|
S2816
GENERAL BILL by Villalobos ( H 1373, Compare CS/H 0433, CS/S 0902)
Community Associations [EPCC]; provides disclosure requirements
for certain contracts for initial sale of parcel of real property & each
contract for initial sale of residential unit; requires notice of proposed
amendments to be provided to unit owners; authorizes board to install
hurricane protection that complies with applicable building
code; revises powers & duties of homeowners' associations, etc. Amends
FS. EFFECTIVE DATE: 07/01/2007.
03/05/07 SENATE Filed
03/20/07 SENATE Introduced, referred to Regulated Industries; Community
Affairs;
Judiciary; General Government Appropriations
-SJ
00196
04/11/07 SENATE On Committee agenda-- Regulated Industries, 04/16/07, 1:30
pm,
110-S
REGULATED
INDUSTRIES -- COMMITTEE SUBSTITUTE S 2816
| 1 |
A bill to be entitled |
| 2 |
An act relating to community
associations; amending s. |
| 3 |
190.048, F.S.; providing disclosure
requirements for |
| 4 |
certain contracts for the initial sale
of a parcel of real |
| 5 |
property and each contract for the
initial sale of a |
| 6 |
residential unit; amending s. 718.104,
F.S.; revising |
| 7 |
required contents of a condominium
declaration; amending |
| 8 |
s. 718.110, F.S.; requiring notice of
proposed amendments |
| 9 |
to be provided to unit owners;
amending s. 718.111, F.S.; |
| 10 |
providing requirements for condominium
associations to |
| 11 |
access units for specified purposes;
requiring official |
| 12 |
records of the association to be made
available at certain |
| 13 |
locations; providing that certain
records shall not be |
| 14 |
accessible to unit owners; removing
the requirement that |
| 15 |
the association's annual financial
report be provided only |
| 16 |
to unit owners providing a written
request for the report; |
| 17 |
restricting a condominium association
from waiving a |
| 18 |
financial report for more than 2
years; providing duties |
| 19 |
for condominium boards of
administration in the event of |
| 20 |
certain casualties; providing that
certain assessments may |
| 21 |
be made against unit owners under
certain conditions; |
| 22 |
amending s. 718.112, F.S.; authorizing
the board or |
| 23 |
membership to determine the
composition of the board of |
| 24 |
administration under certain
circumstances; requiring |
| 25 |
members of the board of administration
to be unit owners, |
| 26 |
absent provisions indicating board
member requirements; |
| 27 |
requiring the board to respond to
certain inquiries by |
| 28 |
certified mail, return receipt
requested; removing a |
| 29 |
provision allowing a condominium
association to only |
| 30 |
respond once every 30 days to unit
owner inquiries; |
| 31 |
providing board of administration and
unit owners' meeting |
| 32 |
requirements; providing that no action
shall be taken or |
| 33 |
resolution made without an open
meeting of the board; |
| 34 |
requiring the board to address agenda
items proposed by a |
| 35 |
petition of 20 percent of the unit
owners; revising notice |
| 36 |
procedures; revising the terms of
office and reelection of |
| 37 |
the members of a condominium
association board; providing |
| 38 |
that certain persons providing notice
of a meeting must |
| 39 |
provide an affidavit affirming that
the notices were |
| 40 |
delivered; authorizing the
association's representative to |
| 41 |
provide certain notices; removing a
provision allowing an |
| 42 |
association to print or duplicate
certain information |
| 43 |
sheets on both sides of the paper;
providing for the |
| 44 |
securing of ballots; revising
procedures relating to the |
| 45 |
filling of a vacancy on the board;
removing a provision |
| 46 |
allowing an association to provide for
different voting |
| 47 |
and election procedures in its bylaws;
providing unit |
| 48 |
owners with the right to have items
placed on the agenda |
| 49 |
of the annual meeting and voted upon
under certain |
| 50 |
conditions; requiring the association
to prepare an annual |
| 51 |
budget of estimated revenues and
expenses; requiring the |
| 52 |
budget to include reserve accounts for
certain purposes; |
| 53 |
requiring certain ballot statements to
contain certain |
| 54 |
statements; requiring a vote to
provide for no reserves or |
| 55 |
percentage of reserves to be made at
certain times; |
| 56 |
authorizing the association to use
reserve funds for |
| 57 |
nonscheduled purposes under certain
conditions; |
| 58 |
prohibiting the board from applying
for or accepting |
| 59 |
certain loans or lines of credit;
requiring common |
| 60 |
expenses to be paid by the developer
during a specified |
| 61 |
time; requiring that assessments be
made against units on |
| 62 |
a quarter-annual or more frequent
basis; providing that |
| 63 |
certain provisions shall not preclude
the right of an |
| 64 |
association to accelerate assessments
of certain owners |
| 65 |
delinquent in payment of common
expenses; providing that |
| 66 |
accelerated assessments shall be due
and payable after the |
| 67 |
claim of lien is filed; revising
assessment requirements; |
| 68 |
revising procedures relating to the
recall of a board |
| 69 |
member; deleting the requirement that
the bylaws include |
| 70 |
an element for mandatory nonbinding
arbitration; amending |
| 71 |
s. 718.113, F.S.; requiring boards of
administration to |
| 72 |
adopt or restate hurricane shutter
specifications yearly |
| 73 |
at the annual meeting; authorizing the
board to install |
| 74 |
hurricane protection that complies
with the applicable |
| 75 |
building code; requiring the board to
have the condominium |
| 76 |
buildings periodically inspected for
structural and |
| 77 |
electrical soundness by a professional
engineer or |
| 78 |
professional architect registered in
the state; requiring |
| 79 |
the inspector to provide a report to
the association; |
| 80 |
prohibiting the board from impairing
certain |
| 81 |
constitutional rights of unit owners;
prohibiting the |
| 82 |
board from prohibiting the display of
certain religiously |
| 83 |
mandated objects on the front-door
area of a unit; |
| 84 |
amending s. 718.115, F.S.; providing
that a bulk contract |
| 85 |
for basic service may be deemed a
common expense; creating |
| 86 |
s. 718.1123, F.S.; requiring any
complaint of abuse filed |
| 87 |
with the Division of Florida Land
Sales, Condominiums, |
| 88 |
Homeowners' Associations, and Mobile
Homes to be |
| 89 |
immediately investigated by the
division; requiring the |
| 90 |
division to institute enforcement
proceedings under |
| 91 |
certain circumstances; defining the
term "abuse"; creating |
| 92 |
s. 718.1224, F.S.; prohibiting certain
lawsuits arising |
| 93 |
from unit owners' appearances and
presentations before a |
| 94 |
governmental entity; providing a
definition; providing for |
| 95 |
award of damages and attorney's fees;
amending s. |
| 96 |
718.1255, F.S.; requiring the division
to promptly refer |
| 97 |
certain cases to mediation; amending
s. 718.302, F.S.; |
| 98 |
conforming provisions; amending s.
718.3025, F.S.; |
| 99 |
providing requirements for certain
contracts between a |
| 100 |
party contracting to provide
maintenance or management |
| 101 |
services and an association; amending
s. 718.3026, F.S.; |
| 102 |
providing that certain contracts
between a service |
| 103 |
provider and an association shall not
be for a term in |
| 104 |
excess of 3 years and shall not
contain an automatic |
| 105 |
renewal clause; requiring that certain
contracts for |
| 106 |
construction have approval from an
attorney hired by the |
| 107 |
association; amending s. 718.303, F.S.;
requiring hearings |
| 108 |
to levy fines to be held before a
committee of unit owners |
| 109 |
who are not members of the board;
requiring that persons |
| 110 |
subject to certain actions be notified
of their violations |
| 111 |
in a certain manner; providing a
timeframe in which a |
| 112 |
person must respond; authorizing the
budget to include |
| 113 |
reserve accounts for capital
expenditures and deferred |
| 114 |
maintenance; providing a formula for
calculating the |
| 115 |
amount to be reserved; authorizing the
association to |
| 116 |
adjust replacement reserve assessments
annually; |
| 117 |
authorizing the developer to vote to
waive the reserves or |
| 118 |
reduce the funding of reserves for a
certain period; |
| 119 |
revising provisions relating to
financial reporting; |
| 120 |
revising time periods in which the
association must |
| 121 |
complete its reporting; amending s.
718.501, F.S.; |
| 122 |
requiring the division to prepare and
disseminate a |
| 123 |
prospectus and other information for
use by owners, |
| 124 |
purchasers, lessees, and developers of
residential |
| 125 |
condominiums; providing that the board
member training |
| 126 |
provided by the division shall be
provided in conjunction |
| 127 |
with recommendations by the ombudsman;
providing powers |
| 128 |
and duties of the division with
respect to association |
| 129 |
violations; requiring associations to
provide certain |
| 130 |
notice and to participate in certain
educational training; |
| 131 |
providing a fine for failure to
comply; requiring certain |
| 132 |
fees deposited by the division to be
allocated and |
| 133 |
transferred to the Office of the
Condominium Ombudsman; |
| 134 |
amending s. 718.5011, F.S.;
restricting location of the |
| 135 |
Office of the Condominium Ombudsman;
providing that the |
| 136 |
ombudsman shall exercise his or her
policymaking and other |
| 137 |
functions independently of the
Department of Business and |
| 138 |
Professional Regulation and without
approval or control of |
| 139 |
the department; requiring the
department to render |
| 140 |
administrative support for certain
matters; requiring that |
| 141 |
revenues collected by the department
for the Office of the |
| 142 |
Condominium Ombudsman be deposited in
a separate fund or |
| 143 |
account under specified conditions;
removing provisions |
| 144 |
prohibiting the ombudsman and staff
from engaging in any |
| 145 |
other profession, serving as a
representative or employee |
| 146 |
of any political party, or receiving
remuneration for |
| 147 |
activities on behalf of political
candidates; removing |
| 148 |
provisions prohibiting the ombudsman
and staff from |
| 149 |
seeking public office unless resigned
from the Office of |
| 150 |
the Condominium Ombudsman; amending s.
718.5012, F.S.; |
| 151 |
removing requirements that the
ombudsman develop certain |
| 152 |
policies and procedures; providing
additional powers and |
| 153 |
duties of the ombudsman; providing
that the division shall |
| 154 |
process the ombudsman's
recommendations and petitions in |
| 155 |
an expedited manner and defer to his
or her findings; |
| 156 |
authorizing the ombudsman to order
meetings between |
| 157 |
certain parties; authorizing the
ombudsman to make |
| 158 |
recommendations to the division to
pursue enforcement |
| 159 |
action in circuit court on behalf of a
class of unit |
| 160 |
owners, lessees, or purchasers for
certain purposes; |
| 161 |
authorizing the ombudsman to order
that any aspect of an |
| 162 |
association election be conducted by
an election monitor; |
| 163 |
authorizing the ombudsman to order an
association to |
| 164 |
implement certain remedies;
authorizing the ombudsman to |
| 165 |
order certain persons to cease and
desist from unlawful |
| 166 |
practices; amending s. 718.504, F.S.;
revising and |
| 167 |
providing information to be contained
in the condominium |
| 168 |
prospectus or offering circular;
amending s. 719.1055, |
| 169 |
F.S.; providing application of
amendments restricting |
| 170 |
cooperative owners' rights relating to
the rental of |
| 171 |
units; amending s. 720.301, F.S.;
revising and providing |
| 172 |
definitions; amending s. 720.302, F.S.;
revising the |
| 173 |
purpose, scope, and application of the
chapter; providing |
| 174 |
legislative findings and intent;
requiring the office to |
| 175 |
establish a process for collecting an
annual fee for |
| 176 |
association members; requiring
governing documents |
| 177 |
transferred from the developer to
parcel owners to be |
| 178 |
approved by a two-thirds vote;
amending s. 720.303, F.S.; |
| 179 |
revising powers and duties of
homeowners' associations; |
| 180 |
prohibiting officers and directors
from taking any action |
| 181 |
inconsistent with the declaration of
covenants; revising |
| 182 |
requirements authorizing the
association to participate in |
| 183 |
litigation; creating liability for
officers and directors |
| 184 |
under certain circumstances; providing
criteria for |
| 185 |
setback limits; revising procedures
relating to board |
| 186 |
meetings; providing for notice of
board meetings and the |
| 187 |
agenda; revising voting procedures;
requiring board |
| 188 |
director votes to be recorded in the
minutes; requiring |
| 189 |
the association to maintain certain
documents; revising |
| 190 |
procedures relating to the inspection
and copying of |
| 191 |
records; authorizing a fee; revising
procedures used in |
| 192 |
preparing the association's annual
financial report; |
| 193 |
prohibiting developers in control of a
homeowners' |
| 194 |
association from commingling
association funds with funds |
| 195 |
of a corporation for profit created by
the developer; |
| 196 |
revising board director recall
procedures, including |
| 197 |
voting procedures of such recalls;
amending s. 720.304, |
| 198 |
F.S.; authorizing homeowners to
display certain flags; |
| 199 |
providing criteria for the display of
signs in certain |
| 200 |
areas; prohibiting associations from
abridging the |
| 201 |
constitutional rights of homeowners
relating to use of |
| 202 |
common areas; providing penalties;
amending s. 720.305, |
| 203 |
F.S.; revising remedies at law or in
equity against |
| 204 |
certain association officers or
directors; amending s. |
| 205 |
720.3055, F.S.; removing a requirement
that governing |
| 206 |
documents be in writing; providing
that certain contracts |
| 207 |
are subject to competitive bid;
amending s. 720.306, F.S.; |
| 208 |
deleting provisions relating to quorum
at a meeting of |
| 209 |
members; revising provisions relating
to the voting on an |
| 210 |
amendment of governing documents;
requiring amendments to |
| 211 |
be submitted in their entirety;
providing a timeframe for |
| 212 |
registered covenants and restrictions
to be in a certain |
| 213 |
form; removing authority of governing
documents to provide |
| 214 |
for the election of directors, to
provide for special |
| 215 |
meetings, and to require notice of the
annual meeting; |
| 216 |
requiring an annual meeting notice to
include an agenda; |
| 217 |
providing members with the right to
speak about any item |
| 218 |
on the agenda; authorizing members to
speak at least once |
| 219 |
on each agenda item for a specified
time; authorizing vote |
| 220 |
by limited proxy; providing guidelines
for elections; |
| 221 |
requiring members to be provided with
certain information |
| 222 |
regarding the elections; providing
voting requirements; |
| 223 |
authorizing directors to fill
vacancies; authorizing a |
| 224 |
specified amount of voting interests
to petition the |
| 225 |
division to appoint an election
monitor; providing |
| 226 |
eligibility requirements for
candidates; authorizing any |
| 227 |
parcel owner to electronically record
any meeting of the |
| 228 |
board or members; providing that the
directors may adopt |
| 229 |
certain rules governing such recording
but may not |
| 230 |
restrict an owner's right to record
the meeting; amending |
| 231 |
s. 720.307, F.S., relating to
transition of association |
| 232 |
control in a community; revising
criteria with respect to |
| 233 |
election of members to the board of
directors; requiring |
| 234 |
certain developers and owners to
convey title to all |
| 235 |
common areas prior to turnover;
revising requirements for |
| 236 |
turnover of documents; requiring
certain information to be |
| 237 |
included in the records and for the
records to be prepared |
| 238 |
in a specified manner; revising
application to include |
| 239 |
certain associations; creating s.
720.3071, F.S.; |
| 240 |
requiring training of homeowners'
association board |
| 241 |
members; amending s. 720.3075, F.S.;
prohibiting |
| 242 |
association documents at the time of
transition from |
| 243 |
preventing associations from
functioning; prohibiting |
| 244 |
association documents at the time of
transition from |
| 245 |
restricting an association's ability
to amend association |
| 246 |
documents; prohibiting associations
from restricting the |
| 247 |
use of hurricane shutters in certain
circumstances; |
| 248 |
providing guidelines for the use of
hurricane shutters; |
| 249 |
authorizing associations to enforce
certain hurricane |
| 250 |
shutter restrictions; amending s.
720.3086, F.S.; |
| 251 |
requiring the annual financial report
to be mailed to |
| 252 |
certain parcel owners; providing for
the exclusive use of |
| 253 |
certain properties; amending s.
720.401, F.S.; requiring |
| 254 |
certain documents to be provided to
prospective |
| 255 |
purchasers; revising information to be
contained in a |
| 256 |
disclosure summary; creating s.
720.501, F.S.; providing |
| 257 |
powers and duties of the Division of
Florida Land Sales, |
| 258 |
Condominiums, Homeowners'
Associations, and Mobile Homes; |
| 259 |
authorizing the division to conduct
certain |
| 260 |
investigations; authorizing certain
officers and employees |
| 261 |
to administer oaths or affirmations
and to subpoena |
| 262 |
witnesses and compel their attendance;
authorizing the |
| 263 |
division to issue certain orders;
authorizing the division |
| 264 |
to bring certain actions in circuit
court; authorizing the |
| 265 |
division to impose civil penalties;
authorizing the |
| 266 |
division to prepare and disseminate a
prospectus; |
| 267 |
requiring the division to provide
associations with |
| 268 |
certain documents; requiring the
division to provide |
| 269 |
training programs for association
board members and lot |
| 270 |
owners; requiring the division to
develop a mediation |
| 271 |
certification program; requiring
homeowners' associations |
| 272 |
to pay an annual fee to the division;
creating s. 720.505, |
| 273 |
F.S.; creating the Advisory Council on
Mandated |
| 274 |
Properties; providing for appointments
by the President of |
| 275 |
the Senate, the Speaker of the House
of Representatives, |
| 276 |
and the Governor; providing limited
compensation and other |
| 277 |
terms of service; specifying
functions; amending s. |
| 278 |
20.165, F.S.; redesignating the
Division of Florida Land |
| 279 |
Sales, Condominiums, and Mobile Homes
as the Division of |
| 280 |
Florida Land Sales, Condominiums,
Homeowners' |
| 281 |
Associations, and Mobile Homes;
amending ss. 73.073, |
| 282 |
190.009, 190.0485, 192.037, 213.053,
215.20, 326.002, |
| 283 |
326.006, 380.0651, 455.116, 475.455,
498.005, 498.019, |
| 284 |
498.047, 498.049, 509.512, 559.935,
718.103, 718.105, |
| 285 |
718.502, 718.504, 718.508, 718.509,
718.608, 719.103, |
| 286 |
719.1255, 719.501, 719.502, 719.504,
719.508, 719.608, |
| 287 |
721.05, 721.07, 721.08, 721.26,
721.28, 721.301, 723.003, |
| 288 |
723.006, 723.009, and 723.0611, F.S.;
conforming |
| 289 |
provisions; requiring condominium
developers to pay |
| 290 |
monthly maintenance fees on unsold
condominium units that |
| 291 |
are rented; providing an effective
date. |
| 292 |
|
| 293 |
Be It Enacted by the Legislature of
the State of Florida: |
| 294 |
|
| 295 |
Section
1. Subsection (2) of section 20.165, Florida |
| 296 |
Statutes, is amended to read: |
| 297 |
20.165 Department
of Business and Professional |
| 298 |
Regulation.--There is created a
Department of Business and |
| 299 |
Professional Regulation. |
| 300 |
(2) The
following divisions of the Department of Business |
| 301 |
and Professional Regulation are
established: |
| 302 |
(a) Division
of Administration. |
| 303 |
(b) Division
of Alcoholic Beverages and Tobacco. |
| 304 |
(c) Division
of Certified Public Accounting. |
| 305 |
1. The
director of the division shall be appointed by the |
| 306 |
secretary of the department, subject
to approval by a majority |
| 307 |
of the Board of Accountancy. |
| 308 |
2. The
offices of the division shall be located in |
| 309 |
Gainesville. |
| 310 |
(d) Division
of Florida Land Sales, Condominiums, |
| 311 |
Homeowners'
Associations, and Mobile Homes. |
| 312 |
(e) Division
of Hotels and Restaurants. |
| 313 |
(f) Division
of Mandated Properties. |
| 314 |
(g)(f) Division
of Pari-mutuel Wagering. |
| 315 |
(h)(g) Division
of Professions. |
| 316 |
(i)(h) Division
of Real Estate. |
| 317 |
1. The
director of the division shall be appointed by the |
| 318 |
secretary of the department, subject
to approval by a majority |
| 319 |
of the Florida Real Estate Commission. |
| 320 |
2. The
offices of the division shall be located in |
| 321 |
Orlando. |
| 322 |
(j)(i) Division
of Regulation. |
| 323 |
(k)(j) Division
of Technology, Licensure, and Testing. |
| 324 |
Section
2. Subsection (2) of section 73.073, Florida |
| 325 |
Statutes, is amended to read: |
| 326 |
73.073 Eminent
domain procedure with respect to |
| 327 |
condominium common elements.-- |
| 328 |
(2) With
respect to the exercise of eminent domain or a |
| 329 |
negotiated sale for the purchase or
taking of a portion of the |
| 330 |
common elements of a condominium, the
condemning authority shall |
| 331 |
have the responsibility of contacting
the condominium |
| 332 |
association and acquiring the most
recent rolls indicating the |
| 333 |
names of the unit owners or contacting
the appropriate taxing |
| 334 |
authority to obtain the names of the
owners of record on the tax |
| 335 |
rolls. Notification shall thereupon be
sent by certified mail, |
| 336 |
return receipt requested, to the unit
owners of record of the |
| 337 |
condominium units by the condemning
authority indicating the |
| 338 |
intent to purchase or take the
required property and requesting |
| 339 |
a response from the unit owner. The
condemning authority shall |
| 340 |
be responsible for the expense of
sending notification pursuant |
| 341 |
to this section. Such notice shall, at
a minimum, include: |
| 342 |
(a) The
name and address of the condemning authority. |
| 343 |
(b) A
written or visual description of the property. |
| 344 |
(c) The
public purpose for which the property is needed. |
| 345 |
(d) The
appraisal value of the property. |
| 346 |
(e) A
clear, concise statement relating to the unit |
| 347 |
owner's right to object to the taking
or appraisal value and the |
| 348 |
procedures and effects of exercising
that right. |
| 349 |
(f) A
clear, concise statement relating to the power of |
| 350 |
the association to convey the property
on behalf of the unit |
| 351 |
owners if no objection to the taking
or appraisal value is |
| 352 |
raised, and the effects of this
alternative on the unit owner. |
| 353 |
|
| 354 |
The Division of Florida Land Sales,
Condominiums, Homeowners' |
| 355 |
Associations,
and Mobile Homes of the Department of Business and |
| 356 |
Professional Regulation may adopt, by
rule, a standard form for |
| 357 |
such notice and may require the notice
to include any additional |
| 358 |
relevant information. |
| 359 |
Section
3. Subsection (2) of section 190.009, Florida |
| 360 |
Statutes, is amended to read: |
| 361 |
190.009 Disclosure
of public financing.-- |
| 362 |
(2) The
Division of Florida Land Sales, Condominiums, |
| 363 |
Homeowners'
Associations, and Mobile Homes of the Department of |
| 364 |
Business and Professional Regulation
shall ensure that |
| 365 |
disclosures made by developers
pursuant to chapter 498 meet the |
| 366 |
requirements of subsection (1). |
| 367 |
Section
4. Section 190.048, Florida Statutes, is amended |
| 368 |
to read: |
| 369 |
190.048 Sale
of real estate within a district; required |
| 370 |
disclosure to purchaser.-- |
| 371 |
(1)(a) Subsequent
to the establishment of a district under |
| 372 |
this chapter, each contract for the
initial sale of a parcel of |
| 373 |
real property and each contract for
the initial sale of a |
| 374 |
residential unit within the district
shall include as a separate |
| 375 |
addendum to
the contract, immediately prior to the space |
| 376 |
reserved in the contract for the
signature of the purchaser, the |
| 377 |
following disclosure statement in
boldfaced and conspicuous type |
| 378 |
which is larger than the type in the
remaining text of the |
| 379 |
contract: "THE (Name
of District) COMMUNITY DEVELOPMENT |
| 380 |
DISTRICT MAY IMPOSE AND LEVY TAXES OR
ASSESSMENTS, OR BOTH TAXES |
| 381 |
AND ASSESSMENTS, ON THIS PROPERTY.
THESE TAXES AND ASSESSMENTS |
| 382 |
PAY THE CONSTRUCTION, OPERATION, AND
MAINTENANCE COSTS OF |
| 383 |
CERTAIN PUBLIC FACILITIES AND SERVICES
OF THE DISTRICT AND ARE |
| 384 |
SET ANNUALLY BY THE GOVERNING BOARD OF
THE DISTRICT. THESE TAXES |
| 385 |
AND ASSESSMENTS ARE IN ADDITION TO
COUNTY AND OTHER LOCAL |
| 386 |
GOVERNMENTAL TAXES AND ASSESSMENTS AND
ALL OTHER TAXES AND |
| 387 |
ASSESSMENTS PROVIDED FOR BY LAW." |
| 388 |
(b) The
disclosure statement in paragraph (a) shall also |
| 389 |
fully disclose all
covenants and restrictions to which the |
| 390 |
property is
subject. This addendum shall disclose any existing |
| 391 |
agreement between a
developer and other party that obligates the |
| 392 |
purchaser of the
unit to additional taxes, assessments, or fees |
| 393 |
within 10 years
following the sale of the unit. Such disclosure |
| 394 |
shall provide a
reasonable estimate of the first 3 years for |
| 395 |
each tax,
assessment, or fee. Such disclosure shall be provided |
| 396 |
to the purchaser
within 10 days after the execution of the sales |
| 397 |
contract;
otherwise, the contract may be voided at the election |
| 398 |
of the purchaser
and any deposits shall be returned in full. |
| 399 |
However, such
disclosure may be provided to the purchaser later |
| 400 |
than 10 days after
the execution of the sales contract if the |
| 401 |
closing date has
been extended by an additional 10 days. |
| 402 |
(2)(a) Failure
to provide the disclosure statement as |
| 403 |
required in
subsection (1) within 10 days shall constitute a |
| 404 |
rebuttable
presumption of willful noncompliance with subsection |
| 405 |
(1) and shall
result in a fine of $2,500 for each violation, up |
| 406 |
to a maximum of
$10,000, payable to the prospective buyer, and |
| 407 |
shall include
reasonable attorney's fees and collection costs, |
| 408 |
due 30 days after
the execution or voiding of the sales |
| 409 |
contract. |
| 410 |
(b) The
developer and sales agent shall submit an annual |
| 411 |
report to the
Department of Community Affairs that certifies |
| 412 |
compliance with
this section and payment of any related fines |
| 413 |
and criminal
penalties for such noncompliance as may be passed |
| 414 |
by the Legislature.
Failure by the developer or sales agent to |
| 415 |
provide an annual
report shall result in a $50,000 fine payable |
| 416 |
to the department. |
| 417 |
Section
5. Section 190.0485, Florida Statutes, is amended |
| 418 |
to read: |
| 419 |
190.0485 Notice
of establishment.--Within 30 days after |
| 420 |
the effective date of a rule or
ordinance establishing a |
| 421 |
community development district under
this act, the district |
| 422 |
shall cause to be recorded in the
property records in the county |
| 423 |
in which it is located a "Notice
of Establishment of the |
| 424 |
__________ Community Development
District." The notice shall, at |
| 425 |
a minimum, include the legal
description of the district and a |
| 426 |
copy of the disclosure statement
specified in s. 190.048(1)(a). |
| 427 |
Section
6. Paragraph (e) of subsection (6) of section |
| 428 |
192.037, Florida Statutes, is amended
to read: |
| 429 |
192.037 Fee
timeshare real property; taxes and |
| 430 |
assessments; escrow.-- |
| 431 |
(6) |
| 432 |
(e) On
or before May 1 of each year, a statement of |
| 433 |
receipts and disbursements of the
escrow account must be filed |
| 434 |
with the Division of Florida Land
Sales, Condominiums, |
| 435 |
Homeowners'
Associations, and Mobile Homes of the Department of |
| 436 |
Business and Professional Regulation,
which may enforce this |
| 437 |
paragraph pursuant to s. 721.26. This
statement must |
| 438 |
appropriately show the amount of
principal and interest in such |
| 439 |
account. |
| 440 |
Section
7. Paragraph (i) of subsection (8) of section |
| 441 |
213.053, Florida Statutes, is amended
to read: |
| 442 |
213.053 Confidentiality
and information sharing.-- |
| 443 |
(8) Notwithstanding
any other provision of this section, |
| 444 |
the department may provide: |
| 445 |
(i) Information
relative to chapters 212 and 326 to the |
| 446 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
| 447 |
Associations,
and Mobile Homes of the Department of Business and |
| 448 |
Professional Regulation in the conduct
of its official duties. |
| 449 |
|
| 450 |
Disclosure of information under this
subsection shall be |
| 451 |
pursuant to a written agreement
between the executive director |
| 452 |
and the agency. Such agencies,
governmental or nongovernmental, |
| 453 |
shall be bound by the same
requirements of confidentiality as |
| 454 |
the Department of Revenue. Breach of
confidentiality is a |
| 455 |
misdemeanor of the first degree,
punishable as provided by s. |
| 456 |
775.082 or s. 775.083. |
| 457 |
Section
8. Paragraph (d) of subsection (4) of section |
| 458 |
215.20, Florida Statutes, is amended
to read: |
| 459 |
215.20 Certain
income and certain trust funds to |
| 460 |
contribute to the General Revenue
Fund.-- |
| 461 |
(4) The
income of a revenue nature deposited in the |
| 462 |
following described trust funds, by
whatever name designated, is |
| 463 |
that from which the appropriations
authorized by subsection (3) |
| 464 |
shall be made: |
| 465 |
(d) Within
the Department of Business and Professional |
| 466 |
Regulation: |
| 467 |
1. The
Administrative Trust Fund. |
| 468 |
2. The
Alcoholic Beverage and Tobacco Trust Fund. |
| 469 |
3. The
Cigarette Tax Collection Trust Fund. |
| 470 |
4. The
Division of Florida Land Sales, Condominiums, |
| 471 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
| 472 |
5. The
Hotel and Restaurant Trust Fund, with the exception |
| 473 |
of those fees collected for the
purpose of funding of the |
| 474 |
hospitality education program as
stated in s. 509.302. |
| 475 |
6. The
Professional Regulation Trust Fund. |
| 476 |
7. The
trust funds administered by the Division of Pari- |
| 477 |
mutuel Wagering. |
| 478 |
|
| 479 |
The enumeration of the foregoing
moneys or trust funds shall not |
| 480 |
prohibit the applicability thereto of
s. 215.24 should the |
| 481 |
Governor determine that for the
reasons mentioned in s. 215.24 |
| 482 |
the money or trust funds should be
exempt herefrom, as it is the |
| 483 |
purpose of this law to exempt income
from its force and effect |
| 484 |
when, by the operation of this law,
federal matching funds or |
| 485 |
contributions or private grants to any
trust fund would be lost |
| 486 |
to the state. |
| 487 |
Section
9. Subsection (2) of section 326.002, Florida |
| 488 |
Statutes, is amended to read: |
| 489 |
326.002 Definitions.--As
used in ss. 326.001-326.006, the |
| 490 |
term: |
| 491 |
(2) "Division"
means the Division of Florida Land Sales, |
| 492 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
| 493 |
Department of Business and
Professional Regulation. |
| 494 |
Section
10. Paragraph (d) of subsection (2) and subsection |
| 495 |
(3) of section 326.006, Florida
Statutes, are amended to read: |
| 496 |
326.006 Powers
and duties of division.-- |
| 497 |
(2) The
division has the power to enforce and ensure |
| 498 |
compliance with the provisions of this
chapter and rules adopted |
| 499 |
under this chapter relating to the
sale and ownership of yachts |
| 500 |
and ships. In performing its duties,
the division has the |
| 501 |
following powers and duties: |
| 502 |
(d) Notwithstanding
any remedies available to a yacht or |
| 503 |
ship purchaser, if the division has
reasonable cause to believe |
| 504 |
that a violation of any provision of
this chapter or rule |
| 505 |
adopted under this chapter has
occurred, the division may |
| 506 |
institute enforcement proceedings in
its own name against any |
| 507 |
broker or salesperson or any of his or
her assignees or agents, |
| 508 |
or against any unlicensed person or
any of his or her assignees |
| 509 |
or agents, as follows: |
| 510 |
1. The
division may permit a person whose conduct or |
| 511 |
actions are under investigation to
waive formal proceedings and |
| 512 |
enter into a consent proceeding
whereby orders, rules, or |
| 513 |
letters of censure or warning, whether
formal or informal, may |
| 514 |
be entered against the person. |
| 515 |
2. The
division may issue an order requiring the broker or |
| 516 |
salesperson or any of his or her
assignees or agents, or |
| 517 |
requiring any unlicensed person or any
of his or her assignees |
| 518 |
or agents, to cease and desist from
the unlawful practice and |
| 519 |
take such affirmative action as in the
judgment of the division |
| 520 |
will carry out the purposes of this
chapter. |
| 521 |
3. The
division may bring an action in circuit court on |
| 522 |
behalf of a class of yacht or ship
purchasers for declaratory |
| 523 |
relief, injunctive relief, or
restitution. |
| 524 |
4. The
division may impose a civil penalty against a |
| 525 |
broker or salesperson or any of his or
her assignees or agents, |
| 526 |
or against an unlicensed person or any
of his or her assignees |
| 527 |
or agents, for any violation of this
chapter or a rule adopted |
| 528 |
under this chapter. A penalty may be
imposed for each day of |
| 529 |
continuing violation, but in no event
may the penalty for any |
| 530 |
offense exceed $10,000. All amounts
collected must be deposited |
| 531 |
with the Chief Financial Officer to
the credit of the Division |
| 532 |
of Florida Land Sales, Condominiums, Homeowners'
Associations, |
| 533 |
and Mobile Homes Trust Fund. If a
broker, salesperson, or |
| 534 |
unlicensed person working for a
broker, fails to pay the civil |
| 535 |
penalty, the division shall thereupon
issue an order suspending |
| 536 |
the broker's license until such time
as the civil penalty is |
| 537 |
paid or may pursue enforcement of the
penalty in a court of |
| 538 |
competent jurisdiction. The order
imposing the civil penalty or |
| 539 |
the order of suspension may not become
effective until 20 days |
| 540 |
after the date of such order. Any
action commenced by the |
| 541 |
division must be brought in the county
in which the division has |
| 542 |
its executive offices or in the county
where the violation |
| 543 |
occurred. |
| 544 |
(3) All
fees must be deposited in the Division of Florida |
| 545 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 546 |
Homes Trust Fund as provided by law. |
| 547 |
Section
11. Paragraph (a) of subsection (4) of section |
| 548 |
380.0651, Florida Statutes, is amended
to read: |
| 549 |
380.0651 Statewide
guidelines and standards.-- |
| 550 |
(4) Two
or more developments, represented by their owners |
| 551 |
or developers to be separate
developments, shall be aggregated |
| 552 |
and treated as a single development
under this chapter when they |
| 553 |
are determined to be part of a unified
plan of development and |
| 554 |
are physically proximate to one other. |
| 555 |
(a) The
criteria of two of the following subparagraphs |
| 556 |
must be met in order for the state
land planning agency to |
| 557 |
determine that there is a unified plan
of development: |
| 558 |
1.a. The
same person has retained or shared control of the |
| 559 |
developments; |
| 560 |
b. The
same person has ownership or a significant legal or |
| 561 |
equitable interest in the
developments; or |
| 562 |
c. There
is common management of the developments |
| 563 |
controlling the form of physical
development or disposition of |
| 564 |
parcels of the development. |
| 565 |
2. There
is a reasonable closeness in time between the |
| 566 |
completion of 80 percent or less of
one development and the |
| 567 |
submission to a governmental agency of
a master plan or series |
| 568 |
of plans or drawings for the other
development which is |
| 569 |
indicative of a common development
effort. |
| 570 |
3. A
master plan or series of plans or drawings exists |
| 571 |
covering the developments sought to be
aggregated which have |
| 572 |
been submitted to a local
general-purpose government, water |
| 573 |
management district, the Florida
Department of Environmental |
| 574 |
Protection, or the Division of Florida
Land Sales, Condominiums, |
| 575 |
Homeowners'
Associations, and Mobile Homes for authorization to |
| 576 |
commence development. The existence or
implementation of a |
| 577 |
utility's master utility plan required
by the Public Service |
| 578 |
Commission or general-purpose local
government or a master |
| 579 |
drainage plan shall not be the sole
determinant of the existence |
| 580 |
of a master plan. |
| 581 |
4. The
voluntary sharing of infrastructure that is |
| 582 |
indicative of a common development
effort or is designated |
| 583 |
specifically to accommodate the
developments sought to be |
| 584 |
aggregated, except that which was
implemented because it was |
| 585 |
required by a local general-purpose
government; water management |
| 586 |
district; the Department of
Environmental Protection; the |
| 587 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
| 588 |
Associations,
and Mobile Homes; or the Public Service |
| 589 |
Commission. |
| 590 |
5. There
is a common advertising scheme or promotional |
| 591 |
plan in effect for the developments
sought to be aggregated. |
| 592 |
Section
12. Subsection (5) of section 455.116, Florida |
| 593 |
Statutes, is amended to read: |
| 594 |
455.116 Regulation
trust funds.--The following trust funds |
| 595 |
shall be placed in the department: |
| 596 |
(5) Division
of Florida Land Sales, Condominiums, |
| 597 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
| 598 |
Section
13. Section 475.455, Florida Statutes, is amended |
| 599 |
to read: |
| 600 |
475.455 Exchange
of disciplinary information.--The |
| 601 |
commission shall inform the Division
of Florida Land Sales, |
| 602 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
| 603 |
Department of Business and
Professional Regulation of any |
| 604 |
disciplinary action the commission has
taken against any of its |
| 605 |
licensees. The division shall inform
the commission of any |
| 606 |
disciplinary action the division has
taken against any broker or |
| 607 |
sales associate registered with the
division. |
| 608 |
Section
14. Subsection (5) of section 498.005, Florida |
| 609 |
Statutes, is amended to read: |
| 610 |
498.005 Definitions.--As
used in this chapter, unless the |
| 611 |
context otherwise requires, the term: |
| 612 |
(5) "Division"
means the Division of Florida Land Sales, |
| 613 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
| 614 |
Department of Business and
Professional Regulation. |
| 615 |
Section
15. Section 498.019, Florida Statutes, is amended |
| 616 |
to read: |
| 617 |
498.019 Division
of Florida Land Sales, Condominiums, |
| 618 |
Homeowners'
Associations, and Mobile Homes Trust Fund.-- |
| 619 |
(1) There
is created within the State Treasury the |
| 620 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
| 621 |
Associations,
and Mobile Homes Trust Fund to be used for the |
| 622 |
administration and operation of this
chapter and chapters 718, |
| 623 |
719, 721, and 723 by the division. |
| 624 |
(2) All
moneys collected by the division from fees, fines, |
| 625 |
or penalties or from costs awarded to
the division by a court |
| 626 |
shall be paid into the Division of
Florida Land Sales, |
| 627 |
Condominiums, Homeowners'
Associations, and Mobile Homes Trust |
| 628 |
Fund. The Legislature shall
appropriate funds from this trust |
| 629 |
fund sufficient to carry out the
provisions of this chapter and |
| 630 |
the provisions of law with respect to
each category of business |
| 631 |
covered by this trust fund. The
division shall maintain separate |
| 632 |
revenue accounts in the trust fund for
each of the businesses |
| 633 |
regulated by the division. The
division shall provide for the |
| 634 |
proportionate allocation among the
accounts of expenses incurred |
| 635 |
by the division in the performance of
its duties with respect to |
| 636 |
each of these businesses. As part of
its normal budgetary |
| 637 |
process, the division shall prepare an
annual report of revenue |
| 638 |
and allocated expenses related to the
operation of each of these |
| 639 |
businesses which may be used to
determine fees charged by the |
| 640 |
division. This subsection shall
operate pursuant to the |
| 641 |
provisions of s. 215.20. |
| 642 |
Section
16. Paragraph (a) of subsection (8) of section |
| 643 |
498.047, Florida Statutes, is amended
to read: |
| 644 |
498.047 Investigations.-- |
| 645 |
(8)(a) Information
held by the Division of Florida Land |
| 646 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
| 647 |
relative to an investigation pursuant
to this chapter, including |
| 648 |
any consumer complaint, is
confidential and exempt from s. |
| 649 |
119.07(1) and s. 24(a), Art. I of the
State Constitution, until |
| 650 |
10 days after a notice to show cause
has been filed by the |
| 651 |
division, or, in the case in which no
notice to show cause is |
| 652 |
filed, the investigation is completed
or ceases to be active. |
| 653 |
For purposes of this section, an
investigation shall be |
| 654 |
considered "active" so long
as the division or any law |
| 655 |
enforcement or administrative agency
or regulatory organization |
| 656 |
is proceeding with reasonable dispatch
and has a reasonable good |
| 657 |
faith belief that the investigation
may lead to the filing of an |
| 658 |
administrative, civil, or criminal
proceeding or to the denial |
| 659 |
or conditional grant of a license or
registration. However, in |
| 660 |
response to a specific inquiry about
the registration status of |
| 661 |
a registered or unregistered
subdivider, the division may |
| 662 |
disclose the existence and the status
of an active |
| 663 |
investigation. This subsection shall
not be construed to |
| 664 |
prohibit disclosure of information
which is required by law to |
| 665 |
be filed with the division and which,
but for the investigation, |
| 666 |
would be subject to s. 119.07(1). |
| 667 |
Section
17. Subsection (5) of section 498.049, Florida |
| 668 |
Statutes, is amended to read: |
| 669 |
498.049 Suspension;
revocation; civil penalties.-- |
| 670 |
(5) Each
person who materially participates in any offer |
| 671 |
or disposition of any interest in
subdivided lands in violation |
| 672 |
of this chapter or relevant rules
involving fraud, deception, |
| 673 |
false pretenses, misrepresentation, or
false advertising or the |
| 674 |
disposition, concealment, or diversion
of any funds or assets of |
| 675 |
any person which adversely affects the
interests of a purchaser |
| 676 |
of any interest in subdivided lands,
and who directly or |
| 677 |
indirectly controls a subdivider or is
a general partner, |
| 678 |
officer, director, agent, or employee
of a subdivider shall also |
| 679 |
be liable under this subsection
jointly and severally with and |
| 680 |
to the same extent as the subdivider,
unless that person did not |
| 681 |
know, and in the exercise of
reasonable care could not have |
| 682 |
known, of the existence of the facts
creating the alleged |
| 683 |
liability. Among these persons a right
of contribution shall |
| 684 |
exist, except that a creditor of a
subdivider shall not be |
| 685 |
jointly and severally liable unless
the creditor has assumed |
| 686 |
managerial or fiduciary responsibility
in a manner related to |
| 687 |
the basis for the liability of the
subdivider under this |
| 688 |
subsection. Civil penalties shall be
limited to $10,000 for each |
| 689 |
offense, and all amounts collected
shall be deposited with the |
| 690 |
Chief Financial Officer to the credit
of the Division of Florida |
| 691 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 692 |
Homes Trust Fund. No order requiring
the payment of a civil |
| 693 |
penalty shall become effective until
20 days after the date of |
| 694 |
the order, unless otherwise agreed in
writing by the person on |
| 695 |
whom the penalty is imposed. |
| 696 |
Section
18. Section 509.512, Florida Statutes, is amended |
| 697 |
to read: |
| 698 |
509.512 Timeshare
plan developer and exchange company |
| 699 |
exemption.--Sections 509.501-509.511
do not apply to a developer |
| 700 |
of a timeshare plan or an exchange
company approved by the |
| 701 |
Division of Florida Land Sales,
Condominiums, Homeowners' |
| 702 |
Associations, and Mobile Homes
pursuant to chapter 721, but only |
| 703 |
to the extent that the developer or
exchange company engages in |
| 704 |
conduct regulated under chapter 721. |
| 705 |
Section
19. Paragraph (h) of subsection (1) of section |
| 706 |
559.935, Florida Statutes, is amended
to read: |
| 707 |
559.935 Exemptions.-- |
| 708 |
(1) This
part does not apply to: |
| 709 |
(h) A
developer of a timeshare plan or an exchange company |
| 710 |
approved by the Division of Florida
Land Sales, Condominiums, |
| 711 |
Homeowners'
Associations, and Mobile Homes pursuant to chapter |
| 712 |
721, but only to the extent that the
developer or exchange |
| 713 |
company engages in conduct regulated
under chapter 721; or |
| 714 |
Section
20. Subsection (17) of section 718.103, Florida |
| 715 |
Statutes, is amended to read: |
| 716 |
718.103 Definitions.--As
used in this chapter, the term: |
| 717 |
(17) "Division"
means the Division of Florida Land Sales, |
| 718 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
| 719 |
Department of Business and
Professional Regulation. |
| 720 |
Section
21. Paragraph (f) of subsection (4) of section |
| 721 |
718.104, Florida Statutes, is amended
to read: |
| 722 |
718.104 Creation
of condominiums; contents of |
| 723 |
declaration.--Every condominium
created in this state shall be |
| 724 |
created pursuant to this chapter. |
| 725 |
(4) The
declaration must contain or provide for the |
| 726 |
following matters: |
| 727 |
(f) The
undivided share of ownership of the common |
| 728 |
elements and common surplus of the
condominium that is |
| 729 |
appurtenant to each unit stated as a
percentage or a fraction of |
| 730 |
the whole. In the declaration of
condominium for residential |
| 731 |
condominiums created after April 1, 2007
1992, the ownership |
| 732 |
share of the common elements assigned
to each residential unit |
| 733 |
shall be based either
upon the total square footage of each |
| 734 |
residential unit in uniform
relationship to the total square |
| 735 |
footage of each other residential unit
in the condominium or on |
| 736 |
an equal
fractional basis. |
| 737 |
Section
22. Paragraph (c) of subsection (4) of section |
| 738 |
718.105, Florida Statutes, is amended
to read: |
| 739 |
718.105 Recording
of declaration.-- |
| 740 |
(4) |
| 741 |
(c) If
the sum of money held by the clerk has not been |
| 742 |
paid to the developer or association
as provided in paragraph |
| 743 |
(b) by 3 years after the date the
declaration was originally |
| 744 |
recorded, the clerk in his or her
discretion may notify, in |
| 745 |
writing, the registered agent of the
association that the sum is |
| 746 |
still available and the purpose for
which it was deposited. If |
| 747 |
the association does not record the
certificate within 90 days |
| 748 |
after the clerk has given the notice,
the clerk may disburse the |
| 749 |
money to the developer. If the
developer cannot be located, the |
| 750 |
clerk shall disburse the money to the
Division of Florida Land |
| 751 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
| 752 |
for deposit in the Division of Florida
Land Sales, Condominiums, |
| 753 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
| 754 |
Section
23. Paragraph (d) is added to subsection (1) of |
| 755 |
section 718.110, Florida Statutes, to
read: |
| 756 |
718.110 Amendment
of declaration; correction of error or |
| 757 |
omission in declaration by circuit
court.-- |
| 758 |
(1) |
| 759 |
(d) Notice
of a proposed amendment to the declaration |
| 760 |
shall be sent to
the unit owner by certified mail. |
| 761 |
Section
24. Subsection (5), paragraph (b) of subsection |
| 762 |
(7), paragraphs (b) and (c) of
subsection (12), and subsection |
| 763 |
(13) of section 718.111, Florida
Statutes, are amended, and |
| 764 |
subsection (15) is added to that
section, to read: |
| 765 |
718.111 The
association.-- |
| 766 |
(5) RIGHT
OF ACCESS TO UNITS.--The association has the |
| 767 |
irrevocable right of access to each
unit during reasonable |
| 768 |
hours, when necessary for the
maintenance, repair, or |
| 769 |
replacement of any common elements or
of any portion of a unit |
| 770 |
to be maintained by the association
pursuant to the declaration |
| 771 |
or as necessary to prevent damage to
the common elements or to a |
| 772 |
unit or units. Except
in cases of emergency, the association |
| 773 |
must give the unit
owner 24 hours' advance written notice of |
| 774 |
intent to access
the unit and such access must include two |
| 775 |
persons, one of
whom must be a member of the board of |
| 776 |
administration. |
| 777 |
(7) TITLE
TO PROPERTY.-- |
| 778 |
(b) Subject
to the provisions of s. 718.112(2)(l)(m), the |
| 779 |
association, through its board, has
the limited power to convey |
| 780 |
a portion of the common elements to a
condemning authority for |
| 781 |
the purposes of providing utility
easements, right-of-way |
| 782 |
expansion, or other public purposes,
whether negotiated or as a |
| 783 |
result of eminent domain proceedings. |
| 784 |
(12) OFFICIAL
RECORDS.-- |
| 785 |
(b) The
official records of the association shall be |
| 786 |
maintained within the state. The
records of the association |
| 787 |
shall be made available to a unit
owner, at a location within 30 |
| 788 |
miles'
driving distance of the condominium property, within 5 |
| 789 |
working days after receipt of written
request by the board or |
| 790 |
its designee. This paragraph may be
complied with by having a |
| 791 |
copy of the official records of the
association available for |
| 792 |
inspection or copying on the
condominium property or association |
| 793 |
property. |
| 794 |
(c) The
official records of the association are open to |
| 795 |
inspection by any association member
or the authorized |
| 796 |
representative of such member at all
reasonable times. The right |
| 797 |
to inspect the records includes the
right to make or obtain |
| 798 |
copies, at the reasonable expense, if
any, of the association |
| 799 |
member. The association may adopt
reasonable rules regarding the |
| 800 |
frequency, time, location, notice, and
manner of record |
| 801 |
inspections and copying. The failure
of an association to |
| 802 |
provide the records within 10 working
days after receipt of a |
| 803 |
written request shall create a
rebuttable presumption that the |
| 804 |
association willfully failed to comply
with this paragraph. A |
| 805 |
unit owner who is denied access to
official records is entitled |
| 806 |
to the actual damages or minimum
damages for the association's |
| 807 |
willful failure to comply with this
paragraph. The minimum |
| 808 |
damages shall be $50 per calendar day
up to 10 days, the |
| 809 |
calculation to begin on the 11th
working day after receipt of |
| 810 |
the written request. The failure to
permit inspection of the |
| 811 |
association records as provided herein
entitles any person |
| 812 |
prevailing in an enforcement action to
recover reasonable |
| 813 |
attorney's fees from the person in
control of the records who, |
| 814 |
directly or indirectly, knowingly
denied access to the records |
| 815 |
for inspection. The association shall
maintain an adequate |
| 816 |
number of copies of the declaration,
articles of incorporation, |
| 817 |
bylaws, and rules, and all amendments
to each of the foregoing, |
| 818 |
as well as the question and answer
sheet provided for in s. |
| 819 |
718.504 and year-end financial
information required in this |
| 820 |
section on the condominium property to
ensure their availability |
| 821 |
to unit owners and prospective
purchasers, and may charge its |
| 822 |
actual costs for preparing and
furnishing these documents to |
| 823 |
those requesting the same.
Notwithstanding the provisions of |
| 824 |
this paragraph, the following records
shall not be accessible to |
| 825 |
unit owners: |
| 826 |
1. Any
record protected by the lawyer-client privilege as |
| 827 |
described in s. 90.502; and any record
protected by the work- |
| 828 |
product privilege, including any
record prepared by an |
| 829 |
association attorney or prepared at
the attorney's express |
| 830 |
direction; which reflects a mental
impression, conclusion, |
| 831 |
litigation strategy, or legal theory
of the attorney or the |
| 832 |
association, and which was prepared
exclusively for civil or |
| 833 |
criminal litigation or for adversarial
administrative |
| 834 |
proceedings, or which was prepared in
anticipation of imminent |
| 835 |
civil or criminal litigation or
imminent adversarial |
| 836 |
administrative proceedings until the
conclusion of the |
| 837 |
litigation or adversarial
administrative proceedings. |
| 838 |
2. Information
obtained by an association in connection |
| 839 |
with the approval of the lease, sale,
or other transfer of a |
| 840 |
unit. |
| 841 |
3. Medical
records of unit owners. |
| 842 |
4. Social
security numbers, driver's license numbers, |
| 843 |
credit card
numbers, and other personal identifying information |
| 844 |
of unit owners,
occupants, or tenants. |
| 845 |
(13) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 846 |
the fiscal year, or annually on a date
provided in the bylaws, |
| 847 |
the association shall prepare and
complete, or contract for the |
| 848 |
preparation and completion of, a
financial report for the |
| 849 |
preceding fiscal year. Within 21 days
after the final financial |
| 850 |
report is completed by the association
or received from the |
| 851 |
third party, but not later than 120
days after the end of the |
| 852 |
fiscal year or other date as provided
in the bylaws, the |
| 853 |
association shall mail to each unit
owner at the address last |
| 854 |
furnished to the association by the
unit owner, or hand deliver |
| 855 |
to each unit owner, a copy of the
financial report or a notice |
| 856 |
that a copy of the financial report
will be mailed or hand |
| 857 |
delivered to the unit owner,
without charge, upon receipt of a |
| 858 |
written
request from the unit owner. The division shall adopt |
| 859 |
rules setting forth uniform accounting
principles and standards |
| 860 |
to be used by all associations and
shall adopt rules addressing |
| 861 |
financial reporting requirements for
multicondominium |
| 862 |
associations. In adopting such rules,
the division shall |
| 863 |
consider the number of members and
annual revenues of an |
| 864 |
association. Financial reports shall
be prepared as follows: |
| 865 |
(a) An
association that meets the criteria of this |
| 866 |
paragraph shall prepare or cause to be
prepared a complete set |
| 867 |
of financial statements in accordance
with generally accepted |
| 868 |
accounting principles. The financial
statements shall be based |
| 869 |
upon the association's total annual
revenues, as follows: |
| 870 |
1. An
association with total annual revenues of $100,000 |
| 871 |
or more, but less than $200,000, shall
prepare compiled |
| 872 |
financial statements. |
| 873 |
2. An
association with total annual revenues of at least |
| 874 |
$200,000, but less than $400,000,
shall prepare reviewed |
| 875 |
financial statements. |
| 876 |
3. An
association with total annual revenues of $400,000 |
| 877 |
or more shall prepare audited
financial statements. |
| 878 |
(b)1. An
association with total annual revenues of less |
| 879 |
than $100,000 shall prepare a report
of cash receipts and |
| 880 |
expenditures. |
| 881 |
2. An
association which operates less than 50 units, |
| 882 |
regardless of the association's annual
revenues, shall prepare a |
| 883 |
report of cash receipts and
expenditures in lieu of financial |
| 884 |
statements required by paragraph (a). |
| 885 |
3. A
report of cash receipts and disbursements must |
| 886 |
disclose the amount of receipts by
accounts and receipt |
| 887 |
classifications and the amount of
expenses by accounts and |
| 888 |
expense classifications, including,
but not limited to, the |
| 889 |
following, as applicable: costs for
security, professional and |
| 890 |
management fees and expenses, taxes,
costs for recreation |
| 891 |
facilities, expenses for refuse
collection and utility services, |
| 892 |
expenses for lawn care, costs for
building maintenance and |
| 893 |
repair, insurance costs,
administration and salary expenses, and |
| 894 |
reserves accumulated and expended for
capital expenditures, |
| 895 |
deferred maintenance, and any other
category for which the |
| 896 |
association maintains reserves. |
| 897 |
(c) An
association may prepare or cause to be prepared, |
| 898 |
without a meeting of or approval by
the unit owners: |
| 899 |
1. Compiled,
reviewed, or audited financial statements, if |
| 900 |
the association is required to prepare
a report of cash receipts |
| 901 |
and expenditures; |
| 902 |
2. Reviewed
or audited financial statements, if the |
| 903 |
association is required to prepare
compiled financial |
| 904 |
statements; or |
| 905 |
3. Audited
financial statements if the association is |
| 906 |
required to prepare reviewed financial
statements. |
| 907 |
(d) If
approved by a majority of the voting interests |
| 908 |
present at a properly called meeting
of the association, an |
| 909 |
association may prepare or cause to be
prepared: |
| 910 |
1. A
report of cash receipts and expenditures in lieu of a |
| 911 |
compiled, reviewed, or audited
financial statement; |
| 912 |
2. A
report of cash receipts and expenditures or a |
| 913 |
compiled financial statement in lieu
of a reviewed or audited |
| 914 |
financial statement; or |
| 915 |
3. A
report of cash receipts and expenditures, a compiled |
| 916 |
financial statement, or a reviewed
financial statement in lieu |
| 917 |
of an audited financial statement. |
| 918 |
|
| 919 |
Such meeting and approval must occur
prior to the end of the |
| 920 |
fiscal year and is effective only for
the fiscal year in which |
| 921 |
the vote is taken. With respect to an
association to which the |
| 922 |
developer has not turned over control
of the association, all |
| 923 |
unit owners, including the developer,
may vote on issues related |
| 924 |
to the preparation of financial
reports for the first 2 fiscal |
| 925 |
years of the association's operation,
beginning with the fiscal |
| 926 |
year in which the declaration is
recorded. Thereafter, all unit |
| 927 |
owners except the developer may vote
on such issues until |
| 928 |
control is turned over to the
association by the developer. An |
| 929 |
association or board of
administration may not waive the |
| 930 |
financial reporting requirements of
this section for more than 2 |
| 931 |
years. |
| 932 |
(15) RECONSTRUCTION
AFTER CASUALTY.-- |
| 933 |
(a) In
the event the condominium property and units are |
| 934 |
damaged after a
casualty, the board of administration shall |
| 935 |
obtain reliable and
detailed estimates of the cost necessary to |
| 936 |
repair and replace
the damaged property to substantially the |
| 937 |
same condition
existing immediately prior to the casualty and |
| 938 |
substantially in
accordance with the original plans and |
| 939 |
specifications of
the condominium as soon as possible and not |
| 940 |
later than 60 days
after the casualty. If the damage to the |
| 941 |
condominium
property exceeds 50 percent of the property's value, |
| 942 |
the condominium may
be terminated unless 75 percent of the unit |
| 943 |
owners agree to
reconstruction and repair within 90 days after |
| 944 |
the casualty. |
| 945 |
(b) The
board of administration shall engage the services |
| 946 |
of a registered
architect and knowledgeable construction |
| 947 |
specialists to
prepare any necessary plans and specifications |
| 948 |
and shall receive
and approve bids for reconstruction, execute |
| 949 |
all necessary
contracts for restoration, and arrange for |
| 950 |
disbursement of
construction funds, the approval of work, and |
| 951 |
all other matters
pertaining to the repairs and reconstruction |
| 952 |
required. |
| 953 |
(c) If
the proceeds of the hazard insurance policy |
| 954 |
maintained by the
association pursuant to paragraph (11)(b) are |
| 955 |
insufficient to pay
the estimated costs of reconstruction or at |
| 956 |
any time during
reconstruction and repair, assessments shall be |
| 957 |
made against all
unit owners according to their share of the |
| 958 |
common elements and
expenses as set forth in the declaration of |
| 959 |
condominium. |
| 960 |
(d) Assessments
shall be made against unit owners for |
| 961 |
damage to their
units according to the cost of reconstruction or |
| 962 |
repair of their
respective units. The assessments shall be |
| 963 |
levied and
collected as all other assessments are provided for |
| 964 |
in this chapter. |
| 965 |
Section
25. Subsection (2) of section 718.112, Florida |
| 966 |
Statutes, is amended to read: |
| 967 |
718.112 Bylaws.-- |
| 968 |
(2) REQUIRED
PROVISIONS.--The bylaws of the association |
| 969 |
shall provide for the following and,
if they do not do so, shall |
| 970 |
be deemed to include the following: |
| 971 |
(a) Administration.-- |
| 972 |
1. The
form of administration of the association shall be |
| 973 |
described indicating the title of the
officers and board of |
| 974 |
administration and specifying the
powers, duties, manner of |
| 975 |
selection and removal, and
compensation, if any, of officers and |
| 976 |
boards. In the absence of such a
provision or determination by |
| 977 |
the board or membership, the
board of administration shall be |
| 978 |
composed of five members who are
unit owners, except in the case |
| 979 |
of a condominium which has five or
fewer units, in which case in |
| 980 |
a not-for-profit corporation the board
shall consist of not |
| 981 |
fewer than three members who are
unit owners. In the absence of |
| 982 |
provisions to the contrary in the
bylaws, the board of |
| 983 |
administration shall have a president,
a secretary, and a |
| 984 |
treasurer, who shall perform the
duties of such officers |
| 985 |
customarily performed by officers of
corporations. Unless |
| 986 |
prohibited in the bylaws, the board of
administration may |
| 987 |
appoint other officers and grant them
the duties it deems |
| 988 |
appropriate. Unless otherwise provided
in the bylaws, the |
| 989 |
officers shall serve without
compensation and at the pleasure of |
| 990 |
the board of administration. Unless
otherwise provided in the |
| 991 |
bylaws, the members of the board shall
serve without |
| 992 |
compensation. |
| 993 |
2. When
a unit owner files a written inquiry by certified |
| 994 |
mail with the board of administration,
the board shall respond |
| 995 |
in writing by certified mail,
return receipt requested, to the |
| 996 |
unit owner within 30 days after
of receipt of the inquiry. The |
| 997 |
board's response shall either give a
substantive response to the |
| 998 |
inquirer, notify the inquirer that a
legal opinion has been |
| 999 |
requested, or notify the inquirer that
advice has been requested |
| 1000 |
from the division. If the board
requests advice from the |
| 1001 |
division, the board shall, within 10
days after of
its receipt |
| 1002 |
of the advice, provide in writing by
certified mail a |
| 1003 |
substantive response to the inquirer.
If a legal opinion is |
| 1004 |
requested, the board shall, within 60
days after the receipt of |
| 1005 |
the inquiry, provide in writing by
certified mail a substantive |
| 1006 |
response to the inquiry. The failure
to provide a substantive |
| 1007 |
response to the inquiry as provided
herein precludes the board |
| 1008 |
from recovering attorney's fees and
costs in any subsequent |
| 1009 |
litigation, administrative proceeding,
or arbitration arising |
| 1010 |
out of the inquiry. The
association may through its board of |
| 1011 |
administration
adopt reasonable rules and regulations regarding |
| 1012 |
the frequency and
manner of responding to unit owner inquiries, |
| 1013 |
one of which may be
that the association is only obligated to |
| 1014 |
respond to one
written inquiry per unit in any given 30-day |
| 1015 |
period. In such a
case, any additional inquiry or inquiries must |
| 1016 |
be responded to in
the subsequent 30-day period, or periods, as |
| 1017 |
applicable. |
| 1018 |
(b) Quorum;
voting requirements; proxies.-- |
| 1019 |
1. Unless
a lower number is provided in the bylaws, the |
| 1020 |
percentage of voting interests required
to constitute a quorum |
| 1021 |
at a meeting of the members shall be a
majority of the voting |
| 1022 |
interests. Unless otherwise provided in
this chapter or in the |
| 1023 |
declaration, articles of incorporation,
or bylaws, and except as |
| 1024 |
provided in subparagraph (d)3.,
decisions shall be made by |
| 1025 |
owners of a majority of the voting
interests represented at a |
| 1026 |
meeting at which a quorum is present. |
| 1027 |
2. Except
as specifically otherwise provided herein, after |
| 1028 |
January 1, 1992, unit owners may not
vote by general proxy, but |
| 1029 |
may vote by limited proxies
substantially conforming to a |
| 1030 |
limited proxy form adopted by the
division. Limited proxies and |
| 1031 |
general proxies may be used to establish
a quorum. Limited |
| 1032 |
proxies shall be used for votes taken to
waive or reduce |
| 1033 |
reserves in accordance with subparagraph
(f)2.; for votes taken |
| 1034 |
to waive the financial reporting
requirements of s. 718.111(13); |
| 1035 |
for votes taken to amend the declaration
pursuant to s. 718.110; |
| 1036 |
for votes taken to amend the articles of
incorporation or bylaws |
| 1037 |
pursuant to this section; and for any
other matter for which |
| 1038 |
this chapter requires or permits a vote
of the unit owners. |
| 1039 |
Except as
provided in paragraph (d), after January 1, 1992, No |
| 1040 |
proxy, limited or general, shall be used
in the election of |
| 1041 |
board members. General proxies may be
used for other matters for |
| 1042 |
which limited proxies are not required,
and may also be used in |
| 1043 |
voting for nonsubstantive changes to
items for which a limited |
| 1044 |
proxy is required and given.
Notwithstanding the provisions of |
| 1045 |
this subparagraph, unit owners may vote
in person at unit owner |
| 1046 |
meetings. Nothing contained herein shall
limit the use of |
| 1047 |
general proxies or require the use of
limited proxies for any |
| 1048 |
agenda item or election at any meeting
of a timeshare |
| 1049 |
condominium association. |
| 1050 |
3. Any
proxy given shall be effective only for the |
| 1051 |
specific meeting for which originally
given and any lawfully |
| 1052 |
adjourned meetings thereof. In no event
shall any proxy be valid |
| 1053 |
for a period longer than 90 days after
the date of the first |
| 1054 |
meeting for which it was given. Every
proxy is revocable at any |
| 1055 |
time at the pleasure of the unit owner
executing it. |
| 1056 |
4. A
member of the board of administration or a committee |
| 1057 |
may submit in writing his or her
agreement or disagreement with |
| 1058 |
any action taken at a meeting that the
member did not attend. |
| 1059 |
This agreement or disagreement may not
be used as a vote for or |
| 1060 |
against the action taken and may not be
used for the purposes of |
| 1061 |
creating a quorum. |
| 1062 |
5. When
any of the board or committee members meet by |
| 1063 |
telephone conference, those board or
committee members attending |
| 1064 |
by telephone conference may be counted
toward obtaining a quorum |
| 1065 |
and may vote by telephone. A telephone
speaker must be used so |
| 1066 |
that the conversation of those board or
committee members |
| 1067 |
attending by telephone may be heard by
the board or committee |
| 1068 |
members attending in person as well as
by any unit owners |
| 1069 |
present at a meeting. |
| 1070 |
(c) Board
of administration meetings.--Meetings of the |
| 1071 |
board of administration at which a
quorum of the members is |
| 1072 |
present shall be open to all unit
owners. No action shall be |
| 1073 |
taken or resolution
made without an open meeting of the board of |
| 1074 |
administration. The
board of administration shall address agenda |
| 1075 |
items proposed by a
petition of 20 percent of the unit owners. |
| 1076 |
Unless otherwise
provided in the bylaws, boards of |
| 1077 |
administration shall
use rules of parliamentary procedure in |
| 1078 |
conducting all
association meetings and business. A unit owner's |
| 1079 |
facsimile signature
shall constitute the unit owner's original |
| 1080 |
signature in any
matter under this chapter that requires the |
| 1081 |
unit owner's
signature. Correspondence from the board of |
| 1082 |
administration to
unit owners shall be accomplished by the same |
| 1083 |
delivery method used
by the unit owner except as otherwise |
| 1084 |
provided in
this paragraph. Any unit owner may tape record or |
| 1085 |
videotape meetings of the board of
administration. The right to |
| 1086 |
attend such meetings includes the right
to speak at such |
| 1087 |
meetings with reference to all
designated agenda items. The |
| 1088 |
division shall adopt reasonable rules
governing the tape |
| 1089 |
recording and videotaping of the
meeting. The association may |
| 1090 |
adopt written reasonable rules governing
the frequency, |
| 1091 |
duration, and manner of unit owner
statements. Adequate notice |
| 1092 |
of all meetings, which notice shall
specifically incorporate an |
| 1093 |
identification of agenda items, shall be
posted conspicuously on |
| 1094 |
the condominium property at least 48
continuous hours preceding |
| 1095 |
the meeting except in an emergency. Any
item not included on the |
| 1096 |
notice may be taken up on an emergency
basis by at least a |
| 1097 |
majority plus one of the members of the
board or by a petition |
| 1098 |
of 20 percent
of the unit owners. Such emergency action shall be |
| 1099 |
noticed and ratified at the next regular
meeting of the board. |
| 1100 |
However, written notice of any meeting
at which nonemergency |
| 1101 |
special assessments, or at which
amendment to rules regarding |
| 1102 |
unit use, will be considered shall be
mailed, delivered, or |
| 1103 |
electronically transmitted to the unit
owners and posted |
| 1104 |
conspicuously on the condominium
property not less than 14 days |
| 1105 |
prior to the meeting. Evidence of
compliance with this 14-day |
| 1106 |
notice shall be made by an affidavit
executed by the person |
| 1107 |
providing the notice and filed among the
official records of the |
| 1108 |
association. Upon notice to the unit
owners, the board shall by |
| 1109 |
duly adopted rule designate a specific
location on the |
| 1110 |
condominium property or association
property upon which all |
| 1111 |
notices of board meetings shall be
posted. If there is no |
| 1112 |
condominium property or association
property upon which notices |
| 1113 |
can be posted, notices of board meetings
shall be mailed, |
| 1114 |
delivered, or electronically transmitted
at least 14 days before |
| 1115 |
the meeting to the owner of each unit.
In lieu of or in addition |
| 1116 |
to the physical posting of notice of any
meeting of the board of |
| 1117 |
administration on the condominium
property, the association may, |
| 1118 |
by reasonable rule, adopt a procedure
for conspicuously posting |
| 1119 |
and repeatedly broadcasting the notice
and the agenda on a |
| 1120 |
closed-circuit cable television system
serving the condominium |
| 1121 |
association. However, if broadcast
notice is used in lieu of a |
| 1122 |
notice posted physically on the
condominium property, the notice |
| 1123 |
and agenda must be broadcast at least
four times every broadcast |
| 1124 |
hour of each day that a posted notice is
otherwise required |
| 1125 |
under this section. When broadcast
notice is provided, the |
| 1126 |
notice and agenda must be broadcast in a
manner and for a |
| 1127 |
sufficient continuous length of time so
as to allow an average |
| 1128 |
reader to observe the notice and read
and comprehend the entire |
| 1129 |
content of the notice and the agenda.
Notice of any meeting in |
| 1130 |
which regular or
special assessments against unit owners are to |
| 1131 |
be considered for any reason shall
specifically state contain
a |
| 1132 |
statement
that assessments will be considered and the nature, |
| 1133 |
cost, and
breakdown of any such assessments. Meetings of a |
| 1134 |
committee to take final action on behalf
of the board or make |
| 1135 |
recommendations to the board regarding
the association budget |
| 1136 |
are subject to the provisions of this
paragraph. Meetings of a |
| 1137 |
committee that does not take final
action on behalf of the board |
| 1138 |
or make recommendations to the board
regarding the association |
| 1139 |
budget are subject to the provisions of
this section, unless |
| 1140 |
those meetings are exempted from this
section by the bylaws of |
| 1141 |
the association. Notwithstanding any
other law, the requirement |
| 1142 |
that board meetings and committee
meetings be open to the unit |
| 1143 |
owners is inapplicable to meetings
between the board or a |
| 1144 |
committee and the association's
attorney, with respect to |
| 1145 |
proposed or pending litigation, when the
meeting is held for the |
| 1146 |
purpose of seeking or rendering legal
advice. |
| 1147 |
(d) Unit
owner meetings.-- |
| 1148 |
1. There
shall be an annual meeting of the unit owners. |
| 1149 |
Unless the bylaws provide otherwise, a
vacancy on the board |
| 1150 |
caused by the expiration of a director's
term shall be filled by |
| 1151 |
electing a new board member, and the
election shall be by secret |
| 1152 |
ballot; however, if the number of
vacancies equals or exceeds |
| 1153 |
the number of candidates, no election is
required. If there is |
| 1154 |
no provision in the bylaws for terms of
the members of the |
| 1155 |
board, the terms of all members of the
board shall expire upon |
| 1156 |
the election of their successors at the
annual meeting. Any unit |
| 1157 |
owner desiring to be a candidate for
board membership shall |
| 1158 |
comply with subparagraph 3. The
only prohibition against |
| 1159 |
eligibility for
board membership shall be for a person who has |
| 1160 |
been convicted of any felony by any
court of record in the |
| 1161 |
United States and who has not had his or
her right to vote |
| 1162 |
restored pursuant to law in the
jurisdiction of his or her |
| 1163 |
residence is
not eligible for board membership. The validity of |
| 1164 |
an action by the board is not affected
if it is later determined |
| 1165 |
that a member of the board is ineligible
for board membership |
| 1166 |
due to having been convicted of a
felony. |
| 1167 |
2. The
bylaws shall provide the method of calling meetings |
| 1168 |
of unit owners, including annual
meetings. Written notice, which |
| 1169 |
notice must include an agenda, shall be
mailed, hand delivered, |
| 1170 |
or electronically transmitted to each
unit owner at least 14 |
| 1171 |
days prior to the annual meeting and
shall be posted in a |
| 1172 |
conspicuous place on the condominium
property at least 14 |
| 1173 |
continuous days preceding the annual
meeting. Upon notice to the |
| 1174 |
unit owners, the board shall by duly
adopted rule designate a |
| 1175 |
specific location on the condominium
property or association |
| 1176 |
property upon which all notices of unit
owner meetings shall be |
| 1177 |
posted; however, if there is no
condominium property or |
| 1178 |
association property upon which notices
can be posted, this |
| 1179 |
requirement does not apply. In lieu of
or in addition to the |
| 1180 |
physical posting of notice of any
meeting of the unit owners on |
| 1181 |
the condominium property, the
association may, by reasonable |
| 1182 |
rule, adopt a procedure for
conspicuously posting and repeatedly |
| 1183 |
broadcasting the notice and the agenda
on a closed-circuit cable |
| 1184 |
television system serving the
condominium association. However, |
| 1185 |
if broadcast notice is used in lieu of a
notice posted |
| 1186 |
physically on the condominium property,
the notice and agenda |
| 1187 |
must be broadcast at least four times
every broadcast hour of |
| 1188 |
each day that a posted notice is
otherwise required under this |
| 1189 |
section. When broadcast notice is
provided, the notice and |
| 1190 |
agenda must be broadcast in a manner and
for a sufficient |
| 1191 |
continuous length of time so as to allow
an average reader to |
| 1192 |
observe the notice and read and
comprehend the entire content of |
| 1193 |
the notice and the agenda. Unless a unit
owner waives in writing |
| 1194 |
the right to receive notice of the
annual meeting, such notice |
| 1195 |
shall be hand delivered, mailed, or
electronically transmitted |
| 1196 |
to each unit owner. Notice for meetings
and notice for all other |
| 1197 |
purposes shall be mailed to each unit
owner at the address last |
| 1198 |
furnished to the association by the unit
owner, or hand |
| 1199 |
delivered to each unit owner. However,
if a unit is owned by |
| 1200 |
more than one person, the association
shall provide notice, for |
| 1201 |
meetings and all other purposes, to that
one address which the |
| 1202 |
developer initially identifies for that
purpose and thereafter |
| 1203 |
as one or more of the owners of the unit
shall so advise the |
| 1204 |
association in writing, or if no address
is given or the owners |
| 1205 |
of the unit do not agree, to the address
provided on the deed of |
| 1206 |
record. An officer of the association,
or the manager or other |
| 1207 |
person providing the
first notice of the association meeting, |
| 1208 |
and the second
notice as provided for in subparagraph 3., shall |
| 1209 |
provide an affidavit or United States
Postal Service certificate |
| 1210 |
of mailing, to be included in the
official records of the |
| 1211 |
association affirming that the notices
were notice was mailed
or |
| 1212 |
hand delivered, in accordance with this
provision. |
| 1213 |
3. The
members of the board shall be elected by written |
| 1214 |
ballot or voting machine. Proxies shall
in no event be used in |
| 1215 |
electing the board, either in general
elections or elections to |
| 1216 |
fill vacancies caused by recall,
resignation, or otherwise, |
| 1217 |
unless otherwise provided in this
chapter. Not less than 60 days |
| 1218 |
before a scheduled election, the
association or its |
| 1219 |
representative
shall mail, deliver, or electronically transmit, |
| 1220 |
whether by separate association mailing
or included in another |
| 1221 |
association mailing, delivery, or
transmission, including |
| 1222 |
regularly published newsletters, to each
unit owner entitled to |
| 1223 |
a vote, a first notice of the date of
the election. Any unit |
| 1224 |
owner or other eligible person desiring
to be a candidate for |
| 1225 |
the board must give written notice to
the association or its |
| 1226 |
representative
not less than 40 days before a scheduled |
| 1227 |
election. Together with the written
notice and agenda as set |
| 1228 |
forth in subparagraph 2., the
association or its representative |
| 1229 |
shall mail, deliver, or electronically
transmit a second notice |
| 1230 |
of the election to all unit owners
entitled to vote therein, |
| 1231 |
together with a ballot which shall list
all candidates. Upon |
| 1232 |
request of a candidate, the association or
its representative |
| 1233 |
shall include an information sheet, no
larger than 81/2 inches |
| 1234 |
by 11 inches, which must be furnished by
the candidate not less |
| 1235 |
than 35 days before the election, to be
included with the |
| 1236 |
mailing, delivery, or transmission of
the ballot, with the costs |
| 1237 |
of mailing, delivery, or electronic
transmission and copying to |
| 1238 |
be borne by the association. The
association or its |
| 1239 |
representative
is not liable for the contents of the information |
| 1240 |
sheets prepared by the candidates. In
order to reduce costs, the |
| 1241 |
association may print
or duplicate the information sheets on |
| 1242 |
both sides of
the paper. The division shall by rule establish |
| 1243 |
voting procedures consistent with the
provisions contained |
| 1244 |
herein, including rules establishing
procedures for giving |
| 1245 |
notice by electronic transmission and
rules providing for the |
| 1246 |
secrecy of ballots. All
ballot envelopes must be placed in a |
| 1247 |
locked or sealed
ballot drop box immediately upon receipt, and |
| 1248 |
the box shall not be
opened in advance of the election meeting. |
| 1249 |
Elections shall be decided by a
plurality of those ballots cast. |
| 1250 |
There shall be no quorum requirement;
however, at least 20 |
| 1251 |
percent of the eligible voters must cast
a ballot in order to |
| 1252 |
have a valid election of members of the
board. No unit owner |
| 1253 |
shall permit any other person to vote
his or her ballot, and any |
| 1254 |
such ballots improperly cast shall be
deemed invalid, provided |
| 1255 |
any unit owner who violates this
provision may be fined by the |
| 1256 |
association in accordance with s.
718.303. A unit owner who |
| 1257 |
needs assistance in casting the ballot
for the reasons stated in |
| 1258 |
s. 101.051 may obtain assistance in
casting the ballot. The |
| 1259 |
regular election shall occur on the date
of the annual meeting. |
| 1260 |
The provisions of this subparagraph
shall not apply to timeshare |
| 1261 |
condominium associations.
Notwithstanding the provisions of this |
| 1262 |
subparagraph, an election is not
required unless more candidates |
| 1263 |
file notices of intent to run or are
nominated than board |
| 1264 |
vacancies exist. |
| 1265 |
4. Any
approval by unit owners called for by this chapter |
| 1266 |
or the applicable declaration or bylaws,
including, but not |
| 1267 |
limited to, the approval requirement in
s. 718.111(8), shall be |
| 1268 |
made at a duly noticed meeting of unit
owners and shall be |
| 1269 |
subject to all requirements of this
chapter or the applicable |
| 1270 |
condominium documents relating to unit
owner decisionmaking, |
| 1271 |
except that unit owners may take action
by written agreement, |
| 1272 |
without meetings, on matters for which
action by written |
| 1273 |
agreement without meetings is expressly
allowed by the |
| 1274 |
applicable bylaws or declaration or any
statute that provides |
| 1275 |
for such action. |
| 1276 |
5. Unit
owners may waive notice of specific meetings if |
| 1277 |
allowed by the applicable bylaws or
declaration or any statute. |
| 1278 |
If authorized by the bylaws, notice of
meetings of the board of |
| 1279 |
administration, unit owner meetings,
except unit owner meetings |
| 1280 |
called to recall board members under
paragraph (j), and |
| 1281 |
committee meetings may be given by
electronic transmission to |
| 1282 |
unit owners who consent to receive
notice by electronic |
| 1283 |
transmission. |
| 1284 |
6. Unit
owners shall have the right to participate in |
| 1285 |
meetings of unit owners with reference
to all designated agenda |
| 1286 |
items. However, the association may
adopt reasonable rules |
| 1287 |
governing the frequency, duration, and
manner of unit owner |
| 1288 |
participation. |
| 1289 |
7. Any
unit owner may tape record or videotape a meeting |
| 1290 |
of the unit owners subject to reasonable
rules adopted by the |
| 1291 |
division. |
| 1292 |
8. Unless
otherwise provided in the bylaws, any vacancy |
| 1293 |
occurring on the board before the
expiration of a term may be |
| 1294 |
filled by the affirmative vote of the
majority of the remaining |
| 1295 |
directors, even if the remaining
directors constitute less than |
| 1296 |
a quorum, or by the sole remaining
director. In the alternative, |
| 1297 |
a board may hold an election to fill the
vacancy, in which case |
| 1298 |
the election procedures must conform to
the requirements of |
| 1299 |
subparagraph 3. unless
the association has opted out of the |
| 1300 |
statutory election
process, in which case the bylaws of the |
| 1301 |
association
control. Unless otherwise provided in the bylaws, a |
| 1302 |
board member appointed or elected under
this section shall fill |
| 1303 |
the vacancy for the unexpired term of
the seat being filled. |
| 1304 |
Filling vacancies created by recall is
governed by paragraph (j) |
| 1305 |
and rules adopted by the division. |
| 1306 |
9. Unit
owners shall have the right to have items placed |
| 1307 |
on the agenda of the
annual meeting and voted upon if a written |
| 1308 |
request is made to
the board of administration by 20 percent or |
| 1309 |
more of all voting
interests at least 90 days before the date of |
| 1310 |
the annual meeting. |
| 1311 |
|
| 1312 |
Notwithstanding
subparagraphs (b)2. and (d)3., an association |
| 1313 |
may, by the
affirmative vote of a majority of the total voting |
| 1314 |
interests, provide
for different voting and election procedures |
| 1315 |
in its bylaws, which
vote may be by a proxy specifically |
| 1316 |
delineating the
different voting and election procedures. The |
| 1317 |
different voting and
election procedures may provide for |
| 1318 |
elections to be
conducted by limited or general proxy. |
| 1319 |
(e) Budget
meeting.-- |
| 1320 |
1. Any
meeting at which a proposed annual budget of an |
| 1321 |
association will be considered by the
board or unit owners shall |
| 1322 |
be open to all unit owners. At least 14
days prior to such a |
| 1323 |
meeting, the board shall hand deliver to
each unit owner, mail |
| 1324 |
to each unit owner at the address last
furnished to the |
| 1325 |
association by the unit owner, or
electronically transmit to the |
| 1326 |
location furnished by the unit owner for
that purpose a notice |
| 1327 |
of such meeting and a copy of the
proposed annual budget. An |
| 1328 |
officer or manager of the association,
or other person providing |
| 1329 |
notice of such meeting, shall execute an
affidavit evidencing |
| 1330 |
compliance with such notice requirement,
and such affidavit |
| 1331 |
shall be filed among the official
records of the association. |
| 1332 |
2.a. If
a board adopts in any fiscal year an annual budget |
| 1333 |
which requires assessments against unit
owners which exceed 115 |
| 1334 |
percent of assessments for the preceding
fiscal year, the board |
| 1335 |
shall conduct a special meeting of the
unit owners to consider a |
| 1336 |
substitute budget if the board receives,
within 21 days after |
| 1337 |
adoption of the annual budget, a written
request for a special |
| 1338 |
meeting from at least 10 percent of all
voting interests. The |
| 1339 |
special meeting shall be conducted
within 60 days after adoption |
| 1340 |
of the annual budget. At least 14 days
prior to such special |
| 1341 |
meeting, the board shall hand deliver to
each unit owner, or |
| 1342 |
mail to each unit owner at the address
last furnished to the |
| 1343 |
association, a notice of the meeting. An
officer or manager of |
| 1344 |
the association, or other person
providing notice of such |
| 1345 |
meeting shall execute an affidavit
evidencing compliance with |
| 1346 |
this notice requirement, and such
affidavit shall be filed among |
| 1347 |
the official records of the association.
Unit owners may |
| 1348 |
consider and adopt a substitute budget
at the special meeting. A |
| 1349 |
substitute budget is adopted if approved
by a majority of all |
| 1350 |
voting interests unless the bylaws
require adoption by a greater |
| 1351 |
percentage of voting interests. If there
is not a quorum at the |
| 1352 |
special meeting or a substitute budget
is not adopted, the |
| 1353 |
annual budget previously adopted by the
board shall take effect |
| 1354 |
as scheduled. |
| 1355 |
b. Any
determination of whether assessments exceed 115 |
| 1356 |
percent of assessments for the prior
fiscal year shall exclude |
| 1357 |
any authorized provision for reasonable
reserves for repair or |
| 1358 |
replacement of the condominium property,
anticipated expenses of |
| 1359 |
the association which the board does not
expect to be incurred |
| 1360 |
on a regular or annual basis, or
assessments for betterments to |
| 1361 |
the condominium property. |
| 1362 |
c. If
the developer controls the board, assessments shall |
| 1363 |
not exceed 115 percent of assessments
for the prior fiscal year |
| 1364 |
unless approved by a majority of all
voting interests. |
| 1365 |
(f) Annual
budget.-- |
| 1366 |
1. The
association shall prepare an annual budget of |
| 1367 |
estimated revenues
and expenses. The adopted budget of the prior |
| 1368 |
fiscal year shall
remain in effect until the association has |
| 1369 |
adopted a new
budget for the current fiscal year. The proposed |
| 1370 |
annual budget of estimated
revenues and common
expenses shall be |
| 1371 |
detailed and shall show the amounts
budgeted by accounts and |
| 1372 |
expense classifications, including, if
applicable, but not |
| 1373 |
limited to, those expenses listed in s.
718.504(21). A |
| 1374 |
multicondominium association shall adopt
a separate budget of |
| 1375 |
common expenses for each condominium the
association operates |
| 1376 |
and shall adopt a separate budget of
common expenses for the |
| 1377 |
association. In addition, if the
association maintains limited |
| 1378 |
common elements with the cost to be
shared only by those |
| 1379 |
entitled to use the limited common
elements as provided for in |
| 1380 |
s. 718.113(1), the budget or a schedule
attached thereto shall |
| 1381 |
show amounts budgeted therefor. If,
after turnover of control of |
| 1382 |
the association to the unit owners, any
of the expenses listed |
| 1383 |
in s. 718.504(21) are not applicable,
they need not be listed. |
| 1384 |
2. In
addition to annual operating expenses, the budget |
| 1385 |
shall include reserve accounts for
capital expenditures and |
| 1386 |
deferred maintenance. These accounts
shall include, but are not |
| 1387 |
limited to, structural
repairs, roof replacement, building |
| 1388 |
painting, and pavement resurfacing,
regardless of the amount of |
| 1389 |
deferred maintenance expense or
replacement cost, and for any |
| 1390 |
other item for which the deferred
maintenance expense or |
| 1391 |
replacement cost exceeds $10,000. The
amount to be reserved |
| 1392 |
shall be computed by means of a formula
which is based upon |
| 1393 |
estimated remaining useful life and
estimated replacement cost |
| 1394 |
or deferred maintenance expense of each
reserve item. The |
| 1395 |
association may adjust replacement
reserve assessments annually |
| 1396 |
to take into account any changes in
estimates or extension of |
| 1397 |
the useful life of a reserve item caused
by deferred |
| 1398 |
maintenance. This subsection does not
apply to an adopted budget |
| 1399 |
in which the members of an association
have determined, by a |
| 1400 |
majority vote at a duly called meeting
of the association, to |
| 1401 |
provide no reserves or less reserves
than required by this |
| 1402 |
subsection. However, prior to turnover
of control of an |
| 1403 |
association by a developer to unit
owners other than a developer |
| 1404 |
pursuant to s. 718.301, the developer
may vote to waive the |
| 1405 |
reserves or reduce the funding of
reserves for the first 2 |
| 1406 |
fiscal years of the association's
operation, beginning with the |
| 1407 |
fiscal year in which the initial
declaration is recorded, after |
| 1408 |
which time reserves may be waived or
reduced only upon the vote |
| 1409 |
of a majority of all nondeveloper voting
interests voting in |
| 1410 |
person or by limited proxy at a duly
called meeting of the |
| 1411 |
association. If a meeting of the unit
owners has been called to |
| 1412 |
determine whether to waive or reduce the
funding of reserves, |
| 1413 |
and no such result is achieved or a
quorum is not attained, the |
| 1414 |
reserves as included in the budget shall
go into effect. After |
| 1415 |
the turnover, the developer may vote its
voting interest to |
| 1416 |
waive or reduce the funding of reserves. |
| 1417 |
3. Reserve
funds and any interest accruing thereon shall |
| 1418 |
remain in the reserve account or
accounts, and shall be used |
| 1419 |
only for authorized reserve expenditures
unless their use for |
| 1420 |
other purposes is approved in advance by
a majority vote at a |
| 1421 |
duly called meeting of the association.
Prior to turnover of |
| 1422 |
control of an association by a developer
to unit owners other |
| 1423 |
than the developer pursuant to s.
718.301, the developer- |
| 1424 |
controlled association shall not vote to
use reserves for |
| 1425 |
purposes other than that for which they
were intended without |
| 1426 |
the approval of a majority of all
nondeveloper voting interests, |
| 1427 |
voting in person or by limited proxy at
a duly called meeting of |
| 1428 |
the association. |
| 1429 |
4. The
only voting interests which are eligible to vote on |
| 1430 |
questions that involve waiving or
reducing the funding of |
| 1431 |
reserves, or using existing reserve
funds for purposes other |
| 1432 |
than purposes for which the reserves
were intended, are the |
| 1433 |
voting interests of the units subject to
assessment to fund the |
| 1434 |
reserves in question. The
face of all ballots that involve |
| 1435 |
questions relating to
waiving or reducing the funding of |
| 1436 |
reserves, or using
existing reserve funds for purposes other |
| 1437 |
than purposes for
which the reserves were intended, shall |
| 1438 |
contain the following
statement in capitalized, bold letters in |
| 1439 |
a font size larger
than any other used on the face of the |
| 1440 |
ballot: WAIVING OF
RESERVES, IN WHOLE OR IN PART, OR ALLOWING |
| 1441 |
ALTERNATE USES OF
EXISTING RESERVES, MAY RESULT IN UNIT OWNER |
| 1442 |
LIABILITY FOR PAYMENT
OF UNANTICIPATED SPECIAL ASSESSMENTS |
| 1443 |
REGARDING THOSE
RESERVE ITEMS. |
| 1444 |
5. A
vote to provide for no reserves or a percentage of |
| 1445 |
reserves shall be
made at the annual meeting of the unit owners |
| 1446 |
called under
paragraph (d). The division shall adopt the form |
| 1447 |
for the ballot for no
reserves and a percentage of reserves. |
| 1448 |
6. Notwithstanding
subparagraph 3., the association after |
| 1449 |
turnover of control
of the association may, in case of a |
| 1450 |
catastrophic event,
use reserve funds for nonscheduled purposes |
| 1451 |
to mitigate further
damage to units or common elements or to |
| 1452 |
make the condominium
accessible for repairs. |
| 1453 |
7. Except
in cases of emergency, or unless otherwise |
| 1454 |
provided for in the
bylaws or approved by a vote of a majority |
| 1455 |
of the unit owners in
advance, the board of administration may |
| 1456 |
not apply for or
accept a loan or line of credit in an amount |
| 1457 |
that exceeds 10
percent of the association's annual budget for |
| 1458 |
the current year. |
| 1459 |
(g) Assessments.--After
the declaration has been recorded, |
| 1460 |
and until such time
as the association has been created, all |
| 1461 |
common expenses shall
be paid by the developer. Assessments |
| 1462 |
shall be levied in an
amount determined by the adopted budget or |
| 1463 |
an authorized
special assessment. The manner of collecting from |
| 1464 |
the unit owners their shares of the
common expenses shall be |
| 1465 |
stated in the bylaws. Assessments shall
be made against units on |
| 1466 |
a
quarter-annual, or more frequent, basis not
less frequently |
| 1467 |
than quarterly
in an amount which is not less than that required |
| 1468 |
to provide funds in advance for payment
of all of the |
| 1469 |
anticipated current operating expenses
and for all of the unpaid |
| 1470 |
operating expenses previously incurred.
Nothing in this |
| 1471 |
paragraph shall preclude the right of an
association to |
| 1472 |
accelerate assessments of an owner
delinquent in payment of |
| 1473 |
common expenses against
whom a lien has been filed. Accelerated |
| 1474 |
assessments shall be due and payable after
on the date the claim |
| 1475 |
of lien is filed. Such accelerated
assessments shall include the |
| 1476 |
amounts due for the remainder of the
budget year in which the |
| 1477 |
claim of lien was filed. |
| 1478 |
(h) Amendment
of bylaws.-- |
| 1479 |
1. The
method by which the bylaws may be amended |
| 1480 |
consistent with the provisions of this
chapter shall be stated. |
| 1481 |
If the bylaws fail to provide a method
of amendment, the bylaws |
| 1482 |
may be amended if the amendment is
approved by the owners of not |
| 1483 |
less than two-thirds of the voting
interests. |
| 1484 |
2. No
bylaw shall be revised or amended by reference to |
| 1485 |
its title or number only. Proposals to
amend existing bylaws |
| 1486 |
shall contain the full text of the
bylaws to be amended; new |
| 1487 |
words shall be inserted in the text
underlined, and words to be |
| 1488 |
deleted shall be lined through with
hyphens. However, if the |
| 1489 |
proposed change is so extensive that
this procedure would |
| 1490 |
hinder, rather than assist, the
understanding of the proposed |
| 1491 |
amendment, it is not necessary to use
underlining and hyphens as |
| 1492 |
indicators of words added or deleted,
but, instead, a notation |
| 1493 |
must be inserted immediately preceding
the proposed amendment in |
| 1494 |
substantially the following language:
"Substantial rewording of |
| 1495 |
bylaw. See bylaw _____ for present
text." |
| 1496 |
3. Nonmaterial
errors or omissions in the bylaw process |
| 1497 |
will not invalidate an otherwise
properly promulgated amendment. |
| 1498 |
(i) Transfer
fees.--No charge shall be made by the |
| 1499 |
association or any body thereof in
connection with the sale, |
| 1500 |
mortgage, lease, sublease, or other
transfer of a unit unless |
| 1501 |
the association is required to approve
such transfer and a fee |
| 1502 |
for such approval is provided for in the
declaration, articles, |
| 1503 |
or bylaws. Any such fee may be preset,
but in no event may such |
| 1504 |
fee exceed $100 per applicant other than
husband/wife or |
| 1505 |
parent/dependent child, which are
considered one applicant. |
| 1506 |
However, if the lease or sublease is a
renewal of a lease or |
| 1507 |
sublease with the same lessee or
sublessee, no charge shall be |
| 1508 |
made. The foregoing notwithstanding, an
association may, if the |
| 1509 |
authority to do so appears in the
declaration or bylaws, require |
| 1510 |
that a prospective lessee place a
security deposit, in an amount |
| 1511 |
not to exceed the equivalent of 1
month's rent, into an escrow |
| 1512 |
account maintained by the association.
The security deposit |
| 1513 |
shall protect against damages to the
common elements or |
| 1514 |
association property. Payment of
interest, claims against the |
| 1515 |
deposit, refunds, and disputes under
this paragraph shall be |
| 1516 |
handled in the same fashion as provided
in part II of chapter |
| 1517 |
83. |
| 1518 |
(j) Recall
of board members.--Subject to the provisions of |
| 1519 |
s. 718.301, any member of the board of
administration may be |
| 1520 |
recalled and removed from office with or
without cause by the |
| 1521 |
vote or agreement in writing by a
majority of all the voting |
| 1522 |
interests. A special meeting of the unit
owners to recall a |
| 1523 |
member or members of the board of
administration may be called |
| 1524 |
by 10 percent of the voting interests
giving notice of the |
| 1525 |
meeting as required for a meeting of
unit owners, and the notice |
| 1526 |
shall state the purpose of the meeting.
Electronic transmission |
| 1527 |
may not be used as a method of giving
notice of a meeting called |
| 1528 |
in whole or in part for this purpose. |
| 1529 |
1. If
the recall is approved by a majority of all voting |
| 1530 |
interests by a vote at a meeting, the
recall will be effective |
| 1531 |
as provided herein.
The board shall duly notice and hold a board |
| 1532 |
meeting within 5 full
business days of the adjournment of the |
| 1533 |
unit owner meeting to
recall one or more board members. At the |
| 1534 |
meeting, the board
shall either certify the recall, in which |
| 1535 |
case such member or
members shall be recalled effective |
| 1536 |
immediately, and the
member or members recalled shall turn over |
| 1537 |
to the board within 5 full business days
any and all records and |
| 1538 |
property of the association in their
possession, or shall |
| 1539 |
proceed as set forth
in subparagraph 3. |
| 1540 |
2. Beginning
January 1, 2008, if the proposed recall is by |
| 1541 |
an agreement in writing by a majority of
all voting interests, |
| 1542 |
the agreement in writing or a copy
thereof shall be served on |
| 1543 |
the association and
the ombudsman appointed pursuant to s. |
| 1544 |
718.5011, together
with a current copy of the unit owner roster, |
| 1545 |
by certified
mail or by
personal service, Monday through Friday, |
| 1546 |
excluding legal
holidays, between the hours of 8:00 a.m. and |
| 1547 |
5:00 p.m.,
in the manner authorized by chapter 48 and the |
| 1548 |
Florida Rules of Civil Procedure. The
board of administration or |
| 1549 |
any board member
named in the agreement may submit rebuttal |
| 1550 |
argument and
supporting evidence to the ombudsman within 5 |
| 1551 |
business days from
the date of service of the agreement. The |
| 1552 |
ombudsman shall
certify or not certify the recall within 10 |
| 1553 |
business days after
receipt of the written agreement and the |
| 1554 |
current unit
owner roster. If the ombudsman determines to The |
| 1555 |
board of
administration shall duly notice and hold a meeting of |
| 1556 |
the board within 5
full business days after receipt of the |
| 1557 |
agreement in writing.
At the meeting, the board shall either |
| 1558 |
certify the written agreement to recall
a member or members of |
| 1559 |
the board, the
in which case such member
or members shall be |
| 1560 |
recalled effective immediately and shall
turn over to the board |
| 1561 |
within 5 full business days any and all
records and property of |
| 1562 |
the association in their possession,
or proceed as described in |
| 1563 |
subparagraph 3. |
| 1564 |
3. If
the ombudsman board
determines not to certify the |
| 1565 |
written agreement to recall a member or
members of the board, or |
| 1566 |
does not
certify the recall by a vote at a meeting, the |
| 1567 |
ombudsman
board shall, within 5 full
business days after the |
| 1568 |
decision, notify the
member or members of the board and the |
| 1569 |
board president of
the reasons for not certifying the agreement, |
| 1570 |
and the unit owners
shall be afforded an additional period of 5 |
| 1571 |
business days to
correct the defect or deficiency. The board or |
| 1572 |
members named in the
agreement shall have 5 business days to |
| 1573 |
submit rebuttal
argument and supporting evidence, and the |
| 1574 |
ombudsman shall have
5 business days thereafter to render a |
| 1575 |
decision. If the
ombudsman certifies the corrected or amended |
| 1576 |
written recall
agreement to recall a member or members of the |
| 1577 |
board, such member or
members shall be recalled effective |
| 1578 |
immediately and shall
turn over to the board within 5 full |
| 1579 |
business days any and
all records and property of the |
| 1580 |
association in their
possession. If the ombudsman does not |
| 1581 |
certify the recall as
to any or all board members, the board |
| 1582 |
member or members not
certified by the corrected or amended |
| 1583 |
written recall
agreement shall remain in office for the |
| 1584 |
remainder of their
unexpired terms or until properly recalled or |
| 1585 |
resignation
otherwise occurs meeting, file
with the division a |
| 1586 |
petition for
arbitration pursuant to the procedures in s. |
| 1587 |
718.1255. For the
purposes of this section, the unit owners who |
| 1588 |
voted at the meeting
or who executed the agreement in writing |
| 1589 |
shall constitute one
party under the petition for arbitration. |
| 1590 |
If the arbitrator
certifies the recall as to any member or |
| 1591 |
members of the board,
the recall will be effective upon mailing |
| 1592 |
of the final order of
arbitration to the association. If the |
| 1593 |
association fails to
comply with the order of the arbitrator, |
| 1594 |
the division may take
action pursuant to s. 718.501. Any member |
| 1595 |
or members so
recalled shall deliver to the board any and all |
| 1596 |
records of the
association in their possession within 5 full |
| 1597 |
business days of the
effective date of the recall. |
| 1598 |
4. If
the board fails to duly notice and hold a board |
| 1599 |
meeting within 5 full
business days of service of an agreement |
| 1600 |
in writing or within
5 full business days of the adjournment of |
| 1601 |
the unit owner recall
meeting, the recall shall be deemed |
| 1602 |
effective and the
board members so recalled shall immediately |
| 1603 |
turn over to the
board any and all records and property of the |
| 1604 |
association. |
| 1605 |
4.5. If
a vacancy occurs on the board as a result of a |
| 1606 |
recall and less than a majority of the
board members are |
| 1607 |
removed, the vacancy may be filled by
the affirmative vote of a |
| 1608 |
majority of the remaining directors,
notwithstanding any |
| 1609 |
provision to the contrary contained in
this subsection. If |
| 1610 |
vacancies occur on the board as a result
of a recall and a |
| 1611 |
majority or more of the board members
are removed, the vacancies |
| 1612 |
shall be filled in accordance with
procedural rules to be |
| 1613 |
adopted by the division, which rules
need not be consistent with |
| 1614 |
this subsection. The rules must provide
procedures governing the |
| 1615 |
conduct of the recall election as well
as the operation of the |
| 1616 |
association during the period after a
recall but prior to the |
| 1617 |
recall election. |
| 1618 |
(k) Arbitration.--There
shall be a provision for mandatory |
| 1619 |
nonbinding
arbitration as provided for in s. 718.1255. |
| 1620 |
(k)(l) Certificate
of compliance.--There shall be a |
| 1621 |
provision that a certificate of
compliance from a licensed |
| 1622 |
electrical contractor or electrician may
be accepted by the |
| 1623 |
association's board as evidence of
compliance of the condominium |
| 1624 |
units with the applicable fire and life
safety code. |
| 1625 |
Notwithstanding the provisions of
chapter 633 or of any other |
| 1626 |
code, statute, ordinance, administrative
rule, or regulation, or |
| 1627 |
any interpretation of the foregoing, an
association, |
| 1628 |
condominium, or unit owner is not
obligated to retrofit the |
| 1629 |
common elements or units of a
residential condominium with a |
| 1630 |
fire sprinkler system or other
engineered lifesafety system in a |
| 1631 |
building that has been certified for
occupancy by the applicable |
| 1632 |
governmental entity, if the unit owners
have voted to forego |
| 1633 |
such retrofitting and engineered
lifesafety system by the |
| 1634 |
affirmative vote of two-thirds of all
voting interests in the |
| 1635 |
affected condominium. However, a
condominium association may not |
| 1636 |
vote to forego the retrofitting with a
fire sprinkler system of |
| 1637 |
common areas in a high-rise building.
For purposes of this |
| 1638 |
subsection, the term "high-rise
building" means a building that |
| 1639 |
is greater than 75 feet in height where
the building height is |
| 1640 |
measured from the lowest level of fire
department access to the |
| 1641 |
floor of the highest occupiable story.
For purposes of this |
| 1642 |
subsection, the term "common
areas" means any enclosed hallway, |
| 1643 |
corridor, lobby, stairwell, or entryway.
In no event shall the |
| 1644 |
local authority having jurisdiction
require completion of |
| 1645 |
retrofitting of common areas with a
sprinkler system before the |
| 1646 |
end of 2014. |
| 1647 |
1. A
vote to forego retrofitting may be obtained by |
| 1648 |
limited proxy or by a ballot personally
cast at a duly called |
| 1649 |
membership meeting, or by execution of a
written consent by the |
| 1650 |
member, and shall be effective upon the
recording of a |
| 1651 |
certificate attesting to such vote in
the public records of the |
| 1652 |
county where the condominium is located.
The association shall |
| 1653 |
mail, hand deliver, or electronically
transmit to each unit |
| 1654 |
owner written notice at least 14 days
prior to such membership |
| 1655 |
meeting in which the vote to forego
retrofitting of the required |
| 1656 |
fire sprinkler system is to take place.
Within 30 days after the |
| 1657 |
association's opt-out vote, notice of
the results of the opt-out |
| 1658 |
vote shall be mailed, hand delivered, or
electronically |
| 1659 |
transmitted to all unit owners. Evidence
of compliance with this |
| 1660 |
30-day notice shall be made by an
affidavit executed by the |
| 1661 |
person providing the notice and filed
among the official records |
| 1662 |
of the association. After such notice is
provided to each owner, |
| 1663 |
a copy of such notice shall be provided
by the current owner to |
| 1664 |
a new owner prior to closing and shall
be provided by a unit |
| 1665 |
owner to a renter prior to signing a
lease. |
| 1666 |
2. As
part of the information collected annually from |
| 1667 |
condominiums, the division shall require
condominium |
| 1668 |
associations to report the membership
vote and recording of a |
| 1669 |
certificate under this subsection and,
if retrofitting has been |
| 1670 |
undertaken, the per-unit cost of such
work. The division shall |
| 1671 |
annually report to the Division of State
Fire Marshal of the |
| 1672 |
Department of Financial Services the
number of condominiums that |
| 1673 |
have elected to forego retrofitting. |
| 1674 |
(l)(m) Common
elements; limited power to convey.-- |
| 1675 |
1. With
respect to condominiums created on or after |
| 1676 |
October 1, 1994, the bylaws shall
include a provision granting |
| 1677 |
the association a limited power to
convey a portion of the |
| 1678 |
common elements to a condemning
authority for the purpose of |
| 1679 |
providing utility easements,
right-of-way expansion, or other |
| 1680 |
public purposes, whether negotiated or
as a result of eminent |
| 1681 |
domain proceedings. |
| 1682 |
2. In
any case where the bylaws are silent as to the |
| 1683 |
association's power to convey common
elements as described in |
| 1684 |
subparagraph 1., the bylaws shall be
deemed to include the |
| 1685 |
provision described in subparagraph 1. |
| 1686 |
Section
26. Section 718.113, Florida Statutes, is amended |
| 1687 |
to read: |
| 1688 |
718.113 Maintenance;
limitation upon improvement; display |
| 1689 |
of flag; display
of religious decorations; hurricane shutters.-- |
| 1690 |
(1) Maintenance
of the common elements is the |
| 1691 |
responsibility of the association. The
declaration may provide |
| 1692 |
that certain limited common elements
shall be maintained by |
| 1693 |
those entitled to use the limited common
elements or that the |
| 1694 |
association shall provide the
maintenance, either as a common |
| 1695 |
expense or
with the cost shared only by those entitled to use |
| 1696 |
the limited common elements. If the
maintenance is to be by the |
| 1697 |
association at the expense of only those
entitled to use the |
| 1698 |
limited common elements, the declaration
shall describe in |
| 1699 |
detail the method of apportioning such
costs among those |
| 1700 |
entitled to use the limited common
elements, and the association |
| 1701 |
may use the provisions of s. 718.116 to
enforce payment of the |
| 1702 |
shares of such costs by the unit owners
entitled to use the |
| 1703 |
limited common elements. |
| 1704 |
(2)(a) Except
as otherwise provided in this section, there |
| 1705 |
shall be no material alteration or
substantial additions to the |
| 1706 |
common elements or to real property
which is association |
| 1707 |
property, except in a manner provided in
the declaration as |
| 1708 |
originally recorded or as amended under
the procedures provided |
| 1709 |
therein. If the declaration as
originally recorded or as amended |
| 1710 |
under the procedures provided therein
does not specify the |
| 1711 |
procedure for approval of material
alterations or substantial |
| 1712 |
additions, 75 percent of the total
voting interests of the |
| 1713 |
association must approve the alterations
or additions. |
| 1714 |
(b) There
shall not be any material alteration of, or |
| 1715 |
substantial addition to, the common
elements of any condominium |
| 1716 |
operated by a multicondominium
association unless approved in |
| 1717 |
the manner provided in the declaration
of the affected |
| 1718 |
condominium or condominiums as
originally recorded or as amended |
| 1719 |
under the procedures provided therein.
If a declaration as |
| 1720 |
originally recorded or as amended under
the procedures provided |
| 1721 |
therein does not specify a procedure for
approving such an |
| 1722 |
alteration or addition, the approval of
75 percent of the total |
| 1723 |
voting interests of each affected
condominium is required. This |
| 1724 |
subsection does not prohibit a provision
in any declaration, |
| 1725 |
articles of incorporation, or bylaws as
originally recorded or |
| 1726 |
as amended under the procedures provided
therein requiring the |
| 1727 |
approval of unit owners in any
condominium operated by the same |
| 1728 |
association or requiring board approval
before a material |
| 1729 |
alteration or substantial addition to
the common elements is |
| 1730 |
permitted. This paragraph is intended to
clarify existing law |
| 1731 |
and applies to associations existing on
the effective date of |
| 1732 |
this act. |
| 1733 |
(c) There
shall not be any material alteration or |
| 1734 |
substantial addition made to association
real property operated |
| 1735 |
by a multicondominium association,
except as provided in the |
| 1736 |
declaration, articles of incorporation,
or bylaws as originally |
| 1737 |
recorded or as amended under the
procedures provided therein. If |
| 1738 |
the declaration, articles of
incorporation, or bylaws as |
| 1739 |
originally recorded or as amended under
the procedures provided |
| 1740 |
therein do not specify the procedure for
approving an alteration |
| 1741 |
or addition to association real
property, the approval of 75 |
| 1742 |
percent of the total voting interests of
the association is |
| 1743 |
required. This paragraph is intended to
clarify existing law and |
| 1744 |
applies to associations existing on the
effective date of this |
| 1745 |
act. |
| 1746 |
(3) A
unit owner shall not do anything within his or her |
| 1747 |
unit or on the common elements which
would adversely affect the |
| 1748 |
safety or soundness of the common
elements or any portion of the |
| 1749 |
association property or condominium
property which is to be |
| 1750 |
maintained by the association. |
| 1751 |
(4) Any
unit owner may display one portable, removable |
| 1752 |
United States flag in a respectful way
and, on Armed Forces Day, |
| 1753 |
Memorial Day, Flag Day, Independence
Day, and Veterans Day, may |
| 1754 |
display in a respectful way portable,
removable official flags, |
| 1755 |
not larger than 41/2 feet by 6 feet,
that represent the United |
| 1756 |
States Army, Navy, Air Force, Marine
Corps, or Coast Guard, |
| 1757 |
regardless of any declaration rules or
requirements dealing with |
| 1758 |
flags or decorations. |
| 1759 |
(5) Each
board of administration shall, at each annual |
| 1760 |
meeting,
adopt or restate hurricane shutter
specifications for |
| 1761 |
each building within each condominium
operated by the |
| 1762 |
association which shall include color,
style, and other factors |
| 1763 |
deemed relevant by the board. All
specifications adopted or |
| 1764 |
restated by the board shall
comply with the applicable building |
| 1765 |
code. Notwithstanding any provision to
the contrary in the |
| 1766 |
condominium documents, if approval is
required by the documents, |
| 1767 |
a board shall not refuse to approve the
installation or |
| 1768 |
replacement of hurricane shutters
conforming to the |
| 1769 |
specifications adopted by the board. The
board may, subject to |
| 1770 |
the provisions of s. 718.3026, and the
approval of a majority of |
| 1771 |
voting interests of the condominium,
install hurricane shutters |
| 1772 |
and may maintain, repair, or replace
such approved hurricane |
| 1773 |
shutters or
hurricane protection that complies with the |
| 1774 |
applicable
building code, whether on or within common elements, |
| 1775 |
limited common elements, units, or
association property. |
| 1776 |
However, where laminated glass or window
film architecturally |
| 1777 |
designed to function as hurricane
protection which complies with |
| 1778 |
the applicable building code has been
installed, the board may |
| 1779 |
not install hurricane shutters. The
board may operate shutters |
| 1780 |
installed pursuant to this subsection
without permission of the |
| 1781 |
unit owners only where such operation is
necessary to preserve |
| 1782 |
and protect the condominium property and
association property. |
| 1783 |
The installation, replacement,
operation, repair, and |
| 1784 |
maintenance of such shutters in
accordance with the procedures |
| 1785 |
set forth herein shall not be deemed a
material alteration to |
| 1786 |
the common elements or association
property within the meaning |
| 1787 |
of this section. |
| 1788 |
(6) Every
5 years, the board of administration shall have |
| 1789 |
the condominium
buildings inspected by a professional engineer |
| 1790 |
or professional
architect registered in the state for the |
| 1791 |
purpose of
determining that the building is structurally and |
| 1792 |
electrically safe.
The engineer or architect shall provide a |
| 1793 |
report indicating the
manner and type of inspection forming the |
| 1794 |
basis for the report
and description of any matters identified |
| 1795 |
as requiring remedial
action. The report shall become an |
| 1796 |
official record of
the association to be provided to the members |
| 1797 |
upon request pursuant
to s. 718.111(12). |
| 1798 |
(7) The
board of administration may not adopt any rule or |
| 1799 |
regulation impairing
any rights guaranteed by the First |
| 1800 |
Amendment to the
Constitution of the United States or s. 3, Art. |
| 1801 |
I of the Florida
Constitution, including, but not limited to, |
| 1802 |
the free exercise of
religion, nor may any rules or regulations |
| 1803 |
conflict with the
provisions of this chapter or the condominium |
| 1804 |
instruments. A rule
or regulation may not prohibit any |
| 1805 |
reasonable
accommodation for religious practices, including the |
| 1806 |
attachment of
religiously mandated objects to the front-door |
| 1807 |
area of a condominium
unit. |
| 1808 |
Section
27. Paragraph (d) of subsection (1) of section |
| 1809 |
718.115, Florida Statutes, is amended to
read: |
| 1810 |
718.115 Common
expenses and common surplus.-- |
| 1811 |
(1) |
| 1812 |
(d) If
so provided in the declaration, the cost of a |
| 1813 |
master antenna television system or duly
franchised cable |
| 1814 |
television service obtained pursuant to
a bulk contract for |
| 1815 |
basic service shall
be deemed a common expense. If the |
| 1816 |
declaration does not provide for the
cost of a master antenna |
| 1817 |
television system or duly franchised basic
cable television |
| 1818 |
service obtained under a bulk contract
as a common expense, the |
| 1819 |
board may enter into such a contract,
and the cost of the |
| 1820 |
service will be a common expense but
allocated on a per-unit |
| 1821 |
basis rather than a percentage basis if
the declaration provides |
| 1822 |
for other than an equal sharing of
common expenses, and any |
| 1823 |
contract entered into before July 1,
1998, in which the cost of |
| 1824 |
the service is not equally divided among
all unit owners, may be |
| 1825 |
changed by vote of a majority of the
voting interests present at |
| 1826 |
a regular or special meeting of the
association, to allocate the |
| 1827 |
cost equally among all units. The
contract shall be for a term |
| 1828 |
of not less than 2 years. |
| 1829 |
1. Any
contract made by the board after the effective date |
| 1830 |
hereof for a community antenna system or
duly franchised basic |
| 1831 |
cable television service may be canceled
by a majority of the |
| 1832 |
voting interests present at the next
regular or special meeting |
| 1833 |
of the association. Any member may make
a motion to cancel said |
| 1834 |
contract, but if no motion is made or if
such motion fails to |
| 1835 |
obtain the required majority at the next
regular or special |
| 1836 |
meeting, whichever is sooner, following
the making of the |
| 1837 |
contract, then such contract shall be
deemed ratified for the |
| 1838 |
term therein expressed. |
| 1839 |
2. Any
such contract shall provide, and shall be deemed to |
| 1840 |
provide if not expressly set forth, that
any hearing-impaired or |
| 1841 |
legally blind unit owner who does not
occupy the unit with a |
| 1842 |
non-hearing-impaired or sighted person,
or any unit owner |
| 1843 |
receiving supplemental security income
under Title XVI of the |
| 1844 |
Social Security Act or food stamps as
administered by the |
| 1845 |
Department of Children and Family
Services pursuant to s. |
| 1846 |
414.31, may discontinue the service
without incurring disconnect |
| 1847 |
fees, penalties, or subsequent service
charges, and, as to such |
| 1848 |
units, the owners shall not be required
to pay any common |
| 1849 |
expenses charge related to such service.
If less than all |
| 1850 |
members of an association share the
expenses of cable |
| 1851 |
television, the expense shall be shared
equally by all |
| 1852 |
participating unit owners. The
association may use the |
| 1853 |
provisions of s. 718.116 to enforce
payment of the shares of |
| 1854 |
such costs by the unit owners receiving
cable television. |
| 1855 |
Section
28. Section 718.1123, Florida Statutes, is created |
| 1856 |
to read: |
| 1857 |
718.1123 Protection
against abuse.-- |
| 1858 |
(1) In
order to protect the safety, health, and welfare of |
| 1859 |
the people of this
state, especially the infirm and elderly, and |
| 1860 |
to ensure the
protection of condominium owners, any complaint of |
| 1861 |
abuse filed with the
Division of Florida Land Sales, |
| 1862 |
Condominiums,
Homeowners' Associations, and Mobile Homes shall |
| 1863 |
immediately be
investigated by the division. When the division |
| 1864 |
has reasonable cause
to believe that abuse has occurred against |
| 1865 |
any unit owner, the
division shall institute enforcement |
| 1866 |
proceedings pursuant
to its power and duties as set forth in s. |
| 1867 |
718.501. |
| 1868 |
(2) For
purposes of this section, the term "abuse" means |
| 1869 |
any willful act or
threat by a member of the board of directors |
| 1870 |
of a condominium
association or any member of a committee or |
| 1871 |
subcommittee
appointed by the board of directors, or any |
| 1872 |
employee, volunteer,
or agent purporting to act on behalf of the |
| 1873 |
board of directors,
or any officer, director, employee, or agent |
| 1874 |
of any management
company acting on behalf of a condominium |
| 1875 |
association who
denies or is likely to deny a condominium unit |
| 1876 |
owner or dweller any
of the rights and protections afforded to |
| 1877 |
them under applicable
state and federal laws, administrative |
| 1878 |
rules, and the
governing documents of their condominium |
| 1879 |
association. |
| 1880 |
Section
29. Section 718.1224, Florida Statutes, is created |
| 1881 |
to read: |
| 1882 |
718.1224 Prohibition
against SLAPP suits.-- |
| 1883 |
(1) It
is the intent of the Legislature to protect the |
| 1884 |
right of condominium
unit owners to exercise their rights to |
| 1885 |
instruct their
representatives and petition for redress of |
| 1886 |
grievances before the
various governmental entities of this |
| 1887 |
state as protected by
the First Amendment to the United States |
| 1888 |
Constitution and s.
5, Art. I of the State Constitution. The |
| 1889 |
Legislature
recognizes that strategic lawsuits against public |
| 1890 |
participation, or
"SLAPP" suits as they are typically referred |
| 1891 |
to, have occurred
when association members are sued by |
| 1892 |
individuals, business
entities, or governmental entities arising |
| 1893 |
out of a condominium
unit owner's appearance and presentation |
| 1894 |
before a governmental
entity on matters related to the |
| 1895 |
condominium
association. However, it is the public policy of |
| 1896 |
this state that
governmental entities, business organizations, |
| 1897 |
and individuals not
to engage in SLAPP suits, because such |
| 1898 |
actions are
inconsistent with the right of condominium unit |
| 1899 |
owners to participate
in the state's institutions of government. |
| 1900 |
Therefore, the
Legislature finds and declares that prohibiting |
| 1901 |
such lawsuits by
governmental entities, business entities, and |
| 1902 |
individuals against
condominium unit owners who address matters |
| 1903 |
concerning their
condominium association will preserve this |
| 1904 |
fundamental state
policy, preserve the constitutional rights of |
| 1905 |
condominium unit
owners, and ensure the continuation of |
| 1906 |
representative
government in this state. It is the intent of the |
| 1907 |
Legislature that such
lawsuits be expeditiously disposed of by |
| 1908 |
the courts. As used
in this subsection, the term "governmental |
| 1909 |
entity" means
the state, including the executive, legislative, |
| 1910 |
and judicial branches
of government, the independent |
| 1911 |
establishments of the
state, counties, municipalities, |
| 1912 |
districts,
authorities, boards, or commissions, or any agencies |
| 1913 |
of these branches
which are subject to chapter 286. |
| 1914 |
(2) A
governmental entity, business organization, or |
| 1915 |
individual in this
state may not file or cause to be filed |
| 1916 |
through its employees
or agents any lawsuit, cause of action, |
| 1917 |
claim, cross-claim,
or counterclaim against a condominium unit |
| 1918 |
owner without merit
and solely because such condominium unit |
| 1919 |
owner has exercised
the right to instruct his or her |
| 1920 |
representatives or
the right to petition for redress of |
| 1921 |
grievances before the
various governmental entities of this |
| 1922 |
state, as protected
by the First Amendment to the United States |
| 1923 |
Constitution and s.
5, Art. I of the State Constitution. |
| 1924 |
(3) A
condominium unit owner sued by a governmental |
| 1925 |
entity, business
organization, or individual in violation of |
| 1926 |
this section has a
right to an expeditious resolution of a claim |
| 1927 |
that the suit is in
violation of this section. A condominium |
| 1928 |
unit owner may
petition the court for an order dismissing the |
| 1929 |
action or granting
final judgment in favor of that condominium |
| 1930 |
unit owner. The
petitioner may file a motion for summary |
| 1931 |
judgment, together
with supplemental affidavits, seeking a |
| 1932 |
determination that
the governmental entity's, business |
| 1933 |
organization's, or
individual's lawsuit has been brought in |
| 1934 |
violation of this
section. The governmental entity, business |
| 1935 |
organization, or
individual shall thereafter file its response |
| 1936 |
and any supplemental
affidavits. As soon as practicable, the |
| 1937 |
court shall set a
hearing on the petitioner's motion, which |
| 1938 |
shall be held at the
earliest possible time after the filing of |
| 1939 |
the governmental
entity's, business organization's or |
| 1940 |
individual's
response. The court may award the condominium unit |
| 1941 |
owner sued by the
governmental entity, business organization, or |
| 1942 |
individual actual
damages arising from the governmental |
| 1943 |
entity's,
individual's, or business organization's violation of |
| 1944 |
this section. A court
may treble the damages awarded to a |
| 1945 |
prevailing
condominium unit owner and shall state the basis for |
| 1946 |
the treble damages
award in its judgment. The court shall award |
| 1947 |
the prevailing party
reasonable attorney's fees and costs |
| 1948 |
incurred in
connection with a claim that an action was filed in |
| 1949 |
violation of this
section. |
| 1950 |
(4) Condominium
associations may not expend association |
| 1951 |
funds in prosecuting
a SLAPP suit against a condominium unit |
| 1952 |
owner. |
| 1953 |
Section
30. Subsection (4) of section 718.1255, Florida |
| 1954 |
Statutes, is amended to read: |
| 1955 |
718.1255 Alternative
dispute resolution; voluntary |
| 1956 |
mediation; mandatory nonbinding
arbitration; legislative |
| 1957 |
findings.-- |
| 1958 |
(4) MANDATORY
NONBINDING ARBITRATION AND MEDIATION OF |
| 1959 |
DISPUTES.--The Division of Florida Land
Sales, Condominiums, |
| 1960 |
Homeowners'
Associations, and Mobile Homes of the Department of |
| 1961 |
Business and Professional Regulation
shall employ full-time |
| 1962 |
attorneys to act as arbitrators to
conduct the arbitration |
| 1963 |
hearings provided by this chapter. The
division may also certify |
| 1964 |
attorneys who are not employed by the
division to act as |
| 1965 |
arbitrators to conduct the arbitration
hearings provided by this |
| 1966 |
section. No person may be employed by
the department as a full- |
| 1967 |
time arbitrator unless he or she is a
member in good standing of |
| 1968 |
The Florida Bar. The department shall
promulgate rules of |
| 1969 |
procedure to govern such arbitration
hearings including |
| 1970 |
mediation incident thereto. The decision
of an arbitrator shall |
| 1971 |
be final; however, such a decision shall
not be deemed final |
| 1972 |
agency action. Nothing in this provision
shall be construed to |
| 1973 |
foreclose parties from proceeding in a
trial de novo unless the |
| 1974 |
parties have agreed that the arbitration
is binding. If such |
| 1975 |
judicial proceedings are initiated, the
final decision of the |
| 1976 |
arbitrator shall be admissible in
evidence in the trial de novo. |
| 1977 |
(a) Prior
to the institution of court litigation, a party |
| 1978 |
to a dispute shall petition the division
for nonbinding |
| 1979 |
arbitration. The petition must be
accompanied by a filing fee in |
| 1980 |
the amount of $50. Filing fees collected
under this section must |
| 1981 |
be used to defray the expenses of the
alternative dispute |
| 1982 |
resolution program. |
| 1983 |
(b) The
petition must recite, and have attached thereto, |
| 1984 |
supporting proof that the petitioner
gave the respondents: |
| 1985 |
1. Advance
written notice of the specific nature of the |
| 1986 |
dispute; |
| 1987 |
2. A
demand for relief, and a reasonable opportunity to |
| 1988 |
comply or to provide the relief; and |
| 1989 |
3. Notice
of the intention to file an arbitration petition |
| 1990 |
or other legal action in the absence of
a resolution of the |
| 1991 |
dispute. |
| 1992 |
|
| 1993 |
Failure to include the allegations or
proof of compliance with |
| 1994 |
these prerequisites requires dismissal
of the petition without |
| 1995 |
prejudice. |
| 1996 |
(c) Upon
receipt, the petition shall be promptly reviewed |
| 1997 |
by the division to determine the
existence of a dispute and |
| 1998 |
compliance with the requirements of
paragraphs (a) and (b). If |
| 1999 |
emergency relief is required and is not
available through |
| 2000 |
arbitration, a motion to stay the
arbitration may be filed. The |
| 2001 |
motion must be accompanied by a verified
petition alleging facts |
| 2002 |
that, if proven, would support entry of
a temporary injunction, |
| 2003 |
and if an appropriate motion and
supporting papers are filed, |
| 2004 |
the division may abate the arbitration
pending a court hearing |
| 2005 |
and disposition of a motion for
temporary injunction. |
| 2006 |
(d) Upon
determination by the division that a dispute |
| 2007 |
exists and that the petition
substantially meets the |
| 2008 |
requirements of paragraphs (a) and (b)
and any other applicable |
| 2009 |
rules, a copy of the petition shall
forthwith be served by the |
| 2010 |
division upon all respondents. |
| 2011 |
(e) Either
before or after the filing of the respondents' |
| 2012 |
answer to the petition, any party may
request that the |
| 2013 |
arbitrator refer the case to mediation
under this section and |
| 2014 |
any rules adopted by the division. Upon
receipt of a request for |
| 2015 |
mediation, the division shall promptly refer
the case contact |
| 2016 |
the parties to
determine if there is agreement that mediation |
| 2017 |
would be appropriate.
If all parties agree, the dispute must be |
| 2018 |
referred
to mediation. Notwithstanding a lack of an
agreement by |
| 2019 |
all parties,
The arbitrator may refer a dispute to mediation at |
| 2020 |
any time. |
| 2021 |
(f) Upon
referral of a case to mediation, the parties must |
| 2022 |
select a mutually acceptable mediator.
To assist in the |
| 2023 |
selection, the arbitrator shall provide
the parties with a list |
| 2024 |
of both volunteer and paid mediators
that have been certified by |
| 2025 |
the division under s. 718.501. If the
parties are unable to |
| 2026 |
agree on a mediator within the time
allowed by the arbitrator, |
| 2027 |
the arbitrator shall appoint a mediator
from the list of |
| 2028 |
certified mediators. If a case is
referred to mediation, the |
| 2029 |
parties shall attend a mediation
conference, as scheduled by the |
| 2030 |
parties and the mediator. If any party
fails to attend a duly |
| 2031 |
noticed mediation conference, without
the permission or approval |
| 2032 |
of the arbitrator or mediator, the
arbitrator must impose |
| 2033 |
sanctions against the party, including
the striking of any |
| 2034 |
pleadings filed, the entry of an order
of dismissal or default |
| 2035 |
if appropriate, and the award of costs
and attorneys' fees |
| 2036 |
incurred by the other parties. Unless
otherwise agreed to by the |
| 2037 |
parties or as provided by order of the
arbitrator, a party is |
| 2038 |
deemed to have appeared at a mediation
conference by the |
| 2039 |
physical presence of the party or its
representative having full |
| 2040 |
authority to settle without further
consultation, provided that |
| 2041 |
an association may comply by having one
or more representatives |
| 2042 |
present with full authority to negotiate
a settlement and |
| 2043 |
recommend that the board of
administration ratify and approve |
| 2044 |
such a settlement within 5 days from the
date of the mediation |
| 2045 |
conference. The parties shall share
equally the expense of |
| 2046 |
mediation, unless they agree otherwise. |
| 2047 |
(g) The
purpose of mediation as provided for by this |
| 2048 |
section is to present the parties with
an opportunity to resolve |
| 2049 |
the underlying dispute in good faith,
and with a minimum |
| 2050 |
expenditure of time and resources. |
| 2051 |
(h) Mediation
proceedings must generally be conducted in |
| 2052 |
accordance with the Florida Rules of
Civil Procedure, and these |
| 2053 |
proceedings are privileged and
confidential to the same extent |
| 2054 |
as court-ordered mediation. Persons who
are not parties to the |
| 2055 |
dispute are not allowed to attend the
mediation conference |
| 2056 |
without the consent of all parties, with
the exception of |
| 2057 |
counsel for the parties and corporate
representatives designated |
| 2058 |
to appear for a party. If the mediator
declares an impasse after |
| 2059 |
a mediation conference has been held,
the arbitration proceeding |
| 2060 |
terminates, unless all parties agree in
writing to continue the |
| 2061 |
arbitration proceeding, in which case
the arbitrator's decision |
| 2062 |
shall be either binding or nonbinding,
as agreed upon by the |
| 2063 |
parties; in the arbitration proceeding,
the arbitrator shall not |
| 2064 |
consider any evidence relating to the
unsuccessful mediation |
| 2065 |
except in a proceeding to impose
sanctions for failure to appear |
| 2066 |
at the mediation conference. If the
parties do not agree to |
| 2067 |
continue arbitration, the arbitrator
shall enter an order of |
| 2068 |
dismissal, and either party may
institute a suit in a court of |
| 2069 |
competent jurisdiction. The parties may
seek to recover any |
| 2070 |
costs and attorneys' fees incurred in
connection with |
| 2071 |
arbitration and mediation
proceedings under this section as part |
| 2072 |
of the costs and fees that may be
recovered by the prevailing |
| 2073 |
party in any subsequent litigation. |
| 2074 |
(i) Arbitration
shall be conducted according to rules |
| 2075 |
promulgated by the division. The filing
of a petition for |
| 2076 |
arbitration shall toll the applicable
statute of limitations. |
| 2077 |
(j) At
the request of any party to the arbitration, such |
| 2078 |
arbitrator shall issue subpoenas for the
attendance of witnesses |
| 2079 |
and the production of books, records,
documents, and other |
| 2080 |
evidence and any party on whose behalf a
subpoena is issued may |
| 2081 |
apply to the court for orders compelling
such attendance and |
| 2082 |
production. Subpoenas shall be served
and shall be enforceable |
| 2083 |
in the manner provided by the Florida
Rules of Civil Procedure. |
| 2084 |
Discovery may, in the discretion of the
arbitrator, be permitted |
| 2085 |
in the manner provided by the Florida
Rules of Civil Procedure. |
| 2086 |
Rules adopted by the division may
authorize any reasonable |
| 2087 |
sanctions except contempt for a
violation of the arbitration |
| 2088 |
procedural rules of the division or for
the failure of a party |
| 2089 |
to comply with a reasonable nonfinal
order issued by an |
| 2090 |
arbitrator which is not under judicial
review. |
| 2091 |
(k) The
arbitration decision shall be presented to the |
| 2092 |
parties in writing. An arbitration
decision is final in those |
| 2093 |
disputes in which the parties have
agreed to be bound. An |
| 2094 |
arbitration decision is also final if a
complaint for a trial de |
| 2095 |
novo is not filed in a court of
competent jurisdiction in which |
| 2096 |
the condominium is located within 30
days. The right to file for |
| 2097 |
a trial de novo entitles the parties to
file a complaint in the |
| 2098 |
appropriate trial court for a judicial
resolution of the |
| 2099 |
dispute. The prevailing party in an
arbitration proceeding shall |
| 2100 |
be awarded the costs of the arbitration
and reasonable |
| 2101 |
attorney's fees in an amount determined
by the arbitrator. Such |
| 2102 |
an award shall include the costs and
reasonable attorney's fees |
| 2103 |
incurred in the arbitration proceeding
as well as the costs and |
| 2104 |
reasonable attorney's fees incurred in
preparing for and |
| 2105 |
attending any scheduled mediation. |
| 2106 |
(l) The
party who files a complaint for a trial de novo |
| 2107 |
shall be assessed the other party's
arbitration costs, court |
| 2108 |
costs, and other reasonable costs,
including attorney's fees, |
| 2109 |
investigation expenses, and expenses for
expert or other |
| 2110 |
testimony or evidence incurred after the
arbitration hearing if |
| 2111 |
the judgment upon the trial de novo is
not more favorable than |
| 2112 |
the arbitration decision. If the
judgment is more favorable, the |
| 2113 |
party who filed a complaint for trial de
novo shall be awarded |
| 2114 |
reasonable court costs and attorney's
fees. |
| 2115 |
(m) Any
party to an arbitration proceeding may enforce an |
| 2116 |
arbitration award by filing a petition
in a court of competent |
| 2117 |
jurisdiction in which the condominium is
located. A petition may |
| 2118 |
not be granted unless the time for
appeal by the filing of a |
| 2119 |
complaint for trial de novo has expired.
If a complaint for a |
| 2120 |
trial de novo has been filed, a petition
may not be granted with |
| 2121 |
respect to an arbitration award that has
been stayed. If the |
| 2122 |
petition for enforcement is granted, the
petitioner shall |
| 2123 |
recover reasonable attorney's fees and
costs incurred in |
| 2124 |
enforcing the arbitration award. A
mediation settlement may also |
| 2125 |
be enforced through the county or
circuit court, as applicable, |
| 2126 |
and any costs and fees incurred in the
enforcement of a |
| 2127 |
settlement agreement reached at
mediation must be awarded to the |
| 2128 |
prevailing party in any enforcement
action. |
| 2129 |
Section
31. Subsection (1) of section 718.302, Florida |
| 2130 |
Statutes, is amended to read: |
| 2131 |
718.302 Agreements
entered into by the association.-- |
| 2132 |
(1) Any
grant or reservation made by a declaration, lease, |
| 2133 |
or other document, and any contract made
by an association prior |
| 2134 |
to assumption of control of the
association by unit owners other |
| 2135 |
than the developer, that provides for services,
products, |
| 2136 |
operation, maintenance, or management of
a condominium |
| 2137 |
association or property serving the unit
owners of a condominium |
| 2138 |
shall be fair and reasonable, and such
grant, reservation, or |
| 2139 |
contract may be canceled by unit owners
other than the |
| 2140 |
developer: |
| 2141 |
(a) If
the association operates only one condominium and |
| 2142 |
the unit owners other than the developer
have assumed control of |
| 2143 |
the association, or if unit owners other
than the developer own |
| 2144 |
not less than 75 percent of the voting
interests in the |
| 2145 |
condominium, the cancellation shall be
by concurrence of the |
| 2146 |
owners of not less than 75 percent of
the voting interests other |
| 2147 |
than the voting interests owned by the
developer. If a grant, |
| 2148 |
reservation, or contract is so canceled
and the unit owners |
| 2149 |
other than the developer have not
assumed control of the |
| 2150 |
association, the association shall make
a new contract or |
| 2151 |
otherwise provide for maintenance,
management, or operation in |
| 2152 |
lieu of the canceled obligation, at the
direction of the owners |
| 2153 |
of not less than a majority of the
voting interests in the |
| 2154 |
condominium other than the voting
interests owned by the |
| 2155 |
developer. |
| 2156 |
(b) If
the association operates more than one condominium |
| 2157 |
and the unit owners other than the
developer have not assumed |
| 2158 |
control of the association, and if unit
owners other than the |
| 2159 |
developer own at least 75 percent of the
voting interests in a |
| 2160 |
condominium operated by the association,
any grant, reservation, |
| 2161 |
or contract for maintenance, management,
or operation of |
| 2162 |
buildings containing the units in that
condominium or of |
| 2163 |
improvements used only by unit owners of
that condominium may be |
| 2164 |
canceled by concurrence of the owners of
at least 75 percent of |
| 2165 |
the voting interests in the condominium
other than the voting |
| 2166 |
interests owned by the developer. No
grant, reservation, or |
| 2167 |
contract for maintenance, management, or
operation of |
| 2168 |
recreational areas or any other property
serving more than one |
| 2169 |
condominium, and operated by more than
one association, may be |
| 2170 |
canceled except pursuant to paragraph
(d). |
| 2171 |
(c) If
the association operates more than one condominium |
| 2172 |
and the unit owners other than the
developer have assumed |
| 2173 |
control of the association, the
cancellation shall be by |
| 2174 |
concurrence of the owners of not less
than 75 percent of the |
| 2175 |
total number of voting interests in all
condominiums operated by |
| 2176 |
the association other than the voting
interests owned by the |
| 2177 |
developer. |
| 2178 |
(d) If
the owners of units in a condominium have the right |
| 2179 |
to use property in common with owners of
units in other |
| 2180 |
condominiums and those condominiums are
operated by more than |
| 2181 |
one association, no grant, reservation,
or contract for |
| 2182 |
maintenance, management, or operation of
the property serving |
| 2183 |
more than one condominium may be
canceled until unit owners |
| 2184 |
other than the developer have assumed
control of all of the |
| 2185 |
associations operating the condominiums
that are to be served by |
| 2186 |
the recreational area or other property,
after which |
| 2187 |
cancellation may be effected by
concurrence of the owners of not |
| 2188 |
less than 75 percent of the total number
of voting interests in |
| 2189 |
those condominiums other than voting
interests owned by the |
| 2190 |
developer. |
| 2191 |
Section
32. Paragraphs (f) and (g) are added to subsection |
| 2192 |
(1) of section 718.3025, Florida
Statutes, to read: |
| 2193 |
718.3025 Agreements
for operation, maintenance, or |
| 2194 |
management of condominiums; specific
requirements.-- |
| 2195 |
(1) No
written contract between a party contracting to |
| 2196 |
provide maintenance or management
services and an association |
| 2197 |
which contract provides for operation,
maintenance, or |
| 2198 |
management of a condominium association
or property serving the |
| 2199 |
unit owners of a condominium shall be
valid or enforceable |
| 2200 |
unless the contract: |
| 2201 |
(f) Requires
that all obligations under the contract be |
| 2202 |
completed within a
1-year period. |
| 2203 |
(g) Contains
a provision expressly prohibiting automatic |
| 2204 |
renewal of the
contract. |
| 2205 |
Section
33. Paragraph (a) of subsection (2) of section |
| 2206 |
718.3026, Florida Statutes, is amended
to read: |
| 2207 |
718.3026 Contracts
for products and services; in writing; |
| 2208 |
bids; exceptions.--Associations with
less than 100 units may opt |
| 2209 |
out of the provisions of this section if
two-thirds of the unit |
| 2210 |
owners vote to do so, which opt-out may
be accomplished by a |
| 2211 |
proxy specifically setting forth the
exception from this |
| 2212 |
section. |
| 2213 |
(2)(a)1. Notwithstanding
the foregoing, contracts with |
| 2214 |
employees of the association, and
contracts for attorney, |
| 2215 |
accountant, architect, community
association manager, timeshare |
| 2216 |
management firm, engineering, and
landscape architect services |
| 2217 |
are not subject to the provisions of
this section. |
| 2218 |
2. A
contract executed before January 1, 1992, and any |
| 2219 |
renewal thereof, is not subject to the
competitive bid |
| 2220 |
requirements of this section. If a
contract was awarded under |
| 2221 |
the competitive bid procedures of this
section, any renewal of |
| 2222 |
that contract is not subject to such
competitive bid |
| 2223 |
requirements if the contract contains a
provision that allows |
| 2224 |
the board to cancel the contract on 30
days' notice. Materials, |
| 2225 |
equipment, or services provided to a
condominium under a local |
| 2226 |
government franchise agreement by a
franchise holder are not |
| 2227 |
subject to the competitive bid
requirements of this section. A |
| 2228 |
contract with a manager, if made by a
competitive bid, may be |
| 2229 |
made for up to 3 years. A condominium
whose declaration or |
| 2230 |
bylaws provides for competitive bidding
for services may operate |
| 2231 |
under the provisions of that declaration
or bylaws in lieu of |
| 2232 |
this section if those provisions are not
less stringent than the |
| 2233 |
requirements of this section. |
| 2234 |
3. A
contract by and between a service provider and an |
| 2235 |
association shall not
be for a term in excess of 3 years and |
| 2236 |
shall not contain an
automatic renewal clause. |
| 2237 |
4. A
contract for construction or repair of the property |
| 2238 |
that exceeds 10
percent of the total annual budget of the |
| 2239 |
association,
including reserves, should have the approval of an |
| 2240 |
attorney hired by the
association. |
| 2241 |
Section
34. Subsection (3) of section 718.303, Florida |
| 2242 |
Statutes, is amended and subsection (4)
is added to that |
| 2243 |
section, to read: |
| 2244 |
718.303 Obligations
of owners; waiver; levy of fine |
| 2245 |
against unit by
association.-- |
| 2246 |
(3) If
the declaration or bylaws so provide, the |
| 2247 |
association may levy
reasonable fines against a unit for the |
| 2248 |
failure of the owner of the
unit, or its occupant, licensee, or |
| 2249 |
invitee, to comply with any
provision of the declaration, the |
| 2250 |
association bylaws, or
reasonable rules of the association. No |
| 2251 |
fine will become a lien
against a unit. No fine may exceed $100 |
| 2252 |
per violation. However, a
fine may be levied on the basis of |
| 2253 |
each day of a continuing
violation, with a single notice and |
| 2254 |
opportunity for hearing,
provided that no such fine shall in the |
| 2255 |
aggregate exceed $1,000. No
fine may be levied except after |
| 2256 |
giving reasonable notice and
opportunity for a hearing to the |
| 2257 |
unit owner and, if
applicable, its licensee or invitee. The |
| 2258 |
hearing must be held before
a committee of other unit owners who |
| 2259 |
are not
members of the board of administration of the |
| 2260 |
association.
If the committee does not agree with the fine, the |
| 2261 |
fine may not be levied. The
provisions of this subsection do not |
| 2262 |
apply to unoccupied units. |
| 2263 |
(4) Anyone
subject to an action under this section shall |
| 2264 |
be
notified of the violation by certified mail, return receipt |
| 2265 |
requested,
and, except in the case of eminent danger to person |
| 2266 |
or
property, have 30 days in which to respond in writing. If no |
| 2267 |
response
is provided and the violation continues or is repeated, |
| 2268 |
the
association may proceed under subsections (1) and (2) |
| 2269 |
without
further notice except as provided in subsection (3). |
| 2270 |
Section
35. Section 718.501, Florida Statutes, is amended |
| 2271 |
to read: |
| 2272 |
718.501 Powers
and duties of Division of Florida Land |
| 2273 |
Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 2274 |
Homes.-- |
| 2275 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 2276 |
Homeowners'
Associations, and Mobile Homes of the Department of |
| 2277 |
Business and Professional
Regulation, referred to as the |
| 2278 |
"division" in this
part, in addition to other powers and duties |
| 2279 |
prescribed by chapter 498,
has the power to enforce and ensure |
| 2280 |
compliance with the
provisions of this chapter and rules |
| 2281 |
promulgated pursuant hereto
relating to the development, |
| 2282 |
construction, sale, lease,
ownership, operation, and management |
| 2283 |
of residential condominium
units. In performing its duties, the |
| 2284 |
division has the following
powers and duties: |
| 2285 |
(a) The
division may make necessary public or private |
| 2286 |
investigations within or
outside this state to determine whether |
| 2287 |
any person has violated this
chapter or any rule or order |
| 2288 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
| 2289 |
in the adoption of rules or
forms hereunder. |
| 2290 |
(b) The
division may require or permit any person to file |
| 2291 |
a statement in writing,
under oath or otherwise, as the division |
| 2292 |
determines, as to the facts
and circumstances concerning a |
| 2293 |
matter to be investigated. |
| 2294 |
(c) For
the purpose of any investigation under this |
| 2295 |
chapter, the division
director or any officer or employee |
| 2296 |
designated by the division
director may administer oaths or |
| 2297 |
affirmations, subpoena
witnesses and compel their attendance, |
| 2298 |
take evidence, and require
the production of any matter which is |
| 2299 |
relevant to the
investigation, including the existence, |
| 2300 |
description, nature,
custody, condition, and location of any |
| 2301 |
books, documents, or other
tangible things and the identity and |
| 2302 |
location of persons having
knowledge of relevant facts or any |
| 2303 |
other matter reasonably
calculated to lead to the discovery of |
| 2304 |
material evidence. Upon the
failure by a person to obey a |
| 2305 |
subpoena or to answer
questions propounded by the investigating |
| 2306 |
officer and upon reasonable
notice to all persons affected |
| 2307 |
thereby, the division may
apply to the circuit court for an |
| 2308 |
order compelling compliance. |
| 2309 |
(d) Notwithstanding
any remedies available to unit owners |
| 2310 |
and associations, if the
division has reasonable cause to |
| 2311 |
believe that a violation of
any provision of this chapter or |
| 2312 |
rule promulgated pursuant
hereto has occurred, the division may |
| 2313 |
institute enforcement
proceedings in its own name against any |
| 2314 |
developer, association,
officer, or member of the board of |
| 2315 |
administration, or its
assignees or agents, as follows: |
| 2316 |
1. The
division may permit a person whose conduct or |
| 2317 |
actions may be under
investigation to waive formal proceedings |
| 2318 |
and enter into a consent
proceeding whereby orders, rules, or |
| 2319 |
letters of censure or
warning, whether formal or informal, may |
| 2320 |
be entered against the
person. |
| 2321 |
2. The
division may issue an order requiring the |
| 2322 |
developer, association,
officer, or member of the board of |
| 2323 |
administration, or its
assignees or agents, to cease and desist |
| 2324 |
from the unlawful practice
and take such affirmative action as |
| 2325 |
in the judgment of the
division will carry out the purposes of |
| 2326 |
this chapter. Such
affirmative action may include, but is not |
| 2327 |
limited to, an order
requiring a developer to pay moneys |
| 2328 |
determined to be owed to a
condominium association. |
| 2329 |
3. The
division may bring an action in circuit court on |
| 2330 |
behalf of a class of unit
owners, lessees, or purchasers for |
| 2331 |
declaratory relief,
injunctive relief, or restitution. |
| 2332 |
4. The
division may impose a civil penalty against a |
| 2333 |
developer or association, or
its assignee or agent, for any |
| 2334 |
violation of this chapter or
a rule promulgated pursuant hereto. |
| 2335 |
The division may impose a
civil penalty individually against any |
| 2336 |
officer or board member who
willfully and knowingly violates a |
| 2337 |
provision of this chapter, a
rule adopted pursuant hereto, or a |
| 2338 |
final order of the division.
The term "willfully and knowingly" |
| 2339 |
means that the division
informed the officer or board member |
| 2340 |
that his or her action or
intended action violates this chapter, |
| 2341 |
a rule adopted under this
chapter, or a final order of the |
| 2342 |
division and that the
officer or board member refused to comply |
| 2343 |
with the requirements of
this chapter, a rule adopted under this |
| 2344 |
chapter, or a final order of
the division. The division, prior |
| 2345 |
to initiating formal agency
action under chapter 120, shall |
| 2346 |
afford the officer or board
member an opportunity to voluntarily |
| 2347 |
comply with this chapter, a
rule adopted under this chapter, or |
| 2348 |
a final order of the
division. An officer or board member who |
| 2349 |
complies within 10 days is
not subject to a civil penalty. A |
| 2350 |
penalty may be imposed on
the basis of each day of continuing |
| 2351 |
violation, but in no event
shall the penalty for any offense |
| 2352 |
exceed $5,000. By January 1,
1998, the division shall adopt, by |
| 2353 |
rule, penalty guidelines
applicable to possible violations or to |
| 2354 |
categories of violations of
this chapter or rules adopted by the |
| 2355 |
division. The guidelines
must specify a meaningful range of |
| 2356 |
civil penalties for each
such violation of the statute and rules |
| 2357 |
and must be based upon the
harm caused by the violation, the |
| 2358 |
repetition of the violation,
and upon such other factors deemed |
| 2359 |
relevant by the division.
For example, the division may consider |
| 2360 |
whether the violations were
committed by a developer or owner- |
| 2361 |
controlled association, the
size of the association, and other |
| 2362 |
factors. The guidelines must
designate the possible mitigating |
| 2363 |
or aggravating circumstances
that justify a departure from the |
| 2364 |
range of penalties provided
by the rules. It is the legislative |
| 2365 |
intent that minor violations
be distinguished from those which |
| 2366 |
endanger the health, safety,
or welfare of the condominium |
| 2367 |
residents or other persons
and that such guidelines provide |
| 2368 |
reasonable and meaningful
notice to the public of likely |
| 2369 |
penalties that may be
imposed for proscribed conduct. This |
| 2370 |
subsection does not limit
the ability of the division to |
| 2371 |
informally dispose of
administrative actions or complaints by |
| 2372 |
stipulation, agreed
settlement, or consent order. All amounts |
| 2373 |
collected shall be deposited
with the Chief Financial Officer to |
| 2374 |
the credit of the Division
of Florida Land Sales, Condominiums, |
| 2375 |
Homeowners'
Associations, and Mobile Homes Trust Fund. If a |
| 2376 |
developer fails to pay the
civil penalty, the division shall |
| 2377 |
thereupon issue an order
directing that such developer cease and |
| 2378 |
desist from further
operation until such time as the civil |
| 2379 |
penalty is paid or may
pursue enforcement of the penalty in a |
| 2380 |
court of competent
jurisdiction. If an association fails to pay |
| 2381 |
the civil penalty, the
division shall thereupon pursue |
| 2382 |
enforcement in a court of
competent jurisdiction, and the order |
| 2383 |
imposing the civil penalty
or the cease and desist order will |
| 2384 |
not become effective until
20 days after the date of such order. |
| 2385 |
Any action commenced by the
division shall be brought in the |
| 2386 |
county in which the division
has its executive offices or in the |
| 2387 |
county where the violation
occurred. |
| 2388 |
(e) The
division shall is
authorized to prepare and |
| 2389 |
disseminate a prospectus and
other information to assist |
| 2390 |
prospective owners,
purchasers, lessees, and developers of |
| 2391 |
residential condominiums in
assessing the rights, privileges, |
| 2392 |
and duties pertaining
thereto. |
| 2393 |
(f) The
division has authority to adopt rules pursuant to |
| 2394 |
ss. 120.536(1) and 120.54 to
implement and enforce the |
| 2395 |
provisions of this chapter. |
| 2396 |
(g) The
division shall establish procedures for providing |
| 2397 |
notice to an association
when the division is considering the |
| 2398 |
issuance of a declaratory
statement with respect to the |
| 2399 |
declaration of condominium
or any related document governing in |
| 2400 |
such condominium community. |
| 2401 |
(h) The
division shall furnish each association which pays |
| 2402 |
the fees required by
paragraph (2)(a) a copy of this act, |
| 2403 |
subsequent changes to this
act on an annual basis, an amended |
| 2404 |
version of this act as it
becomes available from the Secretary |
| 2405 |
of State's office on a
biennial basis, and the rules promulgated |
| 2406 |
pursuant thereto on an
annual basis. |
| 2407 |
(i) The
division shall annually provide each association |
| 2408 |
with a summary of
declaratory statements and formal legal |
| 2409 |
opinions relating to the
operations of condominiums which were |
| 2410 |
rendered by the division
during the previous year. |
| 2411 |
(j) The
division shall provide training programs for |
| 2412 |
condominium association
board members and unit owners in |
| 2413 |
conjunction
with the recommendations of the ombudsman, at the |
| 2414 |
associations'
expense. |
| 2415 |
(k) The
division shall maintain a toll-free telephone |
| 2416 |
number accessible to
condominium unit owners. |
| 2417 |
(l) The
division shall develop a program to certify both |
| 2418 |
volunteer and paid mediators
to provide mediation of condominium |
| 2419 |
disputes. The division shall
provide, upon request, a list of |
| 2420 |
such mediators to any
association, unit owner, or other |
| 2421 |
participant in arbitration
proceedings under s. 718.1255 |
| 2422 |
requesting a copy of the
list. The division shall include on the |
| 2423 |
list of volunteer mediators
only the names of persons who have |
| 2424 |
received at least 20 hours
of training in mediation techniques |
| 2425 |
or who have mediated at
least 20 disputes. In order to become |
| 2426 |
initially certified by the
division, paid mediators must be |
| 2427 |
certified by the Supreme
Court to mediate court cases in either |
| 2428 |
county or circuit courts.
However, the division may adopt, by |
| 2429 |
rule, additional factors for
the certification of paid |
| 2430 |
mediators, which factors
must be related to experience, |
| 2431 |
education, or background.
Any person initially certified as a |
| 2432 |
paid mediator by the
division must, in order to continue to be |
| 2433 |
certified, comply with the
factors or requirements imposed by |
| 2434 |
rules adopted by the
division. |
| 2435 |
(m) When
a complaint is made, the division shall conduct |
| 2436 |
its inquiry with due regard
to the interests of the affected |
| 2437 |
parties. Within 30 days
after receipt of a complaint, the |
| 2438 |
division shall acknowledge
the complaint in writing and notify |
| 2439 |
the complainant whether the
complaint is within the jurisdiction |
| 2440 |
of the division and whether
additional information is needed by |
| 2441 |
the division from the
complainant. The division shall conduct |
| 2442 |
its investigation and shall,
within 90 days after receipt of the |
| 2443 |
original complaint or of
timely requested additional |
| 2444 |
information, take action
upon the complaint. However, the |
| 2445 |
failure to complete the
investigation within 90 days does not |
| 2446 |
prevent the division from
continuing the investigation, |
| 2447 |
accepting or considering
evidence obtained or received after 90 |
| 2448 |
days, or taking
administrative action if reasonable cause exists |
| 2449 |
to believe that a violation
of this chapter or a rule of the |
| 2450 |
division has occurred. If an
investigation is not completed |
| 2451 |
within the time limits
established in this paragraph, the |
| 2452 |
division shall, on a monthly
basis, notify the complainant in |
| 2453 |
writing of the status of the
investigation. When reporting its |
| 2454 |
action to the complainant,
the division shall inform the |
| 2455 |
complainant of any right to
a hearing pursuant to ss. 120.569 |
| 2456 |
and 120.57. |
| 2457 |
(n) Upon
a finding that any association has committed a |
| 2458 |
violation
within the jurisdiction of the division, the division |
| 2459 |
shall
require the association to: |
| 2460 |
1. Mail
and post a notice to all unit owners setting forth |
| 2461 |
the facts
and findings relative to any and all violations, as |
| 2462 |
well as a
description of the corrective action required. |
| 2463 |
2. Participate
in a mandatory educational training program |
| 2464 |
that
shall be directly related to the violation, taught by a |
| 2465 |
division-approved
provider, and completed within 90 days from |
| 2466 |
the date
of notification of the finding to the board members. |
| 2467 |
|
| 2468 |
Failure
of the association to comply with this paragraph shall |
| 2469 |
result in
a civil penalty to the association in the amount of |
| 2470 |
$500 for
each week the notice is not mailed and posted or the |
| 2471 |
educational
training is not completed. |
| 2472 |
(2)(a) Effective
January 1, 1992, each condominium |
| 2473 |
association which operates
more than two units shall pay to the |
| 2474 |
division an annual fee in
the amount of $4 for each residential |
| 2475 |
unit in condominiums
operated by the association. If the fee is |
| 2476 |
not paid by March 1, then
the association shall be assessed a |
| 2477 |
penalty of 10 percent of the
amount due, and the association |
| 2478 |
will not have standing to
maintain or defend any action in the |
| 2479 |
courts of this state until
the amount due, plus any penalty, is |
| 2480 |
paid. |
| 2481 |
(b) All
fees shall be deposited in the Division of Florida |
| 2482 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 2483 |
Homes Trust Fund as provided
by law. One-fifth of all fees |
| 2484 |
deposited
by the division shall be allocated and transferred to |
| 2485 |
the
Office of the Condominium Ombudsman. |
| 2486 |
Section
36. Section 718.5011, Florida Statutes, is amended |
| 2487 |
to read: |
| 2488 |
718.5011 Ombudsman;
appointment; administration.-- |
| 2489 |
(1) There
is created an Office of the Condominium |
| 2490 |
Ombudsman, to be located,
solely for administrative purposes, |
| 2491 |
within the Division of
Florida Land Sales, Condominiums, |
| 2492 |
Homeowners'
Associations, and Mobile Homes. The
ombudsman shall |
| 2493 |
exercise
his or her policymaking and other functions delegated |
| 2494 |
by this
chapter independently of the Department of Business and |
| 2495 |
Professional
Regulation and without approval or control of the |
| 2496 |
department.
The department shall render administrative support |
| 2497 |
to the
Office of the Condominium Ombudsman in matters pertaining |
| 2498 |
to
budget, personnel, office space, equipment, and supplies. All |
| 2499 |
revenues
collected for the office by the department shall be |
| 2500 |
deposited
in a separate fund or account from which the |
| 2501 |
department
may not use or divert the revenues. The functions of |
| 2502 |
the office shall be funded
by the Division of Florida Land |
| 2503 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
| 2504 |
Trust Fund. The ombudsman
shall be a bureau chief of the |
| 2505 |
division, and the office
shall be set within the division in the |
| 2506 |
same manner as any other
bureau is staffed and funded. |
| 2507 |
(2) The
Governor shall appoint the ombudsman. The |
| 2508 |
ombudsman must be an
attorney admitted to practice before the |
| 2509 |
Florida Supreme Court and
shall serve at the pleasure of the |
| 2510 |
Governor. A vacancy in the
office shall be filled in the same |
| 2511 |
manner as the original
appointment. An officer or full-time |
| 2512 |
employee
of the ombudsman's office may not actively engage in |
| 2513 |
any other
business or profession; serve as the representative of |
| 2514 |
any
political party, executive committee, or other governing |
| 2515 |
body of a
political party; serve as an executive, officer, or |
| 2516 |
employee
of a political party; receive remuneration for |
| 2517 |
activities
on behalf of any candidate for public office; or |
| 2518 |
engage in
soliciting votes or other activities on behalf of a |
| 2519 |
candidate
for public office. The ombudsman or any employee of |
| 2520 |
his or
her office may not become a candidate for election to |
| 2521 |
public
office unless he or she first resigns from his or her |
| 2522 |
office or
employment. |
| 2523 |
Section
37. Section 718.5012, Florida Statutes, is amended |
| 2524 |
to read: |
| 2525 |
718.5012 Ombudsman;
powers and duties.-- |
| 2526 |
(1) The
ombudsman shall have the powers that are necessary |
| 2527 |
to carry out the duties of
his or her office, including the |
| 2528 |
following specific powers: |
| 2529 |
(a)(1) To
have access to and use of all files and records |
| 2530 |
of the division. |
| 2531 |
(b)(2) To
employ professional and clerical staff as |
| 2532 |
necessary for the efficient
operation of the office. |
| 2533 |
(c)(3) To
prepare and issue reports and recommendations to |
| 2534 |
the Governor, the
department, the division, the Advisory Council |
| 2535 |
on Condominiums, the
President of the Senate, and the Speaker of |
| 2536 |
the House of Representatives
on any matter or subject within the |
| 2537 |
jurisdiction of the
division. The ombudsman shall make |
| 2538 |
recommendations he or she
deems appropriate for legislation |
| 2539 |
relative to division
procedures, rules, jurisdiction, personnel, |
| 2540 |
and functions. |
| 2541 |
(d)(4) To
act as liaison between the division, unit |
| 2542 |
owners, boards of directors,
board members, community |
| 2543 |
association managers, and
other affected parties. The ombudsman |
| 2544 |
shall develop
policies and procedures to assist unit owners, |
| 2545 |
boards of directors, board
members, community association |
| 2546 |
managers, and other affected
parties to understand their rights |
| 2547 |
and responsibilities as set
forth in this chapter and the |
| 2548 |
condominium documents
governing their respective association. |
| 2549 |
The ombudsman shall
coordinate and assist in the preparation and |
| 2550 |
adoption of educational and
reference material, and shall |
| 2551 |
endeavor to coordinate with
private or volunteer providers of |
| 2552 |
these services, so that the
availability of these resources is |
| 2553 |
made known to the largest
possible audience. |
| 2554 |
(e)(5) To
monitor and review procedures and disputes |
| 2555 |
concerning condominium
elections or meetings, including, but not |
| 2556 |
limited to, recommending
that the division pursue enforcement |
| 2557 |
action in any manner where
there is reasonable cause to believe |
| 2558 |
that election misconduct has
occurred. The division shall |
| 2559 |
process
the ombudsman's recommendations and petitions in an |
| 2560 |
expedited
manner and defer to his or her findings. For the |
| 2561 |
purpose
of fulfilling his or her duties under this chapter, the |
| 2562 |
ombudsman
may administer oaths or affirmations, subpoena |
| 2563 |
witnesses
and compel their attendance, take evidence, and |
| 2564 |
require
the production of any matter that is relevant to the |
| 2565 |
inquiry,
including the existence, description, nature, custody, |
| 2566 |
condition,
and location of any books, documents, or other |
| 2567 |
tangible
things and the identity and location of persons having |
| 2568 |
knowledge
of relevant facts or any other matter reasonably |
| 2569 |
calculated
to lead to the discovery of material evidence. Upon |
| 2570 |
the
failure by a person to obey a subpoena or to answer |
| 2571 |
questions
asked by the ombudsman and upon reasonable notice to |
| 2572 |
all
persons affected thereby, the ombudsman may apply to the |
| 2573 |
circuit
court for an order compelling compliance. |
| 2574 |
(f)(6) To
make recommendations to the division for changes |
| 2575 |
in rules and procedures for
the filing, investigation, and |
| 2576 |
resolution of complaints
filed by unit owners, associations, and |
| 2577 |
managers. |
| 2578 |
(g)(7) To
provide resources to assist members of boards of |
| 2579 |
directors and officers of
associations to carry out their powers |
| 2580 |
and duties consistent with
this chapter, division rules, and the |
| 2581 |
condominium documents
governing the association. |
| 2582 |
(h)(8) To
order, encourage,
and facilitate voluntary |
| 2583 |
meetings with and between
unit owners, boards of directors, |
| 2584 |
board members, community
association managers, and other |
| 2585 |
affected parties when the
meetings may assist in resolving a |
| 2586 |
dispute within a community
association before a person submits a |
| 2587 |
dispute for a formal or
administrative remedy. It is the intent |
| 2588 |
of the Legislature that the
ombudsman act as a neutral resource |
| 2589 |
for both the rights and
responsibilities of unit owners, |
| 2590 |
associations, and board
members. |
| 2591 |
(i) To
make recommendations to the division to pursue |
| 2592 |
enforcement
action in circuit court on behalf of a class of unit |
| 2593 |
owners,
lessees, or purchasers for declaratory relief, |
| 2594 |
injunctive
relief, or restitution against any developer, |
| 2595 |
association,
officer, or member of the board of administration, |
| 2596 |
or its
assignees or agents, where there is reasonable cause to |
| 2597 |
believe
misconduct has occurred. The division shall process the |
| 2598 |
ombudsman's
recommendations and petitions in an expedited manner |
| 2599 |
and defer
to his or her findings. |
| 2600 |
(j) To
certify recall of board member proceedings pursuant |
| 2601 |
to s.
718.112(2)(j). |
| 2602 |
(2)(9) Fifteen
percent of the total voting interests in a |
| 2603 |
condominium association, or
six unit owners, whichever is |
| 2604 |
greater, may petition the
ombudsman to appoint an election |
| 2605 |
monitor to attend the annual
meeting of the unit owners and |
| 2606 |
conduct the election of
directors. The ombudsman upon petition |
| 2607 |
may order
any aspect of the election process as set forth in s. |
| 2608 |
718.112(2)(d)3.
to be conducted by the election monitor. No |
| 2609 |
association
or person may reject an election monitor appointed |
| 2610 |
by the
ombudsman or interfere with an election monitor in the |
| 2611 |
performance
of his or her duties. The ombudsman may order an |
| 2612 |
association
to implement a known division remedy for a |
| 2613 |
procedural
violation of s. 718.112(2)(d)3. prior to and during a |
| 2614 |
monitored
election. The ombudsman shall appoint a division |
| 2615 |
employee, a person or
persons specializing in condominium |
| 2616 |
election monitoring, or an
attorney licensed to practice in this |
| 2617 |
state as the election
monitor. All costs associated with the |
| 2618 |
election monitoring process
shall be paid by the association. |
| 2619 |
The division shall adopt a
rule establishing procedures for the |
| 2620 |
appointment of election
monitors and the scope and extent of the |
| 2621 |
monitor's role in the
election process. |
| 2622 |
(3) Any
unit owner or association acting in good faith on |
| 2623 |
the
advice or opinion of the office of the ombudsman shall be |
| 2624 |
immune
from any penalties or actions. |
| 2625 |
(4) If
the ombudsman has reasonable cause to believe that |
| 2626 |
a
violation of any provision of this chapter or rule adopted |
| 2627 |
under
this chapter has occurred, the ombudsman may issue an |
| 2628 |
order
requiring any developer, association, officer, or member |
| 2629 |
of the
board of administration, or its assignees or agents, to |
| 2630 |
cease and
desist from the unlawful practice and to take such |
| 2631 |
affirmative
action that will carry out the purposes of this |
| 2632 |
chapter. |
| 2633 |
Section
38. Paragraph (a) of subsection (2) of section |
| 2634 |
718.502, Florida Statutes,
is amended to read: |
| 2635 |
718.502 Filing
prior to sale or lease.-- |
| 2636 |
(2)(a) Prior
to filing as required by subsection (1), and |
| 2637 |
prior to acquiring an
ownership, leasehold, or contractual |
| 2638 |
interest in the land upon
which the condominium is to be |
| 2639 |
developed, a developer shall
not offer a contract for purchase |
| 2640 |
of a unit or lease of a unit
for more than 5 years. However, the |
| 2641 |
developer may accept
deposits for reservations upon the approval |
| 2642 |
of a fully executed escrow
agreement and reservation agreement |
| 2643 |
form properly filed with the
Division of Florida Land Sales, |
| 2644 |
Condominiums, Homeowners'
Associations, and Mobile Homes. Each |
| 2645 |
filing of a proposed
reservation program shall be accompanied by |
| 2646 |
a filing fee of $250.
Reservations shall not be taken on a |
| 2647 |
proposed condominium unless
the developer has an ownership, |
| 2648 |
leasehold, or contractual
interest in the land upon which the |
| 2649 |
condominium is to be
developed. The division shall notify the |
| 2650 |
developer within 20 days of
receipt of the reservation filing of |
| 2651 |
any deficiencies contained
therein. Such notification shall not |
| 2652 |
preclude the determination
of reservation filing deficiencies at |
| 2653 |
a later date, nor shall it
relieve the developer of any |
| 2654 |
responsibility under the
law. The escrow agreement and the |
| 2655 |
reservation agreement form
shall include a statement of the |
| 2656 |
right of the prospective
purchaser to an immediate unqualified |
| 2657 |
refund of the reservation
deposit moneys upon written request to |
| 2658 |
the escrow agent by the
prospective purchaser or the developer. |
| 2659 |
Section
39. Section 718.504, Florida Statutes, is amended |
| 2660 |
to read: |
| 2661 |
718.504 Prospectus
or offering circular.--Every developer |
| 2662 |
of a residential condominium
which contains more than 20 |
| 2663 |
residential units, or which
is part of a group of residential |
| 2664 |
condominiums which will be
served by property to be used in |
| 2665 |
common by unit owners of
more than 20 residential units, shall |
| 2666 |
prepare a prospectus or
offering circular and file it with the |
| 2667 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 2668 |
Associations, and
Mobile Homes prior to entering into an |
| 2669 |
enforceable contract of
purchase and sale of any unit or lease |
| 2670 |
of a unit for more than 5
years and shall furnish a copy of the |
| 2671 |
prospectus or offering
circular to each buyer. In addition to |
| 2672 |
the prospectus or offering
circular, each buyer shall be |
| 2673 |
furnished a separate page
entitled "Frequently Asked Questions |
| 2674 |
and Answers," which
shall be in accordance with a format |
| 2675 |
approved by the division and
a copy of the financial information |
| 2676 |
required by s. 718.111. This
page shall, in readable language, |
| 2677 |
inform prospective
purchasers regarding their voting rights and |
| 2678 |
unit use restrictions,
including restrictions on the leasing of |
| 2679 |
a unit; shall indicate
whether and in what amount the unit |
| 2680 |
owners or the association is
obligated to pay rent or land use |
| 2681 |
fees for recreational or
other commonly used facilities; shall |
| 2682 |
contain a statement
identifying that amount of assessment which, |
| 2683 |
pursuant to the budget,
would be levied upon each unit type, |
| 2684 |
exclusive of any special
assessments, and which shall further |
| 2685 |
identify the basis upon
which assessments are levied, whether |
| 2686 |
monthly, quarterly, or
otherwise; shall state and identify any |
| 2687 |
court cases in which the
association is currently a party of |
| 2688 |
record in which the
association may face liability in excess of |
| 2689 |
$100,000; and which shall
further state whether membership in a |
| 2690 |
recreational facilities
association is mandatory, and if so, |
| 2691 |
shall identify the fees
currently charged per unit type. The |
| 2692 |
division shall by rule
require such other disclosure as in its |
| 2693 |
judgment will assist
prospective purchasers. The prospectus or |
| 2694 |
offering circular may
include more than one condominium, |
| 2695 |
although not all such units
are being offered for sale as of the |
| 2696 |
date of the prospectus or
offering circular. The prospectus or |
| 2697 |
offering circular must
contain the following information: |
| 2698 |
(1) The
front cover or the first page must contain only: |
| 2699 |
(a) The
name of the condominium. |
| 2700 |
(b) The
following statements in conspicuous type: |
| 2701 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
| 2702 |
MATTERS TO BE CONSIDERED IN
ACQUIRING A CONDOMINIUM UNIT. |
| 2703 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
| 2704 |
NATURE. A PROSPECTIVE
PURCHASER SHOULD REFER TO ALL REFERENCES, |
| 2705 |
ALL EXHIBITS HERETO, THE
CONTRACT DOCUMENTS, AND SALES |
| 2706 |
MATERIALS. |
| 2707 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
| 2708 |
STATING THE REPRESENTATIONS
OF THE DEVELOPER. REFER TO THIS |
| 2709 |
PROSPECTUS (OFFERING
CIRCULAR) AND ITS EXHIBITS FOR CORRECT |
| 2710 |
REPRESENTATIONS. |
| 2711 |
(2) Summary:
The next page must contain all statements |
| 2712 |
required to be in
conspicuous type in the prospectus or offering |
| 2713 |
circular. |
| 2714 |
(3) A
separate index of the contents and exhibits of the |
| 2715 |
prospectus. |
| 2716 |
(4) Beginning
on the first page of the text (not including |
| 2717 |
the summary and index), a
description of the condominium, |
| 2718 |
including, but not limited
to, the following information: |
| 2719 |
(a) Its
name and location. |
| 2720 |
(b) A
description of the condominium property, including, |
| 2721 |
without limitation: |
| 2722 |
1. The
number of buildings, the number of units in each |
| 2723 |
building, the number of
bathrooms and bedrooms in each unit, and |
| 2724 |
the total number of units,
if the condominium is not a phase |
| 2725 |
condominium, or the maximum
number of buildings that may be |
| 2726 |
contained within the
condominium, the minimum and maximum |
| 2727 |
numbers of units in each
building, the minimum and maximum |
| 2728 |
numbers of bathrooms and
bedrooms that may be contained in each |
| 2729 |
unit, and the maximum number
of units that may be contained |
| 2730 |
within the condominium, if
the condominium is a phase |
| 2731 |
condominium. |
| 2732 |
2. The
page in the condominium documents where a copy of |
| 2733 |
the plot plan and survey of
the condominium is located. |
| 2734 |
3. The
estimated latest date of completion of |
| 2735 |
constructing, finishing, and
equipping. In lieu of a date, the |
| 2736 |
description shall include a
statement that the estimated date of |
| 2737 |
completion of the
condominium is in the purchase agreement and a |
| 2738 |
reference to the article or
paragraph containing that |
| 2739 |
information. |
| 2740 |
(c) The
maximum number of units that will use facilities |
| 2741 |
in common with the
condominium. If the maximum number of units |
| 2742 |
will vary, a description of
the basis for variation and the |
| 2743 |
minimum amount of dollars
per unit to be spent for additional |
| 2744 |
recreational facilities or
enlargement of such facilities. If |
| 2745 |
the addition or enlargement
of facilities will result in a |
| 2746 |
material increase of a unit
owner's maintenance expense or |
| 2747 |
rental expense, if any, the
maximum increase and limitations |
| 2748 |
thereon shall be stated. |
| 2749 |
(5)(a) A
statement in conspicuous type describing whether |
| 2750 |
the condominium is created
and being sold as fee simple |
| 2751 |
interests or as leasehold
interests. If the condominium is |
| 2752 |
created or being sold on a
leasehold, the location of the lease |
| 2753 |
in the disclosure materials
shall be stated. |
| 2754 |
(b) If
timeshare estates are or may be created with |
| 2755 |
respect to any unit in the
condominium, a statement in |
| 2756 |
conspicuous type stating
that timeshare estates are created and |
| 2757 |
being sold in units in the
condominium. |
| 2758 |
(6) A
description of the recreational and other commonly |
| 2759 |
used facilities that will be
used only by unit owners of the |
| 2760 |
condominium, including, but
not limited to, the following: |
| 2761 |
(a) Each
room and its intended purposes, location, |
| 2762 |
approximate floor area, and
capacity in numbers of people. |
| 2763 |
(b) Each
swimming pool, as to its general location, |
| 2764 |
approximate size and depths,
approximate deck size and capacity, |
| 2765 |
and whether heated. |
| 2766 |
(c) Additional
facilities, as to the number of each |
| 2767 |
facility, its approximate
location, approximate size, and |
| 2768 |
approximate capacity. |
| 2769 |
(d) A
general description of the items of personal |
| 2770 |
property and the approximate
number of each item of personal |
| 2771 |
property that the developer
is committing to furnish for each |
| 2772 |
room or other facility or,
in the alternative, a representation |
| 2773 |
as to the minimum amount of
expenditure that will be made to |
| 2774 |
purchase the personal
property for the facility. |
| 2775 |
(e) The
estimated date when each room or other facility |
| 2776 |
will be available for use by
the unit owners. |
| 2777 |
(f)1. An
identification of each room or other facility to |
| 2778 |
be used by unit owners that
will not be owned by the unit owners |
| 2779 |
or the association; |
| 2780 |
2. A
reference to the location in the disclosure materials |
| 2781 |
of the lease or other
agreements providing for the use of those |
| 2782 |
facilities; and |
| 2783 |
3. A
description of the terms of the lease or other |
| 2784 |
agreements, including the
length of the term; the rent payable, |
| 2785 |
directly or indirectly, by
each unit owner, and the total rent |
| 2786 |
payable to the lessor,
stated in monthly and annual amounts for |
| 2787 |
the entire term of the
lease; and a description of any option to |
| 2788 |
purchase the property leased
under any such lease, including the |
| 2789 |
time the option may be
exercised, the purchase price or how it |
| 2790 |
is to be determined, the
manner of payment, and whether the |
| 2791 |
option may be exercised for
a unit owner's share or only as to |
| 2792 |
the entire leased property. |
| 2793 |
(g) A
statement as to whether the developer may provide |
| 2794 |
additional facilities not
described above; their general |
| 2795 |
locations and types;
improvements or changes that may be made; |
| 2796 |
the approximate dollar
amount to be expended; and the maximum |
| 2797 |
additional common expense or
cost to the individual unit owners |
| 2798 |
that may be charged during
the first annual period of operation |
| 2799 |
of the modified or added
facilities. |
| 2800 |
|
| 2801 |
Descriptions as to
locations, areas, capacities, numbers, |
| 2802 |
volumes, or sizes may be
stated as approximations or minimums. |
| 2803 |
(7) A
description of the recreational and other facilities |
| 2804 |
that will be used in common
with other condominiums, community |
| 2805 |
associations, or planned
developments which require the payment |
| 2806 |
of the maintenance and
expenses of such facilities, either |
| 2807 |
directly or indirectly, by
the unit owners. The description |
| 2808 |
shall include, but not be
limited to, the following: |
| 2809 |
(a) Each
building and facility committed to be built. |
| 2810 |
(b) Facilities
not committed to be built except under |
| 2811 |
certain conditions, and a
statement of those conditions or |
| 2812 |
contingencies. |
| 2813 |
(c) As
to each facility committed to be built, or which |
| 2814 |
will be committed to be
built upon the happening of one of the |
| 2815 |
conditions in paragraph (b),
a statement of whether it will be |
| 2816 |
owned by the unit owners
having the use thereof or by an |
| 2817 |
association or other entity
which will be controlled by them, or |
| 2818 |
others, and the location in
the exhibits of the lease or other |
| 2819 |
document providing for use
of those facilities. |
| 2820 |
(d) The
year in which each facility will be available for |
| 2821 |
use by the unit owners or,
in the alternative, the maximum |
| 2822 |
number of unit owners in the
project at the time each of all of |
| 2823 |
the facilities is committed
to be completed. |
| 2824 |
(e) A
general description of the items of personal |
| 2825 |
property, and the
approximate number of each item of personal |
| 2826 |
property, that the developer
is committing to furnish for each |
| 2827 |
room or other facility or,
in the alternative, a representation |
| 2828 |
as to the minimum amount of
expenditure that will be made to |
| 2829 |
purchase the personal
property for the facility. |
| 2830 |
(f) If
there are leases, a description thereof, including |
| 2831 |
the length of the term, the
rent payable, and a description of |
| 2832 |
any option to purchase. |
| 2833 |
|
| 2834 |
Descriptions shall include
location, areas, capacities, numbers, |
| 2835 |
volumes, or sizes and may be
stated as approximations or |
| 2836 |
minimums. |
| 2837 |
(8) Recreation
lease or associated club membership: |
| 2838 |
(a) If
any recreational facilities or other facilities |
| 2839 |
offered by the developer and
available to, or to be used by, |
| 2840 |
unit owners are to be leased
or have club membership associated, |
| 2841 |
the following statement in
conspicuous type shall be included: |
| 2842 |
THERE IS A RECREATIONAL
FACILITIES LEASE ASSOCIATED WITH THIS |
| 2843 |
CONDOMINIUM; or, THERE IS A
CLUB MEMBERSHIP ASSOCIATED WITH THIS |
| 2844 |
CONDOMINIUM. There shall be
a reference to the location in the |
| 2845 |
disclosure materials where
the recreation lease or club |
| 2846 |
membership is described in
detail. |
| 2847 |
(b) If
it is mandatory that unit owners pay a fee, rent, |
| 2848 |
dues, or other charges under
a recreational facilities lease or |
| 2849 |
club membership for the use
of facilities, there shall be in |
| 2850 |
conspicuous type the
applicable statement: |
| 2851 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
| 2852 |
MANDATORY FOR UNIT OWNERS;
or |
| 2853 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
| 2854 |
TO BE LESSEES UNDER THE
RECREATIONAL FACILITIES LEASE; or |
| 2855 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
| 2856 |
COSTS AND EXPENSES OF
MAINTENANCE, MANAGEMENT, UPKEEP, |
| 2857 |
REPLACEMENT, RENT, AND FEES
UNDER THE RECREATIONAL FACILITIES |
| 2858 |
LEASE (OR THE OTHER
INSTRUMENTS PROVIDING THE FACILITIES); or |
| 2859 |
4. A
similar statement of the nature of the organization |
| 2860 |
or the manner in which the
use rights are created, and that unit |
| 2861 |
owners are required to pay. |
| 2862 |
|
| 2863 |
Immediately following the
applicable statement, the location in |
| 2864 |
the disclosure materials
where the development is described in |
| 2865 |
detail shall be stated. |
| 2866 |
(c) If
the developer, or any other person other than the |
| 2867 |
unit owners and other
persons having use rights in the |
| 2868 |
facilities, reserves, or is
entitled to receive, any rent, fee, |
| 2869 |
or other payment for the use
of the facilities, then there shall |
| 2870 |
be the following statement
in conspicuous type: THE UNIT OWNERS |
| 2871 |
OR THE ASSOCIATION(S) MUST
PAY RENT OR LAND USE FEES FOR |
| 2872 |
RECREATIONAL OR OTHER
COMMONLY USED FACILITIES. Immediately |
| 2873 |
following this statement,
the location in the disclosure |
| 2874 |
materials where the rent or
land use fees are described in |
| 2875 |
detail shall be stated. |
| 2876 |
(d) If,
in any recreation format, whether leasehold, club, |
| 2877 |
or other, any person other
than the association has the right to |
| 2878 |
a lien on the units to
secure the payment of assessments, rent, |
| 2879 |
or other exactions, there
shall appear a statement in |
| 2880 |
conspicuous type in
substantially the following form: |
| 2881 |
1. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 2882 |
SECURE THE PAYMENT OF RENT
AND OTHER EXACTIONS UNDER THE |
| 2883 |
RECREATION LEASE. THE UNIT
OWNER'S FAILURE TO MAKE THESE |
| 2884 |
PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN; or |
| 2885 |
2. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 2886 |
SECURE THE PAYMENT OF
ASSESSMENTS OR OTHER EXACTIONS COMING DUE |
| 2887 |
FOR THE USE, MAINTENANCE,
UPKEEP, OR REPAIR OF THE RECREATIONAL |
| 2888 |
OR COMMONLY USED FACILITIES.
THE UNIT OWNER'S FAILURE TO MAKE |
| 2889 |
THESE PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN. |
| 2890 |
|
| 2891 |
Immediately following the
applicable statement, the location in |
| 2892 |
the disclosure materials
where the lien or lien right is |
| 2893 |
described in detail shall be
stated. |
| 2894 |
(9) If
the developer or any other person has the right to |
| 2895 |
increase or add to the
recreational facilities at any time after |
| 2896 |
the establishment of the
condominium whose unit owners have use |
| 2897 |
rights therein, without the
consent of the unit owners or |
| 2898 |
associations being required,
there shall appear a statement in |
| 2899 |
conspicuous type in
substantially the following form: |
| 2900 |
RECREATIONAL FACILITIES MAY
BE EXPANDED OR ADDED WITHOUT CONSENT |
| 2901 |
OF UNIT OWNERS OR THE
ASSOCIATION(S). Immediately following this |
| 2902 |
statement, the location in
the disclosure materials where such |
| 2903 |
reserved rights are
described shall be stated. |
| 2904 |
(10) A
statement of whether the developer's plan includes |
| 2905 |
a program of leasing units
rather than selling them, or leasing |
| 2906 |
units and selling them
subject to such leases. If so, there |
| 2907 |
shall be a description of
the plan, including the number and |
| 2908 |
identification of the units
and the provisions and term of the |
| 2909 |
proposed leases, and a
statement in boldfaced type that: THE |
| 2910 |
UNITS MAY BE TRANSFERRED
SUBJECT TO A LEASE. |
| 2911 |
(11) The
arrangements for management of the association |
| 2912 |
and maintenance and
operation of the condominium property and of |
| 2913 |
other property that will
serve the unit owners of the |
| 2914 |
condominium property, and a
description of the management |
| 2915 |
contract and all other
contracts for these purposes having a |
| 2916 |
term in excess of 1 year,
including the following: |
| 2917 |
(a) The
names of contracting parties. |
| 2918 |
(b) The
term of the contract. |
| 2919 |
(c) The
nature of the services included. |
| 2920 |
(d) The
compensation, stated on a monthly and annual |
| 2921 |
basis, and provisions for
increases in the compensation. |
| 2922 |
(e) A
reference to the volumes and pages of the |
| 2923 |
condominium documents and of
the exhibits containing copies of |
| 2924 |
such contracts. |
| 2925 |
|
| 2926 |
Copies of all described
contracts shall be attached as exhibits. |
| 2927 |
If there is a contract for
the management of the condominium |
| 2928 |
property, then a statement
in conspicuous type in substantially |
| 2929 |
the following form shall
appear, identifying the proposed or |
| 2930 |
existing contract manager:
THERE IS (IS TO BE) A CONTRACT FOR |
| 2931 |
THE MANAGEMENT OF THE
CONDOMINIUM PROPERTY WITH (NAME OF THE |
| 2932 |
CONTRACT MANAGER).
Immediately following this statement, the |
| 2933 |
location in the disclosure
materials of the contract for |
| 2934 |
management of the
condominium property shall be stated. |
| 2935 |
(12) If
the developer or any other person or persons other |
| 2936 |
than the unit owners has the
right to retain control of the |
| 2937 |
board of administration of
the association for a period of time |
| 2938 |
which can exceed 1 year
after the closing of the sale of a |
| 2939 |
majority of the units in
that condominium to persons other than |
| 2940 |
successors or alternate
developers, then a statement in |
| 2941 |
conspicuous type in
substantially the following form shall be |
| 2942 |
included: THE DEVELOPER (OR
OTHER PERSON) HAS THE RIGHT TO |
| 2943 |
RETAIN CONTROL OF THE
ASSOCIATION AFTER A MAJORITY OF THE UNITS |
| 2944 |
HAVE BEEN SOLD. Immediately
following this statement, the |
| 2945 |
location in the disclosure
materials where this right to control |
| 2946 |
is described in detail shall
be stated. |
| 2947 |
(13) If
there are any restrictions upon the sale, |
| 2948 |
transfer, conveyance, or
leasing of a unit, then a statement in |
| 2949 |
conspicuous type in
substantially the following form shall be |
| 2950 |
included: THE SALE, LEASE,
OR TRANSFER OF UNITS IS RESTRICTED OR |
| 2951 |
CONTROLLED. Immediately
following this statement, the location |
| 2952 |
in the disclosure materials
where the restriction, limitation, |
| 2953 |
or control on the sale,
lease, or transfer of units is described |
| 2954 |
in detail shall be stated. |
| 2955 |
(14) If
the condominium is part of a phase project, the |
| 2956 |
following information shall
be stated: |
| 2957 |
(a) A
statement in conspicuous type in substantially the |
| 2958 |
following form: THIS IS A
PHASE CONDOMINIUM. ADDITIONAL LAND AND |
| 2959 |
UNITS MAY BE ADDED TO THIS
CONDOMINIUM. Immediately following |
| 2960 |
this statement, the location
in the disclosure materials where |
| 2961 |
the phasing is described
shall be stated. |
| 2962 |
(b) A
summary of the provisions of the declaration which |
| 2963 |
provide for the phasing. |
| 2964 |
(c) A
statement as to whether or not residential buildings |
| 2965 |
and units which are added to
the condominium may be |
| 2966 |
substantially different from
the residential buildings and units |
| 2967 |
originally in the
condominium. If the added residential |
| 2968 |
buildings and units may be
substantially different, there shall |
| 2969 |
be a general description of
the extent to which such added |
| 2970 |
residential buildings and
units may differ, and a statement in |
| 2971 |
conspicuous type in
substantially the following form shall be |
| 2972 |
included: BUILDINGS AND
UNITS WHICH ARE ADDED TO THE CONDOMINIUM |
| 2973 |
MAY BE SUBSTANTIALLY
DIFFERENT FROM THE OTHER BUILDINGS AND |
| 2974 |
UNITS IN THE CONDOMINIUM.
Immediately following this statement, |
| 2975 |
the location in the
disclosure materials where the extent to |
| 2976 |
which added residential
buildings and units may substantially |
| 2977 |
differ is described shall be
stated. |
| 2978 |
(d) A
statement of the maximum number of buildings |
| 2979 |
containing units, the
maximum and minimum numbers of units in |
| 2980 |
each building, the maximum
number of units, and the minimum and |
| 2981 |
maximum square footage of
the units that may be contained within |
| 2982 |
each parcel of land which
may be added to the condominium. |
| 2983 |
(15) If
a condominium created on or after July 1, 2000, is |
| 2984 |
or may become part of a
multicondominium, the following |
| 2985 |
information must be
provided: |
| 2986 |
(a) A
statement in conspicuous type in substantially the |
| 2987 |
following form: THIS
CONDOMINIUM IS (MAY BE) PART OF A |
| 2988 |
MULTICONDOMINIUM DEVELOPMENT
IN WHICH OTHER CONDOMINIUMS WILL |
| 2989 |
(MAY) BE OPERATED BY THE
SAME ASSOCIATION. Immediately following |
| 2990 |
this statement, the location
in the prospectus or offering |
| 2991 |
circular and its exhibits
where the multicondominium aspects of |
| 2992 |
the offering are described
must be stated. |
| 2993 |
(b) A
summary of the provisions in the declaration, |
| 2994 |
articles of incorporation,
and bylaws which establish and |
| 2995 |
provide for the operation of
the multicondominium, including a |
| 2996 |
statement as to whether unit
owners in the condominium will have |
| 2997 |
the right to use
recreational or other facilities located or |
| 2998 |
planned to be located in
other condominiums operated by the same |
| 2999 |
association, and the manner
of sharing the common expenses |
| 3000 |
related to such facilities. |
| 3001 |
(c) A
statement of the minimum and maximum number of |
| 3002 |
condominiums, and the
minimum and maximum number of units in |
| 3003 |
each of those condominiums,
which will or may be operated by the |
| 3004 |
association, and the latest
date by which the exact number will |
| 3005 |
be finally determined. |
| 3006 |
(d) A
statement as to whether any of the condominiums in |
| 3007 |
the multicondominium may
include units intended to be used for |
| 3008 |
nonresidential purposes and
the purpose or purposes permitted |
| 3009 |
for such use. |
| 3010 |
(e) A
general description of the location and approximate |
| 3011 |
acreage of any land on which
any additional condominiums to be |
| 3012 |
operated by the association
may be located. |
| 3013 |
(16) If
the condominium is created by conversion of |
| 3014 |
existing improvements, the
following information shall be |
| 3015 |
stated: |
| 3016 |
(a) The
information required by s. 718.616. |
| 3017 |
(b) A
caveat that there are no express warranties unless |
| 3018 |
they are stated in writing
by the developer. |
| 3019 |
(17) A
summary of the restrictions, if any, to be imposed |
| 3020 |
on units concerning the use
of any of the condominium property, |
| 3021 |
including statements as to
whether there are restrictions upon |
| 3022 |
children and pets, and
reference to the volumes and pages of the |
| 3023 |
condominium documents where
such restrictions are found, or if |
| 3024 |
such restrictions are
contained elsewhere, then a copy of the |
| 3025 |
documents containing the
restrictions shall be attached as an |
| 3026 |
exhibit. |
| 3027 |
(18) If
there is any land that is offered by the developer |
| 3028 |
for use by the unit owners
and that is neither owned by them nor |
| 3029 |
leased to them, the
association, or any entity controlled by |
| 3030 |
unit owners and other
persons having the use rights to such |
| 3031 |
land, a statement shall be
made as to how such land will serve |
| 3032 |
the condominium. If any part
of such land will serve the |
| 3033 |
condominium, the statement
shall describe the land and the |
| 3034 |
nature and term of service,
and the declaration or other |
| 3035 |
instrument creating such
servitude shall be included as an |
| 3036 |
exhibit. |
| 3037 |
(19) The
manner in which utility and other services, |
| 3038 |
including, but not limited
to, sewage and waste disposal, water |
| 3039 |
supply, and storm drainage,
will be provided and the person or |
| 3040 |
entity furnishing them. |
| 3041 |
(20) An
explanation of the manner in which the |
| 3042 |
apportionment of common
expenses and ownership of the common |
| 3043 |
elements has been
determined. |
| 3044 |
(21) An
estimated operating budget for the condominium and |
| 3045 |
the association, prepared
in good faith, and a schedule of the |
| 3046 |
unit owner's expenses shall
be attached as an exhibit and shall |
| 3047 |
contain the following
information: |
| 3048 |
(a) The
estimated monthly and annual revenues and
expenses |
| 3049 |
of the condominium and the
association that are earned by the |
| 3050 |
association
or collected from unit owners by assessments. |
| 3051 |
(b) The
estimated monthly and annual expenses of each unit |
| 3052 |
owner for a unit, other than
common expenses paid by all unit |
| 3053 |
owners, payable by the unit
owner to persons or entities other |
| 3054 |
than the association, as
well as to the association, including |
| 3055 |
fees assessed pursuant to s.
718.113(1) for maintenance of |
| 3056 |
limited common elements
where such costs are shared only by |
| 3057 |
those entitled to use the
limited common element, and the total |
| 3058 |
estimated monthly and annual
expense. There may be excluded from |
| 3059 |
this estimate expenses which
are not provided for or |
| 3060 |
contemplated by the
condominium documents, including, but not |
| 3061 |
limited to, the costs of
private telephone; maintenance of the |
| 3062 |
interior of condominium
units, which is not the obligation of |
| 3063 |
the association; maid or
janitorial services privately |
| 3064 |
contracted for by the unit
owners; utility bills billed directly |
| 3065 |
to each unit owner for
utility services to his or her unit; |
| 3066 |
insurance premiums other
than those incurred for policies |
| 3067 |
obtained by the condominium;
and similar personal expenses of |
| 3068 |
the unit owner. A unit
owner's estimated payments for |
| 3069 |
assessments shall also be
stated in the estimated amounts for |
| 3070 |
the times when they will be
due. |
| 3071 |
(c) The
estimated items of expenses of the condominium and |
| 3072 |
the association, except as
excluded under paragraph (b), |
| 3073 |
including, but not limited
to, the following items, which shall |
| 3074 |
be stated either as an
association expense collectible by |
| 3075 |
assessments or as unit
owners' expenses payable to persons other |
| 3076 |
than the association: |
| 3077 |
1. Expenses
for the association and condominium: |
| 3078 |
a. Administration
of the association. |
| 3079 |
b. Management
fees. |
| 3080 |
c. Maintenance. |
| 3081 |
d. Rent
for recreational and other commonly used |
| 3082 |
facilities. |
| 3083 |
e. Taxes
upon association property. |
| 3084 |
f. Taxes
upon leased areas. |
| 3085 |
g. Insurance. |
| 3086 |
h. Security
provisions. |
| 3087 |
i. Other
expenses. |
| 3088 |
j. Operating
capital. |
| 3089 |
k. Reserves. |
| 3090 |
l. Fees
payable to the division. |
| 3091 |
2. Expenses
for a unit owner: |
| 3092 |
a. Rent
for the unit, if subject to a lease. |
| 3093 |
b. Rent
payable by the unit owner directly to the lessor |
| 3094 |
or agent under any
recreational lease or lease for the use of |
| 3095 |
commonly used facilities,
which use and payment is a mandatory |
| 3096 |
condition of ownership and
is not included in the common expense |
| 3097 |
or assessments for common
maintenance paid by the unit owners to |
| 3098 |
the association. |
| 3099 |
(d) The
estimated amounts shall be stated for a period of |
| 3100 |
at least
12 months and may distinguish between the period prior |
| 3101 |
to the
time unit owners other than the developer elect a |
| 3102 |
majority
of the board of administration and the period after |
| 3103 |
that
date. |
| 3104 |
(22) A
schedule of estimated closing expenses to be paid |
| 3105 |
by a buyer or lessee of a
unit and a statement of whether title |
| 3106 |
opinion or title insurance
policy is available to the buyer and, |
| 3107 |
if so, at whose expense. |
| 3108 |
(23) The
identity of the developer and the chief operating |
| 3109 |
officer or principal
directing the creation and sale of the |
| 3110 |
condominium and a statement
of its and his or her experience in |
| 3111 |
this field. |
| 3112 |
(24) Copies
of the following, to the extent they are |
| 3113 |
applicable, shall be
included as exhibits: |
| 3114 |
(a) The
declaration of condominium, or the proposed |
| 3115 |
declaration if the
declaration has not been recorded. |
| 3116 |
(b) The
articles of incorporation creating the |
| 3117 |
association. |
| 3118 |
(c) The
bylaws of the association. |
| 3119 |
(d) The
ground lease or other underlying lease of the |
| 3120 |
condominium. |
| 3121 |
(e) The
management agreement and all maintenance and other |
| 3122 |
contracts for management of
the association and operation of the |
| 3123 |
condominium and facilities
used by the unit owners having a |
| 3124 |
service term in excess of 1
year. |
| 3125 |
(f) The
estimated operating budget for the condominium and |
| 3126 |
the required schedule of
unit owners' expenses. |
| 3127 |
(g) A
copy of the floor plan of the unit and the plot plan |
| 3128 |
showing the location of the
residential buildings and the |
| 3129 |
recreation and other common
areas. |
| 3130 |
(h) The
lease of recreational and other facilities that |
| 3131 |
will be used only by unit
owners of the subject condominium. |
| 3132 |
(i) The
lease of facilities used by owners and others. |
| 3133 |
(j) The
form of unit lease, if the offer is of a |
| 3134 |
leasehold. |
| 3135 |
(k) A
declaration of servitude of properties serving the |
| 3136 |
condominium but not owned by
unit owners or leased to them or |
| 3137 |
the association. |
| 3138 |
(l) The
statement of condition of the existing building or |
| 3139 |
buildings, if the offering
is of units in an operation being |
| 3140 |
converted to condominium
ownership. |
| 3141 |
(m) The
statement of inspection for termite damage and |
| 3142 |
treatment of the existing
improvements, if the condominium is a |
| 3143 |
conversion. |
| 3144 |
(n) The
form of agreement for sale or lease of units. |
| 3145 |
(o) A
copy of the agreement for escrow of payments made to |
| 3146 |
the developer prior to
closing. |
| 3147 |
(p) A
copy of the documents containing any restrictions on |
| 3148 |
use of the property required
by subsection (17). |
| 3149 |
(25) Any
prospectus or offering circular complying, prior |
| 3150 |
to the effective date of
this act, with the provisions of former |
| 3151 |
ss. 711.69 and 711.802 may
continue to be used without amendment |
| 3152 |
or may be amended to comply
with the provisions of this chapter. |
| 3153 |
(26) A
brief narrative description of the location and |
| 3154 |
effect of all existing and
intended easements located or to be |
| 3155 |
located on the condominium
property other than those described |
| 3156 |
in the declaration. |
| 3157 |
(27) If
the developer is required by state or local |
| 3158 |
authorities to obtain
acceptance or approval of any dock or |
| 3159 |
marina facilities intended
to serve the condominium, a copy of |
| 3160 |
any such acceptance or
approval acquired by the time of filing |
| 3161 |
with the division under s.
718.502(1) or a statement that such |
| 3162 |
acceptance or approval has
not been acquired or received. |
| 3163 |
(28) Evidence
demonstrating that the developer has an |
| 3164 |
ownership, leasehold, or
contractual interest in the land upon |
| 3165 |
which the condominium is to
be developed. |
| 3166 |
Section
40. Section 718.508, Florida Statutes, is amended |
| 3167 |
to read: |
| 3168 |
718.508 Regulation
by Division of Hotels and |
| 3169 |
Restaurants.--In addition to
the authority, regulation, or |
| 3170 |
control exercised by the
Division of Florida Land Sales, |
| 3171 |
Condominiums, Homeowners'
Associations, and Mobile Homes |
| 3172 |
pursuant to this act with
respect to condominiums, buildings |
| 3173 |
included in a condominium
property shall be subject to the |
| 3174 |
authority, regulation, or
control of the Division of Hotels and |
| 3175 |
Restaurants of the
Department of Business and Professional |
| 3176 |
Regulation, to the extent
provided for in chapter 399. |
| 3177 |
Section
41. Section 718.509, Florida Statutes, is amended |
| 3178 |
to read: |
| 3179 |
718.509 Division
of Florida Land Sales, Condominiums, |
| 3180 |
Homeowners'
Associations, and Mobile Homes Trust Fund.--All |
| 3181 |
funds collected by the
division and any amount paid for a fee or |
| 3182 |
penalty under this chapter
shall be deposited in the State |
| 3183 |
Treasury to the credit of
the Division of Florida Land Sales, |
| 3184 |
Condominiums, Homeowners'
Associations, and Mobile Homes Trust |
| 3185 |
Fund created by s. 498.019. |
| 3186 |
Section
42. Paragraph (a) of subsection (2) of section |
| 3187 |
718.608, Florida Statutes,
is amended to read: |
| 3188 |
718.608 Notice
of intended conversion; time of delivery; |
| 3189 |
content.-- |
| 3190 |
(2)(a) Each
notice of intended conversion shall be dated |
| 3191 |
and in writing. The notice
shall contain the following |
| 3192 |
statement, with the phrases
of the following statement which |
| 3193 |
appear in upper case printed
in conspicuous type: |
| 3194 |
|
| 3195 |
These
apartments are being converted to condominium by |
| 3196 |
(name of developer) ,
the developer. |
| 3197 |
1. YOU
MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
| 3198 |
YOUR RENTAL AGREEMENT.
FURTHER, YOU MAY EXTEND YOUR RENTAL |
| 3199 |
AGREEMENT AS FOLLOWS: |
| 3200 |
a. If
you have continuously been a resident of these |
| 3201 |
apartments during the last
180 days and your rental agreement |
| 3202 |
expires during the next 270
days, you may extend your rental |
| 3203 |
agreement for up to 270 days
after the date of this notice. |
| 3204 |
b. If
you have not been a continuous resident of these |
| 3205 |
apartments for the last 180
days and your rental agreement |
| 3206 |
expires during the next 180
days, you may extend your rental |
| 3207 |
agreement for up to 180 days
after the date of this notice. |
| 3208 |
c. IN
ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
| 3209 |
MUST GIVE THE DEVELOPER
WRITTEN NOTICE WITHIN 45 DAYS AFTER THE |
| 3210 |
DATE OF THIS NOTICE. |
| 3211 |
2. IF
YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
| 3212 |
you may extend your rental
agreement for up to 45 days after the |
| 3213 |
date of this notice while
you decide whether to extend your |
| 3214 |
rental agreement as
explained above. To do so, you must notify |
| 3215 |
the developer in writing.
You will then have the full 45 days to |
| 3216 |
decide whether to extend
your rental agreement as explained |
| 3217 |
above. |
| 3218 |
3. During
the extension of your rental agreement you will |
| 3219 |
be charged the same rent
that you are now paying. |
| 3220 |
4. YOU
MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
| 3221 |
OF THE RENTAL AGREEMENT AS
FOLLOWS: |
| 3222 |
a. If
your rental agreement began or was extended or |
| 3223 |
renewed after May 1, 1980,
and your rental agreement, including |
| 3224 |
extensions and renewals, has
an unexpired term of 180 days or |
| 3225 |
less, you may cancel your
rental agreement upon 30 days' written |
| 3226 |
notice and move. Also, upon
30 days' written notice, you may |
| 3227 |
cancel any extension of the
rental agreement. |
| 3228 |
b. If
your rental agreement was not begun or was not |
| 3229 |
extended or renewed after
May 1, 1980, you may not cancel the |
| 3230 |
rental agreement without the
consent of the developer. If your |
| 3231 |
rental agreement, including
extensions and renewals, has an |
| 3232 |
unexpired term of 180 days
or less, you may, however, upon 30 |
| 3233 |
days' written notice cancel
any extension of the rental |
| 3234 |
agreement. |
| 3235 |
5. All
notices must be given in writing and sent by mail, |
| 3236 |
return receipt requested, or
delivered in person to the |
| 3237 |
developer at this address:
(name and address of developer) . |
| 3238 |
6. If
you have continuously been a resident of these |
| 3239 |
apartments during the last
180 days: |
| 3240 |
a. You
have the right to purchase your apartment and will |
| 3241 |
have 45 days to decide
whether to purchase. If you do not buy |
| 3242 |
the unit at that price and
the unit is later offered at a lower |
| 3243 |
price, you will have the
opportunity to buy the unit at the |
| 3244 |
lower price. However, in all
events your right to purchase the |
| 3245 |
unit ends when the rental
agreement or any extension of the |
| 3246 |
rental agreement ends or
when you waive this right in writing. |
| 3247 |
b. Within
90 days you will be provided purchase |
| 3248 |
information relating to your
apartment, including the price of |
| 3249 |
your unit and the condition
of the building. If you do not |
| 3250 |
receive this information
within 90 days, your rental agreement |
| 3251 |
and any extension will be
extended 1 day for each day over 90 |
| 3252 |
days until you are given the
purchase information. If you do not |
| 3253 |
want this rental agreement
extension, you must notify the |
| 3254 |
developer in writing. |
| 3255 |
7. If
you have any questions regarding this conversion or |
| 3256 |
the Condominium Act, you may
contact the developer or the state |
| 3257 |
agency which regulates
condominiums: The Division of Florida |
| 3258 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 3259 |
Homes,
(Tallahassee address and telephone number of division) |
| 3260 |
. |
| 3261 |
Section
43. Subsection (17) of section 719.103, Florida |
| 3262 |
Statutes, is amended to
read: |
| 3263 |
719.103 Definitions.--As
used in this chapter: |
| 3264 |
(17) "Division"
means the Division of Florida Land Sales, |
| 3265 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
| 3266 |
Department of Business
and Professional Regulation. |
| 3267 |
Section
44. Subsection (7) is added to section 719.1055, |
| 3268 |
Florida Statutes, to
read: |
| 3269 |
719.1055 Amendment
of cooperative documents; alteration |
| 3270 |
and acquisition of
property.-- |
| 3271 |
(7) Any
amendment restricting cooperative owners' rights |
| 3272 |
relating to the rental
of units applies only to unit owners who |
| 3273 |
consent to the
amendment and unit owners who purchase their |
| 3274 |
units after the
effective date of that amendment. |
| 3275 |
Section
45. Section 719.1255, Florida Statutes, is amended |
| 3276 |
to read: |
| 3277 |
719.1255 Alternative
resolution of disputes.--The Division |
| 3278 |
of Florida Land Sales,
Condominiums, Homeowners' Associations, |
| 3279 |
and Mobile Homes of the
Department of Business and Professional |
| 3280 |
Regulation shall provide
for alternative dispute resolution in |
| 3281 |
accordance with s.
718.1255. |
| 3282 |
Section
46. Section 719.501, Florida Statutes, is amended |
| 3283 |
to read: |
| 3284 |
719.501 Powers
and duties of Division of Florida Land |
| 3285 |
Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 3286 |
Homes.-- |
| 3287 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 3288 |
Homeowners'
Associations, and Mobile Homes of the Department of |
| 3289 |
Business and Professional
Regulation, referred to as the |
| 3290 |
"division" in
this part, in addition to other powers and duties |
| 3291 |
prescribed by chapter
498, has the power to enforce and ensure |
| 3292 |
compliance with the
provisions of this chapter and rules |
| 3293 |
promulgated pursuant
hereto relating to the development, |
| 3294 |
construction, sale,
lease, ownership, operation, and management |
| 3295 |
of residential
cooperative units. In performing its duties, the |
| 3296 |
division shall have the
following powers and duties: |
| 3297 |
(a) The
division may make necessary public or private |
| 3298 |
investigations within or
outside this state to determine whether |
| 3299 |
any person has violated
this chapter or any rule or order |
| 3300 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
| 3301 |
in the adoption of rules
or forms hereunder. |
| 3302 |
(b) The
division may require or permit any person to file |
| 3303 |
a statement in writing,
under oath or otherwise, as the division |
| 3304 |
determines, as to the
facts and circumstances concerning a |
| 3305 |
matter to be
investigated. |
| 3306 |
(c) For
the purpose of any investigation under this |
| 3307 |
chapter, the division
director or any officer or employee |
| 3308 |
designated by the
division director may administer oaths or |
| 3309 |
affirmations, subpoena
witnesses and compel their attendance, |
| 3310 |
take evidence, and
require the production of any matter which is |
| 3311 |
relevant to the
investigation, including the existence, |
| 3312 |
description, nature,
custody, condition, and location of any |
| 3313 |
books, documents, or
other tangible things and the identity and |
| 3314 |
location of persons
having knowledge of relevant facts or any |
| 3315 |
other matter reasonably
calculated to lead to the discovery of |
| 3316 |
material evidence. Upon
failure by a person to obey a subpoena |
| 3317 |
or to answer questions
propounded by the investigating officer |
| 3318 |
and upon reasonable
notice to all persons affected thereby, the |
| 3319 |
division may apply to the
circuit court for an order compelling |
| 3320 |
compliance. |
| 3321 |
(d) Notwithstanding
any remedies available to unit owners |
| 3322 |
and associations, if the
division has reasonable cause to |
| 3323 |
believe that a violation
of any provision of this chapter or |
| 3324 |
rule promulgated pursuant
hereto has occurred, the division may |
| 3325 |
institute enforcement
proceedings in its own name against a |
| 3326 |
developer, association,
officer, or member of the board, or its |
| 3327 |
assignees or agents, as
follows: |
| 3328 |
1. The
division may permit a person whose conduct or |
| 3329 |
actions may be under
investigation to waive formal proceedings |
| 3330 |
and enter into a consent
proceeding whereby orders, rules, or |
| 3331 |
letters of censure or
warning, whether formal or informal, may |
| 3332 |
be entered against the
person. |
| 3333 |
2. The
division may issue an order requiring the |
| 3334 |
developer, association,
officer, or member of the board, or its |
| 3335 |
assignees or agents, to
cease and desist from the unlawful |
| 3336 |
practice and take such
affirmative action as in the judgment of |
| 3337 |
the division will carry
out the purposes of this chapter. Such |
| 3338 |
affirmative action may
include, but is not limited to, an order |
| 3339 |
requiring a developer to
pay moneys determined to be owed to a |
| 3340 |
condominium association. |
| 3341 |
3. The
division may bring an action in circuit court on |
| 3342 |
behalf of a class of unit
owners, lessees, or purchasers for |
| 3343 |
declaratory relief,
injunctive relief, or restitution. |
| 3344 |
4. The
division may impose a civil penalty against a |
| 3345 |
developer or association,
or its assignees or agents, for any |
| 3346 |
violation of this chapter
or a rule promulgated pursuant hereto. |
| 3347 |
The division may impose a
civil penalty individually against any |
| 3348 |
officer or board member
who willfully and knowingly violates a |
| 3349 |
provision of this
chapter, a rule adopted pursuant to this |
| 3350 |
chapter, or a final order
of the division. The term "willfully |
| 3351 |
and knowingly" means
that the division informed the officer or |
| 3352 |
board member that his or
her action or intended action violates |
| 3353 |
this chapter, a rule
adopted under this chapter, or a final |
| 3354 |
order of the division,
and that the officer or board member |
| 3355 |
refused to comply with
the requirements of this chapter, a rule |
| 3356 |
adopted under this
chapter, or a final order of the division. |
| 3357 |
The division, prior to
initiating formal agency action under |
| 3358 |
chapter 120, shall afford
the officer or board member an |
| 3359 |
opportunity to
voluntarily comply with this chapter, a rule |
| 3360 |
adopted under this
chapter, or a final order of the division. An |
| 3361 |
officer or board member
who complies within 10 days is not |
| 3362 |
subject to a civil
penalty. A penalty may be imposed on the |
| 3363 |
basis of each day of
continuing violation, but in no event shall |
| 3364 |
the penalty for any
offense exceed $5,000. By January 1, 1998, |
| 3365 |
the division shall adopt,
by rule, penalty guidelines applicable |
| 3366 |
to possible violations or
to categories of violations of this |
| 3367 |
chapter or rules adopted
by the division. The guidelines must |
| 3368 |
specify a meaningful
range of civil penalties for each such |
| 3369 |
violation of the statute
and rules and must be based upon the |
| 3370 |
harm caused by the
violation, the repetition of the violation, |
| 3371 |
and upon such other
factors deemed relevant by the division. For |
| 3372 |
example, the division may
consider whether the violations were |
| 3373 |
committed by a developer
or owner-controlled association, the |
| 3374 |
size of the association,
and other factors. The guidelines must |
| 3375 |
designate the possible
mitigating or aggravating circumstances |
| 3376 |
that justify a departure
from the range of penalties provided by |
| 3377 |
the rules. It is the
legislative intent that minor violations be |
| 3378 |
distinguished from those
which endanger the health, safety, or |
| 3379 |
welfare of the
cooperative residents or other persons and that |
| 3380 |
such guidelines provide
reasonable and meaningful notice to the |
| 3381 |
public of likely
penalties that may be imposed for proscribed |
| 3382 |
conduct. This subsection
does not limit the ability of the |
| 3383 |
division to informally
dispose of administrative actions or |
| 3384 |
complaints by
stipulation, agreed settlement, or consent order. |
| 3385 |
All amounts collected
shall be deposited with the Chief |
| 3386 |
Financial Officer to the
credit of the Division of Florida Land |
| 3387 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
| 3388 |
Trust Fund. If a
developer fails to pay the civil penalty, the |
| 3389 |
division shall thereupon
issue an order directing that such |
| 3390 |
developer cease and
desist from further operation until such |
| 3391 |
time as the civil penalty
is paid or may pursue enforcement of |
| 3392 |
the penalty in a court of
competent jurisdiction. If an |
| 3393 |
association fails to pay
the civil penalty, the division shall |
| 3394 |
thereupon pursue
enforcement in a court of competent |
| 3395 |
jurisdiction, and the
order imposing the civil penalty or the |
| 3396 |
cease and desist order
shall not become effective until 20 days |
| 3397 |
after the date of such
order. Any action commenced by the |
| 3398 |
division shall be brought
in the county in which the division |
| 3399 |
has its executive offices
or in the county where the violation |
| 3400 |
occurred. |
| 3401 |
(e) The
division is authorized to prepare and disseminate |
| 3402 |
a prospectus and other
information to assist prospective owners, |
| 3403 |
purchasers, lessees, and
developers of residential cooperatives |
| 3404 |
in assessing the rights,
privileges, and duties pertaining |
| 3405 |
thereto. |
| 3406 |
(f) The
division has authority to adopt rules pursuant to |
| 3407 |
ss. 120.536(1) and 120.54
to implement and enforce the |
| 3408 |
provisions of this
chapter. |
| 3409 |
(g) The
division shall establish procedures for providing |
| 3410 |
notice to an association
when the division is considering the |
| 3411 |
issuance of a declaratory
statement with respect to the |
| 3412 |
cooperative documents
governing such cooperative community. |
| 3413 |
(h) The
division shall furnish each association which pays |
| 3414 |
the fees required by
paragraph (2)(a) a copy of this act, |
| 3415 |
subsequent changes to
this act on an annual basis, an amended |
| 3416 |
version of this act as it
becomes available from the Secretary |
| 3417 |
of State's office on a
biennial basis, and the rules promulgated |
| 3418 |
pursuant thereto on an
annual basis. |
| 3419 |
(i) The
division shall annually provide each association |
| 3420 |
with a summary of
declaratory statements and formal legal |
| 3421 |
opinions relating to the
operations of cooperatives which were |
| 3422 |
rendered by the division
during the previous year. |
| 3423 |
(j) The
division shall adopt uniform accounting |
| 3424 |
principles, policies, and
standards to be used by all |
| 3425 |
associations in the
preparation and presentation of all |
| 3426 |
financial statements
required by this chapter. The principles, |
| 3427 |
policies, and standards
shall take into consideration the size |
| 3428 |
of the association and
the total revenue collected by the |
| 3429 |
association. |
| 3430 |
(k) The
division shall provide training programs for |
| 3431 |
cooperative association
board members and unit owners. |
| 3432 |
(l) The
division shall maintain a toll-free telephone |
| 3433 |
number accessible to
cooperative unit owners. |
| 3434 |
(m) When
a complaint is made to the division, the division |
| 3435 |
shall conduct its inquiry
with reasonable dispatch and with due |
| 3436 |
regard to the interests
of the affected parties. Within 30 days |
| 3437 |
after receipt of a
complaint, the division shall acknowledge the |
| 3438 |
complaint in writing and
notify the complainant whether the |
| 3439 |
complaint is within the
jurisdiction of the division and whether |
| 3440 |
additional information is
needed by the division from the |
| 3441 |
complainant. The division
shall conduct its investigation and |
| 3442 |
shall, within 90 days
after receipt of the original complaint or |
| 3443 |
timely requested
additional information, take action upon the |
| 3444 |
complaint. However, the
failure to complete the investigation |
| 3445 |
within 90 days does not
prevent the division from continuing the |
| 3446 |
investigation, accepting
or considering evidence obtained or |
| 3447 |
received after 90 days,
or taking administrative action if |
| 3448 |
reasonable cause exists
to believe that a violation of this |
| 3449 |
chapter or a rule of the
division has occurred. If an |
| 3450 |
investigation is not
completed within the time limits |
| 3451 |
established in this
paragraph, the division shall, on a monthly |
| 3452 |
basis, notify the
complainant in writing of the status of the |
| 3453 |
investigation. When
reporting its action to the complainant, the |
| 3454 |
division shall inform the
complainant of any right to a hearing |
| 3455 |
pursuant to ss. 120.569
and 120.57. |
| 3456 |
(n) The
division shall develop a program to certify both |
| 3457 |
volunteer and paid
mediators to provide mediation of cooperative |
| 3458 |
disputes. The division
shall provide, upon request, a list of |
| 3459 |
such mediators to any
association, unit owner, or other |
| 3460 |
participant in
arbitration proceedings under s. 718.1255 |
| 3461 |
requesting a copy of the
list. The division shall include on the |
| 3462 |
list of voluntary
mediators only persons who have received at |
| 3463 |
least 20 hours of
training in mediation techniques or have |
| 3464 |
mediated at least 20
disputes. In order to become initially |
| 3465 |
certified by the
division, paid mediators must be certified by |
| 3466 |
the Supreme Court to
mediate court cases in either county or |
| 3467 |
circuit courts. However,
the division may adopt, by rule, |
| 3468 |
additional factors for
the certification of paid mediators, |
| 3469 |
which factors must be
related to experience, education, or |
| 3470 |
background. Any person
initially certified as a paid mediator by |
| 3471 |
the division must, in
order to continue to be certified, comply |
| 3472 |
with the factors or
requirements imposed by rules adopted by the |
| 3473 |
division. |
| 3474 |
(2)(a) Each
cooperative association shall pay to the |
| 3475 |
division, on or before
January 1 of each year, an annual fee in |
| 3476 |
the amount of $4 for each
residential unit in cooperatives |
| 3477 |
operated by the
association. If the fee is not paid by March 1, |
| 3478 |
then the association
shall be assessed a penalty of 10 percent |
| 3479 |
of the amount due, and
the association shall not have the |
| 3480 |
standing to maintain or
defend any action in the courts of this |
| 3481 |
state until the amount
due is paid. |
| 3482 |
(b) All
fees shall be deposited in the Division of Florida |
| 3483 |
Land Sales, Condominiums,
Homeowners' Associations, and Mobile |
| 3484 |
Homes Trust Fund as
provided by law. |
| 3485 |
Section
47. Paragraph (a) of subsection (2) of section |
| 3486 |
719.502, Florida
Statutes, is amended to read: |
| 3487 |
719.502 Filing
prior to sale or lease.-- |
| 3488 |
(2)(a) Prior
to filing as required by subsection (1), and |
| 3489 |
prior to acquiring an
ownership, leasehold, or contractual |
| 3490 |
interest in the land upon
which the cooperative is to be |
| 3491 |
developed, a developer
shall not offer a contract for purchase |
| 3492 |
or lease of a unit for
more than 5 years. However, the developer |
| 3493 |
may accept deposits for
reservations upon the approval of a |
| 3494 |
fully executed escrow
agreement and reservation agreement form |
| 3495 |
properly filed with the
Division of Florida Land Sales, |
| 3496 |
Condominiums, Homeowners'
Associations, and Mobile Homes. Each |
| 3497 |
filing of a proposed
reservation program shall be accompanied by |
| 3498 |
a filing fee of $250.
Reservations shall not be taken on a |
| 3499 |
proposed cooperative
unless the developer has an ownership, |
| 3500 |
leasehold, or contractual
interest in the land upon which the |
| 3501 |
cooperative is to be
developed. The division shall notify the |
| 3502 |
developer within 20 days
of receipt of the reservation filing of |
| 3503 |
any deficiencies
contained therein. Such notification shall not |
| 3504 |
preclude the
determination of reservation filing deficiencies at |
| 3505 |
a later date, nor shall
it relieve the developer of any |
| 3506 |
responsibility under the
law. The escrow agreement and the |
| 3507 |
reservation agreement
form shall include a statement of the |
| 3508 |
right of the prospective
purchaser to an immediate unqualified |
| 3509 |
refund of the reservation
deposit moneys upon written request to |
| 3510 |
the escrow agent by the
prospective purchaser or the developer. |
| 3511 |
Section
48. Section 719.504, Florida Statutes, is amended |
| 3512 |
to read: |
| 3513 |
719.504 Prospectus
or offering circular.--Every developer |
| 3514 |
of a residential
cooperative which contains more than 20 |
| 3515 |
residential units, or
which is part of a group of residential |
| 3516 |
cooperatives which will
be served by property to be used in |
| 3517 |
common by unit owners of
more than 20 residential units, shall |
| 3518 |
prepare a prospectus or
offering circular and file it with the |
| 3519 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 3520 |
Associations, and
Mobile Homes prior to entering into an |
| 3521 |
enforceable contract of
purchase and sale of any unit or lease |
| 3522 |
of a unit for more than 5
years and shall furnish a copy of the |
| 3523 |
prospectus or offering
circular to each buyer. In addition to |
| 3524 |
the prospectus or
offering circular, each buyer shall be |
| 3525 |
furnished a separate page
entitled "Frequently Asked Questions |
| 3526 |
and Answers," which
must be in accordance with a format approved |
| 3527 |
by the division. This
page must, in readable language: inform |
| 3528 |
prospective purchasers
regarding their voting rights and unit |
| 3529 |
use restrictions,
including restrictions on the leasing of a |
| 3530 |
unit; indicate whether
and in what amount the unit owners or the |
| 3531 |
association is obligated
to pay rent or land use fees for |
| 3532 |
recreational or other
commonly used facilities; contain a |
| 3533 |
statement identifying
that amount of assessment which, pursuant |
| 3534 |
to the budget, would be
levied upon each unit type, exclusive of |
| 3535 |
any special assessments,
and which identifies the basis upon |
| 3536 |
which assessments are
levied, whether monthly, quarterly, or |
| 3537 |
otherwise; state and
identify any court cases in which the |
| 3538 |
association is currently
a party of record in which the |
| 3539 |
association may face
liability in excess of $100,000; and state |
| 3540 |
whether membership in a
recreational facilities association is |
| 3541 |
mandatory and, if so,
identify the fees currently charged per |
| 3542 |
unit type. The division
shall by rule require such other |
| 3543 |
disclosure as in its
judgment will assist prospective |
| 3544 |
purchasers. The
prospectus or offering circular may include more |
| 3545 |
than one cooperative,
although not all such units are being |
| 3546 |
offered for sale as of
the date of the prospectus or offering |
| 3547 |
circular. The prospectus
or offering circular must contain the |
| 3548 |
following information: |
| 3549 |
(1) The
front cover or the first page must contain only: |
| 3550 |
(a) The
name of the cooperative. |
| 3551 |
(b) The
following statements in conspicuous type: |
| 3552 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
| 3553 |
MATTERS TO BE CONSIDERED
IN ACQUIRING A COOPERATIVE UNIT. |
| 3554 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
| 3555 |
NATURE. A PROSPECTIVE
PURCHASER SHOULD REFER TO ALL REFERENCES, |
| 3556 |
ALL EXHIBITS HERETO, THE
CONTRACT DOCUMENTS, AND SALES |
| 3557 |
MATERIALS. |
| 3558 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
| 3559 |
STATING THE
REPRESENTATIONS OF THE DEVELOPER. REFER TO THIS |
| 3560 |
PROSPECTUS (OFFERING
CIRCULAR) AND ITS EXHIBITS FOR CORRECT |
| 3561 |
REPRESENTATIONS. |
| 3562 |
(2) Summary:
The next page must contain all statements |
| 3563 |
required to be in
conspicuous type in the prospectus or offering |
| 3564 |
circular. |
| 3565 |
(3) A
separate index of the contents and exhibits of the |
| 3566 |
prospectus. |
| 3567 |
(4) Beginning
on the first page of the text (not including |
| 3568 |
the summary and index), a
description of the cooperative, |
| 3569 |
including, but not
limited to, the following information: |
| 3570 |
(a) Its
name and location. |
| 3571 |
(b) A
description of the cooperative property, including, |
| 3572 |
without limitation: |
| 3573 |
1. The
number of buildings, the number of units in each |
| 3574 |
building, the number of
bathrooms and bedrooms in each unit, and |
| 3575 |
the total number of
units, if the cooperative is not a phase |
| 3576 |
cooperative; or, if the
cooperative is a phase cooperative, the |
| 3577 |
maximum number of
buildings that may be contained within the |
| 3578 |
cooperative, the minimum
and maximum number of units in each |
| 3579 |
building, the minimum and
maximum number of bathrooms and |
| 3580 |
bedrooms that may be
contained in each unit, and the maximum |
| 3581 |
number of units that may
be contained within the cooperative. |
| 3582 |
2. The
page in the cooperative documents where a copy of |
| 3583 |
the survey and plot plan
of the cooperative is located. |
| 3584 |
3. The
estimated latest date of completion of |
| 3585 |
constructing, finishing,
and equipping. In lieu of a date, a |
| 3586 |
statement that the
estimated date of completion of the |
| 3587 |
cooperative is in the
purchase agreement and a reference to the |
| 3588 |
article or paragraph
containing that information. |
| 3589 |
(c) The
maximum number of units that will use facilities |
| 3590 |
in common with the
cooperative. If the maximum number of units |
| 3591 |
will vary, a description
of the basis for variation and the |
| 3592 |
minimum amount of dollars
per unit to be spent for additional |
| 3593 |
recreational facilities
or enlargement of such facilities. If |
| 3594 |
the addition or
enlargement of facilities will result in a |
| 3595 |
material increase of a
unit owner's maintenance expense or |
| 3596 |
rental expense, if any,
the maximum increase and limitations |
| 3597 |
thereon shall be stated. |
| 3598 |
(5)(a) A
statement in conspicuous type describing whether |
| 3599 |
the cooperative is
created and being sold as fee simple |
| 3600 |
interests or as leasehold
interests. If the cooperative is |
| 3601 |
created or being sold on
a leasehold, the location of the lease |
| 3602 |
in the disclosure
materials shall be stated. |
| 3603 |
(b) If
timeshare estates are or may be created with |
| 3604 |
respect to any unit in
the cooperative, a statement in |
| 3605 |
conspicuous type stating
that timeshare estates are created and |
| 3606 |
being sold in such
specified units in the cooperative. |
| 3607 |
(6) A
description of the recreational and other common |
| 3608 |
areas that will be used
only by unit owners of the cooperative, |
| 3609 |
including, but not
limited to, the following: |
| 3610 |
(a) Each
room and its intended purposes, location, |
| 3611 |
approximate floor area,
and capacity in numbers of people. |
| 3612 |
(b) Each
swimming pool, as to its general location, |
| 3613 |
approximate size and
depths, approximate deck size and capacity, |
| 3614 |
and whether heated. |
| 3615 |
(c) Additional
facilities, as to the number of each |
| 3616 |
facility, its approximate
location, approximate size, and |
| 3617 |
approximate capacity. |
| 3618 |
(d) A
general description of the items of personal |
| 3619 |
property and the
approximate number of each item of personal |
| 3620 |
property that the
developer is committing to furnish for each |
| 3621 |
room or other facility
or, in the alternative, a representation |
| 3622 |
as to the minimum amount
of expenditure that will be made to |
| 3623 |
purchase the personal
property for the facility. |
| 3624 |
(e) The
estimated date when each room or other facility |
| 3625 |
will be available for use
by the unit owners. |
| 3626 |
(f)1. An
identification of each room or other facility to |
| 3627 |
be used by unit owners
that will not be owned by the unit owners |
| 3628 |
or the association; |
| 3629 |
2. A
reference to the location in the disclosure materials |
| 3630 |
of the lease or other
agreements providing for the use of those |
| 3631 |
facilities; and |
| 3632 |
3. A
description of the terms of the lease or other |
| 3633 |
agreements, including the
length of the term; the rent payable, |
| 3634 |
directly or indirectly,
by each unit owner, and the total rent |
| 3635 |
payable to the lessor,
stated in monthly and annual amounts for |
| 3636 |
the entire term of the
lease; and a description of any option to |
| 3637 |
purchase the property
leased under any such lease, including the |
| 3638 |
time the option may be
exercised, the purchase price or how it |
| 3639 |
is to be determined, the
manner of payment, and whether the |
| 3640 |
option may be exercised
for a unit owner's share or only as to |
| 3641 |
the entire leased
property. |
| 3642 |
(g) A
statement as to whether the developer may provide |
| 3643 |
additional facilities not
described above, their general |
| 3644 |
locations and types,
improvements or changes that may be made, |
| 3645 |
the approximate dollar
amount to be expended, and the maximum |
| 3646 |
additional common expense
or cost to the individual unit owners |
| 3647 |
that may be charged
during the first annual period of operation |
| 3648 |
of the modified or added
facilities. |
| 3649 |
|
| 3650 |
Descriptions as to
locations, areas, capacities, numbers, |
| 3651 |
volumes, or sizes may be
stated as approximations or minimums. |
| 3652 |
(7) A
description of the recreational and other facilities |
| 3653 |
that will be used in
common with other cooperatives, community |
| 3654 |
associations, or planned
developments which require the payment |
| 3655 |
of the maintenance and
expenses of such facilities, either |
| 3656 |
directly or indirectly,
by the unit owners. The description |
| 3657 |
shall include, but not be
limited to, the following: |
| 3658 |
(a) Each
building and facility committed to be built. |
| 3659 |
(b) Facilities
not committed to be built except under |
| 3660 |
certain conditions, and a
statement of those conditions or |
| 3661 |
contingencies. |
| 3662 |
(c) As
to each facility committed to be built, or which |
| 3663 |
will be committed to be
built upon the happening of one of the |
| 3664 |
conditions in paragraph
(b), a statement of whether it will be |
| 3665 |
owned by the unit owners
having the use thereof or by an |
| 3666 |
association or other
entity which will be controlled by them, or |
| 3667 |
others, and the location
in the exhibits of the lease or other |
| 3668 |
document providing for
use of those facilities. |
| 3669 |
(d) The
year in which each facility will be available for |
| 3670 |
use by the unit owners
or, in the alternative, the maximum |
| 3671 |
number of unit owners in
the project at the time each of all of |
| 3672 |
the facilities is
committed to be completed. |
| 3673 |
(e) A
general description of the items of personal |
| 3674 |
property, and the
approximate number of each item of personal |
| 3675 |
property, that the
developer is committing to furnish for each |
| 3676 |
room or other facility
or, in the alternative, a representation |
| 3677 |
as to the minimum amount
of expenditure that will be made to |
| 3678 |
purchase the personal
property for the facility. |
| 3679 |
(f) If
there are leases, a description thereof, including |
| 3680 |
the length of the term,
the rent payable, and a description of |
| 3681 |
any option to purchase. |
| 3682 |
|
| 3683 |
Descriptions shall
include location, areas, capacities, numbers, |
| 3684 |
volumes, or sizes and may
be stated as approximations or |
| 3685 |
minimums. |
| 3686 |
(8) Recreation
lease or associated club membership: |
| 3687 |
(a) If
any recreational facilities or other common areas |
| 3688 |
offered by the developer
and available to, or to be used by, |
| 3689 |
unit owners are to be
leased or have club membership associated, |
| 3690 |
the following statement
in conspicuous type shall be included: |
| 3691 |
THERE IS A RECREATIONAL
FACILITIES LEASE ASSOCIATED WITH THIS |
| 3692 |
COOPERATIVE; or, THERE IS
A CLUB MEMBERSHIP ASSOCIATED WITH THIS |
| 3693 |
COOPERATIVE. There shall
be a reference to the location in the |
| 3694 |
disclosure materials
where the recreation lease or club |
| 3695 |
membership is described
in detail. |
| 3696 |
(b) If
it is mandatory that unit owners pay a fee, rent, |
| 3697 |
dues, or other charges
under a recreational facilities lease or |
| 3698 |
club membership for the
use of facilities, there shall be in |
| 3699 |
conspicuous type the
applicable statement: |
| 3700 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
| 3701 |
MANDATORY FOR UNIT
OWNERS; or |
| 3702 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
| 3703 |
TO BE LESSEES UNDER THE
RECREATIONAL FACILITIES LEASE; or |
| 3704 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
| 3705 |
COSTS AND EXPENSES OF
MAINTENANCE, MANAGEMENT, UPKEEP, |
| 3706 |
REPLACEMENT, RENT, AND
FEES UNDER THE RECREATIONAL FACILITIES |
| 3707 |
LEASE (OR THE OTHER
INSTRUMENTS PROVIDING THE FACILITIES); or |
| 3708 |
4. A
similar statement of the nature of the organization |
| 3709 |
or manner in which the
use rights are created, and that unit |
| 3710 |
owners are required to
pay. |
| 3711 |
|
| 3712 |
Immediately following the
applicable statement, the location in |
| 3713 |
the disclosure materials
where the development is described in |
| 3714 |
detail shall be stated. |
| 3715 |
(c) If
the developer, or any other person other than the |
| 3716 |
unit owners and other
persons having use rights in the |
| 3717 |
facilities, reserves, or
is entitled to receive, any rent, fee, |
| 3718 |
or other payment for the
use of the facilities, then there shall |
| 3719 |
be the following
statement in conspicuous type: THE UNIT OWNERS |
| 3720 |
OR THE ASSOCIATION(S)
MUST PAY RENT OR LAND USE FEES FOR |
| 3721 |
RECREATIONAL OR OTHER
COMMON AREAS. Immediately following this |
| 3722 |
statement, the location
in the disclosure materials where the |
| 3723 |
rent or land use fees are
described in detail shall be stated. |
| 3724 |
(d) If,
in any recreation format, whether leasehold, club, |
| 3725 |
or other, any person
other than the association has the right to |
| 3726 |
a lien on the units to
secure the payment of assessments, rent, |
| 3727 |
or other exactions, there
shall appear a statement in |
| 3728 |
conspicuous type in
substantially the following form: |
| 3729 |
1. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 3730 |
SECURE THE PAYMENT OF
RENT AND OTHER EXACTIONS UNDER THE |
| 3731 |
RECREATION LEASE. THE
UNIT OWNER'S FAILURE TO MAKE THESE |
| 3732 |
PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN; or |
| 3733 |
2. THERE
IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
| 3734 |
SECURE THE PAYMENT OF
ASSESSMENTS OR OTHER EXACTIONS COMING DUE |
| 3735 |
FOR THE USE, MAINTENANCE,
UPKEEP, OR REPAIR OF THE RECREATIONAL |
| 3736 |
OR COMMONLY USED AREAS.
THE UNIT OWNER'S FAILURE TO MAKE THESE |
| 3737 |
PAYMENTS MAY RESULT IN
FORECLOSURE OF THE LIEN. |
| 3738 |
|
| 3739 |
Immediately following the
applicable statement, the location in |
| 3740 |
the disclosure materials
where the lien or lien right is |
| 3741 |
described in detail shall
be stated. |
| 3742 |
(9) If
the developer or any other person has the right to |
| 3743 |
increase or add to the
recreational facilities at any time after |
| 3744 |
the establishment of the
cooperative whose unit owners have use |
| 3745 |
rights therein, without
the consent of the unit owners or |
| 3746 |
associations being
required, there shall appear a statement in |
| 3747 |
conspicuous type in
substantially the following form: |
| 3748 |
RECREATIONAL FACILITIES
MAY BE EXPANDED OR ADDED WITHOUT CONSENT |
| 3749 |
OF UNIT OWNERS OR THE
ASSOCIATION(S). Immediately following this |
| 3750 |
statement, the location
in the disclosure materials where such |
| 3751 |
reserved rights are
described shall be stated. |
| 3752 |
(10) A
statement of whether the developer's plan includes |
| 3753 |
a program of leasing
units rather than selling them, or leasing |
| 3754 |
units and selling them
subject to such leases. If so, there |
| 3755 |
shall be a description of
the plan, including the number and |
| 3756 |
identification of the
units and the provisions and term of the |
| 3757 |
proposed leases, and a
statement in boldfaced type that: THE |
| 3758 |
UNITS MAY BE TRANSFERRED
SUBJECT TO A LEASE. |
| 3759 |
(11) The
arrangements for management of the association |
| 3760 |
and maintenance and
operation of the cooperative property and of |
| 3761 |
other property that will
serve the unit owners of the |
| 3762 |
cooperative property, and
a description of the management |
| 3763 |
contract and all other
contracts for these purposes having a |
| 3764 |
term in excess of 1 year,
including the following: |
| 3765 |
(a) The
names of contracting parties. |
| 3766 |
(b) The
term of the contract. |
| 3767 |
(c) The
nature of the services included. |
| 3768 |
(d) The
compensation, stated on a monthly and annual |
| 3769 |
basis, and provisions for
increases in the compensation. |
| 3770 |
(e) A
reference to the volumes and pages of the |
| 3771 |
cooperative documents and
of the exhibits containing copies of |
| 3772 |
such contracts. |
| 3773 |
|
| 3774 |
Copies of all described
contracts shall be attached as exhibits. |
| 3775 |
If there is a contract
for the management of the cooperative |
| 3776 |
property, then a
statement in conspicuous type in substantially |
| 3777 |
the following form shall
appear, identifying the proposed or |
| 3778 |
existing contract
manager: THERE IS (IS TO BE) A CONTRACT FOR |
| 3779 |
THE MANAGEMENT OF THE
COOPERATIVE PROPERTY WITH (NAME OF THE |
| 3780 |
CONTRACT MANAGER).
Immediately following this statement, the |
| 3781 |
location in the
disclosure materials of the contract for |
| 3782 |
management of the
cooperative property shall be stated. |
| 3783 |
(12) If
the developer or any other person or persons other |
| 3784 |
than the unit owners has
the right to retain control of the |
| 3785 |
board of administration
of the association for a period of time |
| 3786 |
which can exceed 1 year
after the closing of the sale of a |
| 3787 |
majority of the units in
that cooperative to persons other than |
| 3788 |
successors or alternate
developers, then a statement in |
| 3789 |
conspicuous type in
substantially the following form shall be |
| 3790 |
included: THE DEVELOPER
(OR OTHER PERSON) HAS THE RIGHT TO |
| 3791 |
RETAIN CONTROL OF THE
ASSOCIATION AFTER A MAJORITY OF THE UNITS |
| 3792 |
HAVE BEEN SOLD.
Immediately following this statement, the |
| 3793 |
location in the
disclosure materials where this right to control |
| 3794 |
is described in detail
shall be stated. |
| 3795 |
(13) If
there are any restrictions upon the sale, |
| 3796 |
transfer, conveyance, or
leasing of a unit, then a statement in |
| 3797 |
conspicuous type in
substantially the following form shall be |
| 3798 |
included: THE SALE,
LEASE, OR TRANSFER OF UNITS IS RESTRICTED OR |
| 3799 |
CONTROLLED. Immediately
following this statement, the location |
| 3800 |
in the disclosure
materials where the restriction, limitation, |
| 3801 |
or control on the sale,
lease, or transfer of units is described |
| 3802 |
in detail shall be
stated. |
| 3803 |
(14) If
the cooperative is part of a phase project, the |
| 3804 |
following shall be
stated: |
| 3805 |
(a) A
statement in conspicuous type in substantially the |
| 3806 |
following form shall be
included: THIS IS A PHASE COOPERATIVE. |
| 3807 |
ADDITIONAL LAND AND UNITS
MAY BE ADDED TO THIS COOPERATIVE. |
| 3808 |
Immediately following
this statement, the location in the |
| 3809 |
disclosure materials
where the phasing is described shall be |
| 3810 |
stated. |
| 3811 |
(b) A
summary of the provisions of the declaration |
| 3812 |
providing for the
phasing. |
| 3813 |
(c) A
statement as to whether or not residential buildings |
| 3814 |
and units which are added
to the cooperative may be |
| 3815 |
substantially different
from the residential buildings and units |
| 3816 |
originally in the
cooperative, and, if the added residential |
| 3817 |
buildings and units may
be substantially different, there shall |
| 3818 |
be a general description
of the extent to which such added |
| 3819 |
residential buildings and
units may differ, and a statement in |
| 3820 |
conspicuous type in
substantially the following form shall be |
| 3821 |
included: BUILDINGS AND
UNITS WHICH ARE ADDED TO THE COOPERATIVE |
| 3822 |
MAY BE SUBSTANTIALLY
DIFFERENT FROM THE OTHER BUILDINGS AND |
| 3823 |
UNITS IN THE COOPERATIVE.
Immediately following this statement, |
| 3824 |
the location in the
disclosure materials where the extent to |
| 3825 |
which added residential
buildings and units may substantially |
| 3826 |
differ is described shall
be stated. |
| 3827 |
(d) A
statement of the maximum number of buildings |
| 3828 |
containing units, the
maximum and minimum number of units in |
| 3829 |
each building, the
maximum number of units, and the minimum and |
| 3830 |
maximum square footage of
the units that may be contained within |
| 3831 |
each parcel of land which
may be added to the cooperative. |
| 3832 |
(15) If
the cooperative is created by conversion of |
| 3833 |
existing improvements,
the following information shall be |
| 3834 |
stated: |
| 3835 |
(a) The
information required by s. 719.616. |
| 3836 |
(b) A
caveat that there are no express warranties unless |
| 3837 |
they are stated in
writing by the developer. |
| 3838 |
(16) A
summary of the restrictions, if any, to be imposed |
| 3839 |
on units concerning the
use of any of the cooperative property, |
| 3840 |
including statements as
to whether there are restrictions upon |
| 3841 |
children and pets, and
reference to the volumes and pages of the |
| 3842 |
cooperative documents
where such restrictions are found, or if |
| 3843 |
such restrictions are
contained elsewhere, then a copy of the |
| 3844 |
documents containing the
restrictions shall be attached as an |
| 3845 |
exhibit. |
| 3846 |
(17) If
there is any land that is offered by the developer |
| 3847 |
for use by the unit
owners and that is neither owned by them nor |
| 3848 |
leased to them, the
association, or any entity controlled by |
| 3849 |
unit owners and other
persons having the use rights to such |
| 3850 |
land, a statement shall
be made as to how such land will serve |
| 3851 |
the cooperative. If any
part of such land will serve the |
| 3852 |
cooperative, the
statement shall describe the land and the |
| 3853 |
nature and term of
service, and the cooperative documents or |
| 3854 |
other instrument creating
such servitude shall be included as an |
| 3855 |
exhibit. |
| 3856 |
(18) The
manner in which utility and other services, |
| 3857 |
including, but not
limited to, sewage and waste disposal, water |
| 3858 |
supply, and storm
drainage, will be provided and the person or |
| 3859 |
entity furnishing them. |
| 3860 |
(19) An
explanation of the manner in which the |
| 3861 |
apportionment of common
expenses and ownership of the common |
| 3862 |
areas have been
determined. |
| 3863 |
(20) An
estimated operating budget for the cooperative and |
| 3864 |
the association, and a
schedule of the unit owner's expenses |
| 3865 |
shall be attached as an
exhibit and shall contain the following |
| 3866 |
information: |
| 3867 |
(a) The
estimated monthly and annual expenses of the |
| 3868 |
cooperative and the
association that are collected from unit |
| 3869 |
owners by assessments. |
| 3870 |
(b) The
estimated monthly and annual expenses of each unit |
| 3871 |
owner for a unit, other
than assessments payable to the |
| 3872 |
association, payable by
the unit owner to persons or entities |
| 3873 |
other than the
association, and the total estimated monthly and |
| 3874 |
annual expense. There may
be excluded from this estimate |
| 3875 |
expenses that are
personal to unit owners, which are not |
| 3876 |
uniformly incurred by all
unit owners, or which are not provided |
| 3877 |
for or contemplated by
the cooperative documents, including, but |
| 3878 |
not limited to, the costs
of private telephone; maintenance of |
| 3879 |
the interior of
cooperative units, which is not the obligation |
| 3880 |
of the association; maid
or janitorial services privately |
| 3881 |
contracted for by the
unit owners; utility bills billed directly |
| 3882 |
to each unit owner for
utility services to his or her unit; |
| 3883 |
insurance premiums other
than those incurred for policies |
| 3884 |
obtained by the
cooperative; and similar personal expenses of |
| 3885 |
the unit owner. A unit
owner's estimated payments for |
| 3886 |
assessments shall also be
stated in the estimated amounts for |
| 3887 |
the times when they will
be due. |
| 3888 |
(c) The
estimated items of expenses of the cooperative and |
| 3889 |
the association, except
as excluded under paragraph (b), |
| 3890 |
including, but not
limited to, the following items, which shall |
| 3891 |
be stated either as an
association expense collectible by |
| 3892 |
assessments or as unit
owners' expenses payable to persons other |
| 3893 |
than the association: |
| 3894 |
1. Expenses
for the association and cooperative: |
| 3895 |
a. Administration
of the association. |
| 3896 |
b. Management
fees. |
| 3897 |
c. Maintenance. |
| 3898 |
d. Rent
for recreational and other commonly used areas. |
| 3899 |
e. Taxes
upon association property. |
| 3900 |
f. Taxes
upon leased areas. |
| 3901 |
g. Insurance. |
| 3902 |
h. Security
provisions. |
| 3903 |
i. Other
expenses. |
| 3904 |
j. Operating
capital. |
| 3905 |
k. Reserves. |
| 3906 |
l. Fee
payable to the division. |
| 3907 |
2. Expenses
for a unit owner: |
| 3908 |
a. Rent
for the unit, if subject to a lease. |
| 3909 |
b. Rent
payable by the unit owner directly to the lessor |
| 3910 |
or agent under any
recreational lease or lease for the use of |
| 3911 |
commonly used areas,
which use and payment are a mandatory |
| 3912 |
condition of ownership
and are not included in the common |
| 3913 |
expense or assessments
for common maintenance paid by the unit |
| 3914 |
owners to the
association. |
| 3915 |
(d) The
estimated amounts shall be stated for a period of |
| 3916 |
at least 12 months and
may distinguish between the period prior |
| 3917 |
to the time unit owners
other than the developer elect a |
| 3918 |
majority of the board of
administration and the period after |
| 3919 |
that date. |
| 3920 |
(21) A
schedule of estimated closing expenses to be paid |
| 3921 |
by a buyer or lessee of a
unit and a statement of whether title |
| 3922 |
opinion or title
insurance policy is available to the buyer and, |
| 3923 |
if so, at whose expense. |
| 3924 |
(22) The
identity of the developer and the chief operating |
| 3925 |
officer or principal
directing the creation and sale of the |
| 3926 |
cooperative and a
statement of its and his or her experience in |
| 3927 |
this field. |
| 3928 |
(23) Copies
of the following, to the extent they are |
| 3929 |
applicable, shall be
included as exhibits: |
| 3930 |
(a) The
cooperative documents, or the proposed cooperative |
| 3931 |
documents if the
documents have not been recorded. |
| 3932 |
(b) The
articles of incorporation creating the |
| 3933 |
association. |
| 3934 |
(c) The
bylaws of the association. |
| 3935 |
(d) The
ground lease or other underlying lease of the |
| 3936 |
cooperative. |
| 3937 |
(e) The
management agreement and all maintenance and other |
| 3938 |
contracts for management
of the association and operation of the |
| 3939 |
cooperative and
facilities used by the unit owners having a |
| 3940 |
service term in excess of
1 year. |
| 3941 |
(f) The
estimated operating budget for the cooperative and |
| 3942 |
the required schedule of
unit owners' expenses. |
| 3943 |
(g) A
copy of the floor plan of the unit and the plot plan |
| 3944 |
showing the location of
the residential buildings and the |
| 3945 |
recreation and other
common areas. |
| 3946 |
(h) The
lease of recreational and other facilities that |
| 3947 |
will be used only by unit
owners of the subject cooperative. |
| 3948 |
(i) The
lease of facilities used by owners and others. |
| 3949 |
(j) The
form of unit lease, if the offer is of a |
| 3950 |
leasehold. |
| 3951 |
(k) A
declaration of servitude of properties serving the |
| 3952 |
cooperative but not owned
by unit owners or leased to them or |
| 3953 |
the association. |
| 3954 |
(l) The
statement of condition of the existing building or |
| 3955 |
buildings, if the
offering is of units in an operation being |
| 3956 |
converted to cooperative
ownership. |
| 3957 |
(m) The
statement of inspection for termite damage and |
| 3958 |
treatment of the existing
improvements, if the cooperative is a |
| 3959 |
conversion. |
| 3960 |
(n) The
form of agreement for sale or lease of units. |
| 3961 |
(o) A
copy of the agreement for escrow of payments made to |
| 3962 |
the developer prior to
closing. |
| 3963 |
(p) A
copy of the documents containing any restrictions on |
| 3964 |
use of the property
required by subsection (16). |
| 3965 |
(24) Any
prospectus or offering circular complying with |
| 3966 |
the provisions of former
ss. 711.69 and 711.802 may continue to |
| 3967 |
be used without
amendment, or may be amended to comply with the |
| 3968 |
provisions of this
chapter. |
| 3969 |
(25) A
brief narrative description of the location and |
| 3970 |
effect of all existing
and intended easements located or to be |
| 3971 |
located on the
cooperative property other than those in the |
| 3972 |
declaration. |
| 3973 |
(26) If
the developer is required by state or local |
| 3974 |
authorities to obtain
acceptance or approval of any dock or |
| 3975 |
marina facility intended
to serve the cooperative, a copy of |
| 3976 |
such acceptance or
approval acquired by the time of filing with |
| 3977 |
the division pursuant to
s. 719.502 or a statement that such |
| 3978 |
acceptance has not been
acquired or received. |
| 3979 |
(27) Evidence
demonstrating that the developer has an |
| 3980 |
ownership, leasehold, or
contractual interest in the land upon |
| 3981 |
which the cooperative is
to be developed. |
| 3982 |
Section
49. Section 719.508, Florida Statutes, is amended |
| 3983 |
to read: |
| 3984 |
719.508 Regulation
by Division of Hotels and |
| 3985 |
Restaurants.--In addition
to the authority, regulation, or |
| 3986 |
control exercised by the
Division of Florida Land Sales, |
| 3987 |
Condominiums, Homeowners'
Associations, and Mobile Homes |
| 3988 |
pursuant to this act with
respect to cooperatives, buildings |
| 3989 |
included in a cooperative
property shall be subject to the |
| 3990 |
authority, regulation, or
control of the Division of Hotels and |
| 3991 |
Restaurants of the
Department of Business and Professional |
| 3992 |
Regulation, to the extent
provided for in chapters 399 and 509. |
| 3993 |
Section
50. Paragraph (a) of subsection (2) of section |
| 3994 |
719.608, Florida
Statutes, is amended to read: |
| 3995 |
719.608 Notice
of intended conversion; time of delivery; |
| 3996 |
content.-- |
| 3997 |
(2)(a) Each
notice of intended conversion shall be dated |
| 3998 |
and in writing. The
notice shall contain the following |
| 3999 |
statement, with the
phrases of the following statement which |
| 4000 |
appear in upper case
printed in conspicuous type: |
| 4001 |
|
| 4002 |
These
apartments are being converted to cooperative by |
| 4003 |
(name of developer) ,
the developer. |
| 4004 |
1. YOU
MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
| 4005 |
YOUR RENTAL AGREEMENT.
FURTHER, YOU MAY EXTEND YOUR RENTAL |
| 4006 |
AGREEMENT AS FOLLOWS: |
| 4007 |
a. If
you have continuously been a resident of these |
| 4008 |
apartments during the
last 180 days and your rental agreement |
| 4009 |
expires during the next
270 days, you may extend your rental |
| 4010 |
agreement for up to 270
days after the date of this notice. |
| 4011 |
b. If
you have not been a continuous resident of these |
| 4012 |
apartments for the last
180 days and your rental agreement |
| 4013 |
expires during the next
180 days, you may extend your rental |
| 4014 |
agreement for up to 180
days after the date of this notice. |
| 4015 |
c. IN
ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
| 4016 |
MUST GIVE THE DEVELOPER
WRITTEN NOTICE WITHIN 45 DAYS AFTER THE |
| 4017 |
DATE OF THIS NOTICE. |
| 4018 |
2. IF
YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
| 4019 |
you may extend your
rental agreement for up to 45 days after the |
| 4020 |
date of this notice while
you decide whether to extend your |
| 4021 |
rental agreement as
explained above. To do so, you must notify |
| 4022 |
the developer in writing.
You will then have the full 45 days to |
| 4023 |
decide whether to extend
your rental agreement as explained |
| 4024 |
above. |
| 4025 |
3. During
the extension of your rental agreement you will |
| 4026 |
be charged the same rent
that you are now paying. |
| 4027 |
4. YOU
MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
| 4028 |
OF THE RENTAL AGREEMENT
AS FOLLOWS: |
| 4029 |
a. If
your rental agreement began or was extended or |
| 4030 |
renewed after May 1,
1980, and your rental agreement, including |
| 4031 |
extensions and renewals,
has an unexpired term of 180 days or |
| 4032 |
less, you may cancel your
rental agreement upon 30 days' written |
| 4033 |
notice and move. Also,
upon 30 days' written notice, you may |
| 4034 |
cancel any extension of
the rental agreement. |
| 4035 |
b. If
your rental agreement was not begun or was not |
| 4036 |
extended or renewed after
May 1, 1980, you may not cancel the |
| 4037 |
rental agreement without
the consent of the developer. If your |
| 4038 |
rental agreement,
including extensions and renewals, has an |
| 4039 |
unexpired term of 180
days or less, you may, however, upon 30 |
| 4040 |
days' written notice
cancel any extension of the rental |
| 4041 |
agreement. |
| 4042 |
5. All
notices must be given in writing and sent by mail, |
| 4043 |
return receipt requested,
or delivered in person to the |
| 4044 |
developer at this
address: (name and address of developer) . |
| 4045 |
6. If
you have continuously been a resident of these |
| 4046 |
apartments during the
last 180 days: |
| 4047 |
a. You
have the right to purchase your apartment and will |
| 4048 |
have 45 days to decide
whether to purchase. If you do not buy |
| 4049 |
the unit at that price
and the unit is later offered at a lower |
| 4050 |
price, you will have the
opportunity to buy the unit at the |
| 4051 |
lower price. However, in
all events your right to purchase the |
| 4052 |
unit ends when the rental
agreement or any extension of the |
| 4053 |
rental agreement ends or
when you waive this right in writing. |
| 4054 |
b. Within
90 days you will be provided purchase |
| 4055 |
information relating to
your apartment, including the price of |
| 4056 |
your unit and the
condition of the building. If you do not |
| 4057 |
receive this information
within 90 days, your rental agreement |
| 4058 |
and any extension will be
extended 1 day for each day over 90 |
| 4059 |
days until you are given
the purchase information. If you do not |
| 4060 |
want this rental
agreement extension, you must notify the |
| 4061 |
developer in writing. |
| 4062 |
7. If
you have any questions regarding this conversion or |
| 4063 |
the Cooperative Act, you
may contact the developer or the state |
| 4064 |
agency which regulates
cooperatives: The Division of Florida |
| 4065 |
Land Sales, Condominiums,
Homeowners' Associations, and Mobile |
| 4066 |
Homes,
(Tallahassee address and telephone number of division) |
| 4067 |
. |
| 4068 |
Section
51. Subsections (2), (4), (7), (8), (9), and (10) |
| 4069 |
of section 720.301,
Florida Statutes, are amended, and |
| 4070 |
subsection (14) is added
to that section, to read: |
| 4071 |
720.301 Definitions.--As
used in this chapter, the term: |
| 4072 |
(2) "Common
area" means all real property within a |
| 4073 |
community which is owned
or leased by an association or |
| 4074 |
dedicated
for use or maintenance by the association or its |
| 4075 |
members, including,
regardless of whether title has been |
| 4076 |
conveyed to the
association: |
| 4077 |
(a) Real
property the use of which is dedicated to the |
| 4078 |
association or its
members by a recorded plat; or |
| 4079 |
(b) Real
property committed by a declaration of covenants |
| 4080 |
to be leased or conveyed
to the association. |
| 4081 |
(4) "Declaration
of covenants," or "declaration," means a |
| 4082 |
recorded written
instrument in the nature of covenants running |
| 4083 |
with the land,
according to the recorded plat, which subjects |
| 4084 |
the land comprising the
community to the jurisdiction and |
| 4085 |
control of an association
or associations in which the owners of |
| 4086 |
the parcels,
or their association representatives, must be |
| 4087 |
members. Upon
the execution of the sale of the first lot, a |
| 4088 |
declaration
may not be amended without the vote of approval of |
| 4089 |
two-thirds
majority of the owners of residential parcels that |
| 4090 |
have
been purchased, with a tie vote resulting in a negative |
| 4091 |
vote.
Exceptions shall be amendments identifying additional |
| 4092 |
phases
of the community as they are constructed. These |
| 4093 |
amendments
may not contain any other changes to the existing |
| 4094 |
declaration. |
| 4095 |
(7) "Division"
means the Division of Florida Land Sales, |
| 4096 |
Condominiums, Homeowners'
Associations, and Mobile Homes in the |
| 4097 |
Department of Business
and Professional Regulation. |
| 4098 |
(8) "Governing
documents" means: |
| 4099 |
(a) Each
set of The recorded
declaration of covenants for |
| 4100 |
a community, and all duly
adopted and recorded amendments, |
| 4101 |
supplements, and recorded
exhibits thereto; and |
| 4102 |
(b) The
articles of incorporation and bylaws of the |
| 4103 |
homeowners' association,
and any duly adopted amendments |
| 4104 |
thereto. |
| 4105 |
|
| 4106 |
When
different sets of covenants exist for each recorded plat, |
| 4107 |
those
covenants shall only apply to the plat for which they are |
| 4108 |
recorded
and specified. The different sets of covenants may not |
| 4109 |
be
commingled. |
| 4110 |
(9) "Homeowners'
association" or "association" means a |
| 4111 |
Florida corporation,
as authorized by chapter 720 or an |
| 4112 |
authorized
not-for-profit corporation pursuant to chapter 617, |
| 4113 |
responsible for the administration
operation of a community or a |
| 4114 |
mobile home subdivision
in compliance with applicable federal, |
| 4115 |
state,
and local laws and the governing documents of the |
| 4116 |
association.
In addition, a homeowners' association means a |
| 4117 |
Florida
corporation in which the voting membership is made up of |
| 4118 |
parcel owners or their
agents, or a combination thereof, and in |
| 4119 |
which membership is a
mandatory condition of parcel ownership, |
| 4120 |
and which is authorized
to impose assessments that, if unpaid, |
| 4121 |
may become a lien on the
parcel. Any homeowners' association or |
| 4122 |
other
named association that administers a residential community |
| 4123 |
where
membership is mandatory shall be required to comply with |
| 4124 |
this
chapter, except if exempted. The term "homeowners' |
| 4125 |
association" does
not include a community development district |
| 4126 |
or other similar special
taxing district created pursuant to |
| 4127 |
statute. |
| 4128 |
(10) "Member"
means a member of an association, and may |
| 4129 |
include, but is not
limited to, a parcel owner or an association |
| 4130 |
representing
parcel owners or a combination thereof, and |
| 4131 |
includes any person or
entity obligated by the governing |
| 4132 |
documents to pay an
assessment or amenity fee. |
| 4133 |
(14) "Homeowners'
Association Advisory Council" means a |
| 4134 |
group
of persons appointed to recommend changes in laws that |
| 4135 |
affect
the administration of mandatory homeowners' associations. |
| 4136 |
Section
52. Subsections (1) and (2) of section 720.302, |
| 4137 |
Florida Statutes, are
amended to read: |
| 4138 |
720.302 Purposes,
scope, and application.-- |
| 4139 |
(1) The
purposes of this chapter are to give statutory |
| 4140 |
recognition to
corporations not for profit that administer
or |
| 4141 |
operate residential
communities in this state, to provide |
| 4142 |
regulations
procedures for operating
homeowners' associations, |
| 4143 |
and to protect the rights
of association members without unduly |
| 4144 |
impairing the ability of
such associations to perform their |
| 4145 |
functions as
authorized by federal, state, and local laws and |
| 4146 |
the
governing documents of the association. |
| 4147 |
(2) Having
provided certain powers and authority to |
| 4148 |
homeowners'
associations and deed restrictions created by |
| 4149 |
developers
of mandated properties in residential communities, |
| 4150 |
the Legislature
recognizes that it is necessary to provide |
| 4151 |
regulatory
oversight to ensure compliance with federal, state, |
| 4152 |
and
local laws. It is the intent of the Legislature to protect |
| 4153 |
the
rights of parcel owners by ensuring that the powers and |
| 4154 |
authority
granted to homeowners' associations and deed |
| 4155 |
restrictions
created by developers of mandated properties in |
| 4156 |
residential
communities conform to a system of checks and |
| 4157 |
balances
to prevent abuses of governmental authority. The |
| 4158 |
Department
of Business and Professional Regulation shall create |
| 4159 |
a
Division of Mandated Properties. No later than July 1, 2008, |
| 4160 |
the
division shall establish a process for collecting an annual |
| 4161 |
fee
which shall not exceed $4 for each association member in |
| 4162 |
communities
administered by the association during each of the |
| 4163 |
following
2 years and, thereafter, shall not exceed the Cost of |
| 4164 |
Living
Index. Funds collected shall be deposited in the Division |
| 4165 |
of
Florida Land Sales, Condominiums, Homeowners' Associations, |
| 4166 |
and
Mobile Homes Trust Fund Trust Fund. Funds shall be utilized |
| 4167 |
by the
division for, but not limited to, the review and approval |
| 4168 |
of
deed restrictions before releasing for recording at the |
| 4169 |
county
level by the developer or owner of the initial lots to be |
| 4170 |
developed;
education; enforcement; investigation; and |
| 4171 |
prosecution
of policies and procedures related to mandated |
| 4172 |
properties.
Upon transition of authorities, duties, |
| 4173 |
responsibilities,
and rights from the developer to the parcel |
| 4174 |
owners,
all amendments, alterations, or modifications to the |
| 4175 |
governing
documents must be approved by at least two-thirds of |
| 4176 |
the
parcel owners or homeowners' association members. The |
| 4177 |
governing
documents may not contain provisions that reduce this |
| 4178 |
percentage
of majority approval for changes to the governing |
| 4179 |
documents.
The ombudsman may not engage the services of industry |
| 4180 |
partisans
with a vested interest in the administration of deed- |
| 4181 |
restricted
communities or in the mandatory homeowners' |
| 4182 |
association
to implement its powers, who have practiced in this |
| 4183 |
field
within the last 3 years. Furthermore not
in the best |
| 4184 |
interest
of homeowners' associations or the individual |
| 4185 |
association
members thereof to create or impose a bureau or |
| 4186 |
other
agency of state government to regulate the affairs of |
| 4187 |
homeowners'
associations. However, in accordance with s. |
| 4188 |
720.311, the Legislature
finds that homeowners' associations and |
| 4189 |
their individual members
will benefit from an expedited |
| 4190 |
alternative process for
resolution of election and recall |
| 4191 |
disputes and presuit
mediation of other disputes involving |
| 4192 |
covenant enforcement,
disputes relating to the transition of |
| 4193 |
control
of the association from the developer or owner to |
| 4194 |
members
of the association, and authorizes the department to |
| 4195 |
hear, administer, and
determine these disputes as more fully set |
| 4196 |
forth in this chapter.
Further, the Legislature recognizes that |
| 4197 |
certain contract rights
have been created for the benefit of |
| 4198 |
homeowners' associations
and members thereof before the |
| 4199 |
effective date of this
act and that ss. 720.301-720.407 are not |
| 4200 |
intended to impair such
contract rights, as long as they are |
| 4201 |
accepted
by a two-thirds majority of the homeowners' association |
| 4202 |
members,
including, but not limited to, the rights of the |
| 4203 |
developer to complete the
community as initially contemplated. |
| 4204 |
Section
53. Section 720.303, Florida Statutes, is amended |
| 4205 |
to read: |
| 4206 |
720.303 Association
powers and duties; meetings of board; |
| 4207 |
official records;
budgets; financial reporting; association |
| 4208 |
funds; recalls.-- |
| 4209 |
(1) POWERS
AND DUTIES.-- |
| 4210 |
(a) An
association which operates a community as defined |
| 4211 |
in s. 720.301, must be incorporated
in this state, operated by |
| 4212 |
an
association that is a Florida corporation. After October 1, |
| 4213 |
1995,
the association must be incorporated and the initial |
| 4214 |
governing documents must
be recorded in the official records of |
| 4215 |
the county in which the
community is located. An association may |
| 4216 |
operate
more than one community. |
| 4217 |
(b) The
officers and directors of an association have a |
| 4218 |
fiduciary relationship of
to the members who are served by
the |
| 4219 |
association. |
| 4220 |
(c) The
powers and duties of an association include those |
| 4221 |
set forth in this chapter
and, except as expressly limited or |
| 4222 |
restricted
in this chapter, those specifically
set forth in the |
| 4223 |
governing documents. The
officers and directors of the |
| 4224 |
association
may not take any action that is inconsistent with |
| 4225 |
the
declaration of covenants. |
| 4226 |
(d) After
control of the association is obtained by |
| 4227 |
members from
other than the developer, the
association may |
| 4228 |
institute, maintain, or
settle on ,
or appeal actions or |
| 4229 |
hearings
in its name on behalf of the all
members concerning |
| 4230 |
matters of common
interest to the members, including, but not |
| 4231 |
limited
to, the common areas; roof or structural components of a |
| 4232 |
building,
or other improvements for which the association is |
| 4233 |
responsible;
mechanical, electrical, or plumbing elements |
| 4234 |
serving
an improvement or building for which the association is |
| 4235 |
responsible;
representations of the developer pertaining to any |
| 4236 |
existing
or proposed commonly used facility; and protesting ad |
| 4237 |
valorem
taxes on commonly used facilities. The association may |
| 4238 |
defend
actions in eminent domain or bring inverse condemnation |
| 4239 |
actions.
Before commencing any legal action
litigation against |
| 4240 |
any party in the name of
the association involving amounts in |
| 4241 |
controversy in excess of $50,000
$100,000, the association must |
| 4242 |
obtain the affirmative
approval of a majority of the members of |
| 4243 |
the association voting
interests at a meeting of the association |
| 4244 |
membership
at which a quorum is present has
been attained. |
| 4245 |
(e) The
association may enter into contracts for the |
| 4246 |
benefit
of the members of the association, including, but not |
| 4247 |
limited
to, contracts for maintaining, repairing, or improving |
| 4248 |
the
common areas of the association. This subsection does not |
| 4249 |
limit
any statutory or common-law right of any individual member |
| 4250 |
or
class of members to bring any action without participation by |
| 4251 |
the
association. |
| 4252 |
(f) A
member does not have the authority
to act for the |
| 4253 |
association by virtue of
being a member of the association.
An |
| 4254 |
association
may have more than one class of members and may |
| 4255 |
issue
membership certificates. |
| 4256 |
(g) In
any civil or criminal action between a member and |
| 4257 |
the
association, it shall not be a defense by the association |
| 4258 |
that
the association's actions, although incompatible with the |
| 4259 |
declaration
of covenants, have been uniformly applied. |
| 4260 |
(h) An
association may not restrict a member's freedom of |
| 4261 |
association
and may not limit the number of guests a member may |
| 4262 |
have
within a 24-hour period. |
| 4263 |
(i) An
association of 15 or fewer parcels
parcel owners |
| 4264 |
may enforce only the
requirements of those deed restrictions |
| 4265 |
established prior to the
purchase of each parcel upon an |
| 4266 |
affected parcel owner or
owners. |
| 4267 |
(j) The
officers and directors of an association may be |
| 4268 |
personally
liable for damages to a member if the actions of the |
| 4269 |
officers
and directors demonstrate a pattern of behavior |
| 4270 |
intended
to harass a member of the association. |
| 4271 |
(k) Any
action of the association by and through the |
| 4272 |
officers
and directors that limits the legal use of any portion |
| 4273 |
of a
member's property that is incompatible with the declaration |
| 4274 |
of
covenants shall entitle the member to compensation for the |
| 4275 |
fair
market value of that portion of the member's property, the |
| 4276 |
use of
which is being restricted. |
| 4277 |
(l) In
any association with more than 50 but fewer than 75 |
| 4278 |
parcels,
for purposes of establishing setback limits, any parcel |
| 4279 |
of 1
acre or less shall be deemed to have one front for purposes |
| 4280 |
of
determining the required front setback, if any. Only those |
| 4281 |
setbacks
specifically set forth in the declaration of covenants |
| 4282 |
may be
enforced by the association. Where the covenants are |
| 4283 |
silent,
the applicable county or municipal setbacks shall apply. |
| 4284 |
(2) BOARD
MEETINGS.-- |
| 4285 |
(a) A
meeting of the board of directors of an association |
| 4286 |
occurs whenever a quorum
of the board gathers to conduct |
| 4287 |
association business. All
meetings of the board must be open to |
| 4288 |
all members except for
meetings between the board and its |
| 4289 |
attorney with respect to
proposed or pending litigation where |
| 4290 |
the contents of the
discussion would otherwise be governed by |
| 4291 |
the attorney-client
privilege. |
| 4292 |
(b) Members
have the right to attend all meetings of the |
| 4293 |
board and to speak on any
matter placed on the agenda by |
| 4294 |
petition
of the voting interests for at least 3 minutes. The |
| 4295 |
association may adopt
written reasonable rules expanding the |
| 4296 |
right of members to speak
and governing the frequency, duration, |
| 4297 |
and other manner of
member statements, which rules must be |
| 4298 |
consistent with this
paragraph and may include a sign-up sheet |
| 4299 |
for
members wishing to speak. Notwithstanding any other law,
the |
| 4300 |
requirement that board
meetings and committee meetings be open |
| 4301 |
to the members is
inapplicable to meetings between the board or |
| 4302 |
a committee and the
association's attorney, with respect to |
| 4303 |
meetings of the board
held for the purpose of discussing |
| 4304 |
personnel matters. |
| 4305 |
(c) The
bylaws shall provide for giving notice to parcel |
| 4306 |
owners and members of all
board meetings and, if they do not do |
| 4307 |
so, shall be deemed to
provide the following: |
| 4308 |
1. Notices
of all board meetings and the agendas
must be |
| 4309 |
posted in a conspicuous
place in the community at least 48 hours |
| 4310 |
in advance of a meeting,
except in an emergency. In the |
| 4311 |
alternative, if notice is
not posted in a conspicuous place in |
| 4312 |
the community, notice of
each board meeting and agenda must
be |
| 4313 |
mailed or delivered to
each member at least 7 days before the |
| 4314 |
meeting, except in an
emergency. Notwithstanding this general |
| 4315 |
notice requirement, for
communities with more than 100 members, |
| 4316 |
the bylaws may provide
for a reasonable alternative to posting |
| 4317 |
or mailing of notice for
each board meeting, including |
| 4318 |
publication of notice,
provision of a schedule of board |
| 4319 |
meetings, or the
conspicuous posting and repeated broadcasting |
| 4320 |
of the notice on a
closed-circuit cable television system |
| 4321 |
serving the homeowners'
association. However, if broadcast |
| 4322 |
notice is used in lieu of
a notice posted physically in the |
| 4323 |
community, the notice
must be broadcast at least four times |
| 4324 |
every broadcast hour of
each day that a posted notice is |
| 4325 |
otherwise required. When
broadcast notice is provided, the |
| 4326 |
notice and agenda must be
broadcast in a manner and for a |
| 4327 |
sufficient continuous
length of time so as to allow an average |
| 4328 |
reader to observe the
notice and read and comprehend the entire |
| 4329 |
content of the notice and
the agenda. The bylaws or amended |
| 4330 |
bylaws may provide for
giving notice by electronic transmission |
| 4331 |
in a manner authorized by
law for meetings of the board of |
| 4332 |
directors, committee
meetings requiring notice under this |
| 4333 |
section, and annual and
special meetings of the members; |
| 4334 |
however, a member must
consent in writing to receiving notice by |
| 4335 |
electronic transmission. |
| 4336 |
2. An
assessment may not be levied at a board meeting |
| 4337 |
unless the notice of the
meeting includes a statement that |
| 4338 |
assessments will be
considered and the nature of the |
| 4339 |
assessments. Written
notice of any meeting at which special |
| 4340 |
assessments will be
considered or at which amendments to rules |
| 4341 |
regarding parcel use will
be considered must be mailed, |
| 4342 |
delivered, or
electronically transmitted to the members and |
| 4343 |
parcel owners and posted
conspicuously on the property or |
| 4344 |
broadcast on
closed-circuit cable television not less than 14 |
| 4345 |
days before the meeting. |
| 4346 |
3. Directors
may not vote by proxy or by secret ballot at |
| 4347 |
board meetings,
except that secret ballots may be used in the |
| 4348 |
election
of officers. This subsection also applies to the |
| 4349 |
meetings of any committee
or other similar body, when a final |
| 4350 |
decision will be made
regarding the expenditure of association |
| 4351 |
funds, and to any body
vested with the power to approve or |
| 4352 |
disapprove architectural
decisions with respect to a specific |
| 4353 |
parcel of residential
property owned by a member of the |
| 4354 |
community. |
| 4355 |
(d) If
10 20
percent of the total voting interests |
| 4356 |
petition the board to
address an item of business, the board |
| 4357 |
shall at its next regular
board meeting or at a special meeting |
| 4358 |
of the board, but not
later than 60 days after the receipt of |
| 4359 |
the petition, take the
petitioned item up on an agenda. The |
| 4360 |
board shall give all
members notice of the meeting at which the |
| 4361 |
petitioned item shall be
addressed in accordance with the 14-day |
| 4362 |
notice requirement
pursuant to subparagraph (c)2. Each member |
| 4363 |
shall have the right to
speak for at least 3 minutes on each |
| 4364 |
matter placed on the
agenda by petition. The board shall address |
| 4365 |
all
items on the agenda , provided
that the member signs the |
| 4366 |
sign-up
sheet, if one is provided, or submits a written request |
| 4367 |
to
speak prior to the meeting. Other than addressing the |
| 4368 |
petitioned
item at the meeting, the board is not obligated to |
| 4369 |
take
any other action requested by the petition. |
| 4370 |
(e) Detailed
agendas for board meetings with specific |
| 4371 |
items
that will be addressed shall be published and made |
| 4372 |
available
to all members no less than 7 days prior to the date |
| 4373 |
of the
board meeting. |
| 4374 |
(3) MINUTES.--Minutes
of all meetings of the members of an |
| 4375 |
association and of the
board of directors of an association must |
| 4376 |
be maintained in written
form or in another form that can be |
| 4377 |
converted into written
form within a reasonable time. A vote or |
| 4378 |
abstention from voting on
each matter voted upon by for
each |
| 4379 |
director present at a
board meeting shall must
be recorded in |
| 4380 |
the minutes. |
| 4381 |
(4) OFFICIAL
RECORDS.--The association shall maintain each |
| 4382 |
of the following items,
when applicable, which constitute the |
| 4383 |
official records of the
association: |
| 4384 |
(a) Copies
of any plans, specifications, permits, and |
| 4385 |
warranties related to
improvements constructed on the common |
| 4386 |
areas or other property as
platted and recorded that the |
| 4387 |
association is obligated
to maintain, repair, or replace. If |
| 4388 |
such
documents do not exist, the association shall obtain the |
| 4389 |
documents
or forfeit the right to assess any fees to maintain |
| 4390 |
the
common areas of property. |
| 4391 |
(b) A
copy of the bylaws of the association and of each |
| 4392 |
amendment to the bylaws. |
| 4393 |
(c) A
copy of the articles of incorporation of the |
| 4394 |
association and of each
amendment thereto. |
| 4395 |
(d) A
copy of each set of the
declaration of covenants and |
| 4396 |
a copy of each amendment
thereto. |
| 4397 |
(e) A
copy of the current rules of the homeowners' |
| 4398 |
association. |
| 4399 |
(f) The
minutes of all meetings of the board of directors |
| 4400 |
and of the members, which
minutes must be retained for at least |
| 4401 |
7 years. |
| 4402 |
(g) A
current roster of all members and their mailing |
| 4403 |
addresses and parcel
identifications. The association shall also |
| 4404 |
maintain the electronic
mailing addresses and the numbers |
| 4405 |
designated by members for
receiving notice sent by electronic |
| 4406 |
transmission of those
members consenting to receive notice by |
| 4407 |
electronic transmission.
The electronic mailing addresses and |
| 4408 |
numbers provided by unit
owners to receive notice by electronic |
| 4409 |
transmission shall be
removed from association records when |
| 4410 |
consent to receive notice
by electronic transmission is revoked. |
| 4411 |
However, the association
is not liable for an erroneous |
| 4412 |
disclosure of the
electronic mail address or the number for |
| 4413 |
receiving electronic
transmission of notices. |
| 4414 |
(h) All
of the association's insurance policies or a copy |
| 4415 |
thereof, which policies
must be retained for at least 7 years. |
| 4416 |
(i) A
current copy of all contracts to which the |
| 4417 |
association is a party,
including, without limitation, any |
| 4418 |
management agreement,
lease, or other contract under which the |
| 4419 |
association has any
obligation or responsibility. A contract or |
| 4420 |
written
agreement may not be allowed to maintain property that |
| 4421 |
is
not owned by and deeded to the association. Bids received
by |
| 4422 |
the association for work
to be performed must also be considered |
| 4423 |
official records and must
be kept for a period of 1 year. |
| 4424 |
(j) The
financial and accounting records of the |
| 4425 |
association, kept
according to good accounting practices. All |
| 4426 |
financial and accounting
records shall must
be maintained for a |
| 4427 |
period of at least 7
years. The financial and accounting records |
| 4428 |
must include: |
| 4429 |
1. Accurate,
itemized, and detailed records of all |
| 4430 |
receipts and
expenditures. |
| 4431 |
2. A
current account and a periodic statement of the |
| 4432 |
account for each member,
designating the name and current |
| 4433 |
address of each member
who is obligated to pay assessments, the |
| 4434 |
due date and amount of
each assessment or other charge against |
| 4435 |
the member, the date and
amount of each payment on the account, |
| 4436 |
and the balance due. |
| 4437 |
3. All
tax returns, financial statements, and financial |
| 4438 |
reports of the
association. |
| 4439 |
4. Any
other records that identify, measure, record, or |
| 4440 |
communicate financial
information. |
| 4441 |
(k) A
copy of the disclosure summary described in s. |
| 4442 |
720.401(1). |
| 4443 |
(l) All
other written records of the association not |
| 4444 |
specifically included in
the foregoing which are related to the |
| 4445 |
operation of the
association. |
| 4446 |
(m) All
interpretations of any governing documents, as |
| 4447 |
provided
by any legal source or attorney as long as they are not |
| 4448 |
part
of a pending lawsuit. |
| 4449 |
(n) All
architectural requests and approvals or denials, |
| 4450 |
which
shall be maintained as long as the association exists or |
| 4451 |
is
active. |
| 4452 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
| 4453 |
records shall be
maintained within the county in which the |
| 4454 |
governing
documents are recorded state
and must be open to |
| 4455 |
inspection and available
for photocopying by machine, video, |
| 4456 |
digital
cameras, or any other methods available to members or |
| 4457 |
their authorized agents
at reasonable times and places within 10 |
| 4458 |
business days after
receipt of a written request for access. |
| 4459 |
This subsection may be
complied with by having a copy of the |
| 4460 |
official records
available for inspection or copying in the |
| 4461 |
community. If the
association has a photocopy machine available |
| 4462 |
where the records are
maintained, it must provide parcel owners |
| 4463 |
with copies on request
during the inspection if the entire |
| 4464 |
request
is limited to no more than 25 pages. |
| 4465 |
(a) The
failure of an association to provide access to the |
| 4466 |
records within 10
business days after receipt of a written |
| 4467 |
request creates a
rebuttable presumption that the association |
| 4468 |
willfully failed to
comply with this subsection. |
| 4469 |
(b) A
member who is denied access to official records is |
| 4470 |
entitled to the actual
damages or minimum damages for the |
| 4471 |
association's willful
failure to comply with this subsection. |
| 4472 |
The minimum damages are
to be $100 $50 per calendar day up to 10 |
| 4473 |
days, the calculation to
begin on the 11th business day after |
| 4474 |
receipt of the written
request. |
| 4475 |
(c) The
association may adopt reasonable written rules |
| 4476 |
governing the frequency,
time, location, notice, records to be |
| 4477 |
inspected, and
manner of inspections, but may not impose a |
| 4478 |
requirement that a parcel
owner demonstrate any proper purpose |
| 4479 |
for the inspection, state
any reason for the inspection, or |
| 4480 |
limit a parcel owner's
right to inspect records to less than one |
| 4481 |
8-hour business day per
month. The association may only impose |
| 4482 |
fees to cover the actual
costs of providing copies of the |
| 4483 |
official records,
including, without limitation, the costs of |
| 4484 |
copying.
The association may charge up to 5
50 cents per page |
| 4485 |
for copies made on the
association's photocopier. If the |
| 4486 |
association does not have
a photocopy machine available where |
| 4487 |
the records are kept, or
if the records requested to be copied |
| 4488 |
exceed 25 pages in
length, the association may have copies made |
| 4489 |
by an outside vendor and
may charge the actual cost of copying |
| 4490 |
only.
The association may impose a one-time fee not
to exceed 1 |
| 4491 |
cent
per page and limited to a total of $5 if the parcel owner |
| 4492 |
provides
the necessary equipment and materials for copying and |
| 4493 |
the
labor to make the requested copies. The association shall |
| 4494 |
maintain an adequate
number of copies of the recorded governing |
| 4495 |
documents, to ensure
their availability to members and |
| 4496 |
prospective members.
Notwithstanding the provisions of this |
| 4497 |
paragraph, the following
records shall not be accessible to |
| 4498 |
members or parcel owners: |
| 4499 |
1. Any
record protected by the lawyer-client privilege as |
| 4500 |
described in s. 90.502
and any record protected by the work- |
| 4501 |
product privilege,
including, but not limited to, any record |
| 4502 |
prepared by an
association attorney or prepared at the |
| 4503 |
attorney's express
direction which reflects a mental impression, |
| 4504 |
conclusion, litigation
strategy, or legal theory of the attorney |
| 4505 |
or the association and
was prepared exclusively for civil or |
| 4506 |
criminal litigation or
for adversarial administrative |
| 4507 |
proceedings or which was
prepared in anticipation of imminent |
| 4508 |
civil or criminal
litigation or imminent adversarial |
| 4509 |
administrative
proceedings until the conclusion of the |
| 4510 |
litigation or adversarial
administrative proceedings. |
| 4511 |
2. Information
obtained by an association in connection |
| 4512 |
with the approval of the
lease, sale, or other transfer of a |
| 4513 |
parcel. |
| 4514 |
3. Disciplinary,
health, insurance, and personnel records |
| 4515 |
of the association's
employees. |
| 4516 |
4. Medical
records of parcel owners or community |
| 4517 |
residents. |
| 4518 |
(6) BUDGETS.-- |
| 4519 |
(a) The
association shall prepare an annual budget that |
| 4520 |
sets
out the annual operating expenses. The budget must reflect |
| 4521 |
the estimated revenues
and expenses for that year and the |
| 4522 |
estimated surplus or
deficit as of the end of the current year. |
| 4523 |
The budget must set out
separately all fees or charges paid for |
| 4524 |
by
the association for recreational amenities, whether owned
by |
| 4525 |
the association, the
developer, or another person. The |
| 4526 |
association shall provide
each member with a copy of the annual |
| 4527 |
budget or a written
notice that a copy of the budget is |
| 4528 |
available upon request at
no charge to the member. The copy must |
| 4529 |
be provided to the member
within the time limits set forth in |
| 4530 |
subsection (5). |
| 4531 |
(b) In
addition to annual operating expenses, the budget |
| 4532 |
may include reserve
accounts for capital expenditures and |
| 4533 |
deferred maintenance
for which the association is responsible to |
| 4534 |
the extent that the
governing documents do not limit increases |
| 4535 |
in assessments,
including reserves. If the budget of the |
| 4536 |
association includes
reserve accounts, such reserves shall be |
| 4537 |
determined,
maintained, and waived in the manner provided in |
| 4538 |
this subsection. Once
an association provides for reserve |
| 4539 |
accounts in the
budget, the association shall thereafter |
| 4540 |
determine, maintain,
and waive reserves in compliance with the |
| 4541 |
provisions of this
subsection. |
| 4542 |
(c) If
the budget of the association does not provide for |
| 4543 |
reserve
accounts governed by this subsection and the association |
| 4544 |
is
responsible for the repair and maintenance of capital |
| 4545 |
improvements
that may result in a special assessment if reserves |
| 4546 |
are
not provided, each financial report for the preceding fiscal |
| 4547 |
year
required by subsection (7) shall contain the following |
| 4548 |
statement
in conspicuous type: THE BUDGET OF THE ASSOCIATION |
| 4549 |
DOES
NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES |
| 4550 |
AND
DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS. |
| 4551 |
OWNERS
MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE |
| 4552 |
PROVISIONS
OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE |
| 4553 |
APPROVAL
OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING |
| 4554 |
INTERESTS
OF THE ASSOCIATION. |
| 4555 |
(d) An
association shall be deemed to have provided for |
| 4556 |
reserve
accounts when reserve accounts have been initially |
| 4557 |
established
by the developer or when the membership of the |
| 4558 |
association
affirmatively elects to provide for reserves. If |
| 4559 |
reserve
accounts are not initially provided for by the |
| 4560 |
developer,
the membership of the association may elect to do so |
| 4561 |
upon
the affirmative approval of not less than a majority of the |
| 4562 |
total
voting interests of the association. Such approval may be |
| 4563 |
attained
by vote of the members at a duly called meeting of the |
| 4564 |
membership
or upon a written consent executed by not less than a |
| 4565 |
majority
of the total voting interests in the community. The |
| 4566 |
approval
action of the membership shall state that reserve |
| 4567 |
accounts
shall be provided for in the budget and designate the |
| 4568 |
components
for which the reserve accounts are to be established. |
| 4569 |
Upon
approval by the membership, the board of directors shall |
| 4570 |
provide
for the required reserve accounts for inclusion in the |
| 4571 |
budget
in the next fiscal year following the approval and in |
| 4572 |
each
year thereafter. Once established as provided in this |
| 4573 |
subsection,
the reserve accounts shall be funded or maintained |
| 4574 |
or
shall have their funding waived in the manner provided in |
| 4575 |
paragraph
(f). |
| 4576 |
(e) The
amount to be reserved in any account established |
| 4577 |
shall
be computed by means of a formula that is based upon |
| 4578 |
estimated
remaining useful life and estimated replacement cost |
| 4579 |
or
deferred maintenance expense of each reserve item. The |
| 4580 |
association
may adjust replacement reserve assessments annually |
| 4581 |
to
take into account any changes in estimates of cost or useful |
| 4582 |
life
of a reserve item. |
| 4583 |
(f) Once
a reserve account or reserve accounts are |
| 4584 |
established,
the membership of the association, upon a majority |
| 4585 |
vote
at a meeting at which a quorum is present, may provide for |
| 4586 |
no
reserves or less reserves than required by this section. If a |
| 4587 |
meeting
of the unit owners is called to determine whether to |
| 4588 |
waive
or reduce the funding of reserves and no such result is |
| 4589 |
achieved
or a quorum is not present, the reserves as included in |
| 4590 |
the
budget shall go into effect. After the turnover, the |
| 4591 |
developer
may vote its voting interest to waive or reduce the |
| 4592 |
funding
of reserves. Any vote taken pursuant to this subsection |
| 4593 |
to
waive or reduce reserves shall be applicable only to one |
| 4594 |
budget
year. |
| 4595 |
(g) Funding
formulas for reserves authorized by this |
| 4596 |
section
shall be based on either a separate analysis of each of |
| 4597 |
the
required assets or a pooled analysis of two or more of the |
| 4598 |
required
assets. |
| 4599 |
1. If
the association maintains separate reserve accounts |
| 4600 |
for
each of the required assets, the amount of the contribution |
| 4601 |
to
each reserve account shall be the sum of the following two |
| 4602 |
calculations: |
| 4603 |
a. The
total amount necessary, if any, to bring a negative |
| 4604 |
component
balance to zero. |
| 4605 |
b. The
total estimated deferred maintenance expense or |
| 4606 |
estimated
replacement cost of the reserve component less the |
| 4607 |
estimated
balance of the reserve component as of the beginning |
| 4608 |
of the
period for which the budget will be in effect. The |
| 4609 |
remainder,
if greater than zero, shall be divided by the |
| 4610 |
estimated
remaining useful life of the component. |
| 4611 |
|
| 4612 |
The
formula may be adjusted each year for changes in estimates |
| 4613 |
and
deferred maintenance performed during the year and may |
| 4614 |
include
factors such as inflation and earnings on invested |
| 4615 |
funds. |
| 4616 |
2. If
the association maintains a pooled account of two or |
| 4617 |
more
of the required reserve assets, the amount of the |
| 4618 |
contribution
to the pooled reserve account as disclosed on the |
| 4619 |
proposed
budget shall not be less than that required to ensure |
| 4620 |
that
the balance at the beginning of the period for which the |
| 4621 |
budget
will go into effect plus the projected annual cash |
| 4622 |
inflows
over the remaining estimated useful life of all of the |
| 4623 |
assets
that make up the reserve pool are equal to or greater |
| 4624 |
than
the projected annual cash outflows over the remaining |
| 4625 |
estimated
useful lives of all of the assets that make up the |
| 4626 |
reserve
pool, based on the current reserve analysis. The |
| 4627 |
projected
annual cash inflows may include estimated earnings |
| 4628 |
from
investment of principal. The reserve funding formula shall |
| 4629 |
not
include any type of balloon payments. |
| 4630 |
(h) Reserve
funds and any interest accruing thereon shall |
| 4631 |
remain
in the reserve account or accounts and shall be used only |
| 4632 |
for
authorized reserve expenditures unless their use for other |
| 4633 |
purposes
is approved in advance by a majority vote at a meeting |
| 4634 |
at
which a quorum is present. Prior to turnover of control of an |
| 4635 |
association
by a developer to parcel owners, the developer- |
| 4636 |
controlled
association shall not vote to use reserves for |
| 4637 |
purposes
other than those for which they were intended without |
| 4638 |
the
approval of a majority of all nondeveloper voting interests |
| 4639 |
voting
in person or by limited proxy at a duly called meeting of |
| 4640 |
the
association. |
| 4641 |
(7) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 4642 |
the
fiscal year, or annually on a date provided in the bylaws, |
| 4643 |
the
association shall prepare and complete, or contract with a |
| 4644 |
third
party for the preparation and completion of, a financial |
| 4645 |
report
for the preceding fiscal year. Within 21 days after the |
| 4646 |
final
financial report is completed by the association or |
| 4647 |
received
from the third party, but not later than 120 days after |
| 4648 |
the
end of the fiscal year or other date as provided in the |
| 4649 |
bylaws,
the association shall prepare an annual
financial report |
| 4650 |
within
60 days after the close of the fiscal year. The |
| 4651 |
association
shall, within the time limits set forth in |
| 4652 |
subsection (5), provide
each member with a copy of the annual |
| 4653 |
financial report or a
written notice that a copy of the |
| 4654 |
financial report is
available upon request at no charge to the |
| 4655 |
member. Financial reports
shall be prepared as follows: |
| 4656 |
(a) An
association that meets the criteria of this |
| 4657 |
paragraph shall prepare
or cause to be prepared a complete set |
| 4658 |
of financial statements
in accordance with generally accepted |
| 4659 |
accounting principles as
adopted by the Board of Accountancy. |
| 4660 |
The financial statements
shall be based upon the association's |
| 4661 |
total annual revenues, as
follows: |
| 4662 |
1. An
association with total annual revenues of $100,000 |
| 4663 |
or more, but less than
$200,000, shall prepare compiled |
| 4664 |
financial statements. |
| 4665 |
2. An
association with total annual revenues of at least |
| 4666 |
$200,000, but less than
$400,000, shall prepare reviewed |
| 4667 |
financial statements. |
| 4668 |
3. An
association with total annual revenues of $400,000 |
| 4669 |
or more shall prepare
audited financial statements. |
| 4670 |
(b)1. An
association with total annual revenues of less |
| 4671 |
than $100,000 shall
prepare a report of cash receipts and |
| 4672 |
expenditures. |
| 4673 |
2. An
association in a community of fewer than 50 parcels, |
| 4674 |
regardless of the
association's annual revenues, may prepare a |
| 4675 |
report of cash receipts
and expenditures in lieu of financial |
| 4676 |
statements required by
paragraph (a) unless the governing |
| 4677 |
documents provide
otherwise. |
| 4678 |
3. A
report of cash receipts and disbursement must |
| 4679 |
disclose the amount of
receipts by accounts and receipt |
| 4680 |
classifications and the
amount of expenses by accounts and |
| 4681 |
expense classifications,
including, but not limited to, the |
| 4682 |
following, as applicable:
costs for security, professional, and |
| 4683 |
management fees and
expenses; taxes; costs for recreation |
| 4684 |
facilities; expenses for
refuse collection and utility services; |
| 4685 |
expenses for lawn care;
costs for building maintenance and |
| 4686 |
repair; insurance costs;
administration and salary expenses; and |
| 4687 |
reserves if maintained by
the association. |
| 4688 |
(c) If
20 percent of the parcel owners petition the board |
| 4689 |
for a level of financial
reporting higher than that required by |
| 4690 |
this section, the
association shall duly notice and hold a |
| 4691 |
meeting of members within
30 days of receipt of the petition for |
| 4692 |
the purpose of voting on
raising the level of reporting for that |
| 4693 |
fiscal year. Upon
approval of a majority of the total voting |
| 4694 |
interests of the parcel
owners, the association shall prepare or |
| 4695 |
cause to be prepared,
shall amend the budget or adopt a special |
| 4696 |
assessment to pay for the
financial report regardless of any |
| 4697 |
provision to the contrary
in the governing documents, and shall |
| 4698 |
provide within 90 days of
the meeting or the end of the fiscal |
| 4699 |
year, whichever occurs
later: |
| 4700 |
1. Compiled,
reviewed, or audited financial statements, if |
| 4701 |
the association is
otherwise required to prepare a report of |
| 4702 |
cash receipts and
expenditures; |
| 4703 |
2. Reviewed
or audited financial statements, if the |
| 4704 |
association is otherwise
required to prepare compiled financial |
| 4705 |
statements; or |
| 4706 |
3. Audited
financial statements if the association is |
| 4707 |
otherwise required to
prepare reviewed financial statements. |
| 4708 |
(d) If
approved by a majority of the voting interests |
| 4709 |
present at a properly
called meeting of the association, an |
| 4710 |
association may prepare
or cause to be prepared: |
| 4711 |
1. A
report of cash receipts and expenditures in lieu of a |
| 4712 |
compiled, reviewed, or
audited financial statement; |
| 4713 |
2. A
report of cash receipts and expenditures or a |
| 4714 |
compiled financial
statement in lieu of a reviewed or audited |
| 4715 |
financial statement; or |
| 4716 |
3. A
report of cash receipts and expenditures, a compiled |
| 4717 |
financial statement, or a
reviewed financial statement in lieu |
| 4718 |
of an audited financial
statement. |
| 4719 |
(8) ASSOCIATION
FUNDS; COMMINGLING.-- |
| 4720 |
(a) All
association funds held by a developer shall be |
| 4721 |
maintained separately in
the association's name. Reserve and |
| 4722 |
operating funds of the
association shall not be commingled prior |
| 4723 |
to turnover except the
association may jointly invest reserve |
| 4724 |
funds; however, such
jointly invested funds must be accounted |
| 4725 |
for separately. |
| 4726 |
(b) No
developer in control of a homeowners' association |
| 4727 |
shall commingle any
association funds with his or her funds or |
| 4728 |
with the funds of any
other homeowners' association, or |
| 4729 |
community association,
or corporation for profit created by the |
| 4730 |
developer. |
| 4731 |
(c) Association
funds may not be used by a developer to |
| 4732 |
defend a civil or
criminal action, administrative proceeding, or |
| 4733 |
arbitration proceeding
that has been filed against the developer |
| 4734 |
or directors appointed to
the association board by the |
| 4735 |
developer, even when the
subject of the action or proceeding |
| 4736 |
concerns the operation of
the developer-controlled association. |
| 4737 |
(9) APPLICABILITY.--Sections
617.1601-617.1604 do not |
| 4738 |
apply to a homeowners'
association in which the members have the |
| 4739 |
inspection and copying
rights set forth in this section. |
| 4740 |
(10) RECALL
OF DIRECTORS.-- |
| 4741 |
(a)1. Regardless
of any provision to the contrary |
| 4742 |
contained in the governing documents,
subject to the provisions |
| 4743 |
of s. 720.307 regarding transition of
association control, any |
| 4744 |
member of the board of directors shall
may be recalled and |
| 4745 |
removed from office with or without
cause by a majority of the |
| 4746 |
total voting interests who
must be the registered and recorded |
| 4747 |
owners. |
| 4748 |
2. When
the governing documents, including the |
| 4749 |
declaration, articles of
incorporation, or bylaws, provide that |
| 4750 |
only a specific class of members is
entitled to elect a board |
| 4751 |
director or directors, only that
class of members may vote to |
| 4752 |
recall those board directors so
elected. |
| 4753 |
(b)1. Board
directors may be recalled by an agreement in |
| 4754 |
writing or by written ballot without
a membership meeting. The |
| 4755 |
agreement in writing or the written
ballots, or a copy thereof, |
| 4756 |
shall be served on the association by
certified mail or by |
| 4757 |
personal service in the manner
authorized by chapter 48 and the |
| 4758 |
Florida Rules of Civil Procedure. |
| 4759 |
2. The
board shall duly notice and hold a meeting of the |
| 4760 |
board within 5 full business days
after receipt of the agreement |
| 4761 |
in writing or written ballots. At the
meeting, the board shall |
| 4762 |
either certify the written ballots or
written agreement to |
| 4763 |
recall a director or directors of the
board, in which case such |
| 4764 |
director or directors shall be
recalled effective immediately |
| 4765 |
and shall turn over to the board
within 5 full business days any |
| 4766 |
and all records and property of the
association in their |
| 4767 |
possession, or proceed as described
in paragraph (d). |
| 4768 |
3. When
it is determined by the department pursuant to |
| 4769 |
binding arbitration proceedings that
an initial recall effort |
| 4770 |
was defective, written recall
agreements or written ballots used |
| 4771 |
in the first recall effort and not
found to be defective may be |
| 4772 |
reused in one subsequent recall
effort. However, in no event is |
| 4773 |
a written agreement or written ballot
valid for more than 120 |
| 4774 |
days after it has been signed by the
member. |
| 4775 |
4. Any
rescission or revocation of a member's written |
| 4776 |
recall ballot or agreement must be in
writing and, in order to |
| 4777 |
be effective, must be delivered to
the association before the |
| 4778 |
association is served with the
written recall agreements or |
| 4779 |
ballots. |
| 4780 |
5. The
agreement in writing or ballot shall list at least |
| 4781 |
as many possible replacement
directors as there are directors |
| 4782 |
subject to the recall, when at least
a majority of the board is |
| 4783 |
sought to be recalled; the person
executing the recall |
| 4784 |
instrument may vote for as many
replacement candidates as there |
| 4785 |
are directors subject to the recall. |
| 4786 |
(c)1. If
the declaration, articles of incorporation, or |
| 4787 |
bylaws
specifically provide, the Members may also recall and |
| 4788 |
remove a board director or directors
by a vote taken at a |
| 4789 |
special meeting
of the members. If
so provided in the governing |
| 4790 |
documents,
A special meeting of the members to recall a director |
| 4791 |
or directors of the board of
administration may be called by 10 |
| 4792 |
percent of the voting interests
giving notice of the meeting as |
| 4793 |
required for a meeting of members,
and the notice shall state |
| 4794 |
the purpose of the meeting.
Electronic transmission may not be |
| 4795 |
used as a method of giving notice of
a meeting called in whole |
| 4796 |
or in part for this purpose. |
| 4797 |
2. The
board shall duly notice and hold a board meeting |
| 4798 |
within 5 full business days after the
adjournment of the member |
| 4799 |
meeting to recall one or more
directors. At the meeting, the |
| 4800 |
board shall certify the recall, in
which case such member or |
| 4801 |
members shall be recalled effective
immediately and shall turn |
| 4802 |
over to the board within 5 full
business days any and all |
| 4803 |
records and property of the
association in their possession, or |
| 4804 |
shall proceed as set forth in
subparagraph (d). |
| 4805 |
(d) If
the board determines not to certify the written |
| 4806 |
agreement or written ballots to
recall a director or directors |
| 4807 |
of the board or does not certify the
recall by a vote at a |
| 4808 |
meeting, the board shall, within 5
full business days after the |
| 4809 |
meeting, file with the department a
petition for binding |
| 4810 |
arbitration pursuant to the
applicable procedures in ss. |
| 4811 |
718.112(2)(j) and 718.1255 and the
rules adopted thereunder. For |
| 4812 |
the purposes of this section, the
members who voted at the |
| 4813 |
meeting or who executed the agreement
in writing shall |
| 4814 |
constitute one party under the
petition for arbitration. If the |
| 4815 |
arbitrator certifies the recall as to
any director or directors |
| 4816 |
of the board, the recall will be
effective upon mailing of the |
| 4817 |
final order of arbitration to the
association. The director or |
| 4818 |
directors so recalled shall deliver
to the board any and all |
| 4819 |
records of the association in their
possession within 5 full |
| 4820 |
business days after the effective
date of the recall. |
| 4821 |
(e) If
a vacancy occurs on the board as a result of a |
| 4822 |
recall and less than a majority of
the board directors are |
| 4823 |
removed, the vacancy may be filled by
the affirmative vote of a |
| 4824 |
majority of the remaining directors,
notwithstanding any |
| 4825 |
provision to the contrary contained
in this subsection or in the |
| 4826 |
association documents. If vacancies
occur on the board as a |
| 4827 |
result of a recall and a majority or
more of the board directors |
| 4828 |
are removed, the vacancies shall be
filled by members voting in |
| 4829 |
favor of the recall; if removal is at
a meeting, any vacancies |
| 4830 |
shall be filled by the members at the
meeting. If the recall |
| 4831 |
occurred by agreement in writing or
by written ballot, members |
| 4832 |
may vote for replacement directors in
the same instrument in |
| 4833 |
accordance with procedural rules
adopted by the division, which |
| 4834 |
rules need not be consistent with
this subsection. |
| 4835 |
(f) If
the board fails to duly notice and hold a board |
| 4836 |
meeting within 5 full business days
after service of an |
| 4837 |
agreement in writing or within 5 full
business days after the |
| 4838 |
adjournment of the member recall
meeting, the recall shall be |
| 4839 |
deemed effective and the board
directors so recalled shall |
| 4840 |
immediately turn over to the board
all records and property of |
| 4841 |
the association. |
| 4842 |
(g) If
a director who is removed fails to relinquish his |
| 4843 |
or her office or turn over records as
required under this |
| 4844 |
section, the circuit court in the
county where the association |
| 4845 |
maintains its principal office may,
upon the petition of the |
| 4846 |
association, summarily order the
director to relinquish his or |
| 4847 |
her office and turn over all
association records upon |
| 4848 |
application of the association. |
| 4849 |
(h) The
minutes of the board meeting at which the board |
| 4850 |
decides whether to certify the recall
are an official |
| 4851 |
association record. The minutes must
record the date and time of |
| 4852 |
the meeting, the decision of the
board, and the vote count taken |
| 4853 |
on each board member subject to the
recall. In addition, when |
| 4854 |
the board decides not to certify the
recall, as to each vote |
| 4855 |
rejected, the minutes must identify
the parcel number and the |
| 4856 |
specific reason for each such
rejection. |
| 4857 |
(i) When
the recall of more than one board director is |
| 4858 |
sought, the written agreement,
ballot, or vote at a meeting |
| 4859 |
shall provide for a separate vote for
each board director sought |
| 4860 |
to be recalled. |
| 4861 |
Section
54. Subsections (2) and (6) of section 720.304, |
| 4862 |
Florida Statutes, are amended, and
subsection (7) is added to |
| 4863 |
that section, to read: |
| 4864 |
720.304 Right
of owners to peaceably assemble; display of |
| 4865 |
flag; SLAPP suits prohibited.-- |
| 4866 |
(2) Any
homeowner may display one stationary or
portable, |
| 4867 |
removable United States flag or
official flag of the State of |
| 4868 |
Florida in a respectful manner, and
on Armed Forces Day, |
| 4869 |
Memorial Day, Flag Day, Independence
Day, and Veterans Day may |
| 4870 |
display in a respectful manner
portable, removable official |
| 4871 |
flags, not larger than 41/2 feet by 6
feet, which represent the |
| 4872 |
United States Army, Navy, Air Force,
Marine Corps, or Coast |
| 4873 |
Guard, from
a freestanding, portable, removable, or telescoping |
| 4874 |
flagpole not to
exceed 20 feet in the front, rear, or side yard |
| 4875 |
regardless of any declaration rules
or requirements dealing with |
| 4876 |
flags or decorations. |
| 4877 |
(6) Any
parcel owner may display a sign of reasonable size |
| 4878 |
provided by a contractor for security
services within 10 feet of |
| 4879 |
any entrance to the home. The
sign shall not exceed 18 inches |
| 4880 |
high by 18 inches
wide, and the bottom of the sign shall be no |
| 4881 |
higher than 24
inches from the ground elevation within the |
| 4882 |
permitted area of
installation. Other specifications may be |
| 4883 |
approved by the
association, but in no case shall the |
| 4884 |
specifications be
less than authorized by this section. |
| 4885 |
(7)(a) Rules
and regulations pertaining to common elements |
| 4886 |
shall be protected
by the First Amendment to the United States |
| 4887 |
Constitution and
s. 5, Art. I of the State Constitution, and |
| 4888 |
associations shall
not in any way abridge or deny constitutional |
| 4889 |
rights and
freedoms of homeowners with respect to use of such |
| 4890 |
common elements. |
| 4891 |
(b) All
common elements, common areas, and recreational |
| 4892 |
facilities serving
any association shall be available to unit |
| 4893 |
owners in the
association served thereby and their invited |
| 4894 |
guests for the use
intended for such common elements, common |
| 4895 |
areas, and
recreational facilities. The entity or entities |
| 4896 |
responsible for
the operation of the common elements, common |
| 4897 |
areas, and
recreational facilities may adopt reasonable rules |
| 4898 |
and regulations
pertaining to the use of such common elements, |
| 4899 |
common areas, and
recreational facilities as to the manner and |
| 4900 |
times they are
used, but not the purpose for which they are |
| 4901 |
used. No entity or
entities shall unreasonably restrict any unit |
| 4902 |
owner's right to
peaceably assemble or right to invite public |
| 4903 |
officers or
candidates for public office to appear and speak in |
| 4904 |
common elements,
common areas, and recreational facilities. |
| 4905 |
(c) Any
owner prevented from exercising rights guaranteed |
| 4906 |
by this section
may bring an action in the appropriate court of |
| 4907 |
the county in
which the alleged infringement occurred, and, upon |
| 4908 |
favorable
adjudication, the court shall enjoin the enforcement |
| 4909 |
of any provision
contained in any association. |
| 4910 |
Section
55. Section 720.305, Florida Statutes, is amended |
| 4911 |
to read: |
| 4912 |
720.305 Obligations
of members; remedies at law or in |
| 4913 |
equity; levy
of fines and suspension of use rights; failure to |
| 4914 |
fill sufficient number of vacancies
on board of directors to |
| 4915 |
constitute a quorum; appointment of
receiver upon petition of |
| 4916 |
any member.-- |
| 4917 |
(1) Each
member and the member's tenants, guests, and |
| 4918 |
invitees, and each association, are
governed by, and must comply |
| 4919 |
with, this chapter, the governing
documents of the community, |
| 4920 |
and the rules of the association.
Actions at law or in equity, |
| 4921 |
or both, to redress alleged failure
or refusal to comply with |
| 4922 |
these provisions may be brought by
the association or by any |
| 4923 |
member against: |
| 4924 |
(a) The
association; |
| 4925 |
(b) A
member; |
| 4926 |
(c) Any
director or officer of an association who |
| 4927 |
willfully and knowingly or
otherwise fails to comply with these |
| 4928 |
provisions; and |
| 4929 |
(d) Any
tenants, guests, or invitees occupying a parcel or |
| 4930 |
using the common areas. |
| 4931 |
|
| 4932 |
The prevailing party in any such
litigation is entitled to |
| 4933 |
recover reasonable attorney's fees
and costs. This section does |
| 4934 |
not deprive any person of any other
available right or remedy. |
| 4935 |
(2) If
the governing documents so provide, An association |
| 4936 |
may suspend,
for a reasonable period of time, the rights of a |
| 4937 |
member or a member's tenants, guests,
or invitees, or both, to |
| 4938 |
use common areas and facilities if
so and may levy reasonable |
| 4939 |
fines, not to
exceed $100 per violation, against any member or |
| 4940 |
any tenant, guest,
or invitee. A fine may be levied on the basis |
| 4941 |
of each day of a
continuing violation, with a single notice and |
| 4942 |
opportunity for
hearing, except that no such fine shall exceed |
| 4943 |
$1,000 in the
aggregate unless otherwise provided in the |
| 4944 |
governing documents. A
fine shall not become a lien against a |
| 4945 |
parcel. In any
action to recover a fine, the prevailing party is |
| 4946 |
entitled to
collect its reasonable attorney's fees and costs |
| 4947 |
from the
nonprevailing party as determined by the court. |
| 4948 |
(a) A
fine or suspension may not be
imposed without notice |
| 4949 |
of at least 14 days to the person
sought to be fined or |
| 4950 |
suspended and an opportunity for a
hearing before a committee of |
| 4951 |
at least three members appointed by
the board who are not |
| 4952 |
officers, directors, or employees of
the association, or the |
| 4953 |
spouse, parent, child, brother, or
sister of an officer, |
| 4954 |
director, or employee. If the
committee, by majority vote, does |
| 4955 |
not approve a proposed fine
or suspension, it may not be |
| 4956 |
imposed. |
| 4957 |
(b) The
requirements of this subsection do not apply to |
| 4958 |
the imposition of suspensions or
fines upon any member because |
| 4959 |
of the failure of the member to pay
assessments or other charges |
| 4960 |
when due if
such action is authorized by the governing |
| 4961 |
documents. |
| 4962 |
(c) Suspension
of common-area-use rights shall not impair |
| 4963 |
the right of an owner or tenant of a
parcel to have vehicular |
| 4964 |
and pedestrian ingress to and egress
from the parcel, including, |
| 4965 |
but not limited to, the right to
park. |
| 4966 |
(3) If
the governing documents so provide, an association |
| 4967 |
may suspend the voting rights of a
member for the nonpayment of |
| 4968 |
regular annual assessments that are
delinquent in excess of 90 |
| 4969 |
days. |
| 4970 |
(4) If
an association fails to fill vacancies on the board |
| 4971 |
of directors sufficient to constitute
a quorum in accordance |
| 4972 |
with the bylaws, any member may apply
to the circuit court that |
| 4973 |
has jurisdiction over the community
served by the association |
| 4974 |
for the appointment of a receiver to
manage the affairs of the |
| 4975 |
association. At least 30 days before
applying to the circuit |
| 4976 |
court, the member shall mail to the
association, by certified or |
| 4977 |
registered mail, and post, in a
conspicuous place on the |
| 4978 |
property of the community served by
the association, a notice |
| 4979 |
describing the intended action,
giving the association 30 days |
| 4980 |
to fill the vacancies. If during such
time the association fails |
| 4981 |
to fill a sufficient number of
vacancies so that a quorum can be |
| 4982 |
assembled, the member may proceed
with the petition. If a |
| 4983 |
receiver is appointed, the
homeowners' association shall be |
| 4984 |
responsible for the salary of the
receiver, court costs, |
| 4985 |
attorney's fees, and all other
expenses of the receivership. The |
| 4986 |
receiver has all the powers and
duties of a duly constituted |
| 4987 |
board of directors and shall serve
until the association fills a |
| 4988 |
sufficient number of vacancies on the
board so that a quorum can |
| 4989 |
be assembled. |
| 4990 |
Section
56. Section 720.3055, Florida Statutes, is amended |
| 4991 |
to read: |
| 4992 |
720.3055 Contracts
for products and services; in writing; |
| 4993 |
bids; exceptions.-- |
| 4994 |
(1) All
contracts as further described in this section or |
| 4995 |
any contract that is not to be fully
performed within 1 year |
| 4996 |
after the making thereof for the
purchase, lease, or renting of |
| 4997 |
materials or equipment to be used by
the association in |
| 4998 |
accomplishing its purposes under this
chapter or the governing |
| 4999 |
documents,
and all contracts for the provision of services, |
| 5000 |
shall be in writing. If a contract
for the purchase, lease, or |
| 5001 |
renting of materials or equipment, or
for the provision of |
| 5002 |
services, requires payment by the
association that exceeds 10 |
| 5003 |
percent of the total annual budget of
the association, including |
| 5004 |
reserves, the association must obtain
competitive bids for the |
| 5005 |
materials, equipment, or services.
Nothing contained in this |
| 5006 |
section shall be construed to require
the association to accept |
| 5007 |
the lowest bid. |
| 5008 |
(2)(a)1. Notwithstanding
the foregoing, Contracts with |
| 5009 |
employees of the association, and
contracts for attorney, |
| 5010 |
accountant, architect, community
association manager, |
| 5011 |
engineering, and landscape architect
services are not subject to |
| 5012 |
the provisions of this section. |
| 5013 |
2. A
contract executed before October 1, 2004, and any |
| 5014 |
renewal thereof, is not subject to
the competitive bid |
| 5015 |
requirements of this section. If a
contract was awarded under |
| 5016 |
the competitive bid procedures of
this section, any renewal of |
| 5017 |
that contract is not subject to such
competitive bid |
| 5018 |
requirements if the contract contains
a provision that allows |
| 5019 |
the board to cancel the contract on
30 days' notice. Materials, |
| 5020 |
equipment, or services provided to an
association under a local |
| 5021 |
government franchise agreement by a
franchise holder or a |
| 5022 |
manager
are not subject to the competitive bid requirements of |
| 5023 |
this section. A contract with a
manager, if made by a |
| 5024 |
competitive
bid, may be made for up to 3 years and
must contain |
| 5025 |
a 30-day
termination clause. An association whose declaration or |
| 5026 |
bylaws provide for competitive
bidding for services may operate |
| 5027 |
under the provisions of that
declaration or bylaws in lieu of |
| 5028 |
this section if those provisions are
not less stringent than the |
| 5029 |
requirements of this section. |
| 5030 |
(b) Nothing
contained in this section is intended to limit |
| 5031 |
the ability of an association to
obtain needed products and |
| 5032 |
services in an emergency. |
| 5033 |
(c) This
section does not apply if the business entity |
| 5034 |
with which the association desires to
enter into a contract is |
| 5035 |
the only source of supply within the
county serving the |
| 5036 |
association. |
| 5037 |
(d) Nothing
contained in this section shall excuse a party |
| 5038 |
contracting to provide maintenance or
management services from |
| 5039 |
compliance with s. 720.309. |
| 5040 |
Section
57. Section 720.306, Florida Statutes, is amended |
| 5041 |
to read: |
| 5042 |
720.306 Meetings
of members; voting and election |
| 5043 |
procedures; amendments.-- |
| 5044 |
(1) QUORUM;
AMENDMENTS.-- |
| 5045 |
(a) Unless
otherwise required by law, and other than those |
| 5046 |
matters set forth
in paragraph (b), any governing document of an |
| 5047 |
association shall
only be amended by the affirmative vote of |
| 5048 |
two-thirds of the
voting interests of the association subject to |
| 5049 |
the following: |
| 5050 |
1. All
amendments offered for official recording must be |
| 5051 |
submitted as
contained within the covenants and restrictions in |
| 5052 |
their entirety. |
| 5053 |
2. Within
12 months of enactment of this subsection all |
| 5054 |
duly registered
covenants and restrictions must be complete and |
| 5055 |
set forth in
plain, easily understandable English. Unless
a |
| 5056 |
lower number is
provided in the bylaws, the percentage of voting |
| 5057 |
interests required
to constitute a quorum at a meeting of the |
| 5058 |
members shall be
30 percent of the total voting interests. |
| 5059 |
Unless otherwise
provided in this chapter or in the articles of |
| 5060 |
incorporation or
bylaws, decisions that require a vote of the |
| 5061 |
members must be
made by the concurrence of at least a majority |
| 5062 |
of the voting
interests present, in person or by proxy, at a |
| 5063 |
meeting at which a
quorum has been attained. |
| 5064 |
(b) Unless
otherwise provided in the governing documents |
| 5065 |
or required by
law, and other than those matters set forth in |
| 5066 |
paragraph (c), any
governing document of an association may be |
| 5067 |
amended by the
affirmative vote of two-thirds of the voting |
| 5068 |
interests of the
association. |
| 5069 |
(b)(c) Unless
otherwise provided in the governing |
| 5070 |
documents as
originally recorded or permitted by this chapter or |
| 5071 |
chapter 617,
An amendment may not materially and adversely alter |
| 5072 |
the proportionate voting interest
appurtenant to a parcel or |
| 5073 |
increase the proportion or percentage
by which a parcel shares |
| 5074 |
in the common expenses of the
association unless the record |
| 5075 |
parcel owner and all record owners of
liens on the parcels join |
| 5076 |
in the execution of the amendment. For
purposes of this section, |
| 5077 |
a change in quorum
requirements is not an alteration of voting |
| 5078 |
interests. |
| 5079 |
(c) An
amendment restricting owners' rights relating to |
| 5080 |
the rental of
homes applies only to parcel owners who consent to |
| 5081 |
the amendment and
to parcel owners who purchase their parcels |
| 5082 |
after the
effective date of that amendment. |
| 5083 |
(2) ANNUAL
MEETING.--The association shall hold a meeting |
| 5084 |
of its members annually for the
transaction of any and all |
| 5085 |
proper business at a time, date, and
place stated in, or fixed |
| 5086 |
in accordance with, the bylaws. The
election of directors, if |
| 5087 |
one is required to be held, must be
held at, or in conjunction |
| 5088 |
with, the annual meeting or
as provided in the governing |
| 5089 |
documents. |
| 5090 |
(3) SPECIAL
MEETINGS.--Special meetings must be held when |
| 5091 |
called by the board of directors or,
unless a different |
| 5092 |
percentage
is stated in the governing documents, by at least 10 |
| 5093 |
percent of the total voting interests
of the association. |
| 5094 |
Business conducted at a special
meeting is limited to the |
| 5095 |
purposes described in the notice and
the agenda of the meeting. |
| 5096 |
(4) CONTENT
OF NOTICE.--Unless law or the governing |
| 5097 |
documents
require otherwise, Notice of an annual meeting need |
| 5098 |
not include a description of the
purpose or purposes for which |
| 5099 |
the meeting is called. Notice of a
special meeting must include |
| 5100 |
an agenda
and a description of the purpose or purposes for which |
| 5101 |
the meeting is called. |
| 5102 |
(5) NOTICE
OF MEETINGS.--The bylaws shall provide for |
| 5103 |
giving notice to members of all
member meetings, and if they do |
| 5104 |
not do so shall be deemed to provide
the following: The |
| 5105 |
association shall give all parcel
owners and members actual |
| 5106 |
notice of all membership meetings,
which shall be mailed, |
| 5107 |
delivered, or electronically
transmitted to the members not less |
| 5108 |
than 14 days prior to the meeting.
Evidence of compliance with |
| 5109 |
this 14-day notice shall be made by
an affidavit executed by the |
| 5110 |
person providing the notice and filed
upon execution among the |
| 5111 |
official records of the association.
In addition to mailing, |
| 5112 |
delivering, or electronically
transmitting the notice of any |
| 5113 |
meeting, the association may, by
reasonable rule, adopt a |
| 5114 |
procedure for conspicuously posting
and repeatedly broadcasting |
| 5115 |
the notice and the agenda on a
closed-circuit cable television |
| 5116 |
system serving the association. When
broadcast notice is |
| 5117 |
provided, the notice and agenda must
be broadcast in a manner |
| 5118 |
and for a sufficient continuous
length of time so as to allow an |
| 5119 |
average reader to observe the notice
and read and comprehend the |
| 5120 |
entire content of the notice and the
agenda. |
| 5121 |
(6) RIGHT
TO SPEAK.--Members and parcel owners have the |
| 5122 |
right to attend all membership
meetings and to speak at any |
| 5123 |
meeting with reference to any
all items opened for discussion or |
| 5124 |
included
on the agenda. Notwithstanding any provision
to the |
| 5125 |
contrary in the
governing documents or any rules adopted by the |
| 5126 |
board or by
the membership, A member and a parcel owner have the |
| 5127 |
right to speak at
least once for at least 3 minutes on each |
| 5128 |
agenda
any item,
provided that the member or parcel owner |
| 5129 |
submits a
written request to speak prior to the meeting. The |
| 5130 |
association may adopt written
reasonable rules governing the |
| 5131 |
frequency and,
duration, and other manner of
member and parcel |
| 5132 |
owner statements, which rules must be
consistent with this |
| 5133 |
subsection. |
| 5134 |
(7) ADJOURNMENT.--Unless
the bylaws require otherwise, |
| 5135 |
Adjournment of an annual or special
meeting to a different date, |
| 5136 |
time, or place must be announced at
that meeting before an |
| 5137 |
adjournment is taken, or notice must
be given of the new date, |
| 5138 |
time, or place pursuant to s.
720.303(2). Any business that |
| 5139 |
might have been transacted on the
original date of the meeting |
| 5140 |
may be transacted at the adjourned
meeting. If a new record date |
| 5141 |
for the adjourned meeting is or must
be fixed under s. 617.0707, |
| 5142 |
notice of the adjourned meeting must
be given to persons who are |
| 5143 |
entitled to vote and are members as
of the new record date but |
| 5144 |
were not members as of the previous
record date. |
| 5145 |
(8) PROXY
VOTING.--The members have the right, unless |
| 5146 |
otherwise provided in this subsection
or in the governing |
| 5147 |
documents,
to vote in person or by limited
proxy. To be valid, a |
| 5148 |
limited
proxy must be dated, must state the date, time, and |
| 5149 |
place of the meeting for which it was
given, and must be signed |
| 5150 |
by the authorized person who executed
the proxy. A limited proxy |
| 5151 |
is effective only for the specific
meeting for which it was |
| 5152 |
originally given, as the meeting may
lawfully be adjourned and |
| 5153 |
reconvened from time to time, and
automatically expires 60 90 |
| 5154 |
days after the date of the meeting
for which it was originally |
| 5155 |
given. A proxy is revocable at any
time at the pleasure of the |
| 5156 |
person who executes it. If the proxy
form expressly so provides, |
| 5157 |
any proxy holder may appoint, in
writing, a substitute to act in |
| 5158 |
his or her place. |
| 5159 |
(9) ELECTIONS.-- |
| 5160 |
(a) Election
procedures.-- |
| 5161 |
1. The
members of the board shall be elected by written |
| 5162 |
ballot or voting
machine. Proxies shall in no event be used in |
| 5163 |
electing the
board, either in general elections or elections to |
| 5164 |
fill vacancies
caused by recall, resignation, or otherwise, |
| 5165 |
unless otherwise
provided in this chapter. Not less than 60 days |
| 5166 |
before a scheduled
election, the association shall mail, |
| 5167 |
deliver, or
electronically transmit, whether by separate |
| 5168 |
association
mailing or included in another association mailing, |
| 5169 |
delivery, or
transmission, including regularly published |
| 5170 |
newsletters, to
each parcel owner entitled to a vote, a first |
| 5171 |
notice of the date
of the election. Any homeowner or other |
| 5172 |
eligible person
desiring to be a candidate for the board must |
| 5173 |
give written
notice to the association not less than 40 days |
| 5174 |
before a scheduled
election. Together with the written notice |
| 5175 |
and agenda as set
forth in this section, the association shall |
| 5176 |
mail, deliver, or
electronically transmit a second notice of the |
| 5177 |
election to all
parcel owners entitled to vote therein, with a |
| 5178 |
ballot that shall
list all candidates. Upon request of a |
| 5179 |
candidate, the
association shall include an information sheet, |
| 5180 |
no larger than 8
1/2 inches by 11 inches, which must be |
| 5181 |
furnished by the
candidate not less than 35 days before the |
| 5182 |
election, to be
included with the mailing, delivery, or |
| 5183 |
transmission of
the ballot, with the costs of mailing, delivery, |
| 5184 |
or electronic
transmission and copying to be borne by the |
| 5185 |
association. The
association is not liable for the contents of |
| 5186 |
the information
sheets prepared by the candidates. In order to |
| 5187 |
reduce costs, the
association may print or duplicate the |
| 5188 |
information sheets
on both sides of the paper. The division |
| 5189 |
shall by rule
establish voting procedures consistent with the |
| 5190 |
provisions
contained in this chapter, including rules |
| 5191 |
establishing
procedures for giving notice by electronic |
| 5192 |
transmission and
rules providing for the secrecy of ballots. |
| 5193 |
Elections shall be
decided by a plurality of those ballots cast. |
| 5194 |
There shall be no
quorum requirement; however, at least 20 |
| 5195 |
percent of the
eligible voters must cast a ballot in order to |
| 5196 |
have a valid
election of members of the board. No parcel owner |
| 5197 |
shall permit any
other person to vote his or her ballot, and any |
| 5198 |
such ballots
improperly cast shall be deemed invalid, provided |
| 5199 |
any parcel owner
who violates this provision may be fined by the |
| 5200 |
association in
accordance with s. 720.305(2). A parcel owner |
| 5201 |
needing assistance
in casting the ballot for the reasons stated |
| 5202 |
in s. 101.051 may
obtain assistance in casting the ballot. The |
| 5203 |
regular election
shall occur on the date of the annual meeting. |
| 5204 |
Notwithstanding
the provisions of this subparagraph, an election |
| 5205 |
is not required
unless more candidates file notices of intent to |
| 5206 |
run or more are
nominated than board vacancies exist. |
| 5207 |
2. Unless
otherwise provided in the bylaws, any vacancy |
| 5208 |
occurring on the
board before the expiration of a term may be |
| 5209 |
filled by the
affirmative vote of the majority of the remaining |
| 5210 |
directors, even if
the remaining directors constitute less than |
| 5211 |
a quorum, or by
the sole remaining director. In the alternative, |
| 5212 |
a board may hold
an election to fill the vacancy, in which case |
| 5213 |
the election
procedures must conform to the requirements of this |
| 5214 |
section unless the
association has opted out of the statutory |
| 5215 |
election process,
in which case the bylaws of the association |
| 5216 |
control. Unless
otherwise provided in the bylaws, a board member |
| 5217 |
appointed or
elected under this section shall fill the vacancy |
| 5218 |
for the unexpired
term of the seat being filled. Filling |
| 5219 |
vacancies created
by recall is governed by s. 720.303(10) and |
| 5220 |
rules adopted by
the division. |
| 5221 |
3. Fifteen
percent of the total voting interests in a |
| 5222 |
homeowners'
association, or six parcel owners, whichever is |
| 5223 |
greater, may
petition the division to appoint an election |
| 5224 |
monitor to attend
the annual meeting of the homeowners and |
| 5225 |
conduct the
election of directors. The division shall appoint a |
| 5226 |
division employee,
a person or persons specializing in |
| 5227 |
homeowners'
association election monitoring, or an attorney |
| 5228 |
licensed to
practice in this state as the election monitor. All |
| 5229 |
costs associated
with the election monitoring process shall be |
| 5230 |
paid by the
association. The division shall adopt a rule |
| 5231 |
establishing
procedures for the appointment of election monitors |
| 5232 |
and the scope and
extent of the monitor's role in the election |
| 5233 |
process. |
| 5234 |
(b) Terms;
eligibility of candidates.-- |
| 5235 |
1. The
terms of all members of the board shall expire at |
| 5236 |
the annual
meeting. Members may stand for reelection. |
| 5237 |
2. Coowners
of a parcel may not serve as members of the |
| 5238 |
board of
administration at the same time. |
| 5239 |
3. After
transition of control in a community, only |
| 5240 |
members as defined
in s. 720.301(1) shall be eligible as |
| 5241 |
candidates for the
board. |
| 5242 |
4. A
person who has been convicted of any felony by any |
| 5243 |
court of record in
the United States and who has not had his or |
| 5244 |
her right to vote
restored pursuant to law in the jurisdiction |
| 5245 |
of his or her
residence is not eligible for board membership. |
| 5246 |
The validity of an
action by the board is not affected if it is |
| 5247 |
later determined
that a member of the board is ineligible for |
| 5248 |
board membership
due to having been convicted of a felony. |
| 5249 |
Elections of
directors must be conducted in accordance with the |
| 5250 |
procedures set
forth in the governing documents of the |
| 5251 |
association. All
members of the association shall be eligible to |
| 5252 |
serve on the board
of directors, and a member may nominate |
| 5253 |
himself or herself
as a candidate for the board at a meeting |
| 5254 |
where the election
is to be held. Except as otherwise provided |
| 5255 |
in the governing
documents, boards of directors must be elected |
| 5256 |
by a plurality of
the votes cast by eligible voters. Any |
| 5257 |
election dispute
between a member and an association must be |
| 5258 |
submitted to
mandatory binding arbitration with the division. |
| 5259 |
Such proceedings
shall be conducted in the manner provided by s. |
| 5260 |
718.1255 and the
procedural rules adopted by the division. |
| 5261 |
(10) RECORDING.--Any
parcel owner may electronically tape |
| 5262 |
record any
or videotape meetings of the board
of directors and |
| 5263 |
meetings of the members. The board of
directors of the |
| 5264 |
association may adopt reasonable
rules governing the taping of |
| 5265 |
meetings of the board and the
membership. However, those rules |
| 5266 |
may not restrict
the parcel owners' rights to electronically |
| 5267 |
record the meeting
using, but not limited to, battery-operated |
| 5268 |
or electrical
equipment. |
| 5269 |
Section
58. Section 720.307, Florida Statutes, is amended |
| 5270 |
to read: |
| 5271 |
720.307 Transition
of association control in a |
| 5272 |
community.--With respect to
homeowners' associations: |
| 5273 |
(1) Members
other than the developer are entitled to elect |
| 5274 |
at least a majority of the members of
the board of directors of |
| 5275 |
the homeowners' association when the
earlier of the following |
| 5276 |
events occurs: |
| 5277 |
(a) Three
months after 75 90
percent of the parcels in all |
| 5278 |
phases of the community that will
ultimately be operated by the |
| 5279 |
homeowners' association have been
conveyed to members; or |
| 5280 |
(b) Such
other percentage of the parcels has been conveyed |
| 5281 |
to members, or such other date or
event has occurred, as is set |
| 5282 |
forth in the governing documents in
order to comply with the |
| 5283 |
requirements of any governmentally
chartered entity with regard |
| 5284 |
to the mortgage financing of parcels. |
| 5285 |
|
| 5286 |
For purposes of this section, the
term "members other than the |
| 5287 |
developer" shall not include
builders, contractors, or others |
| 5288 |
who purchase a parcel for the purpose
of constructing |
| 5289 |
improvements thereon for resale. |
| 5290 |
(2) The
developer is entitled to elect at least one member |
| 5291 |
of the board of directors of the
homeowners' association as long |
| 5292 |
as the developer holds for sale in
the ordinary course of |
| 5293 |
business at least 5 percent of the
parcels in all phases of the |
| 5294 |
community. After the developer
relinquishes control of the |
| 5295 |
homeowners' association, the
developer may exercise the right to |
| 5296 |
vote any developer-owned voting
interests in the same manner as |
| 5297 |
any other member, except for purposes
of reacquiring control of |
| 5298 |
the homeowners' association or
selecting the majority of the |
| 5299 |
members of the board of directors. |
| 5300 |
(3) Prior
to turnover, the developer or owner of all |
| 5301 |
common areas shall
convey the title to all common areas to the |
| 5302 |
association
immediately upon incorporation of the association. |
| 5303 |
If additional
common areas are acquired prior to transition of |
| 5304 |
control and
subject to the governing documents, title to those |
| 5305 |
common areas shall
also be immediately transferred to the |
| 5306 |
association. |
| 5307 |
(4) At
the time the members are entitled to elect at least |
| 5308 |
a majority of the board of directors
of the homeowners' |
| 5309 |
association, the developer shall, at
the developer's expense, |
| 5310 |
within no more than 30
90 days deliver the following
documents |
| 5311 |
to the board: |
| 5312 |
(a) All
deeds to common property owned by the association |
| 5313 |
or the developer. |
| 5314 |
(b) The
original of the association's declarations of |
| 5315 |
covenants and restrictions. |
| 5316 |
(c) A
certified copy of the articles of incorporation of |
| 5317 |
the association. |
| 5318 |
(d) A
copy of the bylaws. |
| 5319 |
(e) The
minute books, including all minutes. |
| 5320 |
(f) The
books and records of the association. |
| 5321 |
(g) Policies,
rules, and regulations, if any, which have |
| 5322 |
been adopted. |
| 5323 |
(h) Resignations
of directors who are required to resign |
| 5324 |
because the developer is required to
relinquish control of the |
| 5325 |
association. |
| 5326 |
(i) The
financial records of the association from the date |
| 5327 |
of incorporation through the date of
turnover. |
| 5328 |
(j) All
association funds and control thereof. |
| 5329 |
(k) All
tangible property of the association. |
| 5330 |
(l) A
copy of all contracts which may be in force with the |
| 5331 |
association as one of the parties. |
| 5332 |
(m) A
list of the names and addresses and telephone |
| 5333 |
numbers of all contractors,
subcontractors, or others in the |
| 5334 |
current employ of the association. |
| 5335 |
(n) Any
and all insurance policies in effect. |
| 5336 |
(o) Any
permits issued to the association by governmental |
| 5337 |
entities. |
| 5338 |
(p) Any
and all warranties in effect. |
| 5339 |
(q) A
roster of current homeowners and their addresses and |
| 5340 |
telephone numbers and section and lot
numbers. |
| 5341 |
(r) Employment
and service contracts in effect. |
| 5342 |
(s) All
other contracts and agreements in effect to which |
| 5343 |
the association is a party. |
| 5344 |
(t) The
financial records, including financial statements |
| 5345 |
of the
association, and source documents from the incorporation |
| 5346 |
of the association
through the date of turnover. The records |
| 5347 |
shall be audited
by an independent certified public accountant |
| 5348 |
for the period of
the incorporation of the association or for |
| 5349 |
the period covered
by the last audit, if an audit has been |
| 5350 |
performed for each
fiscal year since incorporation. All |
| 5351 |
financial
statements shall be prepared in accordance with |
| 5352 |
generally accepted
accounting standards and shall be audited in |
| 5353 |
accordance with
generally accepted auditing standards as |
| 5354 |
prescribed by the
Board of Accountancy. The accountant |
| 5355 |
performing the
review shall examine to the extent necessary |
| 5356 |
supporting
documents and records, including the cash |
| 5357 |
disbursements and
related paid invoices to determine whether |
| 5358 |
expenditures were
for association purposes and the billings, |
| 5359 |
cash receipts, and
related records to determine whether the |
| 5360 |
developer was
charged and paid the proper amounts of |
| 5361 |
assessments. This
paragraph applies to associations with a date |
| 5362 |
of incorporation
after December 31, 2007. |
| 5363 |
(5)(4) This
section applies to any mandatory homeowners' |
| 5364 |
association
existing under this chapter does
not apply to a |
| 5365 |
homeowners'
association in existence on the effective date of |
| 5366 |
this act, or to a
homeowners' association, no matter when |
| 5367 |
created, if such
association is created in a community that is |
| 5368 |
included in an
effective development-of-regional-impact |
| 5369 |
development order
as of the effective date of this act, together |
| 5370 |
with any approved
modifications thereof. |
| 5371 |
Section
59. Section 720.3071, Florida Statutes, is created |
| 5372 |
to read: |
| 5373 |
720.3071 Board
member training.--The division shall |
| 5374 |
provide training
programs for homeowners' association board |
| 5375 |
members, at the
associations' expense. Training shall be |
| 5376 |
mandatory for
newly elected board members and members currently |
| 5377 |
serving on a board
who have not previously voluntarily attended |
| 5378 |
training. |
| 5379 |
Section
60. Subsection (1) of section 720.3075, Florida |
| 5380 |
Statutes, is amended, and subsection
(5) is added to that |
| 5381 |
section, to read: |
| 5382 |
720.3075 Prohibited
clauses in association documents.-- |
| 5383 |
(1) It
is declared that the public policy of this state |
| 5384 |
prohibits the inclusion or
enforcement of certain types of |
| 5385 |
clauses in homeowners' association
documents, including |
| 5386 |
declaration of covenants, articles of
incorporation, bylaws, or |
| 5387 |
any other document of the association
which binds members of the |
| 5388 |
association, which either have the
effect of or provide that: |
| 5389 |
(a) A
developer has the unilateral ability and right to |
| 5390 |
make changes to the homeowners'
association documents after the |
| 5391 |
transition of homeowners' association
control in a community |
| 5392 |
from the developer to the
nondeveloper members, as set forth in |
| 5393 |
s. 720.307, has occurred. |
| 5394 |
(b) A
homeowners' association is prohibited or restricted |
| 5395 |
from filing a lawsuit against the
developer, or the homeowners' |
| 5396 |
association is otherwise effectively
prohibited or restricted |
| 5397 |
from bringing a lawsuit against the
developer. |
| 5398 |
(c) After
the transition of homeowners' association |
| 5399 |
control in a community from the
developer to the nondeveloper |
| 5400 |
members, as set forth in s. 720.307,
has occurred, a developer |
| 5401 |
is entitled to cast votes in an
amount that exceeds one vote per |
| 5402 |
residential lot. |
| 5403 |
(d) The
homeowners' association is restricted or prevented |
| 5404 |
from functioning,
as provided by federal, state, and local laws |
| 5405 |
and specifically
by this chapter. |
| 5406 |
(e) The
homeowners' association is prevented from amending |
| 5407 |
any document as
allowed according to Florida statutes. |
| 5408 |
|
| 5409 |
Such clauses are declared null and
void as against the public |
| 5410 |
policy of this state. |
| 5411 |
(5)(a) An
association may not restrict a homeowner from |
| 5412 |
mounting or
employing shutters or other hurricane protection. |
| 5413 |
(b) Except
as provided in paragraph (c), an association |
| 5414 |
may not restrict a
homeowner from mounting or employing |
| 5415 |
temporary or
permanent shutters or other hurricane protection |
| 5416 |
during any time
that a hurricane warning has been declared, |
| 5417 |
during any time
when an evacuation order has been given, or for |
| 5418 |
the following
period after conclusion of such hurricane watch or |
| 5419 |
evacuation order: |
| 5420 |
1. Seven
days; or |
| 5421 |
2. Fourteen
days if the hurricane watch concerns a |
| 5422 |
category 4 storm
or greater or if the evacuation order lasts |
| 5423 |
more than 3 days. |
| 5424 |
(c) If
a local government restricts homeowners' mounting |
| 5425 |
or employing
temporary or permanent shutters or other hurricane |
| 5426 |
protection, the
local government may also authorize associations |
| 5427 |
to adopt and
enforce equal or lesser restrictions. |
| 5428 |
(d) Except
as provided in paragraph (c) or paragraph (e), |
| 5429 |
an association may
not restrict a homeowner from mounting or |
| 5430 |
employing
permanent shutters or other hurricane protection |
| 5431 |
(e) If
the association otherwise properly adopts |
| 5432 |
restrictions
governing color or form of shutters or other |
| 5433 |
permanent exterior
window coverings, the association may adopt |
| 5434 |
and enforce equal
or lesser restrictions that apply to permanent |
| 5435 |
exterior hurricane
protections. |
| 5436 |
(f) An
association may not restrict the time or duration |
| 5437 |
for shutters or
other hurricane protection to be open or closed |
| 5438 |
during any period
and may not restrict homeowners from mounting |
| 5439 |
or employing
temporary shutters or other hurricane protection, |
| 5440 |
as provided in
paragraph (b). |
| 5441 |
Section
61. Section 720.3086, Florida Statutes, is amended |
| 5442 |
to read: |
| 5443 |
720.3086 Financial
report; audit; penalty; exclusivity of |
| 5444 |
properties.-- |
| 5445 |
(1) In
a residential subdivision in which the owners of |
| 5446 |
lots or parcels must pay mandatory maintenance or
amenity fees |
| 5447 |
to the subdivision developer or to the owners of
the common |
| 5448 |
areas, recreational facilities, and other
properties serving the |
| 5449 |
lots or parcels, the developer or owner of such
areas, |
| 5450 |
facilities, or properties shall make public,
within 60 days |
| 5451 |
following the end of each fiscal year, a complete
financial |
| 5452 |
report of the actual, total receipts of mandatory
maintenance or |
| 5453 |
amenity fees received by it, and an itemized
listing of the |
| 5454 |
expenditures made by it from such fees, for that
year. Such |
| 5455 |
report shall be made public by mailing it to each
lot or parcel |
| 5456 |
owner in the subdivision, by publishing it in a
publication |
| 5457 |
regularly distributed within the subdivision, or
by posting it |
| 5458 |
in prominent locations in the subdivision. Thereafter,
the |
| 5459 |
developer or the owner of the
common areas, recreational |
| 5460 |
facilities, and other
properties serving the lots or parcels |
| 5461 |
shall mail the annual
financial report, upon written request |
| 5462 |
from a lot or parcel owner. |
| 5463 |
(2) Pursuant
to this section, if the developer or the |
| 5464 |
owner fails to provide the lot
or parcel owner with the |
| 5465 |
requested annual financial
report within 30 days of delivery of |
| 5466 |
such request to the developer
or owner, the circuit court |
| 5467 |
located in the same county as
the principal office of the |
| 5468 |
corporation, or its registered
office, if no office exists in |
| 5469 |
this state, summarily may
order the corporation to furnish such |
| 5470 |
financial report, upon
application of the lot or parcel owner. |
| 5471 |
If the court orders the
corporation to furnish the financial |
| 5472 |
report, it shall also order
the corporation to pay the lot or |
| 5473 |
parcel owner's costs,
including reasonable attorney's fees that |
| 5474 |
have been incurred to obtain
the order, and otherwise shall |
| 5475 |
enforce the lot or parcel
owner's rights under this section. |
| 5476 |
(3) Lot
or parcel owners shall have exclusive and vested |
| 5477 |
rights for the use of common
areas, recreational facilities, and |
| 5478 |
other properties serving the
lots or parcels unless they have |
| 5479 |
been dedicated for
nonexclusive use by the lot or parcel owners. |
| 5480 |
Portions of governing
documents that allow guests of the |
| 5481 |
developer or facility owner
the right to use the facility are |
| 5482 |
hereby declared void, as those
portions of governing documents |
| 5483 |
violate the rights to
exclusive use of the facilities by the lot |
| 5484 |
or parcel owners and their
guests. |
| 5485 |
(4) This
section does not apply to amounts paid to |
| 5486 |
homeowner associations pursuant to chapter
617, chapter 718, |
| 5487 |
chapter 719, chapter 721, or chapter 723, or to
amounts paid to |
| 5488 |
local governmental entities, including special
districts. |
| 5489 |
Section 62. Section
720.401, Florida Statutes, is amended |
| 5490 |
to read: |
| 5491 |
720.401 Prospective
purchasers subject to association |
| 5492 |
membership requirement; disclosure required;
covenants; |
| 5493 |
assessments; contract cancellation.-- |
| 5494 |
(1)(a) A
prospective parcel owner in a community must be |
| 5495 |
presented a disclosure summary before executing
the contract for |
| 5496 |
sale. The disclosure summary must be in a form
substantially |
| 5497 |
similar to the following form: |
| 5498 |
|
| 5499 |
DISCLOSURE SUMMARY |
| 5500 |
FOR |
| 5501 |
(NAME OF COMMUNITY) |
| 5502 |
|
| 5503 |
1. AS A
PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL |
| 5504 |
BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS'
ASSOCIATION. |
| 5505 |
2. THE
PURCHASER HAS BEEN PROVIDED A COPY OF THE THERE |
| 5506 |
HAVE BEEN OR WILL BE
RECORDED RESTRICTIVE COVENANTS AND THE |
| 5507 |
ASSOCIATION GOVERNING DOCUMENTS RELATIVE TO
GOVERNING THE USE |
| 5508 |
AND OCCUPANCY OF PROPERTIES IN THIS COMMUNITY. AFFIRM
OR DENY |
| 5509 |
RECEIPT OR DOCUMENTS BY
CHECKING: |
| 5510 |
YES /box/ or NO /box/ |
| 5511 |
3. YOU WILL
(OR WILL NOT) BE OBLIGATED TO PAY
ASSESSMENTS |
| 5512 |
TO THE ASSOCIATION. ASSESSMENTS ARE
MAY BE SUBJECT TO PERIODIC |
| 5513 |
CHANGE. IF APPLICABLE, THE CURRENT AMOUNT IS
$_____ PER _____. |
| 5514 |
IN ADDITION,
YOU WILL (OR
WILL NOT) ALSO BE OBLIGATED TO PAY ANY |
| 5515 |
SPECIAL ASSESSMENTS IMPOSED BY THE ASSOCIATION.
SUCH SPECIAL |
| 5516 |
ASSESSMENTS ARE
MAY BE SUBJECT TO CHANGE. IF
APPLICABLE, THE |
| 5517 |
CURRENT AMOUNT IS $_____ PER _____. |
| 5518 |
4. YOU WILL
MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS |
| 5519 |
AND AD VALOREM TAXES AND
NON-AD VALOREM ASSESSMENTS TO THE |
| 5520 |
RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL
DISTRICT. ALL |
| 5521 |
ASSESSMENTS AND TAXES
ARE SUBJECT TO PERIODIC CHANGE. |
| 5522 |
5. YOUR
FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS |
| 5523 |
LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION
COULD RESULT IN A |
| 5524 |
LIEN AND JUDICIAL
FORECLOSURE ON YOUR PROPERTY. |
| 5525 |
6. THERE
MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES |
| 5526 |
FOR RECREATIONAL OR OTHER COMMONLY USED
FACILITIES AS AN |
| 5527 |
OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'
ASSOCIATION. IF |
| 5528 |
APPLICABLE, THE CURRENT AMOUNT IS $_____ PER
_____. |
| 5529 |
7. THE
DEVELOPER HAS MAY
HAVE THE RIGHT TO AMEND THE |
| 5530 |
RESTRICTIVE COVENANTS WHILE
STILL IN CONTROL OF THE HOMEOWNERS' |
| 5531 |
ASSOCIATION
WITHOUT THE APPROVAL OF THE ASSOCIATION MEMBERSHIP |
| 5532 |
OR THE APPROVAL OF THE PARCEL OWNERS. |
| 5533 |
8. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE |
| 5534 |
ONLY SUMMARY IN NATURE, AND, AS A
PROSPECTIVE PURCHASERS |
| 5535 |
PURCHASER,
YOU SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION |
| 5536 |
GOVERNING DOCUMENTS BEFORE PURCHASING PROPERTY. |
| 5537 |
9. THESE
DOCUMENTS ARE EITHER MATTERS OF
PUBLIC RECORD AND |
| 5538 |
CAN BE OBTAINED FROM THE
RECORD OFFICE IN THE COUNTY WHERE THE |
| 5539 |
PROPERTY IS LOCATED, OR
ARE NOT RECORDED IN
TALLAHASSEE AND IN |
| 5540 |
THE COUNTY WHERE THE PROPERTY
IS LOCATED. A PENALTY SHALL BE |
| 5541 |
IMPOSED UPON THE DEVELOPER,
SELLER OR AGENT OF THE SELLER IF A |
| 5542 |
RECORDED COPY OF THE
RESTRICTIVE COVENANTS AND THE ASSOCIATION |
| 5543 |
GOVERNING DOCUMENTS ARE NOT
PROVIDED BEFORE CONTRACT FOR SALE |
| 5544 |
AND CAN BE OBTAINED FROM
THE DEVELOPER. |
| 5545 |
10. THE
PURCHASERS HAVE BEEN PROVIDED A COPY OF THE |
| 5546 |
RESTRICTIVE COVENANTS AND THE
ASSOCIATION GOVERNING DOCUMENTS |
| 5547 |
BEFORE CONTRACT FOR SALE.
AFFIRM OR DENY BY CHECKING |
| 5548 |
YES /box/ or NO /box/. |
| 5549 |
|
| 5550 |
DATE:PURCHASER: |
| 5551 |
PURCHASER: |
| 5552 |
|
| 5553 |
Full The
disclosure must be supplied by the developer, or by the |
| 5554 |
parcel owner if the sale is by an owner that is
not the |
| 5555 |
developer or the agent
for the owner. Any contract or agreement |
| 5556 |
for sale shall refer to and incorporate the
disclosure summary |
| 5557 |
and shall include, in prominent language, a
statement that the |
| 5558 |
potential buyer should not execute the contract
or agreement |
| 5559 |
until they have received and read the disclosure
summary, |
| 5560 |
recorded restrictive covenants
and governing documents of the |
| 5561 |
association,
required by this section. |
| 5562 |
(b) Each
contract entered into for the sale of property |
| 5563 |
with recorded
restrictive covenants governed by mandatory |
| 5564 |
homeowners' associations
covenants subject to disclosure |
| 5565 |
required by this section must contain in
conspicuous type a |
| 5566 |
clause that states: |
| 5567 |
|
| 5568 |
IF THE DISCLOSURE SUMMARY AND
FULL DISCLOSURE OF THE RECORDED |
| 5569 |
RESTRICTIVE COVENANTS AND
GOVERNING DOCUMENTS OF THE |
| 5570 |
ASSOCIATION, REQUIRED
BY SECTION 720.401, FLORIDA STATUTES, HAVE |
| 5571 |
HAS NOT BEEN
PROVIDED TO THE PROSPECTIVE PURCHASER BEFORE |
| 5572 |
EXECUTING THIS CONTRACT FOR SALE, THIS CONTRACT
IS VOIDABLE BY |
| 5573 |
BUYER BY DELIVERING TO SELLER OR SELLER'S AGENT
OR |
| 5574 |
REPRESENTATIVE WRITTEN NOTICE OF THE BUYER'S
INTENTION TO CANCEL |
| 5575 |
WITHIN 10 3
DAYS AFTER RECEIPT OF THE FULL DISCLOSURE SUMMARY
OR |
| 5576 |
PRIOR TO CLOSING,
WHICHEVER OCCURS FIRST. ANY PURPORTED WAIVER |
| 5577 |
OF THIS VOIDABILITY RIGHT HAS NO EFFECT. BUYER'S
RIGHT TO VOID |
| 5578 |
THIS CONTRACT SHALL TERMINATE AT CLOSING. |
| 5579 |
(c) A
certified copy of the publicly recorded governing |
| 5580 |
documents must be provided to
any prospective purchaser, any |
| 5581 |
real estate agent, financial
institution, title or closing |
| 5582 |
company upon request. |
| 5583 |
(d) If
the developer or the association willfully and |
| 5584 |
knowingly fails to disclose
material facts that negatively |
| 5585 |
affect the value of the parcel
purchased by an association |
| 5586 |
member, the individual board
members or developer shall be held |
| 5587 |
liable under applicable
federal and state civil and criminal |
| 5588 |
statutes. (e)(c) If
the disclosure summary is not provided to a |
| 5589 |
prospective purchaser before the purchaser
executes a contract |
| 5590 |
for the sale of property governed by covenants
that are subject |
| 5591 |
to disclosure pursuant to this section, the
purchaser may void |
| 5592 |
the contract by delivering to the seller or the
seller's agent |
| 5593 |
or representative written notice canceling the
contract within 3 |
| 5594 |
days after receipt of the disclosure summary or
prior to |
| 5595 |
closing, whichever occurs first. This right may
not be waived by |
| 5596 |
the purchaser but terminates at closing. |
| 5597 |
(2) This
section does not apply to any association |
| 5598 |
regulated under chapter 718, chapter 719, chapter
721, or |
| 5599 |
chapter 723 or to a
subdivider registered under chapter 498; and |
| 5600 |
also does not apply if disclosure regarding the
association is |
| 5601 |
otherwise made in connection with the
requirements of chapter |
| 5602 |
718, chapter 719, chapter 721, or chapter 723. |
| 5603 |
Section 63. Section
720.501, Florida Statutes, is created |
| 5604 |
to read: |
| 5605 |
720.501 Powers
and Duties of Division of Florida Land |
| 5606 |
Sales, Condominiums,
Homeowners' Associations, and Mobile |
| 5607 |
Homes.-- |
| 5608 |
(1) The
Division of Florida Land Sales, Condominiums, |
| 5609 |
Homeowners' Associations, and
Mobile Homes of the Department of |
| 5610 |
Business and Professional
Regulation, referred to as the |
| 5611 |
"division" in this
part, in addition to other powers and duties |
| 5612 |
prescribed by chapter 498, has
the power to enforce and ensure |
| 5613 |
compliance with the provisions
of this chapter and rules |
| 5614 |
promulgated pursuant hereto
relating to the development, |
| 5615 |
construction, sale, lease,
ownership, operation, and management |
| 5616 |
of residential property. In
performing its duties, the division |
| 5617 |
has the following powers and
duties: |
| 5618 |
(a) The
division may make necessary public or private |
| 5619 |
investigations within or
outside this state to determine whether |
| 5620 |
any person has violated this
chapter or any rule or order |
| 5621 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
| 5622 |
in the adoption of rules or
forms hereunder. |
| 5623 |
(b) The
division may require or permit any person to file |
| 5624 |
a statement in writing, under
oath or otherwise, as the division |
| 5625 |
determines, as to the facts
and circumstances concerning a |
| 5626 |
matter to be investigated. |
| 5627 |
(c) For
the purpose of any investigation under this |
| 5628 |
chapter, the division
director, or any officer or employee |
| 5629 |
designated by the division
director may administer oaths or |
| 5630 |
affirmations, subpoena
witnesses and compel their attendance, |
| 5631 |
take evidence, and require the
production of any matter which is |
| 5632 |
relevant to the investigation,
including the existence, |
| 5633 |
description, nature, custody,
condition, and location of any |
| 5634 |
books, documents, or other
tangible things and the identity and |
| 5635 |
location of persons having
knowledge of relevant facts or any |
| 5636 |
other matter reasonably
calculated to lead to the discovery of |
| 5637 |
material evidence. Upon the
failure by a person to obey a |
| 5638 |
subpoena or to answer
questions propounded by the investigating |
| 5639 |
officer and upon reasonable
notice to all persons affected |
| 5640 |
thereby, the division may
apply to the circuit court for an |
| 5641 |
order compelling compliance. |
| 5642 |
(d) Notwithstanding
any remedies available to lot owners |
| 5643 |
and associations, if the
division has reasonable cause to |
| 5644 |
believe that a violation of
any provision of this chapter or |
| 5645 |
rule promulgated pursuant
hereto has occurred, the division may |
| 5646 |
institute enforcement
proceedings in its own name against any |
| 5647 |
developer, association,
officer, or member of the board of |
| 5648 |
administration, or its
assignees or agents, as follows: |
| 5649 |
1. The
division may permit a person whose conduct or |
| 5650 |
actions may be under
investigation to waive formal proceedings |
| 5651 |
and enter into a consent
proceeding whereby orders, rules, or |
| 5652 |
letters of censure or warning,
whether formal or informal, may |
| 5653 |
be entered against the person. |
| 5654 |
2. The
division may issue an order requiring the |
| 5655 |
developer, association,
officer, or member of the board of |
| 5656 |
administration, or its
assignees or agents, to cease and desist |
| 5657 |
from the unlawful practice and
take such affirmative action as |
| 5658 |
in the judgment of the
division will carry out the purposes of |
| 5659 |
this chapter. Such affirmative
action may include, but is not |
| 5660 |
limited to, an order requiring
a developer to pay moneys |
| 5661 |
determined to be owed to a
homeowners' association. |
| 5662 |
3. The
division may bring an action in circuit court on |
| 5663 |
behalf of a class of lot
owners, lessees, or purchasers for |
| 5664 |
declaratory relief, injunctive
relief, or restitution. |
| 5665 |
4. The
division may impose a civil penalty against a |
| 5666 |
developer or association, or
its assignee or agent for any |
| 5667 |
violation of this chapter or a
rule promulgated pursuant hereto. |
| 5668 |
The division may impose a
civil penalty individually against any |
| 5669 |
officer or board member who
willfully and knowingly violates a |
| 5670 |
provision of this chapter, a
rule adopted pursuant hereto, or a |
| 5671 |
final order of the division.
The term "willfully and knowingly" |
| 5672 |
means that the division
informed the officer or board member |
| 5673 |
that his or her action or
intended action violates this chapter, |
| 5674 |
a rule adopted under this
chapter, or a final order of the |
| 5675 |
division and that the officer
or board member refused to comply |
| 5676 |
with the requirements of this
chapter, a rule adopted under this |
| 5677 |
chapter, or a final order of
the division. The division, prior |
| 5678 |
to initiating formal agency
action under chapter 120, shall |
| 5679 |
afford the officer or board
member an opportunity to voluntarily |
| 5680 |
comply with this chapter, a
rule adopted under this chapter, or |
| 5681 |
a final order of the division.
An officer or board member who |
| 5682 |
complies within 10 days is not
subject to a civil penalty. A |
| 5683 |
penalty may be imposed on the
basis of each day of continuing |
| 5684 |
violation, but in no event
shall the penalty for any offense |
| 5685 |
exceed $5,000. By January 1,
2007, the division shall adopt, by |
| 5686 |
rule, penalty guidelines
applicable to possible violations or to |
| 5687 |
categories of violations of
this chapter or rules adopted by the |
| 5688 |
division. The guidelines must
specify a meaningful range of |
| 5689 |
civil penalties for each such
violation of the statute and rules |
| 5690 |
and must be based upon the
harm caused by the violation, the |
| 5691 |
repetition of the violation,
and upon such other factors deemed |
| 5692 |
relevant by the division. For
example, the division may consider |
| 5693 |
whether the violations were
committed by a developer-controlled |
| 5694 |
or owner-controlled
association, the size of the association, |
| 5695 |
and other factors. The
guidelines must designate the possible |
| 5696 |
mitigating or aggravating
circumstances that justify a departure |
| 5697 |
from the range of penalties
provided by the rules. It is the |
| 5698 |
legislative intent that minor
violations be distinguished from |
| 5699 |
those which endanger the
health, safety, or welfare of residents |
| 5700 |
or other persons and that such
guidelines provide reasonable and |
| 5701 |
meaningful notice to the
public of likely penalties that may be |
| 5702 |
imposed for prescribed
conduct. This subsection does not limit |
| 5703 |
the ability of the division to
informally dispose of |
| 5704 |
administrative actions or
complaints by stipulation, agreed |
| 5705 |
settlement, or consent order.
All amounts collected shall be |
| 5706 |
deposited with the Chief
Financial Officer to the credit of the |
| 5707 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 5708 |
Association, and Mobile Homes
Trust Fund. If a developer fails |
| 5709 |
to pay the civil penalty, the
division shall thereupon issue an |
| 5710 |
order directing that such
developer cease and desist from |
| 5711 |
further operation until such
time as the civil penalty is paid, |
| 5712 |
or may pursue enforcement of
the penalty in a court of competent |
| 5713 |
jurisdiction. If an
association fails to pay the civil penalty, |
| 5714 |
the division shall thereupon
pursue enforcement in a court of |
| 5715 |
competent jurisdiction, and
the order imposing the civil penalty |
| 5716 |
or the cease and desist order
will not become effective until 20 |
| 5717 |
days after the date of such
order. Any action commenced by the |
| 5718 |
division shall be brought in
the county in which the division |
| 5719 |
has its executive offices or
in the county where the violation |
| 5720 |
occurred. |
| 5721 |
(e) The
division may prepare and disseminate a prospectus |
| 5722 |
and other information to
assist prospective owners, purchasers, |
| 5723 |
lessees, and developers of
residential communities in assessing |
| 5724 |
the rights, privileges, and
duties pertaining thereto. |
| 5725 |
(f) The
division may adopt rules pursuant to ss.120.536(1) |
| 5726 |
and 120.54 to implement and
enforce the provisions of this |
| 5727 |
chapter. |
| 5728 |
(g) The
division shall establish procedures for providing |
| 5729 |
notice to an association when
the division considers the |
| 5730 |
issuance of a declaratory
statement with respect to the |
| 5731 |
declaration of restrictions or
any related document governing in |
| 5732 |
such residential community. |
| 5733 |
(h) The
division shall furnish each association which pays |
| 5734 |
the fees required by paragraph
(2)(a) a copy of this act, |
| 5735 |
subsequent changes to this act
on an annual basis, an amended |
| 5736 |
version of this act as it
becomes available from the Secretary |
| 5737 |
of State's office and the
rules promulgated pursuant thereto on |
| 5738 |
an annual basis. |
| 5739 |
(i) The
division shall annually provide each association |
| 5740 |
with a summary of declaratory
statements and formal legal |
| 5741 |
opinions relating to the
operations of residential communities |
| 5742 |
which were rendered by the
division during the previous year. |
| 5743 |
(j) The
division shall provide training programs for |
| 5744 |
residential association board
members and lot owners. |
| 5745 |
(k) The
division shall maintain a toll-free telephone |
| 5746 |
number accessible to lot
owners. |
| 5747 |
(l) The
division shall develop a program to certify both |
| 5748 |
volunteer and paid mediators
to provide mediation of disputes. |
| 5749 |
The division shall provide,
upon request, a list of such |
| 5750 |
mediators to any association,
lot owner, or other participant in |
| 5751 |
arbitration proceedings under
s. 720.311 requesting a copy of |
| 5752 |
the list. The division shall
include on the list of volunteer |
| 5753 |
mediators only the names of
persons who have received at least |
| 5754 |
20 hours of training in
mediation techniques or who have |
| 5755 |
mediated at least 20 disputes.
In order to become initially |
| 5756 |
certified by the division,
paid mediators must be certified by |
| 5757 |
the Supreme Court to mediate
court cases in either county or |
| 5758 |
circuit courts. However, the
division may adopt, by rule, |
| 5759 |
additional factors for the
certification of paid mediators, |
| 5760 |
which factors must be related
to experience, education, or |
| 5761 |
background. Any person
initially certified as a paid mediator by |
| 5762 |
the division must, in order to
continue to be certified, comply |
| 5763 |
with the factors or
requirements imposed by rules adopted by the |
| 5764 |
division. |
| 5765 |
(m) When
a complaint is made, the division shall conduct |
| 5766 |
its inquiry with due regard to
the interests of the affected |
| 5767 |
parties. Within 30 days after
receipt of a complaint, the |
| 5768 |
division shall acknowledge the
complaint in writing and notify |
| 5769 |
the complainant whether the
complaint is within the jurisdiction |
| 5770 |
of the division and whether
the division needs additional |
| 5771 |
information from the
complainant. The division shall conduct its |
| 5772 |
investigation and shall take
action upon the complaint within 90 |
| 5773 |
days after receipt of the
original complaint or of timely |
| 5774 |
requested additional
information. However, failure to complete |
| 5775 |
the investigation within 90
days does not prevent the division |
| 5776 |
from continuing the
investigation, accepting or considering |
| 5777 |
evidence obtained or received
after 90 days, or taking |
| 5778 |
administrative action if
reasonable cause exists to believe that |
| 5779 |
a violation of this chapter or
a rule of the division has |
| 5780 |
occurred. If an investigation
is not completed within the time |
| 5781 |
limits established in this
paragraph, the division shall, on a |
| 5782 |
monthly basis, notify the
complainant in writing of the status |
| 5783 |
of the investigation When
reporting its action to the |
| 5784 |
complainant, the division
shall inform the complainant of any |
| 5785 |
right to a hearing pursuant to
ss. 120.569 and 120.57. |
| 5786 |
(2) Effective
January 1, 2008, each homeowners' |
| 5787 |
association that administers
more than 10 residential homes |
| 5788 |
shall pay to the division an
annual fee in the amount of $4 for |
| 5789 |
each residence in communities
administered by the association. |
| 5790 |
If the fee is not paid by
March 1, then the association shall be |
| 5791 |
assessed a penalty of 10
percent of the amount due, and the |
| 5792 |
association will not have
standing to maintain or defend any |
| 5793 |
action in the courts of this
state until the amount due, plus |
| 5794 |
any penalty that is paid. All
fees shall be deposited in the |
| 5795 |
Division of Florida Land
Sales, Condominiums, Homeowners' |
| 5796 |
Association, and Mobile Homes
Trust Fund as provided by law. |
| 5797 |
Section 64. Section
720.505, Florida Statutes, is created |
| 5798 |
to read: |
| 5799 |
720.505 Advisory
council; membership functions.-- |
| 5800 |
(1) There
is created the Advisory Council On Mandated |
| 5801 |
Properties. The council shall
consist of seven appointed |
| 5802 |
members. Two members shall be
appointed by the President of the |
| 5803 |
Senate, two members shall be
appointed by the Speaker of the |
| 5804 |
House of Representatives, and
three members shall be appointed |
| 5805 |
by the Governor. At least one
member that is appointed by the |
| 5806 |
Governor, by the Senate
President and by the Speaker of the |
| 5807 |
House shall be a homeowners'
rights advocate and parcel owner. |
| 5808 |
Members shall be appointed to
2-year terms; however, one of the |
| 5809 |
persons initially appointed by
the Governor, by the President of |
| 5810 |
the Senate, and by the Speaker
of the House of Representatives |
| 5811 |
shall be appointed to a 1-year
term. A member of the division, |
| 5812 |
appointed by the Secretary,
shall serve as an ex-officio |
| 5813 |
nonvoting member. The
selection of council members shall be made |
| 5814 |
in a manner that ensures a
fair and balanced representation from |
| 5815 |
the service-provider sector
and consumer advocates with a |
| 5816 |
substantial public record of
endeavors on behalf of homeowners' |
| 5817 |
rights and consumer interests.
The council shall be located |
| 5818 |
within the division for
administrative purposes. Members of the |
| 5819 |
council shall serve without
compensation but are entitled to |
| 5820 |
receive per diem and travel
expenses pursuant to s. 112.061 |
| 5821 |
while on official business. A
vacancy on the Advisory Council |
| 5822 |
shall be filled in the same
manner as the original appointment. |
| 5823 |
(2) The
functions of the advisory council shall be to: |
| 5824 |
(a) Receive,
from the public, input regarding issues of |
| 5825 |
concern with respect to
mandated communities and recommendations |
| 5826 |
for changes in homeowners'
association laws. The issues that the |
| 5827 |
council shall consider
include, but are not limited to, the |
| 5828 |
rights and responsibilities of
the parcel owners in relation to |
| 5829 |
the rights and
responsibilities of the association. |
| 5830 |
(b) Review,
evaluate, and advise the division concerning |
| 5831 |
revisions and adoption of
rules affecting homeowners' |
| 5832 |
associations. |
| 5833 |
(c) Recommend
improvements, if needed, in the education |
| 5834 |
programs offered by the
division. |
| 5835 |
(3) The
council may elect a chair and vice chair and such |
| 5836 |
other officers as it may deem
advisable. The council shall meet |
| 5837 |
at the call of its chair, at
the request of a majority of its |
| 5838 |
membership, at the request of
the division, or at such times as |
| 5839 |
it may prescribe. A majority
of the members of the council shall |
| 5840 |
constitute a quorum. Council
action may be taken by vote of a |
| 5841 |
majority of the voting members
who are present at a meeting |
| 5842 |
where there is a quorum. |
| 5843 |
Section 65. Subsection
(11) of section 721.05, Florida |
| 5844 |
Statutes, is amended to read: |
| 5845 |
721.05 Definitions.--As
used in this chapter, the term: |
| 5846 |
(11) "Division"
means the Division of Florida Land Sales, |
| 5847 |
Condominiums, Homeowners'
Associations, and Mobile Homes of the |
| 5848 |
Department of Business and Professional
Regulation. |
| 5849 |
Section 66. Paragraph
(d) of subsection (2) of section |
| 5850 |
721.07, Florida Statutes, is amended to read: |
| 5851 |
721.07 Public
offering statement.--Prior to offering any |
| 5852 |
timeshare plan, the developer must submit a filed
public |
| 5853 |
offering statement to the division for approval
as prescribed by |
| 5854 |
s. 721.03, s. 721.55, or this section. Until the
division |
| 5855 |
approves such filing, any contract regarding the
sale of that |
| 5856 |
timeshare plan is subject to cancellation by the
purchaser |
| 5857 |
pursuant to s. 721.10. |
| 5858 |
(2) |
| 5859 |
(d) A
developer shall have the authority to deliver to |
| 5860 |
purchasers any purchaser public offering
statement that is not |
| 5861 |
yet approved by the division, provided that the
following shall |
| 5862 |
apply: |
| 5863 |
1. At
the time the developer delivers an unapproved |
| 5864 |
purchaser public offering statement to a
purchaser pursuant to |
| 5865 |
this paragraph, the developer shall deliver a
fully completed |
| 5866 |
and executed copy of the purchase contract
required by s. 721.06 |
| 5867 |
that contains the following statement in
conspicuous type in |
| 5868 |
substantially the following form which shall
replace the |
| 5869 |
statements required by s. 721.06(1)(g): |
| 5870 |
|
| 5871 |
The developer is delivering to you a public
offering statement |
| 5872 |
that has been filed with but not yet approved by
the Division of |
| 5873 |
Florida Land Sales, Condominiums, Homeowners'
Associations, and |
| 5874 |
Mobile Homes. Any revisions to the unapproved
public offering |
| 5875 |
statement you have received must be delivered to
you, but only |
| 5876 |
if the revisions materially alter or modify the
offering in a |
| 5877 |
manner adverse to you. After the division
approves the public |
| 5878 |
offering statement, you will receive notice of
the approval from |
| 5879 |
the developer and the required revisions, if any. |
| 5880 |
|
| 5881 |
Your statutory right to cancel this transaction
without any |
| 5882 |
penalty or obligation expires 10 calendar days
after the date |
| 5883 |
you signed your purchase contract or the date on
which you |
| 5884 |
receive the last of all documents required to be
given to you |
| 5885 |
pursuant to section 721.07(6), Florida Statutes,
or 10 calendar |
| 5886 |
days after you receive revisions required to be
delivered to |
| 5887 |
you, if any, whichever is later. If you decide to
cancel this |
| 5888 |
contract, you must notify the seller in writing
of your intent |
| 5889 |
to cancel. Your notice of cancellation shall be
effective upon |
| 5890 |
the date sent and shall be sent to
(Name of Seller) at |
| 5891 |
(Address of Seller) . Any attempt to
obtain a waiver of your |
| 5892 |
cancellation right is void and of no effect.
While you may |
| 5893 |
execute all closing documents in advance, the
closing, as |
| 5894 |
evidenced by delivery of the deed or other
document, before |
| 5895 |
expiration of your 10-day cancellation period, is
prohibited.. |
| 5896 |
|
| 5897 |
2. After
receipt of approval from the division and prior |
| 5898 |
to closing, if any revisions made to the
documents contained in |
| 5899 |
the purchaser public offering statement
materially alter or |
| 5900 |
modify the offering in a manner adverse to a
purchaser, the |
| 5901 |
developer shall send the purchaser such revisions
together with |
| 5902 |
a notice containing a statement in conspicuous
type in |
| 5903 |
substantially the following form: |
| 5904 |
|
| 5905 |
The unapproved public offering statement
previously delivered to |
| 5906 |
you, together with the enclosed revisions, has
been approved by |
| 5907 |
the Division of Florida Land Sales, Condominiums,
Homeowners' |
| 5908 |
Associations, and Mobile Homes.
Accordingly, your cancellation |
| 5909 |
right expires 10 calendar days after you sign
your purchase |
| 5910 |
contract or 10 calendar days after you receive
these revisions, |
| 5911 |
whichever is later. If you have any questions
regarding your |
| 5912 |
cancellation rights, you may contact the division
at [insert |
| 5913 |
division's current address]. |
| 5914 |
|
| 5915 |
3. After
receipt of approval from the division and prior |
| 5916 |
to closing, if no revisions have been made to the
documents |
| 5917 |
contained in the unapproved purchaser public
offering statement, |
| 5918 |
or if such revisions do not materially alter or
modify the |
| 5919 |
offering in a manner adverse to a purchaser, the
developer shall |
| 5920 |
send the purchaser a notice containing a
statement in |
| 5921 |
conspicuous type in substantially the following
form: |
| 5922 |
|
| 5923 |
The unapproved public offering statement
previously delivered to |
| 5924 |
you has been approved by the Division of Florida
Land Sales, |
| 5925 |
Condominiums, Homeowners'
Associations, and Mobile Homes. |
| 5926 |
Revisions made to the unapproved public offering
statement, if |
| 5927 |
any, are either not required to be delivered to
you or are not |
| 5928 |
deemed by the developer, in its opinion, to
materially alter or |
| 5929 |
modify the offering in a manner that is adverse
to you. |
| 5930 |
Accordingly, your cancellation right expired 10
days after you |
| 5931 |
signed your purchase contract. A complete copy of
the approved |
| 5932 |
public offering statement is available through
the managing |
| 5933 |
entity for inspection as part of the books and
records of the |
| 5934 |
plan. If you have any questions regarding your
cancellation |
| 5935 |
rights, you may contact the division at [insert
division's |
| 5936 |
current address]. |
| 5937 |
Section 67. Subsection
(8) of section 721.08, Florida |
| 5938 |
Statutes, is amended to read: |
| 5939 |
721.08 Escrow
accounts; nondisturbance instruments; |
| 5940 |
alternate security arrangements; transfer of
legal title.-- |
| 5941 |
(8) An
escrow agent holding escrowed funds pursuant to |
| 5942 |
this chapter that have not been claimed for a
period of 5 years |
| 5943 |
after the date of deposit shall make at least one
reasonable |
| 5944 |
attempt to deliver such unclaimed funds to the
purchaser who |
| 5945 |
submitted such funds to escrow. In making such
attempt, an |
| 5946 |
escrow agent is entitled to rely on a purchaser's
last known |
| 5947 |
address as set forth in the books and records of
the escrow |
| 5948 |
agent and is not required to conduct any further
search for the |
| 5949 |
purchaser. If an escrow agent's attempt to
deliver unclaimed |
| 5950 |
funds to any purchaser is unsuccessful, the
escrow agent may |
| 5951 |
deliver such unclaimed funds to the division and
the division |
| 5952 |
shall deposit such unclaimed funds in the
Division of Florida |
| 5953 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 5954 |
Homes Trust Fund, 30 days after giving notice in
a publication |
| 5955 |
of general circulation in the county in which the
timeshare |
| 5956 |
property containing the purchaser's timeshare
interest is |
| 5957 |
located. The purchaser may claim the same at any
time prior to |
| 5958 |
the delivery of such funds to the division. After
delivery of |
| 5959 |
such funds to the division, the purchaser shall
have no more |
| 5960 |
rights to the unclaimed funds. The escrow agent
shall not be |
| 5961 |
liable for any claims from any party arising out
of the escrow |
| 5962 |
agent's delivery of the unclaimed funds to the
division pursuant |
| 5963 |
to this section. |
| 5964 |
Section 68. Paragraph
(e) of subsection (5) of section |
| 5965 |
721.26, Florida Statutes, is amended to read: |
| 5966 |
721.26 Regulation
by division.--The division has the power |
| 5967 |
to enforce and ensure compliance with the
provisions of this |
| 5968 |
chapter, except for parts III and IV, using the
powers provided |
| 5969 |
in this chapter, as well as the powers prescribed
in chapters |
| 5970 |
498, 718, and 719. In performing its duties, the
division shall |
| 5971 |
have the following powers and duties: |
| 5972 |
(5) Notwithstanding
any remedies available to purchasers, |
| 5973 |
if the division has reasonable cause to believe
that a violation |
| 5974 |
of this chapter, or of any division rule or order
promulgated or |
| 5975 |
issued pursuant to this chapter, has occurred,
the division may |
| 5976 |
institute enforcement proceedings in its own name
against any |
| 5977 |
regulated party, as such term is defined in this
subsection: |
| 5978 |
(e)1. The
division may impose a penalty against any |
| 5979 |
regulated party for a violation of this chapter
or any rule |
| 5980 |
adopted thereunder. A penalty may be imposed on
the basis of |
| 5981 |
each day of continuing violation, but in no event
may the |
| 5982 |
penalty for any offense exceed $10,000. All
accounts collected |
| 5983 |
shall be deposited with the Chief Financial
Officer to the |
| 5984 |
credit of the Division of Florida Land Sales,
Condominiums, |
| 5985 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
| 5986 |
2.a. If
a regulated party fails to pay a penalty, the |
| 5987 |
division shall thereupon issue an order directing
that such |
| 5988 |
regulated party cease and desist from further
operation until |
| 5989 |
such time as the penalty is paid; or the division
may pursue |
| 5990 |
enforcement of the penalty in a court of
competent jurisdiction. |
| 5991 |
b. If an
owners' association or managing entity fails to |
| 5992 |
pay a civil penalty, the division may pursue
enforcement in a |
| 5993 |
court of competent jurisdiction. |
| 5994 |
Section 69. Section
721.28, Florida Statutes, is amended |
| 5995 |
to read: |
| 5996 |
721.28 Division
of Florida Land Sales, Condominiums, |
| 5997 |
Homeowners' Associations,
and Mobile Homes Trust Fund.--All |
| 5998 |
funds collected by the division and any amounts
paid as fees or |
| 5999 |
penalties under this chapter shall be deposited
in the State |
| 6000 |
Treasury to the credit of the Division of Florida
Land Sales, |
| 6001 |
Condominiums, Homeowners'
Associations, and Mobile Homes Trust |
| 6002 |
Fund created by s. 498.019. |
| 6003 |
Section 70. Paragraph
(c) of subsection (1) of section |
| 6004 |
721.301, Florida Statutes, is amended to read: |
| 6005 |
721.301 Florida
Timesharing, Vacation Club, and |
| 6006 |
Hospitality Program.-- |
| 6007 |
(1) |
| 6008 |
(c) The
director may designate funds from the Division of |
| 6009 |
Florida Land Sales, Condominiums, Homeowners'
Associations, and |
| 6010 |
Mobile Homes Trust Fund, not to exceed $50,000
annually, to |
| 6011 |
support the projects and proposals undertaken
pursuant to |
| 6012 |
paragraph (b). All state trust funds to be
expended pursuant to |
| 6013 |
this section must be matched equally with private
moneys and |
| 6014 |
shall comprise no more than half of the total
moneys expended |
| 6015 |
annually. |
| 6016 |
Section 71. Subsection
(1) of section 723.003, Florida |
| 6017 |
Statutes, is amended to read: |
| 6018 |
723.003 Definitions.--As
used in this chapter, the |
| 6019 |
following words and terms have the following
meanings unless |
| 6020 |
clearly indicated otherwise: |
| 6021 |
(1) The
term "division" means the Division of Florida Land |
| 6022 |
Sales, Condominiums, Homeowners'
Associations, and Mobile Homes |
| 6023 |
of the Department of Business and Professional
Regulation. |
| 6024 |
Section 72. Paragraph
(e) of subsection (5) of section |
| 6025 |
723.006, Florida Statutes, is amended to read: |
| 6026 |
723.006 Powers
and duties of division.--In performing its |
| 6027 |
duties, the division has the following powers and
duties: |
| 6028 |
(5) Notwithstanding
any remedies available to mobile home |
| 6029 |
owners, mobile home park owners, and homeowners'
associations, |
| 6030 |
if the division has reasonable cause to believe
that a violation |
| 6031 |
of any provision of this chapter or any rule
promulgated |
| 6032 |
pursuant hereto has occurred, the division may
institute |
| 6033 |
enforcement proceedings in its own name against a
developer, |
| 6034 |
mobile home park owner, or homeowners'
association, or its |
| 6035 |
assignee or agent, as follows: |
| 6036 |
(e)1. The
division may impose a civil penalty against a |
| 6037 |
mobile home park owner or homeowners'
association, or its |
| 6038 |
assignee or agent, for any violation of this
chapter, a properly |
| 6039 |
promulgated park rule or regulation, or a rule or
regulation |
| 6040 |
promulgated pursuant hereto. A penalty may be
imposed on the |
| 6041 |
basis of each separate violation and, if the
violation is a |
| 6042 |
continuing one, for each day of continuing
violation, but in no |
| 6043 |
event may the penalty for each separate violation
or for each |
| 6044 |
day of continuing violation exceed $5,000. All
amounts collected |
| 6045 |
shall be deposited with the Chief Financial
Officer to the |
| 6046 |
credit of the Division of Florida Land Sales,
Condominiums, |
| 6047 |
Homeowners'
Associations, and Mobile Homes Trust Fund. |
| 6048 |
2. If a
violator fails to pay the civil penalty, the |
| 6049 |
division shall thereupon issue an order directing
that such |
| 6050 |
violator cease and desist from further violation
until such time |
| 6051 |
as the civil penalty is paid or may pursue
enforcement of the |
| 6052 |
penalty in a court of competent jurisdiction. If
a homeowners' |
| 6053 |
association fails to pay the civil penalty, the
division shall |
| 6054 |
thereupon pursue enforcement in a court of
competent |
| 6055 |
jurisdiction, and the order imposing the civil
penalty or the |
| 6056 |
cease and desist order shall not become effective
until 20 days |
| 6057 |
after the date of such order. Any action
commenced by the |
| 6058 |
division shall be brought in the county in which
the division |
| 6059 |
has its executive offices or in which the
violation occurred. |
| 6060 |
Section 73. Section
723.009, Florida Statutes, is amended |
| 6061 |
to read: |
| 6062 |
723.009 Division
of Florida Land Sales, Condominiums, |
| 6063 |
Homeowners'
Associations, and Mobile Homes Trust Fund.--All |
| 6064 |
proceeds from the fees, penalties, and fines
imposed pursuant to |
| 6065 |
this chapter shall be deposited into the Division
of Florida |
| 6066 |
Land Sales, Condominiums, Homeowners'
Associations, and Mobile |
| 6067 |
Homes Trust Fund created by s. 498.019. Moneys in
this fund, as |
| 6068 |
appropriated by the Legislature pursuant to
chapter 216, may be |
| 6069 |
used to defray the expenses incurred by the
division in |
| 6070 |
administering the provisions of this chapter. |
| 6071 |
Section 74. Paragraph
(c) of subsection (2) of section |
| 6072 |
723.0611, Florida Statutes, is amended to read: |
| 6073 |
723.0611 Florida
Mobile Home Relocation Corporation.-- |
| 6074 |
(2) |
| 6075 |
(c) The
corporation shall, for purposes of s. 768.28, be |
| 6076 |
considered an agency of the state. Agents or
employees of the |
| 6077 |
corporation, members of the board of directors of
the |
| 6078 |
corporation, or representatives of the Division
of Florida Land |
| 6079 |
Sales, Condominiums, Homeowners' Associations,
and Mobile Homes |
| 6080 |
shall be considered officers, employees, or
agents of the state, |
| 6081 |
and actions against them and the corporation
shall be governed |
| 6082 |
by s. 768.28. |
| 6083 |
Section 75. Emotional
support animals.-- |
| 6084 |
(1) Every
homeowner or renter in this state shall have the |
| 6085 |
right to own a companion
animal and to have such animal live |
| 6086 |
with them in their home if
such companion animal is deemed |
| 6087 |
helpful to the person's
physical or psychological well-being as |
| 6088 |
attested to by at least two
qualified health care professionals. |
| 6089 |
(2) Any
municipal or county code or ordinance, or any |
| 6090 |
purported rule, declaration,
by-law or other form of restriction |
| 6091 |
contrary to the right provided
in subsection (1) contained in |
| 6092 |
any governing document of any
condominium, cooperative, mobile |
| 6093 |
home park, homeowner, or any
other common interest ownership |
| 6094 |
community association shall be
deemed unconscionable, and thus |
| 6095 |
unenforceable, invalid and of
no legal effect. |
| 6096 |
(3) An
animal does not require specialized training or |
| 6097 |
skill in assisting its owner
to be classified as a companion |
| 6098 |
animal pursuant to this
section. The animal can be a cat, dog, |
| 6099 |
ferret, bird, gerbil, or any
other commonly accepted |
| 6100 |
domesticated animal. However,
if such training can be |
| 6101 |
documented, a letter from only
one qualified health care |
| 6102 |
professional is required, as
per pre-existing federal disability |
| 6103 |
and fair housing laws. |
| 6104 |
(4) Qualified
health professionals include any physician |
| 6105 |
or advanced registered nurse
practitioner who is licensed in |
| 6106 |
this state to prescribe
medications for emotional or mental |
| 6107 |
conditions, or any mental
health worker, mental health |
| 6108 |
counselor, psychologist, or
social worker, who is licensed in |
| 6109 |
this state to practice
counseling therapy. The letter must say |
| 6110 |
that the animal is necessary
to ameliorate and help with life |
| 6111 |
functions for a condition
covered under the Americans with |
| 6112 |
Disabilities Act. The letter
does not have to give details of |
| 6113 |
the nature of the unit owner's
disorder, in order not to invade |
| 6114 |
the patient's privacy per the
Health Insurance Portability and |
| 6115 |
Accountability Act. Where the
primary residence of the owner is |
| 6116 |
in another state, the
qualified health care professional is |
| 6117 |
defined as a qualified health
care professional licensed in |
| 6118 |
their home state. |
| 6119 |
(5) If
it becomes necessary for an owner or renter in any |
| 6120 |
condominium, cooperative,
mobile home park, homeowner or any |
| 6121 |
other common interest
ownership association to enforce this |
| 6122 |
section in court against an
association which has threatened to |
| 6123 |
limit his or her right to own
and reside with a companion animal |
| 6124 |
either orally or in writing,
the homeowner shall be entitled to |
| 6125 |
recover his or her reasonable
costs and attorney's fees if the |
| 6126 |
homeowner is the prevailing
party. This attorney's fee provision |
| 6127 |
is not reciprocal. |
| 6128 |
Section
76. Notwithstanding any provision to the contrary |
| 6129 |
contained in a declaration of
condominium, condominium bylaws, |
| 6130 |
or other documents, a
condominium developer who rents or leases |
| 6131 |
any unsold units in a
condominium must pay all monthly |
| 6132 |
maintenance fees on those
units to the association as if the |
| 6133 |
units were owned by individual
owners. |
| 6134 |
Section 77. This
act shall take effect July 1, 2007. |
CODING:
Words stricken are deleted; words underlined
are additions
|