179 |
Be It Enacted by the
Legislature of the State of Florida: |
180 |
|
181 |
Section
1. Section 468.431, Florida Statutes, is amended |
182 |
to read: |
183 |
468.431 Definitions.--
As used in this part: |
184 |
(1) "Community
association" means a residential |
185 |
homeowners' association in
which membership is a condition of |
186 |
ownership of a unit in a
planned unit development, or of a lot |
187 |
for a home or a mobile
home, or of a townhouse, villa, |
188 |
condominium, cooperative,
or other residential unit which is |
189 |
part of a residential
development scheme and which is authorized |
190 |
to impose a fee which may
become a lien on the parcel. |
191 |
(2) "Community
association management" means any of the |
192 |
following practices
requiring substantial specialized knowledge, |
193 |
judgment, and managerial
skill when done for remuneration and |
194 |
when the association or
associations served contain more than 10 |
195 |
50 units or have an
annual budget or budgets in excess of |
196 |
$100,000: controlling or
disbursing funds of a community |
197 |
association, preparing
budgets or other financial documents for |
198 |
a community association,
assisting in the noticing or conduct of |
199 |
community association
meetings, and coordinating maintenance for |
200 |
the residential
development and other day-to-day services |
201 |
involved with the
operation of a community association. A person |
202 |
who performs clerical or
ministerial functions under the direct |
203 |
supervision and control of
a licensed manager or who is charged |
204 |
only with performing the
maintenance of a community association |
205 |
and who does not assist in
any of the management services |
206 |
described in this
subsection is not required to be licensed |
207 |
under this part. |
208 |
(3) "Community
association management firm" means a |
209 |
corporation,
limited liability company, partnership, trust, |
210 |
association,
sole proprietorship, or other similar organization |
211 |
engaging
in the business of community association management for |
212 |
the
purpose of providing any of the services described in |
213 |
subsection
(2). |
214 |
(4)(3) "Community
association manager" means a natural |
215 |
person who is licensed
pursuant to this part to perform |
216 |
community association
management services. |
217 |
(5)(4) "Council"
means the Regulatory Council of Community |
218 |
Association Managers. |
219 |
(6)(5) "Department"
means the Department of Business and |
220 |
Professional Regulation. |
221 |
Section
2. Section 468.4315, Florida Statutes, is amended |
222 |
to read: |
223 |
468.4315 Regulatory
Council of Community Association |
224 |
Managers.-- |
225 |
(1) The
Regulatory Council of Community Association |
226 |
Managers is created within
the department and shall consist of |
227 |
seven members appointed by
the Governor and confirmed by the |
228 |
Senate. |
229 |
(a) Five
members of the council shall be licensed |
230 |
community association
managers, one of whom may shall be a |
231 |
community association
manager employed by a timeshare managing |
232 |
entity as described in ss.
468.438 and 721.13, who have held an |
233 |
active license for at
least 5 years. The remaining two council |
234 |
members shall be residents
of this state, and must not be or |
235 |
ever have been connected
with the business of community |
236 |
association management,
and shall not be prohibited from serving |
237 |
because
the member is or has been a resident or board member of |
238 |
a
community association. |
239 |
(b) The
Governor shall appoint members for terms of 4 |
240 |
years. Such members shall
serve until their successors are |
241 |
appointed. Members'
service on the council shall begin upon |
242 |
appointment and shall
continue until their successors are |
243 |
appointed. |
244 |
(2) The
council may adopt rules relating to the licensure |
245 |
examination, continuing
education requirements, continuing |
246 |
education providers, fees,
and professional practice standards |
247 |
to assist the department
in carrying out the duties and |
248 |
authorities conferred upon
the department by this part. |
249 |
(3)
To the extent the council is authorized to exercise |
250 |
functions otherwise
exercised by a board pursuant to chapter |
251 |
455, the provisions of
chapter 455 and s. 20.165 relating to |
252 |
regulatory boards shall
apply, including, but not limited to, |
253 |
provisions relating to
board rules and the accountability and |
254 |
liability of board
members. All proceedings and actions of the |
255 |
council are subject to the
provisions of chapter 120. In |
256 |
addition, the provisions
of chapter 455 and s. 20.165 shall |
257 |
apply to the department in
carrying out the duties and |
258 |
authorities conferred upon
the department by this part. |
259 |
(4) The
council may establish a public education program |
260 |
relating
to professional community association management. |
261 |
(5) Members
of the council shall serve without |
262 |
compensation
but are entitled to receive per diem and travel |
263 |
expenses
pursuant to s. 112.061 while carrying out business |
264 |
approved
by the council. |
265 |
(6) The
responsibilities of the council shall include, but |
266 |
not be
limited to: |
267 |
(a) Receiving
input regarding issues of concern with |
268 |
respect
to community association management and recommendations |
269 |
for
changes in applicable laws. |
270 |
(b) Reviewing,
evaluating, and advising the division |
271 |
concerning
revisions and adoption of rules affecting community |
272 |
association
management. |
273 |
(c) Recommending
improvements, if needed, in the education |
274 |
programs
offered by the division. |
275 |
Section
3. Section 468.432, Florida Statutes, is amended |
276 |
to read: |
277 |
468.432 Licensure
of community association managers and |
278 |
community
association management firms; exceptions.-- |
279 |
(1) A
person shall not manage or hold herself or himself |
280 |
out to the public as being
able to manage a community |
281 |
association in this state
unless she or he is licensed by the |
282 |
department in accordance
with the provisions of this part. |
283 |
However, nothing in this
part prohibits any person licensed in |
284 |
this state under any other
law or court rule from engaging in |
285 |
the profession for which
she or he is licensed. |
286 |
(2) As
of January 1, 2009, a community association |
287 |
management
firm or other similar organization responsible for |
288 |
the
management of more than 10 units or a budget of $100,000 or |
289 |
greater
shall not engage or hold itself out to the public as |
290 |
being
able to engage in the business of community association |
291 |
management
in this state unless it is licensed by the department |
292 |
as a
community association management firm in accordance with |
293 |
the
provisions of this part. |
294 |
(a) A
community association management firm or other |
295 |
similar
organization desiring to be licensed as a community |
296 |
association
management firm shall apply to the department on a |
297 |
form
approved by the department together with the application |
298 |
and
licensure fees required by s. 468.435(1)(a) and (c). Each |
299 |
community
association management firm applying for licensure |
300 |
under
this subsection must be actively registered and authorized |
301 |
to do
business in this state. |
302 |
(b) Each
applicant shall designate on its application a |
303 |
licensed
community association manager who shall be required to |
304 |
respond
to all inquires from and investigations by the |
305 |
department
or division. |
306 |
(c) Each
licensed community association management firm |
307 |
shall
notify the department within 30 days after any change of |
308 |
information
contained in the application upon which licensure is |
309 |
based. |
310 |
(d) Community
association management firm licenses shall |
311 |
expire
on September 30 of odd-numbered years and shall be |
312 |
renewed
every 2 years. An application for renewal shall be |
313 |
accompanied
by the renewal fee as required by s. 468.435(1)(d). |
314 |
(e) The
department shall license each applicant whom the |
315 |
department
certifies as meeting the requirements of this |
316 |
subsection. |
317 |
(f) If
the license of at least one individual active |
318 |
community
association manager member is not in force, the |
319 |
license
of the community association management firm or other |
320 |
similar
organization is canceled automatically during that time. |
321 |
(g) Any
community association management firm or other |
322 |
similar
organization agrees by being licensed that it will |
323 |
employ
only licensed persons in the direct provision of |
324 |
community
association management services as described in s. |
325 |
468.431(3). |
326 |
(2) Nothing
in this part prohibits a corporation, |
327 |
partnership,
trust, association, or other like organization from |
328 |
engaging
in the business of community association management |
329 |
without
being licensed if it employs licensed natural persons in |
330 |
the
direct provision of community association management |
331 |
services.
Such corporation, partnership, trust, association, or |
332 |
other
organization shall also file with the department a |
333 |
statement
on a form approved by the department that it submits |
334 |
itself
to the rules of the council and the department and the |
335 |
provisions
of this part which the department deems applicable. |
336 |
Section
4. Subsections (2) and (4) of section 468.433, |
337 |
Florida Statutes, are
amended to read: |
338 |
468.433 Licensure
by examination.-- |
339 |
(2) The
department shall examine each applicant who is at |
340 |
least 18 years of age, who
has successfully completed all |
341 |
prelicensure education
requirements, and who the department |
342 |
certifies is of good moral
character. |
343 |
(a) Good
moral character means a personal history of |
344 |
honesty, fairness, and
respect for the rights of others and for |
345 |
the laws of this state and
nation. |
346 |
(b) The
department may refuse to certify an applicant only |
347 |
if: |
348 |
1. There
is a substantial connection between the lack of |
349 |
good moral character of
the applicant and the professional |
350 |
responsibilities of a
community association manager; and |
351 |
2. The
finding by the department of lack of good moral |
352 |
character is supported by
clear and convincing evidence; or |
353 |
3. The
applicant is found to have provided management |
354 |
services
requiring licensure without the requisite license. |
355 |
(c) When
an applicant is found to be unqualified for a |
356 |
license because of a lack
of good moral character, the |
357 |
department shall furnish
the applicant a statement containing |
358 |
its findings, a complete
record of the evidence upon which the |
359 |
determination was based,
and a notice of the rights of the |
360 |
applicant to a rehearing
and appeal. |
361 |
(d) The
council shall establish by rule the required |
362 |
amount of prelicensure
education, which shall consist of not |
363 |
more than 24 hours of
in-person instruction by a department- |
364 |
approved provider and
which shall cover all areas of the |
365 |
examination specified in
subsection (3). Such instruction shall |
366 |
be completed within 12
months prior to the date of the |
367 |
examination. Prelicensure
education providers shall be |
368 |
considered continuing
education providers for purposes of |
369 |
establishing provider
approval fees. A licensee shall not be |
370 |
required to comply with
the continuing education requirements of |
371 |
s. 468.4337 prior to the
first license renewal. The department |
372 |
shall, by rule, set
standards for exceptions to the requirement |
373 |
of in-person instruction
in cases of hardship or disability. |
374 |
(4) The
department shall issue a license to practice in |
375 |
this state as a community
association manager to any qualified |
376 |
applicant who successfully
completes the examination in |
377 |
accordance with this
section and pays the appropriate fee. |
378 |
Section
5. Section 468.436, Florida Statutes, is amended |
379 |
to read: |
380 |
468.436 Disciplinary
proceedings.-- |
381 |
(1) The
department shall investigate complaints and |
382 |
allegations
of a violation of this part or chapter 455, or any |
383 |
rule
adopted thereunder, filed against community association |
384 |
managers
or firms and forwarded from other divisions under the |
385 |
Department
of Business and Professional Regulation. After a |
386 |
complaint
is received, the department shall conduct its inquiry |
387 |
with
due regard to the interests of the affected parties. Within |
388 |
30 days
after receipt of a complaint, the department shall |
389 |
acknowledge
the complaint in writing and notify the complainant |
390 |
whether
or not the complaint is within the jurisdiction of the |
391 |
department
and whether or not additional information is needed |
392 |
by the
department from the complainant. The department shall |
393 |
conduct
an investigation and shall, within 90 days after receipt |
394 |
of the
original complaint or of a timely request for additional |
395 |
information,
take action upon the complaint. However, the |
396 |
failure
to complete the investigation within 90 days does not |
397 |
prevent
the department from continuing the investigation, |
398 |
accepting
or considering evidence obtained or received after 90 |
399 |
days,
or taking administrative action if reasonable cause exists |
400 |
to
believe that a violation of this part or chapter 455, or a |
401 |
rule of
the department has occurred. If an investigation is not |
402 |
completed
within the time limits established in this subsection, |
403 |
the
department shall, on a monthly basis, notify the complainant |
404 |
in
writing of the status of the investigation. When reporting |
405 |
its
action to the complainant, the department shall inform the |
406 |
complainant
of any right to a hearing pursuant to ss. 120.569 |
407 |
and
120.57. |
408 |
(2)(1) The
following acts constitute grounds for which the |
409 |
disciplinary actions in
subsection (4) (3) may be taken: |
410 |
(a) Violation
of any provision of s. 455.227(1). |
411 |
(b)1. Violation
of any provision of this part. |
412 |
2. Violation
of any lawful order or rule rendered or |
413 |
adopted by the department
or the council. |
414 |
3. Being
convicted of or pleading nolo contendere to a |
415 |
felony in any court in the
United States. |
416 |
4. Obtaining
a license or certification or any other |
417 |
order, ruling, or
authorization by means of fraud, |
418 |
misrepresentation, or
concealment of material facts. |
419 |
5. Committing
acts of gross misconduct or gross negligence |
420 |
in connection with the
profession. |
421 |
6. Contracting,
on behalf of an association, with any |
422 |
entity
in which the licensee has a financial interest that is |
423 |
not
disclosed. |
424 |
(3)(2) The
council shall specify by rule the acts or |
425 |
omissions that constitute
a violation of subsection (2) (1). |
426 |
(4)(3) When
the department finds any community association |
427 |
manager or firm
guilty of any of the grounds set forth in |
428 |
subsection (2)
(1), it may enter an order
imposing one or more |
429 |
of the following
penalties: |
430 |
(a) Denial
of an application for licensure. |
431 |
(b) Revocation
or suspension of a license. |
432 |
(c) Imposition
of an administrative fine not to exceed |
433 |
$5,000 for each count or
separate offense. |
434 |
(d) Issuance
of a reprimand. |
435 |
(e) Placement
of the community association manager on |
436 |
probation for a period of
time and subject to such conditions as |
437 |
the department specifies. |
438 |
(f) Restriction
of the authorized scope of practice by the |
439 |
community association
manager. |
440 |
(5)(4) The
department may shall
reissue the license of a |
441 |
disciplined community
association manager or firm upon |
442 |
certification by the
department that the disciplined person or |
443 |
firm
has complied with all of the terms and conditions set forth |
444 |
in the final order. |
445 |
Section
6. Paragraph (b) of subsection (1) and subsections |
446 |
(12) and (13) of section
718.111, Florida Statutes are amended, |
447 |
and paragraph (d) is added
to subsection (1) of that section, to |
448 |
read: |
449 |
718.111 The
association.-- |
450 |
(1) CORPORATE
ENTITY.-- |
451 |
(b) A
director of the association who is present at a |
452 |
meeting of its board at
which action on any corporate matter is |
453 |
taken shall be presumed to
have assented to the action taken |
454 |
unless he or she votes
against such action or abstains from |
455 |
voting
in respect thereto because of an asserted conflict of |
456 |
interest. A
director of the association who abstains from voting |
457 |
on any
action taken on any corporate matter shall be presumed to |
458 |
have
taken no position with regard to the action. Directors
may |
459 |
not vote by proxy or by
secret ballot at board meetings, except |
460 |
that officers may be
elected by secret ballot. A vote or |
461 |
abstention for each member
present shall be recorded in the |
462 |
minutes. |
463 |
(d) As
required by s. 617.0830, an officer, director, or |
464 |
agent
shall discharge his or her duties in good faith, with the |
465 |
care an
ordinarily prudent person in a like position would |
466 |
exercise
under similar circumstances, and in a manner he or she |
467 |
reasonably
believes to be in the interests of the association. |
468 |
An
officer, director, or agent shall be liable for monetary |
469 |
damages
as provided in s. 617.0834 if such officer, director, or |
470 |
agent
breached or failed to perform his or her duties and the |
471 |
breach
of, or failure to perform, his or her duties constitutes |
472 |
a
violation of criminal law as provided in s. 617.0834; |
473 |
constitutes
a transaction from which the officer or director |
474 |
derived
an improper personal benefit, either directly or |
475 |
indirectly;
or constitutes recklessness or an act or omission |
476 |
that
was in bad faith, with malicious purpose, or in a manner |
477 |
exhibiting
wanton and willful disregard of human rights, safety, |
478 |
or
property. |
479 |
(12) OFFICIAL
RECORDS.-- |
480 |
(a) From
the inception of the association, the association |
481 |
shall maintain each of the
following items, when applicable, |
482 |
which shall constitute the
official records of the association: |
483 |
1. A
copy of the plans, permits, warranties, and other |
484 |
items provided by the
developer pursuant to s. 718.301(4). |
485 |
2. A
photocopy of the recorded declaration of condominium |
486 |
of each condominium
operated by the association and of each |
487 |
amendment to each
declaration. |
488 |
3. A
photocopy of the recorded bylaws of the association |
489 |
and of each amendment to
the bylaws. |
490 |
4. A
certified copy of the articles of incorporation of |
491 |
the association, or other
documents creating the association, |
492 |
and of each amendment
thereto. |
493 |
5. A
copy of the current rules of the association. |
494 |
6. A
book or books which contain the minutes of all |
495 |
meetings of the
association, of the board of administration |
496 |
directors,
and of unit owners, which minutes shall be retained |
497 |
for a period of not less
than 7 years. |
498 |
7. A
current roster of all unit owners and their mailing |
499 |
addresses, unit
identifications, voting certifications, and, if |
500 |
known, telephone numbers.
The association shall also maintain |
501 |
the electronic mailing
addresses and the numbers designated by |
502 |
unit owners for receiving
notice sent by electronic transmission |
503 |
of those unit owners
consenting to receive notice by electronic |
504 |
transmission. The
electronic mailing addresses and numbers |
505 |
provided by unit owners to
receive notice by electronic |
506 |
transmission shall be
removed from association records when |
507 |
consent to receive notice
by electronic transmission is revoked. |
508 |
However, the association
is not liable for an erroneous |
509 |
disclosure of the
electronic mail address or the number for |
510 |
receiving electronic
transmission of notices. |
511 |
8. All
current insurance policies of the association and |
512 |
condominiums operated by
the association. |
513 |
9. A
current copy of any management agreement, lease, or |
514 |
other contract to which
the association is a party or under |
515 |
which the association or
the unit owners have an obligation or |
516 |
responsibility. |
517 |
10. Bills
of sale or transfer for all property owned by |
518 |
the association. |
519 |
11. Accounting
records for the association and separate |
520 |
accounting records for
each condominium which the association |
521 |
operates. All accounting
records shall be maintained for a |
522 |
period of not less than 7
years. Any person who knowingly or |
523 |
intentionally
defaces or destroys accounting records required to |
524 |
be
maintained by this chapter, or who knowingly or intentionally |
525 |
fails
to create or maintain accounting records required to be |
526 |
maintained
by this chapter, is personally subject to a civil |
527 |
penalty
pursuant to s. 718.501(1)(d). The accounting records |
528 |
shall include, but are not
limited to: |
529 |
a. Accurate,
itemized, and detailed records of all |
530 |
receipts and expenditures. |
531 |
b. A
current account and a monthly, bimonthly, or |
532 |
quarterly statement of the
account for each unit designating the |
533 |
name of the unit owner,
the due date and amount of each |
534 |
assessment, the amount
paid upon the account, and the balance |
535 |
due. |
536 |
c. All
audits, reviews, accounting statements, and |
537 |
financial reports of the
association or condominium. |
538 |
d. All
contracts for work to be performed. Bids for work |
539 |
to be performed shall also
be considered official records and |
540 |
shall be maintained by
the association for a period of
1 year. |
541 |
12. Ballots,
sign-in sheets, voting proxies, and all other |
542 |
papers relating to voting
by unit owners, which shall be |
543 |
maintained for a period of
1 year from the date of the election, |
544 |
vote, or meeting to which
the document relates, notwithstanding |
545 |
paragraph
(b). |
546 |
13. All
rental records, when the association is acting as |
547 |
agent for the rental of
condominium units. |
548 |
14. A
copy of the current question and answer sheet as |
549 |
described by s. 718.504. |
550 |
15. All
other records of the association not specifically |
551 |
included in the foregoing
which are related to the operation of |
552 |
the association. |
553 |
16. A
copy of the inspection report as provided for in s. |
554 |
718.301(4)(p). |
555 |
(b) The
official records of the association shall be |
556 |
maintained within the
state for at least 7 years. The
records of |
557 |
the association shall be
made available to a unit owner within |
558 |
45
miles of the condominium property or within the county in |
559 |
which
the condominium property is located within 5 working days |
560 |
after receipt of written
request by the board or its designee. |
561 |
However,
such distance requirement does not apply to an |
562 |
association
governing a timeshare condominium. This paragraph |
563 |
may be complied with by
having a copy of the official records of |
564 |
the association available
for inspection or copying on the |
565 |
condominium property or
association property, or the association |
566 |
may
offer the option of making the records of the association |
567 |
available
to a unit owner either electronically via the Internet |
568 |
or by
allowing the records to be viewed in electronic format on |
569 |
a
computer screen and printed upon request. |
570 |
(c) The
official records of the association are open to |
571 |
inspection by any
association member or the authorized |
572 |
representative of such
member at all reasonable times. The right |
573 |
to inspect the records
includes the right to make or obtain |
574 |
copies, at the reasonable
expense, if any, of the association |
575 |
member. The association
may adopt reasonable rules regarding the |
576 |
frequency, time, location,
notice, and manner of record |
577 |
inspections and copying.
The failure of an association to |
578 |
provide the records within
10 working days after receipt of a |
579 |
written request shall
create a rebuttable presumption that the |
580 |
association willfully
failed to comply with this paragraph. A |
581 |
unit owner who is denied
access to official records is entitled |
582 |
to the actual damages or
minimum damages for the association's |
583 |
willful failure to comply
with this paragraph. The minimum |
584 |
damages shall be $50 per
calendar day up to 10 days, the |
585 |
calculation to begin on
the 11th working day after receipt of |
586 |
the written request. The
failure to permit inspection of the |
587 |
association records as
provided herein entitles any person |
588 |
prevailing in an
enforcement action to recover reasonable |
589 |
attorney's fees from the
person in control of the records who, |
590 |
directly or indirectly,
knowingly denied access to the records |
591 |
for inspection. Any
person who knowingly or intentionally |
592 |
defaces
or destroys accounting records that are required by this |
593 |
chapter,
or knowingly or intentionally fails to create or |
594 |
maintain
accounting records that are required by this chapter, |
595 |
is
personally subject to a civil penalty pursuant to s. |
596 |
718.501(1)(d).
The association shall maintain an adequate number |
597 |
of copies of the
declaration, articles of incorporation, bylaws, |
598 |
and rules, and all
amendments to each of the foregoing, as well |
599 |
as the question and answer
sheet provided for in s. 718.504 and |
600 |
year-end financial
information required in this section on the |
601 |
condominium property to
ensure their availability to unit owners |
602 |
and prospective
purchasers, and may charge its actual costs for |
603 |
preparing and furnishing
these documents to those requesting the |
604 |
same. Notwithstanding the
provisions of this paragraph, the |
605 |
following records shall
not be accessible to unit owners: |
606 |
1. Any
record protected by the lawyer-client privilege as |
607 |
described in s. 90.502;
and any record protected by the work- |
608 |
product privilege,
including any record prepared by an |
609 |
association attorney or
prepared at the attorney's express |
610 |
direction; which reflects
a mental impression, conclusion, |
611 |
litigation strategy, or
legal theory of the attorney or the |
612 |
association, and which was
prepared exclusively for civil or |
613 |
criminal litigation or for
adversarial administrative |
614 |
proceedings, or which was
prepared in anticipation of imminent |
615 |
civil or criminal
litigation or imminent adversarial |
616 |
administrative proceedings
until the conclusion of the |
617 |
litigation or adversarial
administrative proceedings. |
618 |
2. Information
obtained by an association in connection |
619 |
with the approval of the
lease, sale, or other transfer of a |
620 |
unit. |
621 |
3. Medical
records of unit owners. |
622 |
4. Social
security numbers, driver's license numbers, |
623 |
credit
card numbers, and other personal identifying information |
624 |
of any
person. |
625 |
(d) The
association shall prepare a question and answer |
626 |
sheet as described in s.
718.504, and shall update it annually. |
627 |
(e)1. The
association or its authorized agent is not |
628 |
required to provide a
prospective purchaser or lienholder with |
629 |
information about the
condominium or the association other than |
630 |
information or documents
required by this chapter to be made |
631 |
available or disclosed.
The association or its authorized agent |
632 |
may charge a reasonable
fee to the prospective purchaser, |
633 |
lienholder, or the current
unit owner for providing good faith |
634 |
responses to requests for
information by or on behalf of a |
635 |
prospective purchaser or
lienholder, other than that required by |
636 |
law, if the fee does not
exceed $150 plus the reasonable cost of |
637 |
photocopying and any
attorney's fees incurred by the association |
638 |
in connection with the
response. |
639 |
2. An
association and its authorized agent are not liable |
640 |
for providing such
information in good faith pursuant to a |
641 |
written request if the
person providing the information includes |
642 |
a written statement in
substantially the following form: "The |
643 |
responses herein are made
in good faith and to the best of my |
644 |
ability as to their
accuracy." |
645 |
(13) FINANCIAL
REPORTING.--Within 90 days after the end of |
646 |
the fiscal year, or
annually on a date provided in the bylaws, |
647 |
the association shall
prepare and complete, or contract for the |
648 |
preparation and completion
of, a financial report for the |
649 |
preceding fiscal year.
Within 21 days after the final financial |
650 |
report is completed by the
association or received from the |
651 |
third party, but not later
than 120 days after the end of the |
652 |
fiscal year or other date
as provided in the bylaws, the |
653 |
association shall mail to
each unit owner at the address last |
654 |
furnished to the
association by the unit owner, or hand deliver |
655 |
to each unit owner, a copy
of the financial report or a notice |
656 |
that a copy of the
financial report will be mailed or hand |
657 |
delivered to the unit
owner, without charge, upon receipt of a |
658 |
written request from the
unit owner. The division shall adopt |
659 |
rules setting forth
uniform accounting principles and standards |
660 |
to be used by all
associations and shall adopt rules addressing |
661 |
financial reporting
requirements for multicondominium |
662 |
associations. The
rules shall include, but not be limited to, |
663 |
uniform
accounting principles and standards for stating the |
664 |
disclosure
of at least a summary of the reserves, including |
665 |
information
as to whether such reserves are being funded at a |
666 |
level
sufficient to prevent the need for a special assessment |
667 |
and, if
not, the amount of assessments necessary to bring the |
668 |
reserves
up to the level necessary to avoid a special |
669 |
assessment.
The person preparing the financial reports shall be |
670 |
entitled
to rely on an inspection report prepared for or |
671 |
provided
to the association to meet the fiscal and fiduciary |
672 |
standards
of this chapter. In adopting such rules, the division |
673 |
shall consider the number
of members and annual revenues of an |
674 |
association. Financial
reports shall be prepared as follows: |
675 |
(a) An
association that meets the criteria of this |
676 |
paragraph shall prepare or
cause to be prepared a complete set |
677 |
of financial statements in
accordance with generally accepted |
678 |
accounting principles. The
financial statements shall be based |
679 |
upon the association's
total annual revenues, as follows: |
680 |
1. An
association with total annual revenues of $100,000 |
681 |
or more, but less than
$200,000, shall prepare compiled |
682 |
financial statements. |
683 |
2. An
association with total annual revenues of at least |
684 |
$200,000, but less than
$400,000, shall prepare reviewed |
685 |
financial statements. |
686 |
3. An
association with total annual revenues of $400,000 |
687 |
or more shall prepare
audited financial statements. |
688 |
(b)1. An
association with total annual revenues of less |
689 |
than $100,000 shall
prepare a report of cash receipts and |
690 |
expenditures. |
691 |
2. An
association which operates less than 50 units, |
692 |
regardless of the
association's annual revenues, shall prepare a |
693 |
report of cash receipts
and expenditures in lieu of financial |
694 |
statements required by
paragraph (a). |
695 |
3. A
report of cash receipts and disbursements must |
696 |
disclose the amount of
receipts by accounts and receipt |
697 |
classifications and the
amount of expenses by accounts and |
698 |
expense classifications,
including, but not limited to, the |
699 |
following, as applicable:
costs for security, professional and |
700 |
management fees and
expenses, taxes, costs for recreation |
701 |
facilities, expenses for
refuse collection and utility services, |
702 |
expenses for lawn care,
costs for building maintenance and |
703 |
repair, insurance costs,
administration and salary expenses, and |
704 |
reserves accumulated and
expended for capital expenditures, |
705 |
deferred maintenance, and
any other category for which the |
706 |
association maintains
reserves. |
707 |
(c) An
association may prepare or cause to be prepared, |
708 |
without a meeting of or
approval by the unit owners: |
709 |
1. Compiled,
reviewed, or audited financial statements, if |
710 |
the association is
required to prepare a report of cash receipts |
711 |
and expenditures; |
712 |
2. Reviewed
or audited financial statements, if the |
713 |
association is required to
prepare compiled financial |
714 |
statements; or |
715 |
3. Audited
financial statements if the association is |
716 |
required to prepare
reviewed financial statements. |
717 |
(d) If
approved by a majority of the voting interests |
718 |
present at a properly
called meeting of the association, an |
719 |
association may prepare or
cause to be prepared: |
720 |
1. A
report of cash receipts and expenditures in lieu of a |
721 |
compiled, reviewed, or
audited financial statement; |
722 |
2. A
report of cash receipts and expenditures or a |
723 |
compiled financial
statement in lieu of a reviewed or audited |
724 |
financial statement; or |
725 |
3. A
report of cash receipts and expenditures, a compiled |
726 |
financial statement, or a
reviewed financial statement in lieu |
727 |
of an audited financial
statement. |
728 |
|
729 |
Such meeting and approval
must occur prior to the end of the |
730 |
fiscal year and is
effective only for the fiscal year in which |
731 |
the vote is taken,
except that the approval also may be |
732 |
effective
for the following fiscal year. With respect to an |
733 |
association to which the
developer has not turned over control |
734 |
of the association, all
unit owners, including the developer, |
735 |
may vote on issues related
to the preparation of financial |
736 |
reports for the first 2
fiscal years of the association's |
737 |
operation, beginning with
the fiscal year in which the |
738 |
declaration is recorded.
Thereafter, all unit owners except the |
739 |
developer may vote on such
issues until control is turned over |
740 |
to the association by the
developer. Any audit or review |
741 |
prepared
under this section shall be paid for by the developer |
742 |
if done
prior to turnover of control of the association. An |
743 |
association
may not waive the financial reporting requirements |
744 |
of this
section for more than 3 consecutive years. |
745 |
Section
7. Subsection (2) of section 718.112, Florida |
746 |
Statutes, is amended to
read: |
747 |
718.112 Bylaws.-- |
748 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
749 |
following and, if they do
not do so, shall be deemed to include |
750 |
the following: |
751 |
(a) Administration.-- |
752 |
1. The
form of administration of the association shall be |
753 |
described indicating the
title of the officers and board of |
754 |
administration and
specifying the powers, duties, manner of |
755 |
selection and removal, and
compensation, if any, of officers and |
756 |
boards. In the absence of
such a provision, the board of |
757 |
administration shall be
composed of five members, except in the |
758 |
case of a condominium
which has five or fewer units, in which |
759 |
case in a not-for-profit
corporation the board shall consist of |
760 |
not fewer than three
members. In the absence of provisions to |
761 |
the contrary in the
bylaws, the board of administration shall |
762 |
have a president, a
secretary, and a treasurer, who shall |
763 |
perform the duties of such
officers customarily performed by |
764 |
officers of corporations.
Unless prohibited in the bylaws, the |
765 |
board of administration
may appoint other officers and grant |
766 |
them the duties it deems
appropriate. Unless otherwise provided |
767 |
in the bylaws, the
officers shall serve without compensation and |
768 |
at the pleasure of the
board of administration. Unless otherwise |
769 |
provided in the bylaws,
the members of the board shall serve |
770 |
without compensation. |
771 |
2. When
a unit owner files a written inquiry by certified |
772 |
mail with the board of
administration, the board shall respond |
773 |
in writing to the unit
owner within 30 days of receipt of the |
774 |
inquiry. The board's
response shall either give a substantive |
775 |
response to the inquirer,
notify the inquirer that a legal |
776 |
opinion has been
requested, or notify the inquirer that advice |
777 |
has been requested from
the division. If the board requests |
778 |
advice from the division,
the board shall, within 10 days of its |
779 |
receipt of the advice,
provide in writing a substantive response |
780 |
to the inquirer. If a
legal opinion is requested, the board |
781 |
shall, within 60 days
after the receipt of the inquiry, provide |
782 |
in writing a substantive
response to the inquiry. The failure to |
783 |
provide a substantive
response to the inquiry as provided herein |
784 |
precludes the board from
recovering attorney's fees and costs in |
785 |
any subsequent litigation,
administrative proceeding, or |
786 |
arbitration arising out of
the inquiry. The association may |
787 |
through its board of
administration adopt reasonable rules and |
788 |
regulations regarding the
frequency and manner of responding to |
789 |
unit owner inquiries, one
of which may be that the association |
790 |
is only obligated to
respond to one written inquiry per unit in |
791 |
any given 30-day period.
In such a case, any additional inquiry |
792 |
or inquiries must be
responded to in the subsequent 30-day |
793 |
period, or periods, as
applicable. |
794 |
(b) Quorum;
voting requirements; proxies.-- |
795 |
1. Unless
a lower number is provided in the bylaws, the |
796 |
percentage of voting
interests required to constitute a quorum |
797 |
at a meeting of the
members shall be a majority of the voting |
798 |
interests. Unless
otherwise provided in this chapter or in the |
799 |
declaration, articles of
incorporation, or bylaws, and except as |
800 |
provided in subparagraph
(d)3., decisions shall be made by |
801 |
owners of a majority of
the voting interests represented at a |
802 |
meeting at which a quorum
is present. |
803 |
2. Except
as specifically otherwise provided herein, after |
804 |
January 1, 1992, unit
owners may not vote by general proxy, but |
805 |
may vote by limited
proxies substantially conforming to a |
806 |
limited proxy form adopted
by the division. No voting interest |
807 |
or
consent right allocated to a unit owned by the association |
808 |
shall
be exercised or considered for any purpose, whether for a |
809 |
quorum,
an election, or otherwise. Limited proxies and general |
810 |
proxies may be used to
establish a quorum. Limited proxies shall |
811 |
be used for votes taken to
waive or reduce reserves in |
812 |
accordance with
subparagraph (f)2.; for votes taken to waive the |
813 |
financial reporting
requirements of s. 718.111(13); for votes |
814 |
taken to amend the
declaration pursuant to s. 718.110; for votes |
815 |
taken to amend the
articles of incorporation or bylaws pursuant |
816 |
to this section; and for
any other matter for which this chapter |
817 |
requires or permits a vote
of the unit owners. Except as |
818 |
provided in paragraph (d),
after January 1, 1992, no proxy, |
819 |
limited or general, shall
be used in the election of board |
820 |
members. General proxies
may be used for other matters for which |
821 |
limited proxies are not
required, and may also be used in voting |
822 |
for nonsubstantive changes
to items for which a limited proxy is |
823 |
required and given.
Notwithstanding the provisions of this |
824 |
subparagraph, unit owners
may vote in person at unit owner |
825 |
meetings. Nothing
contained herein shall limit the use of |
826 |
general proxies or require
the use of limited proxies for any |
827 |
agenda item or election at
any meeting of a timeshare |
828 |
condominium association. |
829 |
3. Any
proxy given shall be effective only for the |
830 |
specific meeting for which
originally given and any lawfully |
831 |
adjourned meetings
thereof. In no event shall any proxy be valid |
832 |
for a period longer than
90 days after the date of the first |
833 |
meeting for which it was
given. Every proxy is revocable at any |
834 |
time at the pleasure of
the unit owner executing it. |
835 |
4. A
member of the board of administration or a committee |
836 |
may submit in writing his
or her agreement or disagreement with |
837 |
any action taken at a
meeting that the member did not attend. |
838 |
This agreement or
disagreement may not be used as a vote for or |
839 |
against the action taken
and may not be used for the purposes of |
840 |
creating a quorum. |
841 |
5. When
any of the board or committee members meet by |
842 |
telephone conference,
those board or committee members attending |
843 |
by telephone conference
may be counted toward obtaining a quorum |
844 |
and may vote by telephone.
A telephone speaker must be used so |
845 |
that the conversation of
those board or committee members |
846 |
attending by telephone may
be heard by the board or committee |
847 |
members attending in
person as well as by any unit owners |
848 |
present at a meeting. |
849 |
(c) Board
of administration meetings.--Meetings of the |
850 |
board of administration at
which a quorum of the members is |
851 |
present shall be open to
all unit owners. Any unit owner may |
852 |
tape record or videotape
meetings of the board of |
853 |
administration. The right
to attend such meetings includes the |
854 |
right to speak at such
meetings with reference to all designated |
855 |
agenda items. The division
shall adopt reasonable rules |
856 |
governing the tape
recording and videotaping of the meeting. The |
857 |
association may adopt
written reasonable rules governing the |
858 |
frequency, duration, and
manner of unit owner statements. |
859 |
Adequate notice of all
meetings, which notice shall specifically |
860 |
incorporate an
identification of agenda items, shall be posted |
861 |
conspicuously on the
condominium property at least 48 continuous |
862 |
hours preceding the
meeting except in an emergency. If 20 |
863 |
percent
of the voting interests petition the board to address an |
864 |
item of
business, the board shall at its next regular board |
865 |
meeting
or at a special meeting of the board, but not later than |
866 |
60 days
after the receipt of the petition, place the item on the |
867 |
agenda.
Any item not included on the notice may be taken up on |
868 |
an emergency basis by at
least a majority plus one of the |
869 |
members of the board. Such
emergency action shall be noticed and |
870 |
ratified at the next
regular meeting of the board. However, |
871 |
written notice of any
meeting at which nonemergency special |
872 |
assessments, or at which
amendment to rules regarding unit use, |
873 |
will be considered shall
be mailed, delivered, or electronically |
874 |
transmitted to the unit
owners and posted conspicuously on the |
875 |
condominium property not
less than 14 days prior to the meeting. |
876 |
Evidence of compliance
with this 14-day notice shall be made by |
877 |
an affidavit executed by
the person providing the notice and |
878 |
filed among the official
records of the association. Upon notice |
879 |
to the unit owners, the
board shall by duly adopted rule |
880 |
designate a specific
location on the condominium property or |
881 |
association property upon
which all notices of board meetings |
882 |
shall be posted. If there
is no condominium property or |
883 |
association property upon
which notices can be posted, notices |
884 |
of board meetings shall be
mailed, delivered, or electronically |
885 |
transmitted at least 14
days before the meeting to the owner of |
886 |
each unit. In lieu of or
in addition to the physical posting of |
887 |
notice of any meeting of
the board of administration on the |
888 |
condominium property, the
association may, by reasonable rule, |
889 |
adopt a procedure for
conspicuously posting and repeatedly |
890 |
broadcasting the notice
and the agenda on a closed-circuit cable |
891 |
television system serving
the condominium association. However, |
892 |
if broadcast notice is
used in lieu of a notice posted |
893 |
physically on the
condominium property, the notice and agenda |
894 |
must be broadcast at least
four times every broadcast hour of |
895 |
each day that a posted
notice is otherwise required under this |
896 |
section. When broadcast
notice is provided, the notice and |
897 |
agenda must be broadcast
in a manner and for a sufficient |
898 |
continuous length of time
so as to allow an average reader to |
899 |
observe the notice and
read and comprehend the entire content of |
900 |
the notice and the agenda.
Notice of any meeting in which |
901 |
regular or
special assessments against unit owners are to be |
902 |
considered for any reason
shall specifically state contain
a |
903 |
statement that
assessments will be considered and the nature, |
904 |
estimated
cost, and description of the
purposes for any such |
905 |
assessments. Meetings of a
committee to take final action on |
906 |
behalf of the board or
make recommendations to the board |
907 |
regarding the association
budget are subject to the provisions |
908 |
of this paragraph.
Meetings of a committee that does not take |
909 |
final action on behalf of
the board or make recommendations to |
910 |
the board regarding the
association budget are subject to the |
911 |
provisions of this
section, unless those meetings are exempted |
912 |
from this section by the
bylaws of the association. |
913 |
Notwithstanding any other
law, the requirement that board |
914 |
meetings and committee
meetings be open to the unit owners is |
915 |
inapplicable to meetings
between the board or a committee and |
916 |
the association's
attorney, with respect to proposed or pending |
917 |
litigation, when the
meeting is held for the purpose of seeking |
918 |
or rendering legal advice. |
919 |
(d) Unit
owner meetings.-- |
920 |
1. There
shall be an annual meeting of the unit owners |
921 |
held at
the location provided in the association bylaws and, if |
922 |
the
bylaws are silent as to the location, the meeting shall be |
923 |
held
within 45 miles of the condominium property. However, such |
924 |
distance
requirement does not apply to an association governing |
925 |
a
timeshare condominium. Unless the bylaws provide
otherwise, a |
926 |
vacancy on the board
caused by the expiration of a director's |
927 |
term shall be filled by
electing a new board member, and the |
928 |
election shall be by
secret ballot; however, if the number of |
929 |
vacancies equals or
exceeds the number of candidates, no |
930 |
election is required. If
there is no provision in the bylaws for |
931 |
terms
of the members of the board, The terms of all members of |
932 |
the board shall expire upon
the election of their successors at |
933 |
the annual meeting and
such board members may stand for |
934 |
reelection
unless otherwise permitted by the bylaws. In the |
935 |
event
that the bylaws permit staggered terms of no more than 2 |
936 |
years
and upon approval of a majority of the total voting |
937 |
interests,
the association board members may serve 2-year |
938 |
staggered
terms. If no person is interested in or demonstrates |
939 |
an
intention to run for the position of a board member whose |
940 |
term
has expired according to the provisions of this |
941 |
subparagraph,
such board member whose term has expired shall be |
942 |
automatically
reappointed to the board of administration and |
943 |
need
not stand for reelection. In a condominium association of |
944 |
more
than 10 units, coowners of a unit may not serve as members |
945 |
of
the board of directors at the same time. Any unit owner |
946 |
desiring to be a candidate
for board membership shall comply |
947 |
with subparagraph 3. A
person who has been suspended or removed |
948 |
by the
division under this chapter, or who is delinquent in the |
949 |
payment
of any fee or assessment as provided in paragraph (n), |
950 |
is not
eligible for board membership. A person who has been |
951 |
convicted of any felony in
this state or by any court of
record |
952 |
in a
the United States District
or Territorial Court, or who has |
953 |
been
convicted of any offense in another jurisdiction that would |
954 |
be
considered a felony if committed in this state, and
who has |
955 |
not had
his or her right to vote restored pursuant to law in the |
956 |
jurisdiction
of his or her residence is not eligible for board |
957 |
membership unless
such felon's civil rights have been restored |
958 |
for a
period of no less than 5 years as of the date on which |
959 |
such
person seeks election to the board. The validity of an |
960 |
action by the board is not
affected if it is later determined |
961 |
that a member of the board
is ineligible for board membership |
962 |
due to having been
convicted of a felony. |
963 |
2. The
bylaws shall provide the method of calling meetings |
964 |
of unit owners, including
annual meetings. Written notice, which |
965 |
notice must include an
agenda, shall be mailed, hand delivered, |
966 |
or electronically
transmitted to each unit owner at least 14 |
967 |
days prior to the annual
meeting and shall be posted in a |
968 |
conspicuous place on the
condominium property at least 14 |
969 |
continuous days preceding
the annual meeting. Upon notice to the |
970 |
unit owners, the board
shall by duly adopted rule designate a |
971 |
specific location on the
condominium property or association |
972 |
property upon which all
notices of unit owner meetings shall be |
973 |
posted; however, if there
is no condominium property or |
974 |
association property upon
which notices can be posted, this |
975 |
requirement does not
apply. In lieu of or in addition to the |
976 |
physical posting of notice
of any meeting of the unit owners on |
977 |
the condominium property,
the association may, by reasonable |
978 |
rule, adopt a procedure
for conspicuously posting and repeatedly |
979 |
broadcasting the notice
and the agenda on a closed-circuit cable |
980 |
television system serving
the condominium association. However, |
981 |
if broadcast notice is
used in lieu of a notice posted |
982 |
physically on the
condominium property, the notice and agenda |
983 |
must be broadcast at least
four times every broadcast hour of |
984 |
each day that a posted
notice is otherwise required under this |
985 |
section. When broadcast
notice is provided, the notice and |
986 |
agenda must be broadcast
in a manner and for a sufficient |
987 |
continuous length of time
so as to allow an average reader to |
988 |
observe the notice and
read and comprehend the entire content of |
989 |
the notice and the agenda.
Unless a unit owner waives in writing |
990 |
the right to receive
notice of the annual meeting, such notice |
991 |
shall be hand delivered,
mailed, or electronically transmitted |
992 |
to each unit owner. Notice
for meetings and notice for all other |
993 |
purposes shall be mailed
to each unit owner at the address last |
994 |
furnished to the
association by the unit owner, or hand |
995 |
delivered to each unit
owner. However, if a unit is owned by |
996 |
more than one person, the
association shall provide notice, for |
997 |
meetings and all other
purposes, to that one address which the |
998 |
developer initially
identifies for that purpose and thereafter |
999 |
as one or more of the
owners of the unit shall so advise the |
1000 |
association in writing, or
if no address is given or the owners |
1001 |
of the unit do not agree,
to the address provided on the deed of |
1002 |
record. An officer of the
association, or the manager or other |
1003 |
person providing notice of
the association meeting, shall |
1004 |
provide an affidavit or
United States Postal Service certificate |
1005 |
of mailing, to be included
in the official records of the |
1006 |
association affirming that
the notice was mailed or hand |
1007 |
delivered, in accordance
with this provision. |
1008 |
3. The
members of the board shall be elected by written |
1009 |
ballot or voting machine.
Proxies shall in no event be used in |
1010 |
electing the board, either
in general elections or elections to |
1011 |
fill vacancies caused by
recall, resignation, or otherwise, |
1012 |
unless otherwise provided
in this chapter. Not less than 60 days |
1013 |
before a scheduled
election, the association shall mail, |
1014 |
deliver, or electronically
transmit, whether by separate |
1015 |
association mailing or
included in another association mailing, |
1016 |
delivery, or transmission,
including regularly published |
1017 |
newsletters, to each unit
owner entitled to a vote, a first |
1018 |
notice of the date of the
election along with a certification |
1019 |
form
provided by the division attesting that he or she has read |
1020 |
and
understands, to the best of his or her ability, the |
1021 |
governing
documents of the association and the provisions of |
1022 |
this
chapter and any applicable rules. Any unit owner or other |
1023 |
eligible person desiring
to be a candidate for the board must |
1024 |
give written notice to the
association not less than 40 days |
1025 |
before a scheduled
election. Together with the written notice |
1026 |
and agenda as set forth in
subparagraph 2., the association |
1027 |
shall mail, deliver, or
electronically transmit a second notice |
1028 |
of the election to all
unit owners entitled to vote therein, |
1029 |
together with a ballot
which shall list all candidates. Upon |
1030 |
request of a candidate,
the association shall include an |
1031 |
information sheet, no
larger than 81/2 inches by 11 inches, |
1032 |
which must be furnished by
the candidate not less than 35 days |
1033 |
before the election, along
with the signed certification form |
1034 |
provided
for in this subparagraph, to be included with the |
1035 |
mailing, delivery, or
transmission of the ballot, with the costs |
1036 |
of mailing, delivery, or
electronic transmission and copying to |
1037 |
be borne by the
association. The association is not liable for |
1038 |
the contents of the
information sheets prepared by the |
1039 |
candidates. In order to
reduce costs, the association may print |
1040 |
or duplicate the
information sheets on both sides of the paper. |
1041 |
The division shall by rule
establish voting procedures |
1042 |
consistent with the
provisions contained herein, including rules |
1043 |
establishing procedures
for giving notice by electronic |
1044 |
transmission and rules
providing for the secrecy of ballots. |
1045 |
Elections shall be decided
by a plurality of those ballots cast. |
1046 |
There shall be no quorum
requirement; however, at least 20 |
1047 |
percent of the eligible
voters must cast a ballot in order to |
1048 |
have a valid election of
members of the board. No unit owner |
1049 |
shall permit any other
person to vote his or her ballot, and any |
1050 |
such ballots improperly
cast shall be deemed invalid, provided |
1051 |
any unit owner who
violates this provision may be fined by the |
1052 |
association in accordance
with s. 718.303. A unit owner who |
1053 |
needs assistance in
casting the ballot for the reasons stated in |
1054 |
s. 101.051 may obtain
assistance in casting the ballot. The |
1055 |
regular election shall
occur on the date of the annual meeting. |
1056 |
The provisions of this
subparagraph shall not apply to timeshare |
1057 |
condominium associations.
Notwithstanding the provisions of this |
1058 |
subparagraph, an election
is not required unless more candidates |
1059 |
file notices of intent to
run or are nominated than board |
1060 |
vacancies exist. |
1061 |
4. Any
approval by unit owners called for by this chapter |
1062 |
or the applicable
declaration or bylaws, including, but not |
1063 |
limited to, the approval
requirement in s. 718.111(8), shall be |
1064 |
made at a duly noticed
meeting of unit owners and shall be |
1065 |
subject to all
requirements of this chapter or the applicable |
1066 |
condominium documents
relating to unit owner decisionmaking, |
1067 |
except that unit owners
may take action by written agreement, |
1068 |
without meetings, on
matters for which action by written |
1069 |
agreement without meetings
is expressly allowed by the |
1070 |
applicable bylaws or
declaration or any statute that provides |
1071 |
for such action. |
1072 |
5. Unit
owners may waive notice of specific meetings if |
1073 |
allowed by the applicable
bylaws or declaration or any statute. |
1074 |
If authorized by the
bylaws, notice of meetings of the board of |
1075 |
administration, unit owner
meetings, except unit owner meetings |
1076 |
called to recall board
members under paragraph (j), and |
1077 |
committee meetings may be
given by electronic transmission to |
1078 |
unit owners who consent to
receive notice by electronic |
1079 |
transmission. |
1080 |
6. Unit
owners shall have the right to participate in |
1081 |
meetings of unit owners
with reference to all designated agenda |
1082 |
items. However, the
association may adopt reasonable rules |
1083 |
governing the frequency,
duration, and manner of unit owner |
1084 |
participation. |
1085 |
7. Any
unit owner may tape record or videotape a meeting |
1086 |
of the unit owners subject
to reasonable rules adopted by the |
1087 |
division. |
1088 |
8. Unless
otherwise provided in the bylaws, any vacancy |
1089 |
occurring on the board
before the expiration of a term may be |
1090 |
filled by the affirmative
vote of the majority of the remaining |
1091 |
directors, even if the
remaining directors constitute less than |
1092 |
a quorum, or by the sole
remaining director. In the alternative, |
1093 |
a board may hold an
election to fill the vacancy, in which case |
1094 |
the election procedures
must conform to the requirements of |
1095 |
subparagraph 3. unless the
association governs 10 units or less |
1096 |
and
has opted out of the statutory election process, in which |
1097 |
case the bylaws of the
association control. Unless otherwise |
1098 |
provided in the bylaws, a
board member appointed or elected |
1099 |
under this section shall
fill the vacancy for the unexpired term |
1100 |
of the seat being filled.
Filling vacancies created by recall is |
1101 |
governed by paragraph (j)
and rules adopted by the division. |
1102 |
|
1103 |
Notwithstanding
subparagraphs (b)2. and (d)3., an association of |
1104 |
10
or fewer units may, by the affirmative vote of a majority
of |
1105 |
the total voting
interests, provide for different voting and |
1106 |
election procedures in its
bylaws, which vote may be by a proxy |
1107 |
specifically delineating
the different voting and election |
1108 |
procedures. The different
voting and election procedures may |
1109 |
provide for elections to
be conducted by limited or general |
1110 |
proxy. |
1111 |
(e) Budget
meeting.-- |
1112 |
1. Any
meeting at which a proposed annual budget of an |
1113 |
association will be
considered by the board or unit owners shall |
1114 |
be open to all unit
owners. At least 14 days prior to such a |
1115 |
meeting, the board shall
hand deliver to each unit owner, mail |
1116 |
to each unit owner at the
address last furnished to the |
1117 |
association by the unit
owner, or electronically transmit to the |
1118 |
location furnished by the
unit owner for that purpose a notice |
1119 |
of such meeting and a copy
of the proposed annual budget. An |
1120 |
officer or manager of the
association, or other person providing |
1121 |
notice of such meeting,
shall execute an affidavit evidencing |
1122 |
compliance with such
notice requirement, and such affidavit |
1123 |
shall be filed among the
official records of the association. |
1124 |
2.a. If
a board adopts in any fiscal year an annual budget |
1125 |
which requires assessments
against unit owners which exceed 115 |
1126 |
percent of assessments for
the preceding fiscal year, the board |
1127 |
shall conduct a special
meeting of the unit owners to consider a |
1128 |
substitute budget if the
board receives, within 21 days after |
1129 |
adoption of the annual
budget, a written request for a special |
1130 |
meeting from at least 10
percent of all voting interests. The |
1131 |
special meeting shall be
conducted within 60 days after adoption |
1132 |
of the annual budget. At
least 14 days prior to such special |
1133 |
meeting, the board shall
hand deliver to each unit owner, or |
1134 |
mail to each unit owner at
the address last furnished to the |
1135 |
association, a notice of
the meeting. An officer or manager of |
1136 |
the association, or other
person providing notice of such |
1137 |
meeting shall execute an
affidavit evidencing compliance with |
1138 |
this notice requirement,
and such affidavit shall be filed among |
1139 |
the official records of
the association. Unit owners may |
1140 |
consider and adopt a
substitute budget at the special meeting. A |
1141 |
substitute budget is
adopted if approved by a majority of all |
1142 |
voting interests unless
the bylaws require adoption by a greater |
1143 |
percentage of voting
interests. If there is not a quorum at the |
1144 |
special meeting or a
substitute budget is not adopted, the |
1145 |
annual budget previously
adopted by the board shall take effect |
1146 |
as scheduled. |
1147 |
b. Any
determination of whether assessments exceed 115 |
1148 |
percent of assessments for
the prior fiscal year shall exclude |
1149 |
any authorized provision
for reasonable reserves for repair or |
1150 |
replacement of the
condominium property, anticipated expenses of |
1151 |
the association which the
board does not expect to be incurred |
1152 |
on a regular or annual
basis, or assessments for betterments to |
1153 |
the condominium property. |
1154 |
c. If
the developer controls the board, assessments shall |
1155 |
not exceed 115 percent of
assessments for the prior fiscal year |
1156 |
unless approved by a
majority of all voting interests. |
1157 |
(f) Annual
budget.-- |
1158 |
1. The
proposed annual budget of estimated
revenues and |
1159 |
common
expenses shall be detailed and shall show the amounts |
1160 |
budgeted by accounts and
expense classifications, including, if |
1161 |
applicable, but not
limited to, those expenses listed in s. |
1162 |
718.504(21). A
multicondominium association shall adopt a |
1163 |
separate budget of common
expenses for each condominium the |
1164 |
association operates and
shall adopt a separate budget of common |
1165 |
expenses for the
association. In addition, if the association |
1166 |
maintains limited common
elements with the cost to be shared |
1167 |
only by those entitled to
use the limited common elements as |
1168 |
provided for in s.
718.113(1), the budget or a schedule attached |
1169 |
thereto shall show amounts
budgeted therefor. If, after turnover |
1170 |
of control of the
association to the unit owners, any of the |
1171 |
expenses listed in s.
718.504(21) are not applicable, they need |
1172 |
not be listed. |
1173 |
2. In
addition to annual operating expenses, the budget |
1174 |
shall include reserve
accounts for capital expenditures and |
1175 |
deferred maintenance.
These accounts shall include, but are not |
1176 |
limited to, roof
replacement, building painting, and pavement |
1177 |
resurfacing, regardless of
the amount of deferred maintenance |
1178 |
expense or replacement
cost, and for any other item for which |
1179 |
the deferred maintenance
expense or replacement cost exceeds |
1180 |
$10,000. The amount to be
reserved shall be computed by means of |
1181 |
a formula which is based
upon estimated remaining useful life |
1182 |
and estimated replacement
cost or deferred maintenance expense |
1183 |
of each reserve item. The
association may adjust replacement |
1184 |
reserve assessments
annually to take into account any changes in |
1185 |
estimates or extension of
the useful life of a reserve item |
1186 |
caused by deferred
maintenance. This subsection does not apply |
1187 |
to an adopted budget in
which the members of an association have |
1188 |
determined, by a majority
vote at a duly called meeting of the |
1189 |
association, to provide no
reserves or less reserves than |
1190 |
required by this
subsection. However, prior to turnover of |
1191 |
control of an association
by a developer to unit owners other |
1192 |
than a developer pursuant
to s. 718.301, the developer may vote |
1193 |
to waive the reserves or
reduce the funding of reserves for the |
1194 |
first 2 fiscal years of
the association's operation, beginning |
1195 |
with the fiscal year in
which the initial declaration is |
1196 |
recorded, after which time
reserves may be waived or reduced |
1197 |
only upon the vote of a
majority of all nondeveloper voting |
1198 |
interests voting in person
or by limited proxy at a duly called |
1199 |
meeting of the
association. If a meeting of the unit owners has |
1200 |
been called to determine
whether to waive or reduce the funding |
1201 |
of reserves, and no such
result is achieved or a quorum is not |
1202 |
attained, the reserves as
included in the budget shall go into |
1203 |
effect. After the
turnover, the developer may vote its voting |
1204 |
interest to waive or
reduce the funding of reserves. |
1205 |
3. Reserve
funds and any interest accruing thereon shall |
1206 |
remain in the reserve
account or accounts, and shall be used |
1207 |
only for authorized
reserve expenditures unless their use for |
1208 |
other purposes is approved
in advance by a majority vote at a |
1209 |
duly called meeting of the
association. Prior to turnover of |
1210 |
control of an association
by a developer to unit owners other |
1211 |
than the developer
pursuant to s. 718.301, the developer- |
1212 |
controlled association
shall not vote to use reserves for |
1213 |
purposes other than that
for which they were intended without |
1214 |
the approval of a majority
of all nondeveloper voting interests, |
1215 |
voting in person or by
limited proxy at a duly called meeting of |
1216 |
the association. |
1217 |
4. The
only voting interests which are eligible to vote on |
1218 |
questions that involve
waiving or reducing the funding of |
1219 |
reserves, or using
existing reserve funds for purposes other |
1220 |
than purposes for which
the reserves were intended, are the |
1221 |
voting interests of the
units subject to assessment to fund the |
1222 |
reserves in question. Proxy
questions relating to waiving or |
1223 |
reducing
the funding of reserves or using existing reserve funds |
1224 |
for
purposes other than purposes for which the reserves were |
1225 |
intended
shall contain the following statement in capitalized, |
1226 |
bold
letters in a font size larger than any other used on the |
1227 |
face of
the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN |
1228 |
PART,
OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY |
1229 |
RESULT
IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED |
1230 |
SPECIAL
ASSESSMENTS REGARDING THOSE ITEMS. |
1231 |
(g) Assessments.--The
manner of collecting from the unit |
1232 |
owners their shares of the
common expenses shall be stated in |
1233 |
the bylaws. Assessments
shall be made against units not less |
1234 |
frequently than quarterly
in an amount which is not less than |
1235 |
that required to provide
funds in advance for payment of all of |
1236 |
the anticipated current
operating expenses and for all of the |
1237 |
unpaid operating expenses
previously incurred. Nothing in this |
1238 |
paragraph shall preclude
the right of an association to |
1239 |
accelerate assessments of
an owner delinquent in payment of |
1240 |
common expenses.
Accelerated assessments shall be due and |
1241 |
payable on the date the
claim of lien is filed. Such accelerated |
1242 |
assessments shall include
the amounts due for the remainder of |
1243 |
the budget year in which
the claim of lien was filed. |
1244 |
(h) Amendment
of bylaws.-- |
1245 |
1. The
method by which the bylaws may be amended |
1246 |
consistent with the
provisions of this chapter shall be stated. |
1247 |
If the bylaws fail to
provide a method of amendment, the bylaws |
1248 |
may be amended if the
amendment is approved by the owners of not |
1249 |
less than two-thirds of
the voting interests. |
1250 |
2. No
bylaw shall be revised or amended by reference to |
1251 |
its title or number only.
Proposals to amend existing bylaws |
1252 |
shall contain the full
text of the bylaws to be amended; new |
1253 |
words shall be inserted in
the text underlined, and words to be |
1254 |
deleted shall be lined
through with hyphens. However, if the |
1255 |
proposed change is so
extensive that this procedure would |
1256 |
hinder, rather than
assist, the understanding of the proposed |
1257 |
amendment, it is not
necessary to use underlining and hyphens as |
1258 |
indicators of words added
or deleted, but, instead, a notation |
1259 |
must be inserted
immediately preceding the proposed amendment in |
1260 |
substantially the
following language: "Substantial rewording of |
1261 |
bylaw. See bylaw _____ for
present text." |
1262 |
3. Nonmaterial
errors or omissions in the bylaw process |
1263 |
will not invalidate an
otherwise properly promulgated amendment. |
1264 |
(i) Transfer
fees.--No charge shall be made by the |
1265 |
association or any body
thereof in connection with the sale, |
1266 |
mortgage, lease, sublease,
or other transfer of a unit unless |
1267 |
the association is
required to approve such transfer and a fee |
1268 |
for such approval is
provided for in the declaration, articles, |
1269 |
or bylaws. Any such fee
may be preset, but in no event may such |
1270 |
fee exceed $100 per
applicant other than husband/wife or |
1271 |
parent/dependent child,
which are considered one applicant. |
1272 |
However, if the lease or
sublease is a renewal of a lease or |
1273 |
sublease with the same
lessee or sublessee, no charge shall be |
1274 |
made. The foregoing
notwithstanding, an association may, if the |
1275 |
authority to do so appears
in the declaration or bylaws, require |
1276 |
that a prospective lessee
place a security deposit, in an amount |
1277 |
not to exceed the
equivalent of 1 month's rent, into an escrow |
1278 |
account maintained by the
association. The security deposit |
1279 |
shall protect against
damages to the common elements or |
1280 |
association property.
Payment of interest, claims against the |
1281 |
deposit, refunds, and
disputes under this paragraph shall be |
1282 |
handled in the same
fashion as provided in part II of chapter |
1283 |
83. |
1284 |
(j) Recall
of board members.--Subject to the provisions of |
1285 |
s. 718.301, any member of
the board of administration may be |
1286 |
recalled and removed from
office with or without cause by the |
1287 |
vote or agreement in
writing by a majority of all the voting |
1288 |
interests. A special
meeting of the unit owners to recall a |
1289 |
member or members of the
board of administration may be called |
1290 |
by 10 percent of the
voting interests giving notice of the |
1291 |
meeting as required for a
meeting of unit owners, and the notice |
1292 |
shall state the purpose of
the meeting. Electronic transmission |
1293 |
may not be used as a
method of giving notice of a meeting called |
1294 |
in whole or in part for
this purpose. |
1295 |
1. If
the recall is approved by a majority of all voting |
1296 |
interests by a vote at a
meeting, the recall will be effective |
1297 |
as provided herein. The
board shall duly notice and hold a board |
1298 |
meeting within 5 full
business days of the adjournment of the |
1299 |
unit owner meeting to
recall one or more board members. At the |
1300 |
meeting, the board shall
either certify the recall, in which |
1301 |
case such member or
members shall be recalled effective |
1302 |
immediately and shall turn
over to the board within 5 full |
1303 |
business days any and all
records and property of the |
1304 |
association in their
possession, or shall proceed as set forth |
1305 |
in subparagraph 3. |
1306 |
2. If
the proposed recall is by an agreement in writing by |
1307 |
a majority of all voting
interests, the agreement in writing or |
1308 |
a copy thereof shall be
served on the association by certified |
1309 |
mail or by personal
service in the manner authorized by chapter |
1310 |
48 and the Florida Rules
of Civil Procedure. The board of |
1311 |
administration shall duly
notice and hold a meeting of the board |
1312 |
within 5 full business
days after receipt of the agreement in |
1313 |
writing. At the meeting,
the board shall either certify the |
1314 |
written agreement to
recall a member or members of the board, in |
1315 |
which case such member or
members shall be recalled effective |
1316 |
immediately and shall turn
over to the board within 5 full |
1317 |
business days any and all
records and property of the |
1318 |
association in their
possession, or proceed as described in |
1319 |
subparagraph 3. |
1320 |
3. If
the board determines not to certify the written |
1321 |
agreement to recall a
member or members of the board, or does |
1322 |
not certify the recall by
a vote at a meeting, the board shall, |
1323 |
within 5 full business
days after the meeting, file with the |
1324 |
division a petition for
arbitration pursuant to the procedures |
1325 |
in s. 718.1255. For the
purposes of this section, the unit |
1326 |
owners who voted at the
meeting or who executed the agreement in |
1327 |
writing shall constitute
one party under the petition for |
1328 |
arbitration. If the
arbitrator certifies the recall as to any |
1329 |
member or members of the
board, the recall will be effective |
1330 |
upon mailing of the final
order of arbitration to the |
1331 |
association. If the
association fails to comply with the order |
1332 |
of the arbitrator, the
division may take action pursuant to s. |
1333 |
718.501. Any member or
members so recalled shall deliver to the |
1334 |
board any and all records
of the association in their possession |
1335 |
within 5 full business
days of the effective date of the recall. |
1336 |
4. If
the board fails to duly notice and hold a board |
1337 |
meeting within 5 full
business days of service of an agreement |
1338 |
in writing or within 5
full business days of the adjournment of |
1339 |
the unit owner recall
meeting, the recall shall be deemed |
1340 |
effective and the board
members so recalled shall immediately |
1341 |
turn over to the board any
and all records and property of the |
1342 |
association. |
1343 |
5. If
a vacancy occurs on the board as a result of a |
1344 |
recall or
removal and less than a majority of the board members |
1345 |
are removed, the vacancy
may be filled by the affirmative vote |
1346 |
of a majority of the
remaining directors, notwithstanding any |
1347 |
provision to the contrary
contained in this subsection. If |
1348 |
vacancies occur on the
board as a result of a recall and a |
1349 |
majority or more of the
board members are removed, the vacancies |
1350 |
shall be filled in
accordance with procedural rules to be |
1351 |
adopted by the division,
which rules need not be consistent with |
1352 |
this subsection. The rules
must provide procedures governing the |
1353 |
conduct of the recall
election as well as the operation of the |
1354 |
association during the
period after a recall but prior to the |
1355 |
recall election. |
1356 |
(k) Arbitration.--There
shall be a provision for mandatory |
1357 |
nonbinding arbitration as
provided for in s. 718.1255. |
1358 |
(l) Certificate
of compliance.--There shall be a provision |
1359 |
that a certificate of
compliance from a licensed electrical |
1360 |
contractor or electrician
may be accepted by the association's |
1361 |
board as evidence of
compliance of the condominium units with |
1362 |
the applicable fire and
life safety code. Notwithstanding the |
1363 |
provisions of chapter 633
or of any other code, statute, |
1364 |
ordinance, administrative
rule, or regulation, or any |
1365 |
interpretation of the
foregoing, an association, condominium, or |
1366 |
unit owner is not
obligated to retrofit the common elements or |
1367 |
units of a residential
condominium with a fire sprinkler system |
1368 |
or other engineered
lifesafety system in a building that has |
1369 |
been certified for
occupancy by the applicable governmental |
1370 |
entity, if the unit owners
have voted to forego such |
1371 |
retrofitting and
engineered lifesafety system by the affirmative |
1372 |
vote of two-thirds of all
voting interests in the affected |
1373 |
condominium. However, a
condominium association may not vote to |
1374 |
forego the retrofitting
with a fire sprinkler system of common |
1375 |
areas in a high-rise
building. For purposes of this subsection, |
1376 |
the term "high-rise
building" means a building that is greater |
1377 |
than 75 feet in height
where the building height is measured |
1378 |
from the lowest level of
fire department access to the floor of |
1379 |
the highest occupiable
story. For purposes of this subsection, |
1380 |
the term "common
areas" means any enclosed hallway, corridor, |
1381 |
lobby, stairwell, or
entryway. In no event shall the local |
1382 |
authority having
jurisdiction require completion of retrofitting |
1383 |
of common areas with a
sprinkler system before the end of 2014. |
1384 |
1. A
vote to forego retrofitting may be obtained by |
1385 |
limited proxy or by a
ballot personally cast at a duly called |
1386 |
membership meeting, or by
execution of a written consent by the |
1387 |
member, and shall be
effective upon the recording of a |
1388 |
certificate attesting to
such vote in the public records of the |
1389 |
county where the
condominium is located. The association shall |
1390 |
mail, hand deliver, or
electronically transmit to each unit |
1391 |
owner written notice at
least 14 days prior to such membership |
1392 |
meeting in which the vote
to forego retrofitting of the required |
1393 |
fire sprinkler system is
to take place. Within 30 days after the |
1394 |
association's opt-out
vote, notice of the results of the opt-out |
1395 |
vote shall be mailed, hand
delivered, or electronically |
1396 |
transmitted to all unit
owners. Evidence of compliance with this |
1397 |
30-day notice shall be
made by an affidavit executed by the |
1398 |
person providing the
notice and filed among the official records |
1399 |
of the association. After
such notice is provided to each owner, |
1400 |
a copy of such notice
shall be provided by the current owner to |
1401 |
a new owner prior to
closing and shall be provided by a unit |
1402 |
owner to a renter prior to
signing a lease. |
1403 |
2. As
part of the information collected annually from |
1404 |
condominiums, the division
shall require condominium |
1405 |
associations to report the
membership vote and recording of a |
1406 |
certificate under this
subsection and, if retrofitting has been |
1407 |
undertaken, the per-unit
cost of such work. The division shall |
1408 |
annually report to the
Division of State Fire Marshal of the |
1409 |
Department of Financial
Services the number of condominiums that |
1410 |
have elected to forego
retrofitting. |
1411 |
(m) Common
elements; limited power to convey.-- |
1412 |
1. With
respect to condominiums created on or after |
1413 |
October 1, 1994, the
bylaws shall include a provision granting |
1414 |
the association a limited
power to convey a portion of the |
1415 |
common elements to a
condemning authority for the purpose of |
1416 |
providing utility
easements, right-of-way expansion, or other |
1417 |
public purposes, whether
negotiated or as a result of eminent |
1418 |
domain proceedings. |
1419 |
2. In
any case where the bylaws are silent as to the |
1420 |
association's power to
convey common elements as described in |
1421 |
subparagraph 1., the
bylaws shall be deemed to include the |
1422 |
provision described in
subparagraph 1. |
1423 |
(n) Director
or officer delinquencies.--A director or |
1424 |
officer
more than 90 days delinquent in the payment of regular |
1425 |
assessments
shall be deemed to have abandoned the office, |
1426 |
creating
a vacancy in the office to be filled according to law. |
1427 |
(o) Director
and officer offenses.--A director or officer |
1428 |
charged
with a felony theft or embezzlement offense involving |
1429 |
the
association's funds or property shall be removed from |
1430 |
office,
creating a vacancy in the office to be filled according |
1431 |
to law.
While such director or officer has such criminal charge |
1432 |
pending,
he or she may not be appointed or elected to a position |
1433 |
as a
director or officer. However, should the charges be |
1434 |
resolved
without a finding of guilt, the director of officer |
1435 |
shall
be reinstated for the remainder of his or her term of |
1436 |
office,
if any. |
1437 |
Section
8. Section 718.1124, Florida Statutes, is amended |
1438 |
to read: |
1439 |
718.1124 Failure
to fill vacancies on board of |
1440 |
administration sufficient
to constitute a quorum; appointment of |
1441 |
receiver upon petition of
unit owner.-- |
1442 |
(1) If
an association fails to fill vacancies on the board |
1443 |
of administration
sufficient to constitute a quorum in |
1444 |
accordance with the
bylaws, any unit owner may give notice of |
1445 |
his
or her intent to apply to the circuit court within whose |
1446 |
jurisdiction the
condominium lies for the appointment of a |
1447 |
receiver to manage the
affairs of the association. The form of |
1448 |
the
notice shall be as follows: |
1449 |
|
1450 |
NOTICE
OF INTENT TO APPLY FOR RECEIVERSHIP |
1451 |
|
1452 |
YOU ARE
HEREBY NOTIFIED that the undersigned owner of |
1453 |
a
condominium unit in (name of condominium) intends to |
1454 |
file a
petition in the circuit court for appointment |
1455 |
of a
receiver to manage the affairs of the association |
1456 |
on the
grounds that the association has failed to fill |
1457 |
vacancies
on the board of administration sufficient to |
1458 |
constitute
a quorum. This petition will not be filed |
1459 |
if the
vacancies are filled within 30 days after the |
1460 |
date on
which this notice was sent or posted, |
1461 |
whichever
is later. If a receiver is appointed, the |
1462 |
receiver
shall have all of the powers of the board and |
1463 |
shall
be entitled to receive a salary and |
1464 |
reimbursement
of all costs and attorney's fees payable |
1465 |
from
association funds. |
1466 |
|
1467 |
(name
and address of petitioning unit owner) |
1468 |
|
1469 |
(2) The
notice required by subsection (1) must be provided |
1470 |
by At
least 30 days prior to applying to the circuit court, the |
1471 |
unit owner
shall mail to the association by certified mail or |
1472 |
personal
delivery, must be posted and post in a conspicuous |
1473 |
place on
the condominium property, and must be provided by the |
1474 |
unit
owner to every other unit owner of the association by |
1475 |
certified
mail or personal delivery. The a notice must be posted |
1476 |
and
mailed or delivered at least 30 days prior to the filing of |
1477 |
a
petition seeking receivership. Notice by mail to a unit owner |
1478 |
shall
be sent to the address used by the county property |
1479 |
appraiser
for notice to the unit owner, except that where a unit |
1480 |
owner's
address is not publicly available the notice shall be |
1481 |
mailed
to the unit describing the
intended action, giving the |
1482 |
association
the opportunity to fill the vacancies. |
1483 |
(3) If
during such time the association
fails to fill the |
1484 |
vacancies
within 30 days after the notice required by subsection |
1485 |
(1)
is posted and mailed or delivered, the unit owner may |
1486 |
proceed with the petition. |
1487 |
(4) If
a receiver is appointed, all unit owners
shall be |
1488 |
given
written notice of such appointment as provided in s. |
1489 |
718.127. |
1490 |
(5) The
association shall be responsible for the salary of |
1491 |
the receiver, court costs,
and attorney's fees. The receiver |
1492 |
shall have all powers and
duties of a duly constituted board of |
1493 |
administration and shall
serve until the association fills |
1494 |
vacancies on the board
sufficient to constitute a quorum and the |
1495 |
court
relieves the receiver of the appointment. |
1496 |
Section
9. Paragraph (a) of subsection (2) and subsection |
1497 |
(5) of section 718.113,
Florida Statutes, are amended, and |
1498 |
subsections (6) and (7)
are added to that section, to read: |
1499 |
718.113 Maintenance;
limitation upon improvement; display |
1500 |
of flag; hurricane
shutters; display of religious decorations.-- |
1501 |
(2)(a) Except
as otherwise provided in this section, there |
1502 |
shall be no material
alteration or substantial additions to the |
1503 |
common elements or to real
property which is association |
1504 |
property, except in a
manner provided in the declaration as |
1505 |
originally recorded or as
amended under the procedures provided |
1506 |
therein. If the
declaration as originally recorded or as amended |
1507 |
under the procedures
provided therein does not specify the |
1508 |
procedure for approval of
material alterations or substantial |
1509 |
additions, 75 percent of
the total voting interests of the |
1510 |
association must approve
the alterations or additions. This |
1511 |
paragraph
is intended to clarify existing law and applies to |
1512 |
associations
existing on October 1, 2008. |
1513 |
(5) Each
board of administration shall adopt hurricane |
1514 |
shutter specifications for
each building within each condominium |
1515 |
operated by the
association which shall include color, style, |
1516 |
and other factors deemed
relevant by the board. All |
1517 |
specifications adopted by
the board shall comply with the |
1518 |
applicable building code. Notwithstanding
any provision to the |
1519 |
contrary
in the condominium documents, if approval is required |
1520 |
by the
documents, a board shall not refuse to approve the |
1521 |
installation
or replacement of hurricane shutters conforming to |
1522 |
the
specifications adopted by the board. |
1523 |
(a) The
board may, subject to the provisions of s. |
1524 |
718.3026, and the approval
of a majority of voting interests of |
1525 |
the condominium, install
hurricane shutters or hurricane |
1526 |
protection
that complies with or exceeds the applicable building |
1527 |
code,
or both, except that a vote of the owners is not required |
1528 |
if the
maintenance, repair, and replacement of hurricane |
1529 |
shutters
or other forms of hurricane protection are the |
1530 |
responsibility
of the association pursuant to the declaration of |
1531 |
condominium
and may maintain, repair, or replace such
approved |
1532 |
hurricane
shutters, whether on or within common elements, |
1533 |
limited
common elements, units, or association property. |
1534 |
However, where hurricane
protection or laminated glass or window |
1535 |
film architecturally
designed to function as hurricane |
1536 |
protection which complies
with or exceeds the current
applicable |
1537 |
building code has been previously
installed, the board may not |
1538 |
install hurricane shutters
or other hurricane protection. |
1539 |
(b) The
association shall be responsible for the |
1540 |
maintenance,
repair, and replacement of the hurricane shutters |
1541 |
or
other hurricane protection authorized by this subsection if |
1542 |
such
hurricane shutters or other hurricane protection are the |
1543 |
responsibility
of the association pursuant to the declaration of |
1544 |
condominium.
If the hurricane shutters or other hurricane |
1545 |
protection
authorized by this subsection are the responsibility |
1546 |
of the
unit owners pursuant to the declaration of condominium, |
1547 |
the
responsibility for the maintenance, repair, and replacement |
1548 |
of such
items shall be the responsibility of the unit owner. |
1549 |
(c) The
board may operate shutters installed pursuant to |
1550 |
this subsection without
permission of the unit owners only where |
1551 |
such operation is
necessary to preserve and protect the |
1552 |
condominium property and
association property. The installation, |
1553 |
replacement, operation,
repair, and maintenance of such shutters |
1554 |
in accordance with the
procedures set forth herein shall not be |
1555 |
deemed a material
alteration to the common elements or |
1556 |
association property
within the meaning of this section. |
1557 |
(d) Notwithstanding
any provision to the contrary in the |
1558 |
condominium
documents, if approval is required by the documents, |
1559 |
a board
shall not refuse to approve the installation or |
1560 |
replacement
of hurricane shutters by a unit owner conforming to |
1561 |
the
specifications adopted by the board. |
1562 |
(6) As
to any condominium building greater than three |
1563 |
stories
in height, at least every 5 years, and within 5 years if |
1564 |
not
available for inspection on October 1, 2008, the board shall |
1565 |
have
the condominium building inspected to provide a report |
1566 |
under
seal of an architect or engineer authorized to practice in |
1567 |
this
state attesting to required maintenance, useful life, and |
1568 |
replacement
costs of the common elements. However, if approved |
1569 |
by a
majority of the voting interests present at a properly |
1570 |
called
meeting of the association, an association may waive this |
1571 |
requirement.
Such meeting and approval must occur prior to the |
1572 |
end of
the 5-year period and is effective only for that 5-year |
1573 |
period. |
1574 |
(7) An
association may not refuse the request of a unit |
1575 |
owner
for a reasonable accommodation for the attachment on the |
1576 |
mantle
or frame of the door of the unit owner a religious object |
1577 |
not to
exceed 3 inches wide, 6 inches high, and 1.5 inches deep. |
1578 |
Section
10. Paragraph (e) of subsection (1) of section |
1579 |
718.115, Florida Statutes,
is amended to read: |
1580 |
718.115 Common
expenses and common surplus.-- |
1581 |
(1) |
1582 |
(e) The
expense of installation, replacement, operation, |
1583 |
repair, and maintenance of
hurricane shutters or other hurricane |
1584 |
protection
by the board pursuant to s. 718.113(5) shall |
1585 |
constitute a common
expense as defined herein and shall be |
1586 |
collected as provided in
this section if the association is |
1587 |
responsible
for the maintenance, repair, and replacement of the |
1588 |
hurricane
shutters or other hurricane protection pursuant to the |
1589 |
declaration
of condominium. However, if the maintenance, repair, |
1590 |
and
replacement of the hurricane shutters or other hurricane |
1591 |
protection
is the responsibility of the unit owners pursuant to |
1592 |
the
declaration of condominium, the cost of the installation of |
1593 |
the
hurricane shutters or other hurricane protection shall not |
1594 |
be a
common expense, but shall be charged individually to the |
1595 |
unit
owners based on the cost of installation of the hurricane |
1596 |
shutters
or other hurricane protection appurtenant to the unit. |
1597 |
Notwithstanding the
provisions of s. 718.116(9), and regardless |
1598 |
of
whether or not the declaration requires the association or |
1599 |
unit
owners maintain, repair, or replace hurricane shutters or |
1600 |
other
hurricane protection a unit owner who has previously |
1601 |
installed hurricane
shutters in accordance with s. 718.113(5) |
1602 |
other
hurricane protection or laminated glass architecturally |
1603 |
designed to function as
hurricane protection, which hurricane |
1604 |
shutters
or other hurricane protection or laminated glass comply |
1605 |
complies
with the current applicable
building code shall receive |
1606 |
a credit equal to the pro
rata portion of the assessed |
1607 |
installation cost assigned
to each unit. However, such unit |
1608 |
owner shall remain
responsible for the pro rata share of |
1609 |
expenses for hurricane
shutters or other hurricane protection |
1610 |
installed on common
elements and association property by the |
1611 |
board pursuant to s.
718.113(5), and shall remain responsible |
1612 |
for a pro rata share of
the expense of the replacement, |
1613 |
operation, repair, and
maintenance of such shutters or other |
1614 |
hurricane
protection. |
1615 |
Section
11. Paragraph (a) of subsection (7) of section |
1616 |
718.117, Florida Statutes,
is amended to read: |
1617 |
718.117 Termination
of condominium.-- |
1618 |
(7) NATURAL
DISASTERS.-- |
1619 |
(a) If,
after a natural disaster, the identity of the |
1620 |
directors or their right
to hold office is in doubt, if they are |
1621 |
deceased or unable to act,
if they fail or refuse to act, or if |
1622 |
they cannot be located,
any interested person may petition the |
1623 |
circuit court to determine
the identity of the directors or, if |
1624 |
found to be in the best
interests of the unit owners, to appoint |
1625 |
a receiver to conclude the
affairs of the association after a |
1626 |
hearing following notice
to such persons as the court directs. |
1627 |
Lienholders shall be given
notice of the petition and have the |
1628 |
right to propose persons
for the consideration by the court as |
1629 |
receiver. If
a receiver is appointed, the court shall direct the |
1630 |
receiver
to provide to all unit owners written notice of his or |
1631 |
her
appointment as receiver. Such notice shall be mailed or |
1632 |
delivered
within 10 days after the appointment. Notice by mail |
1633 |
to a
unit owner shall be sent to the address used by the county |
1634 |
property
appraiser for notice to the unit owner. |
1635 |
Section
12. Subsection (4) is added to section 718.121, |
1636 |
Florida Statutes, to read: |
1637 |
718.121 Liens.-- |
1638 |
(4) Except
as otherwise provided in this chapter, no lien |
1639 |
may be
filed by the association against a condominium unit until |
1640 |
30 days
after the date on which a notice of intent to file a |
1641 |
lien
has been delivered to the owner by certified mail, return |
1642 |
receipt
requested, and by first-class United States mail to the |
1643 |
owner
at his or her last known address as reflected in the |
1644 |
records
of the association. However, if the address reflected in |
1645 |
the
records is outside the United States, then the notice must |
1646 |
be sent
by first-class United States mail to the unit and to the |
1647 |
last
known address by regular mail with international postage, |
1648 |
which
shall be deemed sufficient. Delivery of the notice shall |
1649 |
be
deemed given upon mailing as required by this subsection. |
1650 |
Alternatively,
notice shall be complete if served on the unit |
1651 |
owner
in the manner authorized by chapter 48 and the Florida |
1652 |
Rules
of Civil Procedure. |
1653 |
Section
13. Section 718.1224, Florida Statutes, is created |
1654 |
to read: |
1655 |
718.1224 Prohibition
against SLAPP suits.-- |
1656 |
(1) It
is the intent of the Legislature to protect the |
1657 |
right
of condominium unit owners to exercise their rights to |
1658 |
instruct
their representatives and petition for redress of |
1659 |
grievances
before the various governmental entities of this |
1660 |
state
as protected by the First Amendment to the United States |
1661 |
Constitution
and s. 5, Art. I of the State Constitution. The |
1662 |
Legislature
recognizes that strategic lawsuits against public |
1663 |
participation,
or "SLAPP suits," as they are typically referred |
1664 |
to,
have occurred when association members are sued by |
1665 |
individuals,
business entities, or governmental entities arising |
1666 |
out of
a condominium unit owner's appearance and presentation |
1667 |
before
a governmental entity on matters related to the |
1668 |
condominium
association. However, it is the public policy of |
1669 |
this
state that governmental entities, business organizations, |
1670 |
and
individuals not engage in SLAPP suits, because such actions |
1671 |
are
inconsistent with the right of condominium unit owners to |
1672 |
participate
in the state's institutions of government. |
1673 |
Therefore,
the Legislature finds and declares that prohibiting |
1674 |
such
lawsuits by governmental entities, business entities, and |
1675 |
individuals
against condominium unit owners who address matters |
1676 |
concerning
their condominium association will preserve this |
1677 |
fundamental
state policy, preserve the constitutional rights of |
1678 |
condominium
unit owners, and ensure the continuation of |
1679 |
representative
government in this state. It is the intent of the |
1680 |
Legislature
that such lawsuits be expeditiously disposed of by |
1681 |
the
courts. As used in this subsection, the term "governmental |
1682 |
entity"
means the state, including the executive, legislative, |
1683 |
and
judicial branches of government; the independent |
1684 |
establishments
of the state, counties, municipalities, |
1685 |
districts,
authorities, boards, or commissions; or any agencies |
1686 |
of
these branches that are subject to chapter 286. |
1687 |
(2) A
governmental entity, business organization, or |
1688 |
individual
in this state may not file or cause to be filed |
1689 |
through
its employees or agents any lawsuit, cause of action, |
1690 |
claim,
cross-claim, or counterclaim against a condominium unit |
1691 |
owner
without merit and solely because such condominium unit |
1692 |
owner
has exercised the right to instruct his or her |
1693 |
representatives
or the right to petition for redress of |
1694 |
grievances
before the various governmental entities of this |
1695 |
state,
as protected by the First Amendment to the United States |
1696 |
Constitution
and s. 5, Art. I of the State Constitution. |
1697 |
(3) A
condominium unit owner sued by a governmental |
1698 |
entity,
business organization, or individual in violation of |
1699 |
this
section has a right to an expeditious resolution of a claim |
1700 |
that
the suit is in violation of this section. A condominium |
1701 |
unit
owner may petition the court for an order dismissing the |
1702 |
action
or granting final judgment in favor of that condominium |
1703 |
unit
owner. The petitioner may file a motion for summary |
1704 |
judgment,
together with supplemental affidavits, seeking a |
1705 |
determination
that the governmental entity's, business |
1706 |
organization's,
or individual's lawsuit has been brought in |
1707 |
violation
of this section. The governmental entity, business |
1708 |
organization,
or individual shall thereafter file its response |
1709 |
and any
supplemental affidavits. As soon as practicable, the |
1710 |
court
shall set a hearing on the petitioner's motion, which |
1711 |
shall
be held at the earliest possible time after the filing of |
1712 |
the
governmental entity's, business organization's, or |
1713 |
individual's
response. The court may award the condominium unit |
1714 |
owner
sued by the governmental entity, business organization, or |
1715 |
individual
actual damages arising from the governmental |
1716 |
entity's,
individual's, or business organization's violation of |
1717 |
this
section. A court may treble the damages awarded to a |
1718 |
prevailing
condominium unit owner and shall state the basis for |
1719 |
the
treble damages award in its judgment. The court shall award |
1720 |
the
prevailing party reasonable attorney's fees and costs |
1721 |
incurred
in connection with a claim that an action was filed in |
1722 |
violation
of this section. |
1723 |
(4) Condominium
associations may not expend association |
1724 |
funds
in prosecuting a SLAPP suit against a condominium unit |
1725 |
owner. |
1726 |
Section
14. Paragraph (b) of subsection (3) of section |
1727 |
718.1255, Florida
Statutes, is amended to read: |
1728 |
718.1255 Alternative
dispute resolution; voluntary |
1729 |
mediation; mandatory
nonbinding arbitration; legislative |
1730 |
findings.-- |
1731 |
(3) LEGISLATIVE
FINDINGS.-- |
1732 |
(b) The
Legislature finds that the courts are
becoming |
1733 |
overcrowded
with condominium and other disputes, and further |
1734 |
finds
that alternative dispute resolution has been making |
1735 |
progress in reducing court
dockets and trials and in offering a |
1736 |
more efficient,
cost-effective option to court litigation. |
1737 |
However, the Legislature
also finds that alternative dispute |
1738 |
resolution should not be
used as a mechanism to encourage the |
1739 |
filing of frivolous or
nuisance suits. |
1740 |
Section
15. Section 718.1265, Florida Statutes, is created |
1741 |
to read: |
1742 |
718.1265 Association
emergency powers.-- |
1743 |
(1) To
the extent allowed by law and unless specifically |
1744 |
prohibited
by the declaration of condominium, the articles, or |
1745 |
the
bylaws of an association, and consistent with the provisions |
1746 |
of s.
617.0830, the board of administration, in response to |
1747 |
damage
caused by an event for which a state of emergency is |
1748 |
declared
pursuant to s. 252.36 in the locale in which the |
1749 |
condominium
is located, may, but is not required to, exercise |
1750 |
the
following powers: |
1751 |
(a) Conduct
board meetings and membership meetings with |
1752 |
notice
given as is practicable. Such notice may be given in any |
1753 |
practicable
manner, including publication, radio, United States |
1754 |
mail,
the Internet, public service announcements, and |
1755 |
conspicuous
posting on the condominium property or any other |
1756 |
means
the board deems reasonable under the circumstances. Notice |
1757 |
of
board decisions may be communicated as provided in this |
1758 |
paragraph. |
1759 |
(b) Cancel
and reschedule any association meeting. |
1760 |
(c) Name
as assistant officers persons who are not |
1761 |
directors,
which assistant officers shall have the same |
1762 |
authority
as the executive officers to whom they are assistants |
1763 |
during
the state of emergency to accommodate the incapacity or |
1764 |
unavailability
of any officer of the association. |
1765 |
(d) Relocate
the association's principal office or |
1766 |
designate
alternative principal offices. |
1767 |
(e) Enter
into agreements with local counties and |
1768 |
municipalities
to assist counties and municipalities with debris |
1769 |
removal. |
1770 |
(f) Implement
a disaster plan before or immediately |
1771 |
following
the event for which a state of emergency is declared |
1772 |
which
may include, but is not limited to, shutting down or off |
1773 |
elevators;
electricity; water, sewer, or security systems; or |
1774 |
air
conditioners. |
1775 |
(g) Based
upon advice of emergency management officials or |
1776 |
upon
the advice of licensed professionals retained by the board, |
1777 |
determine
any portion of the condominium property unavailable |
1778 |
for
entry or occupancy by unit owners, family members, tenants, |
1779 |
guests,
agents, or invitees to protect the health, safety, or |
1780 |
welfare
of such persons. |
1781 |
(h) Require
the evacuation of the condominium property in |
1782 |
the
event of a mandatory evacuation order in the locale in which |
1783 |
the
condominium is located. Should any unit owner or other |
1784 |
occupant
of a condominium fail or refuse to evacuate the |
1785 |
condominium
property where the board has required evacuation, |
1786 |
the
association shall be immune from liability or injury to |
1787 |
persons
or property arising from such failure or refusal. |
1788 |
(i) Based
upon advice of emergency management officials or |
1789 |
upon
the advice of licensed professionals retained by the board, |
1790 |
determine
whether the condominium property can be safely |
1791 |
inhabited
or occupied. However, such determination is not |
1792 |
conclusive
as to any determination of habitability pursuant to |
1793 |
the
declaration. |
1794 |
(j) Mitigate
further damage, including taking action to |
1795 |
contract
for the removal of debris and to prevent or mitigate |
1796 |
the
spread of fungus, including, but not limited to, mold or |
1797 |
mildew,
by removing and disposing of wet drywall, insulation, |
1798 |
carpet,
cabinetry, or other fixtures on or within the |
1799 |
condominium
property, even if the unit owner is obligated by the |
1800 |
declaration
or law to insure or replace those fixtures and to |
1801 |
remove
personal property from a unit. |
1802 |
(k) Contract,
on behalf of any unit owner or owners, for |
1803 |
items
or services for which the owners are otherwise |
1804 |
individually
responsible for, but which are necessary to prevent |
1805 |
further
damage to the condominium property. In such event, the |
1806 |
unit
owner or owners on whose behalf the board has contracted |
1807 |
are
responsible for reimbursing the association for the actual |
1808 |
costs
of the items or services, and the association may use its |
1809 |
lien
authority provided by s. 718.116 to enforce collection of |
1810 |
the
charges. Without limitation, such items or services may |
1811 |
include
the drying of units, the boarding of broken windows or |
1812 |
doors,
and the replacement of damaged air conditioners or air |
1813 |
handlers
to provide climate control in the units or other |
1814 |
portions
of the property. |
1815 |
(l) Regardless
of any provision to the contrary and even |
1816 |
if such
authority does not specifically appear in the |
1817 |
declaration
of condominium, articles, or bylaws of the |
1818 |
association,
levy special assessments without a vote of the |
1819 |
owners. |
1820 |
(m) Without
unit owners' approval, borrow money and pledge |
1821 |
association
assets as collateral to fund emergency repairs and |
1822 |
carry
out the duties of the association when operating funds are |
1823 |
insufficient.
This paragraph does not limit the general |
1824 |
authority
of the association to borrow money, subject to such |
1825 |
restrictions
as are contained in the declaration of condominium, |
1826 |
articles,
or bylaws of the association. |
1827 |
(2) The
special powers authorized under subsection (1) |
1828 |
shall
be limited to that time reasonably necessary to protect |
1829 |
the
health, safety, and welfare of the association and the unit |
1830 |
owners
and the unit owners' family members, tenants, guests, |
1831 |
agents,
or invitees and shall be reasonably necessary to |
1832 |
mitigate
further damage and make emergency repairs. |
1833 |
Section
16. Section 718.127, Florida Statutes, is created |
1834 |
to read: |
1835 |
718.127 Receivership
notification.--Upon the appointment |
1836 |
of a
receiver by a court for any reason relating to a |
1837 |
condominium
association, the court shall direct the receiver to |
1838 |
provide
to all unit owners written notice of his or her |
1839 |
appointment
as receiver. Such notice shall be mailed or |
1840 |
delivered
within 10 days after the appointment. Notice by mail |
1841 |
to a
unit owner shall be sent to the address used by the county |
1842 |
property
appraiser for notice to the unit owner. |
1843 |
Section
17. Subsection (1) of section 718.301, Florida |
1844 |
Statutes, is amended, and
paragraph (p) is added to subsection |
1845 |
(4) of that section, to
read: |
1846 |
718.301 Transfer
of association control; claims of defect |
1847 |
by association.-- |
1848 |
(1) When
unit owners other than the developer own 15 |
1849 |
percent or more of the
units in a condominium that will be |
1850 |
operated ultimately by an
association, the unit owners other |
1851 |
than the developer shall
be entitled to elect no less than one- |
1852 |
third of the members of
the board of administration of the |
1853 |
association. Unit owners
other than the developer are entitled |
1854 |
to elect not less than a
majority of the members of the board of |
1855 |
administration of an
association: |
1856 |
(a) Three
years after 50 percent of the units that will be |
1857 |
operated ultimately by the
association have been conveyed to |
1858 |
purchasers; |
1859 |
(b) Three
months after 90 percent of the units that will |
1860 |
be operated ultimately by
the association have been conveyed to |
1861 |
purchasers; |
1862 |
(c) When
all the units that will be operated ultimately by |
1863 |
the association have been
completed, some of them have been |
1864 |
conveyed to purchasers,
and none of the others are being offered |
1865 |
for sale by the developer
in the ordinary course of business; |
1866 |
(d) When
some of the units have been conveyed to |
1867 |
purchasers and none of the
others are being constructed or |
1868 |
offered for sale by the
developer in the ordinary course of |
1869 |
business; or |
1870 |
(e) When
the developer files a petition seeking protection |
1871 |
in
bankruptcy; |
1872 |
(f) When
a receiver for the developer is appointed by a |
1873 |
circuit
court and is not discharged within 30 days after such |
1874 |
appointment;
or |
1875 |
(g)(e) Seven
years after recordation of the declaration of |
1876 |
condominium; or, in the
case of an association which may |
1877 |
ultimately operate more
than one condominium, 7 years after |
1878 |
recordation of the
declaration for the first condominium it |
1879 |
operates; or, in the case
of an association operating a phase |
1880 |
condominium created
pursuant to s. 718.403, 7 years after |
1881 |
recordation of the
declaration creating the initial phase, |
1882 |
|
1883 |
whichever occurs first.
The developer is entitled to elect at |
1884 |
least one member of the
board of administration of an |
1885 |
association as long as the
developer holds for sale in the |
1886 |
ordinary course of
business at least 5 percent, in condominiums |
1887 |
with fewer than 500 units,
and 2 percent, in condominiums with |
1888 |
more than 500 units, of
the units in a condominium operated by |
1889 |
the association. Following
the time the developer relinquishes |
1890 |
control of the
association, the developer may exercise the right |
1891 |
to vote any
developer-owned units in the same manner as any |
1892 |
other unit owner except
for purposes of reacquiring control of |
1893 |
the association or
selecting the majority members of the board |
1894 |
of administration. |
1895 |
(4) At
the time that unit owners other than the developer |
1896 |
elect a majority of the
members of the board of administration |
1897 |
of an association, the
developer shall relinquish control of the |
1898 |
association, and the unit
owners shall accept control. |
1899 |
Simultaneously, or for the
purposes of paragraph (c) not more |
1900 |
than 90 days thereafter,
the developer shall deliver to the |
1901 |
association, at the
developer's expense, all property of the |
1902 |
unit owners and of the
association which is held or controlled |
1903 |
by the developer,
including, but not limited to, the following |
1904 |
items, if applicable, as
to each condominium operated by the |
1905 |
association: |
1906 |
(p) A
report included in the official records, under seal |
1907 |
of an
architect or engineer authorized to practice in this |
1908 |
state,
attesting to required maintenance, useful life, and |
1909 |
replacement
costs of the following applicable common elements |
1910 |
comprising
a turnover inspection report: |
1911 |
1. Roof. |
1912 |
2. Structure. |
1913 |
3. Fireproofing
and fire protection systems. |
1914 |
4. Elevators. |
1915 |
5. Heating
and cooling systems. |
1916 |
6. Plumbing. |
1917 |
7. Electrical
systems. |
1918 |
8. Swimming
pool or spa and equipment. |
1919 |
9. Seawalls. |
1920 |
10. Pavement
and parking areas. |
1921 |
11. Drainage
systems. |
1922 |
12. Painting. |
1923 |
13. Irrigation
systems. |
1924 |
Section
18. Paragraph (f) is added to subsection (1) of |
1925 |
section 718.3025, Florida
Statutes, to read: |
1926 |
718.3025 Agreements
for operation, maintenance, or |
1927 |
management of
condominiums; specific requirements.-- |
1928 |
(1) No
written contract between a party contracting to |
1929 |
provide maintenance or
management services and an association |
1930 |
which contract provides
for operation, maintenance, or |
1931 |
management of a
condominium association or property serving the |
1932 |
unit owners of a
condominium shall be valid or enforceable |
1933 |
unless the contract: |
1934 |
(f) Discloses
any financial or ownership interest a board |
1935 |
member
or any party providing maintenance or management services |
1936 |
to the
association holds with the contracting party. |
1937 |
Section
19. Section 718.3026, Florida Statutes, is amended |
1938 |
to read: |
1939 |
718.3026 Contracts
for products and services; in writing; |
1940 |
bids;
exceptions.--Associations with 10 or fewer
with less than |
1941 |
100
units may opt out of the provisions of this section if two- |
1942 |
thirds of the unit owners
vote to do so, which opt-out may be |
1943 |
accomplished by a proxy
specifically setting forth the exception |
1944 |
from this section. |
1945 |
(1) All
contracts as further described herein or any |
1946 |
contract that is not to be
fully performed within 1 year after |
1947 |
the making thereof, for
the purchase, lease, or renting of |
1948 |
materials or equipment to
be used by the association in |
1949 |
accomplishing its purposes
under this chapter, and all contracts |
1950 |
for the provision of
services, shall be in writing. If a |
1951 |
contract for the purchase,
lease, or renting of materials or |
1952 |
equipment, or for the
provision of services, requires payment by |
1953 |
the association on behalf
of any condominium operated by the |
1954 |
association in the
aggregate that exceeds 5 percent of the total |
1955 |
annual budget of the
association, including reserves, the |
1956 |
association shall obtain
competitive bids for the materials, |
1957 |
equipment, or services.
Nothing contained herein shall be |
1958 |
construed to require the
association to accept the lowest bid. |
1959 |
(2)(a)1. Notwithstanding
the foregoing, contracts with |
1960 |
employees of the
association, and contracts for attorney, |
1961 |
accountant, architect,
community association manager, timeshare |
1962 |
management firm,
engineering, and landscape architect services |
1963 |
are not subject to the
provisions of this section. |
1964 |
2. A
contract executed before January 1, 1992, and any |
1965 |
renewal
thereof, is not subject to the competitive bid |
1966 |
requirements
of this section. If a contract was awarded under |
1967 |
the
competitive bid procedures of this section, any renewal of |
1968 |
that
contract is not subject to such competitive bid |
1969 |
requirements
if the contract contains a provision that allows |
1970 |
the
board to cancel the contract on 30 days' notice. Materials, |
1971 |
equipment,
or services provided to a condominium under a local |
1972 |
government
franchise agreement by a franchise holder are not |
1973 |
subject
to the competitive bid requirements of this section. A |
1974 |
contract
with a manager, if made by a competitive bid, may be |
1975 |
made
for up to 3 years. A condominium whose declaration or |
1976 |
bylaws
provides for competitive bidding for services may operate |
1977 |
under
the provisions of that declaration or bylaws in lieu of |
1978 |
this
section if those provisions are not less stringent than the |
1979 |
requirements
of this section. |
1980 |
(b) Nothing
contained herein is intended to limit the |
1981 |
ability of an association
to obtain needed products and services |
1982 |
in an emergency. |
1983 |
(c) This
section shall not apply if the business entity |
1984 |
with which the association
desires to enter into a contract is |
1985 |
the only source of supply
within the county serving the |
1986 |
association. |
1987 |
(d) Nothing
contained herein shall excuse a party |
1988 |
contracting to provide
maintenance or management services from |
1989 |
compliance with s.
718.3025. |
1990 |
(3) As
to any contract or other transaction between an |
1991 |
association
and one or more of its directors or any other |
1992 |
corporation,
firm, association, or entity in which one or more |
1993 |
of its
directors are directors or officers or are financially |
1994 |
interested: |
1995 |
(a) The
association shall comply with the requirements of |
1996 |
s.
617.0832. |
1997 |
(b) The
disclosures required by s. 617.0832 shall be |
1998 |
entered
into the written minutes of the meeting. |
1999 |
(c) Approval
of the contract or other transaction shall |
2000 |
require
an affirmative vote of two-thirds of the directors |
2001 |
present. |
2002 |
(d) At
the next regular or special meeting of the members, |
2003 |
the
existence of the contract or other transaction shall be |
2004 |
disclosed
to the members. Upon motion of any member, the |
2005 |
contract
or transaction shall be brought up for a vote and may |
2006 |
be
canceled by a majority vote of the members present. Should |
2007 |
the
members cancel the contract, the association shall only be |
2008 |
liable
for the reasonable value of goods and services provided |
2009 |
up to
the time of cancellation and shall not be liable for any |
2010 |
termination
fee, liquidated damages, or other form of penalty |
2011 |
for
such cancellation. |
2012 |
Section
20. Subsection (3) of section 718.303, Florida |
2013 |
Statutes, is amended to
read: |
2014 |
718.303 Obligations
of owners; waiver; levy of fine |
2015 |
against unit by
association.-- |
2016 |
(3) If
the declaration or bylaws so provide, the |
2017 |
association may levy
reasonable fines against a unit for the |
2018 |
failure of the owner of
the unit, or its occupant, licensee, or |
2019 |
invitee, to comply with
any provision of the declaration, the |
2020 |
association bylaws, or
reasonable rules of the association. No |
2021 |
fine will become a lien
against a unit. No fine may exceed $100 |
2022 |
per violation. However, a
fine may be levied on the basis of |
2023 |
each day of a continuing
violation, with a single notice and |
2024 |
opportunity for hearing,
provided that no such fine shall in the |
2025 |
aggregate exceed $1,000.
No fine may be levied except after |
2026 |
giving reasonable notice
and opportunity for a hearing to the |
2027 |
unit owner and, if
applicable, its licensee or invitee. The |
2028 |
hearing must be held
before a committee of other unit owners who |
2029 |
are
neither board members nor persons residing in a board |
2030 |
member's
household. If the committee does not agree with the |
2031 |
fine, the fine may not be
levied. The provisions of this |
2032 |
subsection do not apply to
unoccupied units. |
2033 |
Section
21. Section 718.501, Florida Statutes, is amended |
2034 |
to read: |
2035 |
718.501 Authority,
responsibility, Powers and duties of |
2036 |
Division of Florida Land
Sales, Condominiums, and Mobile |
2037 |
Homes.-- |
2038 |
(1) The
Division of Florida Land Sales, Condominiums, and |
2039 |
Mobile Homes of the
Department of Business and Professional |
2040 |
Regulation, referred to as
the "division" in this part, in |
2041 |
addition to other powers
and duties prescribed by chapter 498, |
2042 |
has the power to enforce
and ensure compliance with the |
2043 |
provisions of this chapter
and rules promulgated pursuant hereto |
2044 |
relating to the
development, construction, sale, lease, |
2045 |
ownership, operation, and
management of residential condominium |
2046 |
units. In performing its
duties, the division has complete |
2047 |
jurisdiction
to investigate complaints and enforce compliance |
2048 |
with
the provisions of this chapter with respect to associations |
2049 |
that
are still under developer control and complaints against |
2050 |
developers
involving improper turnover or failure to turnover, |
2051 |
pursuant
to s. 718.301. However, after turnover has occurred, |
2052 |
the
division shall only have jurisdiction to investigate |
2053 |
complaints
related to financial issues, elections, and unit |
2054 |
owner
access to association records pursuant to s. 718.111(12). |
2055 |
the
following powers and duties: |
2056 |
(a) The
division may make necessary public or private |
2057 |
investigations within or
outside this state to determine whether |
2058 |
any person has violated
this chapter or any rule or order |
2059 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
2060 |
in the adoption of rules
or forms hereunder. |
2061 |
(b) The
division may require or permit any person to file |
2062 |
a statement in writing,
under oath or otherwise, as the division |
2063 |
determines, as to the
facts and circumstances concerning a |
2064 |
matter to be investigated. |
2065 |
(c) For
the purpose of any investigation under this |
2066 |
chapter, the division
director or any officer or employee |
2067 |
designated by the division
director may administer oaths or |
2068 |
affirmations, subpoena
witnesses and compel their attendance, |
2069 |
take evidence, and require
the production of any matter which is |
2070 |
relevant to the
investigation, including the existence, |
2071 |
description, nature,
custody, condition, and location of any |
2072 |
books, documents, or other
tangible things and the identity and |
2073 |
location of persons having
knowledge of relevant facts or any |
2074 |
other matter reasonably
calculated to lead to the discovery of |
2075 |
material evidence. Upon
the failure by a person to obey a |
2076 |
subpoena or to answer
questions propounded by the investigating |
2077 |
officer and upon
reasonable notice to all persons affected |
2078 |
thereby, the division may
apply to the circuit court for an |
2079 |
order compelling
compliance. |
2080 |
(d) Notwithstanding
any remedies available to unit owners |
2081 |
and associations, if the
division has reasonable cause to |
2082 |
believe that a violation
of any provision of this chapter or |
2083 |
rule promulgated pursuant
hereto has occurred, the division may |
2084 |
institute enforcement
proceedings in its own name against any |
2085 |
developer, association,
officer, or member of the board of |
2086 |
administration, or its
assignees or agents, as follows: |
2087 |
1. The
division may permit a person whose conduct or |
2088 |
actions may be under
investigation to waive formal proceedings |
2089 |
and enter into a consent
proceeding whereby orders, rules, or |
2090 |
letters of censure or
warning, whether formal or informal, may |
2091 |
be entered against the
person. |
2092 |
2. The
division may issue an order requiring the |
2093 |
developer, association, developer-designated
officer, or |
2094 |
developer-designated
member of the board of administration, or |
2095 |
developer-designated
its assignees or agents, community |
2096 |
association
manager, or community association management firm to |
2097 |
cease and desist from the
unlawful practice and take such |
2098 |
affirmative action as in
the judgment of the division will carry |
2099 |
out the purposes of this
chapter. Such affirmative action may |
2100 |
include, but is not
limited to, an order requiring a developer |
2101 |
to pay moneys determined
to be owed to a condominium |
2102 |
association. |
2103 |
3. If
a developer fails to pay any restitution determined |
2104 |
by the
division to be owed, plus any accrued interest at the |
2105 |
highest
rate permitted by law, within 30 days after expiration |
2106 |
of any
appellate time period of a final order requiring payment |
2107 |
of
restitution or the conclusion of any appeal thereof, |
2108 |
whichever
is later, the division shall bring an action in |
2109 |
circuit
or county court on behalf of any association, class of |
2110 |
unit
owners, lessees, or purchasers for restitution, declaratory |
2111 |
relief,
injunctive relief, or any other available remedy. The |
2112 |
division
may also temporarily revoke its acceptance of the |
2113 |
filing
for the developer to which the restitution relates until |
2114 |
payment
of restitution is made. The
division may bring an action |
2115 |
in
circuit court on behalf of a class of unit owners, lessees, |
2116 |
or
purchasers for declaratory relief, injunctive relief, or |
2117 |
restitution. |
2118 |
4. The
division may impose a civil penalty against a |
2119 |
developer or association,
or its assignee or agent, for any |
2120 |
violation of this chapter
or a rule promulgated pursuant hereto. |
2121 |
The division may impose a
civil penalty individually against any |
2122 |
officer or board member
who willfully and knowingly violates a |
2123 |
provision of this chapter,
a rule adopted pursuant hereto, or a |
2124 |
final order of the
division; may order the removal of such |
2125 |
individual
as an officer or from the board of administration or |
2126 |
as an
officer of the association; and may prohibit such |
2127 |
individual
from serving as an officer or on the board of a |
2128 |
community
association for a period of time. The term
"willfully |
2129 |
and knowingly" means
that the division informed the officer or |
2130 |
board member that his or
her action or intended action violates |
2131 |
this chapter, a rule
adopted under this chapter, or a final |
2132 |
order of the division and
that the officer or board member |
2133 |
refused to comply with the
requirements of this chapter, a rule |
2134 |
adopted under this
chapter, or a final order of the division. |
2135 |
The division, prior to
initiating formal agency action under |
2136 |
chapter 120, shall afford
the officer or board member an |
2137 |
opportunity to voluntarily
comply with this chapter, a rule |
2138 |
adopted under this
chapter, or a final order of the division. An |
2139 |
officer or board member
who complies within 10 days is not |
2140 |
subject to a civil
penalty. A penalty may be imposed on the |
2141 |
basis of each day of
continuing violation, but in no event shall |
2142 |
the penalty for any
offense exceed $5,000. By January 1, 1998, |
2143 |
the division shall adopt,
by rule, penalty guidelines applicable |
2144 |
to possible violations or
to categories of violations of this |
2145 |
chapter or rules adopted
by the division. The guidelines must |
2146 |
specify a meaningful range
of civil penalties for each such |
2147 |
violation of the statute
and rules and must be based upon the |
2148 |
harm caused by the
violation, the repetition of the violation, |
2149 |
and upon such other
factors deemed relevant by the division. For |
2150 |
example, the division may
consider whether the violations were |
2151 |
committed by a developer
or owner-controlled association, the |
2152 |
size of the association,
and other factors. The guidelines must |
2153 |
designate the possible
mitigating or aggravating circumstances |
2154 |
that justify a departure
from the range of penalties provided by |
2155 |
the rules. It is the
legislative intent that minor violations be |
2156 |
distinguished from those
which endanger the health, safety, or |
2157 |
welfare of the condominium
residents or other persons and that |
2158 |
such guidelines provide
reasonable and meaningful notice to the |
2159 |
public of likely penalties
that may be imposed for proscribed |
2160 |
conduct. This subsection
does not limit the ability of the |
2161 |
division to informally
dispose of administrative actions or |
2162 |
complaints by stipulation,
agreed settlement, or consent order. |
2163 |
All amounts collected
shall be deposited with the Chief |
2164 |
Financial Officer to the
credit of the Division of Florida Land |
2165 |
Sales, Condominiums, and
Mobile Homes Trust Fund. If a developer |
2166 |
fails to pay the civil
penalty and the amount deemed to be owed |
2167 |
to
the association, the division shall thereupon issue an
order |
2168 |
directing that such
developer cease and desist from further |
2169 |
operation until such time
as the civil penalty is paid or may |
2170 |
pursue enforcement of the
penalty in a court of competent |
2171 |
jurisdiction. If an
association fails to pay the civil penalty, |
2172 |
the division shall
thereupon pursue enforcement in a court of |
2173 |
competent jurisdiction,
and the order imposing the civil penalty |
2174 |
or the cease and desist
order will not become effective until 20 |
2175 |
days after the date of
such order. Any action commenced by the |
2176 |
division shall be brought
in the county in which the division |
2177 |
has its executive offices
or in the county where the violation |
2178 |
occurred. |
2179 |
5. If
a unit owner presents the division with proof that |
2180 |
the
unit owner has requested access to official records in |
2181 |
writing
by certified mail, and that after 10 days the unit owner |
2182 |
again
made the same request for access to official records in |
2183 |
writing
by certified mail, and that more than 10 days has |
2184 |
elapsed
since the second request and the association has still |
2185 |
failed
or refused to provide access to official records as |
2186 |
required
by this chapter, the division shall issue a subpoena |
2187 |
requiring
production of the requested records where the records |
2188 |
are
kept pursuant to s. 718.112. |
2189 |
(e) The
division is authorized to prepare and disseminate |
2190 |
a prospectus and other
information to assist prospective owners, |
2191 |
purchasers, lessees, and
developers of residential condominiums |
2192 |
in assessing the rights,
privileges, and duties pertaining |
2193 |
thereto. |
2194 |
(f) The
division has authority to adopt rules pursuant to |
2195 |
ss. 120.536(1) and 120.54
to implement and enforce the |
2196 |
provisions of this
chapter. |
2197 |
(g) The
division shall establish procedures for providing |
2198 |
notice to an association and
the developer during the period |
2199 |
where
the developer controls the association when the division |
2200 |
is considering the
issuance of a declaratory statement with |
2201 |
respect to the declaration
of condominium or any related |
2202 |
document governing in such
condominium community. |
2203 |
(h) The
division shall furnish each association which pays |
2204 |
the fees required by
paragraph (2)(a) a copy of this act, |
2205 |
subsequent changes to this
act on an annual basis, an amended |
2206 |
version of this act as it
becomes available from the Secretary |
2207 |
of State's office on a
biennial basis, and the rules promulgated |
2208 |
pursuant thereto on an
annual basis. |
2209 |
(i) The
division shall annually provide each association |
2210 |
with a summary of
declaratory statements and formal legal |
2211 |
opinions relating to the
operations of condominiums which were |
2212 |
rendered by the division
during the previous year. |
2213 |
(j) The
division shall provide training and educational |
2214 |
programs for condominium
association board members and unit |
2215 |
owners. The
training may, in the division's discretion, include |
2216 |
web-based
electronic media, and live training and seminars in |
2217 |
various
locations throughout the state. The division shall have |
2218 |
the
authority to review and approve education and training |
2219 |
programs
for board members and unit owners offered by providers |
2220 |
and
shall maintain a current list of approved programs and |
2221 |
providers
and shall make such list available to board members |
2222 |
and
unit owners in a reasonable and cost-effective manner. |
2223 |
(k) The
division shall maintain a toll-free telephone |
2224 |
number accessible to
condominium unit owners. |
2225 |
(l) The
division shall develop a program to certify both |
2226 |
volunteer and paid
mediators to provide mediation of condominium |
2227 |
disputes. The division
shall provide, upon request, a list of |
2228 |
such mediators to any
association, unit owner, or other |
2229 |
participant in arbitration
proceedings under s. 718.1255 |
2230 |
requesting a copy of the
list. The division shall include on the |
2231 |
list of volunteer
mediators only the names of persons who have |
2232 |
received at least 20 hours
of training in mediation techniques |
2233 |
or who have mediated at
least 20 disputes. In order to become |
2234 |
initially certified by the
division, paid mediators must be |
2235 |
certified by the Supreme
Court to mediate court cases in either |
2236 |
county or circuit courts.
However, the division may adopt, by |
2237 |
rule, additional factors
for the certification of paid |
2238 |
mediators, which factors
must be related to experience, |
2239 |
education, or background.
Any person initially certified as a |
2240 |
paid mediator by the
division must, in order to continue to be |
2241 |
certified, comply with the
factors or requirements imposed by |
2242 |
rules adopted by the
division. |
2243 |
(m) When
a complaint is made, the division shall conduct |
2244 |
its inquiry with due
regard to the interests of the affected |
2245 |
parties. Within 30 days
after receipt of a complaint, the |
2246 |
division shall acknowledge
the complaint in writing and notify |
2247 |
the complainant whether
the complaint is within the jurisdiction |
2248 |
of the division and
whether additional information is needed by |
2249 |
the division from the
complainant. The division shall conduct |
2250 |
its investigation and
shall, within 90 days after receipt of the |
2251 |
original complaint or of
timely requested additional |
2252 |
information, take action
upon the complaint. However, the |
2253 |
failure to complete the
investigation within 90 days does not |
2254 |
prevent the division from
continuing the investigation, |
2255 |
accepting or considering
evidence obtained or received after 90 |
2256 |
days, or taking
administrative action if reasonable cause exists |
2257 |
to believe that a
violation of this chapter or a rule of the |
2258 |
division has occurred. If
an investigation is not completed |
2259 |
within the time limits
established in this paragraph, the |
2260 |
division shall, on a
monthly basis, notify the complainant in |
2261 |
writing of the status of
the investigation. When reporting its |
2262 |
action to the complainant,
the division shall inform the |
2263 |
complainant of any right
to a hearing pursuant to ss. 120.569 |
2264 |
and 120.57. |
2265 |
(n) Condominium
association directors, officers, and |
2266 |
employees;
condominium developers; community association |
2267 |
managers;
and community association management firms have an |
2268 |
ongoing
duty to reasonably cooperate with the division in any |
2269 |
investigation
pursuant to this section. The division shall refer |
2270 |
to
local law enforcement authorities any person whom the |
2271 |
division
believes has altered, destroyed, concealed, or removed |
2272 |
any
record, document, or thing required to be kept or maintained |
2273 |
by this
chapter with the purpose to impair its verity or |
2274 |
availability
in the department's investigation. |
2275 |
(2)(a) Effective
January 1, 1992, Each condominium |
2276 |
association which operates
more than two units shall pay to the |
2277 |
division an annual fee in
the amount of $4 for each residential |
2278 |
unit in condominiums
operated by the association. If the fee is |
2279 |
not paid by March 1, then
the association shall be assessed a |
2280 |
penalty of 10 percent of
the amount due, and the association |
2281 |
will not have standing to
maintain or defend any action in the |
2282 |
courts of this state until
the amount due, plus any penalty, is |
2283 |
paid. |
2284 |
(b) All
fees shall be deposited in the Division of Florida |
2285 |
Land Sales, Condominiums,
and Mobile Homes Trust Fund as |
2286 |
provided by law. |
2287 |
Section
22. Subsection (9) of section 718.5012, Florida |
2288 |
Statutes, is renumbered as
subsection (10), and a new subsection |
2289 |
(9) is added to that
section to read: |
2290 |
718.5012 Ombudsman;
powers and duties.--The ombudsman |
2291 |
shall have the powers that
are necessary to carry out the duties |
2292 |
of his or her office,
including the following specific powers: |
2293 |
(9) To
assist with the resolution of disputes between unit |
2294 |
owners
and the association or between unit owners when the |
2295 |
dispute
is not within the jurisdiction of the division to |
2296 |
resolve. |
2297 |
Section
23. Section 718.50151, Florida Statutes, is |
2298 |
amended to read: |
2299 |
718.50151 Community
Association Living Study Advisory |
2300 |
Council; membership
functions.-- |
2301 |
(1) There
is created the Community Association Living |
2302 |
Study
Advisory Council on
Condominiums. The council shall |
2303 |
consist of seven appointed
members. Two members shall be |
2304 |
appointed by the President
of the Senate, two members shall be |
2305 |
appointed by the Speaker
of the House of Representatives, and |
2306 |
three members shall be
appointed by the Governor. At least One |
2307 |
member that is appointed
by the Governor may shall
represent |
2308 |
timeshare condominiums. The
council shall be created as of |
2309 |
October
1 every 5 years, commencing October 1, 2008, and shall |
2310 |
exist
for a 6-month term. Members
shall be appointed to 2-year |
2311 |
terms;
however, one of the persons initially appointed by the |
2312 |
Governor,
by the President of the Senate, and by the Speaker of |
2313 |
the
House of Representatives shall be appointed to a 1-year |
2314 |
term.
The director of the division shall appoint
serve as an ex |
2315 |
officio nonvoting member.
The Legislature intends that the |
2316 |
persons appointed
represent a cross-section of persons |
2317 |
interested in community
association condominium
issues. The |
2318 |
council shall be located
within the division for administrative |
2319 |
purposes. Members of the
council shall serve without |
2320 |
compensation but are
entitled to receive per diem and travel |
2321 |
expenses pursuant to s.
112.061 while on official business. |
2322 |
(2) The
functions of the advisory
council shall be to: |
2323 |
(a) Receive,
from the public, input regarding issues of |
2324 |
concern with respect to community
association living, including |
2325 |
living
in condominiums, cooperatives,
and homeowners' |
2326 |
associations.
The council shall make and
recommendations for |
2327 |
changes in the condominium
law related to community association |
2328 |
living.
The issues that the council shall consider include, but |
2329 |
are not limited to, the
rights and responsibilities of the unit |
2330 |
owners in relation to the
rights and responsibilities of the |
2331 |
association. |
2332 |
(b) Review,
evaluate, and advise the division concerning |
2333 |
revisions and adoption of
rules affecting condominiums and |
2334 |
cooperatives. |
2335 |
(c) Recommend
improvements, if needed, in the education |
2336 |
programs offered by the
division. |
2337 |
(d) Review,
evaluate, and advise the Legislature |
2338 |
concerning
revisions and improvements to the laws relating to |
2339 |
condominiums,
cooperatives, and homeowners' associations. |
2340 |
(3) The
council may elect a chair and vice chair and such |
2341 |
other officers as it may
deem advisable. The council shall meet |
2342 |
at the call of its chair,
at the request of a majority of its |
2343 |
membership, at the request
of the division, or at such times as |
2344 |
it may prescribe. A
majority of the members of the council shall |
2345 |
constitute a quorum.
Council action may be taken by vote of a |
2346 |
majority of the voting
members who are present at a meeting |
2347 |
where there is a quorum. |
2348 |
Section
24. Paragraph (a) of subsection (2) of section |
2349 |
718.503, Florida Statutes,
is amended to read: |
2350 |
718.503 Developer
disclosure prior to sale; nondeveloper |
2351 |
unit owner disclosure
prior to sale; voidability.-- |
2352 |
(2) NONDEVELOPER
DISCLOSURE.-- |
2353 |
(a) Each
unit owner who is not a developer as defined by |
2354 |
this chapter shall comply
with the provisions of this subsection |
2355 |
prior to the sale of his
or her unit. Each prospective purchaser |
2356 |
who has entered into a
contract for the purchase of a |
2357 |
condominium unit is
entitled, at the seller's expense, to a |
2358 |
current copy of the
declaration of condominium, articles of |
2359 |
incorporation of the
association, bylaws and rules of the |
2360 |
association, financial
information required by s. 718.111, and |
2361 |
the document entitled
"Frequently Asked Questions and Answers" |
2362 |
required by s. 718.504. On
and after January 1, 2009, the |
2363 |
prospective
purchaser shall also be entitled to receive from the |
2364 |
seller
a copy of a governance form. Such form shall be provided |
2365 |
by the
division summarizing governance of condominium |
2366 |
associations.
In addition to such other information as the |
2367 |
division
considers helpful to a prospective purchaser in |
2368 |
understanding
association governance, the governance form shall |
2369 |
address
the following subjects: |
2370 |
1. The
role of the board in conducting the day-to-day |
2371 |
affairs
of the association on behalf of, and in the best |
2372 |
interests
of, the owners. |
2373 |
2. The
board's responsibility to provide advance notice of |
2374 |
board
and membership meetings. |
2375 |
3. The
rights of owners to attend and speak at board and |
2376 |
membership
meetings. |
2377 |
4. The
responsibility of the board and of owners with |
2378 |
respect
to maintenance of the condominium property. |
2379 |
5. The
responsibility of the board and owners to abide by |
2380 |
the
condominium documents, this chapter, rules adopted by the |
2381 |
division,
and reasonable rules adopted by the board. |
2382 |
6. Owners'
rights to inspect and copy association records |
2383 |
and the
limitations on such rights. |
2384 |
7. Remedies
available to owners with respect to actions by |
2385 |
the
board which may be abusive or beyond the board's power and |
2386 |
authority. |
2387 |
8. The
right of the board to hire a property management |
2388 |
firm,
subject to its own primary responsibility for such |
2389 |
management. |
2390 |
9. The
responsibility of owners with regard to payment of |
2391 |
regular
or special assessments necessary for the operation of |
2392 |
the
property and the potential consequences of failure to pay |
2393 |
such
assessments. |
2394 |
10. The
voting rights of owners. |
2395 |
11. Rights
and obligations of the board in enforcement of |
2396 |
rules
in the condominium documents and rules adopted by the |
2397 |
board. |
2398 |
|
2399 |
The
governance form shall also include the following statement |
2400 |
in
conspicuous type: "This publication is intended as an |
2401 |
informal
educational overview of condominium governance. In the |
2402 |
event
of a conflict, the provisions of chapter 718, Florida |
2403 |
Statutes,
rules adopted by the Division of Florida Land Sales, |
2404 |
Condominiums,
and Mobile Homes of the Department of Business and |
2405 |
Professional
Regulation, the provisions of the condominium |
2406 |
documents,
and reasonable rules adopted by the condominium |
2407 |
association's
board of administration prevail over the contents |
2408 |
of this
publication." |
2409 |
Section
25. This act shall take effect October 1, 2008. |