of this |
1745 |
act. |
1746 |
(3) A
unit owner shall not do anything within his or her |
1747 |
unit or on the common elements which
would adversely affect the |
1748 |
safety or soundness of the common
elements or any portion of the |
1749 |
association property or condominium
property which is to be |
1750 |
maintained by the association. |
1751 |
(4) Any
unit owner may display one portable, removable |
1752 |
United States flag in a respectful way
and, on Armed Forces Day, |
1753 |
Memorial Day, Flag Day, Independence
Day, and Veterans Day, may |
1754 |
display in a respectful way portable,
removable official flags, |
1755 |
not larger than 41/2 feet by 6 feet,
that represent the United |
1756 |
States Army, Navy, Air Force, Marine
Corps, or Coast Guard, |
1757 |
regardless of any declaration rules or
requirements dealing with |
1758 |
flags or decorations. |
1759 |
(5) Each
board of administration shall, at each annual |
1760 |
meeting,
adopt or restate hurricane shutter
specifications for |
1761 |
each building within each condominium
operated by the |
1762 |
association which shall include color,
style, and other factors |
1763 |
deemed relevant by the board. All
specifications adopted or |
1764 |
restated by the board shall
comply with the applicable building |
1765 |
code. Notwithstanding any provision to
the contrary in the |
1766 |
condominium documents, if approval is
required by the documents, |
1767 |
a board shall not refuse to approve the
installation or |
1768 |
replacement of hurricane shutters
conforming to the |
1769 |
specifications adopted by the board. The
board may, subject to |
1770 |
the provisions of s. 718.3026, and the
approval of a majority of |
1771 |
voting interests of the condominium,
install hurricane shutters |
1772 |
and may maintain, repair, or replace
such approved hurricane |
1773 |
shutters or
hurricane protection that complies with the |
1774 |
applicable
building code, whether on or within common elements, |
1775 |
limited common elements, units, or
association property. |
1776 |
However, where laminated glass or window
film architecturally |
1777 |
designed to function as hurricane
protection which complies with |
1778 |
the applicable building code has been
installed, the board may |
1779 |
not install hurricane shutters. The
board may operate shutters |
1780 |
installed pursuant to this subsection
without permission of the |
1781 |
unit owners only where such operation is
necessary to preserve |
1782 |
and protect the condominium property and
association property. |
1783 |
The installation, replacement,
operation, repair, and |
1784 |
maintenance of such shutters in
accordance with the procedures |
1785 |
set forth herein shall not be deemed a
material alteration to |
1786 |
the common elements or association
property within the meaning |
1787 |
of this section. |
1788 |
(6) Every
5 years, the board of administration shall have |
1789 |
the condominium
buildings inspected by a professional engineer |
1790 |
or professional
architect registered in the state for the |
1791 |
purpose of
determining that the building is structurally and |
1792 |
electrically safe.
The engineer or architect shall provide a |
1793 |
report indicating the
manner and type of inspection forming the |
1794 |
basis for the report
and description of any matters identified |
1795 |
as requiring remedial
action. The report shall become an |
1796 |
official record of
the association to be provided to the members |
1797 |
upon request pursuant
to s. 718.111(12). |
1798 |
(7) No
association may prohibit the attachment of |
1799 |
religious items at
the door or at the entrance of the unit. The |
1800 |
may not
adopt reasonable size restrictions for such items. |
1808 |
Section
8. Paragraph (d) of subsection (1) of section |
1809 |
718.115, Florida Statutes, is amended to
read: |
1810 |
718.115 Common
expenses and common surplus.-- |
1811 |
(1) |
1812 |
(d) If
so provided in the declaration, the cost of a |
1813 |
master antenna television system or duly
franchised cable |
1814 |
television service obtained pursuant to
a bulk contract for |
1815 |
basic service shall
be deemed a common expense. If the |
1816 |
declaration does not provide for the
cost of a master antenna |
1817 |
television system or duly franchised basic
cable television |
1818 |
service obtained under a bulk contract
as a common expense, the |
1819 |
board may enter into such a contract,
and the cost of the |
1820 |
service will be a common expense but
allocated on a per-unit |
1821 |
basis rather than a percentage basis if
the declaration provides |
1822 |
for other than an equal sharing of
common expenses, and any |
1823 |
contract entered into before July 1,
1998, in which the cost of |
1824 |
the service is not equally divided among
all unit owners, may be |
1825 |
changed by vote of a majority of the
voting interests present at |
1826 |
a regular or special meeting of the
association, to allocate the |
1827 |
cost equally among all units. The
contract shall be for a term |
1828 |
of not less than 2 years. |
1829 |
1. Any
contract made by the board after the effective date |
1830 |
hereof for a community antenna system or
duly franchised basic |
1831 |
cable television service may be canceled
by a majority of the |
1832 |
voting interests present at the next
regular or special meeting |
1833 |
of the association. Any member may make
a motion to cancel said |
1834 |
contract, but if no motion is made or if
such motion fails to |
1835 |
obtain the required majority at the next
regular or special |
1836 |
meeting, whichever is sooner, following
the making of the |
1837 |
contract, then such contract shall be
deemed ratified for the |
1838 |
term therein expressed. |
1839 |
2. Any
such contract shall provide, and shall be deemed to |
1840 |
provide if not expressly set forth, that
any hearing-impaired or |
1841 |
legally blind unit owner who does not
occupy the unit with a |
1842 |
non-hearing-impaired or sighted person,
or any unit owner |
1843 |
receiving supplemental security income
under Title XVI of the |
1844 |
Social Security Act or food stamps as
administered by the |
1845 |
Department of Children and Family
Services pursuant to s. |
1846 |
414.31, may discontinue the service
without incurring disconnect |
1847 |
fees, penalties, or subsequent service
charges, and, as to such |
1848 |
units, the owners shall not be required
to pay any common |
1849 |
expenses charge related to such service.
If less than all |
1850 |
members of an association share the
expenses of cable |
1851 |
television, the expense shall be shared
equally by all |
1852 |
participating unit owners. The
association may use the |
1853 |
provisions of s. 718.116 to enforce
payment of the shares of |
1854 |
such costs by the unit owners receiving
cable television. |
1880 |
Section
9. Section 718.1224, Florida Statutes, is created |
1881 |
to read: |
1882 |
718.1224 Prohibition
against SLAPP suits.-- |
1883 |
(1) It
is the intent of the Legislature to protect the |
1884 |
right of condominium
unit owners to exercise their rights to |
1885 |
instruct their
representatives and petition for redress of |
1886 |
grievances before the
various governmental entities of this |
1887 |
state as protected by
the First Amendment to the United States |
1888 |
Constitution and s.
5, Art. I of the State Constitution. The |
1889 |
Legislature
recognizes that strategic lawsuits against public |
1890 |
participation, or
"SLAPP" suits as they are typically referred |
1891 |
to, have occurred
when association members are sued by |
1892 |
individuals, business
entities, or governmental entities arising |
1893 |
out of a condominium
unit owner's appearance and presentation |
1894 |
before a governmental
entity on matters related to the |
1895 |
condominium
association. However, it is the public policy of |
1896 |
this state that
governmental entities, business organizations, |
1897 |
and individuals not
to engage in SLAPP suits, because such |
1898 |
actions are
inconsistent with the right of condominium unit |
1899 |
owners to participate
in the state's institutions of government. |
1900 |
Therefore, the
Legislature finds and declares that prohibiting |
1901 |
such lawsuits by
governmental entities, business entities, and |
1902 |
individuals against
condominium unit owners who address matters |
1903 |
concerning their
condominium association will preserve this |
1904 |
fundamental state
policy, preserve the constitutional rights of |
1905 |
condominium unit
owners, and ensure the continuation of |
1906 |
representative
government in this state. It is the intent of the |
1907 |
Legislature that such
lawsuits be expeditiously disposed of by |
1908 |
the courts. As used
in this subsection, the term "governmental |
1909 |
entity" means
the state, including the executive, legislative, |
1910 |
and judicial branches
of government, the independent |
1911 |
establishments of the
state, counties, municipalities, |
1912 |
districts,
authorities, boards, or commissions, or any agencies |
1913 |
of these branches
which are subject to chapter 286. |
1914 |
(2) A
governmental entity, business organization, or |
1915 |
individual in this
state may not file or cause to be filed |
1916 |
through its employees
or agents any lawsuit, cause of action, |
1917 |
claim, cross-claim,
or counterclaim against a condominium unit |
1918 |
owner without merit
and solely because such condominium unit |
1919 |
owner has exercised
the right to instruct his or her |
1920 |
representatives or
the right to petition for redress of |
1921 |
grievances before the
various governmental entities of this |
1922 |
state, as protected
by the First Amendment to the United States |
1923 |
Constitution and s.
5, Art. I of the State Constitution. |
1924 |
(3) A
condominium unit owner sued by a governmental |
1925 |
entity, business
organization, or individual in violation of |
1926 |
this section has a
right to an expeditious resolution of a claim |
1927 |
that the suit is in
violation of this section. A condominium |
1928 |
unit owner may
petition the court for an order dismissing the |
1929 |
action or granting
final judgment in favor of that condominium |
1930 |
unit owner. The
petitioner may file a motion for summary |
1931 |
judgment, together
with supplemental affidavits, seeking a |
1932 |
determination that
the governmental entity's, business |
1933 |
organization's, or
individual's lawsuit has been brought in |
1934 |
violation of this
section. The governmental entity, business |
1935 |
organization, or
individual shall thereafter file its response |
1936 |
and any supplemental
affidavits. As soon as practicable, the |
1937 |
court shall set a
hearing on the petitioner's motion, which |
1938 |
shall be held at the
earliest possible time after the filing of |
1939 |
the governmental
entity's, business organization's or |
1940 |
individual's
response. The court may award the condominium unit |
1941 |
owner sued by the
governmental entity, business organization, or |
1942 |
individual actual
damages arising from the governmental |
1943 |
entity's,
individual's, or business organization's violation of |
1944 |
this section. A court
may treble the damages awarded to a |
1945 |
prevailing
condominium unit owner and shall state the basis for |
1946 |
the treble damages
award in its judgment. The court shall award |
1947 |
the prevailing party
reasonable attorney's fees and costs |
1948 |
incurred in
connection with a claim that an action was filed in |
1949 |
violation of this
section. |
1950 |
(4) Condominium
associations may not expend association |
1951 |
funds in prosecuting
a SLAPP suit against a condominium unit |
1952 |
owner. |
1953 |
Section
10. Subsection (4) of section 718.1255, Florida |
1954 |
Statutes, is amended to read: |
1955 |
718.1255 Alternative
dispute resolution; voluntary |
1956 |
mediation; mandatory nonbinding
arbitration; legislative |
1957 |
findings.-- |
1958 |
(4) MANDATORY
NONBINDING ARBITRATION AND MEDIATION OF |
1959 |
DISPUTES.--The Division of Florida Land
Sales, Condominiums, |
1960 |
and Mobile Homes of the Department of |
1961 |
Business and Professional Regulation
shall employ full-time |
1962 |
attorneys to act as arbitrators to
conduct the arbitration |
1963 |
hearings provided by this chapter. The
division may also certify |
1964 |
attorneys who are not employed by the
division to act as |
1965 |
arbitrators to conduct the arbitration
hearings provided by this |
1966 |
section. No person may be employed by
the department as a full- |
1967 |
time arbitrator unless he or she is a
member in good standing of |
1968 |
The Florida Bar. The department shall
promulgate rules of |
1969 |
procedure to govern such arbitration
hearings including |
1970 |
mediation incident thereto. The decision
of an arbitrator shall |
1971 |
be final; however, such a decision shall
not be deemed final |
1972 |
agency action. Nothing in this provision
shall be construed to |
1973 |
foreclose parties from proceeding in a
trial de novo unless the |
1974 |
parties have agreed that the arbitration
is binding. If such |
1975 |
judicial proceedings are initiated, the
final decision of the |
1976 |
arbitrator shall be admissible in
evidence in the trial de novo. |
1977 |
(a) Prior
to the institution of court litigation, a party |
1978 |
to a dispute shall petition the division
for nonbinding |
1979 |
arbitration. The petition must be
accompanied by a filing fee in |
1980 |
the amount of $50. Filing fees collected
under this section must |
1981 |
be used to defray the expenses of the
alternative dispute |
1982 |
resolution program. |
1983 |
(b) The
petition must recite, and have attached thereto, |
1984 |
supporting proof that the petitioner
gave the respondents: |
1985 |
1. Advance
written notice of the specific nature of the |
1986 |
dispute; |
1987 |
2. A
demand for relief, and a reasonable opportunity to |
1988 |
comply or to provide the relief; and |
1989 |
3. Notice
of the intention to file an arbitration petition |
1990 |
or other legal action in the absence of
a resolution of the |
1991 |
dispute. |
1992 |
|
1993 |
Failure to include the allegations or
proof of compliance with |
1994 |
these prerequisites requires dismissal
of the petition without |
1995 |
prejudice. |
1996 |
(c) Upon
receipt, the petition shall be promptly reviewed |
1997 |
by the division to determine the
existence of a dispute and |
1998 |
compliance with the requirements of
paragraphs (a) and (b). If |
1999 |
emergency relief is required and is not
available through |
2000 |
arbitration, a motion to stay the
arbitration may be filed. The |
2001 |
motion must be accompanied by a verified
petition alleging facts |
2002 |
that, if proven, would support entry of
a temporary injunction, |
2003 |
and if an appropriate motion and
supporting papers are filed, |
2004 |
the division may abate the arbitration
pending a court hearing |
2005 |
and disposition of a motion for
temporary injunction. |
2006 |
(d) Upon
determination by the division that a dispute |
2007 |
exists and that the petition
substantially meets the |
2008 |
requirements of paragraphs (a) and (b)
and any other applicable |
2009 |
rules, a copy of the petition shall
forthwith be served by the |
2010 |
division upon all respondents. |
2011 |
(e) Either
before or after the filing of the respondents' |
2012 |
answer to the petition, any party may
request that the |
2013 |
arbitrator refer the case to mediation
under this section and |
2014 |
any rules adopted by the division. Upon
receipt of a request for |
2015 |
mediation, the division shall promptly refer
the case contact |
2016 |
the parties to
determine if there is agreement that mediation |
2017 |
would be appropriate.
If all parties agree, the dispute must be |
2018 |
referred
to mediation. Notwithstanding a lack of an
agreement by |
2019 |
all parties,
The arbitrator may refer a dispute to mediation at |
2020 |
any time. |
2021 |
(f) Upon
referral of a case to mediation, the parties must |
2022 |
select a mutually acceptable mediator.
To assist in the |
2023 |
selection, the arbitrator shall provide
the parties with a list |
2024 |
of both volunteer and paid mediators
that have been certified by |
2025 |
the division under s. 718.501. If the
parties are unable to |
2026 |
agree on a mediator within the time
allowed by the arbitrator, |
2027 |
the arbitrator shall appoint a mediator
from the list of |
2028 |
certified mediators. If a case is
referred to mediation, the |
2029 |
parties shall attend a mediation
conference, as scheduled by the |
2030 |
parties and the mediator. If any party
fails to attend a duly |
2031 |
noticed mediation conference, without
the permission or approval |
2032 |
of the arbitrator or mediator, the
arbitrator must impose |
2033 |
sanctions against the party, including
the striking of any |
2034 |
pleadings filed, the entry of an order
of dismissal or default |
2035 |
if appropriate, and the award of costs
and attorneys' fees |
2036 |
incurred by the other parties. Unless
otherwise agreed to by the |
2037 |
parties or as provided by order of the
arbitrator, a party is |
2038 |
deemed to have appeared at a mediation
conference by the |
2039 |
physical presence of the party or its
representative having full |
2040 |
authority to settle without further
consultation, provided that |
2041 |
an association may comply by having one
or more representatives |
2042 |
present with full authority to negotiate
a settlement and |
2043 |
recommend that the board of
administration ratify and approve |
2044 |
such a settlement within 5 days from the
date of the mediation |
2045 |
conference. The parties shall share
equally the expense of |
2046 |
mediation, unless they agree otherwise. |
2047 |
(g) The
purpose of mediation as provided for by this |
2048 |
section is to present the parties with
an opportunity to resolve |
2049 |
the underlying dispute in good faith,
and with a minimum |
2050 |
expenditure of time and resources. |
2051 |
(h) Mediation
proceedings must generally be conducted in |
2052 |
accordance with the Florida Rules of
Civil Procedure, and these |
2053 |
proceedings are privileged and
confidential to the same extent |
2054 |
as court-ordered mediation. Persons who
are not parties to the |
2055 |
dispute are not allowed to attend the
mediation conference |
2056 |
without the consent of all parties, with
the exception of |
2057 |
counsel for the parties and corporate
representatives designated |
2058 |
to appear for a party. If the mediator
declares an impasse after |
2059 |
a mediation conference has been held,
the arbitration proceeding |
2060 |
terminates, unless all parties agree in
writing to continue the |
2061 |
arbitration proceeding, in which case
the arbitrator's decision |
2062 |
shall be either binding or nonbinding,
as agreed upon by the |
2063 |
parties; in the arbitration proceeding,
the arbitrator shall not |
2064 |
consider any evidence relating to the
unsuccessful mediation |
2065 |
except in a proceeding to impose
sanctions for failure to appear |
2066 |
at the mediation conference. If the
parties do not agree to |
2067 |
continue arbitration, the arbitrator
shall enter an order of |
2068 |
dismissal, and either party may
institute a suit in a court of |
2069 |
competent jurisdiction. The parties may
seek to recover any |
2070 |
costs and attorneys' fees incurred in
connection with |
2071 |
arbitration and mediation
proceedings under this section as part |
2072 |
of the costs and fees that may be
recovered by the prevailing |
2073 |
party in any subsequent litigation. |
2074 |
(i) Arbitration
shall be conducted according to rules |
2075 |
promulgated by the division. The filing
of a petition for |
2076 |
arbitration shall toll the applicable
statute of limitations. |
2077 |
(j) At
the request of any party to the arbitration, such |
2078 |
arbitrator shall issue subpoenas for the
attendance of witnesses |
2079 |
and the production of books, records,
documents, and other |
2080 |
evidence and any party on whose behalf a
subpoena is issued may |
2081 |
apply to the court for orders compelling
such attendance and |
2082 |
production. Subpoenas shall be served
and shall be enforceable |
2083 |
in the manner provided by the Florida
Rules of Civil Procedure. |
2084 |
Discovery may, in the discretion of the
arbitrator, be permitted |
2085 |
in the manner provided by the Florida
Rules of Civil Procedure. |
2086 |
Rules adopted by the division may
authorize any reasonable |
2087 |
sanctions except contempt for a
violation of the arbitration |
2088 |
procedural rules of the division or for
the failure of a party |
2089 |
to comply with a reasonable nonfinal
order issued by an |
2090 |
arbitrator which is not under judicial
review. |
2091 |
(k) The
arbitration decision shall be presented to the |
2092 |
parties in writing. An arbitration
decision is final in those |
2093 |
disputes in which the parties have
agreed to be bound. An |
2094 |
arbitration decision is also final if a
complaint for a trial de |
2095 |
novo is not filed in a court of
competent jurisdiction in which |
2096 |
the condominium is located within 30
days. The right to file for |
2097 |
a trial de novo entitles the parties to
file a complaint in the |
2098 |
appropriate trial court for a judicial
resolution of the |
2099 |
dispute. The prevailing party in an
arbitration proceeding shall |
2100 |
be awarded the costs of the arbitration
and reasonable |
2101 |
attorney's fees in an amount determined
by the arbitrator. Such |
2102 |
an award shall include the costs and
reasonable attorney's fees |
2103 |
incurred in the arbitration proceeding
as well as the costs and |
2104 |
reasonable attorney's fees incurred in
preparing for and |
2105 |
attending any scheduled mediation. |
2106 |
(l) The
party who files a complaint for a trial de novo |
2107 |
shall be assessed the other party's
arbitration costs, court |
2108 |
costs, and other reasonable costs,
including attorney's fees, |
2109 |
investigation expenses, and expenses for
expert or other |
2110 |
testimony or evidence incurred after the
arbitration hearing if |
2111 |
the judgment upon the trial de novo is
not more favorable than |
2112 |
the arbitration decision. If the
judgment is more favorable, the |
2113 |
party who filed a complaint for trial de
novo shall be awarded |
2114 |
reasonable court costs and attorney's
fees. |
2115 |
(m) Any
party to an arbitration proceeding may enforce an |
2116 |
arbitration award by filing a petition
in a court of competent |
2117 |
jurisdiction in which the condominium is
located. A petition may |
2118 |
not be granted unless the time for
appeal by the filing of a |
2119 |
complaint for trial de novo has expired.
If a complaint for a |
2120 |
trial de novo has been filed, a petition
may not be granted with |
2121 |
respect to an arbitration award that has
been stayed. If the |
2122 |
petition for enforcement is granted, the
petitioner shall |
2123 |
recover reasonable attorney's fees and
costs incurred in |
2124 |
enforcing the arbitration award. A
mediation settlement may also |
2125 |
be enforced through the county or
circuit court, as applicable, |
2126 |
and any costs and fees incurred in the
enforcement of a |
2127 |
settlement agreement reached at
mediation must be awarded to the |
2128 |
prevailing party in any enforcement
action. |
2129 |
Section
11. Subsection (1) of section 718.302, Florida |
2130 |
Statutes, is amended to read: |
2131 |
718.302 Agreements
entered into by the association.-- |
2132 |
(1) Any
grant or reservation made by a declaration, lease, |
2133 |
or other document, and any contract made
by an association prior |
2134 |
to assumption of control of the
association by unit owners other |
2135 |
than the developer, that provides for services,
products, |
2136 |
operation, maintenance, or management of
a condominium |
2137 |
association or property serving the unit
owners of a condominium |
2138 |
shall be fair and reasonable, and such
grant, reservation, or |
2139 |
contract may be canceled by unit owners
other than the |
2140 |
developer: |
2141 |
(a) If
the association operates only one condominium and |
2142 |
the unit owners other than the developer
have assumed control of |
2143 |
the association, or if unit owners other
than the developer own |
2144 |
not less than 75 percent of the voting
interests in the |
2145 |
condominium, the cancellation shall be
by concurrence of the |
2146 |
owners of not less than 75 percent of
the voting interests other |
2147 |
than the voting interests owned by the
developer. If a grant, |
2148 |
reservation, or contract is so canceled
and the unit owners |
2149 |
other than the developer have not
assumed control of the |
2150 |
association, the association shall make
a new contract or |
2151 |
otherwise provide for maintenance,
management, or operation in |
2152 |
lieu of the canceled obligation, at the
direction of the owners |
2153 |
of not less than a majority of the
voting interests in the |
2154 |
condominium other than the voting
interests owned by the |
2155 |
developer. |
2156 |
(b) If
the association operates more than one condominium |
2157 |
and the unit owners other than the
developer have not assumed |
2158 |
control of the association, and if unit
owners other than the |
2159 |
developer own at least 75 percent of the
voting interests in a |
2160 |
condominium operated by the association,
any grant, reservation, |
2161 |
or contract for maintenance, management,
or operation of |
2162 |
buildings containing the units in that
condominium or of |
2163 |
improvements used only by unit owners of
that condominium may be |
2164 |
canceled by concurrence of the owners of
at least 75 percent of |
2165 |
the voting interests in the condominium
other than the voting |
2166 |
interests owned by the developer. No
grant, reservation, or |
2167 |
contract for maintenance, management, or
operation of |
2168 |
recreational areas or any other property
serving more than one |
2169 |
condominium, and operated by more than
one association, may be |
2170 |
canceled except pursuant to paragraph
(d). |
2171 |
(c) If
the association operates more than one condominium |
2172 |
and the unit owners other than the
developer have assumed |
2173 |
control of the association, the
cancellation shall be by |
2174 |
concurrence of the owners of not less
than 75 percent of the |
2175 |
total number of voting interests in all
condominiums operated by |
2176 |
the association other than the voting
interests owned by the |
2177 |
developer. |
2178 |
(d) If
the owners of units in a condominium have the right |
2179 |
to use property in common with owners of
units in other |
2180 |
condominiums and those condominiums are
operated by more than |
2181 |
one association, no grant, reservation,
or contract for |
2182 |
maintenance, management, or operation of
the property serving |
2183 |
more than one condominium may be
canceled until unit owners |
2184 |
other than the developer have assumed
control of all of the |
2185 |
associations operating the condominiums
that are to be served by |
2186 |
the recreational area or other property,
after which |
2187 |
cancellation may be effected by
concurrence of the owners of not |
2188 |
less than 75 percent of the total number
of voting interests in |
2189 |
those condominiums other than voting
interests owned by the |
2190 |
developer. |
2191 |
Section
12. Paragraphs (f) and (g) are added to subsection |
2192 |
(1) of section 718.3025, Florida
Statutes, to read: |
2193 |
718.3025 Agreements
for operation, maintenance, or |
2194 |
management of condominiums; specific
requirements.-- |
2195 |
(1) No
written contract between a party contracting to |
2196 |
provide maintenance or management
services and an association |
2197 |
which contract provides for operation,
maintenance, or |
2198 |
management of a condominium association
or property serving the |
2199 |
unit owners of a condominium shall be
valid or enforceable |
2200 |
unless the contract: |
2201 |
(f) Requires
that all obligations under the contract be |
2202 |
completed within a
1-year period. |
2203 |
(g) Contains
a provision expressly prohibiting automatic |
2204 |
renewal of the
contract. |
2205 |
Section
13. Paragraph (a) of subsection (2) of section |
2206 |
718.3026, Florida Statutes, is amended
to read: |
2207 |
718.3026 Contracts
for products and services; in writing; |
2208 |
bids; exceptions.--Associations with
less than 100 units may opt |
2209 |
out of the provisions of this section if
two-thirds of the unit |
2210 |
owners vote to do so, which opt-out may
be accomplished by a |
2211 |
proxy specifically setting forth the
exception from this |
2212 |
section. |
2213 |
(2)(a)1. Notwithstanding
the foregoing, contracts with |
2214 |
employees of the association, and
contracts for attorney, |
2215 |
accountant, architect, community
association manager, timeshare |
2216 |
management firm, engineering, and
landscape architect services |
2217 |
are not subject to the provisions of
this section. |
2218 |
2. A
contract executed before January 1, 1992, and any |
2219 |
renewal thereof, is not subject to the
competitive bid |
2220 |
requirements of this section. If a
contract was awarded under |
2221 |
the competitive bid procedures of this
section, any renewal of |
2222 |
that contract is not subject to such
competitive bid |
2223 |
requirements if the contract contains a
provision that allows |
2224 |
the board to cancel the contract on 30
days' notice. Materials, |
2225 |
equipment, or services provided to a
condominium under a local |
2226 |
government franchise agreement by a
franchise holder are not |
2227 |
subject to the competitive bid
requirements of this section. A |
2228 |
contract with a manager, if made by a
competitive bid, may be |
2229 |
made for up to 3 years. A condominium
whose declaration or |
2230 |
bylaws provides for competitive bidding
for services may operate |
2231 |
under the provisions of that declaration
or bylaws in lieu of |
2232 |
this section if those provisions are not
less stringent than the |
2233 |
requirements of this section. |
2234 |
3. A
contract by and between a service provider and an |
2235 |
association shall not
be for a term in excess of 3 years and |
2236 |
shall not contain an
automatic renewal clause. |
2237 |
4. A
contract for construction or repair of the property |
2238 |
that exceeds 10
percent of the total annual budget of the |
2239 |
association,
including reserves, should have the approval of an |
2240 |
attorney hired by the
association. |
2241 |
Section
14. Subsection (3) of section 718.303, Florida |
2242 |
Statutes, is amended and subsection (4)
is added to that |
2243 |
section, to read: |
2244 |
718.303 Obligations
of owners; waiver; levy of fine |
2245 |
against unit by
association.-- |
2246 |
(3) If
the declaration or bylaws so provide, the |
2247 |
association may levy
reasonable fines against a unit for the |
2248 |
failure of the owner of the
unit, or its occupant, licensee, or |
2249 |
invitee, to comply with any
provision of the declaration, the |
2250 |
association bylaws, or
reasonable rules of the association. No |
2251 |
fine will become a lien
against a unit. No fine may exceed $100 |
2252 |
per violation. However, a
fine may be levied on the basis of |
2253 |
each day of a continuing
violation, with a single notice and |
2254 |
opportunity for hearing,
provided that no such fine shall in the |
2255 |
aggregate exceed $1,000. No
fine may be levied except after |
2256 |
giving reasonable notice and
opportunity for a hearing to the |
2257 |
unit owner and, if
applicable, its licensee or invitee. The |
2258 |
hearing must be held before
a committee of other unit owners who |
2259 |
are not
members of the board of administration of the |
2260 |
association.
If the committee does not agree with the fine, the |
2261 |
fine may not be levied. The
provisions of this subsection do not |
2262 |
apply to unoccupied units. |
2263 |
(4) Anyone
subject to an action under this section shall |
2264 |
be
notified of the violation by certified mail, return receipt |
2265 |
requested,
and, except in the case of eminent danger to person |
2266 |
or
property, have 30 days in which to respond in writing. If no |
2267 |
response
is provided and the violation continues or is repeated, |
2268 |
the
association may proceed under subsections (1) and (2) |
2269 |
without
further notice except as provided in subsection (3). |
2270 |
Section
15. Section 718.501, Florida Statutes, is amended |
2271 |
to read: |
2272 |
718.501 Powers
and duties of Division of Florida Land |
2273 |
Sales, Condominiums, and Mobile
Homes.-- |
2275 |
(1) The
Division of Florida Land Sales, Condominiums, |
2276 |
and Mobile Homes of the Department of |
2277 |
Business and Professional
Regulation, referred to as the |
2278 |
"division" in this
part, in addition to other powers and duties |
2279 |
prescribed by chapter 498,
has the power to enforce and ensure |
2280 |
compliance with the
provisions of this chapter and rules |
2281 |
promulgated pursuant hereto
relating to the development, |
2282 |
construction, sale, lease,
ownership, operation, and management |
2283 |
of residential condominium
units. In performing its duties, the |
2284 |
division has the following
powers and duties: |
2285 |
(a) The
division may make necessary public or private |
2286 |
investigations within or
outside this state to determine whether |
2287 |
any person has violated this
chapter or any rule or order |
2288 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
2289 |
in the adoption of rules or
forms hereunder. |
2290 |
(b) The
division may require or permit any person to file |
2291 |
a statement in writing,
under oath or otherwise, as the division |
2292 |
determines, as to the facts
and circumstances concerning a |
2293 |
matter to be investigated. |
2294 |
(c) For
the purpose of any investigation under this |
2295 |
chapter, the division
director or any officer or employee |
2296 |
designated by the division
director may administer oaths or |
2297 |
affirmations, subpoena
witnesses and compel their attendance, |
2298 |
take evidence, and require
the production of any matter which is |
2299 |
relevant to the
investigation, including the existence, |
2300 |
description, nature,
custody, condition, and location of any |
2301 |
books, documents, or other
tangible things and the identity and |
2302 |
location of persons having
knowledge of relevant facts or any |
2303 |
other matter reasonably
calculated to lead to the discovery of |
2304 |
material evidence. Upon the
failure by a person to obey a |
2305 |
subpoena or to answer
questions propounded by the investigating |
2306 |
officer and upon reasonable
notice to all persons affected |
2307 |
thereby, the division may
apply to the circuit court for an |
2308 |
order compelling compliance. |
2309 |
(d) Notwithstanding
any remedies available to unit owners |
2310 |
and associations, if the
division has reasonable cause to |
2311 |
believe that a violation of
any provision of this chapter or |
2312 |
rule promulgated pursuant
hereto has occurred, the division may |
2313 |
institute enforcement
proceedings in its own name against any |
2314 |
developer, association,
officer, or member of the board of |
2315 |
administration, or its
assignees or agents, as follows: |
2316 |
1. The
division may permit a person whose conduct or |
2317 |
actions may be under
investigation to waive formal proceedings |
2318 |
and enter into a consent
proceeding whereby orders, rules, or |
2319 |
letters of censure or
warning, whether formal or informal, may |
2320 |
be entered against the
person. |
2321 |
2. The
division may issue an order requiring the |
2322 |
developer, association,
officer, or member of the board of |
2323 |
administration, or its
assignees or agents, to cease and desist |
2324 |
from the unlawful practice
and take such affirmative action as |
2325 |
in the judgment of the
division will carry out the purposes of |
2326 |
this chapter. Such
affirmative action may include, but is not |
2327 |
limited to, an order
requiring a developer to pay moneys |
2328 |
determined to be owed to a
condominium association. |
2329 |
3. The
division may bring an action in circuit court on |
2330 |
behalf of a class of unit
owners, lessees, or purchasers for |
2331 |
declaratory relief,
injunctive relief, or restitution. |
2332 |
4. The
division may impose a civil penalty against a |
2333 |
developer or association, or
its assignee or agent, for any |
2334 |
violation of this chapter or
a rule promulgated pursuant hereto. |
2335 |
The division may impose a
civil penalty individually against any |
2336 |
officer or board member who
willfully and knowingly violates a |
2337 |
provision of this chapter, a
rule adopted pursuant hereto, or a |
2338 |
final order of the division.
The term "willfully and knowingly" |
2339 |
means that the division
informed the officer or board member |
2340 |
that his or her action or
intended action violates this chapter, |
2341 |
a rule adopted under this
chapter, or a final order of the |
2342 |
division and that the
officer or board member refused to comply |
2343 |
with the requirements of
this chapter, a rule adopted under this |
2344 |
chapter, or a final order of
the division. The division, prior |
2345 |
to initiating formal agency
action under chapter 120, shall |
2346 |
afford the officer or board
member an opportunity to voluntarily |
2347 |
comply with this chapter, a
rule adopted under this chapter, or |
2348 |
a final order of the
division. An officer or board member who |
2349 |
complies within 10 days is
not subject to a civil penalty. A |
2350 |
penalty may be imposed on
the basis of each day of continuing |
2351 |
violation, but in no event
shall the penalty for any offense |
2352 |
exceed $5,000. By January 1,
1998, the division shall adopt, by |
2353 |
rule, penalty guidelines
applicable to possible violations or to |
2354 |
categories of violations of
this chapter or rules adopted by the |
2355 |
division. The guidelines
must specify a meaningful range of |
2356 |
civil penalties for each
such violation of the statute and rules |
2357 |
and must be based upon the
harm caused by the violation, the |
2358 |
repetition of the violation,
and upon such other factors deemed |
2359 |
relevant by the division.
For example, the division may consider |
2360 |
whether the violations were
committed by a developer or owner- |
2361 |
controlled association, the
size of the association, and other |
2362 |
factors. The guidelines must
designate the possible mitigating |
2363 |
or aggravating circumstances
that justify a departure from the |
2364 |
range of penalties provided
by the rules. It is the legislative |
2365 |
intent that minor violations
be distinguished from those which |
2366 |
endanger the health, safety,
or welfare of the condominium |
2367 |
residents or other persons
and that such guidelines provide |
2368 |
reasonable and meaningful
notice to the public of likely |
2369 |
penalties that may be
imposed for proscribed conduct. This |
2370 |
subsection does not limit
the ability of the division to |
2371 |
informally dispose of
administrative actions or complaints by |
2372 |
stipulation, agreed
settlement, or consent order. All amounts |
2373 |
collected shall be deposited
with the Chief Financial Officer to |
2374 |
the credit of the Division
of Florida Land Sales, Condominiums, |
2375 |
and Mobile Homes Trust Fund. If a |
2376 |
developer fails to pay the
civil penalty, the division shall |
2377 |
thereupon issue an order
directing that such developer cease and |
2378 |
desist from further
operation until such time as the civil |
2379 |
penalty is paid or may
pursue enforcement of the penalty in a |
2380 |
court of competent
jurisdiction. If an association fails to pay |
2381 |
the civil penalty, the
division shall thereupon pursue |
2382 |
enforcement in a court of
competent jurisdiction, and the order |
2383 |
imposing the civil penalty
or the cease and desist order will |
2384 |
not become effective until
20 days after the date of such order. |
2385 |
Any action commenced by the
division shall be brought in the |
2386 |
county in which the division
has its executive offices or in the |
2387 |
county where the violation
occurred. |
2388 |
(e) The
division shall is
authorized to prepare and |
2389 |
disseminate a prospectus and
other information to assist |
2390 |
prospective owners,
purchasers, lessees, and developers of |
2391 |
residential condominiums in
assessing the rights, privileges, |
2392 |
and duties pertaining
thereto. |
2393 |
(f) The
division has authority to adopt rules pursuant to |
2394 |
ss. 120.536(1) and 120.54 to
implement and enforce the |
2395 |
provisions of this chapter. |
2396 |
(g) The
division shall establish procedures for providing |
2397 |
notice to an association
when the division is considering the |
2398 |
issuance of a declaratory
statement with respect to the |
2399 |
declaration of condominium
or any related document governing in |
2400 |
such condominium community. |
2401 |
(h) The
division shall furnish each association which pays |
2402 |
the fees required by
paragraph (2)(a) a copy of this act, |
2403 |
subsequent changes to this
act on an annual basis, an amended |
2404 |
version of this act as it
becomes available from the Secretary |
2405 |
of State's office on a
biennial basis, and the rules promulgated |
2406 |
pursuant thereto on an
annual basis. |
2407 |
(i) The
division shall annually provide each association |
2408 |
with a summary of
declaratory statements and formal legal |
2409 |
opinions relating to the
operations of condominiums which were |
2410 |
rendered by the division
during the previous year. |
2411 |
(j) The
division shall provide training programs for |
2412 |
condominium association
board members and unit owners in |
2413 |
conjunction
with the recommendations of the ombudsman, at the |
2414 |
associations'
expense. |
2415 |
(k) The
division shall maintain a toll-free telephone |
2416 |
number accessible to
condominium unit owners. |
2417 |
(l) The
division shall develop a program to certify both |
2418 |
volunteer and paid mediators
to provide mediation of condominium |
2419 |
disputes. The division shall
provide, upon request, a list of |
2420 |
such mediators to any
association, unit owner, or other |
2421 |
participant in arbitration
proceedings under s. 718.1255 |
2422 |
requesting a copy of the
list. The division shall include on the |
2423 |
list of volunteer mediators
only the names of persons who have |
2424 |
received at least 20 hours
of training in mediation techniques |
2425 |
or who have mediated at
least 20 disputes. In order to become |
2426 |
initially certified by the
division, paid mediators must be |
2427 |
certified by the Supreme
Court to mediate court cases in either |
2428 |
county or circuit courts.
However, the division may adopt, by |
2429 |
rule, additional factors for
the certification of paid |
2430 |
mediators, which factors
must be related to experience, |
2431 |
education, or background.
Any person initially certified as a |
2432 |
paid mediator by the
division must, in order to continue to be |
2433 |
certified, comply with the
factors or requirements imposed by |
2434 |
rules adopted by the
division. |
2435 |
(m) When
a complaint is made, the division shall conduct |
2436 |
its inquiry with due regard
to the interests of the affected |
2437 |
parties. Within 30 days
after receipt of a complaint, the |
2438 |
division shall acknowledge
the complaint in writing and notify |
2439 |
the complainant whether the
complaint is within the jurisdiction |
2440 |
of the division and whether
additional information is needed by |
2441 |
the division from the
complainant. The division shall conduct |
2442 |
its investigation and shall,
within 90 days after receipt of the |
2443 |
original complaint or of
timely requested additional |
2444 |
information, take action
upon the complaint. However, the |
2445 |
failure to complete the
investigation within 90 days does not |
2446 |
prevent the division from
continuing the investigation, |
2447 |
accepting or considering
evidence obtained or received after 90 |
2448 |
days, or taking
administrative action if reasonable cause exists |
2449 |
to believe that a violation
of this chapter or a rule of the |
2450 |
division has occurred. If an
investigation is not completed |
2451 |
within the time limits
established in this paragraph, the |
2452 |
division shall, on a monthly
basis, notify the complainant in |
2453 |
writing of the status of the
investigation. When reporting its |
2454 |
action to the complainant,
the division shall inform the |
2455 |
complainant of any right to
a hearing pursuant to ss. 120.569 |
2456 |
and 120.57. |
2457 |
(n) Upon
a finding that any association has committed a |
2458 |
violation
within the jurisdiction of the division, the division |
2459 |
shall
require the association to: |
2460 |
mail
and post a notice to all unit owners setting forth |
2461 |
the facts
and findings relative to any and all violations, as |
2462 |
well as a
description of the corrective action required. |
2472 |
(2)(a) Effective
January 1, 1992, each condominium |
2473 |
association which operates
more than two units shall pay to the |
2474 |
division an annual fee in
the amount of $4 for each residential |
2475 |
unit in condominiums
operated by the association. If the fee is |
2476 |
not paid by March 1, then
the association shall be assessed a |
2477 |
penalty of 10 percent of the
amount due, and the association |
2478 |
will not have standing to
maintain or defend any action in the |
2479 |
courts of this state until
the amount due, plus any penalty, is |
2480 |
paid. |
2481 |
(b) All
fees shall be deposited in the Division of Florida |
2482 |
Land Sales, Condominiums, and Mobile |
2483 |
Homes Trust Fund as provided
by law. |
2486 |
Section
16. Section 718.5011, Florida Statutes, is amended |
2487 |
to read: |
2488 |
718.5011 Ombudsman;
appointment; administration.-- |
2489 |
(1) There
is created an Office of the Condominium |
2490 |
Ombudsman, to be located,
solely for administrative purposes, |
2491 |
within the Division of
Florida Land Sales, Condominiums, |
2492 |
and Mobile Homes. The
ombudsman shall |
2493 |
exercise
his or her policymaking and other functions delegated |
2494 |
by this
chapter independently of the Department of Business and |
2495 |
Professional
Regulation and without approval or control of the |
2496 |
department.
The department shall render administrative support |
2497 |
to the
Office of the Condominium Ombudsman in matters pertaining |
2498 |
to
budget, personnel, office space, equipment, and supplies. All |
2499 |
revenues
collected for the office by the department shall be |
2500 |
deposited
in a separate fund or account from which the |
2501 |
department
may not use or divert the revenues. The functions of |
2502 |
the office shall be funded
by the Division of Florida Land |
2503 |
Sales, Condominiums, and Mobile Homes |
2504 |
Trust Fund. The ombudsman
shall be a bureau chief of the |
2505 |
division, and the office
shall be set within the division in the |
2506 |
same manner as any other
bureau is staffed and funded. |
2523 |
Section
17. Section 718.5012, Florida Statutes, is amended |
2524 |
to read: |
2525 |
718.5012 Ombudsman;
powers and duties.-- |
2526 |
(1) The
ombudsman shall have the powers that are necessary |
2527 |
to carry out the duties of
his or her office, including the |
2528 |
following specific powers: |
2529 |
(a)(1) To
have access to and use of all files and records |
2530 |
of the division. |
2531 |
(b)(2) To
employ professional and clerical staff as |
2532 |
necessary for the efficient
operation of the office. |
2533 |
(c)(3) To
prepare and issue reports and recommendations to |
2534 |
the Governor, the
department, the division, the Advisory Council |
2535 |
on Condominiums, the
President of the Senate, and the Speaker of |
2536 |
the House of Representatives
on any matter or subject within the |
2537 |
jurisdiction of the
division. The ombudsman shall make |
2538 |
recommendations he or she
deems appropriate for legislation |
2539 |
relative to division
procedures, rules, jurisdiction, personnel, |
2540 |
and functions. |
2541 |
(d)(4) To
act as liaison between the division, unit |
2542 |
owners, boards of directors,
board members, community |
2543 |
association managers, and
other affected parties. The ombudsman |
2544 |
shall develop
policies and procedures to assist unit owners, |
2545 |
boards of directors, board
members, community association |
2546 |
managers, and other affected
parties to understand their rights |
2547 |
and responsibilities as set
forth in this chapter and the |
2548 |
condominium documents
governing their respective association. |
2549 |
The ombudsman shall
coordinate and assist in the preparation and |
2550 |
adoption of educational and
reference material, and shall |
2551 |
endeavor to coordinate with
private or volunteer providers of |
2552 |
these services, so that the
availability of these resources is |
2553 |
made known to the largest
possible audience. |
2554 |
(e)(5) To
monitor and review procedures and disputes |
2555 |
concerning condominium
elections or meetings, including, but not |
2556 |
limited to, recommending
that the division pursue enforcement |
2557 |
action in any manner where
there is reasonable cause to believe |
2558 |
that election misconduct has
occurred. |
2574 |
(f)(6) To
make recommendations to the division for changes |
2575 |
in rules and procedures for
the filing, investigation, and |
2576 |
resolution of complaints
filed by unit owners, associations, and |
2577 |
managers. |
2578 |
(g)(7) To
provide resources to assist members of boards of |
2579 |
directors and officers of
associations to carry out their powers |
2580 |
and duties consistent with
this chapter, division rules, and the |
2581 |
condominium documents
governing the association. |
2582 |
(h)(8) To
order, encourage,
and facilitate voluntary |
2583 |
meetings with and between
unit owners, boards of directors, |
2584 |
board members, community
association managers, and other |
2585 |
affected parties when the
meetings may assist in resolving a |
2586 |
dispute within a community
association before a person submits a |
2587 |
dispute for a formal or
administrative remedy. It is the intent |
2588 |
of the Legislature that the
ombudsman act as a neutral resource |
2589 |
for both the rights and
responsibilities of unit owners, |
2590 |
associations, and board
members. |
2602 |
(2)(9) Fifteen
percent of the total voting interests in a |
2603 |
condominium association, or
six unit owners, whichever is |
2604 |
greater, may petition the
ombudsman to appoint an election |
2605 |
monitor to attend the annual
meeting of the unit owners and |
2606 |
conduct the election of
directors. |
2614 |
The ombudsman shall appoint a division |
2615 |
employee, a person or
persons specializing in condominium |
2616 |
election monitoring, or an
attorney licensed to practice in this |
2617 |
state as the election
monitor. All costs associated with the |
2618 |
election monitoring process
shall be paid by the association. |
2619 |
The division shall adopt a
rule establishing procedures for the |
2620 |
appointment of election
monitors and the scope and extent of the |
2621 |
monitor's role in the
election process. |
2622 |
(3) Any
unit owner or association acting in good faith on |
2623 |
the
advice or opinion of the office of the ombudsman shall be |
2624 |
immune
from any penalties or actions. |
2659 |
Section
18. Section 718.504, Florida Statutes, is amended |
2660 |
to read: |
2661 |
718.504 Prospectus
or offering circular.--Every developer |
2662 |
of a residential condominium
which contains more than 20 |
2663 |
residential units, or which
is part of a group of residential |
2664 |
condominiums which will be
served by property to be used in |
2665 |
common by unit owners of
more than 20 residential units, shall |
2666 |
prepare a prospectus or
offering circular and file it with the |
2667 |
Division of Florida Land
Sales, Condominiums, |
2668 |
and
Mobile Homes prior to entering into an |
2669 |
enforceable contract of
purchase and sale of any unit or lease |
2670 |
of a unit for more than 5
years and shall furnish a copy of the |
2671 |
prospectus or offering
circular to each buyer. In addition to |
2672 |
the prospectus or offering
circular, each buyer shall be |
2673 |
furnished a separate page
entitled "Frequently Asked Questions |
2674 |
and Answers," which
shall be in accordance with a format |
2675 |
approved by the division and
a copy of the financial information |
2676 |
required by s. 718.111. This
page shall, in readable language, |
2677 |
inform prospective
purchasers regarding their voting rights and |
2678 |
unit use restrictions,
including restrictions on the leasing of |
2679 |
a unit; shall indicate
whether and in what amount the unit |
2680 |
owners or the association is
obligated to pay rent or land use |
2681 |
fees for recreational or
other commonly used facilities; shall |
2682 |
contain a statement
identifying that amount of assessment which, |
2683 |
pursuant to the budget,
would be levied upon each unit type, |
2684 |
exclusive of any special
assessments, and which shall further |
2685 |
identify the basis upon
which assessments are levied, whether |
2686 |
monthly, quarterly, or
otherwise; shall state and identify any |
2687 |
court cases in which the
association is currently a party of |
2688 |
record in which the
association may face liability in excess of |
2689 |
$100,000; and which shall
further state whether membership in a |
2690 |
recreational facilities
association is mandatory, and if so, |
2691 |
shall identify the fees
currently charged per unit type. The |
2692 |
division shall by rule
require such other disclosure as in its |
2693 |
judgment will assist
prospective purchasers. The prospectus or |
2694 |
offering circular may
include more than one condominium, |
2695 |
although not all such units
are being offered for sale as of the |
2696 |
date of the prospectus or
offering circular. The prospectus or |
2697 |
offering circular must
contain the following information: |
3044 |
(21) An
estimated operating budget for the condominium and |
3045 |
the association, and a schedule of the
unit owner's expenses shall |
3046 |
be attached as an exhibit and shall contain the following
information: |
3048 |
(a) The
estimated monthly and annual revenues and
expenses |
3049 |
of the condominium and the
association that are earned by the |
3050 |
association
or collected from unit owners by assessments. |
3051 |
(b) The
estimated monthly and annual expenses of each unit |
3052 |
owner for a unit, other than
common expenses paid by all unit |
3053 |
owners, payable by the unit
owner to persons or entities other |
3054 |
than the association, as
well as to the association, including |
3055 |
fees assessed pursuant to s.
718.113(1) for maintenance of |
3056 |
limited common elements
where such costs are shared only by |
3057 |
those entitled to use the
limited common element, and the total |
3058 |
estimated monthly and annual
expense. There may be excluded from |
3059 |
this estimate expenses which
are not provided for or |
3060 |
contemplated by the
condominium documents, including, but not |
3061 |
limited to, the costs of
private telephone; maintenance of the |
3062 |
interior of condominium
units, which is not the obligation of |
3063 |
the association; maid or
janitorial services privately |
3064 |
contracted for by the unit
owners; utility bills billed directly |
3065 |
to each unit owner for
utility services to his or her unit; |
3066 |
insurance premiums other
than those incurred for policies |
3067 |
obtained by the condominium;
and similar personal expenses of |
3068 |
the unit owner. A unit
owner's estimated payments for |
3069 |
assessments shall also be
stated in the estimated amounts for |
3070 |
the times when they will be
due. |
3071 |
(c) The
estimated items of expenses of the condominium and |
3072 |
the association, except as
excluded under paragraph (b), |
3073 |
including, but not limited
to, the following items, which shall |
3074 |
be stated either as an
association expense collectible by |
3075 |
assessments or as unit
owners' expenses payable to persons other |
3076 |
than the association: |
3077 |
1. Expenses
for the association and condominium: |
3078 |
a. Administration
of the association. |
3079 |
b. Management
fees. |
3080 |
c. Maintenance. |
3081 |
d. Rent
for recreational and other commonly used |
3082 |
facilities. |
3083 |
e. Taxes
upon association property. |
3084 |
f. Taxes
upon leased areas. |
3085 |
g. Insurance. |
3086 |
h. Security
provisions. |
3087 |
i. Other
expenses. |
3088 |
j. Operating
capital. |
3089 |
k. Reserves. |
3090 |
l. Fees
payable to the division. |
3091 |
2. Expenses
for a unit owner: |
3092 |
a. Rent
for the unit, if subject to a lease. |
3093 |
b. Rent
payable by the unit owner directly to the lessor |
3094 |
or agent under any
recreational lease or lease for the use of |
3095 |
commonly used facilities,
which use and payment is a mandatory |
3096 |
condition of ownership and
is not included in the common expense |
3097 |
or assessments for common
maintenance paid by the unit owners to |
3098 |
the association. |
3099 |
(d) The
estimated amounts shall be stated for a period of |
3100 |
at least
12 months and may distinguish between the period prior |
3101 |
to the
time unit owners other than the developer elect a |
3102 |
majority
of the board of administration and the period after |
3103 |
that
date. |