S2816
GENERAL BILL by Villalobos ( H 1373, Compare CS/H 0433, CS/S 0902)
Community Associations [EPCC]; provides disclosure requirements
for certain contracts for initial sale of parcel of real property & each
contract for initial sale of residential unit; requires notice of proposed
amendments to be provided to unit owners; authorizes board to install
hurricane protection that complies with applicable building
code; revises powers & duties of homeowners' associations, etc. Amends
FS. EFFECTIVE DATE: 07/01/2007.
03/05/07 SENATE Filed
03/20/07 SENATE Introduced, referred to Regulated Industries; Community
Affairs;
Judiciary; General Government Appropriations
-SJ
00196
04/11/07 SENATE On Committee agenda-- Regulated Industries, 04/16/07, 1:30
pm,
110-S
REGULATED
INDUSTRIES -- COMMITTEE SUBSTITUTE S 2816
1 |
A bill to be entitled |
2 |
An act relating to community
associations; amending s. |
3 |
190.048, F.S.; providing disclosure
requirements for |
4 |
certain contracts for the initial sale
of a parcel of real |
5 |
property and each contract for the
initial sale of a |
6 |
residential unit; amending s. 718.104,
F.S.; revising |
7 |
required contents of a condominium
declaration; amending |
8 |
s. 718.110, F.S.; requiring notice of
proposed amendments |
9 |
to be provided to unit owners;
amending s. 718.111, F.S.; |
10 |
providing requirements for condominium
associations to |
11 |
access units for specified purposes;
requiring official |
12 |
records of the association to be made
available at certain |
13 |
locations; providing that certain
records shall not be |
14 |
accessible to unit owners; removing
the requirement that |
15 |
the association's annual financial
report be provided only |
16 |
to unit owners providing a written
request for the report; |
17 |
restricting a condominium association
from waiving a |
18 |
financial report for more than 2
years; providing duties |
19 |
for condominium boards of
administration in the event of |
20 |
certain casualties; providing that
certain assessments may |
21 |
be made against unit owners under
certain conditions; |
22 |
amending s. 718.112, F.S.; authorizing
the board or |
23 |
membership to determine the
composition of the board of |
24 |
administration under certain
circumstances; requiring |
25 |
members of the board of administration
to be unit owners, |
26 |
absent provisions indicating board
member requirements; |
27 |
requiring the board to respond to
certain inquiries by |
28 |
certified mail, return receipt
requested; removing a |
29 |
provision allowing a condominium
association to only |
30 |
respond once every 30 days to unit
owner inquiries; |
31 |
providing board of administration and
unit owners' meeting |
32 |
requirements; providing that no action
shall be taken or |
33 |
resolution made without an open
meeting of the board; |
34 |
requiring the board to address agenda
items proposed by a |
35 |
petition of 20 percent of the unit
owners; revising notice |
36 |
procedures; revising the terms of
office and reelection of |
37 |
the members of a condominium
association board; providing |
38 |
that certain persons providing notice
of a meeting must |
39 |
provide an affidavit affirming that
the notices were |
40 |
delivered; authorizing the
association's representative to |
41 |
provide certain notices; removing a
provision allowing an |
42 |
association to print or duplicate
certain information |
43 |
sheets on both sides of the paper;
providing for the |
44 |
securing of ballots; revising
procedures relating to the |
45 |
filling of a vacancy on the board;
removing a provision |
46 |
allowing an association to provide for
different voting |
47 |
and election procedures in its bylaws;
providing unit |
48 |
owners with the right to have items
placed on the agenda |
49 |
of the annual meeting and voted upon
under certain |
50 |
conditions; requiring the association
to prepare an annual |
51 |
budget of estimated revenues and
expenses; requiring the |
52 |
budget to include reserve accounts for
certain purposes; |
53 |
requiring certain ballot statements to
contain certain |
54 |
statements; requiring a vote to
provide for no reserves or |
55 |
percentage of reserves to be made at
certain times; |
56 |
authorizing the association to use
reserve funds for |
57 |
nonscheduled purposes under certain
conditions; |
58 |
prohibiting the board from applying
for or accepting |
59 |
certain loans or lines of credit;
requiring common |
60 |
expenses to be paid by the developer
during a specified |
61 |
time; requiring that assessments be
made against units on |
62 |
a quarter-annual or more frequent
basis; providing that |
63 |
certain provisions shall not preclude
the right of an |
64 |
association to accelerate assessments
of certain owners |
65 |
delinquent in payment of common
expenses; providing that |
66 |
accelerated assessments shall be due
and payable after the |
67 |
claim of lien is filed; revising
assessment requirements; |
68 |
revising procedures relating to the
recall of a board |
69 |
member; deleting the requirement that
the bylaws include |
70 |
an element for mandatory nonbinding
arbitration; amending |
71 |
s. 718.113, F.S.; requiring boards of
administration to |
72 |
adopt or restate hurricane shutter
specifications yearly |
73 |
at the annual meeting; authorizing the
board to install |
74 |
hurricane protection that complies
with the applicable |
75 |
building code; requiring the board to
have the condominium |
76 |
buildings periodically inspected for
structural and |
77 |
electrical soundness by a professional
engineer or |
78 |
professional architect registered in
the state; requiring |
79 |
the inspector to provide a report to
the association; |
80 |
prohibiting the board from impairing
certain |
81 |
constitutional rights of unit owners;
prohibiting the |
82 |
board from prohibiting the display of
certain religiously |
83 |
mandated objects on the front-door
area of a unit; |
84 |
amending s. 718.115, F.S.; providing
that a bulk contract |
85 |
for basic service may be deemed a
common expense; creating |
86 |
s. 718.1123, F.S.; requiring any
complaint of abuse filed |
87 |
with the Division of Florida Land
Sales, Condominiums, |
88 |
Homeowners' Associations, and Mobile
Homes to be |
89 |
immediately investigated by the
division; requiring the |
90 |
division to institute enforcement
proceedings under |
91 |
certain circumstances; defining the
term "abuse"; creating |
92 |
s. 718.1224, F.S.; prohibiting certain
lawsuits arising |
93 |
from unit owners' appearances and
presentations before a |
94 |
governmental entity; providing a
definition; providing for |
95 |
award of damages and attorney's fees;
amending s. |
96 |
718.1255, F.S.; requiring the division
to promptly refer |
97 |
certain cases to mediation; amending
s. 718.302, F.S.; |
98 |
conforming provisions; amending s.
718.3025, F.S.; |
99 |
providing requirements for certain
contracts between a |
100 |
party contracting to provide
maintenance or management |
101 |
services and an association; amending
s. 718.3026, F.S.; |
102 |
providing that certain contracts
between a service |
103 |
provider and an association shall not
be for a term in |
104 |
excess of 3 years and shall not
contain an automatic |
105 |
renewal clause; requiring that certain
contracts for |
106 |
construction have approval from an
attorney hired by the |
107 |
association; amending s. 718.303, F.S.;
requiring hearings |
108 |
to levy fines to be held before a
committee of unit owners |
109 |
who are not members of the board;
requiring that persons |
110 |
subject to certain actions be notified
of their violations |
111 |
in a certain manner; providing a
timeframe in which a |
112 |
person must respond; authorizing the
budget to include |
113 |
reserve accounts for capital
expenditures and deferred |
114 |
maintenance; providing a formula for
calculating the |
115 |
amount to be reserved; authorizing the
association to |
116 |
adjust replacement reserve assessments
annually; |
117 |
authorizing the developer to vote to
waive the reserves or |
118 |
reduce the funding of reserves for a
certain period; |
119 |
revising provisions relating to
financial reporting; |
120 |
revising time periods in which the
association must |
121 |
complete its reporting; amending s.
718.501, F.S.; |
122 |
requiring the division to prepare and
disseminate a |
123 |
prospectus and other information for
use by owners, |
124 |
purchasers, lessees, and developers of
residential |
125 |
condominiums; providing that the board
member training |
126 |
provided by the division shall be
provided in conjunction |
127 |
with recommendations by the ombudsman;
providing powers |
128 |
and duties of the division with
respect to association |
129 |
violations; requiring associations to
provide certain |
130 |
notice and to participate in certain
educational training; |
131 |
providing a fine for failure to
comply; requiring certain |
132 |
fees deposited by the division to be
allocated and |
133 |
transferred to the Office of the
Condominium Ombudsman; |
134 |
amending s. 718.5011, F.S.;
restricting location of the |
135 |
Office of the Condominium Ombudsman;
providing that the |
136 |
ombudsman shall exercise his or her
policymaking and other |
137 |
functions independently of the
Department of Business and |
138 |
Professional Regulation and without
approval or control of |
139 |
the department; requiring the
department to render |
140 |
administrative support for certain
matters; requiring that |
141 |
revenues collected by the department
for the Office of the |
142 |
Condominium Ombudsman be deposited in
a separate fund or |
143 |
account under specified conditions;
removing provisions |
144 |
prohibiting the ombudsman and staff
from engaging in any |
145 |
other profession, serving as a
representative or employee |
146 |
of any political party, or receiving
remuneration for |
147 |
activities on behalf of political
candidates; removing |
148 |
provisions prohibiting the ombudsman
and staff from |
149 |
seeking public office unless resigned
from the Office of |
150 |
the Condominium Ombudsman; amending s.
718.5012, F.S.; |
151 |
removing requirements that the
ombudsman develop certain |
152 |
policies and procedures; providing
additional powers and |
153 |
duties of the ombudsman; providing
that the division shall |
154 |
process the ombudsman's
recommendations and petitions in |
155 |
an expedited manner and defer to his
or her findings; |
156 |
authorizing the ombudsman to order
meetings between |
157 |
certain parties; authorizing the
ombudsman to make |
158 |
recommendations to the division to
pursue enforcement |
159 |
action in circuit court on behalf of a
class of unit |
160 |
owners, lessees, or purchasers for
certain purposes; |
161 |
authorizing the ombudsman to order
that any aspect of an |
162 |
association election be conducted by
an election monitor; |
163 |
authorizing the ombudsman to order an
association to |
164 |
implement certain remedies;
authorizing the ombudsman to |
165 |
order certain persons to cease and
desist from unlawful |
166 |
practices; amending s. 718.504, F.S.;
revising and |
167 |
providing information to be contained
in the condominium |
168 |
prospectus or offering circular;
amending s. 719.1055, |
169 |
F.S.; providing application of
amendments restricting |
170 |
cooperative owners' rights relating to
the rental of |
171 |
units; amending s. 720.301, F.S.;
revising and providing |
172 |
definitions; amending s. 720.302, F.S.;
revising the |
173 |
purpose, scope, and application of the
chapter; providing |
174 |
legislative findings and intent;
requiring the office to |
175 |
establish a process for collecting an
annual fee for |
176 |
association members; requiring
governing documents |
177 |
transferred from the developer to
parcel owners to be |
178 |
approved by a two-thirds vote;
amending s. 720.303, F.S.; |
179 |
revising powers and duties of
homeowners' associations; |
180 |
prohibiting officers and directors
from taking any action |
181 |
inconsistent with the declaration of
covenants; revising |
182 |
requirements authorizing the
association to participate in |
183 |
litigation; creating liability for
officers and directors |
184 |
under certain circumstances; providing
criteria for |
185 |
setback limits; revising procedures
relating to board |
186 |
meetings; providing for notice of
board meetings and the |
187 |
agenda; revising voting procedures;
requiring board |
188 |
director votes to be recorded in the
minutes; requiring |
189 |
the association to maintain certain
documents; revising |
190 |
procedures relating to the inspection
and copying of |
191 |
records; authorizing a fee; revising
procedures used in |
192 |
preparing the association's annual
financial report; |
193 |
prohibiting developers in control of a
homeowners' |
194 |
association from commingling
association funds with funds |
195 |
of a corporation for profit created by
the developer; |
196 |
revising board director recall
procedures, including |
197 |
voting procedures of such recalls;
amending s. 720.304, |
198 |
F.S.; authorizing homeowners to
display certain flags; |
199 |
providing criteria for the display of
signs in certain |
200 |
areas; prohibiting associations from
abridging the |
201 |
constitutional rights of homeowners
relating to use of |
202 |
common areas; providing penalties;
amending s. 720.305, |
203 |
F.S.; revising remedies at law or in
equity against |
204 |
certain association officers or
directors; amending s. |
205 |
720.3055, F.S.; removing a requirement
that governing |
206 |
documents be in writing; providing
that certain contracts |
207 |
are subject to competitive bid;
amending s. 720.306, F.S.; |
208 |
deleting provisions relating to quorum
at a meeting of |
209 |
members; revising provisions relating
to the voting on an |
210 |
amendment of governing documents;
requiring amendments to |
211 |
be submitted in their entirety;
providing a timeframe for |
212 |
registered covenants and restrictions
to be in a certain |
213 |
form; removing authority of governing
documents to provide |
214 |
for the election of directors, to
provide for special |
215 |
meetings, and to require notice of the
annual meeting; |
216 |
requiring an annual meeting notice to
include an agenda; |
217 |
providing members with the right to
speak about any item |
218 |
on the agenda; authorizing members to
speak at least once |
219 |
on each agenda item for a specified
time; authorizing vote |
220 |
by limited proxy; providing guidelines
for elections; |
221 |
requiring members to be provided with
certain information |
222 |
regarding the elections; providing
voting requirements; |
223 |
authorizing directors to fill
vacancies; authorizing a |
224 |
specified amount of voting interests
to petition the |
225 |
division to appoint an election
monitor; providing |
226 |
eligibility requirements for
candidates; authorizing any |
227 |
parcel owner to electronically record
any meeting of the |
228 |
board or members; providing that the
directors may adopt |
229 |
certain rules governing such recording
but may not |
230 |
restrict an owner's right to record
the meeting; amending |
231 |
s. 720.307, F.S., relating to
transition of association |
232 |
control in a community; revising
criteria with respect to |
233 |
election of members to the board of
directors; requiring |
234 |
certain developers and owners to
convey title to all |
235 |
common areas prior to turnover;
revising requirements for |
236 |
turnover of documents; requiring
certain information to be |
237 |
included in the records and for the
records to be prepared |
238 |
in a specified manner; revising
application to include |
239 |
certain associations; creating s.
720.3071, F.S.; |
240 |
requiring training of homeowners'
association board |
241 |
members; amending s. 720.3075, F.S.;
prohibiting |
242 |
association documents at the time of
transition from |
243 |
preventing associations from
functioning; prohibiting |
244 |
association documents at the time of
transition from |
245 |
restricting an association's ability
to amend association |
246 |
documents; prohibiting associations
from restricting the |
247 |
use of hurricane shutters in certain
circumstances; |
248 |
providing guidelines for the use of
hurricane shutters; |
249 |
authorizing associations to enforce
certain hurricane |
250 |
shutter restrictions; amending s.
720.3086, F.S.; |
251 |
requiring the annual financial report
to be mailed to |
252 |
certain parcel owners; providing for
the exclusive use of |
253 |
certain properties; amending s.
720.401, F.S.; requiring |
254 |
certain documents to be provided to
prospective |
255 |
purchasers; revising information to be
contained in a |
256 |
disclosure summary; creating s.
720.501, F.S.; providing |
257 |
powers and duties of the Division of
Florida Land Sales, |
258 |
Condominiums, Homeowners'
Associations, and Mobile Homes; |
259 |
authorizing the division to conduct
certain |
260 |
investigations; authorizing certain
officers and employees |
261 |
to administer oaths or affirmations
and to subpoena |
262 |
witnesses and compel their attendance;
authorizing the |
263 |
division to issue certain orders;
authorizing the division |
264 |
to bring certain actions in circuit
court; authorizing the |
265 |
division to impose civil penalties;
authorizing the |
266 |
division to prepare and disseminate a
prospectus; |
267 |
requiring the division to provide
associations with |
268 |
certain documents; requiring the
division to provide |
269 |
training programs for association
board members and lot |
270 |
owners; requiring the division to
develop a mediation |
271 |
certification program; requiring
homeowners' associations |
272 |
to pay an annual fee to the division;
creating s. 720.505, |
273 |
F.S.; creating the Advisory Council on
Mandated |
274 |
Properties; providing for appointments
by the President of |
275 |
the Senate, the Speaker of the House
of Representatives, |
276 |
and the Governor; providing limited
compensation and other |
277 |
terms of service; specifying
functions; amending s. |
278 |
20.165, F.S.; redesignating the
Division of Florida Land |
279 |
Sales, Condominiums, and Mobile Homes
as the Division of |
280 |
Florida Land Sales, Condominiums,
Homeowners' |
281 |
Associations, and Mobile Homes;
amending ss. 73.073, |
282 |
190.009, 190.0485, 192.037, 213.053,
215.20, 326.002, |
283 |
326.006, 380.0651, 455.116, 475.455,
498.005, 498.019, |
284 |
498.047, 498.049, 509.512, 559.935,
718.103, 718.105, |
285 |
718.502, 718.504, 718.508, 718.509,
718.608, 719.103, |
286 |
719.1255, 719.501, 719.502, 719.504,
719.508, 719.608, |
287 |
721.05, 721.07, 721.08, 721.26,
721.28, 721.301, 723.003, |
288 |
723.006, 723.009, and 723.0611, F.S.;
conforming |
289 |
provisions; requiring condominium
developers to pay |
290 |
monthly maintenance fees on unsold
condominium units that |
291 |
are rented; providing an effective
date. |
292 |
|
293 |
Be It Enacted by the Legislature of
the State of Florida: |
294 |
|
295 |
Section
1. Subsection (2) of section 20.165, Florida |
296 |
Statutes, is amended to read: |
297 |
20.165 Department
of Business and Professional |
298 |
Regulation.--There is created a
Department of Business and |
299 |
Professional Regulation. |
300 |
(2) The
following divisions of the Department of Business |
301 |
and Professional Regulation are
established: |
302 |
(a) Division
of Administration. |
303 |
(b) Division
of Alcoholic Beverages and Tobacco. |
304 |
(c) Division
of Certified Public Accounting. |
305 |
1. The
director of the division shall be appointed by the |
306 |
secretary of the department, subject
to approval by a majority |
307 |
of the Board of Accountancy. |
308 |
2. The
offices of the division shall be located in |
309 |
Gainesville. |
310 |
(d) Division
of Florida Land Sales, Condominiums, |
311 |
Homeowners'
Associations, and Mobile Homes. |
312 |
(e) Division
of Hotels and Restaurants. |
313 |
(f) Division
of Mandated Properties. |
314 |
(g)(f) Division
of Pari-mutuel Wagering. |
315 |
(h)(g) Division
of Professions. |
316 |
(i)(h) Division
of Real Estate. |
317 |
1. The
director of the division shall be appointed by the |
318 |
secretary of the department, subject
to approval by a majority |
319 |
of the Florida Real Estate Commission. |
320 |
2. The
offices of the division shall be located in |
321 |
Orlando. |
322 |
(j)(i) Division
of Regulation. |
323 |
(k)(j) Division
of Technology, Licensure, and Testing. |
324 |
Section
2. Subsection (2) of section 73.073, Florida |
325 |
Statutes, is amended to read: |
326 |
73.073 Eminent
domain procedure with respect to |
327 |
condominium common elements.-- |
328 |
(2) With
respect to the exercise of eminent domain or a |
329 |
negotiated sale for the purchase or
taking of a portion of the |
330 |
common elements of a condominium, the
condemning authority shall |
331 |
have the responsibility of contacting
the condominium |
332 |
association and acquiring the most
recent rolls indicating the |
333 |
names of the unit owners or contacting
the appropriate taxing |
334 |
authority to obtain the names of the
owners of record on the tax |
335 |
rolls. Notification shall thereupon be
sent by certified mail, |
336 |
return receipt requested, to the unit
owners of record of the |
337 |
condominium units by the condemning
authority indicating the |
338 |
intent to purchase or take the
required property and requesting |
339 |
a response from the unit owner. The
condemning authority shall |
340 |
be responsible for the expense of
sending notification pursuant |
341 |
to this section. Such notice shall, at
a minimum, include: |
342 |
(a) The
name and address of the condemning authority. |
343 |
(b) A
written or visual description of the property. |
344 |
(c) The
public purpose for which the property is needed. |
345 |
(d) The
appraisal value of the property. |
346 |
(e) A
clear, concise statement relating to the unit |
347 |
owner's right to object to the taking
or appraisal value and the |
348 |
procedures and effects of exercising
that right. |
349 |
(f) A
clear, concise statement relating to the power of |
350 |
the association to convey the property
on behalf of the unit |
351 |
owners if no objection to the taking
or appraisal value is |
352 |
raised, and the effects of this
alternative on the unit owner. |
353 |
|
354 |
The Division of Florida Land Sales,
Condominiums, Homeowners' |
355 |
Associations,
and Mobile Homes of the Department of Business and |
356 |
Professional Regulation may adopt, by
rule, a standard form for |
357 |
such notice and may require the notice
to include any additional |
358 |
relevant information. |
359 |
Section
3. Subsection (2) of section 190.009, Florida |
360 |
Statutes, is amended to read: |
361 |
190.009 Disclosure
of public financing.-- |
362 |
(2) The
Division of Florida Land Sales, Condominiums, |
363 |
Homeowners'
Associations, and Mobile Homes of the Department of |
364 |
Business and Professional Regulation
shall ensure that |
365 |
disclosures made by developers
pursuant to chapter 498 meet the |
366 |
requirements of subsection (1). |
367 |
Section
4. Section 190.048, Florida Statutes, is amended |
368 |
to read: |
369 |
190.048 Sale
of real estate within a district; required |
370 |
disclosure to purchaser.-- |
371 |
(1)(a) Subsequent
to the establishment of a district under |
372 |
this chapter, each contract for the
initial sale of a parcel of |
373 |
real property and each contract for
the initial sale of a |
374 |
residential unit within the district
shall include as a separate |
375 |
addendum to
the contract, immediately prior to the space |
376 |
reserved in the contract for the
signature of the purchaser, the |
377 |
following disclosure statement in
boldfaced and conspicuous type |
378 |
which is larger than the type in the
remaining text of the |
379 |
contract: "THE (Name
of District) COMMUNITY DEVELOPMENT |
380 |
DISTRICT MAY IMPOSE AND LEVY TAXES OR
ASSESSMENTS, OR BOTH TAXES |
381 |
AND ASSESSMENTS, ON THIS PROPERTY.
THESE TAXES AND ASSESSMENTS |
382 |
PAY THE CONSTRUCTION, OPERATION, AND
MAINTENANCE COSTS OF |
383 |
CERTAIN PUBLIC FACILITIES AND SERVICES
OF THE DISTRICT AND ARE |
384 |
SET ANNUALLY BY THE GOVERNING BOARD OF
THE DISTRICT. THESE TAXES |
385 |
AND ASSESSMENTS ARE IN ADDITION TO
COUNTY AND OTHER LOCAL |
386 |
GOVERNMENTAL TAXES AND ASSESSMENTS AND
ALL OTHER TAXES AND |
387 |
ASSESSMENTS PROVIDED FOR BY LAW." |
388 |
(b) The
disclosure statement in paragraph (a) shall also |
389 |
fully disclose all
covenants and restrictions to which the |
390 |
property is
subject. This addendum shall disclose any existing |
391 |
agreement between a
developer and other party that obligates the |
392 |
purchaser of the
unit to additional taxes, assessments, or fees |
393 |
within 10 years
following the sale of the unit. Such disclosure |
394 |
shall provide a
reasonable estimate of the first 3 years for |
395 |
each tax,
assessment, or fee. Such disclosure shall be provided |
396 |
to the purchaser
within 10 days after the execution of the sales |
397 |
contract;
otherwise, the contract may be voided at the election |
398 |
of the purchaser
and any deposits shall be returned in full. |
399 |
However, such
disclosure may be provided to the purchaser later |
400 |
than 10 days after
the execution of the sales contract if the |
401 |
closing date has
been extended by an additional 10 days. |
402 |
(2)(a) Failure
to provide the disclosure statement as |
403 |
required in
subsection (1) within 10 days shall constitute a |
404 |
rebuttable
presumption of willful noncompliance with subsection |
405 |
(1) and shall
result in a fine of $2,500 for each violation, up |
406 |
to a maximum of
$10,000, payable to the prospective buyer, and |
407 |
shall include
reasonable attorney's fees and collection costs, |
408 |
due 30 days after
the execution or voiding of the sales |
409 |
contract. |
410 |
(b) The
developer and sales agent shall submit an annual |
411 |
report to the
Department of Community Affairs that certifies |
412 |
compliance with
this section and payment of any related fines |
413 |
and criminal
penalties for such noncompliance as may be passed |
414 |
by the Legislature.
Failure by the developer or sales agent to |
415 |
provide an annual
report shall result in a $50,000 fine payable |
416 |
to the department. |
417 |
Section
5. Section 190.0485, Florida Statutes, is amended |
418 |
to read: |
419 |
190.0485 Notice
of establishment.--Within 30 days after |
420 |
the effective date of a rule or
ordinance establishing a |
421 |
community development district under
this act, the district |
422 |
shall cause to be recorded in the
property records in the county |
423 |
in which it is located a "Notice
of Establishment of the |
424 |
__________ Community Development
District." The notice shall, at |
425 |
a minimum, include the legal
description of the district and a |
426 |
copy of the disclosure statement
specified in s. 190.048(1)(a). |
427 |
Section
6. Paragraph (e) of subsection (6) of section |
428 |
192.037, Florida Statutes, is amended
to read: |
429 |
192.037 Fee
timeshare real property; taxes and |
430 |
assessments; escrow.-- |
431 |
(6) |
432 |
(e) On
or before May 1 of each year, a statement of |
433 |
receipts and disbursements of the
escrow account must be filed |
434 |
with the Division of Florida Land
Sales, Condominiums, |
435 |
Homeowners'
Associations, and Mobile Homes of the Department of |
436 |
Business and Professional Regulation,
which may enforce this |
437 |
paragraph pursuant to s. 721.26. This
statement must |
438 |
appropriately show the amount of
principal and interest in such |
439 |
account. |
440 |
Section
7. Paragraph (i) of subsection (8) of section |
441 |
213.053, Florida Statutes, is amended
to read: |
442 |
213.053 Confidentiality
and information sharing.-- |
443 |
(8) Notwithstanding
any other provision of this section, |
444 |
the department may provide: |
445 |
(i) Information
relative to chapters 212 and 326 to the |
446 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
447 |
Associations,
and Mobile Homes of the Department of Business and |
448 |
Professional Regulation in the conduct
of its official duties. |
449 |
|
450 |
Disclosure of information under this
subsection shall be |
451 |
pursuant to a written agreement
between the executive director |
452 |
and the agency. Such agencies,
governmental or nongovernmental, |
453 |
shall be bound by the same
requirements of confidentiality as |
454 |
the Department of Revenue. Breach of
confidentiality is a |
455 |
misdemeanor of the first degree,
punishable as provided by s. |
456 |
775.082 or s. 775.083. |
457 |
Section
8. Paragraph (d) of subsection (4) of section |
458 |
215.20, Florida Statutes, is amended
to read: |
459 |
215.20 Certain
income and certain trust funds to |
460 |
contribute to the General Revenue
Fund.-- |
461 |
(4) The
income of a revenue nature deposited in the |
462 |
following described trust funds, by
whatever name designated, is |
463 |
that from which the appropriations
authorized by subsection (3) |
464 |
shall be made: |
465 |
(d) Within
the Department of Business and Professional |
466 |
Regulation: |
467 |
1. The
Administrative Trust Fund. |
468 |
2. The
Alcoholic Beverage and Tobacco Trust Fund. |
469 |
3. The
Cigarette Tax Collection Trust Fund. |
470 |
4. The
Division of Florida Land Sales, Condominiums, |
471 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
472 |
5. The
Hotel and Restaurant Trust Fund, with the exception |
473 |
of those fees collected for the
purpose of funding of the |
474 |
hospitality education program as
stated in s. 509.302. |
475 |
6. The
Professional Regulation Trust Fund. |
476 |
7. The
trust funds administered by the Division of Pari- |
477 |
mutuel Wagering. |
478 |
|
479 |
The enumeration of the foregoing
moneys or trust funds shall not |
480 |
prohibit the applicability thereto of
s. 215.24 should the |
481 |
Governor determine that for the
reasons mentioned in s. 215.24 |
482 |
the money or trust funds should be
exempt herefrom, as it is the |
483 |
purpose of this law to exempt income
from its force and effect |
484 |
when, by the operation of this law,
federal matching funds or |
485 |
contributions or private grants to any
trust fund would be lost |
486 |
to the state. |
487 |
Section
9. Subsection (2) of section 326.002, Florida |
488 |
Statutes, is amended to read: |
489 |
326.002 Definitions.--As
used in ss. 326.001-326.006, the |
490 |
term: |
491 |
(2) "Division"
means the Division of Florida Land Sales, |
492 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
493 |
Department of Business and
Professional Regulation. |
494 |
Section
10. Paragraph (d) of subsection (2) and subsection |
495 |
(3) of section 326.006, Florida
Statutes, are amended to read: |
496 |
326.006 Powers
and duties of division.-- |
497 |
(2) The
division has the power to enforce and ensure |
498 |
compliance with the provisions of this
chapter and rules adopted |
499 |
under this chapter relating to the
sale and ownership of yachts |
500 |
and ships. In performing its duties,
the division has the |
501 |
following powers and duties: |
502 |
(d) Notwithstanding
any remedies available to a yacht or |
503 |
ship purchaser, if the division has
reasonable cause to believe |
504 |
that a violation of any provision of
this chapter or rule |
505 |
adopted under this chapter has
occurred, the division may |
506 |
institute enforcement proceedings in
its own name against any |
507 |
broker or salesperson or any of his or
her assignees or agents, |
508 |
or against any unlicensed person or
any of his or her assignees |
509 |
or agents, as follows: |
510 |
1. The
division may permit a person whose conduct or |
511 |
actions are under investigation to
waive formal proceedings and |
512 |
enter into a consent proceeding
whereby orders, rules, or |
513 |
letters of censure or warning, whether
formal or informal, may |
514 |
be entered against the person. |
515 |
2. The
division may issue an order requiring the broker or |
516 |
salesperson or any of his or her
assignees or agents, or |
517 |
requiring any unlicensed person or any
of his or her assignees |
518 |
or agents, to cease and desist from
the unlawful practice and |
519 |
take such affirmative action as in the
judgment of the division |
520 |
will carry out the purposes of this
chapter. |
521 |
3. The
division may bring an action in circuit court on |
522 |
behalf of a class of yacht or ship
purchasers for declaratory |
523 |
relief, injunctive relief, or
restitution. |
524 |
4. The
division may impose a civil penalty against a |
525 |
broker or salesperson or any of his or
her assignees or agents, |
526 |
or against an unlicensed person or any
of his or her assignees |
527 |
or agents, for any violation of this
chapter or a rule adopted |
528 |
under this chapter. A penalty may be
imposed for each day of |
529 |
continuing violation, but in no event
may the penalty for any |
530 |
offense exceed $10,000. All amounts
collected must be deposited |
531 |
with the Chief Financial Officer to
the credit of the Division |
532 |
of Florida Land Sales, Condominiums, Homeowners'
Associations, |
533 |
and Mobile Homes Trust Fund. If a
broker, salesperson, or |
534 |
unlicensed person working for a
broker, fails to pay the civil |
535 |
penalty, the division shall thereupon
issue an order suspending |
536 |
the broker's license until such time
as the civil penalty is |
537 |
paid or may pursue enforcement of the
penalty in a court of |
538 |
competent jurisdiction. The order
imposing the civil penalty or |
539 |
the order of suspension may not become
effective until 20 days |
540 |
after the date of such order. Any
action commenced by the |
541 |
division must be brought in the county
in which the division has |
542 |
its executive offices or in the county
where the violation |
543 |
occurred. |
544 |
(3) All
fees must be deposited in the Division of Florida |
545 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
546 |
Homes Trust Fund as provided by law. |
547 |
Section
11. Paragraph (a) of subsection (4) of section |
548 |
380.0651, Florida Statutes, is amended
to read: |
549 |
380.0651 Statewide
guidelines and standards.-- |
550 |
(4) Two
or more developments, represented by their owners |
551 |
or developers to be separate
developments, shall be aggregated |
552 |
and treated as a single development
under this chapter when they |
553 |
are determined to be part of a unified
plan of development and |
554 |
are physically proximate to one other. |
555 |
(a) The
criteria of two of the following subparagraphs |
556 |
must be met in order for the state
land planning agency to |
557 |
determine that there is a unified plan
of development: |
558 |
1.a. The
same person has retained or shared control of the |
559 |
developments; |
560 |
b. The
same person has ownership or a significant legal or |
561 |
equitable interest in the
developments; or |
562 |
c. There
is common management of the developments |
563 |
controlling the form of physical
development or disposition of |
564 |
parcels of the development. |
565 |
2. There
is a reasonable closeness in time between the |
566 |
completion of 80 percent or less of
one development and the |
567 |
submission to a governmental agency of
a master plan or series |
568 |
of plans or drawings for the other
development which is |
569 |
indicative of a common development
effort. |
570 |
3. A
master plan or series of plans or drawings exists |
571 |
covering the developments sought to be
aggregated which have |
572 |
been submitted to a local
general-purpose government, water |
573 |
management district, the Florida
Department of Environmental |
574 |
Protection, or the Division of Florida
Land Sales, Condominiums, |
575 |
Homeowners'
Associations, and Mobile Homes for authorization to |
576 |
commence development. The existence or
implementation of a |
577 |
utility's master utility plan required
by the Public Service |
578 |
Commission or general-purpose local
government or a master |
579 |
drainage plan shall not be the sole
determinant of the existence |
580 |
of a master plan. |
581 |
4. The
voluntary sharing of infrastructure that is |
582 |
indicative of a common development
effort or is designated |
583 |
specifically to accommodate the
developments sought to be |
584 |
aggregated, except that which was
implemented because it was |
585 |
required by a local general-purpose
government; water management |
586 |
district; the Department of
Environmental Protection; the |
587 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
588 |
Associations,
and Mobile Homes; or the Public Service |
589 |
Commission. |
590 |
5. There
is a common advertising scheme or promotional |
591 |
plan in effect for the developments
sought to be aggregated. |
592 |
Section
12. Subsection (5) of section 455.116, Florida |
593 |
Statutes, is amended to read: |
594 |
455.116 Regulation
trust funds.--The following trust funds |
595 |
shall be placed in the department: |
596 |
(5) Division
of Florida Land Sales, Condominiums, |
597 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
598 |
Section
13. Section 475.455, Florida Statutes, is amended |
599 |
to read: |
600 |
475.455 Exchange
of disciplinary information.--The |
601 |
commission shall inform the Division
of Florida Land Sales, |
602 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
603 |
Department of Business and
Professional Regulation of any |
604 |
disciplinary action the commission has
taken against any of its |
605 |
licensees. The division shall inform
the commission of any |
606 |
disciplinary action the division has
taken against any broker or |
607 |
sales associate registered with the
division. |
608 |
Section
14. Subsection (5) of section 498.005, Florida |
609 |
Statutes, is amended to read: |
610 |
498.005 Definitions.--As
used in this chapter, unless the |
611 |
context otherwise requires, the term: |
612 |
(5) "Division"
means the Division of Florida Land Sales, |
613 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
614 |
Department of Business and
Professional Regulation. |
615 |
Section
15. Section 498.019, Florida Statutes, is amended |
616 |
to read: |
617 |
498.019 Division
of Florida Land Sales, Condominiums, |
618 |
Homeowners'
Associations, and Mobile Homes Trust Fund.-- |
619 |
(1) There
is created within the State Treasury the |
620 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
621 |
Associations,
and Mobile Homes Trust Fund to be used for the |
622 |
administration and operation of this
chapter and chapters 718, |
623 |
719, 721, and 723 by the division. |
624 |
(2) All
moneys collected by the division from fees, fines, |
625 |
or penalties or from costs awarded to
the division by a court |
626 |
shall be paid into the Division of
Florida Land Sales, |
627 |
Condominiums, Homeowners'
Associations, and Mobile Homes Trust |
628 |
Fund. The Legislature shall
appropriate funds from this trust |
629 |
fund sufficient to carry out the
provisions of this chapter and |
630 |
the provisions of law with respect to
each category of business |
631 |
covered by this trust fund. The
division shall maintain separate |
632 |
revenue accounts in the trust fund for
each of the businesses |
633 |
regulated by the division. The
division shall provide for the |
634 |
proportionate allocation among the
accounts of expenses incurred |
635 |
by the division in the performance of
its duties with respect to |
636 |
each of these businesses. As part of
its normal budgetary |
637 |
process, the division shall prepare an
annual report of revenue |
638 |
and allocated expenses related to the
operation of each of these |
639 |
businesses which may be used to
determine fees charged by the |
640 |
division. This subsection shall
operate pursuant to the |
641 |
provisions of s. 215.20. |
642 |
Section
16. Paragraph (a) of subsection (8) of section |
643 |
498.047, Florida Statutes, is amended
to read: |
644 |
498.047 Investigations.-- |
645 |
(8)(a) Information
held by the Division of Florida Land |
646 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
647 |
relative to an investigation pursuant
to this chapter, including |
648 |
any consumer complaint, is
confidential and exempt from s. |
649 |
119.07(1) and s. 24(a), Art. I of the
State Constitution, until |
650 |
10 days after a notice to show cause
has been filed by the |
651 |
division, or, in the case in which no
notice to show cause is |
652 |
filed, the investigation is completed
or ceases to be active. |
653 |
For purposes of this section, an
investigation shall be |
654 |
considered "active" so long
as the division or any law |
655 |
enforcement or administrative agency
or regulatory organization |
656 |
is proceeding with reasonable dispatch
and has a reasonable good |
657 |
faith belief that the investigation
may lead to the filing of an |
658 |
administrative, civil, or criminal
proceeding or to the denial |
659 |
or conditional grant of a license or
registration. However, in |
660 |
response to a specific inquiry about
the registration status of |
661 |
a registered or unregistered
subdivider, the division may |
662 |
disclose the existence and the status
of an active |
663 |
investigation. This subsection shall
not be construed to |
664 |
prohibit disclosure of information
which is required by law to |
665 |
be filed with the division and which,
but for the investigation, |
666 |
would be subject to s. 119.07(1). |
667 |
Section
17. Subsection (5) of section 498.049, Florida |
668 |
Statutes, is amended to read: |
669 |
498.049 Suspension;
revocation; civil penalties.-- |
670 |
(5) Each
person who materially participates in any offer |
671 |
or disposition of any interest in
subdivided lands in violation |
672 |
of this chapter or relevant rules
involving fraud, deception, |
673 |
false pretenses, misrepresentation, or
false advertising or the |
674 |
disposition, concealment, or diversion
of any funds or assets of |
675 |
any person which adversely affects the
interests of a purchaser |
676 |
of any interest in subdivided lands,
and who directly or |
677 |
indirectly controls a subdivider or is
a general partner, |
678 |
officer, director, agent, or employee
of a subdivider shall also |
679 |
be liable under this subsection
jointly and severally with and |
680 |
to the same extent as the subdivider,
unless that person did not |
681 |
know, and in the exercise of
reasonable care could not have |
682 |
known, of the existence of the facts
creating the alleged |
683 |
liability. Among these persons a right
of contribution shall |
684 |
exist, except that a creditor of a
subdivider shall not be |
685 |
jointly and severally liable unless
the creditor has assumed |
686 |
managerial or fiduciary responsibility
in a manner related to |
687 |
the basis for the liability of the
subdivider under this |
688 |
subsection. Civil penalties shall be
limited to $10,000 for each |
689 |
offense, and all amounts collected
shall be deposited with the |
690 |
Chief Financial Officer to the credit
of the Division of Florida |
691 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
692 |
Homes Trust Fund. No order requiring
the payment of a civil |
693 |
penalty shall become effective until
20 days after the date of |
694 |
the order, unless otherwise agreed in
writing by the person on |
695 |
whom the penalty is imposed. |
696 |
Section
18. Section 509.512, Florida Statutes, is amended |
697 |
to read: |
698 |
509.512 Timeshare
plan developer and exchange company |
699 |
exemption.--Sections 509.501-509.511
do not apply to a developer |
700 |
of a timeshare plan or an exchange
company approved by the |
701 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
702 |
Associations, and Mobile Homes
pursuant to chapter 721, but only |
703 |
to the extent that the developer or
exchange company engages in |
704 |
conduct regulated under chapter 721. |
705 |
Section
19. Paragraph (h) of subsection (1) of section |
706 |
559.935, Florida Statutes, is amended
to read: |
707 |
559.935 Exemptions.-- |
708 |
(1) This
part does not apply to: |
709 |
(h) A
developer of a timeshare plan or an exchange company |
710 |
approved by the Division of Florida
Land Sales, Condominiums, |
711 |
Homeowners'
Associations, and Mobile Homes pursuant to chapter |
712 |
721, but only to the extent that the
developer or exchange |
713 |
company engages in conduct regulated
under chapter 721; or |
714 |
Section
20. Subsection (17) of section 718.103, Florida |
715 |
Statutes, is amended to read: |
716 |
718.103 Definitions.--As
used in this chapter, the term: |
717 |
(17) "Division"
means the Division of Florida Land Sales, |
718 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
719 |
Department of Business and
Professional Regulation. |
720 |
Section
21. Paragraph (f) of subsection (4) of section |
721 |
718.104, Florida Statutes, is amended
to read: |
722 |
718.104 Creation
of condominiums; contents of |
723 |
declaration.--Every condominium
created in this state shall be |
724 |
created pursuant to this chapter. |
725 |
(4) The
declaration must contain or provide for the |
726 |
following matters: |
727 |
(f) The
undivided share of ownership of the common |
728 |
elements and common surplus of the
condominium that is |
729 |
appurtenant to each unit stated as a
percentage or a fraction of |
730 |
the whole. In the declaration of
condominium for residential |
731 |
condominiums created after April 1, 2007
1992, the ownership |
732 |
share of the common elements assigned
to each residential unit |
733 |
shall be based either
upon the total square footage of each |
734 |
residential unit in uniform
relationship to the total square |
735 |
footage of each other residential unit
in the condominium or on |
736 |
an equal
fractional basis. |
737 |
Section
22. Paragraph (c) of subsection (4) of section |
738 |
718.105, Florida Statutes, is amended
to read: |
739 |
718.105 Recording
of declaration.-- |
740 |
(4) |
741 |
(c) If
the sum of money held by the clerk has not been |
742 |
paid to the developer or association
as provided in paragraph |
743 |
(b) by 3 years after the date the
declaration was originally |
744 |
recorded, the clerk in his or her
discretion may notify, in |
745 |
writing, the registered agent of the
association that the sum is |
746 |
still available and the purpose for
which it was deposited. If |
747 |
the association does not record the
certificate within 90 days |
748 |
after the clerk has given the notice,
the clerk may disburse the |
749 |
money to the developer. If the
developer cannot be located, the |
750 |
clerk shall disburse the money to the
Division of Florida Land |
751 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
752 |
for deposit in the Division of Florida
Land Sales, Condominiums, |
753 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
754 |
Section
23. Paragraph (d) is added to subsection (1) of |
755 |
section 718.110, Florida Statutes, to
read: |
756 |
718.110 Amendment
of declaration; correction of error or |
757 |
omission in declaration by circuit
court.-- |
758 |
(1) |
759 |
(d) Notice
of a proposed amendment to the declaration |
760 |
shall be sent to
the unit owner by certified mail. |
761 |
Section
24. Subsection (5), paragraph (b) of subsection |
762 |
(7), paragraphs (b) and (c) of
subsection (12), and subsection |
763 |
(13) of section 718.111, Florida
Statutes, are amended, and |
764 |
subsection (15) is added to that
section, to read: |
765 |
718.111 The
association.-- |
766 |
(5) RIGHT
OF ACCESS TO UNITS.--The association has the |
767 |
irrevocable right of access to each
unit during reasonable |
768 |
hours, when necessary for the
maintenance, repair, or |
769 |
replacement of any common elements or
of any portion of a unit |
770 |
to be maintained by the association
pursuant to the declaration |
771 |
or as necessary to prevent damage to
the common elements or to a |
772 |
unit or units. Except
in cases of emergency, the association |
773 |
must give the unit
owner 24 hours' advance written notice of |
774 |
intent to access
the unit and such access must include two |
775 |
persons, one of
whom must be a member of the board of |
776 |
administration. |
777 |
(7) TITLE
TO PROPERTY.-- |
778 |
(b) Subject
to the provisions of s. 718.112(2)(l)(m), the |
779 |
association, through its board, has
the limited power to convey |
780 |
a portion of the common elements to a
condemning authority for |
781 |
the purposes of providing utility
easements, right-of-way |
782 |
expansion, or other public purposes,
whether negotiated or as a |
783 |
result of eminent domain proceedings. |
784 |
(12) OFFICIAL
RECORDS.-- |
785 |
(b) The
official records of the association shall be |
786 |
maintained within the state. The
records of the association |
787 |
shall be made available to a unit
owner, at a location within 30 |
788 |
miles'
driving distance of the condominium property, within 5 |
789 |
working days after receipt of written
request by the board or |
790 |
its designee. This paragraph may be
complied with by having a |
791 |
copy of the official records of the
association available for |
792 |
inspection or copying on the
condominium property or association |
793 |
property. |
794 |
(c) The
official records of the association are open to |
795 |
inspection by any association member
or the authorized |
796 |
representative of such member at all
reasonable times. The right |
797 |
to inspect the records includes the
right to make or obtain |
798 |
copies, at the reasonable expense, if
any, of the association |
799 |
member. The association may adopt
reasonable rules regarding the |
800 |
frequency, time, location, notice, and
manner of record |
801 |
inspections and copying. The failure
of an association to |
802 |
provide the records within 10 working
days after receipt of a |
803 |
written request shall create a
rebuttable presumption that the |
804 |
association willfully failed to comply
with this paragraph. A |
805 |
unit owner who is denied access to
official records is entitled |
806 |
to the actual damages or minimum
damages for the association's |
807 |
willful failure to comply with this
paragraph. The minimum |
808 |
damages shall be $50 per calendar day
up to 10 days, the |
809 |
calculation to begin on the 11th
working day after receipt of |
810 |
the written request. The failure to
permit inspection of the |
811 |
association records as provided herein
entitles any person |
812 |
prevailing in an enforcement action to
recover reasonable |
813 |
attorney's fees from the person in
control of the records who, |
814 |
directly or indirectly, knowingly
denied access to the records |
815 |
for inspection. The association shall
maintain an adequate |
816 |
number of copies of the declaration,
articles of incorporation, |
817 |
bylaws, and rules, and all amendments
to each of the foregoing, |
818 |
as well as the question and answer
sheet provided for in s. |
819 |
718.504 and year-end financial
information required in this |
820 |
section on the condominium property to
ensure their availability |
821 |
to unit owners and prospective
purchasers, and may charge its |
822 |
actual costs for preparing and
furnishing these documents to |
823 |
those requesting the same.
Notwithstanding the provisions of |
824 |
this paragraph, the following records
shall not be accessible to |
825 |
unit owners: |
826 |
1. Any
record protected by the lawyer-client privilege as |
827 |
described in s. 90.502; and any record
protected by the work- |
828 |
product privilege, including any
record prepared by an |
829 |
association attorney or prepared at
the attorney's express |
830 |
direction; which reflects a mental
impression, conclusion, |
831 |
litigation strategy, or legal theory
of the attorney or the |
832 |
association, and which was prepared
exclusively for civil or |
833 |
criminal litigation or for adversarial
administrative |
834 |
proceedings, or which was prepared in
anticipation of imminent |
835 |
civil or criminal litigation or
imminent adversarial |
836 |
administrative proceedings until the
conclusion of the |
837 |
litigation or adversarial
administrative proceedings. |
838 |
2. Information
obtained by an association in connection |
839 |
with the approval of the lease, sale,
or other transfer of a |
840 |
unit. |
841 |
3. Medical
records of unit owners. |
842 |
4. Social
security numbers, driver's license numbers, |
843 |
credit card
numbers, and other personal identifying information |
844 |
of unit owners,
occupants, or tenants. |
845 |
(13) FINANCIAL
REPORTING.--Within 90 days after the end of |
846 |
the fiscal year, or annually on a date
provided in the bylaws, |
847 |
the association shall prepare and
complete, or contract for the |
848 |
preparation and completion of, a
financial report for the |
849 |
preceding fiscal year. Within 21 days
after the final financial |
850 |
report is completed by the association
or received from the |
851 |
third party, but not later than 120
days after the end of the |
852 |
fiscal year or other date as provided
in the bylaws, the |
853 |
association shall mail to each unit
owner at the address last |
854 |
furnished to the association by the
unit owner, or hand deliver |
855 |
to each unit owner, a copy of the
financial report or a notice |
856 |
that a copy of the financial report
will be mailed or hand |
857 |
delivered to the unit owner,
without charge, upon receipt of a |
858 |
written
request from the unit owner. The division shall adopt |
859 |
rules setting forth uniform accounting
principles and standards |
860 |
to be used by all associations and
shall adopt rules addressing |
861 |
financial reporting requirements for
multicondominium |
862 |
associations. In adopting such rules,
the division shall |
863 |
consider the number of members and
annual revenues of an |
864 |
association. Financial reports shall
be prepared as follows: |
865 |
(a) An
association that meets the criteria of this |
866 |
paragraph shall prepare or cause to be
prepared a complete set |
867 |
of financial statements in accordance
with generally accepted |
868 |
accounting principles. The financial
statements shall be based |
869 |
upon the association's total annual
revenues, as follows: |
870 |
1. An
association with total annual revenues of $100,000 |
871 |
or more, but less than $200,000, shall
prepare compiled |
872 |
financial statements. |
873 |
2. An
association with total annual revenues of at least |
874 |
$200,000, but less than $400,000,
shall prepare reviewed |
875 |
financial statements. |
876 |
3. An
association with total annual revenues of $400,000 |
877 |
or more shall prepare audited
financial statements. |
878 |
(b)1. An
association with total annual revenues of less |
879 |
than $100,000 shall prepare a report
of cash receipts and |
880 |
expenditures. |
881 |
2. An
association which operates less than 50 units, |
882 |
regardless of the association's annual
revenues, shall prepare a |
883 |
report of cash receipts and
expenditures in lieu of financial |
884 |
statements required by paragraph (a). |
885 |
3. A
report of cash receipts and disbursements must |
886 |
disclose the amount of receipts by
accounts and receipt |
887 |
classifications and the amount of
expenses by accounts and |
888 |
expense classifications, including,
but not limited to, the |
889 |
following, as applicable: costs for
security, professional and |
890 |
management fees and expenses, taxes,
costs for recreation |
891 |
facilities, expenses for refuse
collection and utility services, |
892 |
expenses for lawn care, costs for
building maintenance and |
893 |
repair, insurance costs,
administration and salary expenses, and |
894 |
reserves accumulated and expended for
capital expenditures, |
895 |
deferred maintenance, and any other
category for which the |
896 |
association maintains reserves. |
897 |
(c) An
association may prepare or cause to be prepared, |
898 |
without a meeting of or approval by
the unit owners: |
899 |
1. Compiled,
reviewed, or audited financial statements, if |
900 |
the association is required to prepare
a report of cash receipts |
901 |
and expenditures; |
902 |
2. Reviewed
or audited financial statements, if the |
903 |
association is required to prepare
compiled financial |
904 |
statements; or |
905 |
3. Audited
financial statements if the association is |
906 |
required to prepare reviewed financial
statements. |
907 |
(d) If
approved by a majority of the voting interests |
908 |
present at a properly called meeting
of the association, an |
909 |
association may prepare or cause to be
prepared: |
910 |
1. A
report of cash receipts and expenditures in lieu of a |
911 |
compiled, reviewed, or audited
financial statement; |
912 |
2. A
report of cash receipts and expenditures or a |
913 |
compiled financial statement in lieu
of a reviewed or audited |
914 |
financial statement; or |
915 |
3. A
report of cash receipts and expenditures, a compiled |
916 |
financial statement, or a reviewed
financial statement in lieu |
917 |
of an audited financial statement. |
918 |
|
919 |
Such meeting and approval must occur
prior to the end of the |
920 |
fiscal year and is effective only for
the fiscal year in which |
921 |
the vote is taken. With respect to an
association to which the |
922 |
developer has not turned over control
of the association, all |
923 |
unit owners, including the developer,
may vote on issues related |
924 |
to the preparation of financial
reports for the first 2 fiscal |
925 |
years of the association's operation,
beginning with the fiscal |
926 |
year in which the declaration is
recorded. Thereafter, all unit |
927 |
owners except the developer may vote
on such issues until |
928 |
control is turned over to the
association by the developer. An |
929 |
association or board of
administration may not waive the |
930 |
financial reporting requirements of
this section for more than 2 |
931 |
years. |
932 |
(15) RECONSTRUCTION
AFTER CASUALTY.-- |
933 |
(a) In
the event the condominium property and units are |
934 |
damaged after a
casualty, the board of administration shall |
935 |
obtain reliable and
detailed estimates of the cost necessary to |
936 |
repair and replace
the damaged property to substantially the |
937 |
same condition
existing immediately prior to the casualty and |
938 |
substantially in
accordance with the original plans and |
939 |
specifications of
the condominium as soon as possible and not |
940 |
later than 60 days
after the casualty. If the damage to the |
941 |
condominium
property exceeds 50 percent of the property's value, |
942 |
the condominium may
be terminated unless 75 percent of the unit |
943 |
owners agree to
reconstruction and repair within 90 days after |
944 |
the casualty. |
945 |
(b) The
board of administration shall engage the services |
946 |
of a registered
architect and knowledgeable construction |
947 |
specialists to
prepare any necessary plans and specifications |
948 |
and shall receive
and approve bids for reconstruction, execute |
949 |
all necessary
contracts for restoration, and arrange for |
950 |
disbursement of
construction funds, the approval of work, and |
951 |
all other matters
pertaining to the repairs and reconstruction |
952 |
required. |
953 |
(c) If
the proceeds of the hazard insurance policy |
954 |
maintained by the
association pursuant to paragraph (11)(b) are |
955 |
insufficient to pay
the estimated costs of reconstruction or at |
956 |
any time during
reconstruction and repair, assessments shall be |
957 |
made against all
unit owners according to their share of the |
958 |
common elements and
expenses as set forth in the declaration of |
959 |
condominium. |
960 |
(d) Assessments
shall be made against unit owners for |
961 |
damage to their
units according to the cost of reconstruction or |
962 |
repair of their
respective units. The assessments shall be |
963 |
levied and
collected as all other assessments are provided for |
964 |
in this chapter. |
965 |
Section
25. Subsection (2) of section 718.112, Florida |
966 |
Statutes, is amended to read: |
967 |
718.112 Bylaws.-- |
968 |
(2) REQUIRED
PROVISIONS.--The bylaws of the association |
969 |
shall provide for the following and,
if they do not do so, shall |
970 |
be deemed to include the following: |
971 |
(a) Administration.-- |
972 |
1. The
form of administration of the association shall be |
973 |
described indicating the title of the
officers and board of |
974 |
administration and specifying the
powers, duties, manner of |
975 |
selection and removal, and
compensation, if any, of officers and |
976 |
boards. In the absence of such a
provision or determination by |
977 |
the board or membership, the
board of administration shall be |
978 |
composed of five members who are
unit owners, except in the case |
979 |
of a condominium which has five or
fewer units, in which case in |
980 |
a not-for-profit corporation the board
shall consist of not |
981 |
fewer than three members who are
unit owners. In the absence of |
982 |
provisions to the contrary in the
bylaws, the board of |
983 |
administration shall have a president,
a secretary, and a |
984 |
treasurer, who shall perform the
duties of such officers |
985 |
customarily performed by officers of
corporations. Unless |
986 |
prohibited in the bylaws, the board of
administration may |
987 |
appoint other officers and grant them
the duties it deems |
988 |
appropriate. Unless otherwise provided
in the bylaws, the |
989 |
officers shall serve without
compensation and at the pleasure of |
990 |
the board of administration. Unless
otherwise provided in the |
991 |
bylaws, the members of the board shall
serve without |
992 |
compensation. |
993 |
2. When
a unit owner files a written inquiry by certified |
994 |
mail with the board of administration,
the board shall respond |
995 |
in writing by certified mail,
return receipt requested, to the |
996 |
unit owner within 30 days after
of receipt of the inquiry. The |
997 |
board's response shall either give a
substantive response to the |
998 |
inquirer, notify the inquirer that a
legal opinion has been |
999 |
requested, or notify the inquirer that
advice has been requested |
1000 |
from the division. If the board
requests advice from the |
1001 |
division, the board shall, within 10
days after of
its receipt |
1002 |
of the advice, provide in writing by
certified mail a |
1003 |
substantive response to the inquirer.
If a legal opinion is |
1004 |
requested, the board shall, within 60
days after the receipt of |
1005 |
the inquiry, provide in writing by
certified mail a substantive |
1006 |
response to the inquiry. The failure
to provide a substantive |
1007 |
response to the inquiry as provided
herein precludes the board |
1008 |
from recovering attorney's fees and
costs in any subsequent |
1009 |
litigation, administrative proceeding,
or arbitration arising |
1010 |
out of the inquiry. The
association may through its board of |
1011 |
administration
adopt reasonable rules and regulations regarding |
1012 |
the frequency and
manner of responding to unit owner inquiries, |
1013 |
one of which may be
that the association is only obligated to |
1014 |
respond to one
written inquiry per unit in any given 30-day |
1015 |
period. In such a
case, any additional inquiry or inquiries must |
1016 |
be responded to in
the subsequent 30-day period, or periods, as |
1017 |
applicable. |
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
board of administration or |
1549 |
any board member
named in the agreement may submit rebuttal |
1550 |
argument and
supporting evidence to the ombudsman within 5 |
1551 |
business days from
the date of service of the agreement. The |
1552 |
ombudsman shall
certify or not certify the recall within 10 |
1553 |
business days after
receipt of the written agreement and the |
1554 |
current unit
owner roster. If the ombudsman determines to 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 ombudsman 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 |
ombudsman
board shall, within 5 full
business days after the |
1568 |
decision, notify the
member or members of the board and the |
1569 |
board president of
the reasons for not certifying the agreement, |
1570 |
and the unit owners
shall be afforded an additional period of 5 |
1571 |
business days to
correct the defect or deficiency. The board or |
1572 |
members named in the
agreement shall have 5 business days to |
1573 |
submit rebuttal
argument and supporting evidence, and the |
1574 |
ombudsman shall have
5 business days thereafter to render a |
1575 |
decision. If the
ombudsman certifies the corrected or amended |
1576 |
written recall
agreement to recall a member or members of the |
1577 |
board, such member or
members shall be recalled effective |
1578 |
immediately and shall
turn over to the board within 5 full |
1579 |
business days any and
all records and property of the |
1580 |
association in their
possession. If the ombudsman does not |
1581 |
certify the recall as
to any or all board members, the board |
1582 |
member or members not
certified by the corrected or amended |
1583 |
written recall
agreement shall remain in office for the |
1584 |
remainder of their
unexpired terms or until properly recalled or |
1585 |
resignation
otherwise occurs 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 |
4.5. 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
26. 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) The
board of administration may not adopt any rule or |
1799 |
regulation impairing
any rights guaranteed by the First |
1800 |
Amendment to the
Constitution of the United States or s. 3, Art. |
1801 |
I of the Florida
Constitution, including, but not limited to, |
1802 |
the free exercise of
religion, nor may any rules or regulations |
1803 |
conflict with the
provisions of this chapter or the condominium |
1804 |
instruments. A rule
or regulation may not prohibit any |
1805 |
reasonable
accommodation for religious practices, including the |
1806 |
attachment of
religiously mandated objects to the front-door |
1807 |
area of a condominium
unit. |
1808 |
Section
27. 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. |
1855 |
Section
28. Section 718.1123, Florida Statutes, is created |
1856 |
to read: |
1857 |
718.1123 Protection
against abuse.-- |
1858 |
(1) In
order to protect the safety, health, and welfare of |
1859 |
the people of this
state, especially the infirm and elderly, and |
1860 |
to ensure the
protection of condominium owners, any complaint of |
1861 |
abuse filed with the
Division of Florida Land Sales, |
1862 |
Condominiums,
Homeowners' Associations, and Mobile Homes shall |
1863 |
immediately be
investigated by the division. When the division |
1864 |
has reasonable cause
to believe that abuse has occurred against |
1865 |
any unit owner, the
division shall institute enforcement |
1866 |
proceedings pursuant
to its power and duties as set forth in s. |
1867 |
718.501. |
1868 |
(2) For
purposes of this section, the term "abuse" means |
1869 |
any willful act or
threat by a member of the board of directors |
1870 |
of a condominium
association or any member of a committee or |
1871 |
subcommittee
appointed by the board of directors, or any |
1872 |
employee, volunteer,
or agent purporting to act on behalf of the |
1873 |
board of directors,
or any officer, director, employee, or agent |
1874 |
of any management
company acting on behalf of a condominium |
1875 |
association who
denies or is likely to deny a condominium unit |
1876 |
owner or dweller any
of the rights and protections afforded to |
1877 |
them under applicable
state and federal laws, administrative |
1878 |
rules, and the
governing documents of their condominium |
1879 |
association. |
1880 |
Section
29. 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
30. 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 |
Homeowners'
Associations, 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
31. 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
32. 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
33. 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
34. 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
35. Section 718.501, Florida Statutes, is amended |
2271 |
to read: |
2272 |
718.501 Powers
and duties of Division of Florida Land |
2273 |
Sales, Condominiums, Homeowners'
Associations, and Mobile |
2274 |
Homes.-- |
2275 |
(1) The
Division of Florida Land Sales, Condominiums, |
2276 |
Homeowners'
Associations, 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 |
Homeowners'
Associations, 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 |
1. 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. |
2463 |
2. Participate
in a mandatory educational training program |
2464 |
that
shall be directly related to the violation, taught by a |
2465 |
division-approved
provider, and completed within 90 days from |
2466 |
the date
of notification of the finding to the board members. |
2467 |
|
2468 |
Failure
of the association to comply with this paragraph shall |
2469 |
result in
a civil penalty to the association in the amount of |
2470 |
$500 for
each week the notice is not mailed and posted or the |
2471 |
educational
training is not completed. |
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, Homeowners'
Associations, and Mobile |
2483 |
Homes Trust Fund as provided
by law. One-fifth of all fees |
2484 |
deposited
by the division shall be allocated and transferred to |
2485 |
the
Office of the Condominium Ombudsman. |
2486 |
Section
36. 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 |
Homeowners'
Associations, 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, Homeowners'
Associations, 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. |
2507 |
(2) The
Governor shall appoint the ombudsman. The |
2508 |
ombudsman must be an
attorney admitted to practice before the |
2509 |
Florida Supreme Court and
shall serve at the pleasure of the |
2510 |
Governor. A vacancy in the
office shall be filled in the same |
2511 |
manner as the original
appointment. An officer or full-time |
2512 |
employee
of the ombudsman's office may not actively engage in |
2513 |
any other
business or profession; serve as the representative of |
2514 |
any
political party, executive committee, or other governing |
2515 |
body of a
political party; serve as an executive, officer, or |
2516 |
employee
of a political party; receive remuneration for |
2517 |
activities
on behalf of any candidate for public office; or |
2518 |
engage in
soliciting votes or other activities on behalf of a |
2519 |
candidate
for public office. The ombudsman or any employee of |
2520 |
his or
her office may not become a candidate for election to |
2521 |
public
office unless he or she first resigns from his or her |
2522 |
office or
employment. |
2523 |
Section
37. 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. The division shall |
2559 |
process
the ombudsman's recommendations and petitions in an |
2560 |
expedited
manner and defer to his or her findings. For the |
2561 |
purpose
of fulfilling his or her duties under this chapter, the |
2562 |
ombudsman
may administer oaths or affirmations, subpoena |
2563 |
witnesses
and compel their attendance, take evidence, and |
2564 |
require
the production of any matter that is relevant to the |
2565 |
inquiry,
including the existence, description, nature, custody, |
2566 |
condition,
and location of any books, documents, or other |
2567 |
tangible
things and the identity and location of persons having |
2568 |
knowledge
of relevant facts or any other matter reasonably |
2569 |
calculated
to lead to the discovery of material evidence. Upon |
2570 |
the
failure by a person to obey a subpoena or to answer |
2571 |
questions
asked by the ombudsman and upon reasonable notice to |
2572 |
all
persons affected thereby, the ombudsman may apply to the |
2573 |
circuit
court for an order compelling compliance. |
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. |
2591 |
(i) To
make recommendations to the division to pursue |
2592 |
enforcement
action in circuit court on behalf of a class of unit |
2593 |
owners,
lessees, or purchasers for declaratory relief, |
2594 |
injunctive
relief, or restitution against any developer, |
2595 |
association,
officer, or member of the board of administration, |
2596 |
or its
assignees or agents, where there is reasonable cause to |
2597 |
believe
misconduct has occurred. The division shall process the |
2598 |
ombudsman's
recommendations and petitions in an expedited manner |
2599 |
and defer
to his or her findings. |
2600 |
(j) To
certify recall of board member proceedings pursuant |
2601 |
to s.
718.112(2)(j). |
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. The ombudsman upon petition |
2607 |
may order
any aspect of the election process as set forth in s. |
2608 |
718.112(2)(d)3.
to be conducted by the election monitor. No |
2609 |
association
or person may reject an election monitor appointed |
2610 |
by the
ombudsman or interfere with an election monitor in the |
2611 |
performance
of his or her duties. The ombudsman may order an |
2612 |
association
to implement a known division remedy for a |
2613 |
procedural
violation of s. 718.112(2)(d)3. prior to and during a |
2614 |
monitored
election. 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. |
2625 |
(4) If
the ombudsman has reasonable cause to believe that |
2626 |
a
violation of any provision of this chapter or rule adopted |
2627 |
under
this chapter has occurred, the ombudsman may issue an |
2628 |
order
requiring any developer, association, officer, or member |
2629 |
of the
board of administration, or its assignees or agents, to |
2630 |
cease and
desist from the unlawful practice and to take such |
2631 |
affirmative
action that will carry out the purposes of this |
2632 |
chapter. |
2633 |
Section
38. Paragraph (a) of subsection (2) of section |
2634 |
718.502, Florida Statutes,
is amended to read: |
2635 |
718.502 Filing
prior to sale or lease.-- |
2636 |
(2)(a) Prior
to filing as required by subsection (1), and |
2637 |
prior to acquiring an
ownership, leasehold, or contractual |
2638 |
interest in the land upon
which the condominium is to be |
2639 |
developed, a developer shall
not offer a contract for purchase |
2640 |
of a unit or lease of a unit
for more than 5 years. However, the |
2641 |
developer may accept
deposits for reservations upon the approval |
2642 |
of a fully executed escrow
agreement and reservation agreement |
2643 |
form properly filed with the
Division of Florida Land Sales, |
2644 |
Condominiums, Homeowners'
Associations, and Mobile Homes. Each |
2645 |
filing of a proposed
reservation program shall be accompanied by |
2646 |
a filing fee of $250.
Reservations shall not be taken on a |
2647 |
proposed condominium unless
the developer has an ownership, |
2648 |
leasehold, or contractual
interest in the land upon which the |
2649 |
condominium is to be
developed. The division shall notify the |
2650 |
developer within 20 days of
receipt of the reservation filing of |
2651 |
any deficiencies contained
therein. Such notification shall not |
2652 |
preclude the determination
of reservation filing deficiencies at |
2653 |
a later date, nor shall it
relieve the developer of any |
2654 |
responsibility under the
law. The escrow agreement and the |
2655 |
reservation agreement form
shall include a statement of the |
2656 |
right of the prospective
purchaser to an immediate unqualified |
2657 |
refund of the reservation
deposit moneys upon written request to |
2658 |
the escrow agent by the
prospective purchaser or the developer. |
2659 |
Section
39. 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, Homeowners' |
2668 |
Associations, 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: |
2698 |
(1) The
front cover or the first page must contain only: |
2699 |
(a) The
name of the condominium. |
2700 |
(b) The
following statements in conspicuous type: |
2701 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
2702 |
MATTERS TO BE CONSIDERED IN
ACQUIRING A CONDOMINIUM UNIT. |
2703 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
2704 |
NATURE. A PROSPECTIVE
PURCHASER SHOULD REFER TO ALL REFERENCES, |
2705 |
ALL EXHIBITS HERETO, THE
CONTRACT DOCUMENTS, AND SALES |
2706 |
MATERIALS. |
2707 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
2708 |
STATING THE REPRESENTATIONS
OF THE DEVELOPER. REFER TO THIS |
2709 |
PROSPECTUS (OFFERING
CIRCULAR) AND ITS EXHIBITS FOR CORRECT |
2710 |
REPRESENTATIONS. |
2711 |
(2) Summary:
The next page must contain all statements |
2712 |
required to be in
conspicuous type in the prospectus or offering |
2713 |
circular. |
2714 |
(3) A
separate index of the contents and exhibits of the |
2715 |
prospectus. |
2716 |
(4) Beginning
on the first page of the text (not including |
2717 |
the summary and index), a
description of the condominium, |
2718 |
including, but not limited
to, the following information: |
2719 |
(a) Its
name and location. |
2720 |
(b) A
description of the condominium property, including, |
2721 |
without limitation: |
2722 |
1. The
number of buildings, the number of units in each |
2723 |
building, the number of
bathrooms and bedrooms in each unit, and |
2724 |
the total number of units,
if the condominium is not a phase |
2725 |
condominium, or the maximum
number of buildings that may be |
2726 |
contained within the
condominium, the minimum and maximum |
2727 |
numbers of units in each
building, the minimum and maximum |
2728 |
numbers of bathrooms and
bedrooms that may be contained in each |
2729 |
unit, and the maximum number
of units that may be contained |
2730 |
within the condominium, if
the condominium is a phase |
2731 |
condominium. |
2732 |
2. The
page in the condominium documents where a copy of |
2733 |
the plot plan and survey of
the condominium is located. |
2734 |
3. The
estimated latest date of completion of |
2735 |
constructing, finishing, and
equipping. In lieu of a date, the |
2736 |
description shall include a
statement that the estimated date of |
2737 |
completion of the
condominium is in the purchase agreement and a |
2738 |
reference to the article or
paragraph containing that |
2739 |
information. |
2740 |
(c) The
maximum number of units that will use facilities |
2741 |
in common with the
condominium. If the maximum number of units |
2742 |
will vary, a description of
the basis for variation and the |
2743 |
minimum amount of dollars
per unit to be spent for additional |
2744 |
recreational facilities or
enlargement of such facilities. If |
2745 |
the addition or enlargement
of facilities will result in a |
2746 |
material increase of a unit
owner's maintenance expense or |
2747 |
rental expense, if any, the
maximum increase and limitations |
2748 |
thereon shall be stated. |
2749 |
(5)(a) A
statement in conspicuous type describing whether |
2750 |
the condominium is created
and being sold as fee simple |
2751 |
interests or as leasehold
interests. If the condominium is |
2752 |
created or being sold on a
leasehold, the location of the lease |
2753 |
in the disclosure materials
shall be stated. |
2754 |
(b) If
timeshare estates are or may be created with |
2755 |
respect to any unit in the
condominium, a statement in |
2756 |
conspicuous type stating
that timeshare estates are created and |
2757 |
being sold in units in the
condominium. |
2758 |
(6) A
description of the recreational and other commonly |
2759 |
used facilities that will be
used only by unit owners of the |
2760 |
condominium, including, but
not limited to, the following: |
2761 |
(a) Each
room and its intended purposes, location, |
2762 |
approximate floor area, and
capacity in numbers of people. |
2763 |
(b) Each
swimming pool, as to its general location, |
2764 |
approximate size and depths,
approximate deck size and capacity, |
2765 |
and whether heated. |
2766 |
(c) Additional
facilities, as to the number of each |
2767 |
facility, its approximate
location, approximate size, and |
2768 |
approximate capacity. |
2769 |
(d) A
general description of the items of personal |
2770 |
property and the approximate
number of each item of personal |
2771 |
property that the developer
is committing to furnish for each |
2772 |
room or other facility or,
in the alternative, a representation |
2773 |
as to the minimum amount of
expenditure that will be made to |
2774 |
purchase the personal
property for the facility. |
2775 |
(e) The
estimated date when each room or other facility |
2776 |
will be available for use by
the unit owners. |
2777 |
(f)1. An
identification of each room or other facility to |
2778 |
be used by unit owners that
will not be owned by the unit owners |
2779 |
or the association; |
2780 |
2. A
reference to the location in the disclosure materials |
2781 |
of the lease or other
agreements providing for the use of those |
2782 |
facilities; and |
2783 |
3. A
description of the terms of the lease or other |
2784 |
agreements, including the
length of the term; the rent payable, |
2785 |
directly or indirectly, by
each unit owner, and the total rent |
2786 |
payable to the lessor,
stated in monthly and annual amounts for |
2787 |
the entire term of the
lease; and a description of any option to |
2788 |
purchase the property leased
under any such lease, including the |
2789 |
time the option may be
exercised, the purchase price or how it |
2790 |
is to be determined, the
manner of payment, and whether the |
2791 |
option may be exercised for
a unit owner's share or only as to |
2792 |
the entire leased property. |
2793 |
(g) A
statement as to whether the developer may provide |
2794 |
additional facilities not
described above; their general |
2795 |
locations and types;
improvements or changes that may be made; |
2796 |
the approximate dollar
amount to be expended; and the maximum |
2797 |
additional common expense or
cost to the individual unit owners |
2798 |
that may be charged during
the first annual period of operation |
2799 |
of the modified or added
facilities. |
2800 |
|
2801 |
Descriptions as to
locations, areas, capacities, numbers, |
2802 |
volumes, or sizes may be
stated as approximations or minimums. |
2803 |
(7) A
description of the recreational and other facilities |
2804 |
that will be used in common
with other condominiums, community |
2805 |
associations, or planned
developments which require the payment |
2806 |
of the maintenance and
expenses of such facilities, either |
2807 |
directly or indirectly, by
the unit owners. The description |
2808 |
shall include, but not be
limited to, the following: |
2809 |
(a) Each
building and facility committed to be built. |
2810 |
(b) Facilities
not committed to be built except under |
2811 |
certain conditions, and a
statement of those conditions or |
2812 |
contingencies. |
2813 |
(c) As
to each facility committed to be built, or which |
2814 |
will be committed to be
built upon the happening of one of the |
2815 |
conditions in paragraph (b),
a statement of whether it will be |
2816 |
owned by the unit owners
having the use thereof or by an |
2817 |
association or other entity
which will be controlled by them, or |
2818 |
others, and the location in
the exhibits of the lease or other |
2819 |
document providing for use
of those facilities. |
2820 |
(d) The
year in which each facility will be available for |
2821 |
use by the unit owners or,
in the alternative, the maximum |
2822 |
number of unit owners in the
project at the time each of all of |
2823 |
the facilities is committed
to be completed. |
2824 |
(e) A
general description of the items of personal |
2825 |
property, and the
approximate number of each item of personal |
2826 |
property, that the developer
is committing to furnish for each |
2827 |
room or other facility or,
in the alternative, a representation |
2828 |
as to the minimum amount of
expenditure that will be made to |
2829 |
purchase the personal
property for the facility. |
2830 |
(f) If
there are leases, a description thereof, including |
2831 |
the length of the term, the
rent payable, and a description of |
2832 |
any option to purchase. |
2833 |
|
2834 |
Descriptions shall include
location, areas, capacities, numbers, |
2835 |
volumes, or sizes and may be
stated as approximations or |
2836 |
minimums. |
2837 |
(8) Recreation
lease or associated club membership: |
2838 |
(a) If
any recreational facilities or other facilities |
2839 |
offered by the developer and
available to, or to be used by, |
2840 |
unit owners are to be leased
or have club membership associated, |
2841 |
the following statement in
conspicuous type shall be included: |
2842 |
THERE IS A RECREATIONAL
FACILITIES LEASE ASSOCIATED WITH THIS |
2843 |
CONDOMINIUM; or, THERE IS A
CLUB MEMBERSHIP ASSOCIATED WITH THIS |
2844 |
CONDOMINIUM. There shall be
a reference to the location in the |
2845 |
disclosure materials where
the recreation lease or club |
2846 |
membership is described in
detail. |
2847 |
(b) If
it is mandatory that unit owners pay a fee, rent, |
2848 |
dues, or other charges under
a recreational facilities lease or |
2849 |
club membership for the use
of facilities, there shall be in |
2850 |
conspicuous type the
applicable statement: |
2851 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
2852 |
MANDATORY FOR UNIT OWNERS;
or |
2853 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
2854 |
TO BE LESSEES UNDER THE
RECREATIONAL FACILITIES LEASE; or |
2855 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
2856 |
COSTS AND EXPENSES OF
MAINTENANCE, MANAGEMENT, UPKEEP, |
2857 |
REPLACEMENT, RENT, AND FEES
UNDER THE RECREATIONAL FACILITIES |
2858 |
LEASE (OR THE OTHER
INSTRUMENTS PROVIDING THE FACILITIES); or |
2859 |
4. A
similar statement of the nature of the organization |
2860 |
or the manner in which the
use rights are created, and that unit |
2861 |
owners are required to pay. |
2862 |
|
2863 |
Immediately following the
applicable statement, the location in |
2864 |
the disclosure materials
where the development is described in |
2865 |
detail shall be stated. |
2866 |
(c) If
the developer, or any other person other than the |
2867 |
unit owners and other
persons having use rights in the |
2868 |
facilities, reserves, or is
entitled to receive, any rent, fee, |
2869 |
or other payment for the use
of the facilities, then there shall |
2870 |
be the following statement
in conspicuous type: THE UNIT OWNERS |
2871 |
OR THE ASSOCIATION(S) MUST
PAY RENT OR LAND USE FEES FOR |
2872 |
RECREATIONAL OR OTHER
COMMONLY USED FACILITIES. Immediately |
2873 |
following this statement,
the location in the disclosure |
2874 |
materials where the rent or
land use fees are described in |
2875 |
detail shall be stated. |
2876 |
(d) If,
in any recreation format, whether leasehold, club, |
2877 |
or other, any person other
than the association has the right to |
2878 |
a lien on the units to
secure the payment of assessments, rent, |
2879 |
or other exactions, there
shall appear a statement in |
2880 |
conspicuous type in
substantially the following form: |
2881 |
1. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
2882 |
SECURE THE PAYMENT OF RENT
AND OTHER EXACTIONS UNDER THE |
2883 |
RECREATION LEASE. THE UNIT
OWNER'S FAILURE TO MAKE THESE |
2884 |
PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN; or |
2885 |
2. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
2886 |
SECURE THE PAYMENT OF
ASSESSMENTS OR OTHER EXACTIONS COMING DUE |
2887 |
FOR THE USE, MAINTENANCE,
UPKEEP, OR REPAIR OF THE RECREATIONAL |
2888 |
OR COMMONLY USED FACILITIES.
THE UNIT OWNER'S FAILURE TO MAKE |
2889 |
THESE PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN. |
2890 |
|
2891 |
Immediately following the
applicable statement, the location in |
2892 |
the disclosure materials
where the lien or lien right is |
2893 |
described in detail shall be
stated. |
2894 |
(9) If
the developer or any other person has the right to |
2895 |
increase or add to the
recreational facilities at any time after |
2896 |
the establishment of the
condominium whose unit owners have use |
2897 |
rights therein, without the
consent of the unit owners or |
2898 |
associations being required,
there shall appear a statement in |
2899 |
conspicuous type in
substantially the following form: |
2900 |
RECREATIONAL FACILITIES MAY
BE EXPANDED OR ADDED WITHOUT CONSENT |
2901 |
OF UNIT OWNERS OR THE
ASSOCIATION(S). Immediately following this |
2902 |
statement, the location in
the disclosure materials where such |
2903 |
reserved rights are
described shall be stated. |
2904 |
(10) A
statement of whether the developer's plan includes |
2905 |
a program of leasing units
rather than selling them, or leasing |
2906 |
units and selling them
subject to such leases. If so, there |
2907 |
shall be a description of
the plan, including the number and |
2908 |
identification of the units
and the provisions and term of the |
2909 |
proposed leases, and a
statement in boldfaced type that: THE |
2910 |
UNITS MAY BE TRANSFERRED
SUBJECT TO A LEASE. |
2911 |
(11) The
arrangements for management of the association |
2912 |
and maintenance and
operation of the condominium property and of |
2913 |
other property that will
serve the unit owners of the |
2914 |
condominium property, and a
description of the management |
2915 |
contract and all other
contracts for these purposes having a |
2916 |
term in excess of 1 year,
including the following: |
2917 |
(a) The
names of contracting parties. |
2918 |
(b) The
term of the contract. |
2919 |
(c) The
nature of the services included. |
2920 |
(d) The
compensation, stated on a monthly and annual |
2921 |
basis, and provisions for
increases in the compensation. |
2922 |
(e) A
reference to the volumes and pages of the |
2923 |
condominium documents and of
the exhibits containing copies of |
2924 |
such contracts. |
2925 |
|
2926 |
Copies of all described
contracts shall be attached as exhibits. |
2927 |
If there is a contract for
the management of the condominium |
2928 |
property, then a statement
in conspicuous type in substantially |
2929 |
the following form shall
appear, identifying the proposed or |
2930 |
existing contract manager:
THERE IS (IS TO BE) A CONTRACT FOR |
2931 |
THE MANAGEMENT OF THE
CONDOMINIUM PROPERTY WITH (NAME OF THE |
2932 |
CONTRACT MANAGER).
Immediately following this statement, the |
2933 |
location in the disclosure
materials of the contract for |
2934 |
management of the
condominium property shall be stated. |
2935 |
(12) If
the developer or any other person or persons other |
2936 |
than the unit owners has the
right to retain control of the |
2937 |
board of administration of
the association for a period of time |
2938 |
which can exceed 1 year
after the closing of the sale of a |
2939 |
majority of the units in
that condominium to persons other than |
2940 |
successors or alternate
developers, then a statement in |
2941 |
conspicuous type in
substantially the following form shall be |
2942 |
included: THE DEVELOPER (OR
OTHER PERSON) HAS THE RIGHT TO |
2943 |
RETAIN CONTROL OF THE
ASSOCIATION AFTER A MAJORITY OF THE UNITS |
2944 |
HAVE BEEN SOLD. Immediately
following this statement, the |
2945 |
location in the disclosure
materials where this right to control |
2946 |
is described in detail shall
be stated. |
2947 |
(13) If
there are any restrictions upon the sale, |
2948 |
transfer, conveyance, or
leasing of a unit, then a statement in |
2949 |
conspicuous type in
substantially the following form shall be |
2950 |
included: THE SALE, LEASE,
OR TRANSFER OF UNITS IS RESTRICTED OR |
2951 |
CONTROLLED. Immediately
following this statement, the location |
2952 |
in the disclosure materials
where the restriction, limitation, |
2953 |
or control on the sale,
lease, or transfer of units is described |
2954 |
in detail shall be stated. |
2955 |
(14) If
the condominium is part of a phase project, the |
2956 |
following information shall
be stated: |
2957 |
(a) A
statement in conspicuous type in substantially the |
2958 |
following form: THIS IS A
PHASE CONDOMINIUM. ADDITIONAL LAND AND |
2959 |
UNITS MAY BE ADDED TO THIS
CONDOMINIUM. Immediately following |
2960 |
this statement, the location
in the disclosure materials where |
2961 |
the phasing is described
shall be stated. |
2962 |
(b) A
summary of the provisions of the declaration which |
2963 |
provide for the phasing. |
2964 |
(c) A
statement as to whether or not residential buildings |
2965 |
and units which are added to
the condominium may be |
2966 |
substantially different from
the residential buildings and units |
2967 |
originally in the
condominium. If the added residential |
2968 |
buildings and units may be
substantially different, there shall |
2969 |
be a general description of
the extent to which such added |
2970 |
residential buildings and
units may differ, and a statement in |
2971 |
conspicuous type in
substantially the following form shall be |
2972 |
included: BUILDINGS AND
UNITS WHICH ARE ADDED TO THE CONDOMINIUM |
2973 |
MAY BE SUBSTANTIALLY
DIFFERENT FROM THE OTHER BUILDINGS AND |
2974 |
UNITS IN THE CONDOMINIUM.
Immediately following this statement, |
2975 |
the location in the
disclosure materials where the extent to |
2976 |
which added residential
buildings and units may substantially |
2977 |
differ is described shall be
stated. |
2978 |
(d) A
statement of the maximum number of buildings |
2979 |
containing units, the
maximum and minimum numbers of units in |
2980 |
each building, the maximum
number of units, and the minimum and |
2981 |
maximum square footage of
the units that may be contained within |
2982 |
each parcel of land which
may be added to the condominium. |
2983 |
(15) If
a condominium created on or after July 1, 2000, is |
2984 |
or may become part of a
multicondominium, the following |
2985 |
information must be
provided: |
2986 |
(a) A
statement in conspicuous type in substantially the |
2987 |
following form: THIS
CONDOMINIUM IS (MAY BE) PART OF A |
2988 |
MULTICONDOMINIUM DEVELOPMENT
IN WHICH OTHER CONDOMINIUMS WILL |
2989 |
(MAY) BE OPERATED BY THE
SAME ASSOCIATION. Immediately following |
2990 |
this statement, the location
in the prospectus or offering |
2991 |
circular and its exhibits
where the multicondominium aspects of |
2992 |
the offering are described
must be stated. |
2993 |
(b) A
summary of the provisions in the declaration, |
2994 |
articles of incorporation,
and bylaws which establish and |
2995 |
provide for the operation of
the multicondominium, including a |
2996 |
statement as to whether unit
owners in the condominium will have |
2997 |
the right to use
recreational or other facilities located or |
2998 |
planned to be located in
other condominiums operated by the same |
2999 |
association, and the manner
of sharing the common expenses |
3000 |
related to such facilities. |
3001 |
(c) A
statement of the minimum and maximum number of |
3002 |
condominiums, and the
minimum and maximum number of units in |
3003 |
each of those condominiums,
which will or may be operated by the |
3004 |
association, and the latest
date by which the exact number will |
3005 |
be finally determined. |
3006 |
(d) A
statement as to whether any of the condominiums in |
3007 |
the multicondominium may
include units intended to be used for |
3008 |
nonresidential purposes and
the purpose or purposes permitted |
3009 |
for such use. |
3010 |
(e) A
general description of the location and approximate |
3011 |
acreage of any land on which
any additional condominiums to be |
3012 |
operated by the association
may be located. |
3013 |
(16) If
the condominium is created by conversion of |
3014 |
existing improvements, the
following information shall be |
3015 |
stated: |
3016 |
(a) The
information required by s. 718.616. |
3017 |
(b) A
caveat that there are no express warranties unless |
3018 |
they are stated in writing
by the developer. |
3019 |
(17) A
summary of the restrictions, if any, to be imposed |
3020 |
on units concerning the use
of any of the condominium property, |
3021 |
including statements as to
whether there are restrictions upon |
3022 |
children and pets, and
reference to the volumes and pages of the |
3023 |
condominium documents where
such restrictions are found, or if |
3024 |
such restrictions are
contained elsewhere, then a copy of the |
3025 |
documents containing the
restrictions shall be attached as an |
3026 |
exhibit. |
3027 |
(18) If
there is any land that is offered by the developer |
3028 |
for use by the unit owners
and that is neither owned by them nor |
3029 |
leased to them, the
association, or any entity controlled by |
3030 |
unit owners and other
persons having the use rights to such |
3031 |
land, a statement shall be
made as to how such land will serve |
3032 |
the condominium. If any part
of such land will serve the |
3033 |
condominium, the statement
shall describe the land and the |
3034 |
nature and term of service,
and the declaration or other |
3035 |
instrument creating such
servitude shall be included as an |
3036 |
exhibit. |
3037 |
(19) The
manner in which utility and other services, |
3038 |
including, but not limited
to, sewage and waste disposal, water |
3039 |
supply, and storm drainage,
will be provided and the person or |
3040 |
entity furnishing them. |
3041 |
(20) An
explanation of the manner in which the |
3042 |
apportionment of common
expenses and ownership of the common |
3043 |
elements has been
determined. |
3044 |
(21) An
estimated operating budget for the condominium and |
3045 |
the association, prepared
in good faith, and a schedule of the |
3046 |
unit owner's expenses shall
be attached as an exhibit and shall |
3047 |
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. |
3104 |
(22) A
schedule of estimated closing expenses to be paid |
3105 |
by a buyer or lessee of a
unit and a statement of whether title |
3106 |
opinion or title insurance
policy is available to the buyer and, |
3107 |
if so, at whose expense. |
3108 |
(23) The
identity of the developer and the chief operating |
3109 |
officer or principal
directing the creation and sale of the |
3110 |
condominium and a statement
of its and his or her experience in |
3111 |
this field. |
3112 |
(24) Copies
of the following, to the extent they are |
3113 |
applicable, shall be
included as exhibits: |
3114 |
(a) The
declaration of condominium, or the proposed |
3115 |
declaration if the
declaration has not been recorded. |
3116 |
(b) The
articles of incorporation creating the |
3117 |
association. |
3118 |
(c) The
bylaws of the association. |
3119 |
(d) The
ground lease or other underlying lease of the |
3120 |
condominium. |
3121 |
(e) The
management agreement and all maintenance and other |
3122 |
contracts for management of
the association and operation of the |
3123 |
condominium and facilities
used by the unit owners having a |
3124 |
service term in excess of 1
year. |
3125 |
(f) The
estimated operating budget for the condominium and |
3126 |
the required schedule of
unit owners' expenses. |
3127 |
(g) A
copy of the floor plan of the unit and the plot plan |
3128 |
showing the location of the
residential buildings and the |
3129 |
recreation and other common
areas. |
3130 |
(h) The
lease of recreational and other facilities that |
3131 |
will be used only by unit
owners of the subject condominium. |
3132 |
(i) The
lease of facilities used by owners and others. |
3133 |
(j) The
form of unit lease, if the offer is of a |
3134 |
leasehold. |
3135 |
(k) A
declaration of servitude of properties serving the |
3136 |
condominium but not owned by
unit owners or leased to them or |
3137 |
the association. |
3138 |
(l) The
statement of condition of the existing building or |
3139 |
buildings, if the offering
is of units in an operation being |
3140 |
converted to condominium
ownership. |
3141 |
(m) The
statement of inspection for termite damage and |
3142 |
treatment of the existing
improvements, if the condominium is a |
3143 |
conversion. |
3144 |
(n) The
form of agreement for sale or lease of units. |
3145 |
(o) A
copy of the agreement for escrow of payments made to |
3146 |
the developer prior to
closing. |
3147 |
(p) A
copy of the documents containing any restrictions on |
3148 |
use of the property required
by subsection (17). |
3149 |
(25) Any
prospectus or offering circular complying, prior |
3150 |
to the effective date of
this act, with the provisions of former |
3151 |
ss. 711.69 and 711.802 may
continue to be used without amendment |
3152 |
or may be amended to comply
with the provisions of this chapter. |
3153 |
(26) A
brief narrative description of the location and |
3154 |
effect of all existing and
intended easements located or to be |
3155 |
located on the condominium
property other than those described |
3156 |
in the declaration. |
3157 |
(27) If
the developer is required by state or local |
3158 |
authorities to obtain
acceptance or approval of any dock or |
3159 |
marina facilities intended
to serve the condominium, a copy of |
3160 |
any such acceptance or
approval acquired by the time of filing |
3161 |
with the division under s.
718.502(1) or a statement that such |
3162 |
acceptance or approval has
not been acquired or received. |
3163 |
(28) Evidence
demonstrating that the developer has an |
3164 |
ownership, leasehold, or
contractual interest in the land upon |
3165 |
which the condominium is to
be developed. |
3166 |
Section
40. Section 718.508, Florida Statutes, is amended |
3167 |
to read: |
3168 |
718.508 Regulation
by Division of Hotels and |
3169 |
Restaurants.--In addition to
the authority, regulation, or |
3170 |
control exercised by the
Division of Florida Land Sales, |
3171 |
Condominiums, Homeowners'
Associations, and Mobile Homes |
3172 |
pursuant to this act with
respect to condominiums, buildings |
3173 |
included in a condominium
property shall be subject to the |
3174 |
authority, regulation, or
control of the Division of Hotels and |
3175 |
Restaurants of the
Department of Business and Professional |
3176 |
Regulation, to the extent
provided for in chapter 399. |
3177 |
Section
41. Section 718.509, Florida Statutes, is amended |
3178 |
to read: |
3179 |
718.509 Division
of Florida Land Sales, Condominiums, |
3180 |
Homeowners'
Associations, and Mobile Homes Trust Fund.--All |
3181 |
funds collected by the
division and any amount paid for a fee or |
3182 |
penalty under this chapter
shall be deposited in the State |
3183 |
Treasury to the credit of
the Division of Florida Land Sales, |
3184 |
Condominiums, Homeowners'
Associations, and Mobile Homes Trust |
3185 |
Fund created by s. 498.019. |
3186 |
Section
42. Paragraph (a) of subsection (2) of section |
3187 |
718.608, Florida Statutes,
is amended to read: |
3188 |
718.608 Notice
of intended conversion; time of delivery; |
3189 |
content.-- |
3190 |
(2)(a) Each
notice of intended conversion shall be dated |
3191 |
and in writing. The notice
shall contain the following |
3192 |
statement, with the phrases
of the following statement which |
3193 |
appear in upper case printed
in conspicuous type: |
3194 |
|
3195 |
These
apartments are being converted to condominium by |
3196 |
(name of developer) ,
the developer. |
3197 |
1. YOU
MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
3198 |
YOUR RENTAL AGREEMENT.
FURTHER, YOU MAY EXTEND YOUR RENTAL |
3199 |
AGREEMENT AS FOLLOWS: |
3200 |
a. If
you have continuously been a resident of these |
3201 |
apartments during the last
180 days and your rental agreement |
3202 |
expires during the next 270
days, you may extend your rental |
3203 |
agreement for up to 270 days
after the date of this notice. |
3204 |
b. If
you have not been a continuous resident of these |
3205 |
apartments for the last 180
days and your rental agreement |
3206 |
expires during the next 180
days, you may extend your rental |
3207 |
agreement for up to 180 days
after the date of this notice. |
3208 |
c. IN
ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
3209 |
MUST GIVE THE DEVELOPER
WRITTEN NOTICE WITHIN 45 DAYS AFTER THE |
3210 |
DATE OF THIS NOTICE. |
3211 |
2. IF
YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
3212 |
you may extend your rental
agreement for up to 45 days after the |
3213 |
date of this notice while
you decide whether to extend your |
3214 |
rental agreement as
explained above. To do so, you must notify |
3215 |
the developer in writing.
You will then have the full 45 days to |
3216 |
decide whether to extend
your rental agreement as explained |
3217 |
above. |
3218 |
3. During
the extension of your rental agreement you will |
3219 |
be charged the same rent
that you are now paying. |
3220 |
4. YOU
MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
3221 |
OF THE RENTAL AGREEMENT AS
FOLLOWS: |
3222 |
a. If
your rental agreement began or was extended or |
3223 |
renewed after May 1, 1980,
and your rental agreement, including |
3224 |
extensions and renewals, has
an unexpired term of 180 days or |
3225 |
less, you may cancel your
rental agreement upon 30 days' written |
3226 |
notice and move. Also, upon
30 days' written notice, you may |
3227 |
cancel any extension of the
rental agreement. |
3228 |
b. If
your rental agreement was not begun or was not |
3229 |
extended or renewed after
May 1, 1980, you may not cancel the |
3230 |
rental agreement without the
consent of the developer. If your |
3231 |
rental agreement, including
extensions and renewals, has an |
3232 |
unexpired term of 180 days
or less, you may, however, upon 30 |
3233 |
days' written notice cancel
any extension of the rental |
3234 |
agreement. |
3235 |
5. All
notices must be given in writing and sent by mail, |
3236 |
return receipt requested, or
delivered in person to the |
3237 |
developer at this address:
(name and address of developer) . |
3238 |
6. If
you have continuously been a resident of these |
3239 |
apartments during the last
180 days: |
3240 |
a. You
have the right to purchase your apartment and will |
3241 |
have 45 days to decide
whether to purchase. If you do not buy |
3242 |
the unit at that price and
the unit is later offered at a lower |
3243 |
price, you will have the
opportunity to buy the unit at the |
3244 |
lower price. However, in all
events your right to purchase the |
3245 |
unit ends when the rental
agreement or any extension of the |
3246 |
rental agreement ends or
when you waive this right in writing. |
3247 |
b. Within
90 days you will be provided purchase |
3248 |
information relating to your
apartment, including the price of |
3249 |
your unit and the condition
of the building. If you do not |
3250 |
receive this information
within 90 days, your rental agreement |
3251 |
and any extension will be
extended 1 day for each day over 90 |
3252 |
days until you are given the
purchase information. If you do not |
3253 |
want this rental agreement
extension, you must notify the |
3254 |
developer in writing. |
3255 |
7. If
you have any questions regarding this conversion or |
3256 |
the Condominium Act, you may
contact the developer or the state |
3257 |
agency which regulates
condominiums: The Division of Florida |
3258 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
3259 |
Homes,
(Tallahassee address and telephone number of division) |
3260 |
. |
3261 |
Section
43. Subsection (17) of section 719.103, Florida |
3262 |
Statutes, is amended to
read: |
3263 |
719.103 Definitions.--As
used in this chapter: |
3264 |
(17) "Division"
means the Division of Florida Land Sales, |
3265 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
3266 |
Department of Business
and Professional Regulation. |
3267 |
Section
44. Subsection (7) is added to section 719.1055, |
3268 |
Florida Statutes, to
read: |
3269 |
719.1055 Amendment
of cooperative documents; alteration |
3270 |
and acquisition of
property.-- |
3271 |
(7) Any
amendment restricting cooperative owners' rights |
3272 |
relating to the rental
of units applies only to unit owners who |
3273 |
consent to the
amendment and unit owners who purchase their |
3274 |
units after the
effective date of that amendment. |
3275 |
Section
45. Section 719.1255, Florida Statutes, is amended |
3276 |
to read: |
3277 |
719.1255 Alternative
resolution of disputes.--The Division |
3278 |
of Florida Land Sales,
Condominiums, Homeowners' Associations, |
3279 |
and Mobile Homes of the
Department of Business and Professional |
3280 |
Regulation shall provide
for alternative dispute resolution in |
3281 |
accordance with s.
718.1255. |
3282 |
Section
46. Section 719.501, Florida Statutes, is amended |
3283 |
to read: |
3284 |
719.501 Powers
and duties of Division of Florida Land |
3285 |
Sales, Condominiums, Homeowners'
Associations, and Mobile |
3286 |
Homes.-- |
3287 |
(1) The
Division of Florida Land Sales, Condominiums, |
3288 |
Homeowners'
Associations, and Mobile Homes of the Department of |
3289 |
Business and Professional
Regulation, referred to as the |
3290 |
"division" in
this part, in addition to other powers and duties |
3291 |
prescribed by chapter
498, has the power to enforce and ensure |
3292 |
compliance with the
provisions of this chapter and rules |
3293 |
promulgated pursuant
hereto relating to the development, |
3294 |
construction, sale,
lease, ownership, operation, and management |
3295 |
of residential
cooperative units. In performing its duties, the |
3296 |
division shall have the
following powers and duties: |
3297 |
(a) The
division may make necessary public or private |
3298 |
investigations within or
outside this state to determine whether |
3299 |
any person has violated
this chapter or any rule or order |
3300 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
3301 |
in the adoption of rules
or forms hereunder. |
3302 |
(b) The
division may require or permit any person to file |
3303 |
a statement in writing,
under oath or otherwise, as the division |
3304 |
determines, as to the
facts and circumstances concerning a |
3305 |
matter to be
investigated. |
3306 |
(c) For
the purpose of any investigation under this |
3307 |
chapter, the division
director or any officer or employee |
3308 |
designated by the
division director may administer oaths or |
3309 |
affirmations, subpoena
witnesses and compel their attendance, |
3310 |
take evidence, and
require the production of any matter which is |
3311 |
relevant to the
investigation, including the existence, |
3312 |
description, nature,
custody, condition, and location of any |
3313 |
books, documents, or
other tangible things and the identity and |
3314 |
location of persons
having knowledge of relevant facts or any |
3315 |
other matter reasonably
calculated to lead to the discovery of |
3316 |
material evidence. Upon
failure by a person to obey a subpoena |
3317 |
or to answer questions
propounded by the investigating officer |
3318 |
and upon reasonable
notice to all persons affected thereby, the |
3319 |
division may apply to the
circuit court for an order compelling |
3320 |
compliance. |
3321 |
(d) Notwithstanding
any remedies available to unit owners |
3322 |
and associations, if the
division has reasonable cause to |
3323 |
believe that a violation
of any provision of this chapter or |
3324 |
rule promulgated pursuant
hereto has occurred, the division may |
3325 |
institute enforcement
proceedings in its own name against a |
3326 |
developer, association,
officer, or member of the board, or its |
3327 |
assignees or agents, as
follows: |
3328 |
1. The
division may permit a person whose conduct or |
3329 |
actions may be under
investigation to waive formal proceedings |
3330 |
and enter into a consent
proceeding whereby orders, rules, or |
3331 |
letters of censure or
warning, whether formal or informal, may |
3332 |
be entered against the
person. |
3333 |
2. The
division may issue an order requiring the |
3334 |
developer, association,
officer, or member of the board, or its |
3335 |
assignees or agents, to
cease and desist from the unlawful |
3336 |
practice and take such
affirmative action as in the judgment of |
3337 |
the division will carry
out the purposes of this chapter. Such |
3338 |
affirmative action may
include, but is not limited to, an order |
3339 |
requiring a developer to
pay moneys determined to be owed to a |
3340 |
condominium association. |
3341 |
3. The
division may bring an action in circuit court on |
3342 |
behalf of a class of unit
owners, lessees, or purchasers for |
3343 |
declaratory relief,
injunctive relief, or restitution. |
3344 |
4. The
division may impose a civil penalty against a |
3345 |
developer or association,
or its assignees or agents, for any |
3346 |
violation of this chapter
or a rule promulgated pursuant hereto. |
3347 |
The division may impose a
civil penalty individually against any |
3348 |
officer or board member
who willfully and knowingly violates a |
3349 |
provision of this
chapter, a rule adopted pursuant to this |
3350 |
chapter, or a final order
of the division. The term "willfully |
3351 |
and knowingly" means
that the division informed the officer or |
3352 |
board member that his or
her action or intended action violates |
3353 |
this chapter, a rule
adopted under this chapter, or a final |
3354 |
order of the division,
and that the officer or board member |
3355 |
refused to comply with
the requirements of this chapter, a rule |
3356 |
adopted under this
chapter, or a final order of the division. |
3357 |
The division, prior to
initiating formal agency action under |
3358 |
chapter 120, shall afford
the officer or board member an |
3359 |
opportunity to
voluntarily comply with this chapter, a rule |
3360 |
adopted under this
chapter, or a final order of the division. An |
3361 |
officer or board member
who complies within 10 days is not |
3362 |
subject to a civil
penalty. A penalty may be imposed on the |
3363 |
basis of each day of
continuing violation, but in no event shall |
3364 |
the penalty for any
offense exceed $5,000. By January 1, 1998, |
3365 |
the division shall adopt,
by rule, penalty guidelines applicable |
3366 |
to possible violations or
to categories of violations of this |
3367 |
chapter or rules adopted
by the division. The guidelines must |
3368 |
specify a meaningful
range of civil penalties for each such |
3369 |
violation of the statute
and rules and must be based upon the |
3370 |
harm caused by the
violation, the repetition of the violation, |
3371 |
and upon such other
factors deemed relevant by the division. For |
3372 |
example, the division may
consider whether the violations were |
3373 |
committed by a developer
or owner-controlled association, the |
3374 |
size of the association,
and other factors. The guidelines must |
3375 |
designate the possible
mitigating or aggravating circumstances |
3376 |
that justify a departure
from the range of penalties provided by |
3377 |
the rules. It is the
legislative intent that minor violations be |
3378 |
distinguished from those
which endanger the health, safety, or |
3379 |
welfare of the
cooperative residents or other persons and that |
3380 |
such guidelines provide
reasonable and meaningful notice to the |
3381 |
public of likely
penalties that may be imposed for proscribed |
3382 |
conduct. This subsection
does not limit the ability of the |
3383 |
division to informally
dispose of administrative actions or |
3384 |
complaints by
stipulation, agreed settlement, or consent order. |
3385 |
All amounts collected
shall be deposited with the Chief |
3386 |
Financial Officer to the
credit of the Division of Florida Land |
3387 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
3388 |
Trust Fund. If a
developer fails to pay the civil penalty, the |
3389 |
division shall thereupon
issue an order directing that such |
3390 |
developer cease and
desist from further operation until such |
3391 |
time as the civil penalty
is paid or may pursue enforcement of |
3392 |
the penalty in a court of
competent jurisdiction. If an |
3393 |
association fails to pay
the civil penalty, the division shall |
3394 |
thereupon pursue
enforcement in a court of competent |
3395 |
jurisdiction, and the
order imposing the civil penalty or the |
3396 |
cease and desist order
shall not become effective until 20 days |
3397 |
after the date of such
order. Any action commenced by the |
3398 |
division shall be brought
in the county in which the division |
3399 |
has its executive offices
or in the county where the violation |
3400 |
occurred. |
3401 |
(e) The
division is authorized to prepare and disseminate |
3402 |
a prospectus and other
information to assist prospective owners, |
3403 |
purchasers, lessees, and
developers of residential cooperatives |
3404 |
in assessing the rights,
privileges, and duties pertaining |
3405 |
thereto. |
3406 |
(f) The
division has authority to adopt rules pursuant to |
3407 |
ss. 120.536(1) and 120.54
to implement and enforce the |
3408 |
provisions of this
chapter. |
3409 |
(g) The
division shall establish procedures for providing |
3410 |
notice to an association
when the division is considering the |
3411 |
issuance of a declaratory
statement with respect to the |
3412 |
cooperative documents
governing such cooperative community. |
3413 |
(h) The
division shall furnish each association which pays |
3414 |
the fees required by
paragraph (2)(a) a copy of this act, |
3415 |
subsequent changes to
this act on an annual basis, an amended |
3416 |
version of this act as it
becomes available from the Secretary |
3417 |
of State's office on a
biennial basis, and the rules promulgated |
3418 |
pursuant thereto on an
annual basis. |
3419 |
(i) The
division shall annually provide each association |
3420 |
with a summary of
declaratory statements and formal legal |
3421 |
opinions relating to the
operations of cooperatives which were |
3422 |
rendered by the division
during the previous year. |
3423 |
(j) The
division shall adopt uniform accounting |
3424 |
principles, policies, and
standards to be used by all |
3425 |
associations in the
preparation and presentation of all |
3426 |
financial statements
required by this chapter. The principles, |
3427 |
policies, and standards
shall take into consideration the size |
3428 |
of the association and
the total revenue collected by the |
3429 |
association. |
3430 |
(k) The
division shall provide training programs for |
3431 |
cooperative association
board members and unit owners. |
3432 |
(l) The
division shall maintain a toll-free telephone |
3433 |
number accessible to
cooperative unit owners. |
3434 |
(m) When
a complaint is made to the division, the division |
3435 |
shall conduct its inquiry
with reasonable dispatch and with due |
3436 |
regard to the interests
of the affected parties. Within 30 days |
3437 |
after receipt of a
complaint, the division shall acknowledge the |
3438 |
complaint in writing and
notify the complainant whether the |
3439 |
complaint is within the
jurisdiction of the division and whether |
3440 |
additional information is
needed by the division from the |
3441 |
complainant. The division
shall conduct its investigation and |
3442 |
shall, within 90 days
after receipt of the original complaint or |
3443 |
timely requested
additional information, take action upon the |
3444 |
complaint. However, the
failure to complete the investigation |
3445 |
within 90 days does not
prevent the division from continuing the |
3446 |
investigation, accepting
or considering evidence obtained or |
3447 |
received after 90 days,
or taking administrative action if |
3448 |
reasonable cause exists
to believe that a violation of this |
3449 |
chapter or a rule of the
division has occurred. If an |
3450 |
investigation is not
completed within the time limits |
3451 |
established in this
paragraph, the division shall, on a monthly |
3452 |
basis, notify the
complainant in writing of the status of the |
3453 |
investigation. When
reporting its action to the complainant, the |
3454 |
division shall inform the
complainant of any right to a hearing |
3455 |
pursuant to ss. 120.569
and 120.57. |
3456 |
(n) The
division shall develop a program to certify both |
3457 |
volunteer and paid
mediators to provide mediation of cooperative |
3458 |
disputes. The division
shall provide, upon request, a list of |
3459 |
such mediators to any
association, unit owner, or other |
3460 |
participant in
arbitration proceedings under s. 718.1255 |
3461 |
requesting a copy of the
list. The division shall include on the |
3462 |
list of voluntary
mediators only persons who have received at |
3463 |
least 20 hours of
training in mediation techniques or have |
3464 |
mediated at least 20
disputes. In order to become initially |
3465 |
certified by the
division, paid mediators must be certified by |
3466 |
the Supreme Court to
mediate court cases in either county or |
3467 |
circuit courts. However,
the division may adopt, by rule, |
3468 |
additional factors for
the certification of paid mediators, |
3469 |
which factors must be
related to experience, education, or |
3470 |
background. Any person
initially certified as a paid mediator by |
3471 |
the division must, in
order to continue to be certified, comply |
3472 |
with the factors or
requirements imposed by rules adopted by the |
3473 |
division. |
3474 |
(2)(a) Each
cooperative association shall pay to the |
3475 |
division, on or before
January 1 of each year, an annual fee in |
3476 |
the amount of $4 for each
residential unit in cooperatives |
3477 |
operated by the
association. If the fee is not paid by March 1, |
3478 |
then the association
shall be assessed a penalty of 10 percent |
3479 |
of the amount due, and
the association shall not have the |
3480 |
standing to maintain or
defend any action in the courts of this |
3481 |
state until the amount
due is paid. |
3482 |
(b) All
fees shall be deposited in the Division of Florida |
3483 |
Land Sales, Condominiums,
Homeowners' Associations, and Mobile |
3484 |
Homes Trust Fund as
provided by law. |
3485 |
Section
47. Paragraph (a) of subsection (2) of section |
3486 |
719.502, Florida
Statutes, is amended to read: |
3487 |
719.502 Filing
prior to sale or lease.-- |
3488 |
(2)(a) Prior
to filing as required by subsection (1), and |
3489 |
prior to acquiring an
ownership, leasehold, or contractual |
3490 |
interest in the land upon
which the cooperative is to be |
3491 |
developed, a developer
shall not offer a contract for purchase |
3492 |
or lease of a unit for
more than 5 years. However, the developer |
3493 |
may accept deposits for
reservations upon the approval of a |
3494 |
fully executed escrow
agreement and reservation agreement form |
3495 |
properly filed with the
Division of Florida Land Sales, |
3496 |
Condominiums, Homeowners'
Associations, and Mobile Homes. Each |
3497 |
filing of a proposed
reservation program shall be accompanied by |
3498 |
a filing fee of $250.
Reservations shall not be taken on a |
3499 |
proposed cooperative
unless the developer has an ownership, |
3500 |
leasehold, or contractual
interest in the land upon which the |
3501 |
cooperative is to be
developed. The division shall notify the |
3502 |
developer within 20 days
of receipt of the reservation filing of |
3503 |
any deficiencies
contained therein. Such notification shall not |
3504 |
preclude the
determination of reservation filing deficiencies at |
3505 |
a later date, nor shall
it relieve the developer of any |
3506 |
responsibility under the
law. The escrow agreement and the |
3507 |
reservation agreement
form shall include a statement of the |
3508 |
right of the prospective
purchaser to an immediate unqualified |
3509 |
refund of the reservation
deposit moneys upon written request to |
3510 |
the escrow agent by the
prospective purchaser or the developer. |
3511 |
Section
48. Section 719.504, Florida Statutes, is amended |
3512 |
to read: |
3513 |
719.504 Prospectus
or offering circular.--Every developer |
3514 |
of a residential
cooperative which contains more than 20 |
3515 |
residential units, or
which is part of a group of residential |
3516 |
cooperatives which will
be served by property to be used in |
3517 |
common by unit owners of
more than 20 residential units, shall |
3518 |
prepare a prospectus or
offering circular and file it with the |
3519 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
3520 |
Associations, and
Mobile Homes prior to entering into an |
3521 |
enforceable contract of
purchase and sale of any unit or lease |
3522 |
of a unit for more than 5
years and shall furnish a copy of the |
3523 |
prospectus or offering
circular to each buyer. In addition to |
3524 |
the prospectus or
offering circular, each buyer shall be |
3525 |
furnished a separate page
entitled "Frequently Asked Questions |
3526 |
and Answers," which
must be in accordance with a format approved |
3527 |
by the division. This
page must, in readable language: inform |
3528 |
prospective purchasers
regarding their voting rights and unit |
3529 |
use restrictions,
including restrictions on the leasing of a |
3530 |
unit; indicate whether
and in what amount the unit owners or the |
3531 |
association is obligated
to pay rent or land use fees for |
3532 |
recreational or other
commonly used facilities; contain a |
3533 |
statement identifying
that amount of assessment which, pursuant |
3534 |
to the budget, would be
levied upon each unit type, exclusive of |
3535 |
any special assessments,
and which identifies the basis upon |
3536 |
which assessments are
levied, whether monthly, quarterly, or |
3537 |
otherwise; state and
identify any court cases in which the |
3538 |
association is currently
a party of record in which the |
3539 |
association may face
liability in excess of $100,000; and state |
3540 |
whether membership in a
recreational facilities association is |
3541 |
mandatory and, if so,
identify the fees currently charged per |
3542 |
unit type. The division
shall by rule require such other |
3543 |
disclosure as in its
judgment will assist prospective |
3544 |
purchasers. The
prospectus or offering circular may include more |
3545 |
than one cooperative,
although not all such units are being |
3546 |
offered for sale as of
the date of the prospectus or offering |
3547 |
circular. The prospectus
or offering circular must contain the |
3548 |
following information: |
3549 |
(1) The
front cover or the first page must contain only: |
3550 |
(a) The
name of the cooperative. |
3551 |
(b) The
following statements in conspicuous type: |
3552 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
3553 |
MATTERS TO BE CONSIDERED
IN ACQUIRING A COOPERATIVE UNIT. |
3554 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
3555 |
NATURE. A PROSPECTIVE
PURCHASER SHOULD REFER TO ALL REFERENCES, |
3556 |
ALL EXHIBITS HERETO, THE
CONTRACT DOCUMENTS, AND SALES |
3557 |
MATERIALS. |
3558 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
3559 |
STATING THE
REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS |
3560 |
PROSPECTUS (OFFERING
CIRCULAR) AND ITS EXHIBITS FOR CORRECT |
3561 |
REPRESENTATIONS. |
3562 |
(2) Summary:
The next page must contain all statements |
3563 |
required to be in
conspicuous type in the prospectus or offering |
3564 |
circular. |
3565 |
(3) A
separate index of the contents and exhibits of the |
3566 |
prospectus. |
3567 |
(4) Beginning
on the first page of the text (not including |
3568 |
the summary and index), a
description of the cooperative, |
3569 |
including, but not
limited to, the following information: |
3570 |
(a) Its
name and location. |
3571 |
(b) A
description of the cooperative property, including, |
3572 |
without limitation: |
3573 |
1. The
number of buildings, the number of units in each |
3574 |
building, the number of
bathrooms and bedrooms in each unit, and |
3575 |
the total number of
units, if the cooperative is not a phase |
3576 |
cooperative; or, if the
cooperative is a phase cooperative, the |
3577 |
maximum number of
buildings that may be contained within the |
3578 |
cooperative, the minimum
and maximum number of units in each |
3579 |
building, the minimum and
maximum number of bathrooms and |
3580 |
bedrooms that may be
contained in each unit, and the maximum |
3581 |
number of units that may
be contained within the cooperative. |
3582 |
2. The
page in the cooperative documents where a copy of |
3583 |
the survey and plot plan
of the cooperative is located. |
3584 |
3. The
estimated latest date of completion of |
3585 |
constructing, finishing,
and equipping. In lieu of a date, a |
3586 |
statement that the
estimated date of completion of the |
3587 |
cooperative is in the
purchase agreement and a reference to the |
3588 |
article or paragraph
containing that information. |
3589 |
(c) The
maximum number of units that will use facilities |
3590 |
in common with the
cooperative. If the maximum number of units |
3591 |
will vary, a description
of the basis for variation and the |
3592 |
minimum amount of dollars
per unit to be spent for additional |
3593 |
recreational facilities
or enlargement of such facilities. If |
3594 |
the addition or
enlargement of facilities will result in a |
3595 |
material increase of a
unit owner's maintenance expense or |
3596 |
rental expense, if any,
the maximum increase and limitations |
3597 |
thereon shall be stated. |
3598 |
(5)(a) A
statement in conspicuous type describing whether |
3599 |
the cooperative is
created and being sold as fee simple |
3600 |
interests or as leasehold
interests. If the cooperative is |
3601 |
created or being sold on
a leasehold, the location of the lease |
3602 |
in the disclosure
materials shall be stated. |
3603 |
(b) If
timeshare estates are or may be created with |
3604 |
respect to any unit in
the cooperative, a statement in |
3605 |
conspicuous type stating
that timeshare estates are created and |
3606 |
being sold in such
specified units in the cooperative. |
3607 |
(6) A
description of the recreational and other common |
3608 |
areas that will be used
only by unit owners of the cooperative, |
3609 |
including, but not
limited to, the following: |
3610 |
(a) Each
room and its intended purposes, location, |
3611 |
approximate floor area,
and capacity in numbers of people. |
3612 |
(b) Each
swimming pool, as to its general location, |
3613 |
approximate size and
depths, approximate deck size and capacity, |
3614 |
and whether heated. |
3615 |
(c) Additional
facilities, as to the number of each |
3616 |
facility, its approximate
location, approximate size, and |
3617 |
approximate capacity. |
3618 |
(d) A
general description of the items of personal |
3619 |
property and the
approximate number of each item of personal |
3620 |
property that the
developer is committing to furnish for each |
3621 |
room or other facility
or, in the alternative, a representation |
3622 |
as to the minimum amount
of expenditure that will be made to |
3623 |
purchase the personal
property for the facility. |
3624 |
(e) The
estimated date when each room or other facility |
3625 |
will be available for use
by the unit owners. |
3626 |
(f)1. An
identification of each room or other facility to |
3627 |
be used by unit owners
that will not be owned by the unit owners |
3628 |
or the association; |
3629 |
2. A
reference to the location in the disclosure materials |
3630 |
of the lease or other
agreements providing for the use of those |
3631 |
facilities; and |
3632 |
3. A
description of the terms of the lease or other |
3633 |
agreements, including the
length of the term; the rent payable, |
3634 |
directly or indirectly,
by each unit owner, and the total rent |
3635 |
payable to the lessor,
stated in monthly and annual amounts for |
3636 |
the entire term of the
lease; and a description of any option to |
3637 |
purchase the property
leased under any such lease, including the |
3638 |
time the option may be
exercised, the purchase price or how it |
3639 |
is to be determined, the
manner of payment, and whether the |
3640 |
option may be exercised
for a unit owner's share or only as to |
3641 |
the entire leased
property. |
3642 |
(g) A
statement as to whether the developer may provide |
3643 |
additional facilities not
described above, their general |
3644 |
locations and types,
improvements or changes that may be made, |
3645 |
the approximate dollar
amount to be expended, and the maximum |
3646 |
additional common expense
or cost to the individual unit owners |
3647 |
that may be charged
during the first annual period of operation |
3648 |
of the modified or added
facilities. |
3649 |
|
3650 |
Descriptions as to
locations, areas, capacities, numbers, |
3651 |
volumes, or sizes may be
stated as approximations or minimums. |
3652 |
(7) A
description of the recreational and other facilities |
3653 |
that will be used in
common with other cooperatives, community |
3654 |
associations, or planned
developments which require the payment |
3655 |
of the maintenance and
expenses of such facilities, either |
3656 |
directly or indirectly,
by the unit owners. The description |
3657 |
shall include, but not be
limited to, the following: |
3658 |
(a) Each
building and facility committed to be built. |
3659 |
(b) Facilities
not committed to be built except under |
3660 |
certain conditions, and a
statement of those conditions or |
3661 |
contingencies. |
3662 |
(c) As
to each facility committed to be built, or which |
3663 |
will be committed to be
built upon the happening of one of the |
3664 |
conditions in paragraph
(b), a statement of whether it will be |
3665 |
owned by the unit owners
having the use thereof or by an |
3666 |
association or other
entity which will be controlled by them, or |
3667 |
others, and the location
in the exhibits of the lease or other |
3668 |
document providing for
use of those facilities. |
3669 |
(d) The
year in which each facility will be available for |
3670 |
use by the unit owners
or, in the alternative, the maximum |
3671 |
number of unit owners in
the project at the time each of all of |
3672 |
the facilities is
committed to be completed. |
3673 |
(e) A
general description of the items of personal |
3674 |
property, and the
approximate number of each item of personal |
3675 |
property, that the
developer is committing to furnish for each |
3676 |
room or other facility
or, in the alternative, a representation |
3677 |
as to the minimum amount
of expenditure that will be made to |
3678 |
purchase the personal
property for the facility. |
3679 |
(f) If
there are leases, a description thereof, including |
3680 |
the length of the term,
the rent payable, and a description of |
3681 |
any option to purchase. |
3682 |
|
3683 |
Descriptions shall
include location, areas, capacities, numbers, |
3684 |
volumes, or sizes and may
be stated as approximations or |
3685 |
minimums. |
3686 |
(8) Recreation
lease or associated club membership: |
3687 |
(a) If
any recreational facilities or other common areas |
3688 |
offered by the developer
and available to, or to be used by, |
3689 |
unit owners are to be
leased or have club membership associated, |
3690 |
the following statement
in conspicuous type shall be included: |
3691 |
THERE IS A RECREATIONAL
FACILITIES LEASE ASSOCIATED WITH THIS |
3692 |
COOPERATIVE; or, THERE IS
A CLUB MEMBERSHIP ASSOCIATED WITH THIS |
3693 |
COOPERATIVE. There shall
be a reference to the location in the |
3694 |
disclosure materials
where the recreation lease or club |
3695 |
membership is described
in detail. |
3696 |
(b) If
it is mandatory that unit owners pay a fee, rent, |
3697 |
dues, or other charges
under a recreational facilities lease or |
3698 |
club membership for the
use of facilities, there shall be in |
3699 |
conspicuous type the
applicable statement: |
3700 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
3701 |
MANDATORY FOR UNIT
OWNERS; or |
3702 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
3703 |
TO BE LESSEES UNDER THE
RECREATIONAL FACILITIES LEASE; or |
3704 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
3705 |
COSTS AND EXPENSES OF
MAINTENANCE, MANAGEMENT, UPKEEP, |
3706 |
REPLACEMENT, RENT, AND
FEES UNDER THE RECREATIONAL FACILITIES |
3707 |
LEASE (OR THE OTHER
INSTRUMENTS PROVIDING THE FACILITIES); or |
3708 |
4. A
similar statement of the nature of the organization |
3709 |
or manner in which the
use rights are created, and that unit |
3710 |
owners are required to
pay. |
3711 |
|
3712 |
Immediately following the
applicable statement, the location in |
3713 |
the disclosure materials
where the development is described in |
3714 |
detail shall be stated. |
3715 |
(c) If
the developer, or any other person other than the |
3716 |
unit owners and other
persons having use rights in the |
3717 |
facilities, reserves, or
is entitled to receive, any rent, fee, |
3718 |
or other payment for the
use of the facilities, then there shall |
3719 |
be the following
statement in conspicuous type: THE UNIT OWNERS |
3720 |
OR THE ASSOCIATION(S)
MUST PAY RENT OR LAND USE FEES FOR |
3721 |
RECREATIONAL OR OTHER
COMMON AREAS. Immediately following this |
3722 |
statement, the location
in the disclosure materials where the |
3723 |
rent or land use fees are
described in detail shall be stated. |
3724 |
(d) If,
in any recreation format, whether leasehold, club, |
3725 |
or other, any person
other than the association has the right to |
3726 |
a lien on the units to
secure the payment of assessments, rent, |
3727 |
or other exactions, there
shall appear a statement in |
3728 |
conspicuous type in
substantially the following form: |
3729 |
1. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
3730 |
SECURE THE PAYMENT OF
RENT AND OTHER EXACTIONS UNDER THE |
3731 |
RECREATION LEASE. THE
UNIT OWNER'S FAILURE TO MAKE THESE |
3732 |
PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN; or |
3733 |
2. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
3734 |
SECURE THE PAYMENT OF
ASSESSMENTS OR OTHER EXACTIONS COMING DUE |
3735 |
FOR THE USE, MAINTENANCE,
UPKEEP, OR REPAIR OF THE RECREATIONAL |
3736 |
OR COMMONLY USED AREAS.
THE UNIT OWNER'S FAILURE TO MAKE THESE |
3737 |
PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN. |
3738 |
|
3739 |
Immediately following the
applicable statement, the location in |
3740 |
the disclosure materials
where the lien or lien right is |
3741 |
described in detail shall
be stated. |
3742 |
(9) If
the developer or any other person has the right to |
3743 |
increase or add to the
recreational facilities at any time after |
3744 |
the establishment of the
cooperative whose unit owners have use |
3745 |
rights therein, without
the consent of the unit owners or |
3746 |
associations being
required, there shall appear a statement in |
3747 |
conspicuous type in
substantially the following form: |
3748 |
RECREATIONAL FACILITIES
MAY BE EXPANDED OR ADDED WITHOUT CONSENT |
3749 |
OF UNIT OWNERS OR THE
ASSOCIATION(S). Immediately following this |
3750 |
statement, the location
in the disclosure materials where such |
3751 |
reserved rights are
described shall be stated. |
3752 |
(10) A
statement of whether the developer's plan includes |
3753 |
a program of leasing
units rather than selling them, or leasing |
3754 |
units and selling them
subject to such leases. If so, there |
3755 |
shall be a description of
the plan, including the number and |
3756 |
identification of the
units and the provisions and term of the |
3757 |
proposed leases, and a
statement in boldfaced type that: THE |
3758 |
UNITS MAY BE TRANSFERRED
SUBJECT TO A LEASE. |
3759 |
(11) The
arrangements for management of the association |
3760 |
and maintenance and
operation of the cooperative property and of |
3761 |
other property that will
serve the unit owners of the |
3762 |
cooperative property, and
a description of the management |
3763 |
contract and all other
contracts for these purposes having a |
3764 |
term in excess of 1 year,
including the following: |
3765 |
(a) The
names of contracting parties. |
3766 |
(b) The
term of the contract. |
3767 |
(c) The
nature of the services included. |
3768 |
(d) The
compensation, stated on a monthly and annual |
3769 |
basis, and provisions for
increases in the compensation. |
3770 |
(e) A
reference to the volumes and pages of the |
3771 |
cooperative documents and
of the exhibits containing copies of |
3772 |
such contracts. |
3773 |
|
3774 |
Copies of all described
contracts shall be attached as exhibits. |
3775 |
If there is a contract
for the management of the cooperative |
3776 |
property, then a
statement in conspicuous type in substantially |
3777 |
the following form shall
appear, identifying the proposed or |
3778 |
existing contract
manager: THERE IS (IS TO BE) A CONTRACT FOR |
3779 |
THE MANAGEMENT OF THE
COOPERATIVE PROPERTY WITH (NAME OF THE |
3780 |
CONTRACT MANAGER).
Immediately following this statement, the |
3781 |
location in the
disclosure materials of the contract for |
3782 |
management of the
cooperative property shall be stated. |
3783 |
(12) If
the developer or any other person or persons other |
3784 |
than the unit owners has
the right to retain control of the |
3785 |
board of administration
of the association for a period of time |
3786 |
which can exceed 1 year
after the closing of the sale of a |
3787 |
majority of the units in
that cooperative to persons other than |
3788 |
successors or alternate
developers, then a statement in |
3789 |
conspicuous type in
substantially the following form shall be |
3790 |
included: THE DEVELOPER
(OR OTHER PERSON) HAS THE RIGHT TO |
3791 |
RETAIN CONTROL OF THE
ASSOCIATION AFTER A MAJORITY OF THE UNITS |
3792 |
HAVE BEEN SOLD.
Immediately following this statement, the |
3793 |
location in the
disclosure materials where this right to control |
3794 |
is described in detail
shall be stated. |
3795 |
(13) If
there are any restrictions upon the sale, |
3796 |
transfer, conveyance, or
leasing of a unit, then a statement in |
3797 |
conspicuous type in
substantially the following form shall be |
3798 |
included: THE SALE,
LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR |
3799 |
CONTROLLED. Immediately
following this statement, the location |
3800 |
in the disclosure
materials where the restriction, limitation, |
3801 |
or control on the sale,
lease, or transfer of units is described |
3802 |
in detail shall be
stated. |
3803 |
(14) If
the cooperative is part of a phase project, the |
3804 |
following shall be
stated: |
3805 |
(a) A
statement in conspicuous type in substantially the |
3806 |
following form shall be
included: THIS IS A PHASE COOPERATIVE. |
3807 |
ADDITIONAL LAND AND UNITS
MAY BE ADDED TO THIS COOPERATIVE. |
3808 |
Immediately following
this statement, the location in the |
3809 |
disclosure materials
where the phasing is described shall be |
3810 |
stated. |
3811 |
(b) A
summary of the provisions of the declaration |
3812 |
providing for the
phasing. |
3813 |
(c) A
statement as to whether or not residential buildings |
3814 |
and units which are added
to the cooperative may be |
3815 |
substantially different
from the residential buildings and units |
3816 |
originally in the
cooperative, and, if the added residential |
3817 |
buildings and units may
be substantially different, there shall |
3818 |
be a general description
of the extent to which such added |
3819 |
residential buildings and
units may differ, and a statement in |
3820 |
conspicuous type in
substantially the following form shall be |
3821 |
included: BUILDINGS AND
UNITS WHICH ARE ADDED TO THE COOPERATIVE |
3822 |
MAY BE SUBSTANTIALLY
DIFFERENT FROM THE OTHER BUILDINGS AND |
3823 |
UNITS IN THE COOPERATIVE.
Immediately following this statement, |
3824 |
the location in the
disclosure materials where the extent to |
3825 |
which added residential
buildings and units may substantially |
3826 |
differ is described shall
be stated. |
3827 |
(d) A
statement of the maximum number of buildings |
3828 |
containing units, the
maximum and minimum number of units in |
3829 |
each building, the
maximum number of units, and the minimum and |
3830 |
maximum square footage of
the units that may be contained within |
3831 |
each parcel of land which
may be added to the cooperative. |
3832 |
(15) If
the cooperative is created by conversion of |
3833 |
existing improvements,
the following information shall be |
3834 |
stated: |
3835 |
(a) The
information required by s. 719.616. |
3836 |
(b) A
caveat that there are no express warranties unless |
3837 |
they are stated in
writing by the developer. |
3838 |
(16) A
summary of the restrictions, if any, to be imposed |
3839 |
on units concerning the
use of any of the cooperative property, |
3840 |
including statements as
to whether there are restrictions upon |
3841 |
children and pets, and
reference to the volumes and pages of the |
3842 |
cooperative documents
where such restrictions are found, or if |
3843 |
such restrictions are
contained elsewhere, then a copy of the |
3844 |
documents containing the
restrictions shall be attached as an |
3845 |
exhibit. |
3846 |
(17) If
there is any land that is offered by the developer |
3847 |
for use by the unit
owners and that is neither owned by them nor |
3848 |
leased to them, the
association, or any entity controlled by |
3849 |
unit owners and other
persons having the use rights to such |
3850 |
land, a statement shall
be made as to how such land will serve |
3851 |
the cooperative. If any
part of such land will serve the |
3852 |
cooperative, the
statement shall describe the land and the |
3853 |
nature and term of
service, and the cooperative documents or |
3854 |
other instrument creating
such servitude shall be included as an |
3855 |
exhibit. |
3856 |
(18) The
manner in which utility and other services, |
3857 |
including, but not
limited to, sewage and waste disposal, water |
3858 |
supply, and storm
drainage, will be provided and the person or |
3859 |
entity furnishing them. |
3860 |
(19) An
explanation of the manner in which the |
3861 |
apportionment of common
expenses and ownership of the common |
3862 |
areas have been
determined. |
3863 |
(20) An
estimated operating budget for the cooperative and |
3864 |
the association, and a
schedule of the unit owner's expenses |
3865 |
shall be attached as an
exhibit and shall contain the following |
3866 |
information: |
3867 |
(a) The
estimated monthly and annual expenses of the |
3868 |
cooperative and the
association that are collected from unit |
3869 |
owners by assessments. |
3870 |
(b) The
estimated monthly and annual expenses of each unit |
3871 |
owner for a unit, other
than assessments payable to the |
3872 |
association, payable by
the unit owner to persons or entities |
3873 |
other than the
association, and the total estimated monthly and |
3874 |
annual expense. There may
be excluded from this estimate |
3875 |
expenses that are
personal to unit owners, which are not |
3876 |
uniformly incurred by all
unit owners, or which are not provided |
3877 |
for or contemplated by
the cooperative documents, including, but |
3878 |
not limited to, the costs
of private telephone; maintenance of |
3879 |
the interior of
cooperative units, which is not the obligation |
3880 |
of the association; maid
or janitorial services privately |
3881 |
contracted for by the
unit owners; utility bills billed directly |
3882 |
to each unit owner for
utility services to his or her unit; |
3883 |
insurance premiums other
than those incurred for policies |
3884 |
obtained by the
cooperative; and similar personal expenses of |
3885 |
the unit owner. A unit
owner's estimated payments for |
3886 |
assessments shall also be
stated in the estimated amounts for |
3887 |
the times when they will
be due. |
3888 |
(c) The
estimated items of expenses of the cooperative and |
3889 |
the association, except
as excluded under paragraph (b), |
3890 |
including, but not
limited to, the following items, which shall |
3891 |
be stated either as an
association expense collectible by |
3892 |
assessments or as unit
owners' expenses payable to persons other |
3893 |
than the association: |
3894 |
1. Expenses
for the association and cooperative: |
3895 |
a. Administration
of the association. |
3896 |
b. Management
fees. |
3897 |
c. Maintenance. |
3898 |
d. Rent
for recreational and other commonly used areas. |
3899 |
e. Taxes
upon association property. |
3900 |
f. Taxes
upon leased areas. |
3901 |
g. Insurance. |
3902 |
h. Security
provisions. |
3903 |
i. Other
expenses. |
3904 |
j. Operating
capital. |
3905 |
k. Reserves. |
3906 |
l. Fee
payable to the division. |
3907 |
2. Expenses
for a unit owner: |
3908 |
a. Rent
for the unit, if subject to a lease. |
3909 |
b. Rent
payable by the unit owner directly to the lessor |
3910 |
or agent under any
recreational lease or lease for the use of |
3911 |
commonly used areas,
which use and payment are a mandatory |
3912 |
condition of ownership
and are not included in the common |
3913 |
expense or assessments
for common maintenance paid by the unit |
3914 |
owners to the
association. |
3915 |
(d) The
estimated amounts shall be stated for a period of |
3916 |
at least 12 months and
may distinguish between the period prior |
3917 |
to the time unit owners
other than the developer elect a |
3918 |
majority of the board of
administration and the period after |
3919 |
that date. |
3920 |
(21) A
schedule of estimated closing expenses to be paid |
3921 |
by a buyer or lessee of a
unit and a statement of whether title |
3922 |
opinion or title
insurance policy is available to the buyer and, |
3923 |
if so, at whose expense. |
3924 |
(22) The
identity of the developer and the chief operating |
3925 |
officer or principal
directing the creation and sale of the |
3926 |
cooperative and a
statement of its and his or her experience in |
3927 |
this field. |
3928 |
(23) Copies
of the following, to the extent they are |
3929 |
applicable, shall be
included as exhibits: |
3930 |
(a) The
cooperative documents, or the proposed cooperative |
3931 |
documents if the
documents have not been recorded. |
3932 |
(b) The
articles of incorporation creating the |
3933 |
association. |
3934 |
(c) The
bylaws of the association. |
3935 |
(d) The
ground lease or other underlying lease of the |
3936 |
cooperative. |
3937 |
(e) The
management agreement and all maintenance and other |
3938 |
contracts for management
of the association and operation of the |
3939 |
cooperative and
facilities used by the unit owners having a |
3940 |
service term in excess of
1 year. |
3941 |
(f) The
estimated operating budget for the cooperative and |
3942 |
the required schedule of
unit owners' expenses. |
3943 |
(g) A
copy of the floor plan of the unit and the plot plan |
3944 |
showing the location of
the residential buildings and the |
3945 |
recreation and other
common areas. |
3946 |
(h) The
lease of recreational and other facilities that |
3947 |
will be used only by unit
owners of the subject cooperative. |
3948 |
(i) The
lease of facilities used by owners and others. |
3949 |
(j) The
form of unit lease, if the offer is of a |
3950 |
leasehold. |
3951 |
(k) A
declaration of servitude of properties serving the |
3952 |
cooperative but not owned
by unit owners or leased to them or |
3953 |
the association. |
3954 |
(l) The
statement of condition of the existing building or |
3955 |
buildings, if the
offering is of units in an operation being |
3956 |
converted to cooperative
ownership. |
3957 |
(m) The
statement of inspection for termite damage and |
3958 |
treatment of the existing
improvements, if the cooperative is a |
3959 |
conversion. |
3960 |
(n) The
form of agreement for sale or lease of units. |
3961 |
(o) A
copy of the agreement for escrow of payments made to |
3962 |
the developer prior to
closing. |
3963 |
(p) A
copy of the documents containing any restrictions on |
3964 |
use of the property
required by subsection (16). |
3965 |
(24) Any
prospectus or offering circular complying with |
3966 |
the provisions of former
ss. 711.69 and 711.802 may continue to |
3967 |
be used without
amendment, or may be amended to comply with the |
3968 |
provisions of this
chapter. |
3969 |
(25) A
brief narrative description of the location and |
3970 |
effect of all existing
and intended easements located or to be |
3971 |
located on the
cooperative property other than those in the |
3972 |
declaration. |
3973 |
(26) If
the developer is required by state or local |
3974 |
authorities to obtain
acceptance or approval of any dock or |
3975 |
marina facility intended
to serve the cooperative, a copy of |
3976 |
such acceptance or
approval acquired by the time of filing with |
3977 |
the division pursuant to
s. 719.502 or a statement that such |
3978 |
acceptance has not been
acquired or received. |
3979 |
(27) Evidence
demonstrating that the developer has an |
3980 |
ownership, leasehold, or
contractual interest in the land upon |
3981 |
which the cooperative is
to be developed. |
3982 |
Section
49. Section 719.508, Florida Statutes, is amended |
3983 |
to read: |
3984 |
719.508 Regulation
by Division of Hotels and |
3985 |
Restaurants.--In addition
to the authority, regulation, or |
3986 |
control exercised by the
Division of Florida Land Sales, |
3987 |
Condominiums, Homeowners'
Associations, and Mobile Homes |
3988 |
pursuant to this act with
respect to cooperatives, buildings |
3989 |
included in a cooperative
property shall be subject to the |
3990 |
authority, regulation, or
control of the Division of Hotels and |
3991 |
Restaurants of the
Department of Business and Professional |
3992 |
Regulation, to the extent
provided for in chapters 399 and 509. |
3993 |
Section
50. Paragraph (a) of subsection (2) of section |
3994 |
719.608, Florida
Statutes, is amended to read: |
3995 |
719.608 Notice
of intended conversion; time of delivery; |
3996 |
content.-- |
3997 |
(2)(a) Each
notice of intended conversion shall be dated |
3998 |
and in writing. The
notice shall contain the following |
3999 |
statement, with the
phrases of the following statement which |
4000 |
appear in upper case
printed in conspicuous type: |
4001 |
|
4002 |
These
apartments are being converted to cooperative by |
4003 |
(name of developer) ,
the developer. |
4004 |
1. YOU
MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
4005 |
YOUR RENTAL AGREEMENT.
FURTHER, YOU MAY EXTEND YOUR RENTAL |
4006 |
AGREEMENT AS FOLLOWS: |
4007 |
a. If
you have continuously been a resident of these |
4008 |
apartments during the
last 180 days and your rental agreement |
4009 |
expires during the next
270 days, you may extend your rental |
4010 |
agreement for up to 270
days after the date of this notice. |
4011 |
b. If
you have not been a continuous resident of these |
4012 |
apartments for the last
180 days and your rental agreement |
4013 |
expires during the next
180 days, you may extend your rental |
4014 |
agreement for up to 180
days after the date of this notice. |
4015 |
c. IN
ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
4016 |
MUST GIVE THE DEVELOPER
WRITTEN NOTICE WITHIN 45 DAYS AFTER THE |
4017 |
DATE OF THIS NOTICE. |
4018 |
2. IF
YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
4019 |
you may extend your
rental agreement for up to 45 days after the |
4020 |
date of this notice while
you decide whether to extend your |
4021 |
rental agreement as
explained above. To do so, you must notify |
4022 |
the developer in writing.
You will then have the full 45 days to |
4023 |
decide whether to extend
your rental agreement as explained |
4024 |
above. |
4025 |
3. During
the extension of your rental agreement you will |
4026 |
be charged the same rent
that you are now paying. |
4027 |
4. YOU
MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
4028 |
OF THE RENTAL AGREEMENT
AS FOLLOWS: |
4029 |
a. If
your rental agreement began or was extended or |
4030 |
renewed after May 1,
1980, and your rental agreement, including |
4031 |
extensions and renewals,
has an unexpired term of 180 days or |
4032 |
less, you may cancel your
rental agreement upon 30 days' written |
4033 |
notice and move. Also,
upon 30 days' written notice, you may |
4034 |
cancel any extension of
the rental agreement. |
4035 |
b. If
your rental agreement was not begun or was not |
4036 |
extended or renewed after
May 1, 1980, you may not cancel the |
4037 |
rental agreement without
the consent of the developer. If your |
4038 |
rental agreement,
including extensions and renewals, has an |
4039 |
unexpired term of 180
days or less, you may, however, upon 30 |
4040 |
days' written notice
cancel any extension of the rental |
4041 |
agreement. |
4042 |
5. All
notices must be given in writing and sent by mail, |
4043 |
return receipt requested,
or delivered in person to the |
4044 |
developer at this
address: (name and address of developer) . |
4045 |
6. If
you have continuously been a resident of these |
4046 |
apartments during the
last 180 days: |
4047 |
a. You
have the right to purchase your apartment and will |
4048 |
have 45 days to decide
whether to purchase. If you do not buy |
4049 |
the unit at that price
and the unit is later offered at a lower |
4050 |
price, you will have the
opportunity to buy the unit at the |
4051 |
lower price. However, in
all events your right to purchase the |
4052 |
unit ends when the rental
agreement or any extension of the |
4053 |
rental agreement ends or
when you waive this right in writing. |
4054 |
b. Within
90 days you will be provided purchase |
4055 |
information relating to
your apartment, including the price of |
4056 |
your unit and the
condition of the building. If you do not |
4057 |
receive this information
within 90 days, your rental agreement |
4058 |
and any extension will be
extended 1 day for each day over 90 |
4059 |
days until you are given
the purchase information. If you do not |
4060 |
want this rental
agreement extension, you must notify the |
4061 |
developer in writing. |
4062 |
7. If
you have any questions regarding this conversion or |
4063 |
the Cooperative Act, you
may contact the developer or the state |
4064 |
agency which regulates
cooperatives: The Division of Florida |
4065 |
Land Sales, Condominiums,
Homeowners' Associations, and Mobile |
4066 |
Homes,
(Tallahassee address and telephone number of division) |
4067 |
. |
4068 |
Section
51. Subsections (2), (4), (7), (8), (9), and (10) |
4069 |
of section 720.301,
Florida Statutes, are amended, and |
4070 |
subsection (14) is added
to that section, to read: |
4071 |
720.301 Definitions.--As
used in this chapter, the term: |
4072 |
(2) "Common
area" means all real property within a |
4073 |
community which is owned
or leased by an association or |
4074 |
dedicated
for use or maintenance by the association or its |
4075 |
members, including,
regardless of whether title has been |
4076 |
conveyed to the
association: |
4077 |
(a) Real
property the use of which is dedicated to the |
4078 |
association or its
members by a recorded plat; or |
4079 |
(b) Real
property committed by a declaration of covenants |
4080 |
to be leased or conveyed
to the association. |
4081 |
(4) "Declaration
of covenants," or "declaration," means a |
4082 |
recorded written
instrument in the nature of covenants running |
4083 |
with the land,
according to the recorded plat, which subjects |
4084 |
the land comprising the
community to the jurisdiction and |
4085 |
control of an association
or associations in which the owners of |
4086 |
the parcels,
or their association representatives, must be |
4087 |
members. Upon
the execution of the sale of the first lot, a |
4088 |
declaration
may not be amended without the vote of approval of |
4089 |
two-thirds
majority of the owners of residential parcels that |
4090 |
have
been purchased, with a tie vote resulting in a negative |
4091 |
vote.
Exceptions shall be amendments identifying additional |
4092 |
phases
of the community as they are constructed. These |
4093 |
amendments
may not contain any other changes to the existing |
4094 |
declaration. |
4095 |
(7) "Division"
means the Division of Florida Land Sales, |
4096 |
Condominiums, Homeowners'
Associations, and Mobile Homes in the |
4097 |
Department of Business
and Professional Regulation. |
4098 |
(8) "Governing
documents" means: |
4099 |
(a) Each
set of The recorded
declaration of covenants for |
4100 |
a community, and all duly
adopted and recorded amendments, |
4101 |
supplements, and recorded
exhibits thereto; and |
4102 |
(b) The
articles of incorporation and bylaws of the |
4103 |
homeowners' association,
and any duly adopted amendments |
4104 |
thereto. |
4105 |
|
4106 |
When
different sets of covenants exist for each recorded plat, |
4107 |
those
covenants shall only apply to the plat for which they are |
4108 |
recorded
and specified. The different sets of covenants may not |
4109 |
be
commingled. |
4110 |
(9) "Homeowners'
association" or "association" means a |
4111 |
Florida corporation,
as authorized by chapter 720 or an |
4112 |
authorized
not-for-profit corporation pursuant to chapter 617, |
4113 |
responsible for the administration
operation of a community or a |
4114 |
mobile home subdivision
in compliance with applicable federal, |
4115 |
state,
and local laws and the governing documents of the |
4116 |
association.
In addition, a homeowners' association means a |
4117 |
Florida
corporation in which the voting membership is made up of |
4118 |
parcel owners or their
agents, or a combination thereof, and in |
4119 |
which membership is a
mandatory condition of parcel ownership, |
4120 |
and which is authorized
to impose assessments that, if unpaid, |
4121 |
may become a lien on the
parcel. Any homeowners' association or |
4122 |
other
named association that administers a residential community |
4123 |
where
membership is mandatory shall be required to comply with |
4124 |
this
chapter, except if exempted. The term "homeowners' |
4125 |
association" does
not include a community development district |
4126 |
or other similar special
taxing district created pursuant to |
4127 |
statute. |
4128 |
(10) "Member"
means a member of an association, and may |
4129 |
include, but is not
limited to, a parcel owner or an association |
4130 |
representing
parcel owners or a combination thereof, and |
4131 |
includes any person or
entity obligated by the governing |
4132 |
documents to pay an
assessment or amenity fee. |
4133 |
(14) "Homeowners'
Association Advisory Council" means a |
4134 |
group
of persons appointed to recommend changes in laws that |
4135 |
affect
the administration of mandatory homeowners' associations. |
4136 |
Section
52. Subsections (1) and (2) of section 720.302, |
4137 |
Florida Statutes, are
amended to read: |
4138 |
720.302 Purposes,
scope, and application.-- |
4139 |
(1) The
purposes of this chapter are to give statutory |
4140 |
recognition to
corporations not for profit that administer
or |
4141 |
operate residential
communities in this state, to provide |
4142 |
regulations
procedures for operating
homeowners' associations, |
4143 |
and to protect the rights
of association members without unduly |
4144 |
impairing the ability of
such associations to perform their |
4145 |
functions as
authorized by federal, state, and local laws and |
4146 |
the
governing documents of the association. |
4147 |
(2) Having
provided certain powers and authority to |
4148 |
homeowners'
associations and deed restrictions created by |
4149 |
developers
of mandated properties in residential communities, |
4150 |
the Legislature
recognizes that it is necessary to provide |
4151 |
regulatory
oversight to ensure compliance with federal, state, |
4152 |
and
local laws. It is the intent of the Legislature to protect |
4153 |
the
rights of parcel owners by ensuring that the powers and |
4154 |
authority
granted to homeowners' associations and deed |
4155 |
restrictions
created by developers of mandated properties in |
4156 |
residential
communities conform to a system of checks and |
4157 |
balances
to prevent abuses of governmental authority. The |
4158 |
Department
of Business and Professional Regulation shall create |
4159 |
a
Division of Mandated Properties. No later than July 1, 2008, |
4160 |
the
division shall establish a process for collecting an annual |
4161 |
fee
which shall not exceed $4 for each association member in |
4162 |
communities
administered by the association during each of the |
4163 |
following
2 years and, thereafter, shall not exceed the Cost of |
4164 |
Living
Index. Funds collected shall be deposited in the Division |
4165 |
of
Florida Land Sales, Condominiums, Homeowners' Associations, |
4166 |
and
Mobile Homes Trust Fund Trust Fund. Funds shall be utilized |
4167 |
by the
division for, but not limited to, the review and approval |
4168 |
of
deed restrictions before releasing for recording at the |
4169 |
county
level by the developer or owner of the initial lots to be |
4170 |
developed;
education; enforcement; investigation; and |
4171 |
prosecution
of policies and procedures related to mandated |
4172 |
properties.
Upon transition of authorities, duties, |
4173 |
responsibilities,
and rights from the developer to the parcel |
4174 |
owners,
all amendments, alterations, or modifications to the |
4175 |
governing
documents must be approved by at least two-thirds of |
4176 |
the
parcel owners or homeowners' association members. The |
4177 |
governing
documents may not contain provisions that reduce this |
4178 |
percentage
of majority approval for changes to the governing |
4179 |
documents.
The ombudsman may not engage the services of industry |
4180 |
partisans
with a vested interest in the administration of deed- |
4181 |
restricted
communities or in the mandatory homeowners' |
4182 |
association
to implement its powers, who have practiced in this |
4183 |
field
within the last 3 years. Furthermore not
in the best |
4184 |
interest
of homeowners' associations or the individual |
4185 |
association
members thereof to create or impose a bureau or |
4186 |
other
agency of state government to regulate the affairs of |
4187 |
homeowners'
associations. However, in accordance with s. |
4188 |
720.311, the Legislature
finds that homeowners' associations and |
4189 |
their individual members
will benefit from an expedited |
4190 |
alternative process for
resolution of election and recall |
4191 |
disputes and presuit
mediation of other disputes involving |
4192 |
covenant enforcement,
disputes relating to the transition of |
4193 |
control
of the association from the developer or owner to |
4194 |
members
of the association, and authorizes the department to |
4195 |
hear, administer, and
determine these disputes as more fully set |
4196 |
forth in this chapter.
Further, the Legislature recognizes that |
4197 |
certain contract rights
have been created for the benefit of |
4198 |
homeowners' associations
and members thereof before the |
4199 |
effective date of this
act and that ss. 720.301-720.407 are not |
4200 |
intended to impair such
contract rights, as long as they are |
4201 |
accepted
by a two-thirds majority of the homeowners' association |
4202 |
members,
including, but not limited to, the rights of the |
4203 |
developer to complete the
community as initially contemplated. |
4204 |
Section
53. Section 720.303, Florida Statutes, is amended |
4205 |
to read: |
4206 |
720.303 Association
powers and duties; meetings of board; |
4207 |
official records;
budgets; financial reporting; association |
4208 |
funds; recalls.-- |
4209 |
(1) POWERS
AND DUTIES.-- |
4210 |
(a) An
association which operates a community as defined |
4211 |
in s. 720.301, must be incorporated
in this state, operated by |
4212 |
an
association that is a Florida corporation. After October 1, |
4213 |
1995,
the association must be incorporated and the initial |
4214 |
governing documents must
be recorded in the official records of |
4215 |
the county in which the
community is located. An association may |
4216 |
operate
more than one community. |
4217 |
(b) The
officers and directors of an association have a |
4218 |
fiduciary relationship of
to the members who are served by
the |
4219 |
association. |
4220 |
(c) The
powers and duties of an association include those |
4221 |
set forth in this chapter
and, except as expressly limited or |
4222 |
restricted
in this chapter, those specifically
set forth in the |
4223 |
governing documents. The
officers and directors of the |
4224 |
association
may not take any action that is inconsistent with |
4225 |
the
declaration of covenants. |
4226 |
(d) After
control of the association is obtained by |
4227 |
members from
other than the developer, the
association may |
4228 |
institute, maintain, or
settle on ,
or appeal actions or |
4229 |
hearings
in its name on behalf of the all
members concerning |
4230 |
matters of common
interest to the members, including, but not |
4231 |
limited
to, the common areas; roof or structural components of a |
4232 |
building,
or other improvements for which the association is |
4233 |
responsible;
mechanical, electrical, or plumbing elements |
4234 |
serving
an improvement or building for which the association is |
4235 |
responsible;
representations of the developer pertaining to any |
4236 |
existing
or proposed commonly used facility; and protesting ad |
4237 |
valorem
taxes on commonly used facilities. The association may |
4238 |
defend
actions in eminent domain or bring inverse condemnation |
4239 |
actions.
Before commencing any legal action
litigation against |
4240 |
any party in the name of
the association involving amounts in |
4241 |
controversy in excess of $50,000
$100,000, the association must |
4242 |
obtain the affirmative
approval of a majority of the members of |
4243 |
the association voting
interests at a meeting of the association |
4244 |
membership
at which a quorum is present has
been attained. |
4245 |
(e) The
association may enter into contracts for the |
4246 |
benefit
of the members of the association, including, but not |
4247 |
limited
to, contracts for maintaining, repairing, or improving |
4248 |
the
common areas of the association. This subsection does not |
4249 |
limit
any statutory or common-law right of any individual member |
4250 |
or
class of members to bring any action without participation by |
4251 |
the
association. |
4252 |
(f) A
member does not have the authority
to act for the |
4253 |
association by virtue of
being a member of the association.
An |
4254 |
association
may have more than one class of members and may |
4255 |
issue
membership certificates. |
4256 |
(g) In
any civil or criminal action between a member and |
4257 |
the
association, it shall not be a defense by the association |
4258 |
that
the association's actions, although incompatible with the |
4259 |
declaration
of covenants, have been uniformly applied. |
4260 |
(h) An
association may not restrict a member's freedom of |
4261 |
association
and may not limit the number of guests a member may |
4262 |
have
within a 24-hour period. |
4263 |
(i) An
association of 15 or fewer parcels
parcel owners |
4264 |
may enforce only the
requirements of those deed restrictions |
4265 |
established prior to the
purchase of each parcel upon an |
4266 |
affected parcel owner or
owners. |
4267 |
(j) The
officers and directors of an association may be |
4268 |
personally
liable for damages to a member if the actions of the |
4269 |
officers
and directors demonstrate a pattern of behavior |
4270 |
intended
to harass a member of the association. |
4271 |
(k) Any
action of the association by and through the |
4272 |
officers
and directors that limits the legal use of any portion |
4273 |
of a
member's property that is incompatible with the declaration |
4274 |
of
covenants shall entitle the member to compensation for the |
4275 |
fair
market value of that portion of the member's property, the |
4276 |
use of
which is being restricted. |
4277 |
(l) In
any association with more than 50 but fewer than 75 |
4278 |
parcels,
for purposes of establishing setback limits, any parcel |
4279 |
of 1
acre or less shall be deemed to have one front for purposes |
4280 |
of
determining the required front setback, if any. Only those |
4281 |
setbacks
specifically set forth in the declaration of covenants |
4282 |
may be
enforced by the association. Where the covenants are |
4283 |
silent,
the applicable county or municipal setbacks shall apply. |
4284 |
(2) BOARD
MEETINGS.-- |
4285 |
(a) A
meeting of the board of directors of an association |
4286 |
occurs whenever a quorum
of the board gathers to conduct |
4287 |
association business. All
meetings of the board must be open to |
4288 |
all members except for
meetings between the board and its |
4289 |
attorney with respect to
proposed or pending litigation where |
4290 |
the contents of the
discussion would otherwise be governed by |
4291 |
the attorney-client
privilege. |
4292 |
(b) Members
have the right to attend all meetings of the |
4293 |
board and to speak on any
matter placed on the agenda by |
4294 |
petition
of the voting interests for at least 3 minutes. The |
4295 |
association may adopt
written reasonable rules expanding the |
4296 |
right of members to speak
and governing the frequency, duration, |
4297 |
and other manner of
member statements, which rules must be |
4298 |
consistent with this
paragraph and may include a sign-up sheet |
4299 |
for
members wishing to speak. Notwithstanding any other law,
the |
4300 |
requirement that board
meetings and committee meetings be open |
4301 |
to the members is
inapplicable to meetings between the board or |
4302 |
a committee and the
association's attorney, with respect to |
4303 |
meetings of the board
held for the purpose of discussing |
4304 |
personnel matters. |
4305 |
(c) The
bylaws shall provide for giving notice to parcel |
4306 |
owners and members of all
board meetings and, if they do not do |
4307 |
so, shall be deemed to
provide the following: |
4308 |
1. Notices
of all board meetings and the agendas
must be |
4309 |
posted in a conspicuous
place in the community at least 48 hours |
4310 |
in advance of a meeting,
except in an emergency. In the |
4311 |
alternative, if notice is
not posted in a conspicuous place in |
4312 |
the community, notice of
each board meeting and agenda must
be |
4313 |
mailed or delivered to
each member at least 7 days before the |
4314 |
meeting, except in an
emergency. Notwithstanding this general |
4315 |
notice requirement, for
communities with more than 100 members, |
4316 |
the bylaws may provide
for a reasonable alternative to posting |
4317 |
or mailing of notice for
each board meeting, including |
4318 |
publication of notice,
provision of a schedule of board |
4319 |
meetings, or the
conspicuous posting and repeated broadcasting |
4320 |
of the notice on a
closed-circuit cable television system |
4321 |
serving the homeowners'
association. However, if broadcast |
4322 |
notice is used in lieu of
a notice posted physically in the |
4323 |
community, the notice
must be broadcast at least four times |
4324 |
every broadcast hour of
each day that a posted notice is |
4325 |
otherwise required. When
broadcast notice is provided, the |
4326 |
notice and agenda must be
broadcast in a manner and for a |
4327 |
sufficient continuous
length of time so as to allow an average |
4328 |
reader to observe the
notice and read and comprehend the entire |
4329 |
content of the notice and
the agenda. The bylaws or amended |
4330 |
bylaws may provide for
giving notice by electronic transmission |
4331 |
in a manner authorized by
law for meetings of the board of |
4332 |
directors, committee
meetings requiring notice under this |
4333 |
section, and annual and
special meetings of the members; |
4334 |
however, a member must
consent in writing to receiving notice by |
4335 |
electronic transmission. |
4336 |
2. An
assessment may not be levied at a board meeting |
4337 |
unless the notice of the
meeting includes a statement that |
4338 |
assessments will be
considered and the nature of the |
4339 |
assessments. Written
notice of any meeting at which special |
4340 |
assessments will be
considered or at which amendments to rules |
4341 |
regarding parcel use will
be considered must be mailed, |
4342 |
delivered, or
electronically transmitted to the members and |
4343 |
parcel owners and posted
conspicuously on the property or |
4344 |
broadcast on
closed-circuit cable television not less than 14 |
4345 |
days before the meeting. |
4346 |
3. Directors
may not vote by proxy or by secret ballot at |
4347 |
board meetings,
except that secret ballots may be used in the |
4348 |
election
of officers. This subsection also applies to the |
4349 |
meetings of any committee
or other similar body, when a final |
4350 |
decision will be made
regarding the expenditure of association |
4351 |
funds, and to any body
vested with the power to approve or |
4352 |
disapprove architectural
decisions with respect to a specific |
4353 |
parcel of residential
property owned by a member of the |
4354 |
community. |
4355 |
(d) If
10 20
percent of the total voting interests |
4356 |
petition the board to
address an item of business, the board |
4357 |
shall at its next regular
board meeting or at a special meeting |
4358 |
of the board, but not
later than 60 days after the receipt of |
4359 |
the petition, take the
petitioned item up on an agenda. The |
4360 |
board shall give all
members notice of the meeting at which the |
4361 |
petitioned item shall be
addressed in accordance with the 14-day |
4362 |
notice requirement
pursuant to subparagraph (c)2. Each member |
4363 |
shall have the right to
speak for at least 3 minutes on each |
4364 |
matter placed on the
agenda by petition. The board shall address |
4365 |
all
items on the agenda , provided
that the member signs the |
4366 |
sign-up
sheet, if one is provided, or submits a written request |
4367 |
to
speak prior to the meeting. Other than addressing the |
4368 |
petitioned
item at the meeting, the board is not obligated to |
4369 |
take
any other action requested by the petition. |
4370 |
(e) Detailed
agendas for board meetings with specific |
4371 |
items
that will be addressed shall be published and made |
4372 |
available
to all members no less than 7 days prior to the date |
4373 |
of the
board meeting. |
4374 |
(3) MINUTES.--Minutes
of all meetings of the members of an |
4375 |
association and of the
board of directors of an association must |
4376 |
be maintained in written
form or in another form that can be |
4377 |
converted into written
form within a reasonable time. A vote or |
4378 |
abstention from voting on
each matter voted upon by for
each |
4379 |
director present at a
board meeting shall must
be recorded in |
4380 |
the minutes. |
4381 |
(4) OFFICIAL
RECORDS.--The association shall maintain each |
4382 |
of the following items,
when applicable, which constitute the |
4383 |
official records of the
association: |
4384 |
(a) Copies
of any plans, specifications, permits, and |
4385 |
warranties related to
improvements constructed on the common |
4386 |
areas or other property as
platted and recorded that the |
4387 |
association is obligated
to maintain, repair, or replace. If |
4388 |
such
documents do not exist, the association shall obtain the |
4389 |
documents
or forfeit the right to assess any fees to maintain |
4390 |
the
common areas of property. |
4391 |
(b) A
copy of the bylaws of the association and of each |
4392 |
amendment to the bylaws. |
4393 |
(c) A
copy of the articles of incorporation of the |
4394 |
association and of each
amendment thereto. |
4395 |
(d) A
copy of each set of the
declaration of covenants and |
4396 |
a copy of each amendment
thereto. |
4397 |
(e) A
copy of the current rules of the homeowners' |
4398 |
association. |
4399 |
(f) The
minutes of all meetings of the board of directors |
4400 |
and of the members, which
minutes must be retained for at least |
4401 |
7 years. |
4402 |
(g) A
current roster of all members and their mailing |
4403 |
addresses and parcel
identifications. The association shall also |
4404 |
maintain the electronic
mailing addresses and the numbers |
4405 |
designated by members for
receiving notice sent by electronic |
4406 |
transmission of those
members consenting to receive notice by |
4407 |
electronic transmission.
The electronic mailing addresses and |
4408 |
numbers provided by unit
owners to receive notice by electronic |
4409 |
transmission shall be
removed from association records when |
4410 |
consent to receive notice
by electronic transmission is revoked. |
4411 |
However, the association
is not liable for an erroneous |
4412 |
disclosure of the
electronic mail address or the number for |
4413 |
receiving electronic
transmission of notices. |
4414 |
(h) All
of the association's insurance policies or a copy |
4415 |
thereof, which policies
must be retained for at least 7 years. |
4416 |
(i) A
current copy of all contracts to which the |
4417 |
association is a party,
including, without limitation, any |
4418 |
management agreement,
lease, or other contract under which the |
4419 |
association has any
obligation or responsibility. A contract or |
4420 |
written
agreement may not be allowed to maintain property that |
4421 |
is
not owned by and deeded to the association. Bids received
by |
4422 |
the association for work
to be performed must also be considered |
4423 |
official records and must
be kept for a period of 1 year. |
4424 |
(j) The
financial and accounting records of the |
4425 |
association, kept
according to good accounting practices. All |
4426 |
financial and accounting
records shall must
be maintained for a |
4427 |
period of at least 7
years. The financial and accounting records |
4428 |
must include: |
4429 |
1. Accurate,
itemized, and detailed records of all |
4430 |
receipts and
expenditures. |
4431 |
2. A
current account and a periodic statement of the |
4432 |
account for each member,
designating the name and current |
4433 |
address of each member
who is obligated to pay assessments, the |
4434 |
due date and amount of
each assessment or other charge against |
4435 |
the member, the date and
amount of each payment on the account, |
4436 |
and the balance due. |
4437 |
3. All
tax returns, financial statements, and financial |
4438 |
reports of the
association. |
4439 |
4. Any
other records that identify, measure, record, or |
4440 |
communicate financial
information. |
4441 |
(k) A
copy of the disclosure summary described in s. |
4442 |
720.401(1). |
4443 |
(l) All
other written records of the association not |
4444 |
specifically included in
the foregoing which are related to the |
4445 |
operation of the
association. |
4446 |
(m) All
interpretations of any governing documents, as |
4447 |
provided
by any legal source or attorney as long as they are not |
4448 |
part
of a pending lawsuit. |
4449 |
(n) All
architectural requests and approvals or denials, |
4450 |
which
shall be maintained as long as the association exists or |
4451 |
is
active. |
4452 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
4453 |
records shall be
maintained within the county in which the |
4454 |
governing
documents are recorded state
and must be open to |
4455 |
inspection and available
for photocopying by machine, video, |
4456 |
digital
cameras, or any other methods available to members or |
4457 |
their authorized agents
at reasonable times and places within 10 |
4458 |
business days after
receipt of a written request for access. |
4459 |
This subsection may be
complied with by having a copy of the |
4460 |
official records
available for inspection or copying in the |
4461 |
community. If the
association has a photocopy machine available |
4462 |
where the records are
maintained, it must provide parcel owners |
4463 |
with copies on request
during the inspection if the entire |
4464 |
request
is limited to no more than 25 pages. |
4465 |
(a) The
failure of an association to provide access to the |
4466 |
records within 10
business days after receipt of a written |
4467 |
request creates a
rebuttable presumption that the association |
4468 |
willfully failed to
comply with this subsection. |
4469 |
(b) A
member who is denied access to official records is |
4470 |
entitled to the actual
damages or minimum damages for the |
4471 |
association's willful
failure to comply with this subsection. |
4472 |
The minimum damages are
to be $100 $50 per calendar day up to 10 |
4473 |
days, the calculation to
begin on the 11th business day after |
4474 |
receipt of the written
request. |
4475 |
(c) The
association may adopt reasonable written rules |
4476 |
governing the frequency,
time, location, notice, records to be |
4477 |
inspected, and
manner of inspections, but may not impose a |
4478 |
requirement that a parcel
owner demonstrate any proper purpose |
4479 |
for the inspection, state
any reason for the inspection, or |
4480 |
limit a parcel owner's
right to inspect records to less than one |
4481 |
8-hour business day per
month. The association may only impose |
4482 |
fees to cover the actual
costs of providing copies of the |
4483 |
official records,
including, without limitation, the costs of |
4484 |
copying.
The association may charge up to 5
50 cents per page |
4485 |
for copies made on the
association's photocopier. If the |
4486 |
association does not have
a photocopy machine available where |
4487 |
the records are kept, or
if the records requested to be copied |
4488 |
exceed 25 pages in
length, the association may have copies made |
4489 |
by an outside vendor and
may charge the actual cost of copying |
4490 |
only.
The association may impose a one-time fee not
to exceed 1 |
4491 |
cent
per page and limited to a total of $5 if the parcel owner |
4492 |
provides
the necessary equipment and materials for copying and |
4493 |
the
labor to make the requested copies. The association shall |
4494 |
maintain an adequate
number of copies of the recorded governing |
4495 |
documents, to ensure
their availability to members and |
4496 |
prospective members.
Notwithstanding the provisions of this |
4497 |
paragraph, the following
records shall not be accessible to |
4498 |
members or parcel owners: |
4499 |
1. Any
record protected by the lawyer-client privilege as |
4500 |
described in s. 90.502
and any record protected by the work- |
4501 |
product privilege,
including, but not limited to, any record |
4502 |
prepared by an
association attorney or prepared at the |
4503 |
attorney's express
direction which reflects a mental impression, |
4504 |
conclusion, litigation
strategy, or legal theory of the attorney |
4505 |
or the association and
was prepared exclusively for civil or |
4506 |
criminal litigation or
for adversarial administrative |
4507 |
proceedings or which was
prepared in anticipation of imminent |
4508 |
civil or criminal
litigation or imminent adversarial |
4509 |
administrative
proceedings until the conclusion of the |
4510 |
litigation or adversarial
administrative proceedings. |
4511 |
2. Information
obtained by an association in connection |
4512 |
with the approval of the
lease, sale, or other transfer of a |
4513 |
parcel. |
4514 |
3. Disciplinary,
health, insurance, and personnel records |
4515 |
of the association's
employees. |
4516 |
4. Medical
records of parcel owners or community |
4517 |
residents. |
4518 |
(6) BUDGETS.-- |
4519 |
(a) The
association shall prepare an annual budget that |
4520 |
sets
out the annual operating expenses. The budget must reflect |
4521 |
the estimated revenues
and expenses for that year and the |
4522 |
estimated surplus or
deficit as of the end of the current year. |
4523 |
The budget must set out
separately all fees or charges paid for |
4524 |
by
the association for recreational amenities, whether owned
by |
4525 |
the association, the
developer, or another person. The |
4526 |
association shall provide
each member with a copy of the annual |
4527 |
budget or a written
notice that a copy of the budget is |
4528 |
available upon request at
no charge to the member. The copy must |
4529 |
be provided to the member
within the time limits set forth in |
4530 |
subsection (5). |
4531 |
(b) In
addition to annual operating expenses, the budget |
4532 |
may include reserve
accounts for capital expenditures and |
4533 |
deferred maintenance
for which the association is responsible to |
4534 |
the extent that the
governing documents do not limit increases |
4535 |
in assessments,
including reserves. If the budget of the |
4536 |
association includes
reserve accounts, such reserves shall be |
4537 |
determined,
maintained, and waived in the manner provided in |
4538 |
this subsection. Once
an association provides for reserve |
4539 |
accounts in the
budget, the association shall thereafter |
4540 |
determine, maintain,
and waive reserves in compliance with the |
4541 |
provisions of this
subsection. |
4542 |
(c) If
the budget of the association does not provide for |
4543 |
reserve
accounts governed by this subsection and the association |
4544 |
is
responsible for the repair and maintenance of capital |
4545 |
improvements
that may result in a special assessment if reserves |
4546 |
are
not provided, each financial report for the preceding fiscal |
4547 |
year
required by subsection (7) shall contain the following |
4548 |
statement
in conspicuous type: THE BUDGET OF THE ASSOCIATION |
4549 |
DOES
NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES |
4550 |
AND
DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS. |
4551 |
OWNERS
MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE |
4552 |
PROVISIONS
OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE |
4553 |
APPROVAL
OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING |
4554 |
INTERESTS
OF THE ASSOCIATION. |
4555 |
(d) An
association shall be deemed to have provided for |
4556 |
reserve
accounts when reserve accounts have been initially |
4557 |
established
by the developer or when the membership of the |
4558 |
association
affirmatively elects to provide for reserves. If |
4559 |
reserve
accounts are not initially provided for by the |
4560 |
developer,
the membership of the association may elect to do so |
4561 |
upon
the affirmative approval of not less than a majority of the |
4562 |
total
voting interests of the association. Such approval may be |
4563 |
attained
by vote of the members at a duly called meeting of the |
4564 |
membership
or upon a written consent executed by not less than a |
4565 |
majority
of the total voting interests in the community. The |
4566 |
approval
action of the membership shall state that reserve |
4567 |
accounts
shall be provided for in the budget and designate the |
4568 |
components
for which the reserve accounts are to be established. |
4569 |
Upon
approval by the membership, the board of directors shall |
4570 |
provide
for the required reserve accounts for inclusion in the |
4571 |
budget
in the next fiscal year following the approval and in |
4572 |
each
year thereafter. Once established as provided in this |
4573 |
subsection,
the reserve accounts shall be funded or maintained |
4574 |
or
shall have their funding waived in the manner provided in |
4575 |
paragraph
(f). |
4576 |
(e) The
amount to be reserved in any account established |
4577 |
shall
be computed by means of a formula that is based upon |
4578 |
estimated
remaining useful life and estimated replacement cost |
4579 |
or
deferred maintenance expense of each reserve item. The |
4580 |
association
may adjust replacement reserve assessments annually |
4581 |
to
take into account any changes in estimates of cost or useful |
4582 |
life
of a reserve item. |
4583 |
(f) Once
a reserve account or reserve accounts are |
4584 |
established,
the membership of the association, upon a majority |
4585 |
vote
at a meeting at which a quorum is present, may provide for |
4586 |
no
reserves or less reserves than required by this section. If a |
4587 |
meeting
of the unit owners is called to determine whether to |
4588 |
waive
or reduce the funding of reserves and no such result is |
4589 |
achieved
or a quorum is not present, the reserves as included in |
4590 |
the
budget shall go into effect. After the turnover, the |
4591 |
developer
may vote its voting interest to waive or reduce the |
4592 |
funding
of reserves. Any vote taken pursuant to this subsection |
4593 |
to
waive or reduce reserves shall be applicable only to one |
4594 |
budget
year. |
4595 |
(g) Funding
formulas for reserves authorized by this |
4596 |
section
shall be based on either a separate analysis of each of |
4597 |
the
required assets or a pooled analysis of two or more of the |
4598 |
required
assets. |
4599 |
1. If
the association maintains separate reserve accounts |
4600 |
for
each of the required assets, the amount of the contribution |
4601 |
to
each reserve account shall be the sum of the following two |
4602 |
calculations: |
4603 |
a. The
total amount necessary, if any, to bring a negative |
4604 |
component
balance to zero. |
4605 |
b. The
total estimated deferred maintenance expense or |
4606 |
estimated
replacement cost of the reserve component less the |
4607 |
estimated
balance of the reserve component as of the beginning |
4608 |
of the
period for which the budget will be in effect. The |
4609 |
remainder,
if greater than zero, shall be divided by the |
4610 |
estimated
remaining useful life of the component. |
4611 |
|
4612 |
The
formula may be adjusted each year for changes in estimates |
4613 |
and
deferred maintenance performed during the year and may |
4614 |
include
factors such as inflation and earnings on invested |
4615 |
funds. |
4616 |
2. If
the association maintains a pooled account of two or |
4617 |
more
of the required reserve assets, the amount of the |
4618 |
contribution
to the pooled reserve account as disclosed on the |
4619 |
proposed
budget shall not be less than that required to ensure |
4620 |
that
the balance at the beginning of the period for which the |
4621 |
budget
will go into effect plus the projected annual cash |
4622 |
inflows
over the remaining estimated useful life of all of the |
4623 |
assets
that make up the reserve pool are equal to or greater |
4624 |
than
the projected annual cash outflows over the remaining |
4625 |
estimated
useful lives of all of the assets that make up the |
4626 |
reserve
pool, based on the current reserve analysis. The |
4627 |
projected
annual cash inflows may include estimated earnings |
4628 |
from
investment of principal. The reserve funding formula shall |
4629 |
not
include any type of balloon payments. |
4630 |
(h) Reserve
funds and any interest accruing thereon shall |
4631 |
remain
in the reserve account or accounts and shall be used only |
4632 |
for
authorized reserve expenditures unless their use for other |
4633 |
purposes
is approved in advance by a majority vote at a meeting |
4634 |
at
which a quorum is present. Prior to turnover of control of an |
4635 |
association
by a developer to parcel owners, the developer- |
4636 |
controlled
association shall not vote to use reserves for |
4637 |
purposes
other than those for which they were intended without |
4638 |
the
approval of a majority of all nondeveloper voting interests |
4639 |
voting
in person or by limited proxy at a duly called meeting of |
4640 |
the
association. |
4641 |
(7) FINANCIAL
REPORTING.--Within 90 days after the end of |
4642 |
the
fiscal year, or annually on a date provided in the bylaws, |
4643 |
the
association shall prepare and complete, or contract with a |
4644 |
third
party for the preparation and completion of, a financial |
4645 |
report
for the preceding fiscal year. Within 21 days after the |
4646 |
final
financial report is completed by the association or |
4647 |
received
from the third party, but not later than 120 days after |
4648 |
the
end of the fiscal year or other date as provided in the |
4649 |
bylaws,
the association shall prepare an annual
financial report |
4650 |
within
60 days after the close of the fiscal year. The |
4651 |
association
shall, within the time limits set forth in |
4652 |
subsection (5), provide
each member with a copy of the annual |
4653 |
financial report or a
written notice that a copy of the |
4654 |
financial report is
available upon request at no charge to the |
4655 |
member. Financial reports
shall be prepared as follows: |
4656 |
(a) An
association that meets the criteria of this |
4657 |
paragraph shall prepare
or cause to be prepared a complete set |
4658 |
of financial statements
in accordance with generally accepted |
4659 |
accounting principles as
adopted by the Board of Accountancy. |
4660 |
The financial statements
shall be based upon the association's |
4661 |
total annual revenues, as
follows: |
4662 |
1. An
association with total annual revenues of $100,000 |
4663 |
or more, but less than
$200,000, shall prepare compiled |
4664 |
financial statements. |
4665 |
2. An
association with total annual revenues of at least |
4666 |
$200,000, but less than
$400,000, shall prepare reviewed |
4667 |
financial statements. |
4668 |
3. An
association with total annual revenues of $400,000 |
4669 |
or more shall prepare
audited financial statements. |
4670 |
(b)1. An
association with total annual revenues of less |
4671 |
than $100,000 shall
prepare a report of cash receipts and |
4672 |
expenditures. |
4673 |
2. An
association in a community of fewer than 50 parcels, |
4674 |
regardless of the
association's annual revenues, may prepare a |
4675 |
report of cash receipts
and expenditures in lieu of financial |
4676 |
statements required by
paragraph (a) unless the governing |
4677 |
documents provide
otherwise. |
4678 |
3. A
report of cash receipts and disbursement must |
4679 |
disclose the amount of
receipts by accounts and receipt |
4680 |
classifications and the
amount of expenses by accounts and |
4681 |
expense classifications,
including, but not limited to, the |
4682 |
following, as applicable:
costs for security, professional, and |
4683 |
management fees and
expenses; taxes; costs for recreation |
4684 |
facilities; expenses for
refuse collection and utility services; |
4685 |
expenses for lawn care;
costs for building maintenance and |
4686 |
repair; insurance costs;
administration and salary expenses; and |
4687 |
reserves if maintained by
the association. |
4688 |
(c) If
20 percent of the parcel owners petition the board |
4689 |
for a level of financial
reporting higher than that required by |
4690 |
this section, the
association shall duly notice and hold a |
4691 |
meeting of members within
30 days of receipt of the petition for |
4692 |
the purpose of voting on
raising the level of reporting for that |
4693 |
fiscal year. Upon
approval of a majority of the total voting |
4694 |
interests of the parcel
owners, the association shall prepare or |
4695 |
cause to be prepared,
shall amend the budget or adopt a special |
4696 |
assessment to pay for the
financial report regardless of any |
4697 |
provision to the contrary
in the governing documents, and shall |
4698 |
provide within 90 days of
the meeting or the end of the fiscal |
4699 |
year, whichever occurs
later: |
4700 |
1. Compiled,
reviewed, or audited financial statements, if |
4701 |
the association is
otherwise required to prepare a report of |
4702 |
cash receipts and
expenditures; |
4703 |
2. Reviewed
or audited financial statements, if the |
4704 |
association is otherwise
required to prepare compiled financial |
4705 |
statements; or |
4706 |
3. Audited
financial statements if the association is |
4707 |
otherwise required to
prepare reviewed financial statements. |
4708 |
(d) If
approved by a majority of the voting interests |
4709 |
present at a properly
called meeting of the association, an |
4710 |
association may prepare
or cause to be prepared: |
4711 |
1. A
report of cash receipts and expenditures in lieu of a |
4712 |
compiled, reviewed, or
audited financial statement; |
4713 |
2. A
report of cash receipts and expenditures or a |
4714 |
compiled financial
statement in lieu of a reviewed or audited |
4715 |
financial statement; or |
4716 |
3. A
report of cash receipts and expenditures, a compiled |
4717 |
financial statement, or a
reviewed financial statement in lieu |
4718 |
of an audited financial
statement. |
4719 |
(8) ASSOCIATION
FUNDS; COMMINGLING.-- |
4720 |
(a) All
association funds held by a developer shall be |
4721 |
maintained separately in
the association's name. Reserve and |
4722 |
operating funds of the
association shall not be commingled prior |
4723 |
to turnover except the
association may jointly invest reserve |
4724 |
funds; however, such
jointly invested funds must be accounted |
4725 |
for separately. |
4726 |
(b) No
developer in control of a homeowners' association |
4727 |
shall commingle any
association funds with his or her funds or |
4728 |
with the funds of any
other homeowners' association, or |
4729 |
community association,
or corporation for profit created by the |
4730 |
developer. |
4731 |
(c) Association
funds may not be used by a developer to |
4732 |
defend a civil or
criminal action, administrative proceeding, or |
4733 |
arbitration proceeding
that has been filed against the developer |
4734 |
or directors appointed to
the association board by the |
4735 |
developer, even when the
subject of the action or proceeding |
4736 |
concerns the operation of
the developer-controlled association. |
4737 |
(9) APPLICABILITY.--Sections
617.1601-617.1604 do not |
4738 |
apply to a homeowners'
association in which the members have the |
4739 |
inspection and copying
rights set forth in this section. |
4740 |
(10) RECALL
OF DIRECTORS.-- |
4741 |
(a)1. Regardless
of any provision to the contrary |
4742 |
contained in the governing documents,
subject to the provisions |
4743 |
of s. 720.307 regarding transition of
association control, any |
4744 |
member of the board of directors shall
may be recalled and |
4745 |
removed from office with or without
cause by a majority of the |
4746 |
total voting interests who
must be the registered and recorded |
4747 |
owners. |
4748 |
2. When
the governing documents, including the |
4749 |
declaration, articles of
incorporation, or bylaws, provide that |
4750 |
only a specific class of members is
entitled to elect a board |
4751 |
director or directors, only that
class of members may vote to |
4752 |
recall those board directors so
elected. |
4753 |
(b)1. Board
directors may be recalled by an agreement in |
4754 |
writing or by written ballot without
a membership meeting. The |
4755 |
agreement in writing or the written
ballots, or a copy thereof, |
4756 |
shall be served on the association by
certified mail or by |
4757 |
personal service in the manner
authorized by chapter 48 and the |
4758 |
Florida Rules of Civil Procedure. |
4759 |
2. The
board shall duly notice and hold a meeting of the |
4760 |
board within 5 full business days
after receipt of the agreement |
4761 |
in writing or written ballots. At the
meeting, the board shall |
4762 |
either certify the written ballots or
written agreement to |
4763 |
recall a director or directors of the
board, in which case such |
4764 |
director or directors shall be
recalled effective immediately |
4765 |
and shall turn over to the board
within 5 full business days any |
4766 |
and all records and property of the
association in their |
4767 |
possession, or proceed as described
in paragraph (d). |
4768 |
3. When
it is determined by the department pursuant to |
4769 |
binding arbitration proceedings that
an initial recall effort |
4770 |
was defective, written recall
agreements or written ballots used |
4771 |
in the first recall effort and not
found to be defective may be |
4772 |
reused in one subsequent recall
effort. However, in no event is |
4773 |
a written agreement or written ballot
valid for more than 120 |
4774 |
days after it has been signed by the
member. |
4775 |
4. Any
rescission or revocation of a member's written |
4776 |
recall ballot or agreement must be in
writing and, in order to |
4777 |
be effective, must be delivered to
the association before the |
4778 |
association is served with the
written recall agreements or |
4779 |
ballots. |
4780 |
5. The
agreement in writing or ballot shall list at least |
4781 |
as many possible replacement
directors as there are directors |
4782 |
subject to the recall, when at least
a majority of the board is |
4783 |
sought to be recalled; the person
executing the recall |
4784 |
instrument may vote for as many
replacement candidates as there |
4785 |
are directors subject to the recall. |
4786 |
(c)1. If
the declaration, articles of incorporation, or |
4787 |
bylaws
specifically provide, the Members may also recall and |
4788 |
remove a board director or directors
by a vote taken at a |
4789 |
special meeting
of the members. If
so provided in the governing |
4790 |
documents,
A special meeting of the members to recall a director |
4791 |
or directors of the board of
administration may be called by 10 |
4792 |
percent of the voting interests
giving notice of the meeting as |
4793 |
required for a meeting of members,
and the notice shall state |
4794 |
the purpose of the meeting.
Electronic transmission may not be |
4795 |
used as a method of giving notice of
a meeting called in whole |
4796 |
or in part for this purpose. |
4797 |
2. The
board shall duly notice and hold a board meeting |
4798 |
within 5 full business days after the
adjournment of the member |
4799 |
meeting to recall one or more
directors. At the meeting, the |
4800 |
board shall certify the recall, in
which case such member or |
4801 |
members shall be recalled effective
immediately and shall turn |
4802 |
over to the board within 5 full
business days any and all |
4803 |
records and property of the
association in their possession, or |
4804 |
shall proceed as set forth in
subparagraph (d). |
4805 |
(d) If
the board determines not to certify the written |
4806 |
agreement or written ballots to
recall a director or directors |
4807 |
of the board or does not certify the
recall by a vote at a |
4808 |
meeting, the board shall, within 5
full business days after the |
4809 |
meeting, file with the department a
petition for binding |
4810 |
arbitration pursuant to the
applicable procedures in ss. |
4811 |
718.112(2)(j) and 718.1255 and the
rules adopted thereunder. For |
4812 |
the purposes of this section, the
members who voted at the |
4813 |
meeting or who executed the agreement
in writing shall |
4814 |
constitute one party under the
petition for arbitration. If the |
4815 |
arbitrator certifies the recall as to
any director or directors |
4816 |
of the board, the recall will be
effective upon mailing of the |
4817 |
final order of arbitration to the
association. The director or |
4818 |
directors so recalled shall deliver
to the board any and all |
4819 |
records of the association in their
possession within 5 full |
4820 |
business days after the effective
date of the recall. |
4821 |
(e) If
a vacancy occurs on the board as a result of a |
4822 |
recall and less than a majority of
the board directors are |
4823 |
removed, the vacancy may be filled by
the affirmative vote of a |
4824 |
majority of the remaining directors,
notwithstanding any |
4825 |
provision to the contrary contained
in this subsection or in the |
4826 |
association documents. If vacancies
occur on the board as a |
4827 |
result of a recall and a majority or
more of the board directors |
4828 |
are removed, the vacancies shall be
filled by members voting in |
4829 |
favor of the recall; if removal is at
a meeting, any vacancies |
4830 |
shall be filled by the members at the
meeting. If the recall |
4831 |
occurred by agreement in writing or
by written ballot, members |
4832 |
may vote for replacement directors in
the same instrument in |
4833 |
accordance with procedural rules
adopted by the division, which |
4834 |
rules need not be consistent with
this subsection. |
4835 |
(f) If
the board fails to duly notice and hold a board |
4836 |
meeting within 5 full business days
after service of an |
4837 |
agreement in writing or within 5 full
business days after the |
4838 |
adjournment of the member recall
meeting, the recall shall be |
4839 |
deemed effective and the board
directors so recalled shall |
4840 |
immediately turn over to the board
all records and property of |
4841 |
the association. |
4842 |
(g) If
a director who is removed fails to relinquish his |
4843 |
or her office or turn over records as
required under this |
4844 |
section, the circuit court in the
county where the association |
4845 |
maintains its principal office may,
upon the petition of the |
4846 |
association, summarily order the
director to relinquish his or |
4847 |
her office and turn over all
association records upon |
4848 |
application of the association. |
4849 |
(h) The
minutes of the board meeting at which the board |
4850 |
decides whether to certify the recall
are an official |
4851 |
association record. The minutes must
record the date and time of |
4852 |
the meeting, the decision of the
board, and the vote count taken |
4853 |
on each board member subject to the
recall. In addition, when |
4854 |
the board decides not to certify the
recall, as to each vote |
4855 |
rejected, the minutes must identify
the parcel number and the |
4856 |
specific reason for each such
rejection. |
4857 |
(i) When
the recall of more than one board director is |
4858 |
sought, the written agreement,
ballot, or vote at a meeting |
4859 |
shall provide for a separate vote for
each board director sought |
4860 |
to be recalled. |
4861 |
Section
54. Subsections (2) and (6) of section 720.304, |
4862 |
Florida Statutes, are amended, and
subsection (7) is added to |
4863 |
that section, to read: |
4864 |
720.304 Right
of owners to peaceably assemble; display of |
4865 |
flag; SLAPP suits prohibited.-- |
4866 |
(2) Any
homeowner may display one stationary or
portable, |
4867 |
removable United States flag or
official flag of the State of |
4868 |
Florida in a respectful manner, and
on Armed Forces Day, |
4869 |
Memorial Day, Flag Day, Independence
Day, and Veterans Day may |
4870 |
display in a respectful manner
portable, removable official |
4871 |
flags, not larger than 41/2 feet by 6
feet, which represent the |
4872 |
United States Army, Navy, Air Force,
Marine Corps, or Coast |
4873 |
Guard, from
a freestanding, portable, removable, or telescoping |
4874 |
flagpole not to
exceed 20 feet in the front, rear, or side yard |
4875 |
regardless of any declaration rules
or requirements dealing with |
4876 |
flags or decorations. |
4877 |
(6) Any
parcel owner may display a sign of reasonable size |
4878 |
provided by a contractor for security
services within 10 feet of |
4879 |
any entrance to the home. The
sign shall not exceed 18 inches |
4880 |
high by 18 inches
wide, and the bottom of the sign shall be no |
4881 |
higher than 24
inches from the ground elevation within the |
4882 |
permitted area of
installation. Other specifications may be |
4883 |
approved by the
association, but in no case shall the |
4884 |
specifications be
less than authorized by this section. |
4885 |
(7)(a) Rules
and regulations pertaining to common elements |
4886 |
shall be protected
by the First Amendment to the United States |
4887 |
Constitution and
s. 5, Art. I of the State Constitution, and |
4888 |
associations shall
not in any way abridge or deny constitutional |
4889 |
rights and
freedoms of homeowners with respect to use of such |
4890 |
common elements. |
4891 |
(b) All
common elements, common areas, and recreational |
4892 |
facilities serving
any association shall be available to unit |
4893 |
owners in the
association served thereby and their invited |
4894 |
guests for the use
intended for such common elements, common |
4895 |
areas, and
recreational facilities. The entity or entities |
4896 |
responsible for
the operation of the common elements, common |
4897 |
areas, and
recreational facilities may adopt reasonable rules |
4898 |
and regulations
pertaining to the use of such common elements, |
4899 |
common areas, and
recreational facilities as to the manner and |
4900 |
times they are
used, but not the purpose for which they are |
4901 |
used. No entity or
entities shall unreasonably restrict any unit |
4902 |
owner's right to
peaceably assemble or right to invite public |
4903 |
officers or
candidates for public office to appear and speak in |
4904 |
common elements,
common areas, and recreational facilities. |
4905 |
(c) Any
owner prevented from exercising rights guaranteed |
4906 |
by this section
may bring an action in the appropriate court of |
4907 |
the county in
which the alleged infringement occurred, and, upon |
4908 |
favorable
adjudication, the court shall enjoin the enforcement |
4909 |
of any provision
contained in any association. |
4910 |
Section
55. Section 720.305, Florida Statutes, is amended |
4911 |
to read: |
4912 |
720.305 Obligations
of members; remedies at law or in |
4913 |
equity; levy
of fines and suspension of use rights; failure to |
4914 |
fill sufficient number of vacancies
on board of directors to |
4915 |
constitute a quorum; appointment of
receiver upon petition of |
4916 |
any member.-- |
4917 |
(1) Each
member and the member's tenants, guests, and |
4918 |
invitees, and each association, are
governed by, and must comply |
4919 |
with, this chapter, the governing
documents of the community, |
4920 |
and the rules of the association.
Actions at law or in equity, |
4921 |
or both, to redress alleged failure
or refusal to comply with |
4922 |
these provisions may be brought by
the association or by any |
4923 |
member against: |
4924 |
(a) The
association; |
4925 |
(b) A
member; |
4926 |
(c) Any
director or officer of an association who |
4927 |
willfully and knowingly or
otherwise fails to comply with these |
4928 |
provisions; and |
4929 |
(d) Any
tenants, guests, or invitees occupying a parcel or |
4930 |
using the common areas. |
4931 |
|
4932 |
The prevailing party in any such
litigation is entitled to |
4933 |
recover reasonable attorney's fees
and costs. This section does |
4934 |
not deprive any person of any other
available right or remedy. |
4935 |
(2) If
the governing documents so provide, An association |
4936 |
may suspend,
for a reasonable period of time, the rights of a |
4937 |
member or a member's tenants, guests,
or invitees, or both, to |
4938 |
use common areas and facilities if
so and may levy reasonable |
4939 |
fines, not to
exceed $100 per violation, against any member or |
4940 |
any tenant, guest,
or invitee. A fine may be levied on the basis |
4941 |
of each day of a
continuing violation, with a single notice and |
4942 |
opportunity for
hearing, except that no such fine shall exceed |
4943 |
$1,000 in the
aggregate unless otherwise provided in the |
4944 |
governing documents. A
fine shall not become a lien against a |
4945 |
parcel. In any
action to recover a fine, the prevailing party is |
4946 |
entitled to
collect its reasonable attorney's fees and costs |
4947 |
from the
nonprevailing party as determined by the court. |
4948 |
(a) A
fine or suspension may not be
imposed without notice |
4949 |
of at least 14 days to the person
sought to be fined or |
4950 |
suspended and an opportunity for a
hearing before a committee of |
4951 |
at least three members appointed by
the board who are not |
4952 |
officers, directors, or employees of
the association, or the |
4953 |
spouse, parent, child, brother, or
sister of an officer, |
4954 |
director, or employee. If the
committee, by majority vote, does |
4955 |
not approve a proposed fine
or suspension, it may not be |
4956 |
imposed. |
4957 |
(b) The
requirements of this subsection do not apply to |
4958 |
the imposition of suspensions or
fines upon any member because |
4959 |
of the failure of the member to pay
assessments or other charges |
4960 |
when due if
such action is authorized by the governing |
4961 |
documents. |
4962 |
(c) Suspension
of common-area-use rights shall not impair |
4963 |
the right of an owner or tenant of a
parcel to have vehicular |
4964 |
and pedestrian ingress to and egress
from the parcel, including, |
4965 |
but not limited to, the right to
park. |
4966 |
(3) If
the governing documents so provide, an association |
4967 |
may suspend the voting rights of a
member for the nonpayment of |
4968 |
regular annual assessments that are
delinquent in excess of 90 |
4969 |
days. |
4970 |
(4) If
an association fails to fill vacancies on the board |
4971 |
of directors sufficient to constitute
a quorum in accordance |
4972 |
with the bylaws, any member may apply
to the circuit court that |
4973 |
has jurisdiction over the community
served by the association |
4974 |
for the appointment of a receiver to
manage the affairs of the |
4975 |
association. At least 30 days before
applying to the circuit |
4976 |
court, the member shall mail to the
association, by certified or |
4977 |
registered mail, and post, in a
conspicuous place on the |
4978 |
property of the community served by
the association, a notice |
4979 |
describing the intended action,
giving the association 30 days |
4980 |
to fill the vacancies. If during such
time the association fails |
4981 |
to fill a sufficient number of
vacancies so that a quorum can be |
4982 |
assembled, the member may proceed
with the petition. If a |
4983 |
receiver is appointed, the
homeowners' association shall be |
4984 |
responsible for the salary of the
receiver, court costs, |
4985 |
attorney's fees, and all other
expenses of the receivership. The |
4986 |
receiver has all the powers and
duties of a duly constituted |
4987 |
board of directors and shall serve
until the association fills a |
4988 |
sufficient number of vacancies on the
board so that a quorum can |
4989 |
be assembled. |
4990 |
Section
56. Section 720.3055, Florida Statutes, is amended |
4991 |
to read: |
4992 |
720.3055 Contracts
for products and services; in writing; |
4993 |
bids; exceptions.-- |
4994 |
(1) All
contracts as further described in this section or |
4995 |
any contract that is not to be fully
performed within 1 year |
4996 |
after the making thereof for the
purchase, lease, or renting of |
4997 |
materials or equipment to be used by
the association in |
4998 |
accomplishing its purposes under this
chapter or the governing |
4999 |
documents,
and all contracts for the provision of services, |
5000 |
shall be in writing. If a contract
for the purchase, lease, or |
5001 |
renting of materials or equipment, or
for the provision of |
5002 |
services, requires payment by the
association that exceeds 10 |
5003 |
percent of the total annual budget of
the association, including |
5004 |
reserves, the association must obtain
competitive bids for the |
5005 |
materials, equipment, or services.
Nothing contained in this |
5006 |
section shall be construed to require
the association to accept |
5007 |
the lowest bid. |
5008 |
(2)(a)1. Notwithstanding
the foregoing, Contracts with |
5009 |
employees of the association, and
contracts for attorney, |
5010 |
accountant, architect, community
association manager, |
5011 |
engineering, and landscape architect
services are not subject to |
5012 |
the provisions of this section. |
5013 |
2. A
contract executed before October 1, 2004, and any |
5014 |
renewal thereof, is not subject to
the competitive bid |
5015 |
requirements of this section. If a
contract was awarded under |
5016 |
the competitive bid procedures of
this section, any renewal of |
5017 |
that contract is not subject to such
competitive bid |
5018 |
requirements if the contract contains
a provision that allows |
5019 |
the board to cancel the contract on
30 days' notice. Materials, |
5020 |
equipment, or services provided to an
association under a local |
5021 |
government franchise agreement by a
franchise holder or a |
5022 |
manager
are not subject to the competitive bid requirements of |
5023 |
this section. A contract with a
manager, if made by a |
5024 |
competitive
bid, may be made for up to 3 years and
must contain |
5025 |
a 30-day
termination clause. An association whose declaration or |
5026 |
bylaws provide for competitive
bidding for services may operate |
5027 |
under the provisions of that
declaration or bylaws in lieu of |
5028 |
this section if those provisions are
not less stringent than the |
5029 |
requirements of this section. |
5030 |
(b) Nothing
contained in this section is intended to limit |
5031 |
the ability of an association to
obtain needed products and |
5032 |
services in an emergency. |
5033 |
(c) This
section does not apply if the business entity |
5034 |
with which the association desires to
enter into a contract is |
5035 |
the only source of supply within the
county serving the |
5036 |
association. |
5037 |
(d) Nothing
contained in this section shall excuse a party |
5038 |
contracting to provide maintenance or
management services from |
5039 |
compliance with s. 720.309. |
5040 |
Section
57. Section 720.306, Florida Statutes, is amended |
5041 |
to read: |
5042 |
720.306 Meetings
of members; voting and election |
5043 |
procedures; amendments.-- |
5044 |
(1) QUORUM;
AMENDMENTS.-- |
5045 |
(a) Unless
otherwise required by law, and other than those |
5046 |
matters set forth
in paragraph (b), any governing document of an |
5047 |
association shall
only be amended by the affirmative vote of |
5048 |
two-thirds of the
voting interests of the association subject to |
5049 |
the following: |
5050 |
1. All
amendments offered for official recording must be |
5051 |
submitted as
contained within the covenants and restrictions in |
5052 |
their entirety. |
5053 |
2. Within
12 months of enactment of this subsection all |
5054 |
duly registered
covenants and restrictions must be complete and |
5055 |
set forth in
plain, easily understandable English. Unless
a |
5056 |
lower number is
provided in the bylaws, the percentage of voting |
5057 |
interests required
to constitute a quorum at a meeting of the |
5058 |
members shall be
30 percent of the total voting interests. |
5059 |
Unless otherwise
provided in this chapter or in the articles of |
5060 |
incorporation or
bylaws, decisions that require a vote of the |
5061 |
members must be
made by the concurrence of at least a majority |
5062 |
of the voting
interests present, in person or by proxy, at a |
5063 |
meeting at which a
quorum has been attained. |
5064 |
(b) Unless
otherwise provided in the governing documents |
5065 |
or required by
law, and other than those matters set forth in |
5066 |
paragraph (c), any
governing document of an association may be |
5067 |
amended by the
affirmative vote of two-thirds of the voting |
5068 |
interests of the
association. |
5069 |
(b)(c) Unless
otherwise provided in the governing |
5070 |
documents as
originally recorded or permitted by this chapter or |
5071 |
chapter 617,
An amendment may not materially and adversely alter |
5072 |
the proportionate voting interest
appurtenant to a parcel or |
5073 |
increase the proportion or percentage
by which a parcel shares |
5074 |
in the common expenses of the
association unless the record |
5075 |
parcel owner and all record owners of
liens on the parcels join |
5076 |
in the execution of the amendment. For
purposes of this section, |
5077 |
a change in quorum
requirements is not an alteration of voting |
5078 |
interests. |
5079 |
(c) An
amendment restricting owners' rights relating to |
5080 |
the rental of
homes applies only to parcel owners who consent to |
5081 |
the amendment and
to parcel owners who purchase their parcels |
5082 |
after the
effective date of that amendment. |
5083 |
(2) ANNUAL
MEETING.--The association shall hold a meeting |
5084 |
of its members annually for the
transaction of any and all |
5085 |
proper business at a time, date, and
place stated in, or fixed |
5086 |
in accordance with, the bylaws. The
election of directors, if |
5087 |
one is required to be held, must be
held at, or in conjunction |
5088 |
with, the annual meeting or
as provided in the governing |
5089 |
documents. |
5090 |
(3) SPECIAL
MEETINGS.--Special meetings must be held when |
5091 |
called by the board of directors or,
unless a different |
5092 |
percentage
is stated in the governing documents, by at least 10 |
5093 |
percent of the total voting interests
of the association. |
5094 |
Business conducted at a special
meeting is limited to the |
5095 |
purposes described in the notice and
the agenda of the meeting. |
5096 |
(4) CONTENT
OF NOTICE.--Unless law or the governing |
5097 |
documents
require otherwise, Notice of an annual meeting need |
5098 |
not include a description of the
purpose or purposes for which |
5099 |
the meeting is called. Notice of a
special meeting must include |
5100 |
an agenda
and a description of the purpose or purposes for which |
5101 |
the meeting is called. |
5102 |
(5) NOTICE
OF MEETINGS.--The bylaws shall provide for |
5103 |
giving notice to members of all
member meetings, and if they do |
5104 |
not do so shall be deemed to provide
the following: The |
5105 |
association shall give all parcel
owners and members actual |
5106 |
notice of all membership meetings,
which shall be mailed, |
5107 |
delivered, or electronically
transmitted to the members not less |
5108 |
than 14 days prior to the meeting.
Evidence of compliance with |
5109 |
this 14-day notice shall be made by
an affidavit executed by the |
5110 |
person providing the notice and filed
upon execution among the |
5111 |
official records of the association.
In addition to mailing, |
5112 |
delivering, or electronically
transmitting the notice of any |
5113 |
meeting, the association may, by
reasonable rule, adopt a |
5114 |
procedure for conspicuously posting
and repeatedly broadcasting |
5115 |
the notice and the agenda on a
closed-circuit cable television |
5116 |
system serving the association. When
broadcast notice is |
5117 |
provided, the notice and agenda must
be broadcast in a manner |
5118 |
and for a sufficient continuous
length of time so as to allow an |
5119 |
average reader to observe the notice
and read and comprehend the |
5120 |
entire content of the notice and the
agenda. |
5121 |
(6) RIGHT
TO SPEAK.--Members and parcel owners have the |
5122 |
right to attend all membership
meetings and to speak at any |
5123 |
meeting with reference to any
all items opened for discussion or |
5124 |
included
on the agenda. Notwithstanding any provision
to the |
5125 |
contrary in the
governing documents or any rules adopted by the |
5126 |
board or by
the membership, A member and a parcel owner have the |
5127 |
right to speak at
least once for at least 3 minutes on each |
5128 |
agenda
any item,
provided that the member or parcel owner |
5129 |
submits a
written request to speak prior to the meeting. The |
5130 |
association may adopt written
reasonable rules governing the |
5131 |
frequency and,
duration, and other manner of
member and parcel |
5132 |
owner statements, which rules must be
consistent with this |
5133 |
subsection. |
5134 |
(7) ADJOURNMENT.--Unless
the bylaws require otherwise, |
5135 |
Adjournment of an annual or special
meeting to a different date, |
5136 |
time, or place must be announced at
that meeting before an |
5137 |
adjournment is taken, or notice must
be given of the new date, |
5138 |
time, or place pursuant to s.
720.303(2). Any business that |
5139 |
might have been transacted on the
original date of the meeting |
5140 |
may be transacted at the adjourned
meeting. If a new record date |
5141 |
for the adjourned meeting is or must
be fixed under s. 617.0707, |
5142 |
notice of the adjourned meeting must
be given to persons who are |
5143 |
entitled to vote and are members as
of the new record date but |
5144 |
were not members as of the previous
record date. |
5145 |
(8) PROXY
VOTING.--The members have the right, unless |
5146 |
otherwise provided in this subsection
or in the governing |
5147 |
documents,
to vote in person or by limited
proxy. To be valid, a |
5148 |
limited
proxy must be dated, must state the date, time, and |
5149 |
place of the meeting for which it was
given, and must be signed |
5150 |
by the authorized person who executed
the proxy. A limited proxy |
5151 |
is effective only for the specific
meeting for which it was |
5152 |
originally given, as the meeting may
lawfully be adjourned and |
5153 |
reconvened from time to time, and
automatically expires 60 90 |
5154 |
days after the date of the meeting
for which it was originally |
5155 |
given. A proxy is revocable at any
time at the pleasure of the |
5156 |
person who executes it. If the proxy
form expressly so provides, |
5157 |
any proxy holder may appoint, in
writing, a substitute to act in |
5158 |
his or her place. |
5159 |
(9) ELECTIONS.-- |
5160 |
(a) Election
procedures.-- |
5161 |
1. The
members of the board shall be elected by written |
5162 |
ballot or voting
machine. Proxies shall in no event be used in |
5163 |
electing the
board, either in general elections or elections to |
5164 |
fill vacancies
caused by recall, resignation, or otherwise, |
5165 |
unless otherwise
provided in this chapter. Not less than 60 days |
5166 |
before a scheduled
election, the association shall mail, |
5167 |
deliver, or
electronically transmit, whether by separate |
5168 |
association
mailing or included in another association mailing, |
5169 |
delivery, or
transmission, including regularly published |
5170 |
newsletters, to
each parcel owner entitled to a vote, a first |
5171 |
notice of the date
of the election. Any homeowner or other |
5172 |
eligible person
desiring to be a candidate for the board must |
5173 |
give written
notice to the association not less than 40 days |
5174 |
before a scheduled
election. Together with the written notice |
5175 |
and agenda as set
forth in this section, the association shall |
5176 |
mail, deliver, or
electronically transmit a second notice of the |
5177 |
election to all
parcel owners entitled to vote therein, with a |
5178 |
ballot that shall
list all candidates. Upon request of a |
5179 |
candidate, the
association shall include an information sheet, |
5180 |
no larger than 8
1/2 inches by 11 inches, which must be |
5181 |
furnished by the
candidate not less than 35 days before the |
5182 |
election, to be
included with the mailing, delivery, or |
5183 |
transmission of
the ballot, with the costs of mailing, delivery, |
5184 |
or electronic
transmission and copying to be borne by the |
5185 |
association. The
association is not liable for the contents of |
5186 |
the information
sheets prepared by the candidates. In order to |
5187 |
reduce costs, the
association may print or duplicate the |
5188 |
information sheets
on both sides of the paper. The division |
5189 |
shall by rule
establish voting procedures consistent with the |
5190 |
provisions
contained in this chapter, including rules |
5191 |
establishing
procedures for giving notice by electronic |
5192 |
transmission and
rules providing for the secrecy of ballots. |
5193 |
Elections shall be
decided by a plurality of those ballots cast. |
5194 |
There shall be no
quorum requirement; however, at least 20 |
5195 |
percent of the
eligible voters must cast a ballot in order to |
5196 |
have a valid
election of members of the board. No parcel owner |
5197 |
shall permit any
other person to vote his or her ballot, and any |
5198 |
such ballots
improperly cast shall be deemed invalid, provided |
5199 |
any parcel owner
who violates this provision may be fined by the |
5200 |
association in
accordance with s. 720.305(2). A parcel owner |
5201 |
needing assistance
in casting the ballot for the reasons stated |
5202 |
in s. 101.051 may
obtain assistance in casting the ballot. The |
5203 |
regular election
shall occur on the date of the annual meeting. |
5204 |
Notwithstanding
the provisions of this subparagraph, an election |
5205 |
is not required
unless more candidates file notices of intent to |
5206 |
run or more are
nominated than board vacancies exist. |
5207 |
2. Unless
otherwise provided in the bylaws, any vacancy |
5208 |
occurring on the
board before the expiration of a term may be |
5209 |
filled by the
affirmative vote of the majority of the remaining |
5210 |
directors, even if
the remaining directors constitute less than |
5211 |
a quorum, or by
the sole remaining director. In the alternative, |
5212 |
a board may hold
an election to fill the vacancy, in which case |
5213 |
the election
procedures must conform to the requirements of this |
5214 |
section unless the
association has opted out of the statutory |
5215 |
election process,
in which case the bylaws of the association |
5216 |
control. Unless
otherwise provided in the bylaws, a board member |
5217 |
appointed or
elected under this section shall fill the vacancy |
5218 |
for the unexpired
term of the seat being filled. Filling |
5219 |
vacancies created
by recall is governed by s. 720.303(10) and |
5220 |
rules adopted by
the division. |
5221 |
3. Fifteen
percent of the total voting interests in a |
5222 |
homeowners'
association, or six parcel owners, whichever is |
5223 |
greater, may
petition the division to appoint an election |
5224 |
monitor to attend
the annual meeting of the homeowners and |
5225 |
conduct the
election of directors. The division shall appoint a |
5226 |
division employee,
a person or persons specializing in |
5227 |
homeowners'
association election monitoring, or an attorney |
5228 |
licensed to
practice in this state as the election monitor. All |
5229 |
costs associated
with the election monitoring process shall be |
5230 |
paid by the
association. The division shall adopt a rule |
5231 |
establishing
procedures for the appointment of election monitors |
5232 |
and the scope and
extent of the monitor's role in the election |
5233 |
process. |
5234 |
(b) Terms;
eligibility of candidates.-- |
5235 |
1. The
terms of all members of the board shall expire at |
5236 |
the annual
meeting. Members may stand for reelection. |
5237 |
2. Coowners
of a parcel may not serve as members of the |
5238 |
board of
administration at the same time. |
5239 |
3. After
transition of control in a community, only |
5240 |
members as defined
in s. 720.301(1) shall be eligible as |
5241 |
candidates for the
board. |
5242 |
4. A
person who has been convicted of any felony by any |
5243 |
court of record in
the United States and who has not had his or |
5244 |
her right to vote
restored pursuant to law in the jurisdiction |
5245 |
of his or her
residence is not eligible for board membership. |
5246 |
The validity of an
action by the board is not affected if it is |
5247 |
later determined
that a member of the board is ineligible for |
5248 |
board membership
due to having been convicted of a felony. |
5249 |
Elections of
directors must be conducted in accordance with the |
5250 |
procedures set
forth in the governing documents of the |
5251 |
association. All
members of the association shall be eligible to |
5252 |
serve on the board
of directors, and a member may nominate |
5253 |
himself or herself
as a candidate for the board at a meeting |
5254 |
where the election
is to be held. Except as otherwise provided |
5255 |
in the governing
documents, boards of directors must be elected |
5256 |
by a plurality of
the votes cast by eligible voters. Any |
5257 |
election dispute
between a member and an association must be |
5258 |
submitted to
mandatory binding arbitration with the division. |
5259 |
Such proceedings
shall be conducted in the manner provided by s. |
5260 |
718.1255 and the
procedural rules adopted by the division. |
5261 |
(10) RECORDING.--Any
parcel owner may electronically tape |
5262 |
record any
or videotape meetings of the board
of directors and |
5263 |
meetings of the members. The board of
directors of the |
5264 |
association may adopt reasonable
rules governing the taping of |
5265 |
meetings of the board and the
membership. However, those rules |
5266 |
may not restrict
the parcel owners' rights to electronically |
5267 |
record the meeting
using, but not limited to, battery-operated |
5268 |
or electrical
equipment. |
5269 |
Section
58. Section 720.307, Florida Statutes, is amended |
5270 |
to read: |
5271 |
720.307 Transition
of association control in a |
5272 |
community.--With respect to
homeowners' associations: |
5273 |
(1) Members
other than the developer are entitled to elect |
5274 |
at least a majority of the members of
the board of directors of |
5275 |
the homeowners' association when the
earlier of the following |
5276 |
events occurs: |
5277 |
(a) Three
months after 75 90
percent of the parcels in all |
5278 |
phases of the community that will
ultimately be operated by the |
5279 |
homeowners' association have been
conveyed to members; or |
5280 |
(b) Such
other percentage of the parcels has been conveyed |
5281 |
to members, or such other date or
event has occurred, as is set |
5282 |
forth in the governing documents in
order to comply with the |
5283 |
requirements of any governmentally
chartered entity with regard |
5284 |
to the mortgage financing of parcels. |
5285 |
|
5286 |
For purposes of this section, the
term "members other than the |
5287 |
developer" shall not include
builders, contractors, or others |
5288 |
who purchase a parcel for the purpose
of constructing |
5289 |
improvements thereon for resale. |
5290 |
(2) The
developer is entitled to elect at least one member |
5291 |
of the board of directors of the
homeowners' association as long |
5292 |
as the developer holds for sale in
the ordinary course of |
5293 |
business at least 5 percent of the
parcels in all phases of the |
5294 |
community. After the developer
relinquishes control of the |
5295 |
homeowners' association, the
developer may exercise the right to |
5296 |
vote any developer-owned voting
interests in the same manner as |
5297 |
any other member, except for purposes
of reacquiring control of |
5298 |
the homeowners' association or
selecting the majority of the |
5299 |
members of the board of directors. |
5300 |
(3) Prior
to turnover, the developer or owner of all |
5301 |
common areas shall
convey the title to all common areas to the |
5302 |
association
immediately upon incorporation of the association. |
5303 |
If additional
common areas are acquired prior to transition of |
5304 |
control and
subject to the governing documents, title to those |
5305 |
common areas shall
also be immediately transferred to the |
5306 |
association. |
5307 |
(4) At
the time the members are entitled to elect at least |
5308 |
a majority of the board of directors
of the homeowners' |
5309 |
association, the developer shall, at
the developer's expense, |
5310 |
within no more than 30
90 days deliver the following
documents |
5311 |
to the board: |
5312 |
(a) All
deeds to common property owned by the association |
5313 |
or the developer. |
5314 |
(b) The
original of the association's declarations of |
5315 |
covenants and restrictions. |
5316 |
(c) A
certified copy of the articles of incorporation of |
5317 |
the association. |
5318 |
(d) A
copy of the bylaws. |
5319 |
(e) The
minute books, including all minutes. |
5320 |
(f) The
books and records of the association. |
5321 |
(g) Policies,
rules, and regulations, if any, which have |
5322 |
been adopted. |
5323 |
(h) Resignations
of directors who are required to resign |
5324 |
because the developer is required to
relinquish control of the |
5325 |
association. |
5326 |
(i) The
financial records of the association from the date |
5327 |
of incorporation through the date of
turnover. |
5328 |
(j) All
association funds and control thereof. |
5329 |
(k) All
tangible property of the association. |
5330 |
(l) A
copy of all contracts which may be in force with the |
5331 |
association as one of the parties. |
5332 |
(m) A
list of the names and addresses and telephone |
5333 |
numbers of all contractors,
subcontractors, or others in the |
5334 |
current employ of the association. |
5335 |
(n) Any
and all insurance policies in effect. |
5336 |
(o) Any
permits issued to the association by governmental |
5337 |
entities. |
5338 |
(p) Any
and all warranties in effect. |
5339 |
(q) A
roster of current homeowners and their addresses and |
5340 |
telephone numbers and section and lot
numbers. |
5341 |
(r) Employment
and service contracts in effect. |
5342 |
(s) All
other contracts and agreements in effect to which |
5343 |
the association is a party. |
5344 |
(t) The
financial records, including financial statements |
5345 |
of the
association, and source documents from the incorporation |
5346 |
of the association
through the date of turnover. The records |
5347 |
shall be audited
by an independent certified public accountant |
5348 |
for the period of
the incorporation of the association or for |
5349 |
the period covered
by the last audit, if an audit has been |
5350 |
performed for each
fiscal year since incorporation. All |
5351 |
financial
statements shall be prepared in accordance with |
5352 |
generally accepted
accounting standards and shall be audited in |
5353 |
accordance with
generally accepted auditing standards as |
5354 |
prescribed by the
Board of Accountancy. The accountant |
5355 |
performing the
review shall examine to the extent necessary |
5356 |
supporting
documents and records, including the cash |
5357 |
disbursements and
related paid invoices to determine whether |
5358 |
expenditures were
for association purposes and the billings, |
5359 |
cash receipts, and
related records to determine whether the |
5360 |
developer was
charged and paid the proper amounts of |
5361 |
assessments. This
paragraph applies to associations with a date |
5362 |
of incorporation
after December 31, 2007. |
5363 |
(5)(4) This
section applies to any mandatory homeowners' |
5364 |
association
existing under this chapter does
not apply to a |
5365 |
homeowners'
association in existence on the effective date of |
5366 |
this act, or to a
homeowners' association, no matter when |
5367 |
created, if such
association is created in a community that is |
5368 |
included in an
effective development-of-regional-impact |
5369 |
development order
as of the effective date of this act, together |
5370 |
with any approved
modifications thereof. |
5371 |
Section
59. Section 720.3071, Florida Statutes, is created |
5372 |
to read: |
5373 |
720.3071 Board
member training.--The division shall |
5374 |
provide training
programs for homeowners' association board |
5375 |
members, at the
associations' expense. Training shall be |
5376 |
mandatory for
newly elected board members and members currently |
5377 |
serving on a board
who have not previously voluntarily attended |
5378 |
training. |
5379 |
Section
60. Subsection (1) of section 720.3075, Florida |
5380 |
Statutes, is amended, and subsection
(5) is added to that |
5381 |
section, to read: |
5382 |
720.3075 Prohibited
clauses in association documents.-- |
5383 |
(1) It
is declared that the public policy of this state |
5384 |
prohibits the inclusion or
enforcement of certain types of |
5385 |
clauses in homeowners' association
documents, including |
5386 |
declaration of covenants, articles of
incorporation, bylaws, or |
5387 |
any other document of the association
which binds members of the |
5388 |
association, which either have the
effect of or provide that: |
5389 |
(a) A
developer has the unilateral ability and right to |
5390 |
make changes to the homeowners'
association documents after the |
5391 |
transition of homeowners' association
control in a community |
5392 |
from the developer to the
nondeveloper members, as set forth in |
5393 |
s. 720.307, has occurred. |
5394 |
(b) A
homeowners' association is prohibited or restricted |
5395 |
from filing a lawsuit against the
developer, or the homeowners' |
5396 |
association is otherwise effectively
prohibited or restricted |
5397 |
from bringing a lawsuit against the
developer. |
5398 |
(c) After
the transition of homeowners' association |
5399 |
control in a community from the
developer to the nondeveloper |
5400 |
members, as set forth in s. 720.307,
has occurred, a developer |
5401 |
is entitled to cast votes in an
amount that exceeds one vote per |
5402 |
residential lot. |
5403 |
(d) The
homeowners' association is restricted or prevented |
5404 |
from functioning,
as provided by federal, state, and local laws |
5405 |
and specifically
by this chapter. |
5406 |
(e) The
homeowners' association is prevented from amending |
5407 |
any document as
allowed according to Florida statutes. |
5408 |
|
5409 |
Such clauses are declared null and
void as against the public |
5410 |
policy of this state. |
5411 |
(5)(a) An
association may not restrict a homeowner from |
5412 |
mounting or
employing shutters or other hurricane protection. |
5413 |
(b) Except
as provided in paragraph (c), an association |
5414 |
may not restrict a
homeowner from mounting or employing |
5415 |
temporary or
permanent shutters or other hurricane protection |
5416 |
during any time
that a hurricane warning has been declared, |
5417 |
during any time
when an evacuation order has been given, or for |
5418 |
the following
period after conclusion of such hurricane watch or |
5419 |
evacuation order: |
5420 |
1. Seven
days; or |
5421 |
2. Fourteen
days if the hurricane watch concerns a |
5422 |
category 4 storm
or greater or if the evacuation order lasts |
5423 |
more than 3 days. |
5424 |
(c) If
a local government restricts homeowners' mounting |
5425 |
or employing
temporary or permanent shutters or other hurricane |
5426 |
protection, the
local government may also authorize associations |
5427 |
to adopt and
enforce equal or lesser restrictions. |
5428 |
(d) Except
as provided in paragraph (c) or paragraph (e), |
5429 |
an association may
not restrict a homeowner from mounting or |
5430 |
employing
permanent shutters or other hurricane protection |
5431 |
(e) If
the association otherwise properly adopts |
5432 |
restrictions
governing color or form of shutters or other |
5433 |
permanent exterior
window coverings, the association may adopt |
5434 |
and enforce equal
or lesser restrictions that apply to permanent |
5435 |
exterior hurricane
protections. |
5436 |
(f) An
association may not restrict the time or duration |
5437 |
for shutters or
other hurricane protection to be open or closed |
5438 |
during any period
and may not restrict homeowners from mounting |
5439 |
or employing
temporary shutters or other hurricane protection, |
5440 |
as provided in
paragraph (b). |
5441 |
Section
61. Section 720.3086, Florida Statutes, is amended |
5442 |
to read: |
5443 |
720.3086 Financial
report; audit; penalty; exclusivity of |
5444 |
properties.-- |
5445 |
(1) In
a residential subdivision in which the owners of |
5446 |
lots or parcels must pay mandatory maintenance or
amenity fees |
5447 |
to the subdivision developer or to the owners of
the common |
5448 |
areas, recreational facilities, and other
properties serving the |
5449 |
lots or parcels, the developer or owner of such
areas, |
5450 |
facilities, or properties shall make public,
within 60 days |
5451 |
following the end of each fiscal year, a complete
financial |
5452 |
report of the actual, total receipts of mandatory
maintenance or |
5453 |
amenity fees received by it, and an itemized
listing of the |
5454 |
expenditures made by it from such fees, for that
year. Such |
5455 |
report shall be made public by mailing it to each
lot or parcel |
5456 |
owner in the subdivision, by publishing it in a
publication |
5457 |
regularly distributed within the subdivision, or
by posting it |
5458 |
in prominent locations in the subdivision. Thereafter,
the |
5459 |
developer or the owner of the
common areas, recreational |
5460 |
facilities, and other
properties serving the lots or parcels |
5461 |
shall mail the annual
financial report, upon written request |
5462 |
from a lot or parcel owner. |
5463 |
(2) Pursuant
to this section, if the developer or the |
5464 |
owner fails to provide the lot
or parcel owner with the |
5465 |
requested annual financial
report within 30 days of delivery of |
5466 |
such request to the developer
or owner, the circuit court |
5467 |
located in the same county as
the principal office of the |
5468 |
corporation, or its registered
office, if no office exists in |
5469 |
this state, summarily may
order the corporation to furnish such |
5470 |
financial report, upon
application of the lot or parcel owner. |
5471 |
If the court orders the
corporation to furnish the financial |
5472 |
report, it shall also order
the corporation to pay the lot or |
5473 |
parcel owner's costs,
including reasonable attorney's fees that |
5474 |
have been incurred to obtain
the order, and otherwise shall |
5475 |
enforce the lot or parcel
owner's rights under this section. |
5476 |
(3) Lot
or parcel owners shall have exclusive and vested |
5477 |
rights for the use of common
areas, recreational facilities, and |
5478 |
other properties serving the
lots or parcels unless they have |
5479 |
been dedicated for
nonexclusive use by the lot or parcel owners. |
5480 |
Portions of governing
documents that allow guests of the |
5481 |
developer or facility owner
the right to use the facility are |
5482 |
hereby declared void, as those
portions of governing documents |
5483 |
violate the rights to
exclusive use of the facilities by the lot |
5484 |
or parcel owners and their
guests. |
5485 |
(4) This
section does not apply to amounts paid to |
5486 |
homeowner associations pursuant to chapter
617, chapter 718, |
5487 |
chapter 719, chapter 721, or chapter 723, or to
amounts paid to |
5488 |
local governmental entities, including special
districts. |
5489 |
Section 62. Section
720.401, Florida Statutes, is amended |
5490 |
to read: |
5491 |
720.401 Prospective
purchasers subject to association |
5492 |
membership requirement; disclosure required;
covenants; |
5493 |
assessments; contract cancellation.-- |
5494 |
(1)(a) A
prospective parcel owner in a community must be |
5495 |
presented a disclosure summary before executing
the contract for |
5496 |
sale. The disclosure summary must be in a form
substantially |
5497 |
similar to the following form: |
5498 |
|
5499 |
DISCLOSURE SUMMARY |
5500 |
FOR |
5501 |
(NAME OF COMMUNITY) |
5502 |
|
5503 |
1. AS A
PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL |
5504 |
BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS'
ASSOCIATION. |
5505 |
2. THE
PURCHASER HAS BEEN PROVIDED A COPY OF THE THERE |
5506 |
HAVE BEEN OR WILL BE
RECORDED RESTRICTIVE COVENANTS AND THE |
5507 |
ASSOCIATION GOVERNING DOCUMENTS RELATIVE TO
GOVERNING THE USE |
5508 |
AND OCCUPANCY OF PROPERTIES IN THIS COMMUNITY. AFFIRM
OR DENY |
5509 |
RECEIPT OR DOCUMENTS BY
CHECKING: |
5510 |
YES /box/ or NO /box/ |
5511 |
3. YOU WILL
(OR WILL NOT) BE OBLIGATED TO PAY
ASSESSMENTS |
5512 |
TO THE ASSOCIATION. ASSESSMENTS ARE
MAY BE SUBJECT TO PERIODIC |
5513 |
CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS
$_____ PER _____. |
5514 |
IN ADDITION,
YOU WILL (OR
WILL NOT) ALSO BE OBLIGATED TO PAY ANY |
5515 |
SPECIAL ASSESSMENTS IMPOSED BY THE ASSOCIATION.
SUCH SPECIAL |
5516 |
ASSESSMENTS ARE
MAY BE SUBJECT TO CHANGE. IF
APPLICABLE, THE |
5517 |
CURRENT AMOUNT IS $_____ PER _____. |
5518 |
4. YOU WILL
MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS |
5519 |
AND AD VALOREM TAXES AND
NON-AD VALOREM ASSESSMENTS TO THE |
5520 |
RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL
DISTRICT. ALL |
5521 |
ASSESSMENTS AND TAXES
ARE SUBJECT TO PERIODIC CHANGE. |
5522 |
5. YOUR
FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS |
5523 |
LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION
COULD RESULT IN A |
5524 |
LIEN AND JUDICIAL
FORECLOSURE ON YOUR PROPERTY. |
5525 |
6. THERE
MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES |
5526 |
FOR RECREATIONAL OR OTHER COMMONLY USED
FACILITIES AS AN |
5527 |
OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'
ASSOCIATION. IF |
5528 |
APPLICABLE, THE CURRENT AMOUNT IS $_____ PER
_____. |
5529 |
7. THE
DEVELOPER HAS MAY
HAVE THE RIGHT TO AMEND THE |
5530 |
RESTRICTIVE COVENANTS WHILE
STILL IN CONTROL OF THE HOMEOWNERS' |
5531 |
ASSOCIATION
WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP |
5532 |
OR THE APPROVAL OF THE PARCEL OWNERS. |
5533 |
8. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE |
5534 |
ONLY SUMMARY IN NATURE, AND, AS A
PROSPECTIVE PURCHASERS |
5535 |
PURCHASER,
YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION |
5536 |
GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY. |
5537 |
9. THESE
DOCUMENTS ARE EITHER MATTERS OF
PUBLIC RECORD AND |
5538 |
CAN BE OBTAINED FROM THE
RECORD OFFICE IN THE COUNTY WHERE THE |
5539 |
PROPERTY IS LOCATED, OR
ARE NOT RECORDED IN
TALLAHASSEE AND IN |
5540 |
THE COUNTY WHERE THE PROPERTY
IS LOCATED. A PENALTY SHALL BE |
5541 |
IMPOSED UPON THE DEVELOPER,
SELLER OR AGENT OF THE SELLER IF A |
5542 |
RECORDED COPY OF THE
RESTRICTIVE COVENANTS AND THE ASSOCIATION |
5543 |
GOVERNING DOCUMENTS ARE NOT
PROVIDED BEFORE CONTRACT FOR SALE |
5544 |
AND CAN BE OBTAINED FROM
THE DEVELOPER. |
5545 |
10. THE
PURCHASERS HAVE BEEN PROVIDED A COPY OF THE |
5546 |
RESTRICTIVE COVENANTS AND THE
ASSOCIATION GOVERNING DOCUMENTS |
5547 |
BEFORE CONTRACT FOR SALE.
AFFIRM OR DENY BY CHECKING |
5548 |
YES /box/ or NO /box/. |
5549 |
|
5550 |
DATE:PURCHASER: |
5551 |
PURCHASER: |
5552 |
|
5553 |
Full The
disclosure must be supplied by the developer, or by the |
5554 |
parcel owner if the sale is by an owner that is
not the |
5555 |
developer or the agent
for the owner. Any contract or agreement |
5556 |
for sale shall refer to and incorporate the
disclosure summary |
5557 |
and shall include, in prominent language, a
statement that the |
5558 |
potential buyer should not execute the contract
or agreement |
5559 |
until they have received and read the disclosure
summary, |
5560 |
recorded restrictive covenants
and governing documents of the |
5561 |
association,
required by this section. |
5562 |
(b) Each
contract entered into for the sale of property |
5563 |
with recorded
restrictive covenants governed by mandatory |
5564 |
homeowners' associations
covenants subject to disclosure |
5565 |
required by this section must contain in
conspicuous type a |
5566 |
clause that states: |
5567 |
|
5568 |
IF THE DISCLOSURE SUMMARY AND
FULL DISCLOSURE OF THE RECORDED |
5569 |
RESTRICTIVE COVENANTS AND
GOVERNING DOCUMENTS OF THE |
5570 |
ASSOCIATION, REQUIRED
BY SECTION 720.401, FLORIDA STATUTES, HAVE |
5571 |
HAS NOT BEEN
PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE |
5572 |
EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT
IS VOIDABLE BY |
5573 |
BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT
OR |
5574 |
REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S
INTENTION TO CANCEL |
5575 |
WITHIN 10 3
DAYS AFTER RECEIPT OF THE FULL DISCLOSURE SUMMARY
OR |
5576 |
PRIOR TO CLOSING,
WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER |
5577 |
OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S
RIGHT TO VOID |
5578 |
THIS CONTRACT SHALL TERMINATE AT CLOSING. |
5579 |
(c) A
certified copy of the publicly recorded governing |
5580 |
documents must be provided to
any prospective purchaser, any |
5581 |
real estate agent, financial
institution, title or closing |
5582 |
company upon request. |
5583 |
(d) If
the developer or the association willfully and |
5584 |
knowingly fails to disclose
material facts that negatively |
5585 |
affect the value of the parcel
purchased by an association |
5586 |
member, the individual board
members or developer shall be held |
5587 |
liable under applicable
federal and state civil and criminal |
5588 |
statutes. (e)(c) If
the disclosure summary is not provided to a |
5589 |
prospective purchaser before the purchaser
executes a contract |
5590 |
for the sale of property governed by covenants
that are subject |
5591 |
to disclosure pursuant to this section, the
purchaser may void |
5592 |
the contract by delivering to the seller or the
seller's agent |
5593 |
or representative written notice canceling the
contract within 3 |
5594 |
days after receipt of the disclosure summary or
prior to |
5595 |
closing, whichever occurs first. This right may
not be waived by |
5596 |
the purchaser but terminates at closing. |
5597 |
(2) This
section does not apply to any association |
5598 |
regulated under chapter 718, chapter 719, chapter
721, or |
5599 |
chapter 723 or to a
subdivider registered under chapter 498; and |
5600 |
also does not apply if disclosure regarding the
association is |
5601 |
otherwise made in connection with the
requirements of chapter |
5602 |
718, chapter 719, chapter 721, or chapter 723. |
5603 |
Section 63. Section
720.501, Florida Statutes, is created |
5604 |
to read: |
5605 |
720.501 Powers
and Duties of Division of Florida Land |
5606 |
Sales, Condominiums,
Homeowners' Associations, and Mobile |
5607 |
Homes.-- |
5608 |
(1) The
Division of Florida Land Sales, Condominiums, |
5609 |
Homeowners' Associations, and
Mobile Homes of the Department of |
5610 |
Business and Professional
Regulation, referred to as the |
5611 |
"division" in this
part, in addition to other powers and duties |
5612 |
prescribed by chapter 498, has
the power to enforce and ensure |
5613 |
compliance with the provisions
of this chapter and rules |
5614 |
promulgated pursuant hereto
relating to the development, |
5615 |
construction, sale, lease,
ownership, operation, and management |
5616 |
of residential property. In
performing its duties, the division |
5617 |
has the following powers and
duties: |
5618 |
(a) The
division may make necessary public or private |
5619 |
investigations within or
outside this state to determine whether |
5620 |
any person has violated this
chapter or any rule or order |
5621 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
5622 |
in the adoption of rules or
forms hereunder. |
5623 |
(b) The
division may require or permit any person to file |
5624 |
a statement in writing, under
oath or otherwise, as the division |
5625 |
determines, as to the facts
and circumstances concerning a |
5626 |
matter to be investigated. |
5627 |
(c) For
the purpose of any investigation under this |
5628 |
chapter, the division
director, or any officer or employee |
5629 |
designated by the division
director may administer oaths or |
5630 |
affirmations, subpoena
witnesses and compel their attendance, |
5631 |
take evidence, and require the
production of any matter which is |
5632 |
relevant to the investigation,
including the existence, |
5633 |
description, nature, custody,
condition, and location of any |
5634 |
books, documents, or other
tangible things and the identity and |
5635 |
location of persons having
knowledge of relevant facts or any |
5636 |
other matter reasonably
calculated to lead to the discovery of |
5637 |
material evidence. Upon the
failure by a person to obey a |
5638 |
subpoena or to answer
questions propounded by the investigating |
5639 |
officer and upon reasonable
notice to all persons affected |
5640 |
thereby, the division may
apply to the circuit court for an |
5641 |
order compelling compliance. |
5642 |
(d) Notwithstanding
any remedies available to lot owners |
5643 |
and associations, if the
division has reasonable cause to |
5644 |
believe that a violation of
any provision of this chapter or |
5645 |
rule promulgated pursuant
hereto has occurred, the division may |
5646 |
institute enforcement
proceedings in its own name against any |
5647 |
developer, association,
officer, or member of the board of |
5648 |
administration, or its
assignees or agents, as follows: |
5649 |
1. The
division may permit a person whose conduct or |
5650 |
actions may be under
investigation to waive formal proceedings |
5651 |
and enter into a consent
proceeding whereby orders, rules, or |
5652 |
letters of censure or warning,
whether formal or informal, may |
5653 |
be entered against the person. |
5654 |
2. The
division may issue an order requiring the |
5655 |
developer, association,
officer, or member of the board of |
5656 |
administration, or its
assignees or agents, to cease and desist |
5657 |
from the unlawful practice and
take such affirmative action as |
5658 |
in the judgment of the
division will carry out the purposes of |
5659 |
this chapter. Such affirmative
action may include, but is not |
5660 |
limited to, an order requiring
a developer to pay moneys |
5661 |
determined to be owed to a
homeowners' association. |
5662 |
3. The
division may bring an action in circuit court on |
5663 |
behalf of a class of lot
owners, lessees, or purchasers for |
5664 |
declaratory relief, injunctive
relief, or restitution. |
5665 |
4. The
division may impose a civil penalty against a |
5666 |
developer or association, or
its assignee or agent for any |
5667 |
violation of this chapter or a
rule promulgated pursuant hereto. |
5668 |
The division may impose a
civil penalty individually against any |
5669 |
officer or board member who
willfully and knowingly violates a |
5670 |
provision of this chapter, a
rule adopted pursuant hereto, or a |
5671 |
final order of the division.
The term "willfully and knowingly" |
5672 |
means that the division
informed the officer or board member |
5673 |
that his or her action or
intended action violates this chapter, |
5674 |
a rule adopted under this
chapter, or a final order of the |
5675 |
division and that the officer
or board member refused to comply |
5676 |
with the requirements of this
chapter, a rule adopted under this |
5677 |
chapter, or a final order of
the division. The division, prior |
5678 |
to initiating formal agency
action under chapter 120, shall |
5679 |
afford the officer or board
member an opportunity to voluntarily |
5680 |
comply with this chapter, a
rule adopted under this chapter, or |
5681 |
a final order of the division.
An officer or board member who |
5682 |
complies within 10 days is not
subject to a civil penalty. A |
5683 |
penalty may be imposed on the
basis of each day of continuing |
5684 |
violation, but in no event
shall the penalty for any offense |
5685 |
exceed $5,000. By January 1,
2007, the division shall adopt, by |
5686 |
rule, penalty guidelines
applicable to possible violations or to |
5687 |
categories of violations of
this chapter or rules adopted by the |
5688 |
division. The guidelines must
specify a meaningful range of |
5689 |
civil penalties for each such
violation of the statute and rules |
5690 |
and must be based upon the
harm caused by the violation, the |
5691 |
repetition of the violation,
and upon such other factors deemed |
5692 |
relevant by the division. For
example, the division may consider |
5693 |
whether the violations were
committed by a developer-controlled |
5694 |
or owner-controlled
association, the size of the association, |
5695 |
and other factors. The
guidelines must designate the possible |
5696 |
mitigating or aggravating
circumstances that justify a departure |
5697 |
from the range of penalties
provided by the rules. It is the |
5698 |
legislative intent that minor
violations be distinguished from |
5699 |
those which endanger the
health, safety, or welfare of residents |
5700 |
or other persons and that such
guidelines provide reasonable and |
5701 |
meaningful notice to the
public of likely penalties that may be |
5702 |
imposed for prescribed
conduct. This subsection does not limit |
5703 |
the ability of the division to
informally dispose of |
5704 |
administrative actions or
complaints by stipulation, agreed |
5705 |
settlement, or consent order.
All amounts collected shall be |
5706 |
deposited with the Chief
Financial Officer to the credit of the |
5707 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
5708 |
Association, and Mobile Homes
Trust Fund. If a developer fails |
5709 |
to pay the civil penalty, the
division shall thereupon issue an |
5710 |
order directing that such
developer cease and desist from |
5711 |
further operation until such
time as the civil penalty is paid, |
5712 |
or may pursue enforcement of
the penalty in a court of competent |
5713 |
jurisdiction. If an
association fails to pay the civil penalty, |
5714 |
the division shall thereupon
pursue enforcement in a court of |
5715 |
competent jurisdiction, and
the order imposing the civil penalty |
5716 |
or the cease and desist order
will not become effective until 20 |
5717 |
days after the date of such
order. Any action commenced by the |
5718 |
division shall be brought in
the county in which the division |
5719 |
has its executive offices or
in the county where the violation |
5720 |
occurred. |
5721 |
(e) The
division may prepare and disseminate a prospectus |
5722 |
and other information to
assist prospective owners, purchasers, |
5723 |
lessees, and developers of
residential communities in assessing |
5724 |
the rights, privileges, and
duties pertaining thereto. |
5725 |
(f) The
division may adopt rules pursuant to ss.120.536(1) |
5726 |
and 120.54 to implement and
enforce the provisions of this |
5727 |
chapter. |
5728 |
(g) The
division shall establish procedures for providing |
5729 |
notice to an association when
the division considers the |
5730 |
issuance of a declaratory
statement with respect to the |
5731 |
declaration of restrictions or
any related document governing in |
5732 |
such residential community. |
5733 |
(h) The
division shall furnish each association which pays |
5734 |
the fees required by paragraph
(2)(a) a copy of this act, |
5735 |
subsequent changes to this act
on an annual basis, an amended |
5736 |
version of this act as it
becomes available from the Secretary |
5737 |
of State's office and the
rules promulgated pursuant thereto on |
5738 |
an annual basis. |
5739 |
(i) The
division shall annually provide each association |
5740 |
with a summary of declaratory
statements and formal legal |
5741 |
opinions relating to the
operations of residential communities |
5742 |
which were rendered by the
division during the previous year. |
5743 |
(j) The
division shall provide training programs for |
5744 |
residential association board
members and lot owners. |
5745 |
(k) The
division shall maintain a toll-free telephone |
5746 |
number accessible to lot
owners. |
5747 |
(l) The
division shall develop a program to certify both |
5748 |
volunteer and paid mediators
to provide mediation of disputes. |
5749 |
The division shall provide,
upon request, a list of such |
5750 |
mediators to any association,
lot owner, or other participant in |
5751 |
arbitration proceedings under
s. 720.311 requesting a copy of |
5752 |
the list. The division shall
include on the list of volunteer |
5753 |
mediators only the names of
persons who have received at least |
5754 |
20 hours of training in
mediation techniques or who have |
5755 |
mediated at least 20 disputes.
In order to become initially |
5756 |
certified by the division,
paid mediators must be certified by |
5757 |
the Supreme Court to mediate
court cases in either county or |
5758 |
circuit courts. However, the
division may adopt, by rule, |
5759 |
additional factors for the
certification of paid mediators, |
5760 |
which factors must be related
to experience, education, or |
5761 |
background. Any person
initially certified as a paid mediator by |
5762 |
the division must, in order to
continue to be certified, comply |
5763 |
with the factors or
requirements imposed by rules adopted by the |
5764 |
division. |
5765 |
(m) When
a complaint is made, the division shall conduct |
5766 |
its inquiry with due regard to
the interests of the affected |
5767 |
parties. Within 30 days after
receipt of a complaint, the |
5768 |
division shall acknowledge the
complaint in writing and notify |
5769 |
the complainant whether the
complaint is within the jurisdiction |
5770 |
of the division and whether
the division needs additional |
5771 |
information from the
complainant. The division shall conduct its |
5772 |
investigation and shall take
action upon the complaint within 90 |
5773 |
days after receipt of the
original complaint or of timely |
5774 |
requested additional
information. However, failure to complete |
5775 |
the investigation within 90
days does not prevent the division |
5776 |
from continuing the
investigation, accepting or considering |
5777 |
evidence obtained or received
after 90 days, or taking |
5778 |
administrative action if
reasonable cause exists to believe that |
5779 |
a violation of this chapter or
a rule of the division has |
5780 |
occurred. If an investigation
is not completed within the time |
5781 |
limits established in this
paragraph, the division shall, on a |
5782 |
monthly basis, notify the
complainant in writing of the status |
5783 |
of the investigation When
reporting its action to the |
5784 |
complainant, the division
shall inform the complainant of any |
5785 |
right to a hearing pursuant to
ss. 120.569 and 120.57. |
5786 |
(2) Effective
January 1, 2008, each homeowners' |
5787 |
association that administers
more than 10 residential homes |
5788 |
shall pay to the division an
annual fee in the amount of $4 for |
5789 |
each residence in communities
administered by the association. |
5790 |
If the fee is not paid by
March 1, then the association shall be |
5791 |
assessed a penalty of 10
percent of the amount due, and the |
5792 |
association will not have
standing to maintain or defend any |
5793 |
action in the courts of this
state until the amount due, plus |
5794 |
any penalty that is paid. All
fees shall be deposited in the |
5795 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
5796 |
Association, and Mobile Homes
Trust Fund as provided by law. |
5797 |
Section 64. Section
720.505, Florida Statutes, is created |
5798 |
to read: |
5799 |
720.505 Advisory
council; membership functions.-- |
5800 |
(1) There
is created the Advisory Council On Mandated |
5801 |
Properties. The council shall
consist of seven appointed |
5802 |
members. Two members shall be
appointed by the President of the |
5803 |
Senate, two members shall be
appointed by the Speaker of the |
5804 |
House of Representatives, and
three members shall be appointed |
5805 |
by the Governor. At least one
member that is appointed by the |
5806 |
Governor, by the Senate
President and by the Speaker of the |
5807 |
House shall be a homeowners'
rights advocate and parcel owner. |
5808 |
Members shall be appointed to
2-year terms; however, one of the |
5809 |
persons initially appointed by
the Governor, by the President of |
5810 |
the Senate, and by the Speaker
of the House of Representatives |
5811 |
shall be appointed to a 1-year
term. A member of the division, |
5812 |
appointed by the Secretary,
shall serve as an ex-officio |
5813 |
nonvoting member. The
selection of council members shall be made |
5814 |
in a manner that ensures a
fair and balanced representation from |
5815 |
the service-provider sector
and consumer advocates with a |
5816 |
substantial public record of
endeavors on behalf of homeowners' |
5817 |
rights and consumer interests.
The council shall be located |
5818 |
within the division for
administrative purposes. Members of the |
5819 |
council shall serve without
compensation but are entitled to |
5820 |
receive per diem and travel
expenses pursuant to s. 112.061 |
5821 |
while on official business. A
vacancy on the Advisory Council |
5822 |
shall be filled in the same
manner as the original appointment. |
5823 |
(2) The
functions of the advisory council shall be to: |
5824 |
(a) Receive,
from the public, input regarding issues of |
5825 |
concern with respect to
mandated communities and recommendations |
5826 |
for changes in homeowners'
association laws. The issues that the |
5827 |
council shall consider
include, but are not limited to, the |
5828 |
rights and responsibilities of
the parcel owners in relation to |
5829 |
the rights and
responsibilities of the association. |
5830 |
(b) Review,
evaluate, and advise the division concerning |
5831 |
revisions and adoption of
rules affecting homeowners' |
5832 |
associations. |
5833 |
(c) Recommend
improvements, if needed, in the education |
5834 |
programs offered by the
division. |
5835 |
(3) The
council may elect a chair and vice chair and such |
5836 |
other officers as it may deem
advisable. The council shall meet |
5837 |
at the call of its chair, at
the request of a majority of its |
5838 |
membership, at the request of
the division, or at such times as |
5839 |
it may prescribe. A majority
of the members of the council shall |
5840 |
constitute a quorum. Council
action may be taken by vote of a |
5841 |
majority of the voting members
who are present at a meeting |
5842 |
where there is a quorum. |
5843 |
Section 65. Subsection
(11) of section 721.05, Florida |
5844 |
Statutes, is amended to read: |
5845 |
721.05 Definitions.--As
used in this chapter, the term: |
5846 |
(11) "Division"
means the Division of Florida Land Sales, |
5847 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
5848 |
Department of Business and Professional
Regulation. |
5849 |
Section 66. Paragraph
(d) of subsection (2) of section |
5850 |
721.07, Florida Statutes, is amended to read: |
5851 |
721.07 Public
offering statement.--Prior to offering any |
5852 |
timeshare plan, the developer must submit a filed
public |
5853 |
offering statement to the division for approval
as prescribed by |
5854 |
s. 721.03, s. 721.55, or this section. Until the
division |
5855 |
approves such filing, any contract regarding the
sale of that |
5856 |
timeshare plan is subject to cancellation by the
purchaser |
5857 |
pursuant to s. 721.10. |
5858 |
(2) |
5859 |
(d) A
developer shall have the authority to deliver to |
5860 |
purchasers any purchaser public offering
statement that is not |
5861 |
yet approved by the division, provided that the
following shall |
5862 |
apply: |
5863 |
1. At
the time the developer delivers an unapproved |
5864 |
purchaser public offering statement to a
purchaser pursuant to |
5865 |
this paragraph, the developer shall deliver a
fully completed |
5866 |
and executed copy of the purchase contract
required by s. 721.06 |
5867 |
that contains the following statement in
conspicuous type in |
5868 |
substantially the following form which shall
replace the |
5869 |
statements required by s. 721.06(1)(g): |
5870 |
|
5871 |
The developer is delivering to you a public
offering statement |
5872 |
that has been filed with but not yet approved by
the Division of |
5873 |
Florida Land Sales, Condominiums, Homeowners'
Associations, and |
5874 |
Mobile Homes. Any revisions to the unapproved
public offering |
5875 |
statement you have received must be delivered to
you, but only |
5876 |
if the revisions materially alter or modify the
offering in a |
5877 |
manner adverse to you. After the division
approves the public |
5878 |
offering statement, you will receive notice of
the approval from |
5879 |
the developer and the required revisions, if any. |
5880 |
|
5881 |
Your statutory right to cancel this transaction
without any |
5882 |
penalty or obligation expires 10 calendar days
after the date |
5883 |
you signed your purchase contract or the date on
which you |
5884 |
receive the last of all documents required to be
given to you |
5885 |
pursuant to section 721.07(6), Florida Statutes,
or 10 calendar |
5886 |
days after you receive revisions required to be
delivered to |
5887 |
you, if any, whichever is later. If you decide to
cancel this |
5888 |
contract, you must notify the seller in writing
of your intent |
5889 |
to cancel. Your notice of cancellation shall be
effective upon |
5890 |
the date sent and shall be sent to
(Name of Seller) at |
5891 |
(Address of Seller) . Any attempt to
obtain a waiver of your |
5892 |
cancellation right is void and of no effect.
While you may |
5893 |
execute all closing documents in advance, the
closing, as |
5894 |
evidenced by delivery of the deed or other
document, before |
5895 |
expiration of your 10-day cancellation period, is
prohibited.. |
5896 |
|
5897 |
2. After
receipt of approval from the division and prior |
5898 |
to closing, if any revisions made to the
documents contained in |
5899 |
the purchaser public offering statement
materially alter or |
5900 |
modify the offering in a manner adverse to a
purchaser, the |
5901 |
developer shall send the purchaser such revisions
together with |
5902 |
a notice containing a statement in conspicuous
type in |
5903 |
substantially the following form: |
5904 |
|
5905 |
The unapproved public offering statement
previously delivered to |
5906 |
you, together with the enclosed revisions, has
been approved by |
5907 |
the Division of Florida Land Sales, Condominiums,
Homeowners' |
5908 |
Associations, and Mobile Homes.
Accordingly, your cancellation |
5909 |
right expires 10 calendar days after you sign
your purchase |
5910 |
contract or 10 calendar days after you receive
these revisions, |
5911 |
whichever is later. If you have any questions
regarding your |
5912 |
cancellation rights, you may contact the division
at [insert |
5913 |
division's current address]. |
5914 |
|
5915 |
3. After
receipt of approval from the division and prior |
5916 |
to closing, if no revisions have been made to the
documents |
5917 |
contained in the unapproved purchaser public
offering statement, |
5918 |
or if such revisions do not materially alter or
modify the |
5919 |
offering in a manner adverse to a purchaser, the
developer shall |
5920 |
send the purchaser a notice containing a
statement in |
5921 |
conspicuous type in substantially the following
form: |
5922 |
|
5923 |
The unapproved public offering statement
previously delivered to |
5924 |
you has been approved by the Division of Florida
Land Sales, |
5925 |
Condominiums, Homeowners'
Associations, and Mobile Homes. |
5926 |
Revisions made to the unapproved public offering
statement, if |
5927 |
any, are either not required to be delivered to
you or are not |
5928 |
deemed by the developer, in its opinion, to
materially alter or |
5929 |
modify the offering in a manner that is adverse
to you. |
5930 |
Accordingly, your cancellation right expired 10
days after you |
5931 |
signed your purchase contract. A complete copy of
the approved |
5932 |
public offering statement is available through
the managing |
5933 |
entity for inspection as part of the books and
records of the |
5934 |
plan. If you have any questions regarding your
cancellation |
5935 |
rights, you may contact the division at [insert
division's |
5936 |
current address]. |
5937 |
Section 67. Subsection
(8) of section 721.08, Florida |
5938 |
Statutes, is amended to read: |
5939 |
721.08 Escrow
accounts; nondisturbance instruments; |
5940 |
alternate security arrangements; transfer of
legal title.-- |
5941 |
(8) An
escrow agent holding escrowed funds pursuant to |
5942 |
this chapter that have not been claimed for a
period of 5 years |
5943 |
after the date of deposit shall make at least one
reasonable |
5944 |
attempt to deliver such unclaimed funds to the
purchaser who |
5945 |
submitted such funds to escrow. In making such
attempt, an |
5946 |
escrow agent is entitled to rely on a purchaser's
last known |
5947 |
address as set forth in the books and records of
the escrow |
5948 |
agent and is not required to conduct any further
search for the |
5949 |
purchaser. If an escrow agent's attempt to
deliver unclaimed |
5950 |
funds to any purchaser is unsuccessful, the
escrow agent may |
5951 |
deliver such unclaimed funds to the division and
the division |
5952 |
shall deposit such unclaimed funds in the
Division of Florida |
5953 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
5954 |
Homes Trust Fund, 30 days after giving notice in
a publication |
5955 |
of general circulation in the county in which the
timeshare |
5956 |
property containing the purchaser's timeshare
interest is |
5957 |
located. The purchaser may claim the same at any
time prior to |
5958 |
the delivery of such funds to the division. After
delivery of |
5959 |
such funds to the division, the purchaser shall
have no more |
5960 |
rights to the unclaimed funds. The escrow agent
shall not be |
5961 |
liable for any claims from any party arising out
of the escrow |
5962 |
agent's delivery of the unclaimed funds to the
division pursuant |
5963 |
to this section. |
5964 |
Section 68. Paragraph
(e) of subsection (5) of section |
5965 |
721.26, Florida Statutes, is amended to read: |
5966 |
721.26 Regulation
by division.--The division has the power |
5967 |
to enforce and ensure compliance with the
provisions of this |
5968 |
chapter, except for parts III and IV, using the
powers provided |
5969 |
in this chapter, as well as the powers prescribed
in chapters |
5970 |
498, 718, and 719. In performing its duties, the
division shall |
5971 |
have the following powers and duties: |
5972 |
(5) Notwithstanding
any remedies available to purchasers, |
5973 |
if the division has reasonable cause to believe
that a violation |
5974 |
of this chapter, or of any division rule or order
promulgated or |
5975 |
issued pursuant to this chapter, has occurred,
the division may |
5976 |
institute enforcement proceedings in its own name
against any |
5977 |
regulated party, as such term is defined in this
subsection: |
5978 |
(e)1. The
division may impose a penalty against any |
5979 |
regulated party for a violation of this chapter
or any rule |
5980 |
adopted thereunder. A penalty may be imposed on
the basis of |
5981 |
each day of continuing violation, but in no event
may the |
5982 |
penalty for any offense exceed $10,000. All
accounts collected |
5983 |
shall be deposited with the Chief Financial
Officer to the |
5984 |
credit of the Division of Florida Land Sales,
Condominiums, |
5985 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
5986 |
2.a. If
a regulated party fails to pay a penalty, the |
5987 |
division shall thereupon issue an order directing
that such |
5988 |
regulated party cease and desist from further
operation until |
5989 |
such time as the penalty is paid; or the division
may pursue |
5990 |
enforcement of the penalty in a court of
competent jurisdiction. |
5991 |
b. If an
owners' association or managing entity fails to |
5992 |
pay a civil penalty, the division may pursue
enforcement in a |
5993 |
court of competent jurisdiction. |
5994 |
Section 69. Section
721.28, Florida Statutes, is amended |
5995 |
to read: |
5996 |
721.28 Division
of Florida Land Sales, Condominiums, |
5997 |
Homeowners' Associations,
and Mobile Homes Trust Fund.--All |
5998 |
funds collected by the division and any amounts
paid as fees or |
5999 |
penalties under this chapter shall be deposited
in the State |
6000 |
Treasury to the credit of the Division of Florida
Land Sales, |
6001 |
Condominiums, Homeowners'
Associations, and Mobile Homes Trust |
6002 |
Fund created by s. 498.019. |
6003 |
Section 70. Paragraph
(c) of subsection (1) of section |
6004 |
721.301, Florida Statutes, is amended to read: |
6005 |
721.301 Florida
Timesharing, Vacation Club, and |
6006 |
Hospitality Program.-- |
6007 |
(1) |
6008 |
(c) The
director may designate funds from the Division of |
6009 |
Florida Land Sales, Condominiums, Homeowners'
Associations, and |
6010 |
Mobile Homes Trust Fund, not to exceed $50,000
annually, to |
6011 |
support the projects and proposals undertaken
pursuant to |
6012 |
paragraph (b). All state trust funds to be
expended pursuant to |
6013 |
this section must be matched equally with private
moneys and |
6014 |
shall comprise no more than half of the total
moneys expended |
6015 |
annually. |
6016 |
Section 71. Subsection
(1) of section 723.003, Florida |
6017 |
Statutes, is amended to read: |
6018 |
723.003 Definitions.--As
used in this chapter, the |
6019 |
following words and terms have the following
meanings unless |
6020 |
clearly indicated otherwise: |
6021 |
(1) The
term "division" means the Division of Florida Land |
6022 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
6023 |
of the Department of Business and Professional
Regulation. |
6024 |
Section 72. Paragraph
(e) of subsection (5) of section |
6025 |
723.006, Florida Statutes, is amended to read: |
6026 |
723.006 Powers
and duties of division.--In performing its |
6027 |
duties, the division has the following powers and
duties: |
6028 |
(5) Notwithstanding
any remedies available to mobile home |
6029 |
owners, mobile home park owners, and homeowners'
associations, |
6030 |
if the division has reasonable cause to believe
that a violation |
6031 |
of any provision of this chapter or any rule
promulgated |
6032 |
pursuant hereto has occurred, the division may
institute |
6033 |
enforcement proceedings in its own name against a
developer, |
6034 |
mobile home park owner, or homeowners'
association, or its |
6035 |
assignee or agent, as follows: |
6036 |
(e)1. The
division may impose a civil penalty against a |
6037 |
mobile home park owner or homeowners'
association, or its |
6038 |
assignee or agent, for any violation of this
chapter, a properly |
6039 |
promulgated park rule or regulation, or a rule or
regulation |
6040 |
promulgated pursuant hereto. A penalty may be
imposed on the |
6041 |
basis of each separate violation and, if the
violation is a |
6042 |
continuing one, for each day of continuing
violation, but in no |
6043 |
event may the penalty for each separate violation
or for each |
6044 |
day of continuing violation exceed $5,000. All
amounts collected |
6045 |
shall be deposited with the Chief Financial
Officer to the |
6046 |
credit of the Division of Florida Land Sales,
Condominiums, |
6047 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
6048 |
2. If a
violator fails to pay the civil penalty, the |
6049 |
division shall thereupon issue an order directing
that such |
6050 |
violator cease and desist from further violation
until such time |
6051 |
as the civil penalty is paid or may pursue
enforcement of the |
6052 |
penalty in a court of competent jurisdiction. If
a homeowners' |
6053 |
association fails to pay the civil penalty, the
division shall |
6054 |
thereupon pursue enforcement in a court of
competent |
6055 |
jurisdiction, and the order imposing the civil
penalty or the |
6056 |
cease and desist order shall not become effective
until 20 days |
6057 |
after the date of such order. Any action
commenced by the |
6058 |
division shall be brought in the county in which
the division |
6059 |
has its executive offices or in which the
violation occurred. |
6060 |
Section 73. Section
723.009, Florida Statutes, is amended |
6061 |
to read: |
6062 |
723.009 Division
of Florida Land Sales, Condominiums, |
6063 |
Homeowners'
Associations, and Mobile Homes Trust Fund.--All |
6064 |
proceeds from the fees, penalties, and fines
imposed pursuant to |
6065 |
this chapter shall be deposited into the Division
of Florida |
6066 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
6067 |
Homes Trust Fund created by s. 498.019. Moneys in
this fund, as |
6068 |
appropriated by the Legislature pursuant to
chapter 216, may be |
6069 |
used to defray the expenses incurred by the
division in |
6070 |
administering the provisions of this chapter. |
6071 |
Section 74. Paragraph
(c) of subsection (2) of section |
6072 |
723.0611, Florida Statutes, is amended to read: |
6073 |
723.0611 Florida
Mobile Home Relocation Corporation.-- |
6074 |
(2) |
6075 |
(c) The
corporation shall, for purposes of s. 768.28, be |
6076 |
considered an agency of the state. Agents or
employees of the |
6077 |
corporation, members of the board of directors of
the |
6078 |
corporation, or representatives of the Division
of Florida Land |
6079 |
Sales, Condominiums, Homeowners' Associations,
and Mobile Homes |
6080 |
shall be considered officers, employees, or
agents of the state, |
6081 |
and actions against them and the corporation
shall be governed |
6082 |
by s. 768.28. |
6083 |
Section 75. Emotional
support animals.-- |
6084 |
(1) Every
homeowner or renter in this state shall have the |
6085 |
right to own a companion
animal and to have such animal live |
6086 |
with them in their home if
such companion animal is deemed |
6087 |
helpful to the person's
physical or psychological well-being as |
6088 |
attested to by at least two
qualified health care professionals. |
6089 |
(2) Any
municipal or county code or ordinance, or any |
6090 |
purported rule, declaration,
by-law or other form of restriction |
6091 |
contrary to the right provided
in subsection (1) contained in |
6092 |
any governing document of any
condominium, cooperative, mobile |
6093 |
home park, homeowner, or any
other common interest ownership |
6094 |
community association shall be
deemed unconscionable, and thus |
6095 |
unenforceable, invalid and of
no legal effect. |
6096 |
(3) An
animal does not require specialized training or |
6097 |
skill in assisting its owner
to be classified as a companion |
6098 |
animal pursuant to this
section. The animal can be a cat, dog, |
6099 |
ferret, bird, gerbil, or any
other commonly accepted |
6100 |
domesticated animal. However,
if such training can be |
6101 |
documented, a letter from only
one qualified health care |
6102 |
professional is required, as
per pre-existing federal disability |
6103 |
and fair housing laws. |
6104 |
(4) Qualified
health professionals include any physician |
6105 |
or advanced registered nurse
practitioner who is licensed in |
6106 |
this state to prescribe
medications for emotional or mental |
6107 |
conditions, or any mental
health worker, mental health |
6108 |
counselor, psychologist, or
social worker, who is licensed in |
6109 |
this state to practice
counseling therapy. The letter must say |
6110 |
that the animal is necessary
to ameliorate and help with life |
6111 |
functions for a condition
covered under the Americans with |
6112 |
Disabilities Act. The letter
does not have to give details of |
6113 |
the nature of the unit owner's
disorder, in order not to invade |
6114 |
the patient's privacy per the
Health Insurance Portability and |
6115 |
Accountability Act. Where the
primary residence of the owner is |
6116 |
in another state, the
qualified health care professional is |
6117 |
defined as a qualified health
care professional licensed in |
6118 |
their home state. |
6119 |
(5) If
it becomes necessary for an owner or renter in any |
6120 |
condominium, cooperative,
mobile home park, homeowner or any |
6121 |
other common interest
ownership association to enforce this |
6122 |
section in court against an
association which has threatened to |
6123 |
limit his or her right to own
and reside with a companion animal |
6124 |
either orally or in writing,
the homeowner shall be entitled to |
6125 |
recover his or her reasonable
costs and attorney's fees if the |
6126 |
homeowner is the prevailing
party. This attorney's fee provision |
6127 |
is not reciprocal. |
6128 |
Section
76. Notwithstanding any provision to the contrary |
6129 |
contained in a declaration of
condominium, condominium bylaws, |
6130 |
or other documents, a
condominium developer who rents or leases |
6131 |
any unsold units in a
condominium must pay all monthly |
6132 |
maintenance fees on those
units to the association as if the |
6133 |
units were owned by individual
owners. |
6134 |
Section 77. This
act shall take effect July 1, 2007. |
CODING:
Words stricken are deleted; words underlined
are additions
|