1 |
A bill to be
entitled |
2 |
An act relating to
community associations; creating s. |
3 |
712.11, F.S.;
providing for the revival of certain |
4 |
declarations that
have been extinguished; amending s. |
5 |
718.110, F.S.;
revising provisions relating to the |
6 |
amendment of
declarations; providing legislative findings |
7 |
and a finding of
compelling state interest; requiring a |
8 |
holder of a recorded
mortgage on a condominium unit that |
9 |
requires the consent
or joinder of a mortgagee to an |
10 |
amendment to provide
certain information to a condominium |
11 |
association;
providing definitions; providing criteria for |
12 |
consent to an
amendment; requiring notice regarding |
13 |
proposed amendments
to mortgagees; providing criteria for |
14 |
notification;
requiring the association to conduct a |
15 |
diligent search to
identify mortgagees; requiring the |
16 |
association's
representative to execute an affidavit |
17 |
confirming that a
diligent search was conducted; |
18 |
prohibiting the
declaration of condominium, articles of |
19 |
incorporation, or
bylaws from requiring the consent or |
20 |
joinder of more than
a specified percent of the eligible |
21 |
mortgagees in
connection with proposed amendments under |
22 |
certain conditions;
providing criteria for enforcement; |
23 |
requiring mortgagees
seeking to disapprove a proposed |
24 |
amendment to provide
certain information to the |
25 |
association;
providing for the recovery of certain costs |
26 |
and attorney's fees;
amending s. 720.302, F.S.; revising |
27 |
governing provisions
relating to corporations not for |
28 |
profit that operate
residential homeowners' associations; |
29 |
amending s. 720.303,
F.S.; providing that special |
30 |
assessments may not
be levied at a board meeting except |
31 |
under certain
circumstances; revising provisions relating |
32 |
to the closed-circuit
cable broadcast notice requirement; |
33 |
authorizing the
association to charge a reasonable fee for |
34 |
providing good faith
responses to certain requests for |
35 |
information by or on
behalf of a prospective purchaser or |
36 |
lienholder; providing
conditions for exemption from |
37 |
liability for
providing such information; revising when |
38 |
the association must
have its financial report completed |
39 |
and provided to
members; repealing s. 720.303(2), F.S., as |
40 |
amended, relating to
board meetings, to remove conflicting |
41 |
versions of that
subsection; amending s. 720.306, F.S.; |
42 |
providing that
certain mergers or consolidations of an |
43 |
association shall not
be considered a material or adverse |
44 |
alteration of the
proportionate voting interest |
45 |
appurtenant to a
parcel; revising provisions relating to |
46 |
items that members
and parcel owners may address at |
47 |
membership meetings;
amending s. 720.311, F.S.; revising |
48 |
provisions relating
to dispute resolution; providing that |
49 |
the filing of any
petition for arbitration or the serving |
50 |
of an offer for
presuit mediation shall toll the |
51 |
applicable statute of
limitations; providing that certain |
52 |
disputes between an
association and a parcel owner shall |
53 |
be subject to presuit
mediation; revising provisions to |
54 |
conform; providing
that temporary injunctive relief may be |
55 |
sought in certain
disputes subject to presuit mediation; |
56 |
authorizing the court
to refer the parties to mediation |
57 |
under certain
circumstances; requiring the aggrieved party |
58 |
to serve on the
responding party a written offer to |
59 |
participate in
presuit mediation; providing a form for |
60 |
such offer; providing
that service of the offer is |
61 |
effected by the
sending of such an offer in a certain |
62 |
manner; providing
that the prevailing party in any |
63 |
subsequent
arbitration or litigation proceedings is |
64 |
entitled to seek
recovery of all costs and attorney's fees |
65 |
incurred in the
presuit mediation process; requiring the |
66 |
mediator or
arbitrator to meet certain certification |
67 |
requirements;
removing a requirement relating to |
68 |
development of an
education program to increase awareness |
69 |
of the operation of
homeowners' associations and the use |
70 |
of alternative
dispute resolution techniques; amending s. |
71 |
720.405, F.S.;
revising provisions relating to the |
72 |
proposed revived
declaration and other governing documents |
73
74
|
for the
community; providing effective dates. |
75
76
|
Be It Enacted by the
Legislature of the State of Florida: |
77 |
Section
1. Section 712.11, Florida Statutes, is created to |
78 |
read: |
79 |
712.11 Covenant
revitalization.--A homeowners' association |
80 |
not
otherwise subject to chapter 720 may use the procedures set |
81 |
forth
in ss. 720.403-720.407 to revive covenants that have |
82 |
lapsed
under the terms of this chapter. |
83 |
Section
2. Effective October 1, 2006, subsection (11) of |
84 |
section 718.110,
Florida Statutes, is amended to read: |
85 |
718.110 Amendment
of declaration; correction of error or |
86 |
omission in
declaration by circuit court.-- |
87 |
(11)(a) Notwithstanding
any provision to the contrary |
88 |
contained in this
section, any provision in the declaration
of |
89 |
condominium,
articles of incorporation, or bylaws that requires |
90 |
declaration
recorded after April 1, 1992, may not require the |
91 |
consent or joinder of
some or all mortgagees of units or any |
92 |
other
portion of the condominium property to or in amendments
to |
93 |
the declaration of
condominium, articles of incorporation, or |
94 |
bylaws
shall be void to the extent not,
unless the requirement |
95 |
is
limited to amendments materially affecting the rights or |
96 |
interests of the
mortgagees, or as otherwise required by the |
97 |
Federal National
Mortgage Association or the Federal Home Loan |
98 |
Mortgage Corporation,
and any consent or joinder shall
unless |
99 |
the
requirement provides that such consent may not be |
100 |
unreasonably
withheld. It shall be presumed that, except as to |
101 |
those matters
described in subsections (4) and (8) or
other |
102 |
issues
materially affecting the mortgagee's security interest in |
103 |
the
property, amendments to the declaration of
condominium, |
104 |
articles
of incorporation, or bylaws do not materially affect |
105 |
the rights or
interests of mortgagees. In the event mortgagee |
106 |
consent is provided
other than by properly recorded joinder, |
107 |
such consent shall be
evidenced by affidavit of the association |
108 |
recorded in the
public records of the county where the |
109 |
declaration of
condominium, articles of incorporation, or bylaws |
110 |
are
is recorded. |
111 |
(b) The
Legislature finds that the procurement of |
112 |
mortgagee
consent or joinder to amendments that do not |
113 |
materially
affect the rights or interests of mortgagees is an |
114 |
unreasonable
and substantial logistical and financial burden on |
115 |
the
unit owners and condominium associations and that there is a |
116 |
compelling
state interest in enabling the members of a |
117 |
condominium
association to approve amendments. Accordingly, any |
118 |
holder
of a recorded mortgage on a condominium unit or any other |
119 |
portion
of a condominium, which mortgage is first recorded after |
120 |
October
1, 2006, and for which the declaration of condominium, |
121 |
articles
of incorporation, or bylaws require the consent or |
122 |
joinder
of a mortgagee to an amendment, must provide written |
123 |
notice
by certified mail to the association of the address at |
124 |
which
the mortgagee may be contacted in regard to any proposed |
125 |
amendments.
The association shall maintain the names and |
126 |
addresses
of such mortgagees in a registry of mortgagees, which |
127 |
the
association shall utilize when sending a request for such |
128 |
consent
or joinder. A request for consent or joinder must be |
129 |
mailed
to a mortgagee by certified mail, return receipt |
130 |
requested,
to the address provided by the mortgagee and retained |
131 |
in
the registry of mortgagees. As used in this subsection, |
132 |
"certified
mail" means either certified or registered mail, |
133 |
return
receipt requested. Consent to an amendment shall be |
134 |
deemed
to have been given by any holder of a mortgage that is |
135 |
first
recorded after October 1, 2006, and who fails to provide |
136 |
the
required written notice and contact information. Also, any |
137 |
mortgagee
who fails to respond by certified mail within 30 days |
138 |
after
the date the association mails a request for consent or |
139 |
joinder
shall be deemed to have consented to the proposed |
140 |
amendment. |
141 |
(c) As
to mortgages in existence as of October 1, 2006, in |
142 |
those
condominiums where the consent or joinder of such |
143 |
mortgagees
is required in connection with amendments to the |
144 |
governing
documents, and where such mortgagees are not otherwise |
145 |
required
by the existing declaration of condominium, articles of |
146 |
incorporation,
or bylaws to provide notice to the association of |
147 |
their
contact information in order to be eligible to receive |
148 |
notices
regarding proposed amendments, those condominium |
149 |
associations
that wish to modify provisions in the declaration |
150 |
of
condominium, articles of incorporation, or bylaws that |
151 |
require
the consent or joinder of mortgagees must notify all |
152 |
mortgagees
who hold mortgages on units within the condominium or |
153 |
other
portions of the condominium property of the need to |
154 |
provide
the same contact information as required in paragraph |
155 |
(b).
Any mortgagee who does not provide contact information as |
156 |
required
will be deemed to have consented to all future proposed |
157 |
amendments.
Further, once the proper address for notifying |
158 |
existing
mortgagees has been obtained in the manner provided for |
159 |
in
this subsection, failure of any mortgagee to respond to a |
160 |
request
for the consent or joinder to a proposed amendment |
161 |
within
30 days after the date that such request is sent to the |
162 |
mortgagee
by certified mail shall be deemed to have consented to |
163 |
such
amendment. In order to properly notify holders of existing |
164 |
mortgages: |
165 |
1. The
condominium association must first conduct a |
166 |
diligent
search to identify all existing mortgagees and an |
167 |
address
for the required notice to be sent to each mortgagee. |
168 |
Service
of the notice shall be on the mortgagee's registered |
169 |
agent
based upon the information available from the Secretary of |
170 |
State.
Where there is no registered agent, the notice shall be |
171 |
sent
to the address in the original recorded mortgage unless |
172 |
there
is a different address in a more recently recorded |
173 |
assignment
or modification instrument or in the records |
174 |
maintained
by the condominium association. All notices must be |
175 |
sent
by certified mail and must advise the mortgagee that if he |
176 |
or
she fails to provide the contact information requested within |
177 |
30
days after the date of mailing of the certified letter from |
178 |
the
association, such mortgagee shall be deemed to have |
179 |
consented
to the proposed amendment. |
180 |
2. An
affidavit must be executed by a representative of |
181 |
the
condominium association confirming that a diligent search |
182 |
has
been conducted to identify all outstanding mortgages on the |
183 |
condominium
in the manner provided for in subparagraph 1. and |
184 |
summarizing
the steps that were taken in connection with such |
185 |
diligent
search and the notification of all mortgagees, and such |
186 |
affidavit
shall be placed in the association's minute book as an |
187 |
attachment
to the minutes of the meeting in which the board of |
188 |
directors
considers such affidavit. |
189 |
(d) After
October 1, 2006, no new declaration of |
190 |
condominium,
articles of incorporation, or bylaws may require |
191 |
the
consent or joinder of more than 51 percent of the eligible |
192 |
mortgagees
in connection with any proposed amendment unless a |
193 |
higher
percentage is required in order to comply with the |
194 |
requirements
of the Federal National Mortgage Association or |
195 |
Federal
Home Loan Mortgage Corporation. Any new declaration of |
196 |
condominium,
articles of incorporation, or bylaws must also |
197 |
require
mortgagees to provide to the condominium association the |
198 |
address
to which notices may be sent, as provided for in |
199 |
paragraph
(b), in order for such mortgagees to have the right to |
200 |
be
contacted in connection with any proposed amendment. |
201 |
(e) A
provision requiring the consent or joinder of some |
202 |
or
all holders of mortgages on units or other portions of the |
203 |
condominium
property to any proposed amendment shall be |
204 |
enforceable
only by mortgagees of record as of the date an |
205 |
amendment
is recorded in the public records and only by those |
206 |
mortgagees
who have complied with the requirements of paragraph |
207 |
(b)
or paragraph (c). Any amendment adopted without the required |
208 |
consent
of a mortgagee shall be deemed voidable by any mortgagee |
209 |
who
was entitled to notice and the opportunity to consent, and |
210 |
actions
to void such amendments shall be subject to the statute |
211 |
of
limitations applicable to actions founded upon written |
212 |
instruments,
which statute shall commence to run as of the date |
213 |
such
amendment is recorded in the public records and, for |
214 |
amendments
recorded prior to October 1, 2006, shall commence on |
215 |
October
1, 2006. |
216 |
(f) In
order to establish that he or she is not |
217 |
unreasonably
withholding consent, any mortgagee who seeks to |
218 |
disapprove
of a proposed amendment by withholding his or her |
219 |
consent
or joinder must include in his or her reply to the |
220 |
condominium
association's request for consent or joinder a |
221 |
statement
of the specific reasons the proposed amendment is |
222 |
claimed
to materially and adversely affect the rights and |
223 |
interests
of such mortgagee. |
224 |
(g) In
connection with any litigation between a |
225 |
condominium
association and a lender with regard to whether |
226 |
consent
has been improperly or unreasonably withheld, the |
227 |
prevailing
party shall be entitled to recover his or her costs |
228 |
and
reasonable attorney's fees. |
229 |
Section
3. Subsections (4) and (5) of section 720.302, |
230 |
Florida Statutes, are
amended to read: |
231 |
720.302 Purposes,
scope, and application.-- |
232 |
(4) This
chapter does not apply to any association that is |
233 |
subject to regulation
under chapter 718, chapter 719, or chapter |
234 |
721; or to any
nonmandatory association formed under chapter |
235 |
723,
except to the extent that a provision of chapter 718, |
236 |
chapter
719, or chapter 721 is expressly incorporated into this |
237 |
chapter
for the purpose of regulating homeowners' associations. |
238 |
(5) Unless
expressly stated to the contrary, corporations |
239 |
not for profit that
operate residential homeowners' associations |
240 |
in this state shall
be governed by and subject to chapter
607, |
241 |
if
the association was incorporated thereunder, or to
chapter |
242 |
617,
if the association was incorporated thereunder, and
this |
243 |
chapter. This
subsection is intended to clarify existing law. |
244 |
Section
4. Subsections (2) and (7) of section 720.303, |
245 |
Florida Statutes, as
amended by section 18 of chapter 2004-345 |
246 |
and section 135 of
chapter 2005-2, Laws of Florida, are amended, |
247 |
and paragraphs (d)
and (e) are added to subsection (5) of that |
248 |
section, to read: |
249 |
720.303 Association
powers and duties; meetings of board; |
250 |
official records;
budgets; financial reporting; association |
251 |
funds; recalls.-- |
252 |
(2) BOARD
MEETINGS.-- |
253 |
(a) A
meeting of the board of directors of an association |
254 |
occurs whenever a
quorum of the board gathers to conduct |
255 |
association business.
All meetings of the board must be open to |
256 |
all members except
for meetings between the board and its |
257 |
attorney with respect
to proposed or pending litigation where |
258 |
the contents of the
discussion would otherwise be governed by |
259 |
the attorney-client
privilege. The provisions of this
subsection |
260 |
shall
also apply to the meetings of any committee or other |
261 |
similar
body when a final decision will be made regarding the |
262 |
expenditure
of association funds and to meetings of any body |
263 |
vested
with the power to approve or disapprove architectural |
264 |
decisions
with respect to a specific parcel of residential |
265 |
property
owned by a member of the community. |
266 |
(b) Members
have the right to attend all meetings of the |
267 |
board and to speak on
any matter placed on the agenda by |
268 |
petition of the
voting interests for at least 3 minutes. The |
269 |
association may adopt
written reasonable rules expanding the |
270 |
right of members to
speak and governing the frequency, duration, |
271 |
and other manner of
member statements, which rules must be |
272 |
consistent with this
paragraph and may include a sign-up sheet |
273 |
for members wishing
to speak. Notwithstanding any other law, the |
274 |
requirement that
board meetings and committee meetings be open |
275 |
to the members is
inapplicable to meetings between the board or |
276 |
a committee and the
association's attorney, with respect to |
277 |
meetings of the board
held for the purpose of discussing |
278 |
personnel matters. |
279 |
(c) The
bylaws shall provide for giving notice to parcel |
280 |
owners and members of
all board meetings and, if they do not do |
281 |
so, shall be deemed
to provide the following: |
282 |
1. Notices
of all board meetings must be posted in a |
283 |
conspicuous place in
the community at least 48 hours in advance |
284 |
of a meeting, except
in an emergency. In the alternative, if |
285 |
notice is not posted
in a conspicuous place in the community, |
286 |
notice of each board
meeting must be mailed or delivered to each |
287 |
member at least 7
days before the meeting, except in an |
288 |
emergency.
Notwithstanding this general notice requirement, for |
289 |
communities with more
than 100 members, the bylaws may provide |
290 |
for a reasonable
alternative to posting or mailing of notice for |
291 |
each board meeting,
including publication of notice, provision |
292 |
of a schedule of
board meetings, or the conspicuous posting and |
293 |
repeated broadcasting
of the notice on a closed-circuit cable |
294 |
television system
serving the homeowners' association. However, |
295 |
if broadcast notice
is used in lieu of a notice posted |
296 |
physically in the
community, the notice must be broadcast at |
297 |
least four times
every broadcast hour of each day that a posted |
298 |
notice is otherwise
required. When broadcast notice is provided, |
299 |
the notice and
agenda must be broadcast in a manner and for a |
300 |
sufficient continuous
length of time so as to allow an average |
301 |
reader to observe the
notice and read and comprehend the entire |
302 |
content of the notice
and the agenda. The bylaws or
amended |
303 |
bylaws may provide
for giving notice by electronic transmission |
304 |
in a manner
authorized by law for meetings of the board of |
305 |
directors, committee
meetings requiring notice under this |
306 |
section, and annual
and special meetings of the members; |
307 |
however, a member
must consent in writing to receiving notice by |
308 |
electronic
transmission. |
309 |
2. A
special An assessment
may not be levied at a board |
310 |
meeting unless the
notice of the meeting includes a statement |
311 |
that special
assessments will be considered and the nature of |
312 |
the special
assessments. Written notice of any meeting at which |
313 |
special assessments
will be considered or at which amendments to |
314 |
rules regarding
parcel use will be considered must be mailed, |
315 |
delivered, or
electronically transmitted to the members and |
316 |
parcel owners and
posted conspicuously on the property or |
317 |
broadcast on
closed-circuit cable television not less than 14 |
318 |
days before the
meeting. |
319 |
3. Directors
may not vote by proxy or by secret ballot at |
320 |
board meetings,
except that secret ballots may be used in the |
321 |
election of officers.
This subsection also applies to the |
322 |
meetings
of any committee or other similar body, when a final |
323 |
decision
will be made regarding the expenditure of association |
324 |
funds,
and to any body vested with the power to approve or |
325 |
disapprove
architectural decisions with respect to a specific |
326 |
parcel
of residential property owned by a member of the |
327 |
community. |
328 |
(d) If
20 percent of the total voting interests petition |
329 |
the board to address
an item of business, the board shall at its |
330 |
next regular board
meeting or at a special meeting of the board, |
331 |
but not later than 60
days after the receipt of the petition, |
332 |
take the petitioned
item up on an agenda. The board shall give |
333 |
all members notice of
the meeting at which the petitioned item |
334 |
shall be addressed in
accordance with the 14-day notice |
335 |
requirement pursuant
to subparagraph (c)2. Each member shall |
336 |
have the right to
speak for at least 3 minutes on each matter |
337 |
placed on the agenda
by petition, provided that the member signs |
338 |
the sign-up sheet, if
one is provided, or submits a written |
339 |
request to speak
prior to the meeting. Other than addressing the |
340 |
petitioned item at
the meeting, the board is not obligated to |
341 |
take any other action
requested by the petition. |
342 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
343 |
records shall be
maintained within the state and must be open to |
344 |
inspection and
available for photocopying by members or their |
345 |
authorized agents at
reasonable times and places within 10 |
346 |
business days after
receipt of a written request for access. |
347 |
This subsection may
be complied with by having a copy of the |
348 |
official records
available for inspection or copying in the |
349 |
community. If the
association has a photocopy machine available |
350 |
where the records are
maintained, it must provide parcel owners |
351 |
with copies on
request during the inspection if the entire |
352 |
request is limited to
no more than 25 pages. |
353 |
(d) The
association or its authorized agent is not |
354 |
required
to provide a prospective purchaser or lienholder with |
355 |
information
about the residential subdivision or the association |
356 |
other
than information or documents required by this chapter to |
357 |
be
made available or disclosed. The association or its |
358 |
authorized
agent may charge a reasonable fee to the prospective |
359 |
purchaser
or lienholder or the current parcel owner or member |
360 |
for
providing good faith responses to requests for information |
361 |
by
or on behalf of a prospective purchaser or lienholder, other |
362 |
than
that required by law, if the fee does not exceed $150 plus |
363 |
the
reasonable cost of photocopying and any attorney's fees |
364 |
incurred
by the association in connection with the response. |
365 |
(e) An
association and its authorized agent are not liable |
366 |
for
providing such information in good faith pursuant to a |
367 |
written
request if the person providing the information includes |
368 |
a
written statement in substantially the following form: "The |
369 |
responses
herein are made in good faith and to the best of my |
370 |
ability
as to their accuracy." |
371 |
(7) FINANCIAL
REPORTING.--Within 90 days after the end
of |
372 |
the
fiscal year, or annually on a date provided in the bylaws, |
373 |
the
association shall prepare and complete, or contract for the |
374 |
preparation
and completion of, a financial report for the |
375 |
preceding
fiscal year. Within 21 days after the final financial |
376 |
report
is completed by the association or received from the |
377 |
third
party, but not later than 120 days after the end of the |
378 |
fiscal
year or other date as provided in the bylaws, the |
379 |
association shall prepare
an annual financial report within 60 |
380 |
days
after the close of the fiscal year. The association shall, |
381 |
within
the time limits set forth in subsection (5), provide
each |
382 |
member with a copy of
the annual financial report or a written |
383 |
notice that a copy of
the financial report is available upon |
384 |
request at no charge
to the member. Financial reports shall be |
385 |
prepared as follows: |
386 |
(a) An
association that meets the criteria of this |
387 |
paragraph shall
prepare or cause to be prepared a complete set |
388 |
of financial
statements in accordance with generally accepted |
389 |
accounting
principles. The financial statements shall be based |
390 |
upon the
association's total annual revenues, as follows: |
391 |
1. An
association with total annual revenues of $100,000 |
392 |
or more, but less
than $200,000, shall prepare compiled |
393 |
financial statements. |
394 |
2. An
association with total annual revenues of at least |
395 |
$200,000, but less
than $400,000, shall prepare reviewed |
396 |
financial statements. |
397 |
3. An
association with total annual revenues of $400,000 |
398 |
or more shall prepare
audited financial statements. |
399 |
(b)1. An
association with total annual revenues of less |
400 |
than $100,000 shall
prepare a report of cash receipts and |
401 |
expenditures. |
402 |
2. An
association in a community of fewer than 50 parcels, |
403 |
regardless of the
association's annual revenues, may prepare a |
404 |
report of cash
receipts and expenditures in lieu of financial |
405 |
statements required
by paragraph (a) unless the governing |
406 |
documents provide
otherwise. |
407 |
3. A
report of cash receipts and disbursement must |
408 |
disclose the amount
of receipts by accounts and receipt |
409 |
classifications and
the amount of expenses by accounts and |
410 |
expense
classifications, including, but not limited to, the |
411 |
following, as
applicable: costs for security, professional, and |
412 |
management fees and
expenses; taxes; costs for recreation |
413 |
facilities; expenses
for refuse collection and utility services; |
414 |
expenses for lawn
care; costs for building maintenance and |
415 |
repair; insurance
costs; administration and salary expenses; and |
416 |
reserves if
maintained by the association. |
417 |
(c) If
20 percent of the parcel owners petition the board |
418 |
for a level of
financial reporting higher than that required by |
419 |
this section, the
association shall duly notice and hold a |
420 |
meeting of members
within 30 days of receipt of the petition for |
421 |
the purpose of voting
on raising the level of reporting for that |
422 |
fiscal year. Upon
approval of a majority of the total voting |
423 |
interests of the
parcel owners, the association shall prepare or |
424 |
cause to be prepared,
shall amend the budget or adopt a special |
425 |
assessment to pay for
the financial report regardless of any |
426 |
provision to the
contrary in the governing documents, and shall |
427 |
provide within 90
days of the meeting or the end of the fiscal |
428 |
year, whichever
occurs later: |
429 |
1. Compiled,
reviewed, or audited financial statements, if |
430 |
the association is
otherwise required to prepare a report of |
431 |
cash receipts and
expenditures; |
432 |
2. Reviewed
or audited financial statements, if the |
433 |
association is
otherwise required to prepare compiled financial |
434 |
statements; or |
435 |
3. Audited
financial statements if the association is |
436 |
otherwise required to
prepare reviewed financial statements. |
437 |
(d) If
approved by a majority of the voting interests |
438 |
present at a properly
called meeting of the association, an |
439 |
association may
prepare or cause to be prepared: |
440 |
1. A
report of cash receipts and expenditures in lieu of a |
441 |
compiled, reviewed,
or audited financial statement; |
442 |
2. A
report of cash receipts and expenditures or a |
443 |
compiled financial
statement in lieu of a reviewed or audited |
444 |
financial statement;
or |
445 |
3. A
report of cash receipts and expenditures, a compiled |
446 |
financial statement,
or a reviewed financial statement in lieu |
447 |
of an audited
financial statement. |
448 |
Section
5. Subsection (2) of section
720.303, Florida |
449 |
Statutes,
as amended by section 2 of chapter 2004-345 and |
450 |
section
15 of chapter 2004-353, Laws of Florida, is repealed. |
451 |
Section
6. Paragraph (c) of subsection (1) and subsection |
452 |
(6) of section
720.306, Florida Statutes, are amended to read: |
453 |
720.306 Meetings
of members; voting and election |
454 |
procedures;
amendments.-- |
455 |
(1) QUORUM;
AMENDMENTS.-- |
456 |
(c) Unless
otherwise provided in the governing documents |
457 |
as originally
recorded or permitted by this chapter or chapter |
458 |
617, an amendment may
not materially and adversely alter the |
459 |
proportionate voting
interest appurtenant to a parcel or |
460 |
increase the
proportion or percentage by which a parcel shares |
461 |
in the common
expenses of the association unless the record |
462 |
parcel owner and all
record owners of liens on the parcels join |
463 |
in the execution of
the amendment. For purposes of this section, |
464 |
a change in quorum
requirements is not an alteration of voting |
465 |
interests. The
merger or consolidation of one or more |
466 |
associations
under a plan of merger or consolidation under |
467 |
chapter
607 or chapter 617 shall not be considered a material or |
468 |
adverse
alteration of the proportionate voting interest |
469 |
appurtenant
to a parcel. |
470 |
(6) RIGHT
TO SPEAK.--Members and parcel owners have the |
471 |
right to attend all
membership meetings and to speak at any |
472 |
meeting with
reference to all items opened for
discussion or |
473 |
included on the
agenda. Notwithstanding any provision to the |
474 |
contrary in the
governing documents or any rules adopted by the |
475 |
board or by the
membership, a member and a parcel owner have the |
476 |
right to speak for at
least 3 minutes on any agenda
item, |
477 |
provided that the
member or parcel owner submits a written |
478 |
request to speak
prior to the meeting. The association may adopt |
479 |
written reasonable
rules governing the frequency, duration, and |
480 |
other manner of
member and parcel owner statements, which rules |
481 |
must be consistent
with this subsection. |
482 |
Section
7. Section 720.311, Florida Statutes, is amended |
483 |
to read: |
484 |
720.311 Dispute
resolution.-- |
485 |
(1) The
Legislature finds that alternative dispute |
486 |
resolution has made
progress in reducing court dockets and |
487 |
trials and in
offering a more efficient, cost-effective option |
488 |
to litigation. The
filing of any petition for mediation or |
489 |
arbitration or
the serving of an offer for presuit mediation as |
490 |
provided for in this
section shall toll the applicable statute |
491 |
of limitations. Any
recall dispute filed with the department |
492 |
pursuant to s.
720.303(10) shall be conducted by the department |
493 |
in accordance with
the provisions of ss. 718.112(2)(j) and |
494 |
718.1255 and the
rules adopted by the division. In addition, the |
495 |
department shall
conduct mandatory binding arbitration of |
496 |
election disputes
between a member and an association pursuant |
497 |
to s. 718.1255 and
rules adopted by the division. Neither |
498 |
election disputes nor
recall disputes are eligible for presuit |
499 |
mediation; these
disputes shall be arbitrated by the department. |
500 |
At the conclusion of
the proceeding, the department shall charge |
501 |
the parties a fee in
an amount adequate to cover all costs and |
502 |
expenses incurred by
the department in conducting the |
503 |
proceeding.
Initially, the petitioner shall remit a filing fee |
504 |
of at least $200 to
the department. The fees paid to the |
505 |
department shall
become a recoverable cost in the arbitration |
506 |
proceeding, and the
prevailing party in an arbitration |
507 |
proceeding shall
recover its reasonable costs and attorney's |
508 |
fees in an amount
found reasonable by the arbitrator. The |
509 |
department shall
adopt rules to effectuate the purposes of this |
510 |
section. |
511 |
(2)(a) Disputes
between an association and a parcel owner |
512 |
regarding use of or
changes to the parcel or the common areas |
513 |
and other covenant
enforcement disputes, disputes regarding |
514 |
amendments to the
association documents, disputes regarding |
515 |
meetings of the board
and committees appointed by the board, |
516 |
membership meetings
not including election meetings, and access |
517 |
to the official
records of the association shall be the
subject |
518 |
of
an offer filed with the
department for presuit mandatory |
519 |
mediation served
by an aggrieved party before the dispute is |
520 |
filed in court. Presuit
mediation proceedings must be conducted |
521 |
in accordance with
the applicable Florida Rules of Civil |
522 |
Procedure, and these
proceedings are privileged and confidential |
523 |
to the same extent as
court-ordered mediation. Disputes subject |
524 |
to
presuit mediation under this section shall not include the |
525 |
collection
of any assessment, fine, or other financial |
526 |
obligation,
including attorney's fees and costs, claimed to be |
527 |
due
or any action to enforce a prior mediation settlement |
528 |
agreement
between the parties. Also, in any dispute subject to |
529 |
presuit
mediation under this section where emergency relief is |
530 |
required,
a motion for temporary injunctive relief may be filed |
531 |
with
the court without first complying with the presuit |
532 |
mediation
requirements of this section. After any issues |
533 |
regarding
emergency or temporary relief are resolved, the court |
534 |
may
either refer the parties to a mediation program administered |
535 |
by
the courts or require mediation under this section. An |
536 |
arbitrator or judge
may not consider any information or evidence |
537 |
arising from the presuit
mediation proceeding except in a |
538 |
proceeding to impose
sanctions for failure to attend a presuit |
539 |
mediation session or
with the parties' agreement in a proceeding |
540 |
seeking
to enforce the agreement. Persons who are not parties
to |
541 |
the dispute may not
attend the presuit mediation conference |
542 |
without the consent
of all parties, except for counsel for the |
543 |
parties and a
corporate representative designated by the |
544 |
association. When
mediation is attended by a quorum of the |
545 |
board, such mediation
is not a board meeting for purposes of |
546 |
notice and
participation set forth in s. 720.303. An
aggrieved |
547 |
party
shall serve on the responding party a written offer to |
548 |
participate
in presuit mediation in substantially the following |
549 |
form: |
550 |
|
551 |
STATUTORY
OFFER TO PARTICIPATE IN PRESUIT MEDIATION |
552 |
|
553 |
The
alleged aggrieved party,__________________, hereby |
554 |
offers
to _________________, as the responding party, |
555 |
to
enter into presuit mediation in connection with the |
556 |
following
dispute, which by statute is of a type that |
557 |
is
subject to presuit mediation: |
558 |
|
559 |
(List
specific nature of the dispute or disputes to be |
560 |
mediated
and the authority supporting a finding of a |
561 |
violation
as to each dispute.) |
562 |
|
563 |
Pursuant
to section 720.311, Florida Statutes, this |
564 |
offer
to resolve the dispute through presuit mediation |
565 |
is
required before a lawsuit can be filed concerning |
566 |
the
dispute. Pursuant to the statute, the aggrieved |
567 |
party
is hereby offering to engage in presuit |
568 |
mediation
with a neutral third-party mediator in order |
569 |
to
attempt to resolve this dispute without court |
570 |
action,
and the aggrieved party demands that you |
571 |
likewise
agree to this process. If you fail to agree |
572 |
to
presuit mediation, or if you agree and later fail |
573 |
to
follow through with your agreement to mediate, suit |
574 |
may
be brought against you without further warning. |
575 |
|
576 |
The
process of mediation involves a supervised |
577 |
negotiation
process in which a trained, neutral third- |
578 |
party
mediator meets with both parties and assists |
579 |
them
in exploring possible opportunities for resolving |
580 |
part
or all of the dispute. The mediation process is a |
581 |
voluntary
one. By agreeing to participate in presuit |
582 |
mediation,
you are not bound in any way to change your |
583 |
position
or to enter into any type of agreement. |
584 |
Furthermore,
the mediator has no authority to make any |
585 |
decisions
in this matter or to determine who is right |
586 |
or
wrong and merely acts as a facilitator to ensure |
587 |
that
each party understands the position of the other |
588 |
party
and that all reasonable settlement options are |
589 |
fully
explored. |
590 |
|
591 |
If
an agreement is reached, it shall be reduced to |
592 |
writing
and becomes a binding and enforceable |
593 |
commitment
of the parties. A resolution of one or more |
594 |
disputes
in this fashion avoids the need to litigate |
595 |
these
issues in court. The failure to reach an |
596 |
agreement,
or the failure of a party to participate in |
597 |
the
process, results in the mediator's declaring an |
598 |
impasse
in the mediation, after which the aggrieved |
599 |
party
may proceed to court on all outstanding, |
600 |
unsettled
disputes. |
601 |
|
602 |
The
aggrieved party has selected and hereby lists |
603 |
three
certified mediators who we believe to be neutral |
604 |
and
qualified to mediate the dispute. You have the |
605 |
right
to select any one of these mediators. The fact |
606 |
that
one party may be familiar with one or more of the |
607 |
listed
mediators does not mean that the mediator |
608 |
cannot
act as a neutral and impartial facilitator. Any |
609 |
mediator
who cannot act in this capacity ethically |
610 |
must
decline to accept engagement. The mediators that |
611 |
we
suggest, and their current hourly rates, are as |
612 |
follows: |
613 |
|
614 |
(List
the names, addresses, telephone numbers, and |
615 |
hourly
rates of the mediators. Other pertinent |
616 |
information
about the background of the mediators may |
617 |
be
included as an attachment.) |
618 |
|
619 |
You
may contact the offices of these mediators to |
620 |
confirm
that the listed mediators will be neutral and |
621 |
will
not show any favoritism toward either party. The |
622 |
names
of certified mediators may be found through the |
623 |
office
of the clerk of the circuit court for this |
624 |
circuit. |
625 |
|
626 |
If
you agree to participate in the presuit mediation |
627 |
process,
the statute requires that each party is to |
628 |
pay
one-half of the costs and fees involved in the |
629 |
presuit
mediation process unless otherwise agreed by |
630 |
all
parties. An average mediation may require 3 to 4 |
631 |
hours
of the mediator's time, including some |
632 |
preparation
time, and each party would need to pay |
633 |
one-half
of the mediator's fees as well as his or her |
634 |
own
attorney's fees if he or she chooses to employ an |
635 |
attorney
in connection with the mediation. However, |
636 |
use
of an attorney is not required and is at the |
637 |
option
of each party. The mediator may require the |
638 |
advance
payment of some or all of the anticipated |
639 |
fees.
The aggrieved party hereby agrees to pay or |
640 |
prepay
one-half of the mediator's estimated fees and |
641 |
to
forward this amount or such other reasonable |
642 |
advance
deposits as the mediator may require for this |
643 |
purpose.
Any funds deposited will be returned to you |
644 |
if
these are in excess of your share of the fees |
645 |
incurred. |
646 |
|
647 |
If
you agree to participate in presuit mediation in |
648 |
order
to attempt to resolve the dispute and thereby |
649 |
avoid
further legal action, please sign below and |
650 |
clearly
indicate which mediator is acceptable to you. |
651 |
We
will then ask the mediator to schedule a mutually |
652 |
convenient
time and place for the mediation conference |
653 |
to
be held. The mediation conference must be held |
654 |
within
90 days after the date of this letter unless |
655 |
extended
by mutual written agreement. In the event |
656 |
that
you fail to respond within 20 days after the date |
657 |
of
this letter, or if you fail to agree to at least |
658 |
one
of the mediators that we have suggested and to pay |
659 |
or
prepay to the mediator one-half of the costs |
660 |
involved,
the aggrieved party will be authorized to |
661 |
proceed
with the filing of a lawsuit against you |
662 |
without
further notice and may seek an award of |
663 |
attorney's
fees or costs incurred in attempting to |
664 |
obtain
mediation. |
665 |
|
666 |
Should
you wish, you may also elect to waive presuit |
667 |
mediation
so that this matter may proceed directly to |
668 |
court. |
669 |
|
670 |
Therefore,
please give this matter your immediate |
671 |
attention.
By law, your response must be mailed by |
672 |
certified
mail, return receipt requested, with an |
673 |
additional
copy being sent by regular first-class mail |
674 |
to
the address shown on this offer. |
675 |
|
676 |
_____________________ |
677 |
_____________________ |
678 |
|
679 |
RESPONDING
PARTY: CHOOSE ONLY ONE OF THE TWO OPTIONS |
680 |
BELOW.
YOUR SIGNATURE INDICATES YOUR AGREEMENT TO THAT |
681 |
CHOICE. |
682 |
|
683 |
AGREEMENT
TO MEDIATE |
684 |
|
685 |
The
undersigned hereby agrees to participate in |
686 |
presuit
mediation and agrees to the following mediator |
687 |
or
mediators as acceptable to mediate this dispute: |
688 |
|
689 |
(List
acceptable mediator or mediators.) |
690 |
|
691 |
I/we
further agree to pay or prepay one-half of the |
692 |
mediator's
fees and to forward such advance deposits |
693 |
as
the mediator may require for this purpose. |
694 |
|
695 |
_______________________ |
696 |
Signature
of responding party #1 |
697 |
|
698 |
_______________________ |
699 |
Signature
of responding party #2 (if applicable)(if |
700 |
property
is owned by more than one person, all owners |
701 |
must
sign) |
702 |
|
703 |
WAIVER
OF MEDIATION |
704 |
|
705 |
The
undersigned hereby waives the right to participate |
706 |
in
presuit mediation of the dispute listed above and |
707 |
agrees
to allow the aggrieved party to proceed in |
708 |
court
on such matters. |
709 |
|
710 |
__________________________ |
711 |
Signature
of responding party #1 |
712 |
|
713 |
___________________________ |
714 |
Signature
of responding party #2 (if applicable)(if |
715 |
property
is owned by more than one person, all owners |
716 |
must
sign) |
717 |
|
718 |
(b) Service
of the statutory offer to participate in |
719 |
presuit
mediation shall be effected by sending a letter in |
720 |
substantial
conformity with the above form by certified mail, |
721 |
return
receipt requested, with an additional copy being sent by |
722 |
regular
first-class mail, to the address of the responding party |
723 |
as
it last appears on the books and records of the association. |
724 |
The
responding party shall have 20 days from the date of the |
725 |
mailing
of the statutory offer to serve a response to the |
726 |
aggrieved
party in writing. The response shall be served by |
727 |
certified
mail, return receipt requested, with an additional |
728 |
copy
being sent by regular first-class mail, to the address |
729 |
shown
on the statutory offer. In the alternative, the responding |
730 |
party
may waive mediation in writing. Notwithstanding the |
731 |
foregoing,
once the parties have agreed on a mediator, the |
732 |
mediator
may reschedule the mediation for a date and time |
733 |
mutually
convenient to the parties. The
department shall conduct |
734 |
the
proceedings through the use of department mediators or refer |
735 |
the
disputes to private mediators who have been duly certified |
736 |
by
the department as provided in paragraph (c). The
parties |
737 |
shall share the costs
of presuit mediation equally, including |
738 |
the fee charged by
the mediator, if any, unless the parties |
739 |
agree otherwise,
and the mediator may require advance payment of |
740 |
its
reasonable fees and costs. The failure of any party to |
741 |
respond
to a demand or response, to agree upon a mediator, to |
742 |
make
payment of fees and costs within the time established by |
743 |
the
mediator, or to appear for a scheduled mediation session |
744 |
shall operate as
an impasse in the presuit mediation by such |
745 |
party, entitling
the other party to proceed in court and to seek |
746 |
an award of the
costs and fees associated with the mediation. |
747 |
Additionally, if
any presuit mediation session cannot be |
748 |
scheduled and
conducted within 90 days after the offer to |
749 |
participate in
mediation was filed, an impasse shall be deemed |
750 |
to have occurred
unless both parties agree to extend this |
751 |
deadline. If
a department mediator is used, the department may |
752 |
charge
such fee as is necessary to pay expenses of the |
753 |
mediation,
including, but not limited to, the salary and |
754 |
benefits
of the mediator and any travel expenses incurred. The |
755 |
petitioner
shall initially file with the department upon filing |
756 |
the
disputes, a filing fee of $200, which shall be used to |
757 |
defray
the costs of the mediation. At the conclusion of the |
758 |
mediation,
the department shall charge to the parties, to be |
759 |
shared
equally unless otherwise agreed by the parties, such |
760 |
further
fees as are necessary to fully reimburse the department |
761 |
for
all expenses incurred in the mediation. |
762 |
(c)(b) If
presuit mediation as described in paragraph (a) |
763 |
is not successful in
resolving all issues between the parties, |
764 |
the parties may file
the unresolved dispute in a court of |
765 |
competent
jurisdiction or elect to enter into binding or |
766 |
nonbinding
arbitration pursuant to the procedures set forth in |
767 |
s. 718.1255 and rules
adopted by the division, with the |
768 |
arbitration
proceeding to be conducted by a department |
769 |
arbitrator or by a
private arbitrator certified by the |
770 |
department. If all
parties do not agree to arbitration |
771 |
proceedings following
an unsuccessful mediation, any party may |
772 |
file the dispute in
court. A final order resulting from |
773 |
nonbinding
arbitration is final and enforceable in the courts if |
774 |
a complaint for trial
de novo is not filed in a court of |
775 |
competent
jurisdiction within 30 days after entry of the order. |
776 |
As
to any issue or dispute that is not resolved at presuit |
777 |
mediation,
and as to any issue that is settled at presuit |
778 |
mediation
but is thereafter subject to an action seeking |
779 |
enforcement
of the mediation settlement, the prevailing party in |
780 |
any
subsequent arbitration or litigation proceeding shall be |
781 |
entitled
to seek recovery of all costs and attorney's fees |
782 |
incurred
in the presuit mediation process. |
783 |
(d)(c) The
department shall develop a certification and |
784 |
training
program for private mediators and private arbitrators |
785 |
which
shall emphasize experience and expertise in the area of |
786 |
the
operation of community associations. A mediator or |
787 |
arbitrator shall be
certified to conduct mediation or |
788 |
arbitration
under this section by the
department only if he or |
789 |
she has been
certified as a circuit court civil mediator or |
790 |
arbitrator,
respectively, pursuant to the requirements |
791 |
established
attended at least 20 hours of training in
mediation |
792 |
or
arbitration, as appropriate, and only if the applicant has |
793 |
mediated
or arbitrated at least 10 disputes involving community |
794 |
associations
within 5 years prior to the date of the |
795 |
application,
or has mediated or arbitrated 10 disputes in any |
796 |
area
within 5 years prior to the date of application and has |
797 |
completed
20 hours of training in community association |
798 |
disputes.
In order to be certified by the department, any |
799 |
mediator
must also be certified by the Florida Supreme Court. |
800 |
The
department may conduct the training and certification |
801 |
program within the
department or may contract with an outside |
802 |
vendor
to perform the training or certification. The expenses of |
803 |
operating
the training and certification and training program |
804 |
shall
be paid by the moneys and filing fees generated by the |
805 |
arbitration
of recall and election disputes and by the mediation |
806 |
of
those disputes referred to in this subsection and by the |
807 |
training
fees. |
808 |
(e)(d) The
presuit mediation procedures provided by this |
809 |
subsection may be
used by a Florida corporation responsible for |
810 |
the operation of a
community in which the voting members are |
811 |
parcel owners or
their representatives, in which membership in |
812 |
the corporation is
not a mandatory condition of parcel |
813 |
ownership, or which
is not authorized to impose an assessment |
814 |
that may become a
lien on the parcel. |
815 |
(3) The
department shall develop an education program to |
816 |
assist
homeowners, associations, board members, and managers in |
817 |
understanding
and increasing awareness of the operation of |
818 |
homeowners'
associations pursuant to this chapter and in |
819 |
understanding
the use of alternative dispute resolution |
820 |
techniques
in resolving disputes between parcel owners and |
821 |
associations
or between owners. Such education program may |
822 |
include
the development of pamphlets and other written |
823 |
instructional
guides, the holding of classes and meetings by |
824 |
department
employees or outside vendors, as the department |
825 |
determines,
and the creation and maintenance of a website |
826 |
containing
instructional materials. The expenses of operating |
827 |
the
education program shall be initially paid by the moneys and |
828 |
filing
fees generated by the arbitration of recall and election |
829 |
disputes
and by the mediation of those disputes referred to in |
830 |
this
subsection. |
831 |
Section
8. Paragraphs (c), (d), and (e) of subsection (4) |
832 |
of section 720.405,
Florida Statutes, are amended to read: |
833 |
720.405 Organizing
committee; parcel owner approval.-- |
834 |
(4) The
proposed revived declaration and other governing |
835 |
documents for the
community shall: |
836 |
(c) Contain
the same respective amendment provisions as |
837 |
the previous
governing documents or, if there were no amendment |
838 |
provisions in the
previous governing document, amendment |
839 |
provisions that
require approval of not less than two-thirds of |
840 |
the affected parcel
owners; and |
841 |
(d) Contain
no covenants that are more restrictive on the |
842 |
affected
parcel owners than the covenants contained in the |
843 |
previous
governing documents, except as permitted under s. |
844 |
720.404(3);
and |
845 |
(e) Comply
with the other requirements for a declaration |
846 |
of covenants and
other governing documents as specified in this |
847 |
chapter. |
848 |
Section
9. Except as otherwise expressly provided in this |
849 |
act, this act shall
take effect July 1, 2006. |