| 91 |
Be It Enacted by the
Legislature of the State of Florida: |
| 92 |
|
| 93 |
Section
1. Section 514.011, Florida Statutes, is amended |
| 94 |
to read: |
| 95 |
514.011 Definitions.--As
used in this chapter: |
| 96 |
(1) "Department"
means the Department of Health. |
| 97 |
(2) "Homeowners'
association" means a homeowners' |
| 98 |
association
as defined in s. 720.301. |
| 99 |
(3)(5) "Portable
pool" means a pool or spa, and related |
| 100 |
equipment systems of any
kind, which is designed or intended to |
| 101 |
be movable from location to
location. |
| 102 |
(4)(3) "Private
pool" means a facility used only by an |
| 103 |
individual, family, or
living unit members and their guests |
| 104 |
which does not serve any
type of cooperative housing or joint |
| 105 |
tenancy of five or more
living units. |
| 106 |
(5)(4) "Public
bathing place" means a body of water, |
| 107 |
natural or modified by
humans, for swimming, diving, and |
| 108 |
recreational bathing,
together with adjacent shoreline or land |
| 109 |
area, buildings, equipment,
and appurtenances pertaining |
| 110 |
thereto, used by consent of
the owner or owners and held out to |
| 111 |
the public by any person or
public body, irrespective of whether |
| 112 |
a fee is charged for the use
thereof. The bathing water areas of |
| 113 |
public bathing places
include, but are not limited to, lakes, |
| 114 |
ponds, rivers, streams,
artificial impoundments, and waters |
| 115 |
along the coastal and
intracoastal beaches and shores of the |
| 116 |
state. |
| 117 |
(6)(2) "Public
swimming pool" or "public pool" means a |
| 118 |
watertight structure of
concrete, masonry, or other approved |
| 119 |
materials which is located
either indoors or outdoors, used for |
| 120 |
bathing or swimming by
humans, and filled with a filtered and |
| 121 |
disinfected water supply,
together with buildings, |
| 122 |
appurtenances, and equipment
used in connection therewith. A |
| 123 |
public swimming pool or
public pool shall mean a conventional |
| 124 |
pool, spa-type pool, wading
pool, special purpose pool, or water |
| 125 |
recreation attraction, to
which admission may be gained with or |
| 126 |
without payment of a fee and
includes, but is not limited to, |
| 127 |
pools operated by or serving
camps, churches, cities, counties, |
| 128 |
day care centers, group home
facilities for eight or more |
| 129 |
clients, health spas,
institutions, parks, state agencies, |
| 130 |
schools, subdivisions, or
the cooperative living-type projects |
| 131 |
of five or more living
units, such as apartments, |
| 132 |
boardinghouses, hotels,
mobile home parks, motels, recreational |
| 133 |
vehicle parks, and
townhouses. |
| 134 |
Section
2. Subsection (2) of section 514.0115, Florida |
| 135 |
Statutes, is amended to
read: |
| 136 |
514.0115 Exemptions
from supervision or regulation; |
| 137 |
variances.-- |
| 138 |
(2)(a) Pools
serving no more than 32 homeowners' |
| 139 |
association,
condominium, or cooperative units which are not |
| 140 |
operated as a public lodging
establishment shall be exempt from |
| 141 |
supervision under this
chapter, except for water quality. |
| 142 |
(b) Pools
serving homeowners', condominium,
or cooperative |
| 143 |
associations of more than 32
units and whose recorded documents |
| 144 |
prohibit the rental or
sublease of the units for periods of less |
| 145 |
than 60 days are exempt from
supervision under this chapter, |
| 146 |
except that the homeowners'
association or condominium or |
| 147 |
cooperative owner or
association must file applications with the |
| 148 |
department and obtain
construction plans approval and receive an |
| 149 |
initial operating permit.
The department shall inspect the |
| 150 |
swimming pools at such
places annually, at the fee set forth in |
| 151 |
s. 514.033(3), or upon
request by a unit owner, to determine |
| 152 |
compliance with department
rules relating to water quality and |
| 153 |
lifesaving equipment. The
department may not require compliance |
| 154 |
with rules relating to
swimming pool lifeguard standards. |
| 155 |
Section
3. Subsection (9) of section 515.25, Florida |
| 156 |
Statutes, is amended to
read: |
| 157 |
515.25 Definitions.--As
used in this chapter, the term: |
| 158 |
(9) "Public
swimming pool" means a swimming pool, as |
| 159 |
defined in s. 514.011(6)(2),
which is operated, with or without |
| 160 |
charge, for the use of the
general public; however, the term |
| 161 |
does not include a swimming
pool located on the grounds of a |
| 162 |
private residence. |
| 163 |
Section
4. Subsection (11), paragraphs (b) and (c) of |
| 164 |
subsection (12), and
subsection (13) of section 718.111, Florida |
| 165 |
Statutes, are amended to
read: |
| 166 |
718.111 The
association.-- |
| 167 |
(11) INSURANCE.--In
order to protect the safety, health, |
| 168 |
and welfare of the people of
the State of Florida and to ensure |
| 169 |
consistency in the provision
of insurance coverage to |
| 170 |
condominiums and their unit
owners, this subsection shall be |
| 171 |
paragraphs
(a), (b), and (c) are deemed to apply to every |
| 172 |
residential condominium in
the state, regardless of the date of |
| 173 |
its declaration of
condominium. It is the intent of the |
| 174 |
Legislature to encourage
lower or stable insurance premiums for |
| 175 |
associations described in
this section. |
| 176 |
(a) Adequate
hazard insurance, regardless of any |
| 177 |
requirement
in the declaration of condominium for coverage by |
| 178 |
the
association for "full insurable value," "replacement
cost," |
| 179 |
or the
like, shall be based upon the replacement cost of the |
| 180 |
property
to be insured as determined by an independent insurance |
| 181 |
appraisal
or update of a prior appraisal. The full insurable |
| 182 |
value
shall be determined not less frequently than every 36 |
| 183 |
months. |
| 184 |
1. An
association or group of associations may provide |
| 185 |
adequate
hazard insurance through a self-insurance fund that |
| 186 |
complies
with the requirements of ss. 624.460-624.488. |
| 187 |
2. The
association may also provide adequate hazard |
| 188 |
insurance
coverage, individually, or for a group of no fewer |
| 189 |
than
three communities created and operating under this chapter, |
| 190 |
chapter
719, chapter 720, or chapter 721, by obtaining and |
| 191 |
maintaining
for the communities insurance coverage sufficient to |
| 192 |
cover an
amount equal to the probable maximum loss for the |
| 193 |
communities
for a 250-year windstorm event provided that such |
| 194 |
probable
maximum loss must be determined through the use of a |
| 195 |
competent
model that has been accepted by the Florida Commission |
| 196 |
on
Hurricane Loss Projection Methodology. |
| 197 |
3. In
determining the adequate hazard insurance coverage, |
| 198 |
the
association may consider deductibles as determined by this |
| 199 |
subsection. |
| 200 |
(b) If
the association is developer controlled, the |
| 201 |
association
shall exercise best efforts to obtain and maintain |
| 202 |
such
insurance. Failure to obtain and maintain adequate hazard |
| 203 |
insurance
during any period of developer control shall |
| 204 |
constitute
a breach of fiduciary responsibility by the |
| 205 |
developer-appointed
members of the board of directors of the |
| 206 |
association,
unless such members can show that despite such |
| 207 |
failure,
they have made their best efforts. |
| 208 |
(c) Policies
may include deductibles as determined by the |
| 209 |
board. |
| 210 |
1. The
deductibles shall be consistent with industry |
| 211 |
standards
and prevailing practices for communities of like size |
| 212 |
and age,
having similar construction and facilities in the |
| 213 |
locale
where the condominium property is situated. |
| 214 |
2. The
deductibles may be based upon available funds, |
| 215 |
including
reserve accounts or predetermined assessment authority |
| 216 |
at the
time that the insurance is obtained. |
| 217 |
3. The
board shall establish the level of deductibles |
| 218 |
based
upon the level of available funds and predetermined |
| 219 |
assessment
authority at a meeting of the board which shall be |
| 220 |
open to
all unit owners in the manner set forth in s. |
| 221 |
718.112(2)(e).
The notice of such meeting shall state the |
| 222 |
proposed
deductible and the available funds and the assessment |
| 223 |
authority
relied upon by the board and shall estimate any |
| 224 |
potential
assessment amount against each unit, if any. The |
| 225 |
meeting
described in this subparagraph may be held in |
| 226 |
conjunction
with a meeting to consider the proposed budget or an |
| 227 |
amendment
thereto. |
| 228 |
(d) A
unit-owner-controlled association operating a |
| 229 |
residential
condominium shall use its best efforts to obtain and |
| 230 |
maintain
adequate insurance to protect the association, the |
| 231 |
association
property, the common elements, and the condominium |
| 232 |
property
required to be insured by the association pursuant to |
| 233 |
this
subsection. |
| 234 |
(e) The
declaration of condominium as originally recorded, |
| 235 |
or
amended pursuant to procedures provided therein, may require |
| 236 |
that
condominium property consisting of freestanding buildings |
| 237 |
where
there is no more than one building in or on such unit need |
| 238 |
not be
insured by the association if the declaration requires |
| 239 |
the unit
owner to obtain adequate insurance for the condominium |
| 240 |
property.
An association may also obtain and maintain liability |
| 241 |
insurance
for directors and officers, insurance for the benefit |
| 242 |
of
association employees, and flood insurance for common |
| 243 |
elements,
association property, and units. |
| 244 |
(f) Every
hazard insurance policy issued or renewed on or |
| 245 |
after
January 1, 2009, to protect the condominium shall provide |
| 246 |
primary
coverage for: |
| 247 |
1. All
portions of the condominium property as originally |
| 248 |
installed
or replacement of like kind and quality, in accordance |
| 249 |
with the
original plans and specifications. |
| 250 |
2. All
alterations or additions made to the condominium |
| 251 |
property
or association property pursuant to s. 718.113(2). |
| 252 |
3. The
coverage shall exclude all personal property within |
| 253 |
the unit
or limited common elements, floor, wall, and ceiling |
| 254 |
coverings,
electrical fixtures, appliances, water heaters, water |
| 255 |
filters,
built-in cabinets and countertops, and window |
| 256 |
treatments,
including curtains, drapes, blinds, hardware, and |
| 257 |
similar
window treatment components or replacements of any of |
| 258 |
the
foregoing. |
| 259 |
|
| 260 |
This
paragraph is intended to establish the property or casualty |
| 261 |
insuring
responsibilities of the association and those of the |
| 262 |
individual
unit owner and do not serve to broaden or extend the |
| 263 |
perils of
coverage afforded by any insurance contract provided |
| 264 |
to the
individual unit owner. |
| 265 |
(g) Every
hazard insurance policy issued or renewed on or |
| 266 |
after
January 1, 2009, to an individual unit owner shall provide |
| 267 |
that the
coverage afforded by such policy is excess over the |
| 268 |
amount
recoverable under any other policy covering the same |
| 269 |
property
and shall include special assessment coverage of not |
| 270 |
less than
$2,000 per occurrence. Each insurance policy issued to |
| 271 |
an
individual unit owner providing such coverage shall be |
| 272 |
without
rights of subrogation against the condominium |
| 273 |
association
that operates the condominium in which such unit |
| 274 |
owner's
unit is located. |
| 275 |
1. All
improvements or additions to the condominium |
| 276 |
property
that benefit less than all unit owners shall be insured |
| 277 |
by the
unit owner or owners having the use thereof, or may be |
| 278 |
insured
by the association at the cost and expense of the unit |
| 279 |
owners
having the use thereof. |
| 280 |
2. The
association shall require each owner to provide |
| 281 |
evidence
of a currently effective policy of hazard and liability |
| 282 |
insurance
upon request, but not more frequently than annually. |
| 283 |
Upon the
failure of an owner to provide a certificate of |
| 284 |
insurance
issued by an insurer approved to write such insurance |
| 285 |
in the
state within 30 days of a written request, the |
| 286 |
association
shall be entitled but shall not be obligated to |
| 287 |
purchase
a policy of insurance on behalf of an owner, and the |
| 288 |
cost
thereof, together with reconstruction costs undertaken by |
| 289 |
the
association, which are the responsibility of the unit owner |
| 290 |
may be
collected in the manner provided for collection of |
| 291 |
assessments
in s. 718.116. |
| 292 |
3. All
reconstruction work after a casualty loss shall be |
| 293 |
undertaken
by the association except as otherwise permitted |
| 294 |
herein. A
unit owner may undertake reconstruction work on |
| 295 |
portions
of the unit with the prior written consent of the board |
| 296 |
of
administration, which may be conditioned upon the approval of |
| 297 |
the
repair methods, the qualifications of the proposed |
| 298 |
contractor,
and the contract that is used for that purpose. A |
| 299 |
unit
owner shall obtain all required governmental permits and |
| 300 |
approvals
prior to commencing reconstruction. |
| 301 |
4. Unit
owners shall be responsible for the cost of |
| 302 |
reconstruction
of any portions of the condominium property for |
| 303 |
which the
unit owner is required to carry casualty insurance, |
| 304 |
and any
such reconstruction work undertaken by the association |
| 305 |
shall be
chargeable to the unit and enforceable as an assessment |
| 306 |
pursuant
to s. 718.116. The association is hereby designated as |
| 307 |
an
additional named insured and loss payee on all casualty |
| 308 |
insurance
policies issued to unit owners in the condominium |
| 309 |
operated
by the association. |
| 310 |
5. A
multicondominium association may elect, by a majority |
| 311 |
vote of
the collective members of the condominiums operated by |
| 312 |
the
association, to operate such condominiums as a single |
| 313 |
condominium
for purposes of insurance matters, including, but |
| 314 |
not
limited to, the purchase of the hazard insurance required by |
| 315 |
this
section and the apportionment of deductibles and damages in |
| 316 |
excess of
coverage. The election to aggregate the treatment of |
| 317 |
insurance
premiums, deductibles, and excess damages shall be |
| 318 |
treated
as an amendment to the declaration of all condominiums |
| 319 |
operated
by the association, and the costs of insurance shall be |
| 320 |
stated in
the association budget. The amendments shall be |
| 321 |
recorded
as required by s. 718.110. |
| 322 |
(h) The
association shall obtain and maintain adequate |
| 323 |
insurance
or fidelity bonding of all persons who control or |
| 324 |
disburse
funds of the association. The insurance policy or |
| 325 |
fidelity
bond must cover the maximum funds that will be in the |
| 326 |
custody
of the association or its management agent at any one |
| 327 |
time. As
used in this paragraph, the term "persons who control |
| 328 |
or
disburse funds of the association" includes, but is not |
| 329 |
limited
to, those individuals authorized to sign checks and the |
| 330 |
president,
secretary, and treasurer of the association. The |
| 331 |
association
shall bear the cost of bonding. |
| 332 |
(i) The
association has the authority to amend the |
| 333 |
declaration
of condominium, without regard to any requirement |
| 334 |
for
mortgagee approval of amendments affecting insurance |
| 335 |
requirements,
to conform the declaration of condominium to the |
| 336 |
coverage
requirements of this subsection. |
| 337 |
(j) Any
portion of the condominium property that the |
| 338 |
association
is required to insure against casualty loss pursuant |
| 339 |
to
paragraph (f) that is damaged by casualty shall be |
| 340 |
reconstructed,
repaired, or replaced, as necessary, by the |
| 341 |
association
as a common expense. All hazard insurance |
| 342 |
deductibles,
uninsured losses, and other damages in excess of |
| 343 |
hazard
insurance coverage under the hazard insurance policies |
| 344 |
maintained
by the association shall be a common expense of the |
| 345 |
condominium,
however: |
| 346 |
1. A
unit owner shall be responsible for the costs of |
| 347 |
repair or
replacement of any portion of the condominium property |
| 348 |
not paid
for by insurance proceeds, when such damage is caused |
| 349 |
by
intentional conduct, negligence, or failure to comply with |
| 350 |
the terms
of the declaration or the rules of the association by |
| 351 |
a unit
owner, the members of his or her family, unit occupants, |
| 352 |
tenants,
guests, or invitees, and without compromise of the |
| 353 |
subrogation
rights of any insurer as set forth in paragraph (g). |
| 354 |
2. The
provisions of subparagraph 1. regarding the |
| 355 |
financial
responsibility of a unit owner for the costs of |
| 356 |
repairing
or replacing other portions of the condominium |
| 357 |
property
also applies to the costs of repair or replacement of |
| 358 |
personal
property of other unit owners or the association, as |
| 359 |
well as
other property, whether real or personal, that the unit |
| 360 |
owners
are required to insure under paragraph (g). |
| 361 |
3. To
the extent the cost of repair or reconstruction for |
| 362 |
which the
unit owner is responsible under this paragraph is |
| 363 |
reimbursed
to the association by insurance proceeds, and, to the |
| 364 |
extent
the association has collected the cost of such repair or |
| 365 |
reconstruction
from the unit owner, the association shall |
| 366 |
reimburse
the unit owner without the waiver of any rights of |
| 367 |
subrogation. |
| 368 |
4. The
association shall not be obligated to pay for |
| 369 |
repair or
reconstruction or repairs of casualty losses as a |
| 370 |
common
expense where the casualty losses were known or should |
| 371 |
have been
known to a unit owner and were not reported to the |
| 372 |
association
until after the insurance claim of the association |
| 373 |
for that
casualty has been settled and resolved with finality or |
| 374 |
is
considered untimely filed by the insurer and denied on that |
| 375 |
basis. |
| 376 |
(k) An
association may, upon the approval of a majority of |
| 377 |
the total
voting interests in the association, opt out of the |
| 378 |
provisions
in paragraph (j) for the allocation of repair or |
| 379 |
reconstruction
expenses and allocate repair or reconstruction |
| 380 |
expenses
in the manner provided in the declaration as originally |
| 381 |
recorded
or as amended. Such vote may be approved by the voting |
| 382 |
interests
of the association without regard to any mortgagee |
| 383 |
consent
requirements. |
| 384 |
(l) In
a multicondominium association that has not |
| 385 |
consolidated
its financial operations under subsection (6), any |
| 386 |
condominium
operated by the association may opt out of the |
| 387 |
provisions
of paragraph (j) with the approval of a majority of |
| 388 |
the total
voting interests in that condominium. Such vote may be |
| 389 |
approved
by the voting interests without regard to any mortgagee |
| 390 |
consent
requirements. |
| 391 |
(m) Any
association or condominium voting to opt out of |
| 392 |
the
guidelines for repair or reconstruction expenses in |
| 393 |
paragraph
(j) must record a notice setting forth the date of the |
| 394 |
opt out
vote and the official records book and page at which the |
| 395 |
declaration
is recorded. The opt out shall be effective upon the |
| 396 |
date of
recording of the notice in the public records by the |
| 397 |
association.
An association that has voted to opt out of |
| 398 |
paragraph
(j) may reverse that decision by the same vote |
| 399 |
required
under paragraphs (k) and (l), and notice thereof shall |
| 400 |
be
recorded in the official records. |
| 401 |
(n) The
association shall not be obligated to pay for any |
| 402 |
reconstruction
or repair expenses due to casualty loss to any |
| 403 |
improvements
installed by a current or former owner of the unit |
| 404 |
or by the
developer where the improvement benefits only the unit |
| 405 |
for which
it was installed and is not part of the standard |
| 406 |
improvements
installed by the developer on all units as part of |
| 407 |
original
construction, whether or not such improvement is |
| 408 |
located
within the unit, except to the extent of any insurance |
| 409 |
recovery
specifically for any such improvements. Therefore,
the |
| 410 |
Legislature
requires a report to be prepared by the Office of |
| 411 |
Insurance
Regulation of the Department of Financial Services for |
| 412 |
publication
18 months from the effective date of this act, |
| 413 |
evaluating
premium increases or decreases for associations, unit |
| 414 |
owner
premium increases or decreases, recommended changes to |
| 415 |
better
define common areas, or any other information the Office |
| 416 |
of
Insurance Regulation deems appropriate. |
| 417 |
(a) A
unit-owner controlled association operating a |
| 418 |
residential
condominium shall use its best efforts to obtain and |
| 419 |
maintain
adequate insurance to protect the association, the |
| 420 |
association
property, the common elements, and the condominium |
| 421 |
property
required to be insured by the association pursuant to |
| 422 |
paragraph
(b). If the association is developer controlled, the |
| 423 |
association
shall exercise due diligence to obtain and maintain |
| 424 |
such
insurance. Failure to obtain and maintain adequate |
| 425 |
insurance
during any period of developer control shall |
| 426 |
constitute
a breach of fiduciary responsibility by the |
| 427 |
developer-appointed
members of the board of directors of the |
| 428 |
association,
unless said members can show that despite such |
| 429 |
failure,
they have exercised due diligence. The declaration of |
| 430 |
condominium
as originally recorded, or amended pursuant to |
| 431 |
procedures
provided therein, may require that condominium |
| 432 |
property
consisting of freestanding buildings where there is no |
| 433 |
more than
one building in or on such unit need not be insured by |
| 434 |
the
association if the declaration requires the unit owner to |
| 435 |
obtain
adequate insurance for the condominium property. An |
| 436 |
association
may also obtain and maintain liability insurance for |
| 437 |
directors
and officers, insurance for the benefit of association |
| 438 |
employees,
and flood insurance for common elements, association |
| 439 |
property,
and units. Adequate insurance, regardless of any |
| 440 |
requirement
in the declaration of condominium for coverage by |
| 441 |
the
association for "full insurable value," "replacement
cost," |
| 442 |
or the
like, may include reasonable deductibles as determined by |
| 443 |
the board
based upon available funds or predetermined assessment |
| 444 |
authority
at the time that the insurance is obtained. |
| 445 |
1. Windstorm
insurance coverage for a group of no fewer |
| 446 |
than
three communities created and operating under this chapter, |
| 447 |
chapter
719, chapter 720, or chapter 721 may be obtained and |
| 448 |
maintained
for the communities if the insurance coverage is |
| 449 |
sufficient
to cover an amount equal to the probable maximum loss |
| 450 |
for the
communities for a 250-year windstorm event. Such |
| 451 |
probable
maximum loss must be determined through the use of a |
| 452 |
competent
model that has been accepted by the Florida Commission |
| 453 |
on
Hurricane Loss Projection Methodology. Such insurance |
| 454 |
coverage
is deemed adequate windstorm insurance for the purposes |
| 455 |
of this
section. |
| 456 |
2. An
association or group of associations may self-insure |
| 457 |
against
claims against the association, the association |
| 458 |
property,
and the condominium property required to be insured by |
| 459 |
an
association, upon compliance with the applicable provisions |
| 460 |
of ss.
624.460-624.488, which shall be considered adequate |
| 461 |
insurance
for the purposes of this section. A copy of each |
| 462 |
policy of
insurance in effect shall be made available for |
| 463 |
inspection
by unit owners at reasonable times. |
| 464 |
(b) Every
hazard insurance policy issued or renewed on or |
| 465 |
after
January 1, 2004, to protect the condominium shall provide |
| 466 |
primary
coverage for: |
| 467 |
1. All
portions of the condominium property located |
| 468 |
outside
the units; |
| 469 |
2. The
condominium property located inside the units as |
| 470 |
such
property was initially installed, or replacements thereof |
| 471 |
of like
kind and quality and in accordance with the original |
| 472 |
plans and
specifications or, if the original plans and |
| 473 |
specifications
are not available, as they existed at the time |
| 474 |
the unit
was initially conveyed; and |
| 475 |
3. All
portions of the condominium property for which the |
| 476 |
declaration
of condominium requires coverage by the association. |
| 477 |
|
| 478 |
Anything
to the contrary notwithstanding, the terms "condominium |
| 479 |
property,"
"building," "improvements," "insurable
improvements," |
| 480 |
"common
elements," "association property," or any other term |
| 481 |
found in
the declaration of condominium which defines the scope |
| 482 |
of
property or casualty insurance that a condominium association |
| 483 |
must
obtain shall exclude all floor, wall, and ceiling |
| 484 |
coverings,
electrical fixtures, appliances, air conditioner or |
| 485 |
heating
equipment, water heaters, water filters, built-in |
| 486 |
cabinets
and countertops, and window treatments, including |
| 487 |
curtains,
drapes, blinds, hardware, and similar window treatment |
| 488 |
components,
or replacements of any of the foregoing which are |
| 489 |
located
within the boundaries of a unit and serve only one unit |
| 490 |
and all
air conditioning compressors that service only an |
| 491 |
individual
unit, whether or not located within the unit |
| 492 |
boundaries.
The foregoing is intended to establish the property |
| 493 |
or
casualty insuring responsibilities of the association and |
| 494 |
those of
the individual unit owner and do not serve to broaden |
| 495 |
or extend
the perils of coverage afforded by any insurance |
| 496 |
contract
provided to the individual unit owner. Beginning |
| 497 |
January
1, 2004, the association shall have the authority to |
| 498 |
amend the
declaration of condominium, without regard to any |
| 499 |
requirement
for mortgagee approval of amendments affecting |
| 500 |
insurance
requirements, to conform the declaration of |
| 501 |
condominium
to the coverage requirements of this section. |
| 502 |
(c) Every
hazard insurance policy issued or renewed on or |
| 503 |
after
January 1, 2004, to an individual unit owner shall provide |
| 504 |
that the
coverage afforded by such policy is excess over the |
| 505 |
amount
recoverable under any other policy covering the same |
| 506 |
property.
Each insurance policy issued to an individual unit |
| 507 |
owner
providing such coverage shall be without rights of |
| 508 |
subrogation
against the condominium association that operates |
| 509 |
the
condominium in which such unit owner's unit is located. All |
| 510 |
real or
personal property located within the boundaries of the |
| 511 |
unit
owner's unit which is excluded from the coverage to be |
| 512 |
provided
by the association as set forth in paragraph (b) shall |
| 513 |
be
insured by the individual unit owner. |
| 514 |
(d) The
association shall obtain and maintain adequate |
| 515 |
insurance
or fidelity bonding of all persons who control or |
| 516 |
disburse
funds of the association. The insurance policy or |
| 517 |
fidelity
bond must cover the maximum funds that will be in the |
| 518 |
custody
of the association or its management agent at any one |
| 519 |
time. As
used in this paragraph, the term "persons who control |
| 520 |
or
disburse funds of the association" includes, but is not |
| 521 |
limited
to, those individuals authorized to sign checks and the |
| 522 |
president,
secretary, and treasurer of the association. The |
| 523 |
association
shall bear the cost of bonding. |
| 524 |
(12) OFFICIAL
RECORDS.-- |
| 525 |
(b)1. The
official records of the association shall be |
| 526 |
maintained within the state. |
| 527 |
2. Subject
to paragraph (c), a unit owner may request in |
| 528 |
writing
that the records of the association identified in the |
| 529 |
request
be made available to him or her. The board, or its |
| 530 |
designee,
shall acknowledge the request, in writing, within 5 |
| 531 |
days of
receipt of the request. The acknowledgement will include |
| 532 |
the date,
time, and place at which the records will be made |
| 533 |
available.
That date shall not be more than 10 working days |
| 534 |
after
receipt of the request. |
| 535 |
3. For
purposes of this paragraph, "available" means |
| 536 |
having
the originals or a copy of the official records of the |
| 537 |
association
available for inspection or copying at a location |
| 538 |
within 30
miles driving distance from the condominium property. |
| 539 |
The
records of the association shall be made available to a unit |
| 540 |
owner
within 5 working days after receipt of written request by |
| 541 |
the board
or its designee. This paragraph may be complied with |
| 542 |
by having
a copy of the official records of the association |
| 543 |
available
for inspection or copying on the condominium property |
| 544 |
or
association property. |
| 545 |
(c) The
official records of the association are open to |
| 546 |
inspection by any
association member or the authorized |
| 547 |
representative of such
member at all reasonable times. The right |
| 548 |
to inspect the records
includes the right to make or obtain |
| 549 |
copies, at the reasonable
expense, if any, of the association |
| 550 |
member. The association may
adopt reasonable rules regarding the |
| 551 |
frequency, time, location,
notice, and manner of record |
| 552 |
inspections and copying. The
failure of an association to |
| 553 |
provide the records within
10 working days after receipt of a |
| 554 |
written request shall create
a rebuttable presumption that the |
| 555 |
association willfully failed
to comply with this paragraph. A |
| 556 |
unit owner who is denied
access to official records is entitled |
| 557 |
to the actual damages or
minimum damages for the association's |
| 558 |
willful failure to comply
with this paragraph. The minimum |
| 559 |
damages shall be $50 per
calendar day up to 10 days, the |
| 560 |
calculation to begin on the
11th working day after receipt of |
| 561 |
the written request. The
failure to permit inspection of the |
| 562 |
association records as
provided herein entitles any person |
| 563 |
prevailing in an enforcement
action to recover reasonable |
| 564 |
attorney's fees from the
person in control of the records who, |
| 565 |
directly or indirectly,
knowingly denied access to the records |
| 566 |
for inspection. The
association shall maintain an adequate |
| 567 |
number of copies of the
declaration, articles of incorporation, |
| 568 |
bylaws, and rules, and all
amendments to each of the foregoing, |
| 569 |
as well as the question and
answer sheet provided for in s. |
| 570 |
718.504 and year-end
financial information required in this |
| 571 |
section on the condominium
property to ensure their availability |
| 572 |
to unit owners and
prospective purchasers, and may charge its |
| 573 |
actual costs for preparing
and furnishing these documents to |
| 574 |
those requesting the same.
Notwithstanding the provisions of |
| 575 |
this paragraph, the
following records shall not be accessible to |
| 576 |
unit owners: |
| 577 |
1. Any
record protected by the lawyer-client privilege as |
| 578 |
described in s. 90.502; and
any record protected by the work- |
| 579 |
product privilege, including
any record prepared by an |
| 580 |
association attorney or
prepared at the attorney's express |
| 581 |
direction; which reflects a
mental impression, conclusion, |
| 582 |
litigation strategy, or
legal theory of the attorney or the |
| 583 |
association, and which was
prepared exclusively for civil or |
| 584 |
criminal litigation or for
adversarial administrative |
| 585 |
proceedings, or which was
prepared in anticipation of imminent |
| 586 |
civil or criminal litigation
or imminent adversarial |
| 587 |
administrative proceedings
until the conclusion of the |
| 588 |
litigation or adversarial
administrative proceedings. |
| 589 |
2. Information
obtained by an association in connection |
| 590 |
with the approval of the
lease, sale, or other transfer of a |
| 591 |
unit. |
| 592 |
3. Medical
records of unit owners. |
| 593 |
4. The
dates of birth, social security numbers, drivers' |
| 594 |
license
numbers, financial account numbers, and credit account |
| 595 |
numbers
of unit owners and any persons residing in the units. |
| 596 |
(13) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 597 |
the fiscal year, or annually
on a date provided in the bylaws, |
| 598 |
the association shall
prepare and complete, or contract for the |
| 599 |
preparation and completion
of, a financial report for the |
| 600 |
preceding fiscal year.
Within 21 days after the final financial |
| 601 |
report is completed by the
association or received from the |
| 602 |
third party, but not later
than 120 days after the end of the |
| 603 |
fiscal year or other date as
provided in the bylaws, the |
| 604 |
association shall mail to
each unit owner at the address last |
| 605 |
furnished to the association
by the unit owner, or hand deliver |
| 606 |
to each unit owner, a copy
of the financial report or a notice |
| 607 |
that a copy of the financial
report will be mailed or hand |
| 608 |
delivered to the unit owner,
without charge, upon receipt of a |
| 609 |
written request from the
unit owner. The division shall adopt |
| 610 |
rules setting forth uniform
accounting principles and standards |
| 611 |
to be used by all
associations and shall adopt rules addressing |
| 612 |
financial reporting
requirements for multicondominium |
| 613 |
associations. In adopting
such rules, the division shall |
| 614 |
consider the number of
members and annual revenues of an |
| 615 |
association. Financial
reports shall be prepared as follows: |
| 616 |
(a) An
association that meets the criteria of this |
| 617 |
paragraph shall prepare or
cause to be prepared a complete set |
| 618 |
of financial statements in
accordance with generally accepted |
| 619 |
accounting principles. The
financial statements shall be based |
| 620 |
upon the association's total
annual revenues, as follows: |
| 621 |
1. An
association with total annual revenues of $150,000 |
| 622 |
$100,000
or more, but less than $300,000 $200,000,
shall prepare |
| 623 |
compiled financial
statements. |
| 624 |
2. An
association with total annual revenues of at least |
| 625 |
$300,000
$200,000, but less than $600,000
$400,000, shall |
| 626 |
prepare reviewed financial
statements. |
| 627 |
3. An
association with total annual revenues of $600,000 |
| 628 |
$400,000
or more shall prepare audited financial statements. |
| 629 |
(b)1. An
association with total annual revenues of less |
| 630 |
than $150,000
$100,000 shall prepare a report of
cash receipts |
| 631 |
and expenditures. |
| 632 |
2. An
association which operates less than 50 units, |
| 633 |
regardless of the
association's annual revenues, shall prepare a |
| 634 |
report of cash receipts and
expenditures in lieu of financial |
| 635 |
statements required by
paragraph (a). |
| 636 |
3. A
report of cash receipts and disbursements must |
| 637 |
disclose the amount of
receipts by accounts and receipt |
| 638 |
classifications and the
amount of expenses by accounts and |
| 639 |
expense classifications,
including, but not limited to, the |
| 640 |
following, as applicable:
costs for security, professional and |
| 641 |
management fees and
expenses, taxes, costs for recreation |
| 642 |
facilities, expenses for
refuse collection and utility services, |
| 643 |
expenses for lawn care,
costs for building maintenance and |
| 644 |
repair, insurance costs,
administration and salary expenses, and |
| 645 |
reserves accumulated and
expended for capital expenditures, |
| 646 |
deferred maintenance, and
any other category for which the |
| 647 |
association maintains
reserves. |
| 648 |
(c) An
association may prepare or cause to be prepared, |
| 649 |
without a meeting of or
approval by the unit owners: |
| 650 |
1. Compiled,
reviewed, or audited financial statements, if |
| 651 |
the association is required
to prepare a report of cash receipts |
| 652 |
and expenditures; |
| 653 |
2. Reviewed
or audited financial statements, if the |
| 654 |
association is required to
prepare compiled financial |
| 655 |
statements; or |
| 656 |
3. Audited
financial statements if the association is |
| 657 |
required to prepare reviewed
financial statements. |
| 658 |
(d) If
approved by a majority of the voting interests |
| 659 |
present at a properly called
meeting of the association, an |
| 660 |
association may prepare or
cause to be prepared: |
| 661 |
1. A
report of cash receipts and expenditures in lieu of a |
| 662 |
compiled, reviewed, or
audited financial statement; |
| 663 |
2. A
report of cash receipts and expenditures or a |
| 664 |
compiled financial statement
in lieu of a reviewed or audited |
| 665 |
financial statement; or |
| 666 |
3. A
report of cash receipts and expenditures, a compiled |
| 667 |
financial statement, or a
reviewed financial statement in lieu |
| 668 |
of an audited financial
statement. |
| 669 |
|
| 670 |
Such meeting and approval
must occur prior to the end of the |
| 671 |
fiscal year and is effective
only for the fiscal year in which |
| 672 |
the vote is taken. This
paragraph shall not apply to fiscal year |
| 673 |
financial
statements of an association subject to paragraph (a) |
| 674 |
if
financial statements at a level lower than required by |
| 675 |
paragraph
(a) were prepared for each of the prior 3 consecutive |
| 676 |
fiscal
years. With respect to an association to which the |
| 677 |
developer has not turned
over control of the association, all |
| 678 |
unit owners, including the
developer, may vote on issues related |
| 679 |
to the preparation of
financial reports for the first 2 fiscal |
| 680 |
years of the association's
operation, beginning with the fiscal |
| 681 |
year in which the
declaration is recorded. Thereafter, all unit |
| 682 |
owners except the developer
may vote on such issues until |
| 683 |
control is turned over to
the association by the developer. |
| 684 |
Section
5. Paragraphs (c), (d), and (f) of subsection (2) |
| 685 |
of section 718.112, Florida
Statutes, are amended to read: |
| 686 |
718.112 Bylaws.-- |
| 687 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
| 688 |
following and, if they do
not do so, shall be deemed to include |
| 689 |
the following: |
| 690 |
(c) Board
of administration meetings.-- |
| 691 |
1. Meetings
of the board of administration at which a |
| 692 |
quorum of the members is
present shall be open to all unit |
| 693 |
owners. Meetings
shall be conducted using generally accepted |
| 694 |
parliamentary
rules of order. Any unit owner may tape record or |
| 695 |
videotape meetings of the
board of administration. The right to |
| 696 |
attend such meetings
includes the right to speak at such |
| 697 |
meetings with reference to
all designated agenda items. The |
| 698 |
division shall adopt
reasonable rules governing the tape |
| 699 |
recording and videotaping of
the meeting. The association may |
| 700 |
adopt written reasonable
rules governing the frequency, |
| 701 |
duration, and manner of unit
owner statements. Adequate notice |
| 702 |
of all meetings, which
notice shall specifically incorporate an |
| 703 |
identification of agenda
items, shall be posted conspicuously on |
| 704 |
the condominium property at
least 48 continuous hours preceding |
| 705 |
the meeting except in an
emergency. Any item not included on the |
| 706 |
notice may be taken up on an
emergency basis by at least a |
| 707 |
majority plus one of the
members of the board. Such emergency |
| 708 |
action shall be noticed and
ratified at the next regular meeting |
| 709 |
of the board. However,
written notice of any meeting at which |
| 710 |
nonemergency special
assessments, or at which amendment to rules |
| 711 |
regarding unit use, will be
considered shall be mailed, |
| 712 |
delivered, or electronically
transmitted to the unit owners and |
| 713 |
posted conspicuously on the
condominium property not less than |
| 714 |
14 days prior to the
meeting. Evidence of compliance with this |
| 715 |
14-day notice shall be made
by an affidavit executed by the |
| 716 |
person providing the notice
and filed among the official records |
| 717 |
of the association. Upon
notice to the unit owners, the board |
| 718 |
shall by duly adopted rule
designate a specific location on the |
| 719 |
condominium property or
association property upon which all |
| 720 |
notices of board meetings
shall be posted. If there is no |
| 721 |
condominium property or
association property upon which notices |
| 722 |
can be posted, notices of
board meetings shall be mailed, |
| 723 |
delivered, or electronically
transmitted at least 14 days before |
| 724 |
the meeting to the owner of
each unit. In lieu of or in addition |
| 725 |
to the physical posting of
notice of any meeting of the board of |
| 726 |
administration on the
condominium property, the association may, |
| 727 |
by reasonable rule, adopt a
procedure for conspicuously posting |
| 728 |
and repeatedly broadcasting
the notice and the agenda on a |
| 729 |
closed-circuit cable
television system serving the condominium |
| 730 |
association. However, if
broadcast notice is used in lieu of a |
| 731 |
notice posted physically on
the condominium property, the notice |
| 732 |
and agenda must be broadcast
at least four times every broadcast |
| 733 |
hour of each day that a
posted notice is otherwise required |
| 734 |
under this section. When
broadcast notice is provided, the |
| 735 |
notice and agenda must be
broadcast in a manner and for a |
| 736 |
sufficient continuous length
of time so as to allow an average |
| 737 |
reader to observe the notice
and read and comprehend the entire |
| 738 |
content of the notice and
the agenda. Notice of any meeting in |
| 739 |
which regular assessments
against unit owners are to be |
| 740 |
considered for any reason
shall specifically contain a statement |
| 741 |
that assessments will be
considered and the nature of any such |
| 742 |
assessments. Meetings of a
committee to take final action on |
| 743 |
behalf of the board or make
recommendations to the board |
| 744 |
regarding the association
budget are subject to the provisions |
| 745 |
of this paragraph. Meetings
of a committee that does not take |
| 746 |
final action on behalf of
the board or make recommendations to |
| 747 |
the board regarding the
association budget are subject to the |
| 748 |
provisions of this section,
unless those meetings are exempted |
| 749 |
from this section by the
bylaws of the association. |
| 750 |
Notwithstanding any other
law, the requirement that board |
| 751 |
meetings and committee
meetings be open to the unit owners is |
| 752 |
inapplicable to meetings
between the board or a committee and |
| 753 |
the association's attorney,
with respect to proposed or pending |
| 754 |
litigation, when the meeting
is held for the purpose of seeking |
| 755 |
or rendering legal advice. |
| 756 |
2. If
20 percent of the total voting interests petition |
| 757 |
the board
to address an item of business, the board shall at its |
| 758 |
next
regular board meeting or at a special meeting of the board, |
| 759 |
but not
later than 60 days after the receipt of the petition, |
| 760 |
take the
petitioned item up on an agenda. The board shall give |
| 761 |
all
members notice of the meeting at which the petitioned item |
| 762 |
shall be
addressed in accordance with subparagraph 1. Each |
| 763 |
member
shall have the right to speak for at least 3 minutes on |
| 764 |
each
matter placed on the agenda by petition, provided that the |
| 765 |
member
signs the sign-up sheet, if one is provided, or submits a |
| 766 |
written
request to speak prior to the meeting. Other than |
| 767 |
addressing
the petitioned item at the meeting, the board is not |
| 768 |
obligated
to take any other action requested by the petition. |
| 769 |
(d) Unit
owner meetings.-- |
| 770 |
1. There
shall be an annual meeting of the unit owners. |
| 771 |
All
meetings of the unit owners, including the annual meeting, |
| 772 |
shall be
held at the place and time provided in the |
| 773 |
association's
bylaws or, if the bylaws are silent, at a time and |
| 774 |
place
specified by the board that is within the state and within |
| 775 |
20
miles of the condominium property. Unless the bylaws
provide |
| 776 |
otherwise, a vacancy on the
board caused by the expiration of a |
| 777 |
director's term shall be
filled by electing a new board member, |
| 778 |
and the election shall be by
secret ballot; however, if the |
| 779 |
number of vacancies equals
or exceeds the number of candidates, |
| 780 |
no election is required. If
there is no provision in the bylaws |
| 781 |
for terms of the members of
the board, the terms of all members |
| 782 |
of the board shall expire
upon the election of their successors |
| 783 |
at the annual meeting. Any
unit owner desiring to be a candidate |
| 784 |
for board membership shall
comply with subparagraph 3. A person |
| 785 |
who has been convicted of
any felony by any court of record in |
| 786 |
the United States and who
has not had his or her right to vote |
| 787 |
restored pursuant to law in
the jurisdiction of his or her |
| 788 |
residence is not eligible
for board membership. The validity of |
| 789 |
an action by the board is
not affected if it is later determined |
| 790 |
that a member of the board
is ineligible for board membership |
| 791 |
due to having been convicted
of a felony. |
| 792 |
2. The
bylaws shall provide the method of calling meetings |
| 793 |
of unit owners, including
annual meetings. Written notice, which |
| 794 |
notice must include an
agenda, shall be mailed, hand delivered, |
| 795 |
or electronically
transmitted to each unit owner at least 14 |
| 796 |
days prior to the annual
meeting and shall be posted in a |
| 797 |
conspicuous place on the
condominium property at least 14 |
| 798 |
continuous days preceding
the annual meeting. Upon notice to the |
| 799 |
unit owners, the board shall
by duly adopted rule designate a |
| 800 |
specific location on the
condominium property or association |
| 801 |
property upon which all
notices of unit owner meetings shall be |
| 802 |
posted; however, if there is
no condominium property or |
| 803 |
association property upon
which notices can be posted, this |
| 804 |
requirement does not apply.
In lieu of or in addition to the |
| 805 |
physical posting of notice
of any meeting of the unit owners on |
| 806 |
the condominium property,
the association may, by reasonable |
| 807 |
rule, adopt a procedure for
conspicuously posting and repeatedly |
| 808 |
broadcasting the notice and
the agenda on a closed-circuit cable |
| 809 |
television system serving
the condominium association. However, |
| 810 |
if broadcast notice is used
in lieu of a notice posted |
| 811 |
physically on the
condominium property, the notice and agenda |
| 812 |
must be broadcast at least
four times every broadcast hour of |
| 813 |
each day that a posted
notice is otherwise required under this |
| 814 |
section. When broadcast
notice is provided, the notice and |
| 815 |
agenda must be broadcast in
a manner and for a sufficient |
| 816 |
continuous length of time so
as to allow an average reader to |
| 817 |
observe the notice and read
and comprehend the entire content of |
| 818 |
the notice and the agenda.
Unless a unit owner waives in writing |
| 819 |
the right to receive notice
of the annual meeting, such notice |
| 820 |
shall be hand delivered,
mailed, or electronically transmitted |
| 821 |
to each unit owner. Notice
for meetings and notice for all other |
| 822 |
purposes shall be mailed to
each unit owner at the address last |
| 823 |
furnished to the association
by the unit owner, or hand |
| 824 |
delivered to each unit
owner. However, if a unit is owned by |
| 825 |
more than one person, the
association shall provide notice, for |
| 826 |
meetings and all other
purposes, to that one address which the |
| 827 |
developer initially
identifies for that purpose and thereafter |
| 828 |
as one or more of the owners
of the unit shall so advise the |
| 829 |
association in writing, or
if no address is given or the owners |
| 830 |
of the unit do not agree, to
the address provided on the deed of |
| 831 |
record. An officer of the
association, or the manager or other |
| 832 |
person providing notice of
the association meeting, shall |
| 833 |
provide an affidavit or
United States Postal Service certificate |
| 834 |
of mailing, to be included
in the official records of the |
| 835 |
association affirming that
the notice was mailed or hand |
| 836 |
delivered, in accordance
with this provision. |
| 837 |
3. The
members of the board shall be elected by written |
| 838 |
ballot or voting machine.
Proxies shall in no event be used in |
| 839 |
electing the board, either
in general elections or elections to |
| 840 |
fill vacancies caused by
recall, resignation, or otherwise, |
| 841 |
unless otherwise provided in
this chapter. Not less than 60 days |
| 842 |
before a scheduled election,
the association shall mail, |
| 843 |
deliver, or electronically
transmit, whether by separate |
| 844 |
association mailing or
included in another association mailing, |
| 845 |
delivery, or transmission,
including regularly published |
| 846 |
newsletters, to each unit
owner entitled to a vote, a first |
| 847 |
notice of the date of the
election. Any unit owner or other |
| 848 |
eligible person desiring to
be a candidate for the board must |
| 849 |
give written notice to the
association not less than 40 days |
| 850 |
before a scheduled election.
Together with the written notice |
| 851 |
and agenda as set forth in
subparagraph 2., the association |
| 852 |
shall mail, deliver, or
electronically transmit a second notice |
| 853 |
of the election to all unit
owners entitled to vote therein, |
| 854 |
together with a ballot which
shall list all candidates. Upon |
| 855 |
request of a candidate, the
association shall include an |
| 856 |
information sheet, no larger
than 81/2 inches by 11 inches, |
| 857 |
which must be furnished by
the candidate not less than 35 days |
| 858 |
before the election, to be
included with the mailing, delivery, |
| 859 |
or transmission of the
ballot, with the costs of mailing, |
| 860 |
delivery, or electronic
transmission and copying to be borne by |
| 861 |
the association. The
association is not liable for the contents |
| 862 |
of the information sheets
prepared by the candidates. In order |
| 863 |
to reduce costs, the
association may print or duplicate the |
| 864 |
information sheets on both
sides of the paper. The division |
| 865 |
shall by rule establish
voting procedures consistent with the |
| 866 |
provisions contained herein,
including rules establishing |
| 867 |
procedures for giving notice
by electronic transmission and |
| 868 |
rules providing for the
secrecy of ballots. Elections shall be |
| 869 |
decided by a plurality of
those ballots cast. There shall be no |
| 870 |
quorum requirement; however,
at least 20 percent of the eligible |
| 871 |
voters must cast a ballot in
order to have a valid election of |
| 872 |
members of the board. No
unit owner shall permit any other |
| 873 |
person to vote his or her
ballot, and any such ballots |
| 874 |
improperly cast shall be
deemed invalid, provided any unit owner |
| 875 |
who violates this provision
may be fined by the association in |
| 876 |
accordance with s. 718.303.
A unit owner who needs assistance in |
| 877 |
casting the ballot for the
reasons stated in s. 101.051 may |
| 878 |
obtain assistance in casting
the ballot. The regular election |
| 879 |
shall occur on the date of
the annual meeting. The provisions of |
| 880 |
this subparagraph shall not
apply to timeshare condominium |
| 881 |
associations.
Notwithstanding the provisions of this |
| 882 |
subparagraph, an election is
not required unless more candidates |
| 883 |
file notices of intent to
run or are nominated than board |
| 884 |
vacancies exist. |
| 885 |
4. Any
approval by unit owners called for by this chapter |
| 886 |
or the applicable
declaration or bylaws, including, but not |
| 887 |
limited to, the approval
requirement in s. 718.111(8), shall be |
| 888 |
made at a duly noticed
meeting of unit owners and shall be |
| 889 |
subject to all requirements
of this chapter or the applicable |
| 890 |
condominium documents
relating to unit owner decisionmaking, |
| 891 |
except that unit owners may
take action by written agreement, |
| 892 |
without meetings, on matters
for which action by written |
| 893 |
agreement without meetings
is expressly allowed by the |
| 894 |
applicable bylaws or
declaration or any statute that provides |
| 895 |
for such action. |
| 896 |
5. Unit
owners may waive notice of specific meetings if |
| 897 |
allowed by the applicable
bylaws or declaration or any statute. |
| 898 |
If authorized by the bylaws,
notice of meetings of the board of |
| 899 |
administration, unit owner
meetings, except unit owner meetings |
| 900 |
called to recall board
members under paragraph (j), and |
| 901 |
committee meetings may be
given by electronic transmission to |
| 902 |
unit owners who consent to
receive notice by electronic |
| 903 |
transmission. |
| 904 |
6. Unit
owners shall have the right to participate in |
| 905 |
meetings of unit owners with
reference to all designated agenda |
| 906 |
items. However, the
association may adopt reasonable rules |
| 907 |
governing the frequency,
duration, and manner of unit owner |
| 908 |
participation. |
| 909 |
7. Any
unit owner may tape record or videotape a meeting |
| 910 |
of the unit owners subject
to reasonable rules adopted by the |
| 911 |
division. |
| 912 |
8. Unless
otherwise provided in the bylaws, any vacancy |
| 913 |
occurring on the board
before the expiration of a term may be |
| 914 |
filled by the affirmative
vote of the majority of the remaining |
| 915 |
directors, even if the
remaining directors constitute less than |
| 916 |
a quorum, or by the sole
remaining director. In the alternative, |
| 917 |
a board may hold an election
to fill the vacancy, in which case |
| 918 |
the election procedures must
conform to the requirements of |
| 919 |
subparagraph 3. unless the
association has opted out of the |
| 920 |
statutory election process,
in which case the bylaws of the |
| 921 |
association control. Unless
otherwise provided in the bylaws, a |
| 922 |
board member appointed or
elected under this section shall fill |
| 923 |
the vacancy for the
unexpired term of the seat being filled. |
| 924 |
Filling vacancies created by
recall is governed by paragraph (j) |
| 925 |
and rules adopted by the
division. |
| 926 |
|
| 927 |
Notwithstanding
subparagraphs (b)2. and (d)3., an association |
| 928 |
may, by the affirmative vote
of a majority of the total voting |
| 929 |
interests, provide for
different voting and election procedures |
| 930 |
in its bylaws, which vote
may be by a proxy specifically |
| 931 |
delineating the different
voting and election procedures. The |
| 932 |
different voting and
election procedures may provide for |
| 933 |
elections to be conducted by
limited or general proxy. |
| 934 |
(f) Annual
budget.-- |
| 935 |
1. The
proposed annual budget of common expenses shall be |
| 936 |
detailed and shall show the
amounts budgeted by accounts and |
| 937 |
expense classifications,
including, if applicable, but not |
| 938 |
limited to, those expenses
listed in s. 718.504(21). A |
| 939 |
multicondominium association
shall adopt a separate budget of |
| 940 |
common expenses for each
condominium the association operates |
| 941 |
and shall adopt a separate
budget of common expenses for the |
| 942 |
association. In addition, if
the association maintains limited |
| 943 |
common elements with the
cost to be shared only by those |
| 944 |
entitled to use the limited
common elements as provided for in |
| 945 |
s. 718.113(1), the budget or
a schedule attached thereto shall |
| 946 |
show amounts budgeted
therefor. If, after turnover of control of |
| 947 |
the association to the unit
owners, any of the expenses listed |
| 948 |
in s. 718.504(21) are not
applicable, they need not be listed. |
| 949 |
2. In
addition to annual operating expenses, the budget |
| 950 |
shall include reserve
accounts for those items of
capital |
| 951 |
expenditures and deferred
maintenance that occur less frequently |
| 952 |
than
annually. These accounts shall include, but are not limited |
| 953 |
to, roof replacement,
building painting, and pavement |
| 954 |
resurfacing, regardless of
the amount of deferred maintenance |
| 955 |
expense or replacement cost,
and for any other item for which |
| 956 |
the deferred maintenance
expense or replacement cost exceeds the |
| 957 |
greater
of $10,000 or $300 multiplied by
the number of units. |
| 958 |
The amount to be reserved
shall be computed by means of a |
| 959 |
formula which is based upon
estimated remaining useful life and |
| 960 |
estimated replacement cost
or deferred maintenance expense of |
| 961 |
each reserve item. The
association may adjust replacement |
| 962 |
reserve assessments annually
to take into account any changes in |
| 963 |
estimates or extension of
the useful life of a reserve item |
| 964 |
caused by deferred
maintenance. This subsection does not apply |
| 965 |
to an adopted budget in
which the members of an association have |
| 966 |
determined, by a majority
vote at a duly called meeting of the |
| 967 |
association, to provide no
reserves or less reserves than |
| 968 |
required by this subsection.
However, prior to turnover of |
| 969 |
control of an association by
a developer to unit owners other |
| 970 |
than a developer pursuant to
s. 718.301, the developer may vote |
| 971 |
to waive the reserves or
reduce the funding of reserves for the |
| 972 |
first 2 fiscal years of the
association's operation, beginning |
| 973 |
with the fiscal year in
which the initial declaration is |
| 974 |
recorded, after which time
reserves may be waived or reduced |
| 975 |
only upon the vote of a
majority of all nondeveloper voting |
| 976 |
interests voting in person
or by limited proxy at a duly called |
| 977 |
meeting of the association.
If a meeting of the unit owners has |
| 978 |
been called to determine
whether to waive or reduce the funding |
| 979 |
of reserves, and no such
result is achieved or a quorum is not |
| 980 |
attained, the reserves as
included in the budget shall go into |
| 981 |
effect. After the turnover,
the developer may vote its voting |
| 982 |
interest to waive or reduce
the funding of reserves. |
| 983 |
3. Reserve
funds and any interest accruing thereon shall |
| 984 |
remain in the reserve
account or accounts, and shall be used |
| 985 |
only for authorized reserve
expenditures unless their use for |
| 986 |
other purposes is approved
in advance by a majority vote at a |
| 987 |
duly called meeting of the
association. Prior to turnover of |
| 988 |
control of an association by
a developer to unit owners other |
| 989 |
than the developer pursuant
to s. 718.301, the developer- |
| 990 |
controlled association shall
not vote to use reserves for |
| 991 |
purposes other than that for
which they were intended without |
| 992 |
the approval of a majority
of all nondeveloper voting interests, |
| 993 |
voting in person or by
limited proxy at a duly called meeting of |
| 994 |
the association. |
| 995 |
4. The
only voting interests which are eligible to vote on |
| 996 |
questions that involve
waiving or reducing the funding of |
| 997 |
reserves, or using existing
reserve funds for purposes other |
| 998 |
than purposes for which the
reserves were intended, are the |
| 999 |
voting interests of the
units subject to assessment to fund the |
| 1000 |
reserves in question. |
| 1001 |
Section
6. Paragraph (a) of subsection (1) of section |
| 1002 |
718.115, Florida Statutes,
is amended to read: |
| 1003 |
718.115 Common
expenses and common surplus.-- |
| 1004 |
(1)(a) Common
expenses include the expenses of the |
| 1005 |
operation, maintenance,
repair, replacement, or protection of |
| 1006 |
the common elements and
association property, costs of carrying |
| 1007 |
out the powers and duties of
the association, and any other |
| 1008 |
expense, whether or not
included in the foregoing, designated as |
| 1009 |
common expense by this
chapter, the declaration, the documents |
| 1010 |
creating the association, or
the bylaws. Common expenses also |
| 1011 |
include reasonable
transportation services, insurance for |
| 1012 |
directors and officers, road
maintenance and operation expenses, |
| 1013 |
in-house communications, and
security services, which are |
| 1014 |
reasonably related to the
general benefit of the unit owners |
| 1015 |
even if such expenses do not
attach to the common elements or |
| 1016 |
property of the condominium.
However, such common expenses must |
| 1017 |
either have been services or
items provided on or after the date |
| 1018 |
control of the association
is transferred from the developer to |
| 1019 |
the unit owners or must be
services or items provided for in the |
| 1020 |
condominium documents or
bylaws. The expenses of items or |
| 1021 |
services
required by federal, state, or local government to be |
| 1022 |
installed,
maintained, or supplied to the condominium property |
| 1023 |
by the
association, including, but not limited to, fire safety |
| 1024 |
equipment,
or water and sewer service where a master meter |
| 1025 |
serves
the condominium, shall be common expenses whether or not |
| 1026 |
these
items or services are specifically identified as common |
| 1027 |
expenses
in the declaration, articles, or bylaws of the |
| 1028 |
association. |
| 1029 |
Section
7. Paragraph (c) of subsection (5) of section |
| 1030 |
718.116, Florida Statutes,
is redesignated as paragraph (d), a |
| 1031 |
new paragraph (c) is added
to that subsection, and subsection |
| 1032 |
(10) of that section is
amended, to read: |
| 1033 |
718.116 Assessments;
liability; lien and priority; |
| 1034 |
interest; collection.-- |
| 1035 |
(5) |
| 1036 |
(c) Any
claim of lien filed on or after January 1, 2009, |
| 1037 |
shall not
be valid unless it includes a statement from the |
| 1038 |
executing
officer or authorized agent attesting that on a stated |
| 1039 |
date,
which shall be no later than 30 days prior to the date of |
| 1040 |
filing,
the record owner was given written notice of the amount |
| 1041 |
due and
of the association's intention to file a claim of lien |
| 1042 |
if the
amount due has not been fully paid within 30 days |
| 1043 |
following
the date of mailing or delivery of the notice. The |
| 1044 |
statement
shall also attest that the notice described was given |
| 1045 |
by
personal delivery to the unit owner or by mailing a copy |
| 1046 |
thereof
by certified or registered mail, return receipt, |
| 1047 |
addressed
to the unit owner at his or her last known address. |
| 1048 |
(d)(c) By
recording a notice in substantially the |
| 1049 |
following form, a unit owner
or the unit owner's agent or |
| 1050 |
attorney may require the
association to enforce a recorded claim |
| 1051 |
of lien against his or her
condominium parcel: |
| 1052 |
|
| 1053 |
NOTICE OF CONTEST OF LIEN |
| 1054 |
|
| 1055 |
TO:
(Name and address of association) You are notified |
| 1056 |
that the undersigned
contests the claim of lien filed by you on |
| 1057 |
_____, (year) ,
and recorded in Official Records Book _____ |
| 1058 |
at Page _____, of the public
records of _____ County, Florida, |
| 1059 |
and that the time within
which you may file suit to enforce your |
| 1060 |
lien is limited to 90 days
from the date of service of this |
| 1061 |
notice. Executed this _____
day of _____, (year) . |
| 1062 |
|
| 1063 |
Signed: (Owner
or Attorney) |
| 1064 |
|
| 1065 |
After notice of contest of
lien has been recorded, the clerk of |
| 1066 |
the circuit court shall mail
a copy of the recorded notice to |
| 1067 |
the association by certified
mail, return receipt requested, at |
| 1068 |
the address shown in the
claim of lien or most recent amendment |
| 1069 |
to it and shall certify to
the service on the face of the |
| 1070 |
notice. Service is complete
upon mailing. After service, the |
| 1071 |
association has 90 days in
which to file an action to enforce |
| 1072 |
the lien; and, if the action
is not filed within the 90-day |
| 1073 |
period, the lien is void.
However, the 90-day period shall be |
| 1074 |
extended for any length of
time that the association is |
| 1075 |
prevented from filing its
action because of an automatic stay |
| 1076 |
resulting from the filing of
a bankruptcy petition by the unit |
| 1077 |
owner or by any other person
claiming an interest in the parcel. |
| 1078 |
(10) The
specific purpose or purposes of any special |
| 1079 |
assessment, including any
contingent special assessment levied |
| 1080 |
in conjunction with the
purchase of an insurance policy |
| 1081 |
authorized by s.
718.111(11), approved in accordance with the |
| 1082 |
condominium documents shall
be set forth in a written notice of |
| 1083 |
such assessment sent or
delivered to each unit owner. Unit |
| 1084 |
owners
shall be afforded no less than 60 days' advance notice to |
| 1085 |
pay
estimated nonemergency special assessments. The funds |
| 1086 |
collected pursuant to a
special assessment shall be used only |
| 1087 |
for the specific purpose or
purposes set forth in such notice. |
| 1088 |
However, upon completion of
such specific purpose or purposes, |
| 1089 |
any excess funds will be
considered common surplus, and may, at |
| 1090 |
the discretion of the board,
either be returned to the unit |
| 1091 |
owners or applied as a
credit toward future assessments. |
| 1092 |
Section
8. Section 718.1265, Florida Statutes, is created |
| 1093 |
to read: |
| 1094 |
718.1265 Association
emergency powers.-- |
| 1095 |
(1) To
the extent allowed by law and unless specifically |
| 1096 |
prohibited
by the declaration, articles, or bylaws of an |
| 1097 |
association,
and consistent with the provisions of s. 617.0830, |
| 1098 |
the board
of administration, in response to damage caused by an |
| 1099 |
event for
which a state of emergency is declared pursuant to s. |
| 1100 |
252.36 in
the locale in which the condominium is located, may, |
| 1101 |
but is
not required to, exercise the following powers: |
| 1102 |
(a) Conduct
board meetings and membership meetings with |
| 1103 |
notice
given as is practicable. Such notice may be given in any |
| 1104 |
practicable
manner, including publication, radio, United States |
| 1105 |
mail, the
Internet, public service announcements, and |
| 1106 |
conspicuous
posting on the condominium property or any other |
| 1107 |
means the
board deems reasonable under the circumstances. Notice |
| 1108 |
of board
decisions may be communicated as provided in this |
| 1109 |
paragraph. |
| 1110 |
(b) Cancel
and reschedule any association meeting. |
| 1111 |
(c) Name
as assistant officers persons who are not |
| 1112 |
directors,
which assistant officers shall have the same |
| 1113 |
authority
as the executive officers to whom they are assistants |
| 1114 |
during
the state of emergency to accommodate the incapacity or |
| 1115 |
unavailability
of any officer of the association. |
| 1116 |
(d) Relocate
the association's principal office or |
| 1117 |
designate
alternative principal offices. |
| 1118 |
(e) Enter
into agreements with local counties and |
| 1119 |
municipalities
to assist counties and municipalities with debris |
| 1120 |
removal. |
| 1121 |
(f) Implement
a disaster plan before or immediately |
| 1122 |
following
the event for which a state of emergency is declared |
| 1123 |
that may
include, but is not limited to, shutting down or off |
| 1124 |
elevators;
electricity; water, sewer, or security systems; or |
| 1125 |
air
conditioners. |
| 1126 |
(g) Declare
any portion of the condominium property |
| 1127 |
unavailable
for entry or occupancy by unit owners, family |
| 1128 |
members,
tenants, guests, agents, or invitees to protect the |
| 1129 |
health,
safety, or welfare of such persons. |
| 1130 |
(h) Require
the evacuation of the condominium property in |
| 1131 |
the event
of a mandatory evacuation order in the locale in which |
| 1132 |
the
condominium is located. Should any unit owner or other |
| 1133 |
occupant
of a condominium fail or refuse to evacuate the |
| 1134 |
condominium
property where the board has required evacuation, |
| 1135 |
the
association shall be immune from liability for injury to |
| 1136 |
persons
or property arising from such failure or refusal. |
| 1137 |
(i) Determine
whether the condominium property can be |
| 1138 |
safely
inhabited or occupied. However, such determination is not |
| 1139 |
conclusive
as to any determination of habitability pursuant to |
| 1140 |
the
declaration made by county or municipal officials in the |
| 1141 |
locale in
which the condominium is located. |
| 1142 |
(j) Mitigate
further damage, including taking action to |
| 1143 |
contract
for the removal of debris, making roofing or other |
| 1144 |
repairs
to prevent intrusion by the elements, and shoring walls; |
| 1145 |
and
prevent or mitigate the spread of fungus, including, but not |
| 1146 |
limited
to, mold or mildew, by removing and disposing of wet |
| 1147 |
drywall,
insulation, carpet, cabinetry, or other fixtures, on or |
| 1148 |
within
the condominium property, even if the unit owner is |
| 1149 |
obligated
by the declaration or law to insure or replace those |
| 1150 |
fixtures
and to remove personal property from a unit. |
| 1151 |
(k) Contract,
on behalf of any unit owner or owners, for |
| 1152 |
items or
services for which the owner or owners are otherwise |
| 1153 |
individually
responsible for, but which are necessary to prevent |
| 1154 |
further
damage to the condominium property. In such event, the |
| 1155 |
unit
owner or owners on whose behalf the board has contracted |
| 1156 |
are
responsible for reimbursing the association for the actual |
| 1157 |
costs of
the items or services, and the association may use its |
| 1158 |
lien
authority provided by s. 718.116 to enforce collection of |
| 1159 |
the
charges. Without limitation, such items or services may |
| 1160 |
include
the drying of units, the boarding of broken windows or |
| 1161 |
doors,
and the replacement of damaged air conditioners or air |
| 1162 |
handlers
to provide climate control in the units or other |
| 1163 |
portions
of the property. |
| 1164 |
(l) Levy
special assessments without a vote of the owners, |
| 1165 |
regardless
of any provision to the contrary in the declaration, |
| 1166 |
articles,
or bylaws of an association and regardless of the fact |
| 1167 |
that such
authority does not specifically appear in such |
| 1168 |
documents. |
| 1169 |
(m) Use
reserve funds and borrow money and pledge |
| 1170 |
association
assets as collateral to fund emergency repairs and |
| 1171 |
carry out
the duties of the association when operating funds are |
| 1172 |
insufficient,
without unit owner approval. This paragraph does |
| 1173 |
not limit
the general authority of the association to borrow |
| 1174 |
money,
subject to such restrictions as are contained in the |
| 1175 |
declaration,
articles, or bylaws. |
| 1176 |
(2) The
special powers authorized under subsection (1) |
| 1177 |
shall be
limited to that time reasonably necessary to protect |
| 1178 |
the
health, safety, and welfare of the association, the unit |
| 1179 |
owners,
their family members, tenants, guests, agents, or |
| 1180 |
invitees
and shall be reasonably necessary to mitigate further |
| 1181 |
damage
and make emergency repairs. |
| 1182 |
Section
9. Paragraphs (d) and (e) of subsection (1) of |
| 1183 |
section 718.3025, Florida
Statutes, are amended, and subsection |
| 1184 |
(5) is added to that
section, to read: |
| 1185 |
718.3025 Agreements
for operation, maintenance, or |
| 1186 |
management of condominiums;
specific requirements.-- |
| 1187 |
(1) No
written contract between a party contracting to |
| 1188 |
provide maintenance or
management services and an association |
| 1189 |
which contract provides for
operation, maintenance, or |
| 1190 |
management of a condominium
association or property serving the |
| 1191 |
unit owners of a condominium
shall be valid or enforceable |
| 1192 |
unless the contract: |
| 1193 |
(d) Specifies
a minimum number of personnel to be employed |
| 1194 |
by the
party contracting to provide maintenance or management |
| 1195 |
services
for the purpose of providing service to the |
| 1196 |
association. |
| 1197 |
(e) Discloses
any financial or ownership interest which |
| 1198 |
the developer, if the
developer is in control of the |
| 1199 |
association, holds with
regard to the party contracting to |
| 1200 |
provide maintenance or
management services. |
| 1201 |
(5) No
clause in a contract subject to this section |
| 1202 |
executed
on or after January 1, 2009, shall be enforceable to |
| 1203 |
the
extent that it provides for the automatic renewal or the |
| 1204 |
automatic
extension of the contract. |
| 1205 |
Section
10. Section 718.3026, Florida Statutes, is amended |
| 1206 |
to read: |
| 1207 |
718.3026 Contracts
for products and services; in writing; |
| 1208 |
bids;
exceptions.--Associations with less than 100 units may opt |
| 1209 |
out of the provisions of
this section if two-thirds of the unit |
| 1210 |
owners vote to do so, which
opt-out may be accomplished by a |
| 1211 |
proxy specifically setting
forth the exception from this |
| 1212 |
section. Such
an opt out expires 3 years following the date of |
| 1213 |
the
opt-out vote. |
| 1214 |
(1) All
contracts as further described herein or any |
| 1215 |
contract that is not to be
fully performed within 1 year after |
| 1216 |
the making thereof, for the
purchase, lease, or renting of |
| 1217 |
materials or equipment to be
used by the association in |
| 1218 |
accomplishing its purposes
under this chapter, and all contracts |
| 1219 |
for the provision of
services, shall be in writing. If a |
| 1220 |
contract for the purchase,
lease, or renting of materials or |
| 1221 |
equipment, or for the
provision of services, requires payment by |
| 1222 |
the association on behalf of
any condominium operated by the |
| 1223 |
association in the aggregate
that exceeds 5 percent of the total |
| 1224 |
annual budget of the
association, including reserves, the |
| 1225 |
association shall obtain
competitive bids for the materials, |
| 1226 |
equipment, or services.
Nothing contained herein shall be |
| 1227 |
construed to require the
association to accept the lowest bid. |
| 1228 |
(2)(a)1. Notwithstanding
the foregoing, contracts with |
| 1229 |
employees of the
association, and contracts for attorney, |
| 1230 |
accountant, architect,
community association manager, timeshare |
| 1231 |
management firm,
engineering, and landscape architect services |
| 1232 |
are not subject to the
provisions of this section. |
| 1233 |
2. A
contract executed before January 1, 1992, and any |
| 1234 |
renewal thereof, is not
subject to the competitive bid |
| 1235 |
requirements of this
section. If a contract was awarded under |
| 1236 |
the competitive bid
procedures of this section, any renewal of |
| 1237 |
that contract is not subject
to such competitive bid |
| 1238 |
requirements if the contract
contains a provision that allows |
| 1239 |
the board to cancel the
contract on 30 days' notice. Materials, |
| 1240 |
equipment, or services
provided to a condominium under a local |
| 1241 |
government franchise
agreement by a franchise holder are not |
| 1242 |
subject to the competitive
bid requirements of this section. A |
| 1243 |
contract with a manager, if
made by a competitive bid, may be |
| 1244 |
made for up to 3 years. A
condominium whose declaration or |
| 1245 |
bylaws provides for
competitive bidding for services may operate |
| 1246 |
under the provisions of that
declaration or bylaws in lieu of |
| 1247 |
this section if those
provisions are not less stringent than the |
| 1248 |
requirements of this
section. |
| 1249 |
(b) Nothing
contained herein is intended to limit the |
| 1250 |
ability of an association to
obtain needed products and services |
| 1251 |
in an emergency. |
| 1252 |
(c) This
section shall not apply if the business entity |
| 1253 |
with which the association
desires to enter into a contract is |
| 1254 |
the only source of supply
within the county serving the |
| 1255 |
association. |
| 1256 |
(d) Nothing
contained herein shall excuse a party |
| 1257 |
contracting to provide
maintenance or management services from |
| 1258 |
compliance with s. 718.3025. |
| 1259 |
Section
11. Subsection (3) of section 718.303, Florida |
| 1260 |
Statutes, is amended to
read: |
| 1261 |
718.303 Obligations
of owners; waiver; levy of fine |
| 1262 |
against unit by
association.-- |
| 1263 |
(3) If
the declaration or bylaws so provide, the |
| 1264 |
association may levy
reasonable fines against a unit for the |
| 1265 |
failure of the owner of the
unit, or its occupant, licensee, or |
| 1266 |
invitee, to comply with any
provision of the declaration, the |
| 1267 |
association bylaws, or
reasonable rules of the association. No |
| 1268 |
fine will become a lien
against a unit. No fine may exceed $100 |
| 1269 |
per violation. However, a
fine may be levied on the basis of |
| 1270 |
each day of a continuing
violation, with a single notice and |
| 1271 |
opportunity for hearing,
provided that no such fine shall in the |
| 1272 |
aggregate exceed $1,000. No
fine may be levied except after |
| 1273 |
giving reasonable notice and
opportunity for a hearing to the |
| 1274 |
unit owner and, if
applicable, its licensee or invitee. The |
| 1275 |
hearing must be held before
a committee of other unit owners who |
| 1276 |
are
neither board members nor persons residing in a board |
| 1277 |
member's
household. If the committee does not agree with the |
| 1278 |
fine, the fine may not be
levied. The provisions of this |
| 1279 |
subsection do not apply to
unoccupied units. |
| 1280 |
Section
12. Subsection (4) of section 718.5012, Florida |
| 1281 |
Statutes, is amended to
read: |
| 1282 |
718.5012 Ombudsman;
powers and duties.--The ombudsman |
| 1283 |
shall have the powers that
are necessary to carry out the duties |
| 1284 |
of his or her office,
including the following specific powers: |
| 1285 |
(4) To
act as liaison between the division, unit owners, |
| 1286 |
boards of directors, board
members, community association |
| 1287 |
managers, and other affected
parties. The ombudsman shall |
| 1288 |
develop
policies and procedures to assist unit owners, boards of |
| 1289 |
directors, board members,
community association managers, and |
| 1290 |
other affected parties to
understand their rights and |
| 1291 |
responsibilities as set
forth in this chapter and the |
| 1292 |
condominium documents
governing their respective association. |
| 1293 |
The ombudsman shall
coordinate and assist in the preparation and |
| 1294 |
adoption of educational and
reference material, and shall |
| 1295 |
endeavor to coordinate with
private or volunteer providers of |
| 1296 |
these services, so that the
availability of these resources is |
| 1297 |
made known to the largest
possible audience. |
| 1298 |
Section
13. Paragraph (a) of subsection (2) of section |
| 1299 |
718.503, Florida Statutes,
is amended to read: |
| 1300 |
718.503 Developer
disclosure prior to sale; nondeveloper |
| 1301 |
unit owner disclosure prior
to sale; voidability.-- |
| 1302 |
(2) NONDEVELOPER
DISCLOSURE.-- |
| 1303 |
(a) Each
unit owner who is not a developer as defined by |
| 1304 |
this chapter shall comply
with the provisions of this subsection |
| 1305 |
prior to the sale of his or
her unit. Each prospective purchaser |
| 1306 |
who has entered into a
contract for the purchase of a |
| 1307 |
condominium unit is
entitled, at the seller's expense, to a |
| 1308 |
current copy of the
declaration of condominium, articles of |
| 1309 |
incorporation of the
association, bylaws and rules of the |
| 1310 |
association, financial
information required by s. 718.111, and |
| 1311 |
the document entitled
"Frequently Asked Questions and Answers" |
| 1312 |
required by s. 718.504. On
and after January 1, 2009, the |
| 1313 |
prospective
purchaser shall also be entitled to receive from the |
| 1314 |
seller a
copy of a governance form. Such form shall be provided |
| 1315 |
by the
division summarizing governance of condominium |
| 1316 |
associations.
In addition to such other information as the |
| 1317 |
division
considers helpful to a prospective purchaser in |
| 1318 |
understanding
association governance, the governance form shall |
| 1319 |
address
the following subjects: |
| 1320 |
1. The
role of the board in conducting the day-to-day |
| 1321 |
affairs
of the association on behalf of, and in the best |
| 1322 |
interests
of, the owners. |
| 1323 |
2. The
board's responsibility to provide advance notice of |
| 1324 |
board and
membership meetings. |
| 1325 |
3. The
rights of owners to attend and speak at board and |
| 1326 |
membership
meetings. |
| 1327 |
4. The
responsibility of the board and of owners with |
| 1328 |
respect
to maintenance of the condominium property. |
| 1329 |
5. The
responsibility of the board and owners to abide by |
| 1330 |
the
condominium documents, this chapter, rules promulgated by |
| 1331 |
the
division, and reasonable rules promulgated by the board. |
| 1332 |
6. Owners'
rights to inspect and copy association records |
| 1333 |
and the
limitations on such rights. |
| 1334 |
7. Remedies
available to owners with respect to actions by |
| 1335 |
the board
which may be abusive or beyond the board's power and |
| 1336 |
authority. |
| 1337 |
8. The
right of the board to hire a property management |
| 1338 |
firm,
subject to its own primary responsibility for such |
| 1339 |
management. |
| 1340 |
9. The
responsibility of owners with regard to payment of |
| 1341 |
regular
or special assessments necessary for the operation of |
| 1342 |
the
property and the potential consequences of failure to pay |
| 1343 |
such
assessments. |
| 1344 |
10. The
voting rights of owners. |
| 1345 |
11. Rights
and obligations of the board in enforcement of |
| 1346 |
rules in
the condominium documents and rules adopted by the |
| 1347 |
board. |
| 1348 |
|
| 1349 |
The
governance form shall also include the following statement |
| 1350 |
in
conspicuous type: "This publication is intended as an |
| 1351 |
informal
educational overview of condominium governance. In the |
| 1352 |
event of
a conflict the provisions of chapter 718, Florida |
| 1353 |
Statutes;
rules promulgated by the Division of Florida Land |
| 1354 |
Sales,
Condominiums, and Mobile Homes of the Department of |
| 1355 |
Business
and Professional Regulation; the provisions of the |
| 1356 |
condominium
documents; and reasonable rules promulgated by the |
| 1357 |
condominium
association's board of administration prevail over |
| 1358 |
the
contents of this publication." |
| 1359 |
Section
14. Paragraphs (b) and (c) of subsection (2), |
| 1360 |
paragraphs (a) and (c) of
subsection (5), paragraphs (b), (c), |
| 1361 |
(d), (f), and (g) of
subsection (6), and paragraphs (a), (b), |
| 1362 |
and (c) of subsection (7) of
section 720.303, Florida Statutes, |
| 1363 |
are amended, and subsection
(12) is added to that section, to |
| 1364 |
read: |
| 1365 |
720.303 Association
powers and duties; meetings of board; |
| 1366 |
official records; budgets;
financial reporting; association |
| 1367 |
funds; recalls.-- |
| 1368 |
(2) BOARD
MEETINGS.-- |
| 1369 |
(b) Members
have the right to attend all meetings of the |
| 1370 |
board and to speak on
any matter placed on the agenda by |
| 1371 |
petition
of the voting interests for at least 3 minutes on
any |
| 1372 |
matter
placed on the agenda. Members may also address the |
| 1373 |
meeting
on nonagenda issues following the completion of the |
| 1374 |
regular
agenda during a new business heading. The association |
| 1375 |
may adopt written reasonable
rules expanding the right of |
| 1376 |
members to speak and
governing the frequency, duration, and |
| 1377 |
other manner of member
statements, which rules must be |
| 1378 |
consistent with this
paragraph and may include a sign-up sheet |
| 1379 |
for members wishing to
speak. Notwithstanding any other law, the |
| 1380 |
requirement that board
meetings and committee meetings be open |
| 1381 |
to the members is
inapplicable to meetings between the board or |
| 1382 |
a committee to
discuss proposed or pending litigation with and |
| 1383 |
the association's attorney,
with respect to meetings of the |
| 1384 |
board held for the purpose
of discussing personnel matters. |
| 1385 |
(c) The
bylaws shall provide for giving notice to parcel |
| 1386 |
owners and members of all
board meetings and, if they do not do |
| 1387 |
so, shall be deemed to
provide the following: |
| 1388 |
1. Notices
of all regular board meetings must
be posted in |
| 1389 |
a conspicuous place in the
community at least 48 hours in |
| 1390 |
advance of a meeting, except
in an emergency. Notice of special |
| 1391 |
board
meetings may be made with less than 48 hours' notice in |
| 1392 |
cases of
sudden, unforeseen happenings that require action to |
| 1393 |
protect
lives or property of the association's members. In the |
| 1394 |
alternative, if notice is
not posted in a conspicuous place in |
| 1395 |
the community, notice of
each board meeting must be mailed or |
| 1396 |
delivered to each member at
least 7 days before the meeting, |
| 1397 |
except in an emergency.
Notwithstanding this general notice |
| 1398 |
requirement, for communities
with more than 100 members, the |
| 1399 |
bylaws may provide for a
reasonable alternative to posting or |
| 1400 |
mailing of notice for each
board meeting, including publication |
| 1401 |
of notice, provision of a
schedule of board meetings, or the |
| 1402 |
conspicuous posting and
repeated broadcasting of the notice on a |
| 1403 |
closed-circuit cable
television system serving the homeowners' |
| 1404 |
association. However, if
broadcast notice is used in lieu of a |
| 1405 |
notice posted physically in
the community, the notice must be |
| 1406 |
broadcast at least four
times every broadcast hour of each day |
| 1407 |
that a posted notice is
otherwise required. When broadcast |
| 1408 |
notice is provided, the
notice and agenda must be broadcast in a |
| 1409 |
manner and for a sufficient
continuous length of time so as to |
| 1410 |
allow an average reader to
observe the notice and read and |
| 1411 |
comprehend the entire
content of the notice and the agenda. The |
| 1412 |
bylaws or amended bylaws may
provide for giving notice by |
| 1413 |
electronic transmission in a
manner authorized by law for |
| 1414 |
meetings of the board of
directors, committee meetings requiring |
| 1415 |
notice under this section,
and annual and special meetings of |
| 1416 |
the members; however, a
member must consent in writing to |
| 1417 |
receiving notice by
electronic transmission. |
| 1418 |
2. An
assessment may not be levied at a board meeting |
| 1419 |
unless the notice of the
meeting includes a statement that |
| 1420 |
assessments will be
considered and the nature of the |
| 1421 |
assessments. Written notice
of any meeting at which special |
| 1422 |
assessments will be
considered or at which amendments to rules |
| 1423 |
regarding parcel use will be
considered must be mailed, |
| 1424 |
delivered, or electronically
transmitted to the members and |
| 1425 |
parcel owners and posted
conspicuously on the property or |
| 1426 |
broadcast on closed-circuit
cable television not less than 14 |
| 1427 |
days before the meeting,
except in cases of sudden, unforeseen |
| 1428 |
happenings
that require action to protect lives or property of |
| 1429 |
the
association's members. |
| 1430 |
3. Directors
may not vote by proxy or by secret ballot at |
| 1431 |
board meetings, except that
secret ballots may be used in the |
| 1432 |
election of officers. This
subsection also applies to the |
| 1433 |
meetings of any committee or
other similar body, when a final |
| 1434 |
decision will be made
regarding the expenditure of association |
| 1435 |
funds, and to any body
vested with the power to approve or |
| 1436 |
disapprove architectural
decisions with respect to a specific |
| 1437 |
parcel of residential
property owned by a member of the |
| 1438 |
community. |
| 1439 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
| 1440 |
records shall be maintained
within the state and must be open to |
| 1441 |
inspection and available for
photocopying by members or their |
| 1442 |
authorized agents at
reasonable times and places within 10 |
| 1443 |
business days after receipt
of a written request for access. |
| 1444 |
This subsection may be
complied with by having a copy of the |
| 1445 |
official records available
for inspection or copying in the |
| 1446 |
community. If the
association has a photocopy machine available |
| 1447 |
where the records are
maintained, it must provide parcel owners |
| 1448 |
with copies on request
during the inspection if the entire |
| 1449 |
request is limited to no
more than 25 pages. |
| 1450 |
(a) The
failure of an association to provide access to the |
| 1451 |
records within 10 business
days after receipt of a written |
| 1452 |
request submitted
by certified mail, return receipt requested, |
| 1453 |
creates a rebuttable
presumption that the association willfully |
| 1454 |
failed to comply with this
subsection. |
| 1455 |
(c) The
association may adopt reasonable written rules |
| 1456 |
governing the frequency,
time, location, notice, records to be |
| 1457 |
inspected, and manner of
inspections, but may not impose a |
| 1458 |
requirement that a parcel
owner demonstrate any proper purpose |
| 1459 |
for the inspection, state
any reason for the inspection, or |
| 1460 |
limit a parcel owner's right
to inspect records to less than one |
| 1461 |
8-hour business day per
month. The association may impose fees |
| 1462 |
to cover the costs of
providing copies of the official records, |
| 1463 |
including, without
limitation, the costs of copying. The |
| 1464 |
association may charge up to
50 cents per page for copies made |
| 1465 |
on the association's
photocopier. If the association does not |
| 1466 |
have a photocopy machine
available where the records are kept, |
| 1467 |
or if the records requested
to be copied exceed 25 pages in |
| 1468 |
length, the association may
have copies made by an outside |
| 1469 |
vendor or
association management company personnel and may |
| 1470 |
charge the actual cost of
copying, including any reasonable |
| 1471 |
costs
involving personnel fees and charges at an hourly rate for |
| 1472 |
employee
time to cover administrative costs to the association. |
| 1473 |
The association shall
maintain an adequate number of copies of |
| 1474 |
the recorded governing
documents, to ensure their availability |
| 1475 |
to members and prospective
members. Notwithstanding the |
| 1476 |
provisions of this
paragraph, the following records shall not be |
| 1477 |
accessible to members or
parcel owners: |
| 1478 |
1. Any
record protected by the lawyer-client privilege as |
| 1479 |
described in s. 90.502 and
any record protected by the work- |
| 1480 |
product privilege,
including, but not limited to, any record |
| 1481 |
prepared by an association
attorney or prepared at the |
| 1482 |
attorney's express direction
which reflects a mental impression, |
| 1483 |
conclusion, litigation
strategy, or legal theory of the attorney |
| 1484 |
or the association and was
prepared exclusively for civil or |
| 1485 |
criminal litigation or for
adversarial administrative |
| 1486 |
proceedings or which was
prepared in anticipation of imminent |
| 1487 |
civil or criminal litigation
or imminent adversarial |
| 1488 |
administrative proceedings
until the conclusion of the |
| 1489 |
litigation or adversarial
administrative proceedings. |
| 1490 |
2. Information
obtained by an association in connection |
| 1491 |
with the approval of the
lease, sale, or other transfer of a |
| 1492 |
parcel. |
| 1493 |
3. Disciplinary,
health, insurance, and personnel records |
| 1494 |
of the association's
employees. |
| 1495 |
4. Medical
records of parcel owners or community |
| 1496 |
residents. |
| 1497 |
(6) BUDGETS.-- |
| 1498 |
(b) In
addition to annual operating expenses, the budget |
| 1499 |
may include reserve accounts
for capital expenditures and |
| 1500 |
deferred maintenance for
which the association is responsible. |
| 1501 |
To the
extent that such reserve accounts are not created or |
| 1502 |
established
pursuant to paragraph (d), funding of such reserves |
| 1503 |
shall
be limited to the extent that the governing documents do |
| 1504 |
not limit increases
in assessments, including reserves. If the |
| 1505 |
budget of the association
includes reserve accounts created or |
| 1506 |
established
pursuant to paragraph (d), such reserves shall be |
| 1507 |
determined, maintained, and
waived in the manner provided in |
| 1508 |
this subsection. Once an
association provides for reserve |
| 1509 |
accounts created
or established pursuant to paragraph (d) in the |
| 1510 |
budget, the association
shall thereafter determine, maintain, |
| 1511 |
and waive reserves in
compliance with this subsection. Nothing |
| 1512 |
in this
section precludes termination of a reserve account |
| 1513 |
established
pursuant to this paragraph upon approval of a |
| 1514 |
majority
of the voting interests of the association. Upon such |
| 1515 |
approval,
the terminating reserve account shall be removed from |
| 1516 |
the
budget. |
| 1517 |
(c)1. If
the budget of the association does not provide |
| 1518 |
for reserve accounts created
or established pursuant to |
| 1519 |
paragraph
(d) governed by this subsection
and the association is |
| 1520 |
responsible for the repair
and maintenance of capital |
| 1521 |
improvements that may result
in a special assessment if reserves |
| 1522 |
are not provided, each
financial report for the preceding fiscal |
| 1523 |
year required by subsection
(7) shall contain the following |
| 1524 |
statement in conspicuous
type: THE BUDGET OF THE ASSOCIATION |
| 1525 |
DOES NOT PROVIDE FOR RESERVE
ACCOUNTS FOR CAPITAL EXPENDITURES |
| 1526 |
AND DEFERRED MAINTENANCE
THAT MAY RESULT IN SPECIAL ASSESSMENTS. |
| 1527 |
OWNERS MAY ELECT TO PROVIDE
FOR RESERVE ACCOUNTS PURSUANT TO THE |
| 1528 |
PROVISIONS OF SECTION
720.303(6), FLORIDA STATUTES, UPON THE |
| 1529 |
APPROVAL OF NOT LESS THAN A
MAJORITY OF THE TOTAL VOTING |
| 1530 |
INTERESTS OF THE ASSOCIATION
ATTAINED BY VOTE OF THE MEMBERS AT |
| 1531 |
A MEETING
OR BY WRITTEN CONSENT EXECUTED BY A MAJORITY OF THE |
| 1532 |
VOTING
INTERESTS. |
| 1533 |
2. If
the budget of the association does provide for |
| 1534 |
funding
of accounts for deferred expenditures, including, but |
| 1535 |
not
limited to, funds for capital expenditures and deferred |
| 1536 |
maintenance,
but such accounts are not created or established |
| 1537 |
pursuant
to paragraph (d), each financial report for the |
| 1538 |
preceding
fiscal year required by subsection (7) shall also |
| 1539 |
contain
the following statement in conspicuous type: THE BUDGET |
| 1540 |
OF THE
ASSOCIATION DOES PROVIDE FOR LIMITED VOLUNTARY DEFERRED |
| 1541 |
EXPENDITURE
ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND |
| 1542 |
DEFERRED
MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN |
| 1543 |
OUR
GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO |
| 1544 |
PROVIDE
FOR RESERVE ACCOUNTS PURSUANT TO THE PROVISIONS OF |
| 1545 |
SECTION
720.303(6), FLORIDA STATUTES, THESE FUNDS ARE NOT |
| 1546 |
SUBJECT
TO THE RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN |
| 1547 |
THAT
STATUTE, NOR ARE RESERVES CALCULATED IN ACCORDANCE WITH |
| 1548 |
THAT
STATUTE. |
| 1549 |
(d) An
association shall be deemed to have provided for |
| 1550 |
reserve accounts when
reserve accounts have been initially |
| 1551 |
established by the developer
or when the membership of the |
| 1552 |
association affirmatively
elects to provide for reserves. If |
| 1553 |
reserve accounts are not
initially provided for by the |
| 1554 |
developer, the membership of
the association may elect to do so |
| 1555 |
upon the affirmative
approval of not less than a majority of the |
| 1556 |
total voting interests of
the association. Such approval may be |
| 1557 |
attained by vote of the
members at a duly called meeting of the |
| 1558 |
membership or upon a written
consent executed by not less than a |
| 1559 |
majority of the total voting
interests in the community. The |
| 1560 |
approval action of the
membership shall state that reserve |
| 1561 |
accounts shall be provided
for in the budget and shall designate |
| 1562 |
the components for which the
reserve accounts are to be |
| 1563 |
established. Upon approval
by the membership, the board of |
| 1564 |
directors shall provide for
the required reserve accounts for |
| 1565 |
inclusion in the budget in
the next fiscal year following the |
| 1566 |
approval and in each year
thereafter. Once established as |
| 1567 |
provided in this subsection,
the reserve accounts shall be |
| 1568 |
funded or maintained or
shall have their funding waived in the |
| 1569 |
manner provided in paragraph
(f). |
| 1570 |
(f) After
one or more Once a reserve account
or reserve |
| 1571 |
accounts are established,
the membership of the association, |
| 1572 |
upon a majority vote at a
meeting at which a quorum is present, |
| 1573 |
may provide for no reserves
or less reserves than required by |
| 1574 |
this section. If a meeting
of the unit owners has been called to |
| 1575 |
determine whether to waive
or reduce the funding of reserves and |
| 1576 |
no such result is achieved
or a quorum is not present, the |
| 1577 |
reserves as included in the
budget shall go into effect. After |
| 1578 |
the turnover, the developer
may vote its voting interest to |
| 1579 |
waive or reduce the funding
of reserves. Any vote taken pursuant |
| 1580 |
to this subsection to waive
or reduce reserves shall be |
| 1581 |
applicable only to one
budget year. |
| 1582 |
(g) Funding
formulas for reserves authorized by this |
| 1583 |
section shall be based on
either a separate analysis of each of |
| 1584 |
the required assets or a
pooled analysis of two or more of the |
| 1585 |
required assets. |
| 1586 |
1. If
the association maintains separate reserve accounts |
| 1587 |
for each of the required
assets, the amount of the contribution |
| 1588 |
to each reserve account
shall be the sum of the following two |
| 1589 |
calculations: |
| 1590 |
a. The
total amount necessary, if any, to bring a negative |
| 1591 |
component balance to zero. |
| 1592 |
b. The
total estimated deferred maintenance expense or |
| 1593 |
estimated replacement cost
of the reserve component less the |
| 1594 |
estimated balance of the
reserve component as of the beginning |
| 1595 |
of the period for which the
budget will be in effect. The |
| 1596 |
remainder, if greater than
zero, shall be divided by the |
| 1597 |
estimated remaining useful
life of the component. |
| 1598 |
|
| 1599 |
The formula may be adjusted
each year for changes in estimates |
| 1600 |
and deferred maintenance
performed during the year and may |
| 1601 |
include factors such as
inflation and earnings on invested |
| 1602 |
funds. |
| 1603 |
2. If
the association maintains a pooled account of two or |
| 1604 |
more of the required reserve
assets, the amount of the |
| 1605 |
contribution to the pooled
reserve account as disclosed on the |
| 1606 |
proposed budget shall not be
less than that required to ensure |
| 1607 |
that the balance on hand at
the beginning of the period for |
| 1608 |
which the budget will go
into effect plus the projected annual |
| 1609 |
cash inflows over the
remaining estimated useful life of all of |
| 1610 |
the assets that make up the
reserve pool are equal to or greater |
| 1611 |
than the projected annual
cash outflows over the remaining |
| 1612 |
estimated useful lives of
all of the assets that make up the |
| 1613 |
reserve pool, based on the
current reserve analysis. The |
| 1614 |
projected annual cash
inflows may include estimated earnings |
| 1615 |
from investment of principal
and accounts receivable minus the |
| 1616 |
allowance
for doubtful accounts. The reserve funding formula |
| 1617 |
shall not include any type
of balloon payments. |
| 1618 |
(7) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 1619 |
the fiscal year, or annually
on the date provided in the bylaws, |
| 1620 |
the association shall
prepare and complete, or contract with a |
| 1621 |
third party for the
preparation and completion of, a financial |
| 1622 |
report for the preceding
fiscal year. Within 21 days after the |
| 1623 |
final financial report is
completed by the association or |
| 1624 |
received from the third
party, but not later than 120 days after |
| 1625 |
the end of the fiscal year
or other date as provided in the |
| 1626 |
bylaws, the association
shall, within the time limits set forth |
| 1627 |
in subsection (5), provide
each member with a copy of the annual |
| 1628 |
financial report or a
written notice that a copy of the |
| 1629 |
financial report is
available upon request at no charge to the |
| 1630 |
member. Financial reports
shall be prepared as follows: |
| 1631 |
(a) An
association that meets the criteria of this |
| 1632 |
paragraph shall prepare or
cause to be prepared a complete set |
| 1633 |
of financial statements in
accordance with generally accepted |
| 1634 |
accounting principles as
adopted by the Board of Accountancy. |
| 1635 |
The financial statements
shall be based upon the association's |
| 1636 |
total annual revenues, as
follows: |
| 1637 |
1. An
association with total annual revenues of $150,000 |
| 1638 |
$100,000
or more, but less than $300,000 $200,000,
shall prepare |
| 1639 |
compiled financial
statements. |
| 1640 |
2. An
association with total annual revenues of at least |
| 1641 |
$300,000
$200,000, but less than $600,000
$400,000, shall |
| 1642 |
prepare reviewed financial
statements. |
| 1643 |
3. An
association with total annual revenues of $600,000 |
| 1644 |
$400,000
or more shall prepare audited financial statements. |
| 1645 |
(b)1. An
association with total annual revenues of less |
| 1646 |
than $150,000
$100,000 shall prepare a report of
cash receipts |
| 1647 |
and expenditures. |
| 1648 |
2. An
association in a community of fewer than 50 parcels, |
| 1649 |
regardless of the
association's annual revenues, may prepare a |
| 1650 |
report of cash receipts and
expenditures in lieu of financial |
| 1651 |
statements required by
paragraph (a) unless the governing |
| 1652 |
documents provide otherwise. |
| 1653 |
3. A
report of cash receipts and disbursement must |
| 1654 |
disclose the amount of
receipts by accounts and receipt |
| 1655 |
classifications and the
amount of expenses by accounts and |
| 1656 |
expense classifications,
including, but not limited to, the |
| 1657 |
following, as applicable:
costs for security, professional, and |
| 1658 |
management fees and
expenses; taxes; costs for recreation |
| 1659 |
facilities; expenses for
refuse collection and utility services; |
| 1660 |
expenses for lawn care;
costs for building maintenance and |
| 1661 |
repair; insurance costs;
administration and salary expenses; and |
| 1662 |
reserves if maintained by
the association. |
| 1663 |
(c) If
20 percent of the parcel owners petition the board |
| 1664 |
for a level of financial
reporting higher than that required by |
| 1665 |
this section, the
association shall duly notice and hold a |
| 1666 |
meeting of members within 30
days of receipt of the petition for |
| 1667 |
the purpose of voting on
raising the level of reporting for that |
| 1668 |
fiscal year. Upon approval
of a majority of the total voting |
| 1669 |
interests of the parcel
owners, the association shall prepare or |
| 1670 |
cause to be prepared, shall
amend the budget or adopt a special |
| 1671 |
assessment to pay for the
financial report regardless of any |
| 1672 |
provision to the contrary in
the governing documents, and shall |
| 1673 |
provide within 120 90
days of the meeting or the end of the |
| 1674 |
fiscal year, whichever
occurs later: |
| 1675 |
1. Compiled,
reviewed, or audited financial statements, if |
| 1676 |
the association is otherwise
required to prepare a report of |
| 1677 |
cash receipts and
expenditures; |
| 1678 |
2. Reviewed
or audited financial statements, if the |
| 1679 |
association is otherwise
required to prepare compiled financial |
| 1680 |
statements; or |
| 1681 |
3. Audited
financial statements if the association is |
| 1682 |
otherwise required to
prepare reviewed financial statements. |
| 1683 |
(12) COMPENSATION
PROHIBITED.--A director, officer, or |
| 1684 |
committee
member of the association may not receive directly or |
| 1685 |
indirectly
any salary or compensation from the association for |
| 1686 |
performance
of duties as a director, officer, or committee |
| 1687 |
member
and such person may not in any other way benefit |
| 1688 |
financially
from service to the association. This subsection |
| 1689 |
shall not
be construed to preclude: |
| 1690 |
(a) Participation
by such person in a financial benefit |
| 1691 |
accruing
to all or a significant number of members as a result |
| 1692 |
of
actions lawfully taken by the board or a committee of which |
| 1693 |
he or she
is a member, including, but not limited to, routine |
| 1694 |
maintenance,
repair, or replacement of community assets; |
| 1695 |
(b) Reimbursement
for out-of-pocket expenses incurred by |
| 1696 |
such
person on behalf of the association, subject to approval of |
| 1697 |
such
reimbursement in accordance with procedures established by |
| 1698 |
the
association's governing documents or, in the absence of such |
| 1699 |
procedures,
in accordance with an approval process established |
| 1700 |
by the
board; or |
| 1701 |
(c) Any
recovery of insurance proceeds derived from a |
| 1702 |
policy of
insurance maintained by the association for the |
| 1703 |
benefit
of its members. |
| 1704 |
Section
15. Subsections (1), (2), and (3) of section |
| 1705 |
720.305, Florida Statutes,
are amended to read: |
| 1706 |
720.305 Obligations
of members; remedies at law or in |
| 1707 |
equity; levy of fines and
suspension of use rights; failure to |
| 1708 |
fill sufficient number of
vacancies on board of directors to |
| 1709 |
constitute a quorum;
appointment of receiver upon petition of |
| 1710 |
any member.-- |
| 1711 |
(1) Each
member and the member's tenants, guests, and |
| 1712 |
invitees, and each
association, are governed by, and must comply |
| 1713 |
with, this chapter, the
governing documents of the community, |
| 1714 |
and the rules of the
association. Actions at law or in equity, |
| 1715 |
or both, to redress alleged
failure or refusal to comply with |
| 1716 |
these provisions may be
brought by the association or by any |
| 1717 |
member against: |
| 1718 |
(a) The
association; |
| 1719 |
(b) A
member; |
| 1720 |
(c) Any
director or officer of an association who |
| 1721 |
willfully and knowingly
fails to comply with these provisions; |
| 1722 |
and |
| 1723 |
(d) Any
tenants, guests, or invitees occupying a parcel or |
| 1724 |
using the common areas. |
| 1725 |
|
| 1726 |
The prevailing party in any
such litigation is entitled to |
| 1727 |
recover reasonable
attorney's fees and costs. A member |
| 1728 |
prevailing in an action
between the association and the member |
| 1729 |
under this section, in
addition to recovering his or her |
| 1730 |
reasonable attorney's fees,
may recover additional amounts as |
| 1731 |
determined by the court to
be necessary to reimburse the member |
| 1732 |
for his or her share of
assessments levied by the association to |
| 1733 |
fund its expenses of the
litigation. The prevailing party in any |
| 1734 |
such
litigation is entitled to recover reasonable attorney's |
| 1735 |
fees and
costs, including reasonable postjudgment attorney's |
| 1736 |
fees and
costs, provided the court retains jurisdiction to |
| 1737 |
enforce
the judgment. This relief does not exclude other |
| 1738 |
remedies provided by law.
This section does not deprive any |
| 1739 |
person of any other
available right or remedy. |
| 1740 |
(2) If
the governing documents so provide, an association |
| 1741 |
may suspend, for a
reasonable period of time, the rights of a |
| 1742 |
member or a member's
tenants, guests, or invitees, or both, to |
| 1743 |
use common areas and
facilities and may levy reasonable fines, |
| 1744 |
not to exceed $100 per
violation, against any member or any |
| 1745 |
tenant, guest, or invitee. A
fine may be levied on the basis of |
| 1746 |
each day of a continuing
violation, with a single notice and |
| 1747 |
opportunity for hearing,
except that no such fine shall exceed |
| 1748 |
$1,000 in the aggregate
unless otherwise provided in the |
| 1749 |
governing documents. A fine of
less than $1,000 shall not become |
| 1750 |
a lien against a parcel. In
any action to recover a fine, the |
| 1751 |
prevailing party is entitled
to collect its reasonable |
| 1752 |
attorney's fees and costs
from the nonprevailing party as |
| 1753 |
determined by the court. |
| 1754 |
(a) A
fine or suspension may not be imposed without notice |
| 1755 |
of at least 14 days to the
person sought to be fined or |
| 1756 |
suspended and an opportunity
for a hearing before a committee of |
| 1757 |
at least three members
appointed by the board who are not |
| 1758 |
officers, directors, or
employees of the association, or the |
| 1759 |
spouse, parent, child,
brother, or sister of an officer, |
| 1760 |
director, or employee. If
the committee, by majority vote, does |
| 1761 |
not approve a proposed fine
or suspension, it may not be |
| 1762 |
imposed. |
| 1763 |
(b) The
requirements of this subsection do not apply to |
| 1764 |
the imposition of
suspensions or fines upon any member because |
| 1765 |
of the failure of the member
to pay assessments or other charges |
| 1766 |
when due if such action is
authorized by the governing |
| 1767 |
documents. |
| 1768 |
(c) Suspension
of common-area-use rights shall not impair |
| 1769 |
the right of an owner or
tenant of a parcel to have vehicular |
| 1770 |
and pedestrian ingress to
and egress from the parcel, including, |
| 1771 |
but not limited to, the
right to park. |
| 1772 |
(3) Unless
If the governing documents so
provide |
| 1773 |
otherwise,
an association may suspend the voting rights of a |
| 1774 |
member for the nonpayment of
regular annual assessments that are |
| 1775 |
delinquent in excess of 90
days. |
| 1776 |
Section
16. Subsections (3), (5), (8), and (9) of section |
| 1777 |
720.306, Florida Statutes,
are amended to read: |
| 1778 |
720.306 Meetings
of members; voting and election |
| 1779 |
procedures; amendments.-- |
| 1780 |
(3) SPECIAL
MEETINGS.--Special meetings must be held when |
| 1781 |
called by the board of
directors or, unless a different |
| 1782 |
percentage is stated in the
governing documents, by at least 10 |
| 1783 |
percent of the total voting
interests of the association or when |
| 1784 |
sudden,
unforeseen happenings occur that require action to |
| 1785 |
protect
lives or property of the association's members. Business |
| 1786 |
conducted at a special
meeting is limited to the purposes |
| 1787 |
described in the notice of
the meeting. |
| 1788 |
(5) NOTICE
OF MEETINGS.--The bylaws shall provide for |
| 1789 |
giving notice to members of
all member meetings, and if they do |
| 1790 |
not do so shall be deemed to
provide the following: The |
| 1791 |
association shall give all
parcel owners and members actual |
| 1792 |
notice of all membership
meetings, which shall be mailed, |
| 1793 |
delivered, or electronically
transmitted to the members not less |
| 1794 |
than 14 days prior to the
meeting. Evidence of compliance with |
| 1795 |
this 14-day notice shall be
made by an affidavit executed by the |
| 1796 |
person providing the notice
and filed upon execution among the |
| 1797 |
official records of the
association. Notice of a special meeting |
| 1798 |
shall be
made at least 48 hours in advance or less than that in |
| 1799 |
case of
any sudden, unforeseen happening that requires action to |
| 1800 |
protect
lives or property of the association's members. In |
| 1801 |
addition to mailing,
delivering, or electronically transmitting |
| 1802 |
the notice of any meeting,
the association may, by reasonable |
| 1803 |
rule, adopt a procedure for
conspicuously posting and repeatedly |
| 1804 |
broadcasting the notice and
the agenda on a closed-circuit cable |
| 1805 |
television system serving
the association. When broadcast notice |
| 1806 |
is provided, the notice and
agenda must be broadcast in a manner |
| 1807 |
and for a sufficient
continuous length of time so as to allow an |
| 1808 |
average reader to observe
the notice and read and comprehend the |
| 1809 |
entire content of the notice
and the agenda. |
| 1810 |
(8) PROXY
VOTING.--The members have the right, unless |
| 1811 |
otherwise provided in this
subsection or in the governing |
| 1812 |
documents, to vote in person
or by proxy. |
| 1813 |
(a) To
be valid, a proxy must be dated, must state the |
| 1814 |
date, time, and place of the
meeting for which it was given, and |
| 1815 |
must be signed by the
authorized person who executed the proxy. |
| 1816 |
A proxy is effective only
for the specific meeting for which it |
| 1817 |
was originally given, as the
meeting may lawfully be adjourned |
| 1818 |
and reconvened from time to
time, and automatically expires 90 |
| 1819 |
days after the date of the
meeting for which it was originally |
| 1820 |
given. A proxy is revocable
at any time at the pleasure of the |
| 1821 |
person who executes it. If
the proxy form expressly so provides, |
| 1822 |
any proxy holder may
appoint, in writing, a substitute to act in |
| 1823 |
his or her place. |
| 1824 |
(b) If
the governing documents require a secret ballot, |
| 1825 |
the
absentee ballot must be enclosed in a blank envelope that |
| 1826 |
shall be
placed inside another envelope bearing the required |
| 1827 |
information
and signature. After the owner's eligibility to vote |
| 1828 |
has been
verified and before the ballots are counted, the blank |
| 1829 |
envelope
shall be removed from the envelope bearing the |
| 1830 |
information
and signature and added to the ballots of the |
| 1831 |
members
voting in person or by proxy. Absentee ballots must be |
| 1832 |
mailed or
hand delivered to the place specified in the notice of |
| 1833 |
the
meeting at which the election will be held, not later than |
| 1834 |
the date
specified in such notice. |
| 1835 |
(9) ELECTIONS;
BOARD MEMBER CERTIFICATION.-- |
| 1836 |
(a) Elections
of directors must be conducted in accordance |
| 1837 |
with the procedures set
forth in the governing documents of the |
| 1838 |
association. All members of
the association shall be eligible to |
| 1839 |
serve on the board of
directors, and a member may nominate |
| 1840 |
himself or herself as a
candidate for the board at a meeting |
| 1841 |
where the election is to be
held or, in the case of an election |
| 1842 |
process
that allows voting by absentee ballot, in advance of the |
| 1843 |
balloting.
Except as otherwise provided in the governing |
| 1844 |
documents, boards of
directors must be elected by a plurality of |
| 1845 |
the votes cast by eligible
voters. Any election dispute between |
| 1846 |
a member and an association
must be submitted to mandatory |
| 1847 |
binding arbitration with the
division. Such proceedings shall be |
| 1848 |
conducted in the manner
provided by s. 718.1255 and the |
| 1849 |
procedural rules adopted by
the division. |
| 1850 |
(b) Within
30 days after being elected to the board of |
| 1851 |
directors,
a new director shall certify in writing to the |
| 1852 |
secretary
of the association that he or she has read the |
| 1853 |
association's
declarations of covenants and restrictions, |
| 1854 |
articles
of incorporation, bylaws, and current written policies |
| 1855 |
and that
he or she will work to uphold each to the best of his |
| 1856 |
or her
ability and will faithfully discharge his or her |
| 1857 |
fiduciary
responsibility to the association's members. Failure |
| 1858 |
to timely
file such statement shall automatically disqualify the |
| 1859 |
director
from service on the association's board of directors. |
| 1860 |
The
secretary shall cause the association to retain a director's |
| 1861 |
certification
for inspection by the membership of the |
| 1862 |
association
for a period of 5 years after a director's election. |
| 1863 |
Failure
to have such certification on file shall not affect the |
| 1864 |
validity
of any appropriate action. |
| 1865 |
(c) Any
director who has unexcused absences from three |
| 1866 |
consecutive
board meetings shall be deemed to have submitted his |
| 1867 |
or her
resignation from the board. |
| 1868 |
Section
17. Subsection (5) is added to section 720.307, |
| 1869 |
Florida Statutes, to read: |
| 1870 |
720.307 Transition
of association control in a |
| 1871 |
community.--With respect to
homeowners' associations: |
| 1872 |
(5) Except
where precluded by the association's governing |
| 1873 |
documents,
the board of directors of the association may levy |
| 1874 |
assessments
on an unimproved parcel in the same amounts as |
| 1875 |
assessments
on improved parcels if that parcel is not improved |
| 1876 |
within 5
years after the date the parcel was sold by the |
| 1877 |
developer. |
| 1878 |
Section
18. Paragraph (d) is added to subsection (1) of |
| 1879 |
section 720.3075, Florida
Statutes, to read: |
| 1880 |
720.3075 Prohibited
clauses in association documents.-- |
| 1881 |
(1) It
is declared that the public policy of this state |
| 1882 |
prohibits the inclusion or
enforcement of certain types of |
| 1883 |
clauses in homeowners'
association documents, including |
| 1884 |
declaration of covenants,
articles of incorporation, bylaws, or |
| 1885 |
any other document of the
association which binds members of the |
| 1886 |
association, which either
have the effect of or provide that: |
| 1887 |
(d) The
builder or developers are not liable for defects |
| 1888 |
in the
construction of common areas or parcels and improvements |
| 1889 |
on common
areas, or that the developer or builders do not |
| 1890 |
warranty
that the common areas and parcels, and any improvements |
| 1891 |
constructed
on common areas, are free from defects for any |
| 1892 |
period
less than 10 years after completion of such areas, |
| 1893 |
parcels,
or improvements. |
| 1894 |
|
| 1895 |
Such clauses are declared
null and void as against the public |
| 1896 |
policy of this state. |
| 1897 |
Section
19. Paragraph (a) of subsection (4) of section |
| 1898 |
720.308, Florida Statutes,
is amended to read: |
| 1899 |
720.308 Assessments
and charges.-- |
| 1900 |
(4) CASH
FUNDING REQUIREMENTS DURING GUARANTEE.--The cash |
| 1901 |
payments required from the
guarantor during the guarantee period |
| 1902 |
shall be determined as
follows: |
| 1903 |
(a) If
at any time during the guarantee period the funds |
| 1904 |
collected from member
assessments at the guaranteed level and |
| 1905 |
other revenues collected by
the association are not sufficient |
| 1906 |
to provide payment, on a
timely basis, of all accounts payable |
| 1907 |
of
the association assessments,
including the full funding of |
| 1908 |
the reserves unless properly
waived, the guarantor shall advance |
| 1909 |
sufficient cash to the
association at the time such payments are |
| 1910 |
due. |
| 1911 |
Section
20. Paragraph (b) of subsection (4) and paragraph |
| 1912 |
(c) of subsection (6) of
section 720.3085, Florida Statutes, are |
| 1913 |
amended to read: |
| 1914 |
720.3085 Payment
for assessments; lien claims.-- |
| 1915 |
(4) A
homeowners' association may not file a claim of lien |
| 1916 |
against a parcel for unpaid
assessments unless a written notice |
| 1917 |
or demand for past due
assessments as well as any other amounts |
| 1918 |
owed to the association
pursuant to its governing documents has |
| 1919 |
been made by the
association. The written notice or demand must: |
| 1920 |
(b) Be
sent by registered or certified mail, return |
| 1921 |
receipt requested, and by
first-class United States mail to the |
| 1922 |
parcel owner at his or her
last address as reflected in the |
| 1923 |
records of the association,
if the address is within the United |
| 1924 |
States, and by
first-class United States mail to the parcel |
| 1925 |
owner subject to the demand
at the address of the parcel if the |
| 1926 |
owner's address as reflected
in the records of the association |
| 1927 |
is not the parcel address.
If the address reflected in the |
| 1928 |
records is outside the
United States, then sending the notice to |
| 1929 |
that address and to the
parcel address by first-class United |
| 1930 |
States mail is sufficient. |
| 1931 |
(6) If
after service of a summons on a complaint to |
| 1932 |
foreclose a lien the parcel
is not the subject of a mortgage |
| 1933 |
foreclosure or a notice of
tax certificate sale, or the parcel |
| 1934 |
owner is not a debtor in
bankruptcy proceedings, the parcel |
| 1935 |
owner may serve and file
with the court a qualifying offer at |
| 1936 |
any time before the entry of
a foreclosure judgment. For |
| 1937 |
purposes of this subsection,
the term "qualifying offer" means a |
| 1938 |
written offer to pay all
amounts secured by the lien of the |
| 1939 |
association plus interest
accruing during the pendency of the |
| 1940 |
offer at the rate of
interest provided in this section. The |
| 1941 |
parcel owner may make only
one qualifying offer during the |
| 1942 |
pendency of a foreclosure
action. |
| 1943 |
(c) The
qualifying offer of the parcel owner must be in |
| 1944 |
writing;, be
signed by the owner of the parcel and the spouse of |
| 1945 |
the owner if the spouse
holds a homestead interest in the |
| 1946 |
parcel;,
be acknowledged by a notary public;,
state the total |
| 1947 |
amount due the association, including
attorney's fees and costs |
| 1948 |
incurred
by the association in the foreclosure action that are |
| 1949 |
required
to be paid by the parcel owner; state that the total |
| 1950 |
amount due the association
is secured by the lien of the |
| 1951 |
association;,
state that the association is entitled to |
| 1952 |
foreclose the lien and
obtain a foreclosure judgment for the |
| 1953 |
total amount due if the
parcel owner breaches the qualifying |
| 1954 |
offer;,
state that the parcel owner will not endanger the |
| 1955 |
priority of the lien of the
association or the amounts secured |
| 1956 |
by the lien;,
and state the actual date or dates the association |
| 1957 |
will receive the total
amount due from the parcel owner. If the |
| 1958 |
parcel owner makes a
qualifying offer under this subsection, the |
| 1959 |
association may not add the
cost of any legal fees incurred by |
| 1960 |
the association within the
period of the stay other than costs |
| 1961 |
acquired in defense of a
mortgage foreclosure action concerning |
| 1962 |
the parcel, a bankruptcy
proceeding in which the parcel owner is |
| 1963 |
a debtor, or in response to
filings by a party other than the |
| 1964 |
association in the lien
foreclosure action of the association. |
| 1965 |
Section
21. Paragraph (a) of subsection (1) of section |
| 1966 |
720.401, Florida Statutes,
is amended to read: |
| 1967 |
720.401 Prospective
purchasers subject to association |
| 1968 |
membership requirement;
disclosure required; covenants; |
| 1969 |
assessments; contract
cancellation.-- |
| 1970 |
(1)(a) A
prospective parcel owner in a community must be |
| 1971 |
presented a disclosure
summary before executing the contract for |
| 1972 |
sale. The disclosure summary
must be in a form substantially |
| 1973 |
similar to the following
form: |
| 1974 |
|
| 1975 |
DISCLOSURE SUMMARY |
| 1976 |
FOR |
| 1977 |
(NAME OF COMMUNITY) |
| 1978 |
|
| 1979 |
1. AS
A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL |
| 1980 |
BE OBLIGATED TO BE A MEMBER
OF A HOMEOWNERS' ASSOCIATION. |
| 1981 |
2. THERE
HAVE BEEN OR WILL BE RECORDED RESTRICTIVE |
| 1982 |
COVENANTS GOVERNING THE USE
AND OCCUPANCY OF PROPERTIES IN THIS |
| 1983 |
COMMUNITY. |
| 1984 |
3. YOU
WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE |
| 1985 |
ASSOCIATION. ASSESSMENTS MAY
BE SUBJECT TO PERIODIC CHANGE. IF |
| 1986 |
APPLICABLE, THE CURRENT
AMOUNT IS $_____ PER _____. YOU WILL |
| 1987 |
ALSO BE OBLIGATED TO PAY ANY
SPECIAL ASSESSMENTS IMPOSED BY THE |
| 1988 |
ASSOCIATION. SUCH SPECIAL
ASSESSMENTS MAY BE SUBJECT TO CHANGE. |
| 1989 |
IF APPLICABLE, THE CURRENT
AMOUNT IS $_____ PER _____. |
| 1990 |
4. YOU
MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE |
| 1991 |
RESPECTIVE MUNICIPALITY,
COUNTY, OR SPECIAL DISTRICT. ALL |
| 1992 |
ASSESSMENTS ARE SUBJECT TO
PERIODIC CHANGE. |
| 1993 |
5. YOUR
FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS |
| 1994 |
LEVIED BY A MANDATORY
HOMEOWNERS' ASSOCIATION COULD RESULT IN A |
| 1995 |
LIEN ON YOUR PROPERTY. |
| 1996 |
6. THERE
MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES |
| 1997 |
FOR RECREATIONAL OR OTHER
COMMONLY USED FACILITIES AS AN |
| 1998 |
OBLIGATION OF MEMBERSHIP IN
THE HOMEOWNERS' ASSOCIATION. IF |
| 1999 |
APPLICABLE, THE CURRENT
AMOUNT IS $_____ PER _____. |
| 2000 |
7. IF
THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE |
| 2001 |
DEVELOPER,
THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE |
| 2002 |
RESTRICTIVE COVENANTS
WITHOUT THE APPROVAL OF THE ASSOCIATION |
| 2003 |
MEMBERSHIP OR THE APPROVAL
OF THE PARCEL OWNERS. |
| 2004 |
8. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE |
| 2005 |
ONLY SUMMARY IN NATURE, AND,
AS A PROSPECTIVE PURCHASER, YOU |
| 2006 |
SHOULD REFER TO THE
COVENANTS AND THE ASSOCIATION GOVERNING |
| 2007 |
DOCUMENTS BEFORE PURCHASING
PROPERTY. |
| 2008 |
9. THESE
DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND |
| 2009 |
CAN BE OBTAINED FROM THE
RECORD OFFICE IN THE COUNTY WHERE THE |
| 2010 |
PROPERTY IS LOCATED, OR ARE
NOT RECORDED AND CAN BE OBTAINED |
| 2011 |
FROM THE DEVELOPER. |
| 2012 |
10. THERE
MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES |
| 2013 |
AND/OR
FEES) TO A RESIDENTIAL COMMUNITY DEVELOPMENT DISTRICT FOR |
| 2014 |
THE
PURPOSE OF RETIRING BOND OBLIGATIONS USED TO CONSTRUCT |
| 2015 |
INFRASTRUCTURE
AND/OR OTHER IMPROVEMENTS. |
| 2016 |
11. YOU
ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS |
| 2017 |
OWNER OF
YOUR PROPERTY FOR ALL UNPAID ASSESSMENTS THAT CAME DUE |
| 2018 |
UP TO THE
TIME OF TRANSFER OF TITLE. |
| 2019 |
|
| 2020 |
DATE: PURCHASER: |
| 2021 |
PURCHASER: |
| 2022 |
The disclosure must be
supplied by the developer, or by the |
| 2023 |
parcel owner if the sale is
by an owner that is not the |
| 2024 |
developer. Any contract or
agreement for sale shall refer to and |
| 2025 |
incorporate the disclosure
summary and shall include, in |
| 2026 |
prominent language, a
statement that the potential buyer should |
| 2027 |
not execute the contract or
agreement until they have received |
| 2028 |
and read the disclosure
summary required by this section. |
| 2029 |
Section
22. This act shall take effect July 1, 2008. |