| 944 |
2. The
bylaws shall provide the method of calling meetings |
| 945 |
of unit owners, including
annual meetings. Written notice, which |
| 946 |
notice must include an
agenda, shall be mailed, hand delivered, |
| 947 |
or electronically
transmitted to each unit owner at least 14 |
| 948 |
days prior to the annual
meeting and shall be posted in a |
| 949 |
conspicuous place on the
condominium property at least 14 |
| 950 |
continuous days preceding
the annual meeting. Upon notice to the |
| 951 |
unit owners, the board
shall by duly adopted rule designate a |
| 952 |
specific location on the
condominium property or association |
| 953 |
property upon which all
notices of unit owner meetings shall be |
| 954 |
posted; however, if there
is no condominium property or |
| 955 |
association property upon
which notices can be posted, this |
| 956 |
requirement does not
apply. In lieu of or in addition to the |
| 957 |
physical posting of notice
of any meeting of the unit owners on |
| 958 |
the condominium property,
the association may, by reasonable |
| 959 |
rule, adopt a procedure
for conspicuously posting and repeatedly |
| 960 |
broadcasting the notice
and the agenda on a closed-circuit cable |
| 961 |
television system serving
the condominium association. However, |
| 962 |
if broadcast notice is
used in lieu of a notice posted |
| 963 |
physically on the
condominium property, the notice and agenda |
| 964 |
must be broadcast at least
four times every broadcast hour of |
| 965 |
each day that a posted
notice is otherwise required under this |
| 966 |
section. When broadcast
notice is provided, the notice and |
| 967 |
agenda must be broadcast
in a manner and for a sufficient |
| 968 |
continuous length of time
so as to allow an average reader to |
| 969 |
observe the notice and
read and comprehend the entire content of |
| 970 |
the notice and the agenda.
Unless a unit owner waives in writing |
| 971 |
the right to receive
notice of the annual meeting, such notice |
| 972 |
shall be hand delivered,
mailed, or electronically transmitted |
| 973 |
to each unit owner. Notice
for meetings and notice for all other |
| 974 |
purposes shall be mailed
to each unit owner at the address last |
| 975 |
furnished to the
association by the unit owner, or hand |
| 976 |
delivered to each unit
owner. However, if a unit is owned by |
| 977 |
more than one person, the
association shall provide notice, for |
| 978 |
meetings and all other
purposes, to that one address which the |
| 979 |
developer initially
identifies for that purpose and thereafter |
| 980 |
as one or more of the
owners of the unit shall so advise the |
| 981 |
association in writing, or
if no address is given or the owners |
| 982 |
of the unit do not agree,
to the address provided on the deed of |
| 983 |
record. An officer of the
association, or the manager or other |
| 984 |
person providing notice of
the association meeting, shall |
| 985 |
provide an affidavit or
United States Postal Service certificate |
| 986 |
of mailing, to be included
in the official records of the |
| 987 |
association affirming that
the notice was mailed or hand |
| 988 |
delivered, in accordance
with this provision. |
| 989 |
3. The
members of the board shall be elected by written |
| 990 |
ballot or voting machine.
Proxies shall in no event be used in |
| 991 |
electing the board, either
in general elections or elections to |
| 992 |
fill vacancies caused by
recall, resignation, or otherwise, |
| 993 |
unless otherwise provided
in this chapter. Not less than 60 days |
| 994 |
before a scheduled
election, the association shall mail, |
| 995 |
deliver, or electronically
transmit, whether by separate |
| 996 |
association mailing or
included in another association mailing, |
| 997 |
delivery, or transmission,
including regularly published |
| 998 |
newsletters, to each unit
owner entitled to a vote, a first |
| 999 |
notice of the date of the
election along with a certification |
| 1000 |
form provided by the
division attesting that he or she has read |
| 1001 |
and understands, to the
best of his or her ability, the |
| 1002 |
governing documents of
the association and the provisions of |
| 1003 |
this chapter and any
applicable rules. Any unit owner or other |
| 1004 |
eligible person desiring
to be a candidate for the board must |
| 1005 |
give written notice to the
association not less than 40 days |
| 1006 |
before a scheduled
election. Together with the written notice |
| 1007 |
and agenda as set forth in
subparagraph 2., the association |
| 1008 |
shall mail, deliver, or
electronically transmit a second notice |
| 1009 |
of the election to all
unit owners entitled to vote therein, |
| 1010 |
together with a ballot
which shall list all candidates. Upon |
| 1011 |
request of a candidate,
the association shall include an |
| 1012 |
information sheet, no
larger than 81/2 inches by 11 inches, |
| 1013 |
which must be furnished by
the candidate not less than 35 days |
| 1014 |
before the election, along
with the signed certification form |
| 1015 |
provided
for in this subparagraph, to be included with the |
| 1016 |
mailing, delivery, or
transmission of the ballot, with the costs |
| 1017 |
of mailing, delivery, or
electronic transmission and copying to |
| 1018 |
be borne by the
association. The association is not liable for |
| 1019 |
the contents of the
information sheets prepared by the |
| 1020 |
candidates. In order to
reduce costs, the association may print |
| 1021 |
or duplicate the
information sheets on both sides of the paper. |
| 1022 |
The division shall by rule
establish voting procedures |
| 1023 |
consistent with the
provisions contained herein, including rules |
| 1024 |
establishing procedures
for giving notice by electronic |
| 1025 |
transmission and rules
providing for the secrecy of ballots. |
| 1026 |
Elections shall be decided
by a plurality of those ballots cast. |
| 1027 |
There shall be no quorum
requirement; however, at least 20 |
| 1028 |
percent of the eligible
voters must cast a ballot in order to |
| 1029 |
have a valid election of
members of the board. No unit owner |
| 1030 |
shall permit any other
person to vote his or her ballot, and any |
| 1031 |
such ballots improperly
cast shall be deemed invalid, provided |
| 1032 |
any unit owner who
violates this provision may be fined by the |
| 1033 |
association in accordance
with s. 718.303. A unit owner who |
| 1034 |
needs assistance in
casting the ballot for the reasons stated in |
| 1035 |
s. 101.051 may obtain
assistance in casting the ballot. The |
| 1036 |
regular election shall
occur on the date of the annual meeting. |
| 1037 |
The provisions of this
subparagraph shall not apply to timeshare |
| 1038 |
condominium associations.
Notwithstanding the provisions of this |
| 1039 |
subparagraph, an election
is not required unless more candidates |
| 1040 |
file notices of intent to
run or are nominated than board |
| 1041 |
vacancies exist. |
| 1042 |
4. Any
approval by unit owners called for by this chapter |
| 1043 |
or the applicable
declaration or bylaws, including, but not |
| 1044 |
limited to, the approval
requirement in s. 718.111(8), shall be |
| 1045 |
made at a duly noticed
meeting of unit owners and shall be |
| 1046 |
subject to all
requirements of this chapter or the applicable |
| 1047 |
condominium documents
relating to unit owner decisionmaking, |
| 1048 |
except that unit owners
may take action by written agreement, |
| 1049 |
without meetings, on
matters for which action by written |
| 1050 |
agreement without meetings
is expressly allowed by the |
| 1051 |
applicable bylaws or
declaration or any statute that provides |
| 1052 |
for such action. |
| 1053 |
5. Unit
owners may waive notice of specific meetings if |
| 1054 |
allowed by the applicable
bylaws or declaration or any statute. |
| 1055 |
If authorized by the
bylaws, notice of meetings of the board of |
| 1056 |
administration, unit owner
meetings, except unit owner meetings |
| 1057 |
called to recall board
members under paragraph (j), and |
| 1058 |
committee meetings may be
given by electronic transmission to |
| 1059 |
unit owners who consent to
receive notice by electronic |
| 1060 |
transmission. |
| 1061 |
6. Unit
owners shall have the right to participate in |
| 1062 |
meetings of unit owners
with reference to all designated agenda |
| 1063 |
items. However, the
association may adopt reasonable rules |
| 1064 |
governing the frequency,
duration, and manner of unit owner |
| 1065 |
participation. |
| 1066 |
7. Any
unit owner may tape record or videotape a meeting |
| 1067 |
of the unit owners subject
to reasonable rules adopted by the |
| 1068 |
division. |
| 1069 |
8. Unless
otherwise provided in the bylaws, any vacancy |
| 1070 |
occurring on the board
before the expiration of a term may be |
| 1071 |
filled by the affirmative
vote of the majority of the remaining |
| 1072 |
directors, even if the
remaining directors constitute less than |
| 1073 |
a quorum, or by the sole
remaining director. In the alternative, |
| 1074 |
a board may hold an
election to fill the vacancy, in which case |
| 1075 |
the election procedures
must conform to the requirements of |
| 1076 |
subparagraph 3. unless the
association governs 10 units or less |
| 1077 |
and has opted out
of the statutory election process, in which |
| 1078 |
case the bylaws of the
association control. Unless otherwise |
| 1079 |
provided in the bylaws, a
board member appointed or elected |
| 1080 |
under this section shall
fill the vacancy for the unexpired term |
| 1081 |
of the seat being filled.
Filling vacancies created by recall is |
| 1082 |
governed by paragraph (j)
and rules adopted by the division. |
| 1083 |
|
| 1084 |
Notwithstanding
subparagraphs (b)2. and (d)3., an association of |
| 1085 |
10 or fewer units
may, by the affirmative vote of a majority of |
| 1086 |
the total voting
interests, provide for different voting and |
| 1087 |
election procedures in its
bylaws, which vote may be by a proxy |
| 1088 |
specifically delineating
the different voting and election |
| 1089 |
procedures. The different
voting and election procedures may |
| 1090 |
provide for elections to
be conducted by limited or general |
| 1091 |
proxy. |
| 1092 |
(e) Budget
meeting.-- |
| 1093 |
1. Any
meeting at which a proposed annual budget of an |
| 1094 |
association will be
considered by the board or unit owners shall |
| 1095 |
be open to all unit
owners. At least 14 days prior to such a |
| 1096 |
meeting, the board shall
hand deliver to each unit owner, mail |
| 1097 |
to each unit owner at the
address last furnished to the |
| 1098 |
association by the unit
owner, or electronically transmit to the |
| 1099 |
location furnished by the
unit owner for that purpose a notice |
| 1100 |
of such meeting and a copy
of the proposed annual budget. An |
| 1101 |
officer or manager of the
association, or other person providing |
| 1102 |
notice of such meeting,
shall execute an affidavit evidencing |
| 1103 |
compliance with such
notice requirement, and such affidavit |
| 1104 |
shall be filed among the
official records of the association. |
| 1105 |
2.a. If
a board adopts in any fiscal year an annual budget |
| 1106 |
which requires assessments
against unit owners which exceed 115 |
| 1107 |
percent of assessments for
the preceding fiscal year, the board |
| 1108 |
shall conduct a special
meeting of the unit owners to consider a |
| 1109 |
substitute budget if the
board receives, within 21 days after |
| 1110 |
adoption of the annual
budget, a written request for a special |
| 1111 |
meeting from at least 10
percent of all voting interests. The |
| 1112 |
special meeting shall be
conducted within 60 days after adoption |
| 1113 |
of the annual budget. At
least 14 days prior to such special |
| 1114 |
meeting, the board shall
hand deliver to each unit owner, or |
| 1115 |
mail to each unit owner at
the address last furnished to the |
| 1116 |
association, a notice of
the meeting. An officer or manager of |
| 1117 |
the association, or other
person providing notice of such |
| 1118 |
meeting shall execute an
affidavit evidencing compliance with |
| 1119 |
this notice requirement,
and such affidavit shall be filed among |
| 1120 |
the official records of
the association. Unit owners may |
| 1121 |
consider and adopt a
substitute budget at the special meeting. A |
| 1122 |
substitute budget is
adopted if approved by a majority of all |
| 1123 |
voting interests unless
the bylaws require adoption by a greater |
| 1124 |
percentage of voting
interests. If there is not a quorum at the |
| 1125 |
special meeting or a
substitute budget is not adopted, the |
| 1126 |
annual budget previously
adopted by the board shall take effect |
| 1127 |
as scheduled. |
| 1128 |
b. Any
determination of whether assessments exceed 115 |
| 1129 |
percent of assessments for
the prior fiscal year shall exclude |
| 1130 |
any authorized provision
for reasonable reserves for repair or |
| 1131 |
replacement of the
condominium property, anticipated expenses of |
| 1132 |
the association which the
board does not expect to be incurred |
| 1133 |
on a regular or annual
basis, or assessments for betterments to |
| 1134 |
the condominium property. |
| 1135 |
c. If
the developer controls the board, assessments shall |
| 1136 |
not exceed 115 percent of
assessments for the prior fiscal year |
| 1137 |
unless approved by a
majority of all voting interests. |
| 1138 |
(f) Annual
budget.-- |
| 1139 |
1. The
proposed annual budget of estimated revenues and |
| 1140 |
common expenses
shall be detailed and shall show the amounts |
| 1141 |
budgeted by accounts and
expense classifications, including, if |
| 1142 |
applicable, but not
limited to, those expenses listed in s. |
| 1143 |
718.504(21). A
multicondominium association shall adopt a |
| 1144 |
separate budget of common
expenses for each condominium the |
| 1145 |
association operates and
shall adopt a separate budget of common |
| 1146 |
expenses for the
association. In addition, if the association |
| 1147 |
maintains limited common
elements with the cost to be shared |
| 1148 |
only by those entitled to
use the limited common elements as |
| 1149 |
provided for in s.
718.113(1), the budget or a schedule attached |
| 1150 |
thereto shall show amounts
budgeted therefor. If, after turnover |
| 1151 |
of control of the
association to the unit owners, any of the |
| 1152 |
expenses listed in s.
718.504(21) are not applicable, they need |
| 1153 |
not be listed. |
| 1154 |
2. In
addition to annual operating expenses, the budget |
| 1155 |
shall include reserve
accounts for capital expenditures and |
| 1156 |
deferred maintenance.
These accounts shall include, but are not |
| 1157 |
limited to, roof
replacement, building painting, and pavement |
| 1158 |
resurfacing, regardless of
the amount of deferred maintenance |
| 1159 |
expense or replacement
cost, and for any other item for which |
| 1160 |
the deferred maintenance
expense or replacement cost exceeds |
| 1161 |
$10,000. The amount to be
reserved shall be computed by means of |
| 1162 |
a formula which is based
upon estimated remaining useful life |
| 1163 |
and estimated replacement
cost or deferred maintenance expense |
| 1164 |
of each reserve item. The
association may adjust replacement |
| 1165 |
reserve assessments
annually to take into account any changes in |
| 1166 |
estimates or extension of
the useful life of a reserve item |
| 1167 |
caused by deferred
maintenance. This subsection does not apply |
| 1168 |
to an adopted budget in
which the members of an association have |
| 1169 |
determined, by a majority
vote at a duly called meeting of the |
| 1170 |
association, to provide no
reserves or less reserves than |
| 1171 |
required by this
subsection. However, prior to turnover of |
| 1172 |
control of an association
by a developer to unit owners other |
| 1173 |
than a developer pursuant
to s. 718.301, the developer may vote |
| 1174 |
to waive the reserves or
reduce the funding of reserves for the |
| 1175 |
first 2 fiscal years of
the association's operation, beginning |
| 1176 |
with the fiscal year in
which the initial declaration is |
| 1177 |
recorded, after which time
reserves may be waived or reduced |
| 1178 |
only upon the vote of a
majority of all nondeveloper voting |
| 1179 |
interests voting in person
or by limited proxy at a duly called |
| 1180 |
meeting of the
association. If a meeting of the unit owners has |
| 1181 |
been called to determine
whether to waive or reduce the funding |
| 1182 |
of reserves, and no such
result is achieved or a quorum is not |
| 1183 |
attained, the reserves as
included in the budget shall go into |
| 1184 |
effect. After the
turnover, the developer may vote its voting |
| 1185 |
interest to waive or
reduce the funding of reserves. |
| 1186 |
3. Reserve
funds and any interest accruing thereon shall |
| 1187 |
remain in the reserve
account or accounts, and shall be used |
| 1188 |
only for authorized
reserve expenditures unless their use for |
| 1189 |
other purposes is approved
in advance by a majority vote at a |
| 1190 |
duly called meeting of the
association. Prior to turnover of |
| 1191 |
control of an association
by a developer to unit owners other |
| 1192 |
than the developer
pursuant to s. 718.301, the developer- |
| 1193 |
controlled association
shall not vote to use reserves for |
| 1194 |
purposes other than that
for which they were intended without |
| 1195 |
the approval of a majority
of all nondeveloper voting interests, |
| 1196 |
voting in person or by
limited proxy at a duly called meeting of |
| 1197 |
the association. |
| 1198 |
4. The
only voting interests which are eligible to vote on |
| 1199 |
questions that involve
waiving or reducing the funding of |
| 1200 |
reserves, or using
existing reserve funds for purposes other |
| 1201 |
than purposes for which
the reserves were intended, are the |
| 1202 |
voting interests of the
units subject to assessment to fund the |
| 1203 |
reserves in question. Proxy
questions relating to waiving or |
| 1204 |
reducing
the funding of reserves or using existing reserve funds |
| 1205 |
for
purposes other than purposes for which the reserves were |
| 1206 |
intended
shall contain the following statement in capitalized, |
| 1207 |
bold
letters in a font size larger than any other used on the |
| 1208 |
face of
the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN |
| 1209 |
PART,
OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY |
| 1210 |
RESULT
IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED |
| 1211 |
SPECIAL
ASSESSMENTS REGARDING THOSE ITEMS. |
| 1212 |
(g) Assessments.--The
manner of collecting from the unit |
| 1213 |
owners their shares of the
common expenses shall be stated in |
| 1214 |
the bylaws. Assessments
shall be made against units not less |
| 1215 |
frequently than quarterly
in an amount which is not less than |
| 1216 |
that required to provide
funds in advance for payment of all of |
| 1217 |
the anticipated current
operating expenses and for all of the |
| 1218 |
unpaid operating expenses
previously incurred. Nothing in this |
| 1219 |
paragraph shall preclude
the right of an association to |
| 1220 |
accelerate assessments of
an owner delinquent in payment of |
| 1221 |
common expenses.
Accelerated assessments shall be due and |
| 1222 |
payable on the date the
claim of lien is filed. Such accelerated |
| 1223 |
assessments shall include
the amounts due for the remainder of |
| 1224 |
the budget year in which
the claim of lien was filed. |
| 1225 |
(h) Amendment
of bylaws.-- |
| 1226 |
1. The
method by which the bylaws may be amended |
| 1227 |
consistent with the
provisions of this chapter shall be stated. |
| 1228 |
If the bylaws fail to
provide a method of amendment, the bylaws |
| 1229 |
may be amended if the
amendment is approved by the owners of not |
| 1230 |
less than two-thirds of
the voting interests. |
| 1231 |
2. No
bylaw shall be revised or amended by reference to |
| 1232 |
its title or number only.
Proposals to amend existing bylaws |
| 1233 |
shall contain the full
text of the bylaws to be amended; new |
| 1234 |
words shall be inserted in
the text underlined, and words to be |
| 1235 |
deleted shall be lined
through with hyphens. However, if the |
| 1236 |
proposed change is so
extensive that this procedure would |
| 1237 |
hinder, rather than
assist, the understanding of the proposed |
| 1238 |
amendment, it is not
necessary to use underlining and hyphens as |
| 1239 |
indicators of words added
or deleted, but, instead, a notation |
| 1240 |
must be inserted
immediately preceding the proposed amendment in |
| 1241 |
substantially the
following language: "Substantial rewording of |
| 1242 |
bylaw. See bylaw _____ for
present text." |
| 1243 |
3. Nonmaterial
errors or omissions in the bylaw process |
| 1244 |
will not invalidate an
otherwise properly promulgated amendment. |
| 1245 |
(i) Transfer
fees.--No charge shall be made by the |
| 1246 |
association or any body
thereof in connection with the sale, |
| 1247 |
mortgage, lease, sublease,
or other transfer of a unit unless |
| 1248 |
the association is
required to approve such transfer and a fee |
| 1249 |
for such approval is
provided for in the declaration, articles, |
| 1250 |
or bylaws. Any such fee
may be preset, but in no event may such |
| 1251 |
fee exceed $100 per
applicant other than husband/wife or |
| 1252 |
parent/dependent child,
which are considered one applicant. |
| 1253 |
However, if the lease or
sublease is a renewal of a lease or |
| 1254 |
sublease with the same
lessee or sublessee, no charge shall be |
| 1255 |
made. The foregoing
notwithstanding, an association may, if the |
| 1256 |
authority to do so appears
in the declaration or bylaws, require |
| 1257 |
that a prospective lessee
place a security deposit, in an amount |
| 1258 |
not to exceed the
equivalent of 1 month's rent, into an escrow |
| 1259 |
account maintained by the
association. The security deposit |
| 1260 |
shall protect against
damages to the common elements or |
| 1261 |
association property.
Payment of interest, claims against the |
| 1262 |
deposit, refunds, and
disputes under this paragraph shall be |
| 1263 |
handled in the same
fashion as provided in part II of chapter |
| 1264 |
83. |
| 1265 |
(j) Recall
of board members.--Subject to the provisions of |
| 1266 |
s. 718.301, any member of
the board of administration may be |
| 1267 |
recalled and removed from
office with or without cause by the |
| 1268 |
vote or agreement in
writing by a majority of all the voting |
| 1269 |
interests. A special
meeting of the unit owners to recall a |
| 1270 |
member or members of the
board of administration may be called |
| 1271 |
by 10 percent of the
voting interests giving notice of the |
| 1272 |
meeting as required for a
meeting of unit owners, and the notice |
| 1273 |
shall state the purpose of
the meeting. Electronic transmission |
| 1274 |
may not be used as a
method of giving notice of a meeting called |
| 1275 |
in whole or in part for
this purpose. |
| 1276 |
1. If
the recall is approved by a majority of all voting |
| 1277 |
interests by a vote at a
meeting, the recall will be effective |
| 1278 |
as provided herein. The
board shall duly notice and hold a board |
| 1279 |
meeting within 5 full
business days of the adjournment of the |
| 1280 |
unit owner meeting to
recall one or more board members. At the |
| 1281 |
meeting, the board shall
either certify the recall, in which |
| 1282 |
case such member or
members shall be recalled effective |
| 1283 |
immediately and shall turn
over to the board within 5 full |
| 1284 |
business days any and all
records and property of the |
| 1285 |
association in their
possession, or shall proceed as set forth |
| 1286 |
in subparagraph 3. |
| 1287 |
2. If
the proposed recall is by an agreement in writing by |
| 1288 |
a majority of all voting
interests, the agreement in writing or |
| 1289 |
a copy thereof shall be
served on the association by certified |
| 1290 |
mail or by personal
service in the manner authorized by chapter |
| 1291 |
48 and the Florida Rules
of Civil Procedure. The board of |
| 1292 |
administration shall duly
notice and hold a meeting of the board |
| 1293 |
within 5 full business
days after receipt of the agreement in |
| 1294 |
writing. At the meeting,
the board shall either certify the |
| 1295 |
written agreement to
recall a member or members of the board, in |
| 1296 |
which case such member or
members shall be recalled effective |
| 1297 |
immediately and shall turn
over to the board within 5 full |
| 1298 |
business days any and all
records and property of the |
| 1299 |
association in their
possession, or proceed as described in |
| 1300 |
subparagraph 3. |
| 1301 |
3. If
the board determines not to certify the written |
| 1302 |
agreement to recall a
member or members of the board, or does |
| 1303 |
not certify the recall by
a vote at a meeting, the board shall, |
| 1304 |
within 5 full business
days after the meeting, file with the |
| 1305 |
division a petition for
arbitration pursuant to the procedures |
| 1306 |
in s. 718.1255. For the
purposes of this section, the unit |
| 1307 |
owners who voted at the
meeting or who executed the agreement in |
| 1308 |
writing shall constitute
one party under the petition for |
| 1309 |
arbitration. If the
arbitrator certifies the recall as to any |
| 1310 |
member or members of the
board, the recall will be effective |
| 1311 |
upon mailing of the final
order of arbitration to the |
| 1312 |
association. If the
association fails to comply with the order |
| 1313 |
of the arbitrator, the
division may take action pursuant to s. |
| 1314 |
718.501. Any member or
members so recalled shall deliver to the |
| 1315 |
board any and all records
of the association in their possession |
| 1316 |
within 5 full business
days of the effective date of the recall. |
| 1317 |
4. If
the board fails to duly notice and hold a board |
| 1318 |
meeting within 5 full
business days of service of an agreement |
| 1319 |
in writing or within 5
full business days of the adjournment of |
| 1320 |
the unit owner recall
meeting, the recall shall be deemed |
| 1321 |
effective and the board
members so recalled shall immediately |
| 1322 |
turn over to the board any
and all records and property of the |
| 1323 |
association. |
| 1324 |
5. If
a vacancy occurs on the board as a result of a |
| 1325 |
recall or
removal and less than a majority of the board members |
| 1326 |
are removed, the vacancy
may be filled by the affirmative vote |
| 1327 |
of a majority of the
remaining directors, notwithstanding any |
| 1328 |
provision to the contrary
contained in this subsection. If |
| 1329 |
vacancies occur on the
board as a result of a recall and a |
| 1330 |
majority or more of the
board members are removed, the vacancies |
| 1331 |
shall be filled in
accordance with procedural rules to be |
| 1332 |
adopted by the division,
which rules need not be consistent with |
| 1333 |
this subsection. The rules
must provide procedures governing the |
| 1334 |
conduct of the recall
election as well as the operation of the |
| 1335 |
association during the
period after a recall but prior to the |
| 1336 |
recall election. |
| 1337 |
(k) Arbitration.--There
shall be a provision for mandatory |
| 1338 |
nonbinding arbitration as
provided for in s. 718.1255. |
| 1339 |
(l) Certificate
of compliance.--There shall be a provision |
| 1340 |
that a certificate of
compliance from a licensed electrical |
| 1341 |
contractor or electrician
may be accepted by the association's |
| 1342 |
board as evidence of
compliance of the condominium units with |
| 1343 |
the applicable fire and
life safety code. Notwithstanding the |
| 1344 |
provisions of chapter 633
or of any other code, statute, |
| 1345 |
ordinance, administrative
rule, or regulation, or any |
| 1346 |
interpretation of the
foregoing, an association, condominium, or |
| 1347 |
unit owner is not
obligated to retrofit the common elements or |
| 1348 |
units of a residential
condominium with a fire sprinkler system |
| 1349 |
or other engineered
lifesafety system in a building that has |
| 1350 |
been certified for
occupancy by the applicable governmental |
| 1351 |
entity, if the unit owners
have voted to forego such |
| 1352 |
retrofitting and
engineered lifesafety system by the affirmative |
| 1353 |
vote of two-thirds of all
voting interests in the affected |
| 1354 |
condominium. However, a
condominium association may not vote to |
| 1355 |
forego the retrofitting
with a fire sprinkler system of common |
| 1356 |
areas in a high-rise
building. For purposes of this subsection, |
| 1357 |
the term "high-rise
building" means a building that is greater |
| 1358 |
than 75 feet in height
where the building height is measured |
| 1359 |
from the lowest level of
fire department access to the floor of |
| 1360 |
the highest occupiable
story. For purposes of this subsection, |
| 1361 |
the term "common
areas" means any enclosed hallway, corridor, |
| 1362 |
lobby, stairwell, or
entryway. In no event shall the local |
| 1363 |
authority having
jurisdiction require completion of retrofitting |
| 1364 |
of common areas with a
sprinkler system before the end of 2014. |
| 1365 |
1. A
vote to forego retrofitting may be obtained by |
| 1366 |
limited proxy or by a
ballot personally cast at a duly called |
| 1367 |
membership meeting, or by
execution of a written consent by the |
| 1368 |
member, and shall be
effective upon the recording of a |
| 1369 |
certificate attesting to
such vote in the public records of the |
| 1370 |
county where the
condominium is located. The association shall |
| 1371 |
mail, hand deliver, or
electronically transmit to each unit |
| 1372 |
owner written notice at
least 14 days prior to such membership |
| 1373 |
meeting in which the vote
to forego retrofitting of the required |
| 1374 |
fire sprinkler system is
to take place. Within 30 days after the |
| 1375 |
association's opt-out
vote, notice of the results of the opt-out |
| 1376 |
vote shall be mailed, hand
delivered, or electronically |
| 1377 |
transmitted to all unit
owners. Evidence of compliance with this |
| 1378 |
30-day notice shall be
made by an affidavit executed by the |
| 1379 |
person providing the
notice and filed among the official records |
| 1380 |
of the association. After
such notice is provided to each owner, |
| 1381 |
a copy of such notice
shall be provided by the current owner to |
| 1382 |
a new owner prior to
closing and shall be provided by a unit |
| 1383 |
owner to a renter prior to
signing a lease. |
| 1384 |
2. As
part of the information collected annually from |
| 1385 |
condominiums, the division
shall require condominium |
| 1386 |
associations to report the
membership vote and recording of a |
| 1387 |
certificate under this
subsection and, if retrofitting has been |
| 1388 |
undertaken, the per-unit
cost of such work. The division shall |
| 1389 |
annually report to the
Division of State Fire Marshal of the |
| 1390 |
Department of Financial
Services the number of condominiums that |
| 1391 |
have elected to forego
retrofitting. |
| 1392 |
(m) Common
elements; limited power to convey.-- |
| 1393 |
1. With
respect to condominiums created on or after |
| 1394 |
October 1, 1994, the
bylaws shall include a provision granting |
| 1395 |
the association a limited
power to convey a portion of the |
| 1396 |
common elements to a
condemning authority for the purpose of |
| 1397 |
providing utility
easements, right-of-way expansion, or other |
| 1398 |
public purposes, whether
negotiated or as a result of eminent |
| 1399 |
domain proceedings. |
| 1400 |
2. In
any case where the bylaws are silent as to the |
| 1401 |
association's power to
convey common elements as described in |
| 1402 |
subparagraph 1., the
bylaws shall be deemed to include the |
| 1403 |
provision described in
subparagraph 1. |
| 1404 |
(n) Director
or officer delinquencies.--A director or |
| 1405 |
officer
more than 90 days delinquent in the payment of regular |
| 1406 |
assessments
shall be deemed to have abandoned the office, |
| 1407 |
creating
a vacancy in the office to be filled according to law. |
| 1408 |
(o) Director
and officer offenses.--A director or officer |
| 1409 |
charged
with a felony theft or embezzlement offense involving |
| 1410 |
the
association's funds or property shall be removed from |
| 1411 |
office,
creating a vacancy in the office to be filled according |
| 1412 |
to law.
While such director or officer has such criminal charge |
| 1413 |
pending,
he or she may not be appointed or elected to a position |
| 1414 |
as a
director or officer. However, should the charges be |
| 1415 |
resolved
without a finding of guilt, the director of officer |
| 1416 |
shall
be reinstated for the remainder of his or her term of |
| 1417 |
office,
if any. |
| 1418 |
Section
8. Section 718.1124, Florida Statutes, is amended |
| 1419 |
to read: |
| 1420 |
718.1124 Failure
to fill vacancies on board of |
| 1421 |
administration sufficient
to constitute a quorum; appointment of |
| 1422 |
receiver upon petition of
unit owner.-- |
| 1423 |
(1) If
an association fails to fill vacancies on the board |
| 1424 |
of administration
sufficient to constitute a quorum in |
| 1425 |
accordance with the
bylaws, any unit owner may give notice of |
| 1426 |
his
or her intent to apply to the circuit court within whose |
| 1427 |
jurisdiction the
condominium lies for the appointment of a |
| 1428 |
receiver to manage the
affairs of the association. The form of |
| 1429 |
the
notice shall be as follows: |
| 1430 |
|
| 1431 |
NOTICE
OF INTENT TO APPLY FOR RECEIVERSHIP |
| 1432 |
|
| 1433 |
YOU ARE
HEREBY NOTIFIED that the undersigned owner of |
| 1434 |
a
condominium unit in (name of condominium) intends to |
| 1435 |
file a
petition in the circuit court for appointment |
| 1436 |
of a
receiver to manage the affairs of the association |
| 1437 |
on the
grounds that the association has failed to fill |
| 1438 |
vacancies
on the board of administration sufficient to |
| 1439 |
constitute
a quorum. This petition will not be filed |
| 1440 |
if the
vacancies are filled within 30 days after the |
| 1441 |
date on
which this notice was sent or posted, |
| 1442 |
whichever
is later. If a receiver is appointed, the |
| 1443 |
receiver
shall have all of the powers of the board and |
| 1444 |
shall
be entitled to receive a salary and |
| 1445 |
reimbursement
of all costs and attorney's fees payable |
| 1446 |
from
association funds. |
| 1447 |
|
| 1448 |
(name
and address of petitioning unit owner) |
| 1449 |
|
| 1450 |
(2) The
notice required by subsection (1) must be provided |
| 1451 |
by
At least 30 days prior to applying to the
circuit court, the |
| 1452 |
unit owner shall
mail to the association by
certified mail or |
| 1453 |
personal
delivery, must be posted and
post in a conspicuous |
| 1454 |
place on the condominium
property, and must be provided by the |
| 1455 |
unit
owner to every other unit owner of the association by |
| 1456 |
certified
mail or personal delivery. The a notice must be posted |
| 1457 |
and
mailed or delivered at least 30 days prior to the filing of |
| 1458 |
a
petition seeking receivership. Notice by mail to a unit owner |
| 1459 |
shall
be sent to the address used by the county property |
| 1460 |
appraiser
for notice to the unit owner, except that where a unit |
| 1461 |
owner's
address is not publicly available the notice shall be |
| 1462 |
mailed
to the unit describing the
intended action, giving the |
| 1463 |
association
the opportunity to fill the vacancies. |
| 1464 |
(3) If
during such time the association
fails to fill the |
| 1465 |
vacancies within
30 days after the notice required by subsection |
| 1466 |
(1)
is posted and mailed or delivered, the unit owner may |
| 1467 |
proceed with the petition. |
| 1468 |
(4) If
a receiver is appointed, all unit owners
shall be |
| 1469 |
given
written notice of such appointment as provided in s. |
| 1470 |
718.127. |
| 1471 |
(5) The
association shall be responsible for the salary of |
| 1472 |
the receiver, court costs,
and attorney's fees. The receiver |
| 1473 |
shall have all powers and
duties of a duly constituted board of |
| 1474 |
administration and shall
serve until the association fills |
| 1475 |
vacancies on the board
sufficient to constitute a quorum and the |
| 1476 |
court
relieves the receiver of the appointment. |
| 1477 |
Section
9. Paragraph (a) of subsection (2) and subsection |
| 1478 |
(5) of section 718.113,
Florida Statutes, are amended, and |
| 1479 |
subsections (6) and (7)
are added to that section, to read: |
| 1480 |
718.113 Maintenance;
limitation upon improvement; display |
| 1481 |
of flag; hurricane
shutters; display of religious decorations.-- |
| 1482 |
(2)(a) Except
as otherwise provided in this section, there |
| 1483 |
shall be no material
alteration or substantial additions to the |
| 1484 |
common elements or to real
property which is association |
| 1485 |
property, except in a
manner provided in the declaration as |
| 1486 |
originally recorded or as
amended under the procedures provided |
| 1487 |
therein. If the
declaration as originally recorded or as amended |
| 1488 |
under the procedures
provided therein does not specify the |
| 1489 |
procedure for approval of
material alterations or substantial |
| 1490 |
additions, 75 percent of
the total voting interests of the |
| 1491 |
association must approve
the alterations or additions. This |
| 1492 |
paragraph
is intended to clarify existing law and applies to |
| 1493 |
associations
existing on October 1, 2008. |
| 1494 |
(5) Each
board of administration shall adopt hurricane |
| 1495 |
shutter specifications for
each building within each condominium |
| 1496 |
operated by the
association which shall include color, style, |
| 1497 |
and other factors deemed
relevant by the board. All |
| 1498 |
specifications adopted by
the board shall comply with the |
| 1499 |
applicable building code. Notwithstanding
any provision to the |
| 1500 |
contrary
in the condominium documents, if approval is required |
| 1501 |
by the
documents, a board shall not refuse to approve the |
| 1502 |
installation
or replacement of hurricane shutters conforming to |
| 1503 |
the
specifications adopted by the board. |
| 1504 |
AMENDED
VERSION:
(a) The
board may, subject to the provisions of s.
|
| 1505 |
718.3026, and the approval
of a majority of voting interests of |
| 1506 |
the condominium, install
hurricane shutters or hurricane |
| 1507 |
protection
that complies with or exceeds the applicable building |
| 1508 |
code,
or both, except that a vote of the owners is not required |
| 1509 |
if the
maintenance, repair, and replacement of hurricane |
| 1510 |
shutters
or other forms of hurricane protection are the |
| 1511 |
responsibility
of the association pursuant to the declaration of |
| 1512 |
condominium
and may
maintain, repair, or replace such approved |
| 1513 |
hurricane
shutters, whether on or within common elements, |
| 1514 |
limited
common elements, units, or association property. |
| 1515 |
However,
where hurricane protection or
laminated glass or window
film
architecturally designed to function as hurricane
protection
which complies with or exceeds
the current applicable
building
code has been previously
installed, the board may not
install
hurricane shutters or other hurricane
protection. |
| 1516 |
(b) The
association shall be responsible for the
|
| 1517 |
maintenance,
repair, and replacement of the hurricane shutters |
| 1518 |
or
other hurricane protection authorized by this subsection if |
| 1519 |
such
hurricane shutters or other hurricane protection are the |
| 1520 |
responsibility
of the association pursuant to the declaration of |
| 1521 |
condominium.
If the hurricane shutters or other hurricane |
| 1522 |
protection
authorized by this subsection are the responsibility |
| 1523 |
of the
unit owners pursuant to the declaration of condominium, |
| 1524 |
the
responsibility for the maintenance, repair, and replacement |
| 1525 |
of such
items shall be the responsibility of the unit owner. |
| 1526 |
(c) The
board may operate shutters installed pursuant to |
| 1527 |
this subsection without
permission of the unit owners only where |
| 1528 |
such operation is
necessary to preserve and protect the |
| 1529 |
condominium property and
association property. The installation, |
| 1530 |
replacement, operation,
repair, and maintenance of such shutters |
| 1531 |
in accordance with the
procedures set forth herein shall not be |
| 1532 |
deemed a material
alteration to the common elements or |
| 1533 |
association property
within the meaning of this section. |
| 1534 |
(d) Notwithstanding
any provision to the contrary in the |
| 1535 |
condominium
documents, if approval is required by the documents, |
| 1536 |
a board
shall not refuse to approve the installation or |
| 1537 |
replacement
of hurricane shutters by a unit owner conforming to |
| 1538 |
the
specifications adopted by the board. |
| 1539 |
(6) As
to any condominium building greater than three |
| 1540 |
stories
in height, at least every 5 years, and within 5 years if |
| 1541 |
not
available for inspection on October 1, 2008, the board shall |
| 1542 |
have
the condominium building inspected to provide a report |
| 1543 |
under
seal of an architect or engineer authorized to practice in |
| 1544 |
this
state attesting to required maintenance, useful life, and |
| 1545 |
replacement
costs of the common elements. However, if approved |
| 1546 |
by a
majority of the voting interests present at a properly |
| 1547 |
called
meeting of the association, an association may waive this |
| 1548 |
requirement.
Such meeting and approval must occur prior to the |
| 1549 |
end of
the 5-year period and is effective only for that 5-year |
| 1550 |
period. |
| 1551 |
(7) An
association may not refuse the request of a unit |
| 1552 |
owner
for a reasonable accommodation for the attachment on the |
| 1553 |
mantle
or frame of the door of the unit owner a religious object |
| 1554 |
not to
exceed 3 inches wide, 6 inches high, and 1.5 inches deep. |
| 1555 |
Section
10. Paragraph (e) of subsection (1) of section |
| 1556 |
718.115, Florida Statutes,
is amended to read: |
| 1557 |
718.115 Common
expenses and common surplus.-- |
| 1558 |
(1) |
| 1559 |
(e) The
expense of installation, replacement, operation, |
| 1560 |
repair, and maintenance of
hurricane shutters or other hurricane |
| 1561 |
protection
by the board pursuant to s. 718.113(5) shall |
| 1562 |
constitute a common
expense as defined herein and shall be |
| 1563 |
collected as provided in
this section if the association is |
| 1564 |
responsible
for the maintenance, repair, and replacement of the |
| 1565 |
hurricane
shutters or other hurricane protection pursuant to the |
| 1566 |
declaration
of condominium. However, if the maintenance, repair, |
| 1567 |
and
replacement of the hurricane shutters or other hurricane |
| 1568 |
protection
is the responsibility of the unit owners pursuant to |
| 1569 |
the
declaration of condominium, the cost of the installation of |
| 1570 |
the
hurricane shutters or other hurricane protection shall not |
| 1571 |
be a
common expense, but shall be charged individually to the |
| 1572 |
unit
owners based on the cost of installation of the hurricane |
| 1573 |
shutters
or other hurricane protection appurtenant to the unit. |
| 1574 |
Notwithstanding the
provisions of s. 718.116(9), and regardless |
| 1575 |
of
whether or not the declaration requires the association or |
| 1576 |
unit
owners maintain, repair, or replace hurricane shutters or |
| 1577 |
other
hurricane protection a unit owner who has previously |
| 1578 |
installed hurricane
shutters in accordance with s. 718.113(5) |
| 1579 |
other
hurricane protection or laminated glass architecturally |
| 1580 |
designed to function as
hurricane protection, which hurricane |
| 1581 |
shutters
or other hurricane protection or laminated glass comply |
| 1582 |
complies
with the current applicable
building code shall receive |
| 1583 |
a credit equal to the pro
rata portion of the assessed |
| 1584 |
installation cost assigned
to each unit. However, such unit |
| 1585 |
owner shall remain
responsible for the pro rata share of |
| 1586 |
expenses for hurricane
shutters or other hurricane protection |
| 1587 |
installed on common
elements and association property by the |
| 1588 |
board pursuant to s.
718.113(5), and shall remain responsible |
| 1589 |
for a pro rata share of
the expense of the replacement, |
| 1590 |
operation, repair, and
maintenance of such shutters or other |
| 1591 |
hurricane
protection. |
| 1592 |
Section
11. Paragraph (a) of subsection (7) of section |
| 1593 |
718.117, Florida Statutes,
is amended to read: |
| 1594 |
718.117 Termination
of condominium.-- |
| 1595 |
(7) NATURAL
DISASTERS.-- |
| 1596 |
(a) If,
after a natural disaster, the identity of the |
| 1597 |
directors or their right
to hold office is in doubt, if they are |
| 1598 |
deceased or unable to act,
if they fail or refuse to act, or if |
| 1599 |
they cannot be located,
any interested person may petition the |
| 1600 |
circuit court to determine
the identity of the directors or, if |
| 1601 |
found to be in the best
interests of the unit owners, to appoint |
| 1602 |
a receiver to conclude the
affairs of the association after a |
| 1603 |
hearing following notice
to such persons as the court directs. |
| 1604 |
Lienholders shall be given
notice of the petition and have the |
| 1605 |
right to propose persons
for the consideration by the court as |
| 1606 |
receiver. If
a receiver is appointed, the court shall direct the |
| 1607 |
receiver
to provide to all unit owners written notice of his or |
| 1608 |
her
appointment as receiver. Such notice shall be mailed or |
| 1609 |
delivered
within 10 days after the appointment. Notice by mail |
| 1610 |
to a
unit owner shall be sent to the address used by the county |
| 1611 |
property
appraiser for notice to the unit owner. |
| 1612 |
Section
12. Subsection (4) is added to section 718.121, |
| 1613 |
Florida Statutes, to read: |
| 1614 |
718.121 Liens.-- |
| 1615 |
(4) Except
as otherwise provided in this chapter, no lien |
| 1616 |
may be
filed by the association against a condominium unit until |
| 1617 |
30 days
after the date on which a notice of intent to file a |
| 1618 |
lien
has been delivered to the owner by certified mail, return |
| 1619 |
receipt
requested, and by first-class United States mail to the |
| 1620 |
owner
at his or her last known address as reflected in the |
| 1621 |
records
of the association. However, if the address reflected in |
| 1622 |
the
records is outside the United States, then the notice must |
| 1623 |
be sent
by first-class United States mail to the unit and to the |
| 1624 |
last
known address by regular mail with international postage, |
| 1625 |
which
shall be deemed sufficient. Delivery of the notice shall |
| 1626 |
be
deemed given upon mailing as required by this subsection. |
| 1627 |
Alternatively,
notice shall be complete if served on the unit |
| 1628 |
owner
in the manner authorized by chapter 48 and the Florida |
| 1629 |
Rules
of Civil Procedure. |
| 1630 |
Section
13. Section 718.1224, Florida Statutes, is created |
| 1631 |
to read: |
| 1632 |
718.1224 Prohibition
against SLAPP suits.-- |
| 1633 |
(1) It
is the intent of the Legislature to protect the |
| 1634 |
right
of condominium unit owners to exercise their rights to |
| 1635 |
instruct
their representatives and petition for redress of |
| 1636 |
grievances
before the various governmental entities of this |
| 1637 |
state
as protected by the First Amendment to the United States |
| 1638 |
Constitution
and s. 5, Art. I of the State Constitution. The |
| 1639 |
Legislature
recognizes that strategic lawsuits against public |
| 1640 |
participation,
or "SLAPP suits," as they are typically referred |
| 1641 |
to,
have occurred when association members are sued by |
| 1642 |
individuals,
business entities, or governmental entities arising |
| 1643 |
out of
a condominium unit owner's appearance and presentation |
| 1644 |
before
a governmental entity on matters related to the |
| 1645 |
condominium
association. However, it is the public policy of |
| 1646 |
this
state that governmental entities, business organizations, |
| 1647 |
and
individuals not engage in SLAPP suits, because such actions |
| 1648 |
are
inconsistent with the right of condominium unit owners to |
| 1649 |
participate
in the state's institutions of government. |
| 1650 |
Therefore,
the Legislature finds and declares that prohibiting |
| 1651 |
such
lawsuits by governmental entities, business entities, and |
| 1652 |
individuals
against condominium unit owners who address matters |
| 1653 |
concerning
their condominium association will preserve this |
| 1654 |
fundamental
state policy, preserve the constitutional rights of |
| 1655 |
condominium
unit owners, and ensure the continuation of |
| 1656 |
representative
government in this state. It is the intent of the |
| 1657 |
Legislature
that such lawsuits be expeditiously disposed of by |
| 1658 |
the
courts. As used in this subsection, the term "governmental |
| 1659 |
entity"
means the state, including the executive, legislative, |
| 1660 |
and
judicial branches of government; the independent |
| 1661 |
establishments
of the state, counties, municipalities, |
| 1662 |
districts,
authorities, boards, or commissions; or any agencies |
| 1663 |
of
these branches that are subject to chapter 286. |
| 1664 |
(2) A
governmental entity, business organization, or |
| 1665 |
individual
in this state may not file or cause to be filed |
| 1666 |
through
its employees or agents any lawsuit, cause of action, |
| 1667 |
claim,
cross-claim, or counterclaim against a condominium unit |
| 1668 |
owner
without merit and solely because such condominium unit |
| 1669 |
owner
has exercised the right to instruct his or her |
| 1670 |
representatives
or the right to petition for redress of |
| 1671 |
grievances
before the various governmental entities of this |
| 1672 |
state,
as protected by the First Amendment to the United States |
| 1673 |
Constitution
and s. 5, Art. I of the State Constitution. |
| 1674 |
(3) A
condominium unit owner sued by a governmental |
| 1675 |
entity,
business organization, or individual in violation of |
| 1676 |
this
section has a right to an expeditious resolution of a claim |
| 1677 |
that
the suit is in violation of this section. A condominium |
| 1678 |
unit
owner may petition the court for an order dismissing the |
| 1679 |
action
or granting final judgment in favor of that condominium |
| 1680 |
unit
owner. The petitioner may file a motion for summary |
| 1681 |
judgment,
together with supplemental affidavits, seeking a |
| 1682 |
determination
that the governmental entity's, business |
| 1683 |
organization's,
or individual's lawsuit has been brought in |
| 1684 |
violation
of this section. The governmental entity, business |
| 1685 |
organization,
or individual shall thereafter file its response |
| 1686 |
and any
supplemental affidavits. As soon as practicable, the |
| 1687 |
court
shall set a hearing on the petitioner's motion, which |
| 1688 |
shall
be held at the earliest possible time after the filing of |
| 1689 |
the
governmental entity's, business organization's, or |
| 1690 |
individual's
response. The court may award the condominium unit |
| 1691 |
owner
sued by the governmental entity, business organization, or |
| 1692 |
individual
actual damages arising from the governmental |
| 1693 |
entity's,
individual's, or business organization's violation of |
| 1694 |
this
section. A court may treble the damages awarded to a |
| 1695 |
prevailing
condominium unit owner and shall state the basis for |
| 1696 |
the
treble damages award in its judgment. The court shall award |
| 1697 |
the
prevailing party reasonable attorney's fees and costs |
| 1698 |
incurred
in connection with a claim that an action was filed in |
| 1699 |
violation
of this section. |
| 1700 |
(4) Condominium
associations may not expend association |
| 1701 |
funds
in prosecuting a SLAPP suit against a condominium unit |
| 1702 |
owner. |
| 1703 |
Section
14. Paragraph (b) of subsection (3) of section |
| 1704 |
718.1255, Florida
Statutes, is amended to read: |
| 1705 |
718.1255 Alternative
dispute resolution; voluntary |
| 1706 |
mediation; mandatory
nonbinding arbitration; legislative |
| 1707 |
findings.-- |
| 1708 |
(3) LEGISLATIVE
FINDINGS.-- |
| 1709 |
(b) The
Legislature finds that the courts are
becoming |
| 1710 |
overcrowded
with condominium and other disputes, and further |
| 1711 |
finds
that alternative dispute resolution has been making |
| 1712 |
progress in reducing court
dockets and trials and in offering a |
| 1713 |
more efficient,
cost-effective option to court litigation. |
| 1714 |
However, the Legislature
also finds that alternative dispute |
| 1715 |
resolution should not be
used as a mechanism to encourage the |
| 1716 |
filing of frivolous or
nuisance suits. |
| 1717 |
Section
15. Section 718.1265, Florida Statutes, is created |
| 1718 |
to read: |
| 1719 |
718.1265 Association
emergency powers.-- |
| 1720 |
(1) To
the extent allowed by law and unless specifically |
| 1721 |
prohibited
by the declaration of condominium, the articles, or |
| 1722 |
the
bylaws of an association, and consistent with the provisions |
| 1723 |
of s.
617.0830, the board of administration, in response to |
| 1724 |
damage
caused by an event for which a state of emergency is |
| 1725 |
declared
pursuant to s. 252.36 in the locale in which the |
| 1726 |
condominium
is located, may, but is not required to, exercise |
| 1727 |
the
following powers: |
| 1728 |
(a) Conduct
board meetings and membership meetings with |
| 1729 |
notice
given as is practicable. Such notice may be given in any |
| 1730 |
practicable
manner, including publication, radio, United States |
| 1731 |
mail,
the Internet, public service announcements, and |
| 1732 |
conspicuous
posting on the condominium property or any other |
| 1733 |
means
the board deems reasonable under the circumstances. Notice |
| 1734 |
of
board decisions may be communicated as provided in this |
| 1735 |
paragraph. |
| 1736 |
(b) Cancel
and reschedule any association meeting. |
| 1737 |
(c) Name
as assistant officers persons who are not |
| 1738 |
directors,
which assistant officers shall have the same |
| 1739 |
authority
as the executive officers to whom they are assistants |
| 1740 |
during
the state of emergency to accommodate the incapacity or |
| 1741 |
unavailability
of any officer of the association. |
| 1742 |
(d) Relocate
the association's principal office or |
| 1743 |
designate
alternative principal offices. |
| 1744 |
(e) Enter
into agreements with local counties and |
| 1745 |
municipalities
to assist counties and municipalities with debris |
| 1746 |
removal. |
| 1747 |
(f) Implement
a disaster plan before or immediately |
| 1748 |
following
the event for which a state of emergency is declared |
| 1749 |
which
may include, but is not limited to, shutting down or off |
| 1750 |
elevators;
electricity; water, sewer, or security systems; or |
| 1751 |
air
conditioners. |
| 1752 |
(g) Based
upon advice of emergency management officials or |
| 1753 |
upon
the advice of licensed professionals retained by the board, |
| 1754 |
determine
any portion of the condominium property unavailable |
| 1755 |
for
entry or occupancy by unit owners, family members, tenants, |
| 1756 |
guests,
agents, or invitees to protect the health, safety, or |
| 1757 |
welfare
of such persons. |
| 1758 |
(h) Require
the evacuation of the condominium property in |
| 1759 |
the
event of a mandatory evacuation order in the locale in which |
| 1760 |
the
condominium is located. Should any unit owner or other |
| 1761 |
occupant
of a condominium fail or refuse to evacuate the |
| 1762 |
condominium
property where the board has required evacuation, |
| 1763 |
the
association shall be immune from liability or injury to |
| 1764 |
persons
or property arising from such failure or refusal. |
| 1765 |
(i) Based
upon advice of emergency management officials or |
| 1766 |
upon
the advice of licensed professionals retained by the board, |
| 1767 |
determine
whether the condominium property can be safely |
| 1768 |
inhabited
or occupied. However, such determination is not |
| 1769 |
conclusive
as to any determination of habitability pursuant to |
| 1770 |
the
declaration. |
| 1771 |
(j) Mitigate
further damage, including taking action to |
| 1772 |
contract
for the removal of debris and to prevent or mitigate |
| 1773 |
the
spread of fungus, including, but not limited to, mold or |
| 1774 |
mildew,
by removing and disposing of wet drywall, insulation, |
| 1775 |
carpet,
cabinetry, or other fixtures on or within the |
| 1776 |
condominium
property, even if the unit owner is obligated by the |
| 1777 |
declaration
or law to insure or replace those fixtures and to |
| 1778 |
remove
personal property from a unit. |
| 1779 |
(k) Contract,
on behalf of any unit owner or owners, for |
| 1780 |
items
or services for which the owners are otherwise |
| 1781 |
individually
responsible for, but which are necessary to prevent |
| 1782 |
further
damage to the condominium property. In such event, the |
| 1783 |
unit
owner or owners on whose behalf the board has contracted |
| 1784 |
are
responsible for reimbursing the association for the actual |
| 1785 |
costs
of the items or services, and the association may use its |
| 1786 |
lien
authority provided by s. 718.116 to enforce collection of |
| 1787 |
the
charges. Without limitation, such items or services may |
| 1788 |
include
the drying of units, the boarding of broken windows or |
| 1789 |
doors,
and the replacement of damaged air conditioners or air |
| 1790 |
handlers
to provide climate control in the units or other |
| 1791 |
portions
of the property. |
| 1792 |
(l) Regardless
of any provision to the contrary and even |
| 1793 |
if such
authority does not specifically appear in the |
| 1794 |
declaration
of condominium, articles, or bylaws of the |
| 1795 |
association,
levy special assessments without a vote of the |
| 1796 |
owners. |
| 1797 |
(m) Without
unit owners' approval, borrow money and pledge |
| 1798 |
association
assets as collateral to fund emergency repairs and |
| 1799 |
carry
out the duties of the association when operating funds are |
| 1800 |
insufficient.
This paragraph does not limit the general |
| 1801 |
authority
of the association to borrow money, subject to such |
| 1802 |
restrictions
as are contained in the declaration of condominium, |
| 1803 |
articles,
or bylaws of the association. |
| 1804 |
(2) The
special powers authorized under subsection (1) |
| 1805 |
shall
be limited to that time reasonably necessary to protect |
| 1806 |
the
health, safety, and welfare of the association and the unit |
| 1807 |
owners
and the unit owners' family members, tenants, guests, |
| 1808 |
agents,
or invitees and shall be reasonably necessary to |
| 1809 |
mitigate
further damage and make emergency repairs. |
| 1810 |
Section
16. Section 718.127, Florida Statutes, is created |
| 1811 |
to read: |
| 1812 |
718.127 Receivership
notification.--Upon the appointment |
| 1813 |
of a
receiver by a court for any reason relating to a |
| 1814 |
condominium
association, the court shall direct the receiver to |
| 1815 |
provide
to all unit owners written notice of his or her |
| 1816 |
appointment
as receiver. Such notice shall be mailed or |
| 1817 |
delivered
within 10 days after the appointment. Notice by mail |
| 1818 |
to a
unit owner shall be sent to the address used by the county |
| 1819 |
property
appraiser for notice to the unit owner. |
| 1820 |
Section
17. Subsection (1) of section 718.301, Florida |
| 1821 |
Statutes, is amended, and
paragraph (p) is added to subsection |
| 1822 |
(4) of that section, to
read: |
| 1823 |
718.301 Transfer
of association control; claims of defect |
| 1824 |
by association.-- |
| 1825 |
(1) When
unit owners other than the developer own 15 |
| 1826 |
percent or more of the
units in a condominium that will be |
| 1827 |
operated ultimately by an
association, the unit owners other |
| 1828 |
than the developer shall
be entitled to elect no less than one- |
| 1829 |
third of the members of
the board of administration of the |
| 1830 |
association. Unit owners
other than the developer are entitled |
| 1831 |
to elect not less than a
majority of the members of the board of |
| 1832 |
administration of an
association: |
| 1833 |
(a) Three
years after 50 percent of the units that will be |
| 1834 |
operated ultimately by the
association have been conveyed to |
| 1835 |
purchasers; |
| 1836 |
(b) Three
months after 90 percent of the units that will |
| 1837 |
be operated ultimately by
the association have been conveyed to |
| 1838 |
purchasers; |
| 1839 |
(c) When
all the units that will be operated ultimately by |
| 1840 |
the association have been
completed, some of them have been |
| 1841 |
conveyed to purchasers,
and none of the others are being offered |
| 1842 |
for sale by the developer
in the ordinary course of business; |
| 1843 |
(d) When
some of the units have been conveyed to |
| 1844 |
purchasers and none of the
others are being constructed or |
| 1845 |
offered for sale by the
developer in the ordinary course of |
| 1846 |
business; or |
| 1847 |
(e) When
the developer files a petition seeking protection |
| 1848 |
in
bankruptcy; |
| 1849 |
(f) When
a receiver for the developer is appointed by a |
| 1850 |
circuit
court and is not discharged within 30 days after such |
| 1851 |
appointment;
or |
| 1852 |
(g)(e) Seven
years after recordation of the declaration of |
| 1853 |
condominium; or, in the
case of an association which may |
| 1854 |
ultimately operate more
than one condominium, 7 years after |
| 1855 |
recordation of the
declaration for the first condominium it |
| 1856 |
operates; or, in the case
of an association operating a phase |
| 1857 |
condominium created
pursuant to s. 718.403, 7 years after |
| 1858 |
recordation of the
declaration creating the initial phase, |
| 1859 |
|
| 1860 |
whichever occurs first.
The developer is entitled to elect at |
| 1861 |
least one member of the
board of administration of an |
| 1862 |
association as long as the
developer holds for sale in the |
| 1863 |
ordinary course of
business at least 5 percent, in condominiums |
| 1864 |
with fewer than 500 units,
and 2 percent, in condominiums with |
| 1865 |
more than 500 units, of
the units in a condominium operated by |
| 1866 |
the association. Following
the time the developer relinquishes |
| 1867 |
control of the
association, the developer may exercise the right |
| 1868 |
to vote any
developer-owned units in the same manner as any |
| 1869 |
other unit owner except
for purposes of reacquiring control of |
| 1870 |
the association or
selecting the majority members of the board |
| 1871 |
of administration. |
| 1872 |
(4) At
the time that unit owners other than the developer |
| 1873 |
elect a majority of the
members of the board of administration |
| 1874 |
of an association, the
developer shall relinquish control of the |
| 1875 |
association, and the unit
owners shall accept control. |
| 1876 |
Simultaneously, or for the
purposes of paragraph (c) not more |
| 1877 |
than 90 days thereafter,
the developer shall deliver to the |
| 1878 |
association, at the
developer's expense, all property of the |
| 1879 |
unit owners and of the
association which is held or controlled |
| 1880 |
by the developer,
including, but not limited to, the following |
| 1881 |
items, if applicable, as
to each condominium operated by the |
| 1882 |
association: |
| 1883 |
(p) A
report included in the official records, under seal |
| 1884 |
of an
architect or engineer authorized to practice in this |
| 1885 |
state,
attesting to required maintenance, useful life, and |
| 1886 |
replacement
costs of the following applicable common elements |
| 1887 |
comprising
a turnover inspection report: |
| 1888 |
1. Roof. |
| 1889 |
2. Structure. |
| 1890 |
3. Fireproofing
and fire protection systems. |
| 1891 |
4. Elevators. |
| 1892 |
5. Heating
and cooling systems. |
| 1893 |
6. Plumbing. |
| 1894 |
7. Electrical
systems. |
| 1895 |
8. Swimming
pool or spa and equipment. |
| 1896 |
9. Seawalls. |
| 1897 |
10. Pavement
and parking areas. |
| 1898 |
11. Drainage
systems. |
| 1899 |
12. Painting. |
| 1900 |
13. Irrigation
systems. |
| 1901 |
Section
18. Paragraph (f) is added to subsection (1) of |
| 1902 |
section 718.3025, Florida
Statutes, to read: |
| 1903 |
718.3025 Agreements
for operation, maintenance, or |
| 1904 |
management of
condominiums; specific requirements.-- |
| 1905 |
(1) No
written contract between a party contracting to |
| 1906 |
provide maintenance or
management services and an association |
| 1907 |
which contract provides
for operation, maintenance, or |
| 1908 |
management of a
condominium association or property serving the |
| 1909 |
unit owners of a
condominium shall be valid or enforceable |
| 1910 |
unless the contract: |
| 1911 |
(f) Discloses
any financial or ownership interest a board |
| 1912 |
member
or any party providing maintenance or management services |
| 1913 |
to the
association holds with the contracting party. |
| 1914 |
Section
19. Section 718.3026, Florida Statutes, is amended |
| 1915 |
to read: |
| 1916 |
718.3026 Contracts
for products and services; in writing; |
| 1917 |
bids;
exceptions.--Associations with 10 or fewer
with less than |
| 1918 |
100
units may opt out of the provisions of this section if two- |
| 1919 |
thirds of the unit owners
vote to do so, which opt-out may be |
| 1920 |
accomplished by a proxy
specifically setting forth the exception |
| 1921 |
from this section. |
| 1922 |
(1) All
contracts as further described herein or any |
| 1923 |
contract that is not to be
fully performed within 1 year after |
| 1924 |
the making thereof, for
the purchase, lease, or renting of |
| 1925 |
materials or equipment to
be used by the association in |
| 1926 |
accomplishing its purposes
under this chapter, and all contracts |
| 1927 |
for the provision of
services, shall be in writing. If a |
| 1928 |
contract for the purchase,
lease, or renting of materials or |
| 1929 |
equipment, or for the
provision of services, requires payment by |
| 1930 |
the association on behalf
of any condominium operated by the |
| 1931 |
association in the
aggregate that exceeds 5 percent of the total |
| 1932 |
annual budget of the
association, including reserves, the |
| 1933 |
association shall obtain
competitive bids for the materials, |
| 1934 |
equipment, or services.
Nothing contained herein shall be |
| 1935 |
construed to require the
association to accept the lowest bid. |
| 1936 |
(2)(a)1. Notwithstanding
the foregoing, contracts with |
| 1937 |
employees of the
association, and contracts for attorney, |
| 1938 |
accountant, architect,
community association manager, timeshare |
| 1939 |
management firm,
engineering, and landscape architect services |
| 1940 |
are not subject to the
provisions of this section. |
| 1941 |
2. A
contract executed before January 1, 1992, and any |
| 1942 |
renewal
thereof, is not subject to the competitive bid |
| 1943 |
requirements
of this section. If a contract was awarded under |
| 1944 |
the
competitive bid procedures of this section, any renewal of |
| 1945 |
that
contract is not subject to such competitive bid |
| 1946 |
requirements
if the contract contains a provision that allows |
| 1947 |
the
board to cancel the contract on 30 days' notice. Materials, |
| 1948 |
equipment,
or services provided to a condominium under a local |
| 1949 |
government
franchise agreement by a franchise holder are not |
| 1950 |
subject
to the competitive bid requirements of this section. A |
| 1951 |
contract
with a manager, if made by a competitive bid, may be |
| 1952 |
made
for up to 3 years. A condominium whose declaration or |
| 1953 |
bylaws
provides for competitive bidding for services may operate |
| 1954 |
under
the provisions of that declaration or bylaws in lieu of |
| 1955 |
this
section if those provisions are not less stringent than the |
| 1956 |
requirements
of this section. |
| 1957 |
(b) Nothing
contained herein is intended to limit the |
| 1958 |
ability of an association
to obtain needed products and services |
| 1959 |
in an emergency. |
| 1960 |
(c) This
section shall not apply if the business entity |
| 1961 |
with which the association
desires to enter into a contract is |
| 1962 |
the only source of supply
within the county serving the |
| 1963 |
association. |
| 1964 |
(d) Nothing
contained herein shall excuse a party |
| 1965 |
contracting to provide
maintenance or management services from |
| 1966 |
compliance with s.
718.3025. |
| 1967 |
(3) As
to any contract or other transaction between an |
| 1968 |
association
and one or more of its directors or any other |
| 1969 |
corporation,
firm, association, or entity in which one or more |
| 1970 |
of its
directors are directors or officers or are financially |
| 1971 |
interested: |
| 1972 |
(a) The
association shall comply with the requirements of |
| 1973 |
s.
617.0832. |
| 1974 |
(b) The
disclosures required by s. 617.0832 shall be |
| 1975 |
entered
into the written minutes of the meeting. |
| 1976 |
(c) Approval
of the contract or other transaction shall |
| 1977 |
require
an affirmative vote of two-thirds of the directors |
| 1978 |
present. |
| 1979 |
(d) At
the next regular or special meeting of the members, |
| 1980 |
the
existence of the contract or other transaction shall be |
| 1981 |
disclosed
to the members. Upon motion of any member, the |
| 1982 |
contract
or transaction shall be brought up for a vote and may |
| 1983 |
be
canceled by a majority vote of the members present. Should |
| 1984 |
the
members cancel the contract, the association shall only be |
| 1985 |
liable
for the reasonable value of goods and services provided |
| 1986 |
up to
the time of cancellation and shall not be liable for any |
| 1987 |
termination
fee, liquidated damages, or other form of penalty |
| 1988 |
for
such cancellation. |
| 1989 |
Section
20. Subsection (3) of section 718.303, Florida |
| 1990 |
Statutes, is amended to
read: |
| 1991 |
718.303 Obligations
of owners; waiver; levy of fine |
| 1992 |
against unit by
association.-- |
| 1993 |
(3) If
the declaration or bylaws so provide, the |
| 1994 |
association may levy
reasonable fines against a unit for the |
| 1995 |
failure of the owner of
the unit, or its occupant, licensee, or |
| 1996 |
invitee, to comply with
any provision of the declaration, the |
| 1997 |
association bylaws, or
reasonable rules of the association. No |
| 1998 |
fine will become a lien
against a unit. No fine may exceed $100 |
| 1999 |
per violation. However, a
fine may be levied on the basis of |
| 2000 |
each day of a continuing
violation, with a single notice and |
| 2001 |
opportunity for hearing,
provided that no such fine shall in the |
| 2002 |
aggregate exceed $1,000.
No fine may be levied except after |
| 2003 |
giving reasonable notice
and opportunity for a hearing to the |
| 2004 |
unit owner and, if
applicable, its licensee or invitee. The |
| 2005 |
hearing must be held
before a committee of other unit owners who |
| 2006 |
are
neither board members nor persons residing in a board |
| 2007 |
member's
household. If the committee does not agree with the |
| 2008 |
fine, the fine may not be
levied. The provisions of this |
| 2009 |
subsection do not apply to
unoccupied units. |
| 2010 |
Section
21. Section 718.501, Florida Statutes, is amended |
| 2011 |
to read: |
| 2012 |
718.501 Authority,
responsibility, Powers and duties of |
| 2013 |
Division of Florida Land
Sales, Condominiums, and Mobile |
| 2014 |
Homes.-- |
| 2015 |
(1) The
Division of Florida Land Sales, Condominiums, and |
| 2016 |
Mobile Homes of the
Department of Business and Professional |
| 2017 |
Regulation, referred to as
the "division" in this part, in |
| 2018 |
addition to other powers
and duties prescribed by chapter 498, |
| 2019 |
has the power to enforce
and ensure compliance with the |
| 2020 |
provisions of this chapter
and rules promulgated pursuant hereto |
| 2021 |
relating to the
development, construction, sale, lease, |
| 2022 |
ownership, operation, and
management of residential condominium |
| 2023 |
units. In performing its
duties, the division has complete |
| 2024 |
jurisdiction
to investigate complaints and enforce compliance |
| 2025 |
with
the provisions of this chapter with respect to associations |
| 2026 |
that
are still under developer control and complaints against |
| 2027 |
developers
involving improper turnover or failure to turnover, |
| 2028 |
pursuant
to s. 718.301. However, after turnover has occurred, |
| 2029 |
the
division shall only have jurisdiction to investigate |
| 2030 |
complaints
related to financial issues, elections, and unit |
| 2031 |
owner
access to association records pursuant to s. 718.111(12). |
| 2032 |
the
following powers and duties: |
| 2033 |
(a) The
division may make necessary public or private |
| 2034 |
investigations within or
outside this state to determine whether |
| 2035 |
any person has violated
this chapter or any rule or order |
| 2036 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
| 2037 |
in the adoption of rules
or forms hereunder. |
| 2038 |
(b) The
division may require or permit any person to file |
| 2039 |
a statement in writing,
under oath or otherwise, as the division |
| 2040 |
determines, as to the
facts and circumstances concerning a |
| 2041 |
matter to be investigated. |
| 2042 |
(c) For
the purpose of any investigation under this |
| 2043 |
chapter, the division
director or any officer or employee |
| 2044 |
designated by the division
director may administer oaths or |
| 2045 |
affirmations, subpoena
witnesses and compel their attendance, |
| 2046 |
take evidence, and require
the production of any matter which is |
| 2047 |
relevant to the
investigation, including the existence, |
| 2048 |
description, nature,
custody, condition, and location of any |
| 2049 |
books, documents, or other
tangible things and the identity and |
| 2050 |
location of persons having
knowledge of relevant facts or any |
| 2051 |
other matter reasonably
calculated to lead to the discovery of |
| 2052 |
material evidence. Upon
the failure by a person to obey a |
| 2053 |
subpoena or to answer
questions propounded by the investigating |
| 2054 |
officer and upon
reasonable notice to all persons affected |
| 2055 |
thereby, the division may
apply to the circuit court for an |
| 2056 |
order compelling
compliance. |
| 2057 |
(d) Notwithstanding
any remedies available to unit owners |
| 2058 |
and associations, if the
division has reasonable cause to |
| 2059 |
believe that a violation
of any provision of this chapter or |
| 2060 |
rule promulgated pursuant
hereto has occurred, the division may |
| 2061 |
institute enforcement
proceedings in its own name against any |
| 2062 |
developer, association,
officer, or member of the board of |
| 2063 |
administration, or its
assignees or agents, as follows: |
| 2064 |
1. The
division may permit a person whose conduct or |
| 2065 |
actions may be under
investigation to waive formal proceedings |
| 2066 |
and enter into a consent
proceeding whereby orders, rules, or |
| 2067 |
letters of censure or
warning, whether formal or informal, may |
| 2068 |
be entered against the
person. |
| 2069 |
2. The
division may issue an order requiring the |
| 2070 |
developer, association, developer-designated
officer, or |
| 2071 |
developer-designated
member of the board of administration, or |
| 2072 |
developer-designated
its assignees or agents, community |
| 2073 |
association
manager, or community association management firm to |
| 2074 |
cease and desist from the
unlawful practice and take such |
| 2075 |
affirmative action as in
the judgment of the division will carry |
| 2076 |
out the purposes of this
chapter. Such affirmative action may |
| 2077 |
include, but is not
limited to, an order requiring a developer |
| 2078 |
to pay moneys determined
to be owed to a condominium |
| 2079 |
association. |
| 2080 |
3. If
a developer fails to pay any restitution determined |
| 2081 |
by the
division to be owed, plus any accrued interest at the |
| 2082 |
highest
rate permitted by law, within 30 days after expiration |
| 2083 |
of any
appellate time period of a final order requiring payment |
| 2084 |
of
restitution or the conclusion of any appeal thereof, |
| 2085 |
whichever
is later, the division shall bring an action in |
| 2086 |
circuit
or county court on behalf of any association, class of |
| 2087 |
unit
owners, lessees, or purchasers for restitution, declaratory |
| 2088 |
relief,
injunctive relief, or any other available remedy. The |
| 2089 |
division
may also temporarily revoke its acceptance of the |
| 2090 |
filing
for the developer to which the restitution relates until |
| 2091 |
payment
of restitution is made. The
division may bring an action |
| 2092 |
in
circuit court on behalf of a class of unit owners, lessees, |
| 2093 |
or
purchasers for declaratory relief, injunctive relief, or |
| 2094 |
restitution. |
| 2095 |
4. The
division may impose a civil penalty against a |
| 2096 |
developer or association,
or its assignee or agent, for any |
| 2097 |
violation of this chapter
or a rule promulgated pursuant hereto. |
| 2098 |
The division may impose a
civil penalty individually against any |
| 2099 |
officer or board member
who willfully and knowingly violates a |
| 2100 |
provision of this chapter,
a rule adopted pursuant hereto, or a |
| 2101 |
final order of the
division; may order the removal of such |
| 2102 |
individual
as an officer or from the board of administration or |
| 2103 |
as an
officer of the association; and may prohibit such |
| 2104 |
individual
from serving as an officer or on the board of a |
| 2105 |
community
association for a period of time. The term
"willfully |
| 2106 |
and knowingly" means
that the division informed the officer or |
| 2107 |
board member that his or
her action or intended action violates |
| 2108 |
this chapter, a rule
adopted under this chapter, or a final |
| 2109 |
order of the division and
that the officer or board member |
| 2110 |
refused to comply with the
requirements of this chapter, a rule |
| 2111 |
adopted under this
chapter, or a final order of the division. |
| 2112 |
The division, prior to
initiating formal agency action under |
| 2113 |
chapter 120, shall afford
the officer or board member an |
| 2114 |
opportunity to voluntarily
comply with this chapter, a rule |
| 2115 |
adopted under this
chapter, or a final order of the division. An |
| 2116 |
officer or board member
who complies within 10 days is not |
| 2117 |
subject to a civil
penalty. A penalty may be imposed on the |
| 2118 |
basis of each day of
continuing violation, but in no event shall |
| 2119 |
the penalty for any
offense exceed $5,000. By January 1, 1998, |
| 2120 |
the division shall adopt,
by rule, penalty guidelines applicable |
| 2121 |
to possible violations or
to categories of violations of this |
| 2122 |
chapter or rules adopted
by the division. The guidelines must |
| 2123 |
specify a meaningful range
of civil penalties for each such |
| 2124 |
violation of the statute
and rules and must be based upon the |
| 2125 |
harm caused by the
violation, the repetition of the violation, |
| 2126 |
and upon such other
factors deemed relevant by the division. For |
| 2127 |
example, the division may
consider whether the violations were |
| 2128 |
committed by a developer
or owner-controlled association, the |
| 2129 |
size of the association,
and other factors. The guidelines must |
| 2130 |
designate the possible
mitigating or aggravating circumstances |
| 2131 |
that justify a departure
from the range of penalties provided by |
| 2132 |
the rules. It is the
legislative intent that minor violations be |
| 2133 |
distinguished from those
which endanger the health, safety, or |
| 2134 |
welfare of the condominium
residents or other persons and that |
| 2135 |
such guidelines provide
reasonable and meaningful notice to the |
| 2136 |
public of likely penalties
that may be imposed for proscribed |
| 2137 |
conduct. This subsection
does not limit the ability of the |
| 2138 |
division to informally
dispose of administrative actions or |
| 2139 |
complaints by stipulation,
agreed settlement, or consent order. |
| 2140 |
All amounts collected
shall be deposited with the Chief |
| 2141 |
Financial Officer to the
credit of the Division of Florida Land |
| 2142 |
Sales, Condominiums, and
Mobile Homes Trust Fund. If a developer |
| 2143 |
fails to pay the civil
penalty and the amount deemed to be owed |
| 2144 |
to
the association, the division shall thereupon issue an
order |
| 2145 |
directing that such
developer cease and desist from further |
| 2146 |
operation until such time
as the civil penalty is paid or may |
| 2147 |
pursue enforcement of the
penalty in a court of competent |
| 2148 |
jurisdiction. If an
association fails to pay the civil penalty, |
| 2149 |
the division shall
thereupon pursue enforcement in a court of |
| 2150 |
competent jurisdiction,
and the order imposing the civil penalty |
| 2151 |
or the cease and desist
order will not become effective until 20 |
| 2152 |
days after the date of
such order. Any action commenced by the |
| 2153 |
division shall be brought
in the county in which the division |
| 2154 |
has its executive offices
or in the county where the violation |
| 2155 |
occurred. |
| 2156 |
5. If
a unit owner presents the division with proof that |
| 2157 |
the
unit owner has requested access to official records in |
| 2158 |
writing
by certified mail, and that after 10 days the unit owner |
| 2159 |
again
made the same request for access to official records in |
| 2160 |
writing
by certified mail, and that more than 10 days has |
| 2161 |
elapsed
since the second request and the association has still |
| 2162 |
failed
or refused to provide access to official records as |
| 2163 |
required
by this chapter, the division shall issue a subpoena |
| 2164 |
requiring
production of the requested records where the records |
| 2165 |
are
kept pursuant to s. 718.112. |
| 2166 |
(e) The
division is authorized to prepare and disseminate |
| 2167 |
a prospectus and other
information to assist prospective owners, |
| 2168 |
purchasers, lessees, and
developers of residential condominiums |
| 2169 |
in assessing the rights,
privileges, and duties pertaining |
| 2170 |
thereto. |
| 2171 |
(f) The
division has authority to adopt rules pursuant to |
| 2172 |
ss. 120.536(1) and 120.54
to implement and enforce the |
| 2173 |
provisions of this
chapter. |
| 2174 |
(g) The
division shall establish procedures for providing |
| 2175 |
notice to an association and
the developer during the period |
| 2176 |
where
the developer controls the association when the division |
| 2177 |
is considering the
issuance of a declaratory statement with |
| 2178 |
respect to the declaration
of condominium or any related |
| 2179 |
document governing in such
condominium community. |
| 2180 |
(h) The
division shall furnish each association which pays |
| 2181 |
the fees required by
paragraph (2)(a) a copy of this act, |
| 2182 |
subsequent changes to this
act on an annual basis, an amended |
| 2183 |
version of this act as it
becomes available from the Secretary |
| 2184 |
of State's office on a
biennial basis, and the rules promulgated |
| 2185 |
pursuant thereto on an
annual basis. |
| 2186 |
(i) The
division shall annually provide each association |
| 2187 |
with a summary of
declaratory statements and formal legal |
| 2188 |
opinions relating to the
operations of condominiums which were |
| 2189 |
rendered by the division
during the previous year. |
| 2190 |
(j) The
division shall provide training and educational |
| 2191 |
programs for condominium
association board members and unit |
| 2192 |
owners. The
training may, in the division's discretion, include |
| 2193 |
web-based
electronic media, and live training and seminars in |
| 2194 |
various
locations throughout the state. The division shall have |
| 2195 |
the
authority to review and approve education and training |
| 2196 |
programs
for board members and unit owners offered by providers |
| 2197 |
and
shall maintain a current list of approved programs and |
| 2198 |
providers
and shall make such list available to board members |
| 2199 |
and
unit owners in a reasonable and cost-effective manner. |
| 2200 |
(k) The
division shall maintain a toll-free telephone |
| 2201 |
number accessible to
condominium unit owners. |
| 2202 |
(l) The
division shall develop a program to certify both |
| 2203 |
volunteer and paid
mediators to provide mediation of condominium |
| 2204 |
disputes. The division
shall provide, upon request, a list of |
| 2205 |
such mediators to any
association, unit owner, or other |
| 2206 |
participant in arbitration
proceedings under s. 718.1255 |
| 2207 |
requesting a copy of the
list. The division shall include on the |
| 2208 |
list of volunteer
mediators only the names of persons who have |
| 2209 |
received at least 20 hours
of training in mediation techniques |
| 2210 |
or who have mediated at
least 20 disputes. In order to become |
| 2211 |
initially certified by the
division, paid mediators must be |
| 2212 |
certified by the Supreme
Court to mediate court cases in either |
| 2213 |
county or circuit courts.
However, the division may adopt, by |
| 2214 |
rule, additional factors
for the certification of paid |
| 2215 |
mediators, which factors
must be related to experience, |
| 2216 |
education, or background.
Any person initially certified as a |
| 2217 |
paid mediator by the
division must, in order to continue to be |
| 2218 |
certified, comply with the
factors or requirements imposed by |
| 2219 |
rules adopted by the
division. |
| 2220 |
(m) When
a complaint is made, the division shall conduct |
| 2221 |
its inquiry with due
regard to the interests of the affected |
| 2222 |
parties. Within 30 days
after receipt of a complaint, the |
| 2223 |
division shall acknowledge
the complaint in writing and notify |
| 2224 |
the complainant whether
the complaint is within the jurisdiction |
| 2225 |
of the division and
whether additional information is needed by |
| 2226 |
the division from the
complainant. The division shall conduct |
| 2227 |
its investigation and
shall, within 90 days after receipt of the |
| 2228 |
original complaint or of
timely requested additional |
| 2229 |
information, take action
upon the complaint. However, the |
| 2230 |
failure to complete the
investigation within 90 days does not |
| 2231 |
prevent the division from
continuing the investigation, |
| 2232 |
accepting or considering
evidence obtained or received after 90 |
| 2233 |
days, or taking
administrative action if reasonable cause exists |
| 2234 |
to believe that a
violation of this chapter or a rule of the |
| 2235 |
division has occurred. If
an investigation is not completed |
| 2236 |
within the time limits
established in this paragraph, the |
| 2237 |
division shall, on a
monthly basis, notify the complainant in |
| 2238 |
writing of the status of
the investigation. When reporting its |
| 2239 |
action to the complainant,
the division shall inform the |
| 2240 |
complainant of any right
to a hearing pursuant to ss. 120.569 |
| 2241 |
and 120.57. |
| 2242 |
(n) Condominium
association directors, officers, and |
| 2243 |
employees;
condominium developers; community association |
| 2244 |
managers;
and community association management firms have an |
| 2245 |
ongoing
duty to reasonably cooperate with the division in any |
| 2246 |
investigation
pursuant to this section. The division shall refer |
| 2247 |
to
local law enforcement authorities any person whom the |
| 2248 |
division
believes has altered, destroyed, concealed, or removed |
| 2249 |
any
record, document, or thing required to be kept or maintained |
| 2250 |
by this
chapter with the purpose to impair its verity or |
| 2251 |
availability
in the department's investigation. |
| 2252 |
(2)(a) Effective
January 1, 1992, Each condominium |
| 2253 |
association which operates
more than two units shall pay to the |
| 2254 |
division an annual fee in
the amount of $4 for each residential |
| 2255 |
unit in condominiums
operated by the association. If the fee is |
| 2256 |
not paid by March 1, then
the association shall be assessed a |
| 2257 |
penalty of 10 percent of
the amount due, and the association |
| 2258 |
will not have standing to
maintain or defend any action in the |
| 2259 |
courts of this state until
the amount due, plus any penalty, is |
| 2260 |
paid. |
| 2261 |
(b) All
fees shall be deposited in the Division of Florida |
| 2262 |
Land Sales, Condominiums,
and Mobile Homes Trust Fund as |
| 2263 |
provided by law. |
| 2264 |
Section
22. Subsection (9) of section 718.5012, Florida |
| 2265 |
Statutes, is renumbered as
subsection (10), and a new subsection |
| 2266 |
(9) is added to that
section to read: |
| 2267 |
718.5012 Ombudsman;
powers and duties.--The ombudsman |
| 2268 |
shall have the powers that
are necessary to carry out the duties |
| 2269 |
of his or her office,
including the following specific powers: |
| 2270 |
(9) To
assist with the resolution of disputes between unit |
| 2271 |
owners
and the association or between unit owners when the |
| 2272 |
dispute
is not within the jurisdiction of the division to |
| 2273 |
resolve. |
| 2274 |
Section
23. Section 718.50151, Florida Statutes, is |
| 2275 |
amended to read: |
| 2276 |
718.50151 Community
Association Living Study Advisory |
| 2277 |
Council; membership
functions.-- |
| 2278 |
(1) There
is created the Community Association Living |
| 2279 |
Study
Advisory Council on
Condominiums. The council shall |
| 2280 |
consist of seven appointed
members. Two members shall be |
| 2281 |
appointed by the President
of the Senate, two members shall be |
| 2282 |
appointed by the Speaker
of the House of Representatives, and |
| 2283 |
three members shall be
appointed by the Governor. At least One |
| 2284 |
member that is appointed
by the Governor may shall
represent |
| 2285 |
timeshare condominiums. The
council shall be created as of |
| 2286 |
October
1 every 5 years, commencing October 1, 2008, and shall |
| 2287 |
exist
for a 6-month term. Members
shall be appointed to 2-year |
| 2288 |
terms;
however, one of the persons initially appointed by the |
| 2289 |
Governor,
by the President of the Senate, and by the Speaker of |
| 2290 |
the
House of Representatives shall be appointed to a 1-year |
| 2291 |
term.
The director of the division shall appoint
serve as an ex |
| 2292 |
officio nonvoting member.
The Legislature intends that the |
| 2293 |
persons appointed
represent a cross-section of persons |
| 2294 |
interested in community
association condominium
issues. The |
| 2295 |
council shall be located
within the division for administrative |
| 2296 |
purposes. Members of the
council shall serve without |
| 2297 |
compensation but are
entitled to receive per diem and travel |
| 2298 |
expenses pursuant to s.
112.061 while on official business. |
| 2299 |
(2) The
functions of the advisory
council shall be to: |
| 2300 |
(a) Receive,
from the public, input regarding issues of |
| 2301 |
concern with respect to community
association living, including |
| 2302 |
living
in condominiums, cooperatives,
and homeowners' |
| 2303 |
associations.
The council shall make and
recommendations for |
| 2304 |
changes in the condominium
law related to community association |
| 2305 |
living.
The issues that the council shall consider include, but |
| 2306 |
are not limited to, the
rights and responsibilities of the unit |
| 2307 |
owners in relation to the
rights and responsibilities of the |
| 2308 |
association. |
| 2309 |
(b) Review,
evaluate, and advise the division concerning |
| 2310 |
revisions and adoption of
rules affecting condominiums and |
| 2311 |
cooperatives. |
| 2312 |
(c) Recommend
improvements, if needed, in the education |
| 2313 |
programs offered by the
division. |
| 2314 |
(d) Review,
evaluate, and advise the Legislature |
| 2315 |
concerning
revisions and improvements to the laws relating to |
| 2316 |
condominiums,
cooperatives, and homeowners' associations. |
| 2317 |
(3) The
council may elect a chair and vice chair and such |
| 2318 |
other officers as it may
deem advisable. The council shall meet |
| 2319 |
at the call of its chair,
at the request of a majority of its |
| 2320 |
membership, at the request
of the division, or at such times as |
| 2321 |
it may prescribe. A
majority of the members of the council shall |
| 2322 |
constitute a quorum.
Council action may be taken by vote of a |
| 2323 |
majority of the voting
members who are present at a meeting |
| 2324 |
where there is a quorum. |
| 2325 |
Section
24. Paragraph (a) of subsection (2) of section |
| 2326 |
718.503, Florida Statutes,
is amended to read: |
| 2327 |
718.503 Developer
disclosure prior to sale; nondeveloper |
| 2328 |
unit owner disclosure
prior to sale; voidability.-- |
| 2329 |
(2) NONDEVELOPER
DISCLOSURE.-- |
| 2330 |
(a) Each
unit owner who is not a developer as defined by |
| 2331 |
this chapter shall comply
with the provisions of this subsection |
| 2332 |
prior to the sale of his
or her unit. Each prospective purchaser |
| 2333 |
who has entered into a
contract for the purchase of a |
| 2334 |
condominium unit is
entitled, at the seller's expense, to a |
| 2335 |
current copy of the
declaration of condominium, articles of |
| 2336 |
incorporation of the
association, bylaws and rules of the |
| 2337 |
association, financial
information required by s. 718.111, and |
| 2338 |
the document entitled
"Frequently Asked Questions and Answers" |
| 2339 |
required by s. 718.504. On
and after January 1, 2009, the |
| 2340 |
prospective
purchaser shall also be entitled to receive from the |
| 2341 |
seller
a copy of a governance form. Such form shall be provided |
| 2342 |
by the
division summarizing governance of condominium |
| 2343 |
associations.
In addition to such other information as the |
| 2344 |
division
considers helpful to a prospective purchaser in |
| 2345 |
understanding
association governance, the governance form shall |
| 2346 |
address
the following subjects: |
| 2347 |
1. The
role of the board in conducting the day-to-day |
| 2348 |
affairs
of the association on behalf of, and in the best |
| 2349 |
interests
of, the owners. |
| 2350 |
2. The
board's responsibility to provide advance notice of |
| 2351 |
board
and membership meetings. |
| 2352 |
3. The
rights of owners to attend and speak at board and |
| 2353 |
membership
meetings. |
| 2354 |
4. The
responsibility of the board and of owners with |
| 2355 |
respect
to maintenance of the condominium property. |
| 2356 |
5. The
responsibility of the board and owners to abide by |
| 2357 |
the
condominium documents, this chapter, rules adopted by the |
| 2358 |
division,
and reasonable rules adopted by the board. |
| 2359 |
6. Owners'
rights to inspect and copy association records |
| 2360 |
and the
limitations on such rights. |
| 2361 |
7. Remedies
available to owners with respect to actions by |
| 2362 |
the
board which may be abusive or beyond the board's power and |
| 2363 |
authority. |
| 2364 |
8. The
right of the board to hire a property management |
| 2365 |
firm,
subject to its own primary responsibility for such |
| 2366 |
management. |
| 2367 |
9. The
responsibility of owners with regard to payment of |
| 2368 |
regular
or special assessments necessary for the operation of |
| 2369 |
the
property and the potential consequences of failure to pay |
| 2370 |
such
assessments. |
| 2371 |
10. The
voting rights of owners. |
| 2372 |
11. Rights
and obligations of the board in enforcement of |
| 2373 |
rules
in the condominium documents and rules adopted by the |
| 2374 |
board. |
| 2375 |
|
| 2376 |
The
governance form shall also include the following statement |
| 2377 |
in
conspicuous type: "This publication is intended as an |
| 2378 |
informal
educational overview of condominium governance. In the |
| 2379 |
event
of a conflict, the provisions of chapter 718, Florida |
| 2380 |
Statutes,
rules adopted by the Division of Florida Land Sales, |
| 2381 |
Condominiums,
and Mobile Homes of the Department of Business and |
| 2382 |
Professional
Regulation, the provisions of the condominium |
| 2383 |
documents,
and reasonable rules adopted by the condominium |
| 2384 |
association's
board of administration prevail over the contents |
| 2385 |
of this
publication." |
| 2386 |
Section
25. This act shall take effect October 1, 2008. |