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