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Senate Bill 0902: Relating to Community Associations [EPCC] |
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S902 GENERAL BILL/CS by Regulated Industries;
Jones (Similar H
0433, Compare H
1365, H
1373, S
2816) 1 A bill to be entitled 2 An act relating to community associations; 3 creating s. 712.11, F.S.; providing for the 4 revival of certain covenants that have lapsed; 5 amending s. 718.106, F.S.; prohibiting local 6 governments from limiting the access of certain 7 persons to beaches adjacent to or adjoining 8 condominium property; amending s. 718.110, 9 F.S.; revising provisions relating to the 10 amendment of declarations; providing 11 legislative findings and a finding of 12 compelling state interest; providing criteria 13 for consent to an amendment; requiring notice 14 regarding proposed amendments to mortgagees; 15 providing criteria for notification; providing 16 for voiding certain amendments; amending s. 17 718.114, F.S.; providing that certain 18 leaseholds, memberships, or other possessory or 19 use interests shall be considered a material 20 alteration or substantial addition to certain 21 real property; amending s. 718.404, F.S.; 22 providing retroactive application of provisions 23 relating to mixed-use condominiums; amending s. 24 719.103, F.S.; providing a definition; amending 25 s. 719.507, F.S.; prohibiting laws, ordinances, 26 or regulations that apply only to improvements 27 that are or may be subjected to an equity club 28 form of ownership; amending s. 720.302, F.S.; 29 revising governing provisions relating to 30 corporations that operate residential 31 homeowners' associations; amending s. 720.303, Page 1 1 F.S.; revising application to include certain 2 meetings; requiring the association to provide 3 certain information to prospective purchasers 4 or lienholders; authorizing the association to 5 charge a reasonable fee for providing certain 6 information; requiring the budget to provide 7 for annual operating expenses; authorizing the 8 budget to include reserve accounts for capital 9 expenditures and deferred maintenance; 10 providing a formula for calculating the amount 11 to be reserved; authorizing the association to 12 adjust replacement reserve assessments 13 annually; authorizing the developer to vote to 14 waive the reserves or reduce the funding of 15 reserves for a certain period; revising 16 provisions relating to financial reporting; 17 revising time periods in which the association 18 must complete its reporting; repealing s. 19 720.303(2), F.S., as amended, relating to board 20 meetings, to remove conflicting versions of 21 that subsection; creating s. 720.3035, F.S.; 22 providing for architectural control covenants 23 and parcel owner improvements; authorizing the 24 review and approval of plans and 25 specifications; providing limitations; 26 providing rights and privileges for parcel 27 owners as set forth in the declaration of 28 covenants; amending s. 720.305, F.S.; providing 29 that, where a member is entitled to collect 30 attorney's fees against the association, the 31 member may also recover additional amounts as Page 2 1 determined by the court; amending s. 720.306, 2 F.S.; providing that certain mergers or 3 consolidations of an association shall not be 4 considered a material or adverse alteration of 5 the proportionate voting interest appurtenant 6 to a parcel; amending s. 720.307, F.S.; 7 requiring developers to deliver financial 8 records to the board in any transition of 9 association control to members; requiring 10 certain information to be included in the 11 records and for the records to be prepared in a 12 specified manner; amending s. 720.308, F.S.; 13 providing circumstances under which a guarantee 14 of common expenses shall be effective; 15 providing for approval of the guarantee by 16 association members; providing for a guarantee 17 period and extension thereof; requiring the 18 stated dollar amount of the guarantee to be an 19 exact dollar amount for each parcel identified 20 in the declaration; providing payments required 21 from the guarantor to be determined in a 22 certain manner; providing a formula to 23 determine the guarantor's total financial 24 obligation to the association; providing that 25 certain expenses incurred in the production of 26 certain revenues shall not be included in the 27 operating expenses; amending s. 720.311, F.S.; 28 revising provisions relating to dispute 29 resolution; providing that the filing of any 30 petition for arbitration or the serving of an 31 offer for presuit mediation shall toll the Page3 1 applicable statute of limitations; providing 2 that certain disputes between an association 3 and a parcel owner shall be subject to presuit 4 mediation; revising provisions to conform; 5 providing that temporary injunctive relief may 6 be sought in certain disputes subject to 7 presuit mediation; authorizing the court to 8 refer the parties to mediation under certain 9 circumstances; requiring the aggrieved party to 10 serve on the responding party a written offer 11 to participate in presuit mediation; providing 12 a form for such offer; providing that service 13 of the offer is effected by the sending of such 14 an offer in a certain manner; providing that 15 the prevailing party in any subsequent 16 arbitration or litigation proceedings is 17 entitled to seek recovery of all costs and 18 attorney's fees incurred in the presuit 19 mediation process; requiring the mediator or 20 arbitrator to meet certain certification 21 requirements; removing a requirement relating 22 to development of an education program to 23 increase awareness of the operation of 24 homeowners' associations and the use of 25 alternative dispute resolution techniques; 26 providing effective dates. 27 28 Be It Enacted by the Legislature of the State of Florida: 29 THE VIOLATION OF PRIVATE PROPERTY RIGHTS!
THIS HAS TO GO! THERE IS NO EXCUSE FOR THIS OUTRAGEOUS PROVISION!
5 Section 2. Subsection (5) is added to section 718.106, 6 Florida Statutes, to read: 7 718.106 Condominium parcels; appurtenances; possession 8 and enjoyment.-- 9 (5) A local government may not prohibit condominium 10 unit owners or an association from permitting guests, 11 licensees, or invitees access to a public beach adjacent to or 12 adjoining the condominium property. 13 Section 3. Effective October 1, 2007, subsection (11) 14 of section 718.110, Florida Statutes, is amended to read: 15 718.110 Amendment of declaration; correction of error 16 or omission in declaration by circuit court.-- 17 (11) The Legislature finds that the procurement of 18 mortgagee consent to amendments that do not affect the rights 19 or interests of mortgagees is an unreasonable and substantial 20 logistical and financial burden on the unit owners and that 21 there is a compelling state interest in enabling the members 22 of a condominium association to approve amendments to the 23 condominium documents through legal means. Accordingly, and 24 notwithstanding any provision to the contrary contained in 25 this section: 26 (a) As to any mortgage recorded on or after October 1, 27 2007, any provision in the declaration, articles of 28
incorporation, or bylaws that requires
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30 mortgagees of units or any other portion of the condominium 31 property to or in amendments to the declaration, articles of Page5 1 incorporation, or bylaws or for any other matter shall be 2
enforceable only as to the following matters: 3
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9 1. Those matters described in subsections (4) and 10
(8). 11 2. Amendments to the declaration, articles of 12 incorporation, or bylaws that adversely affect the priority of 13 the mortgagee's lien or the mortgagee's rights to foreclose 14 its lien or that otherwise materially affect the rights and 15 interests of the mortgagees. 16 (b) As to mortgages recorded before October 1, 2007, 17 any existing provisions in the declaration, articles of 18 incorporation, or bylaws requiring mortgagee consent shall be 19 enforceable. 20 (c) In securing consent or joinder, the association 21 shall be entitled to rely upon the public records to identify 22 the holders of outstanding mortgages. The association may use 23 the address provided in the original recorded mortgage 24 document, unless there is a different address for the holder 25 of the mortgage in a recorded assignment or modification of 26 the mortgage, which recorded assignment or modification must 27 reference the official records book and page on which the 28 original mortgage was recorded. Once the association has 29 identified the recorded mortgages of record, the association 30 shall, in writing, request of each unit owner whose unit is 31 encumbered by a mortgage of record any information the owner Page6 1 has in his or her possession regarding the name and address of 2 the person to whom mortgage payments are currently being made. 3 Notice shall be sent to such person if the address provided in 4 the original recorded mortgage document is different from the 5 name and address of the mortgagee or assignee of the mortgage 6 as shown by the public record. The association shall be deemed 7 to have complied with this requirement by making the written 8 request of the unit owners required under this paragraph. Any 9 notices required to be sent to the mortgagees under this 10 paragraph shall be sent to all available addresses provided to 11 the association. 12 (d) Any notice to the mortgagees required under 13 paragraph (c) may be sent by a method that establishes proof 14 of delivery, and any mortgagee who fails to respond within 60 15 days after the date of mailing shall be deemed to have 16 consented to the amendment. 17 (e) For those amendments requiring mortgagee consent 18
on or after October 1, 2007,
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20 consent is provided other than by properly recorded joinder, 21 such consent shall be evidenced by affidavit of the 22 association recorded in the public records of the county where 23 the declaration is recorded. Any amendment adopted without the 24 required consent of a mortgagee shall be voidable only by a 25 mortgagee who was entitled to notice and an opportunity to 26 consent. An action to void an amendment shall be subject to 27 the statute of limitations beginning 5 years after the date of 28 discovery as to the amendments described in subparagraphs 29 (a)1. and 2. and 5 years after the date of recordation of the 30 certificate of amendment for all other amendments. This 31 Page 7 1 provision shall apply to all mortgages, regardless of the date 2 of recordation of the mortgage. 3 (f) Notwithstanding the provisions of this section, 4 any amendment or amendments to conform a declaration of 5 condominium to the insurance coverage provisions in s. 6 718.111(11) may be made as provided in that section. 7 Section 4. Section 718.114, Florida Statutes, is 8 amended to read: 9 718.114 Association powers.--An association has the 10 power to enter into agreements, to acquire leaseholds, 11 memberships, and other possessory or use interests in lands or 12 facilities such as country clubs, golf courses, marinas, and 13 other recreational facilities. It has this power whether or 14 not the lands or facilities are contiguous to the lands of the 15 condominium, if they are intended to provide enjoyment, 16 recreation, or other use or benefit to the unit owners. All of 17 these leaseholds, memberships, and other possessory or use 18 interests existing or created at the time of recording the 19 declaration must be stated and fully described in the 20 declaration. Subsequent to the recording of the declaration, 21 agreements acquiring these leaseholds, memberships, or other 22 possessory or use interests not entered into within 12 months 23 following the recording of the declaration shall be considered 24 a material alteration or substantial addition to the real 25 property that is association property, and the association may 26 not acquire or enter into agreements acquiring these 27 leaseholds, memberships, or other possessory or use interests 28 except as authorized by the declaration as provided in s. 29 718.113. The declaration may provide that the rental, 30 membership fees, operations, replacements, and other expenses 31 are common expenses and may impose covenants and restrictions Page 8 1 concerning their use and may contain other provisions not 2 inconsistent with this chapter. A condominium association may 3 conduct bingo games as provided in s. 849.0931. 4 Section 5. Subsections (1) and (2) of section 718.404, 5 Florida Statutes, are amended to read: 6 718.404 Mixed-use condominiums.--When a condominium 7 consists of both residential and commercial units, the 8 following provisions shall apply: 9 (1) The condominium documents shall not provide that 10 the owner of any commercial unit shall have the authority to 11 veto amendments to the declaration, articles of incorporation, 12 bylaws, or rules or regulations of the association. This 13 subsection shall apply retroactively as a remedial measure. 14 (2) Subject to s. 718.301, where the number of 15 residential units in the condominium equals or exceeds 50 16 percent of the total units operated by the association, owners 17 of the residential units shall be entitled to vote for a 18 majority of the seats on the board of administration. This 19 subsection shall apply retroactively as a remedial measure. 20 Section 6. Subsections (18) through (27) of section 21 719.103, Florida Statutes, are renumbered as subsections (19) 22 through (28), respectively, and a new subsection (18) is added 23 to that section to read: 24 719.103 Definitions.--As used in this chapter: 25 (18) "Equity facilities club" means a club comprised 26 of recreational facilities in which proprietary membership 27 interests are sold to individuals, which membership interests 28 entitle the individuals to use certain physical facilities 29 owned by the equity club. Such physical facilities do not 30 include a residential unit or accommodation. For purposes of 31 this definition, the term "accommodation" shall include, but Page 9 1 is not limited to, any apartment, residential cooperative 2 unit, residential condominium unit, cabin, lodge, hotel or 3 motel room, or other accommodation designed for overnight 4 occupancy for one or more individuals. 5 Section 7. Section 719.507, Florida Statutes, is 6 amended to read: 7 719.507 Zoning and building laws, ordinances, and 8 regulations.--All laws, ordinances, and regulations concerning 9 buildings or zoning shall be construed and applied with 10 reference to the nature and use of such property, without 11 regard to the form of ownership. No law, ordinance, or 12 regulation shall establish any requirement concerning the use, 13 location, placement, or construction of buildings or other 14 improvements which are, or may thereafter be, subjected to the 15 cooperative or equity facilities club form of ownership, 16 unless such requirement shall be equally applicable to all 7 buildings and improvements of the same kind not then, or 18 thereafter to be, subjected to the cooperative or equity 19 facilities club form of ownership. This section does not apply 20 if the owner in fee of any land enters into and records a 21 covenant that existing improvements or improvements to be 22 constructed shall not be converted to the cooperative form of 23 residential ownership prior to 5 years after the later of the 4 date of the covenant or completion date of the improvements. 25 Such covenant shall be entered into with the governing body of 26 the municipality in which the land is located or, if the land 27 is not located in a municipality, with the governing body of 28 the county in which the land is located. 29 Section 8. Subsections (4) and (5) of section 720.302, 30 Florida Statutes, are amended to read: 31 720.302 Purposes, scope, and application.-- Page 10 1 (4) This chapter does not apply to any association 2 that is subject to regulation under chapter 718, chapter 719, 3
or chapter 721 4 under chapter 723, except to the extent that a provision of 5 chapter 718, chapter 719, or chapter 721 is expressly 6 incorporated into this chapter for the purpose of regulating 7 homeowners' associations. 8 (5) Unless expressly stated to the contrary, 9
corporations 10 homeowners' associations in this state shall be governed by 11 and subject to chapter 607, if the association was 12 incorporated under that chapter, or to chapter 617, if the 13 association was incorporated under that chapter, and this 14 chapter. This subsection is intended to clarify existing law. 15 Section 9. Subsections (2), (6), and (7) of section 16 720.303, Florida Statutes, are amended, and paragraph (d) is 17 added to subsection (5) of that section, to read: 18 720.303 Association powers and duties; meetings of 19 board; official records; budgets; financial reporting; 20 association funds; recalls.-- 21 (2) BOARD MEETINGS.-- 22 (a) A meeting of the board of directors of an 23 association occurs whenever a quorum of the board gathers to 24 conduct association business. All meetings of the board must 25 be open to all members except for meetings between the board 26 and its attorney with respect to proposed or pending 27 litigation where the contents of the discussion would 28 otherwise be governed by the attorney-client privilege. The 29 provisions of this subsection shall also apply to the meetings 30 of any committee or other similar body when a final decision 31 will be made regarding the expenditure of association funds Page 11 1 and to meetings of any body vested with the power to approve 2 or disapprove architectural decisions with respect to a 3 specific parcel of residential property owned by a member of 4 the community. 5 (b) Members have the right to attend all meetings of 6 the board and to speak on any matter placed on the agenda by 7 petition of the voting interests for at least 3 minutes. The 8 association may adopt written reasonable rules expanding the 9 right of members to speak and governing the frequency, 10 duration, and other manner of member statements, which rules 11 must be consistent with this paragraph and may include a 12 sign-up sheet for members wishing to speak. Notwithstanding 13 any other law, the requirement that board meetings and 14 committee meetings be open to the members is inapplicable to 15 meetings between the board or a committee and the 16 association's attorney, with respect to meetings of the board 17 held for the purpose of discussing personnel matters. 18 (c) The bylaws shall provide for giving notice to 19 parcel owners and members of all board meetings and, if they 20 do not do so, shall be deemed to provide the following: 21 1. Notices of all board meetings must be posted in a 22 conspicuous place in the community at least 48 hours in 23 advance of a meeting, except in an emergency. In the 24 alternative, if notice is not posted in a conspicuous place in 25 the community, notice of each board meeting must be mailed or 26 delivered to each member at least 7 days before the meeting, 27 except in an emergency. Notwithstanding this general notice 28 requirement, for communities with more than 100 members, the 29 bylaws may provide for a reasonable alternative to posting or 30 mailing of notice for each board meeting, including 31 publication of notice, provision of a schedule of board Page 12 1 meetings, or the conspicuous posting and repeated broadcasting 2 of the notice on a closed-circuit cable television system 3 serving the homeowners' association. However, if broadcast 4 notice is used in lieu of a notice posted physically in the 5 community, the notice must be broadcast at least four times 6 every broadcast hour of each day that a posted notice is 7 otherwise required. When broadcast notice is provided, the 8 notice and agenda must be broadcast in a manner and for a 9 sufficient continuous length of time so as to allow an average 10 reader to observe the notice and read and comprehend the 11 entire content of the notice and the agenda. The bylaws or 12 amended bylaws may provide for giving notice by electronic 13 transmission in a manner authorized by law for meetings of the 14 board of directors, committee meetings requiring notice under 15 this section, and annual and special meetings of the members; 16 however, a member must consent in writing to receiving notice 17 by electronic transmission. 18 2. An assessment may not be levied at a board meeting 19 unless the notice of the meeting includes a statement that 20 assessments will be considered and the nature of the 21 assessments. Written notice of any meeting at which special 22 assessments will be considered or at which amendments to rules 23 regarding parcel use will be considered must be mailed, 24 delivered, or electronically transmitted to the members and 25 parcel owners and posted conspicuously on the property or 26 broadcast on closed-circuit cable television not less than 14 27 days before the meeting. 28 3. Directors may not vote by proxy or by secret ballot 29 at board meetings, except that secret ballots may be used in 30 the election of officers. This subsection also applies to the 31 meetings of any committee or other similar body, when a final Page 13 1 decision will be made regarding the expenditure of association 2 funds, and to any body vested with the power to approve or 3 disapprove architectural decisions with respect to a specific 4 parcel of residential property owned by a member of the 5 community. 6 (d) If 20 percent of the total voting interests 7 petition the board to address an item of business, the board 8 shall at its next regular board meeting or at a special 9 meeting of the board, but not later than 60 days after the 10 receipt of the petition, take the petitioned item up on an 11 agenda. The board shall give all members notice of the meeting 12 at which the petitioned item shall be addressed in accordance 13 with the 14-day notice requirement pursuant to subparagraph 14 (c)2. Each member shall have the right to speak for at least 3 15 minutes on each matter placed on the agenda by petition, 16 provided that the member signs the sign-up sheet, if one is 17 provided, or submits a written request to speak prior to the 18 meeting. Other than addressing the petitioned item at the 19 meeting, the board is not obligated to take any other action 20 requested by the petition. 21 (5) INSPECTION AND COPYING OF RECORDS.--The official 22 records shall be maintained within the state and must be open 23 to inspection and available for photocopying by members or 24 their authorized agents at reasonable times and places within 25 10 business days after receipt of a written request for 26 access. This subsection may be complied with by having a copy 27 of the official records available for inspection or copying in 8 the community. If the association has a photocopy machine 9 available where the records are maintained, it must provide 30 parcel owners with copies on request during the inspection if 31 the entire request is limited to no more than 25 pages. Page 14 1 (d) The association or its authorized agent is not 2 required to provide a prospective purchaser or lienholder with 3 information about the residential subdivision or the 4 association other than information or documents required by 5 this chapter to be made available or disclosed. The 6 association or its authorized agent may charge a reasonable 7 fee to the prospective purchaser or lienholder or the current 8 parcel owner or member for providing good faith responses to 9 requests for information by or on behalf of a prospective 10 purchaser or lienholder, other than that required by law, if 11 the fee does not exceed $150 plus the reasonable cost of 12 photocopying and any attorney's fees incurred by the 13 association in connection with the response. 14 (6) BUDGETS.-- 15 (a) The association shall prepare an annual budget 16 that sets out the annual operating expenses. The budget must 17 reflect the estimated revenues and expenses for that year and 18 the estimated surplus or deficit as of the end of the current 19 year. The budget must set out separately all fees or charges 20 paid for by the association for recreational amenities, 21 whether owned by the association, the developer, or another 22 person. The association shall provide each member with a copy 23 of the annual budget or a written notice that a copy of the 24 budget is available upon request at no charge to the member. 25 The copy must be provided to the member within the time limits 26 set forth in subsection (5). 27 (b) In addition to annual operating expenses, the 28 budget may include reserve accounts for capital expenditures 29 and deferred maintenance for which the association is 30 responsible to the extent that the governing documents do not 31 limit increases in assessments, including reserves. If the Page 15 1 budget of the association includes reserve accounts, such 2 reserves shall be determined, maintained, and waived in the 3 manner provided in this subsection. Once an association 4 provides for reserve accounts in the budget, the association 5 shall thereafter determine, maintain, and waive reserves in 6 compliance with this subsection. 7 (c) If the budget of the association does not provide 8 for reserve accounts governed by this subsection and the 9 association is responsible for the repair and maintenance of 10 capital improvements that may result in a special assessment 11 if reserves are not provided, each financial report for the 12 preceding fiscal year required by subsection (7) shall contain 13 the following statement in conspicuous type: THE BUDGET OF THE 14 ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL 15 EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN 16 SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE 17 ACCOUNTS PURSUANT TO THE PROVISIONS OF SECTION 720.303(6), 18 FLORIDA STATUTES, UPON THE APPROVAL OF NOT LESS THAN A 19 MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION. 20 (d) An association shall be deemed to have provided 21 for reserve accounts when reserve accounts have been initially 22 established by the developer or when the membership of the 23 association affirmatively elects to provide for reserves. If 24 reserve accounts are not initially provided for by the 25 developer, the membership of the association may elect to do 26 so upon the affirmative approval of not less than a majority 27 of the total voting interests of the association. Such 28 approval may be attained by vote of the members at a duly 29 called meeting of the membership or upon a written consent 30 executed by not less than a majority of the total voting 31 interests in the community. The approval action of the Page 16 1 membership shall state that reserve accounts shall be provided 2 for in the budget and designate the components for which the 3 reserve accounts are to be established. Upon approval by the 4 membership, the board of directors shall provide for the 5 required reserve accounts for inclusion in the budget in the 6 next fiscal year following the approval and in each year 7 thereafter. Once established as provided in this subsection, 8 the reserve accounts shall be funded or maintained or shall 9 have their funding waived in the manner provided in paragraph 10 (f). 11 (e) The amount to be reserved in any account 12 established shall be computed by means of a formula that is 13 based upon estimated remaining useful life and estimated 14 replacement cost or deferred maintenance expense of each 15 reserve item. The association may adjust replacement reserve 16 assessments annually to take into account any changes in 17 estimates of cost or useful life of a reserve item. 18 (f) Once a reserve account or reserve accounts are 19 established, the membership of the association, upon a 20 majority vote at a meeting at which a quorum is present, may 21 provide for no reserves or less reserves than required by this 22 section. If a meeting of the unit owners has been called to 23 determine whether to waive or reduce the funding of reserves 24 and no such result is achieved or a quorum is not present, the 25 reserves as included in the budget shall go into effect. After 26 the turnover, the developer may vote its voting interest to 27 waive or reduce the funding of reserves. Any vote taken 28 pursuant to this subsection to waive or reduce reserves shall 29 be applicable only to one budget year. 30 (g) Funding formulas for reserves authorized by this 31 section shall be based on either a separate analysis of each Page 17 1 of the required assets or a pooled analysis of two or more of 2 the required assets. 3 1. If the association maintains separate reserve 4 accounts for each of the required assets, the amount of the 5 contribution to each reserve account shall be the sum of the 6 following two calculations: 7 a. The total amount necessary, if any, to bring a 8 negative component balance to zero. 9 b. The total estimated deferred maintenance expense or 10 estimated replacement cost of the reserve component less the 11 estimated balance of the reserve component as of the beginning 12 of the period for which the budget will be in effect. The 13 remainder, if greater than zero, shall be divided by the 14 estimated remaining useful life of the component. 15 16 The formula may be adjusted each year for changes in estimates 17 and deferred maintenance performed during the year and may 18 include factors such as inflation and earnings on invested 19 funds. 20 2. If the association maintains a pooled account of 21 two or more of the required reserve assets, the amount of the 22 contribution to the pooled reserve account as disclosed on the 23 proposed budget shall not be less than that required to ensure 24 that the balance on hand at the beginning of the period for 25 which the budget will go into effect plus the projected annual 26 cash inflows over the remaining estimated useful life of all 27 of the assets that make up the reserve pool are equal to or 28 greater than the projected annual cash outflows over the 29 remaining estimated useful lives of all of the assets that 30 make up the reserve pool, based on the current reserve 31 analysis. The projected annual cash inflows may include Page 18 1 estimated earnings from investment of principal. The reserve 2 funding formula shall not include any type of balloon 3 payments. 4 (h) Reserve funds and any interest accruing thereon 5 shall remain in the reserve account or accounts and shall be 6 used only for authorized reserve expenditures unless their use 7 for other purposes is approved in advance by a majority vote 8 at a meeting at which a quorum is present. Prior to turnover 9 of control of an association by a developer to parcel owners, 10 the developer-controlled association shall not vote to use 11 reserves for purposes other than those for which they were 12 intended without the approval of a majority of all 13 nondeveloper voting interests voting in person or by limited 14 proxy at a duly called meeting of the association. 15 (7) FINANCIAL REPORTING.--Within 90 days after the end 16 of the fiscal year, or annually on the date provided in the 17 bylaws, the association shall prepare and complete, or 18 contract with a third party for the preparation and completion 19 of, a financial report for the preceding fiscal year. Within 20 21 days after the final financial report is completed by the 21 association or received from the third party, but not later 22 than 120 days after the end of the fiscal year or other date 23
as provided in the bylaws, the association shall 24
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26 forth in subsection (5), provide each member with a copy of 27 the annual financial report or a written notice that a copy of 28 the financial report is available upon request at no charge to 29 the member. Financial reports shall be prepared as follows: 30 (a) An association that meets the criteria of this 31 paragraph shall prepare or cause to be prepared a complete set Page 19 1 of financial statements in accordance with generally accepted 2 accounting principles as adopted by the Board of Accountancy. 3 The financial statements shall be based upon the association's 4 total annual revenues, as follows: 5 1. An association with total annual revenues of 6 $100,000 or more, but less than $200,000, shall prepare 7 compiled financial statements. 8 2. An association with total annual revenues of at 9 least $200,000, but less than $400,000, shall prepare reviewed 10 financial statements. 11 3. An association with total annual revenues of 12 $400,000 or more shall prepare audited financial statements. 13 (b)1. An association with total annual revenues of 14 less than $100,000 shall prepare a report of cash receipts and 15 expenditures. 16 2. An association in a community of fewer than 50 17 parcels, regardless of the association's annual revenues, may 18 prepare a report of cash receipts and expenditures in lieu of 19 financial statements required by paragraph (a) unless the 20 governing documents provide otherwise. 21 3. A report of cash receipts and disbursement must 22 disclose the amount of receipts by accounts and receipt 23 classifications and the amount of expenses by accounts and 24 expense classifications, including, but not limited to, the 25 following, as applicable: costs for security, professional, 26 and management fees and expenses; taxes; costs for recreation 27 facilities; expenses for refuse collection and utility 28 services; expenses for lawn care; costs for building 29 maintenance and repair; insurance costs; administration and 30 salary expenses; and reserves if maintained by the 31 association. Page 20 1 (c) If 20 percent of the parcel owners petition the 2 board for a level of financial reporting higher than that 3 required by this section, the association shall duly notice 4 and hold a meeting of members within 30 days of receipt of the 5 petition for the purpose of voting on raising the level of 6 reporting for that fiscal year. Upon approval of a majority of 7 the total voting interests of the parcel owners, the 8 association shall prepare or cause to be prepared, shall amend 9 the budget or adopt a special assessment to pay for the 10 financial report regardless of any provision to the contrary 11 in the governing documents, and shall provide within 90 days 12 of the meeting or the end of the fiscal year, whichever occurs 13 later: 14 1. Compiled, reviewed, or audited financial 15 statements, if the association is otherwise required to 16 prepare a report of cash receipts and expenditures; 17 2. Reviewed or audited financial statements, if the 18 association is otherwise required to prepare compiled 19 financial statements; or 20 3. Audited financial statements if the association is 21 otherwise required to prepare reviewed financial statements. 22 (d) If approved by a majority of the voting interests 23 present at a properly called meeting of the association, an 24 association may prepare or cause to be prepared: 25 1. A report of cash receipts and expenditures in lieu 26 of a compiled, reviewed, or audited financial statement; 27 2. A report of cash receipts and expenditures or a 28 compiled financial statement in lieu of a reviewed or audited 29 financial statement; or 30 31 Page 21 1 3. A report of cash receipts and expenditures, a 2 compiled financial statement, or a reviewed financial 3 statement in lieu of an audited financial statement. 4 Section 10. Subsection (2) of section 720.303, Florida 5 Statutes, as amended by section 2 of chapter 2004-345 and 6 section 15 of chapter 2004-353, Laws of Florida, is repealed. 7 Section 11. Section 720.3035, Florida Statutes, is 8 created to read: 9 720.3035 Architectural control covenants; parcel owner 10 improvements; rights and privileges.-- 11 (1) The authority of an association or any 12 architectural, construction improvement, or other such similar 13 committee of an association to review and approve plans and 14 specifications for the location, size, type, or appearance of 15 any structure or other improvement on a parcel, or to enforce 16 standards for the external appearance of any structure or 17 improvement located on a parcel, shall be permitted only to 18 the extent that the authority is specifically stated or 19 reasonably inferred as to such location, size, type, or 20 appearance in the declaration of covenants or other published 21 guidelines and standards authorized by the declaration of 22 covenants. 23 (2) If the declaration of covenants or other published 24 guidelines and standards authorized by the declaration of 25 covenants provides options for the use of material, the size 26 of the structure or improvement, the design of the structure 27 or improvement, or the location of the structure or 28 improvement on the parcel, neither the association nor any 29 architectural, construction improvement, or other such similar 30 committee of the association shall restrict the right of a 31 parcel owner to select from the options provided in the Page 22 1 declaration of covenants or other published guidelines and 2 standards authorized by the declaration of covenants. 3 (3) Unless otherwise specifically stated in the 4 declaration of covenants or other published guidelines and 5 standards authorized by the declaration of covenants, each 6 parcel shall be deemed to have only one front for purposes of 7 determining the required front setback even if the parcel is 8 bounded by a roadway or other easement on more than one side. 9 When the declaration of covenants or other published 10 guidelines and standards authorized by the declaration of 11 covenants do not provide for specific setback limitations, the 12 applicable county or municipal setback limitations shall 13 apply, and neither the association nor any architectural, 14 construction improvement, or other such similar committee of 15 the association shall enforce or attempt to enforce any 16 setback limitation that is inconsistent with the applicable 17 county or municipal standard or standards. 18 (4) Each parcel owner shall be entitled to the rights 19 and privileges set forth in the declaration of covenants or 20 other published guidelines and standards authorized by the 21 declaration of covenants concerning the architectural use of 22 the parcel, and the construction of permitted structures and 23 improvements on the parcel and such rights and privileges 24 shall not be unreasonably infringed upon or impaired by the 25 association or any architectural, construction improvement, or 26 other such similar committee of the association. If the 27 association or any architectural, construction improvement, or 28 other such similar committee of the association should 29 unreasonably, knowingly, and willfully infringe upon or impair 30 the rights and privileges set forth in the declaration of 31 covenants or other published guidelines and standards Page 23 1 authorized by the declaration of covenants, the adversely 2 affected parcel owner shall be entitled to recover damages 3 caused by such infringement or impairment, including any costs 4 and reasonable attorney's fees incurred in preserving or 5 restoring the rights and privileges of the parcel owner set 6 forth in the declaration of covenants or other published 7 guidelines and standards authorized by the declaration of 8 covenants. 9 (5) Neither the association nor any architectural, 10 construction improvement, or other such similar committee of 11 the association shall enforce any policy or restriction that 12 is inconsistent with the rights and privileges of a parcel 13 owner set forth in the declaration of covenants or other 14 published guidelines and standards authorized by the 15 declaration of covenants, whether uniformly applied or not. 16 Neither the association nor any architectural, construction 17 improvement, or other such similar committee of the 18 association may rely upon a policy or restriction that is 19 inconsistent with the declaration of covenants or other 20 published guidelines and standards authorized by the 21 declaration of covenants, whether uniformly applied or not, in 22 defense of any action taken in the name of or on behalf of the 23 association against a parcel owner. 24 Section 12. Subsection (1) of section 720.305, Florida 25 Statutes, is amended to read: 26 720.305 Obligations of members; remedies at law or in 27 equity; levy of fines and suspension of use rights; failure to 28 fill sufficient number of vacancies on board of directors to 29 constitute a quorum; appointment of receiver upon petition of 30 any member.-- 31 Page 24 1 (1) Each member and the member's tenants, guests, and 2 invitees, and each association, are governed by, and must 3 comply with, this chapter, the governing documents of the 4 community, and the rules of the association. Actions at law or 5 in equity, or both, to redress alleged failure or refusal to 6 comply with these provisions may be brought by the association 7 or by any member against: 8 (a) The association; 9 (b) A member; 10 (c) Any director or officer of an association who 11 willfully and knowingly fails to comply with these provisions; 12 and 13 (d) Any tenants, guests, or invitees occupying a 14 parcel or using the common areas. 15 16 The prevailing party in any such litigation is entitled to 17 recover reasonable attorney's fees and costs. A member 18 prevailing in an action between the association and the member 19 under this section, in addition to recovering his or her 20 reasonable attorney's fees, may recover additional amounts as 21 determined by the court to be necessary to reimburse the 22 member for his or her share of assessments levied by the 23 association to fund its expenses of the litigation. This 24 relief does not exclude other remedies provided by law. This 25 section does not deprive any person of any other available 26 right or remedy. 27 Section 13. Paragraph (c) of subsection (1) of section 28 720.306, Florida Statutes, is amended to read: 29 720.306 Meetings of members; voting and election 30 procedures; amendments.-- 31 (1) QUORUM; AMENDMENTS.-- Page 25 1 (c) Unless otherwise provided in the governing 2 documents as originally recorded or permitted by this chapter 3 or chapter 617, an amendment may not materially and adversely 4 alter the proportionate voting interest appurtenant to a 5 parcel or increase the proportion or percentage by which a 6 parcel shares in the common expenses of the association unless 7 the record parcel owner and all record owners of liens on the 8 parcels join in the execution of the amendment. For purposes 9 of this section, a change in quorum requirements is not an 10 alteration of voting interests. The merger or consolidation of 11 one or more associations under a plan of merger or 12 consolidation under chapter 607 or chapter 617 shall not be 13 considered a material or adverse alteration of the 14 proportionate voting interest appurtenant to a parcel. 15 Section 14. Paragraph (t) is added to subsection (3) 16 of section 720.307, Florida Statutes, to read: 17 720.307 Transition of association control in a 18 community.--With respect to homeowners' associations: 19 (3) At the time the members are entitled to elect at 20 least a majority of the board of directors of the homeowners' 21 association, the developer shall, at the developer's expense, 22 within no more than 90 days deliver the following documents to 23 the board: 24 (t) The financial records, including financial 25 statements of the association, and source documents from the 26 incorporation of the association through the date of turnover. 27 The records shall be audited by an independent certified 28 public accountant for the period from the incorporation of the 29 association or from the period covered by the last audit, if 30 an audit has been performed for each fiscal year since 31 incorporation. All financial statements shall be prepared in Page 26 1 accordance with generally accepted accounting principles and 2 shall be audited in accordance with generally accepted 3 auditing standards, as prescribed by the Board of Accountancy, 4 pursuant to chapter 473. The certified public accountant 5 performing the audit shall examine to the extent necessary 6 supporting documents and records, including the cash 7 disbursements and related paid invoices to determine if 8 expenditures were for association purposes and the billings, 9 cash receipts, and related records of the association to 10 determine that the developer was charged and paid the proper 11 amounts of assessments. This paragraph applies to associations 12 with a date of incorporation after December 31, 2007. 13 Section 15. Section 720.308, Florida Statutes, is 14 amended to read: 15 720.308 Assessments and charges.-- 16 (1) ASSESSMENTS.--For any community created after 17 October 1, 1995, the governing documents must describe the 18 manner in which expenses are shared and specify the member's 19 proportional share thereof. Assessments levied pursuant to the 20 annual budget or special assessment must be in the member's 21 proportional share of expenses as described in the governing 22 document, which share may be different among classes of 23 parcels based upon the state of development thereof, levels of 24 services received by the applicable members, or other relevant 25 factors. While the developer is in control of the homeowners' 26 association, it may be excused from payment of its share of 27 the operating expenses and assessments related to its parcels 28 for any period of time for which the developer has, in the 29 declaration, obligated itself to pay any operating expenses 30 incurred that exceed the assessments receivable from other 31 members and other income of the association. This section does Page 27 1 not apply to an association, no matter when created, if the 2 association is created in a community that is included in an 3 effective development-of-regional-impact development order as 4 of the effective date of this act, together with any approved 5 modifications thereto. 6 (2) GUARANTEES OF COMMON EXPENSES.-- 7 (a) Establishment of a guarantee.--If a guarantee of 8 the assessments of parcel owners is not included in the 9 purchase contracts or declaration, any agreement establishing 10 a guarantee shall only be effective upon the approval of a 11 majority of the voting interests of the members other than the 12 developer. Approval shall be expressed at a meeting of the 13 members voting in person or by limited proxy or by agreement 14 in writing without a meeting if provided in the bylaws. Such 15 guarantee must meet the requirements of this section. 16 (b) Guarantee period.--The period of time for the 17 guarantee shall be indicated by a specific beginning and 18 ending date or event. 19 1. The ending date or event shall be the same for all 20 of the members of an association, including members in 21 different phases of the development. 22 2. The guarantee may provide for different intervals 23 of time during a guarantee period with different dollar 24 amounts for each such interval. 25 3. The guarantee may provide that after the initial 26 stated period, the developer has an option to extend the 27 guarantee for one or more additional stated periods. The 28 extension of a guarantee is limited to extending the ending 29 date or event; therefore, the developer does not have the 30 option of changing the level of assessments guaranteed. 31 Page 28 1 (3) MAXIMUM LEVEL OF ASSESSMENTS.--The stated dollar 2 amount of the guarantee shall be an exact dollar amount for 3 each parcel identified in the declaration. Regardless of the 4 stated dollar amount of the guarantee, assessments charged to 5 a member shall not exceed the maximum obligation of the member 6 based on the total amount of the adopted budget and the 7 member's proportionate share of the expenses as described in 8 the governing documents. 9 (4) CASH FUNDING REQUIREMENTS DURING GUARANTEE.--The 10 cash payments required from the guarantor during the guarantee 11 period shall be determined as follows: 12 (a) If at any time during the guarantee period the 13 funds collected from member assessments at the guaranteed 14 level and other revenues collected by the association are not 15 sufficient to provide payment, on a timely basis, of all 16 assessments, including the full funding of the reserves unless 17 properly waived, the guarantor shall advance sufficient cash 18 to the association at the time such payments are due. 19 (b) Expenses incurred in the production of 20 nonassessment revenues, not in excess of the nonassessment 21 revenues, shall not be included in the assessments. If the 22 expenses attributable to nonassessment revenues exceed 23 nonassessment revenues, only the excess expenses must be 24 funded by the guarantor. Interest earned on the investment of 25 association funds may be used to pay the income tax expense 26 incurred as a result of the investment; such expense shall not 27 be charged to the guarantor; and the net investment income 28 shall be retained by the association. Each such 29 nonassessment-revenue-generating activity shall be considered 30 separately. Any portion of the parcel assessment which is 31 Page 29 1 budgeted for designated capital contributions of the 2 association shall not be used to pay operating expenses. 3 (5) CALCULATION OF GUARANTOR'S FINAL OBLIGATION.--The 4 guarantor's total financial obligation to the association at 5 the end of the guarantee period shall be determined on the 6 accrual basis using the following formula: the guarantor shall 7 pay any deficits that exceed the guaranteed amount, less the 8 total regular periodic assessments earned by the association 9 from the members other than the guarantor during the guarantee 10 period regardless of whether the actual level charged was less 11 than the maximum guaranteed amount. 12 (6) EXPENSES.--Expenses incurred in the production of 13 nonassessment revenues, not in excess of the nonassessment 14 revenues, shall not be included in the operating expenses. If 15 the expenses attributable to nonassessment revenues exceed 16 nonassessment revenues, only the excess expenses must be 17 funded by the guarantor. Interest earned on the investment of 18 association funds may be used to pay the income tax expense 19 incurred as a result of the investment; such expense shall not 20 be charged to the guarantor; and the net investment income 21 shall be retained by the association. Each such 22 nonassessment-revenue-generating activity shall be considered 23 separately. Any portion of the parcel assessment which is 24 budgeted for designated capital contributions of the 25 association shall not be used to pay operating expenses. 26 Section 16. Section 720.311, Florida Statutes, is 27 amended to read: 28 720.311 Dispute resolution.-- 29 (1) The Legislature finds that alternative dispute 30 resolution has made progress in reducing court dockets and 31 trials and in offering a more efficient, cost-effective option Page 30 1
to litigation. The filing of any petition for 2 arbitration or the serving of a demand for presuit mediation 3 as provided for in this section shall toll the applicable 4 statute of limitations. Any recall dispute filed with the 5 department pursuant to s. 720.303(10) shall be conducted by 6 the department in accordance with the provisions of ss. 7 718.112(2)(j) and 718.1255 and the rules adopted by the 8 division. In addition, the department shall conduct mandatory 9 binding arbitration of election disputes between a member and 10 an association pursuant to s. 718.1255 and rules adopted by 11 the division. Neither election disputes nor recall disputes 12 are eligible for presuit mediation; these disputes shall be 13 arbitrated by the department. At the conclusion of the 14 proceeding, the department shall charge the parties a fee in 15 an amount adequate to cover all costs and expenses incurred by 16 the department in conducting the proceeding. Initially, the 17 petitioner shall remit a filing fee of at least $200 to the 18 department. The fees paid to the department shall become a 19 recoverable cost in the arbitration proceeding, and the 20 prevailing party in an arbitration proceeding shall recover 21 its reasonable costs and attorney's fees in an amount found 22 reasonable by the arbitrator. The department shall adopt rules 23 to effectuate the purposes of this section. 24 (2)(a) Disputes between an association and a parcel 25 owner regarding use of or changes to the parcel or the common 26 areas and other covenant enforcement disputes, disputes 27 regarding amendments to the association documents, disputes 28 regarding meetings of the board and committees appointed by 29 the board, membership meetings not including election 30 meetings, and access to the official records of the 31
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2 aggrieved party before the dispute is filed in court. Presuit 3 mediation proceedings must be conducted in accordance with the 4 applicable Florida Rules of Civil Procedure, and these 5 proceedings are privileged and confidential to the same extent 6 as court-ordered mediation. Disputes subject to presuit 7 mediation under this section shall not include the collection 8 of any assessment, fine, or other financial obligation, 9 including attorney's fees and costs, claimed to be due or any 10 action to enforce a prior mediation settlement agreement 11 between the parties. Also, in any dispute subject to presuit 12 mediation under this section where emergency relief is 13 required, a motion for temporary injunctive relief may be 14 filed with the court without first complying with the presuit 15 mediation requirements of this section. After any issues 16 regarding emergency or temporary relief are resolved, the 17 court may either refer the parties to a mediation program 18 administered by the courts or require mediation under this 19 section. An arbitrator or judge may not consider any 20 information or evidence arising from the presuit mediation 21 proceeding except in a proceeding to impose sanctions for 22 failure to attend a presuit mediation session or to enforce a 23 mediated settlement agreement. Persons who are not parties to 24 the dispute may not attend the presuit mediation conference 25 without the consent of all parties, except for counsel for the 26 parties and a corporate representative designated by the 27 association. When mediation is attended by a quorum of the 28 board, such mediation is not a board meeting for purposes of 29 notice and participation set forth in s. 720.303. An aggrieved 30 party shall serve on the responding party a written demand to 31 Page 32 1 participate in presuit mediation in substantially the 2 following form: 3 4 STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION 5 6 The alleged aggrieved party,__________________, 7 hereby demands that _________________, as the 8 responding party, engage in mandatory presuit 9 mediation in connection with the following 10 disputes, which by statute are of a type that 11 are subject to presuit mediation: 12 13 (List specific nature of the dispute or 14 disputes to be mediated and the authority 15 supporting a finding of a violation as to each 16 dispute.) 17 18 Pursuant to section 720.311, Florida Statutes, 19 this demand to resolve the dispute through 20 presuit mediation is required before a lawsuit 21 can be filed concerning the dispute. Pursuant 22 to the statute, the parties are required to 23 engage in presuit mediation with a neutral 24 third-party mediator in order to attempt to 25 resolve this dispute without court action, and 26 the aggrieved party demands that you likewise 27 agree to this process. If you fail to 28 participate in the mediation process, suit may 29 be brought against you without further warning. 30 31 Page 33 1 The process of mediation involves a supervised 2 negotiation process in which a trained, neutral 3 third-party mediator meets with both parties 4 and assists them in exploring possible 5 opportunities for resolving part or all of the 6 dispute. By agreeing to participate in presuit 7 mediation, you are not bound in any way to 8 change your position. Furthermore, the mediator 9 has no authority to make any decisions in this 10 matter or to determine who is right or wrong 11 and merely acts as a facilitator to ensure that 12 each party understands the position of the 13 other party and that all options for reasonable 14 settlement are fully explored. 15 16 If an agreement is reached, it shall be reduced 17 to writing and becomes a binding and 18 enforceable commitment of the parties. A 19 resolution of one or more disputes in this 20 fashion avoids the need to litigate these 21 issues in court. The failure to reach an 22 agreement, or the failure of a party to 23 participate in the process, results in the 24 mediator declaring an impasse in the mediation, 25 after which the aggrieved party may proceed to 26 court on all outstanding, unsettled disputes. 27 If you have failed or refused to participate in 28 the entire mediation process, you will not be 29 entitled to recover attorney's fees, even if 30 you prevail. 31 Page 34 1 The aggrieved party has selected and hereby 2 lists five certified mediators who we believe 3 to be neutral and qualified to mediate the 4 dispute. You have the right to select any one 5 of these mediators. The fact that one party may 6 be familiar with one or more of the listed 7 mediators does not mean that the mediator 8 cannot act as a neutral and impartial 9 facilitator. Any mediator who cannot act in 10 this capacity is required ethically to decline 11 to accept engagement. The mediators that we 12 suggest, and their current hourly rates, are as 13 follows: 14 15 (List the names, addresses, telephone numbers, 16 and hourly rates of the mediators. Other 17 pertinent information about the background of 18 the mediators may be included as an 19 attachment.) 20 21 You may contact the offices of these mediators 22 to confirm that the listed mediators will be 23 neutral and will not show any favoritism toward 24 either party. The Florida Supreme Court can 25 provide you a list of certified mediators. 26 27 Unless otherwise agreed by the parties, section 28 720.311(2)(b), Florida Statutes, requires that 29 the parties share the costs of presuit 30 mediation equally, including the fee charged by 31 the mediator. An average mediation may require Page 35 1 three to four hours of the mediator's time, 2 including some preparation time, and the 3 parties would need to share equally the 4 mediator's fees as well as their own attorney's 5 fees if they choose to employ an attorney in 6 connection with the mediation. However, use of 7 an attorney is not required and is at the 8 option of each party. The mediators may require 9 the advance payment of some or all of the 10 anticipated fees. The aggrieved party hereby 11 agrees to pay or prepay one-half of the 12 mediator's estimated fees and to forward this 13 amount or such other reasonable advance 14 deposits as the mediator requires for this 15 purpose. Any funds deposited will be returned 16 to you if these are in excess of your share of 17 the fees incurred. 18 19 To begin your participation in presuit 20 mediation to try to resolve the dispute and 21 avoid further legal action, please sign below 22 and clearly indicate which mediator is 23 acceptable to you. We will then ask the 24 mediator to schedule a mutually convenient time 25 and place for the mediation conference to be 26 held. The mediation conference must be held 27 within ninety (90) days of this date, unless 28 extended by mutual written agreement. In the 29 event that you fail to respond within 20 days 30 from the date of this letter, or if you fail to 31 agree to at least one of the mediators that we Page 36 1 have suggested or to pay or prepay to the 2 mediator one-half of the costs involved, the 3 aggrieved party will be authorized to proceed 4 with the filing of a lawsuit against you 5 without further notice and may seek an award of 6 attorney's fees or costs incurred in attempting 7 to obtain mediation. 8 9 Therefore, please give this matter your 10 immediate attention. By law, your response must 11 be mailed by certified mail, return receipt 12 requested, and by first-class mail to the 13 address shown on this demand. 14 15 _____________________ 16 _____________________ 17 18 RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR 19 AGREEMENT TO THAT CHOICE. 20 21 AGREEMENT TO MEDIATE 22 23 The undersigned hereby agrees to participate in 24 presuit mediation and agrees to attend a 25 mediation conducted by the following mediator 26 or mediators who are listed above as someone 27 who would be acceptable to mediate this 28 dispute: 29 30 (List acceptable mediator or mediators.) 31 Page 37 1 I/we further agree to pay or prepay one-half of 2 the mediator's fees and to forward such advance 3 deposits as the mediator may require for this 4 purpose. 5 6 _______________________ 7 Signature of responding party #1 8 9 _______________________ 10 Telephone contact information 11 12 _______________________ 13 Signature and telephone contact information of 14 responding party #2 (if applicable)(if property 15 is owned by more than one person, all owners 16 must sign) 17 18 (b) Service of the statutory demand to participate in 19 presuit mediation shall be effected by sending a letter in 20 substantial conformity with the above form by certified mail, 21 return receipt requested, with an additional copy being sent 22 by regular first-class mail, to the address of the responding 23 party as it last appears on the books and records of the 24 association. The responding party has 20 days from the date of 25 the mailing of the statutory demand to serve a response to the 26 aggrieved party in writing. The response shall be served by 27 certified mail, return receipt requested, with an additional 28 copy being sent by regular first-class mail, to the address 29 shown on the statutory demand. Notwithstanding the foregoing, 30 once the parties have agreed on a mediator, the mediator may 31 reschedule the mediation for a date and time mutually Page 38 1
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5 shall share the costs of presuit mediation equally, including 6 the fee charged by the mediator, if any, unless the parties 7 agree otherwise, and the mediator may require advance payment 8 of its reasonable fees and costs. The failure of any party to 9 respond to a demand or response, to agree upon a mediator, to 10 make payment of fees and costs within the time established by 11 the mediator, or to appear for a scheduled mediation session 12 without the approval of the mediator, shall constitute the 13 failure or refusal to participate in the mediation process and 14 shall operate as an impasse in the presuit mediation by such 15 party, entitling the other party to proceed in court and to 16 seek an award of the costs and fees associated with the 17 mediation. Additionally, notwithstanding the provisions of any 18 other law or document, persons who fail or refuse to 19 participate in the entire mediation process may not recover 20 attorney's fees and costs in subsequent litigation relating to 21 the dispute. If any presuit mediation session cannot be 22 scheduled and conducted within 90 days after the offer to 23 participate in mediation was filed, an impasse shall be deemed 24 to have occurred unless both parties agree to extend this 25
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(c) 6 (a) is not successful in resolving all issues between the 7 parties, the parties may file the unresolved dispute in a 8 court of competent jurisdiction or elect to enter into binding 9 or nonbinding arbitration pursuant to the procedures set forth 10 in s. 718.1255 and rules adopted by the division, with the 11 arbitration proceeding to be conducted by a department 12 arbitrator or by a private arbitrator certified by the 13 department. If all parties do not agree to arbitration 14 proceedings following an unsuccessful presuit mediation, any 15 party may file the dispute in court. A final order resulting 16 from nonbinding arbitration is final and enforceable in the 17 courts if a complaint for trial de novo is not filed in a 18 court of competent jurisdiction within 30 days after entry of 19 the order. As to any issue or dispute that is not resolved at 20 presuit mediation, and as to any issue that is settled at 21 presuit mediation but is thereafter subject to an action 22 seeking enforcement of the mediation settlement, the 23 prevailing party in any subsequent arbitration or litigation 24 proceeding shall be entitled to seek recovery of all costs and 25 attorney's fees incurred in the presuit mediation process. 26
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12 Florida Supreme Court. Settlement agreements resulting from 13 mediation shall not have precedential value in proceedings 14 involving parties other than those participating in the 15 mediation to support either a claim or defense in other 16
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(e) 25 this subsection may be used by a Florida corporation 26 responsible for the operation of a community in which the 27 voting members are parcel owners or their representatives, in 28 which membership in the corporation is not a mandatory 29 condition of parcel ownership, or which is not authorized to 30 impose an assessment that may become a lien on the parcel. 31 Page 41 1
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17 Section 17. Except as otherwise expressly provided in 18 this act, this act shall take effect July 1, 2007. CODING:
Words SEE ORIGINALLY FILED BILL S 902 |
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