| 1 |
A bill to be entitled |
| 2 |
An act relating to residential
properties; amending s. |
| 3 |
514.011, F.S.; defining the term
"homeowners' |
| 4 |
association"; amending s.
514.0115, F.S.; providing for |
| 5 |
the regulation and exemption from
regulation for |
| 6 |
homeowners' association swimming
pools; amending s. |
| 7 |
515.25, F.S.; conforming a
cross-reference; amending s. |
| 8 |
718.112, F.S.; providing requirements
for the location of |
| 9 |
annual unit owner meetings; revising
terms of service for |
| 10 |
board members; prohibiting certain
persons from serving on |
| 11 |
the board; requiring the association
to provide a |
| 12 |
certification form to unit owners for
specified purposes; |
| 13 |
authorizing an association consisting
of a specified |
| 14 |
maximum number of units to provide
for different voting |
| 15 |
and election procedures in its bylaws
by affirmative vote |
| 16 |
of a majority of the association's
voting interests; |
| 17 |
revising requirements related to the
annual budget; |
| 18 |
requiring proxy questions relating to
reserves to contain |
| 19 |
a specified statement; providing for
the removal of board |
| 20 |
members under certain circumstances;
requiring that |
| 21 |
directors who are delinquent in
certain payments owed in |
| 22 |
excess of certain periods of time be
suspended from office |
| 23 |
or deemed to have abandoned their
offices; requiring that |
| 24 |
directors charged with certain
offenses involving an |
| 25 |
association's funds or property be
suspended from office |
| 26 |
pending resolution of the charge;
providing for the |
| 27 |
reinstatement of such officers or
directors under certain |
| 28 |
circumstances; requiring each newly
elected director to |
| 29 |
certify to the secretary of the
association that he or she |
| 30 |
has read the association's
declarations of covenants and |
| 31 |
restrictions, articles of
incorporation, bylaws, and |
| 32 |
current written policies and will
work to uphold such |
| 33 |
documents and policies to the best of
his or her ability; |
| 34 |
providing that a failure to timely
file the statement |
| 35 |
automatically disqualifies the
director from service on |
| 36 |
the association's board of directors;
requiring the |
| 37 |
secretary of the association to
retain a director's |
| 38 |
certification for inspection by the
members for a |
| 39 |
specified period of years after a
director's election; |
| 40 |
amending s. 720.303, F.S.; revising
provisions relating to |
| 41 |
homeowners' association board
meetings, inspection and |
| 42 |
copying of records, and reserve
accounts of budgets; |
| 43 |
prohibiting a salary or compensation
for certain |
| 44 |
association personnel; providing
exceptions; amending s. |
| 45 |
720.305, F.S.; authorizing fines
assessed against members |
| 46 |
which exceed a certain amount to
become a lien against a |
| 47 |
parcel; amending s. 720.306, F.S.;
providing requirements |
| 48 |
for secret ballots; requiring newly
elected members of a |
| 49 |
board of directors to make certain
certifications in |
| 50 |
writing to the association; providing
for disqualification |
| 51 |
for failure to make such
certifications; requiring an |
| 52 |
association to retain certifications
for a specified time; |
| 53 |
amending s. 720.401, F.S.; requiring
that the disclosure |
| 54 |
summary to prospective parcel owners
include additional |
| 55 |
provisions; amending s. 34.01, F.S.;
correcting a cross- |
| 56 |
reference to conform; amending s.
720.302, F.S.; |
| 57 |
correcting a cross-reference to
conform; establishing |
| 58 |
legislative intent; repealing s.
720.311, F.S., relating |
| 59 |
to a procedure for dispute resolution
in homeowners' |
| 60 |
associations; providing that dispute
resolution cases |
| 61 |
pending on the date of repeal will
continue under the |
| 62 |
repealed provisions; creating part IV
of ch. 720, F.S.; |
| 63 |
creating s. 720.501, F.S.; providing
a short title; |
| 64 |
creating s. 720.502, F.S.; creating
legislative findings; |
| 65 |
creating s. 720.503, F.S.; setting
applicability of |
| 66 |
provisions for mediation and
arbitration applicable to |
| 67 |
disputes in homeowners' associations;
creating exceptions; |
| 68 |
proving applicability; tolling
applicable statutes of |
| 69 |
limitations; creating s. 720.504, F.S;
requiring that the |
| 70 |
notice of dispute be delivered before
referral to |
| 71 |
mediation; creating s. 720.505, F.S.;
creating a statutory |
| 72 |
notice form for referral to
mediation; requiring delivery |
| 73 |
by certified mail or personal
delivery; setting deadlines; |
| 74 |
requiring parties to share costs;
requiring the selection |
| 75 |
of a mediator and times to meet;
providing penalties for |
| 76 |
failure to mediate; creating s.
720.506, F.S.; creating an |
| 77 |
opt-out provision; creating s.
720.507, F.S.; creating a |
| 78 |
statutory notice form for referral to
arbitration; |
| 79 |
requiring delivery by certified mail
or personal delivery; |
| 80 |
setting deadlines; requiring parties
to share costs; |
| 81 |
requiring the selection of an
arbitrator and times to |
| 82 |
meet; providing penalties for failure
to arbitrate; |
| 83 |
creating s. 720.508, F.S.; providing
for rules of |
| 84 |
procedure; providing for
confidentiality; creating s. |
| 85 |
720.509, F.S.; setting qualifications
for mediators and |
| 86 |
arbitrators; creating s. 720.510, F.S.;
providing for |
| 87 |
enforcement of mediation agreements
and arbitration |
| 88 |
awards; providing that any three or
more condominium |
| 89 |
associations may form a
self-insurance fund for certain |
| 90 |
purposes under certain conditions;
requiring that the |
| 91 |
contract for participating in the
fund disclose certain |
| 92 |
information and contain certain
provisions; requiring |
| 93 |
that a disclosure be provided to an
association before |
| 94 |
execution of such contract; requiring
that such disclosure |
| 95 |
contain certain information;
providing for the charging of |
| 96 |
contributions for participation in
the fund; requiring |
| 97 |
that the majority of the governing
board of the fund be |
| 98 |
participants in the fund; providing
powers of the |
| 99 |
governing board; authorizing the fund
to enter into |
| 100 |
certain contracts; requiring that the
fund use a general |
| 101 |
lines agent meeting certain criteria
when soliciting |
| 102 |
participation in the fund;
prohibiting the fund from |
| 103 |
taking certain actions when selecting
such agent; |
| 104 |
requiring that the fund be
independently audited at |
| 105 |
specified intervals; authorizing the
fund to accumulate |
| 106 |
funds or distribute excess funds to
participants on a |
| 107 |
pro rata basis; providing for a
deductible for |
| 108 |
participants in the fund; exempting
such self-insurance |
| 109 |
funds from certain requirements,
regulations, fees, taxes, |
| 110 |
and assessments; providing an
effective date. |
| 111 |
|
| 112 |
Be It Enacted by the Legislature of
the State of Florida: |
| 113 |
|
| 114 |
Section
1. Section 514.011, Florida Statutes, is amended |
| 115 |
to read: |
| 116 |
514.011 Definitions.--
As used in this chapter, the term: |
| 117 |
(1) "Department"
means the Department of Health. |
| 118 |
(2) "Homeowners'
association" has the same meaning as in |
| 119 |
s. 720.301. |
| 120 |
(3)(5) "Portable
pool" means a pool or spa, and related |
| 121 |
equipment systems of any kind, which
is designed or intended to |
| 122 |
be movable from location to location. |
| 123 |
(4)(3) "Private
pool" means a facility used only by an |
| 124 |
individual, family, or living unit
members and their guests |
| 125 |
which does not serve any type of
cooperative housing or joint |
| 126 |
tenancy of five or more living units. |
| 127 |
(5)(4) "Public
bathing place" means a body of water, |
| 128 |
natural or modified by humans, for
swimming, diving, and |
| 129 |
recreational bathing, together with
adjacent shoreline or land |
| 130 |
area, buildings, equipment, and
appurtenances pertaining |
| 131 |
thereto, used by consent of the owner
or owners and held out to |
| 132 |
the public by any person or public
body, irrespective of whether |
| 133 |
a fee is charged for the use thereof.
The bathing water areas of |
| 134 |
public bathing places include, but
are not limited to, lakes, |
| 135 |
ponds, rivers, streams, artificial
impoundments, and waters |
| 136 |
along the coastal and intracoastal
beaches and shores of the |
| 137 |
state. |
| 138 |
(6)(2) "Public
swimming pool" or "public pool" means a |
| 139 |
watertight structure of concrete,
masonry, or other approved |
| 140 |
materials, which
is located either
indoors or outdoors, used for |
| 141 |
bathing or swimming by humans, and
filled with a filtered and |
| 142 |
disinfected water supply, together
with buildings, |
| 143 |
appurtenances, and equipment used in
connection therewith. A |
| 144 |
public swimming pool or public pool
shall mean a conventional |
| 145 |
pool, spa-type pool, wading pool,
special purpose pool, or water |
| 146 |
recreation attraction, to which
admission may be gained with or |
| 147 |
without payment of a fee and
includes, but is not limited to, |
| 148 |
pools operated by or serving camps,
churches, cities, counties, |
| 149 |
day care centers, group home
facilities for eight or more |
| 150 |
clients, health spas, institutions,
parks, state agencies, |
| 151 |
schools, subdivisions, or the
cooperative living-type projects |
| 152 |
of five or more living units, such as
apartments, |
| 153 |
boardinghouses, hotels, mobile home
parks, motels, recreational |
| 154 |
vehicle parks, and townhouses. |
| 155 |
Section
2. Subsection (2) of section 514.0115, Florida |
| 156 |
Statutes, is amended to read: |
| 157 |
514.0115 Exemptions
from supervision or regulation; |
| 158 |
variances.-- |
| 159 |
(2)(a) Pools
serving no more than 32 condominium or |
| 160 |
cooperative units or
32 parcels governed by a homeowners' |
| 161 |
association
which are not operated as a public lodging |
| 162 |
establishment are
shall be exempt from supervision
under this |
| 163 |
chapter, except for water quality. |
| 164 |
(b) Pools
serving condominium or cooperative associations |
| 165 |
of more than 32 units
or a homeowners' association of more than |
| 166 |
32 parcels
and whose recorded documents prohibit the rental or |
| 167 |
sublease of the units for periods
of less than 60 days are |
| 168 |
exempt from supervision under this
chapter, except that the |
| 169 |
condominium or cooperative owner or
association or homeowners' |
| 170 |
association
must file an application applications
with the |
| 171 |
department and obtain construction plan
plans approval and |
| 172 |
receive an initial operating permit.
The department shall |
| 173 |
inspect the swimming pools at
such places annually, at the fee |
| 174 |
set forth in s. 514.033(3), or upon
request by a unit owner, to |
| 175 |
determine compliance with department
rules relating to water |
| 176 |
quality and lifesaving equipment. The
department may not require |
| 177 |
compliance with rules relating to
swimming pool lifeguard |
| 178 |
standards. |
| 179 |
Section
3. Subsection (9) of section 515.25, Florida |
| 180 |
Statutes, is amended to read: |
| 181 |
515.25 Definitions.--As
used in this chapter, the term: |
| 182 |
(9) "Public
swimming pool" means a swimming pool, as |
| 183 |
defined in s. 515.011
514.011(2), which is operated,
with or |
| 184 |
without charge, for the use of the
general public; however, the |
| 185 |
term does not include a swimming pool
located on the grounds of |
| 186 |
a private residence. |
| 187 |
Section
4. Paragraph (d) of subsection (2) of section |
| 188 |
718.112, Florida Statutes, is amended
to read: |
| 189 |
718.112 Bylaws.-- |
| 190 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
| 191 |
following and, if they do not do so,
shall be deemed to include |
| 192 |
the following: |
| 193 |
(d) Unit
owner meetings.-- |
| 194 |
1. There
shall be an annual meeting of the unit owners |
| 195 |
held at the
location provided in the association bylaws and, if |
| 196 |
the bylaws are
silent as to the location, the meeting shall be |
| 197 |
held within 45
miles of the condominium property. However, such |
| 198 |
distance
requirement does not apply to an association governing |
| 199 |
a timeshare
condominium. Unless the bylaws provide otherwise, a |
| 200 |
vacancy on the board caused by the
expiration of a director's |
| 201 |
term shall be filled by electing a
new board member, and the |
| 202 |
election shall be by secret ballot;
however, if the number of |
| 203 |
vacancies equals or exceeds the
number of candidates, no |
| 204 |
election is required. If
there is no provision in the bylaws for |
| 205 |
terms of the
members of the board, The terms of all members of |
| 206 |
the board shall expire upon
the election of their successors at |
| 207 |
the annual meeting and
such board members may stand for |
| 208 |
reelection unless
otherwise permitted by the bylaws. In the |
| 209 |
event that the
bylaws permit staggered terms of no more than 2 |
| 210 |
years and upon
approval of a majority of the total voting |
| 211 |
interests, the
association board members may serve 2-year |
| 212 |
staggered terms.
If no person is interested in or demonstrates |
| 213 |
an intention to
run for the position of a board member whose |
| 214 |
term has expired
according to the provisions of this |
| 215 |
subparagraph, such
board member whose term has expired shall be |
| 216 |
automatically
reappointed to the board of administration and |
| 217 |
need not stand for
reelection. In a condominium association of |
| 218 |
more than 10
units, coowners of a unit may not serve as members |
| 219 |
of the board
of directors at the same time. Any unit owner |
| 220 |
desiring to be a candidate for board
membership shall comply |
| 221 |
with subparagraph 3. A person who has
been suspended or removed |
| 222 |
by the division
under this chapter, or who is delinquent in the |
| 223 |
payment of any fee
or assessment as provided in paragraph (n), |
| 224 |
is not eligible
for board membership. A person who has been |
| 225 |
convicted of any felony in
this state or by any court of
record |
| 226 |
in a
the United States District
or Territorial Court, or who has |
| 227 |
been convicted of
any offense in another jurisdiction that would |
| 228 |
be
considered a felony if committed in this state, and
who has |
| 229 |
not had his or her
right to vote restored pursuant to law in the |
| 230 |
jurisdiction
of his or her residence is not eligible for board |
| 231 |
membership unless
such felon's civil rights have been restored |
| 232 |
for a period of no
less than 5 years as of the date on which |
| 233 |
such person
seeks election to the board. The validity of an |
| 234 |
action by the board is not affected
if it is later determined |
| 235 |
that a member of the board is
ineligible for board membership |
| 236 |
due to having been convicted of a
felony. |
| 237 |
2. The
bylaws shall provide the method of calling meetings |
| 238 |
of unit owners, including annual
meetings. Written notice, which |
| 239 |
notice must include an agenda, shall
be mailed, hand delivered, |
| 240 |
or electronically transmitted to each
unit owner at least 14 |
| 241 |
days prior to the annual meeting and
shall be posted in a |
| 242 |
conspicuous place on the condominium
property at least 14 |
| 243 |
continuous days preceding the annual
meeting. Upon notice to the |
| 244 |
unit owners, the board shall by duly
adopted rule designate a |
| 245 |
specific location on the condominium
property or association |
| 246 |
property upon which all notices of
unit owner meetings shall be |
| 247 |
posted; however, if there is no
condominium property or |
| 248 |
association property upon which
notices can be posted, this |
| 249 |
requirement does not apply. In lieu
of or in addition to the |
| 250 |
physical posting of notice of any
meeting of the unit owners on |
| 251 |
the condominium property, the
association may, by reasonable |
| 252 |
rule, adopt a procedure for
conspicuously posting and repeatedly |
| 253 |
broadcasting the notice and the
agenda on a closed-circuit cable |
| 254 |
television system serving the
condominium association. However, |
| 255 |
if broadcast notice is used in lieu
of a notice posted |
| 256 |
physically on the condominium
property, the notice and agenda |
| 257 |
must be broadcast at least four times
every broadcast hour of |
| 258 |
each day that a posted notice is
otherwise required under this |
| 259 |
section. When broadcast notice is
provided, the notice and |
| 260 |
agenda must be broadcast in a manner
and for a sufficient |
| 261 |
continuous length of time so as to
allow an average reader to |
| 262 |
observe the notice and read and
comprehend the entire content of |
| 263 |
the notice and the agenda. Unless a
unit owner waives in writing |
| 264 |
the right to receive notice of the
annual meeting, such notice |
| 265 |
shall be hand delivered, mailed, or
electronically transmitted |
| 266 |
to each unit owner. Notice for
meetings and notice for all other |
| 267 |
purposes shall be mailed to each unit
owner at the address last |
| 268 |
furnished to the association by the
unit owner, or hand |
| 269 |
delivered to each unit owner.
However, if a unit is owned by |
| 270 |
more than one person, the association
shall provide notice, for |
| 271 |
meetings and all other purposes, to
that one address which the |
| 272 |
developer initially identifies for
that purpose and thereafter |
| 273 |
as one or more of the owners of the
unit shall so advise the |
| 274 |
association in writing, or if no
address is given or the owners |
| 275 |
of the unit do not agree, to the
address provided on the deed of |
| 276 |
record. An officer of the
association, or the manager or other |
| 277 |
person providing notice of the
association meeting, shall |
| 278 |
provide an affidavit or United States
Postal Service certificate |
| 279 |
of mailing, to be included in the
official records of the |
| 280 |
association affirming that the notice
was mailed or hand |
| 281 |
delivered, in accordance with this
provision. |
| 282 |
3. The
members of the board shall be elected by written |
| 283 |
ballot or voting machine. Proxies
shall in no event be used in |
| 284 |
electing the board, either in general
elections or elections to |
| 285 |
fill vacancies caused by recall,
resignation, or otherwise, |
| 286 |
unless otherwise provided in this
chapter. Not less than 60 days |
| 287 |
before a scheduled election, the
association shall mail, |
| 288 |
deliver, or electronically transmit,
whether by separate |
| 289 |
association mailing or included in
another association mailing, |
| 290 |
delivery, or transmission, including
regularly published |
| 291 |
newsletters, to each unit owner
entitled to a vote, a first |
| 292 |
notice of the date of the election.
Any unit owner or other |
| 293 |
eligible person desiring to be a
candidate for the board must |
| 294 |
give written notice to the
association not less than 40 days |
| 295 |
before a scheduled election. Together
with the written notice |
| 296 |
and agenda as set forth in
subparagraph 2., the association |
| 297 |
shall mail, deliver, or
electronically transmit a second notice |
| 298 |
of the election to all unit owners
entitled to vote therein, |
| 299 |
together with a ballot which shall
list all candidates. Upon |
| 300 |
request of a candidate, the
association shall include an |
| 301 |
information sheet, no larger than
81/2 inches by 11 inches, |
| 302 |
which must be furnished by the
candidate not less than 35 days |
| 303 |
before the election, to be included
with the mailing, delivery, |
| 304 |
or transmission of the ballot, with
the costs of mailing, |
| 305 |
delivery, or electronic transmission
and copying to be borne by |
| 306 |
the association. The association is
not liable for the contents |
| 307 |
of the information sheets prepared by
the candidates. In order |
| 308 |
to reduce costs, the association may
print or duplicate the |
| 309 |
information sheets on both sides of
the paper. The division |
| 310 |
shall by rule establish voting
procedures consistent with the |
| 311 |
provisions contained herein,
including rules establishing |
| 312 |
procedures for giving notice by
electronic transmission and |
| 313 |
rules providing for the secrecy of
ballots. Elections shall be |
| 314 |
decided by a plurality of those
ballots cast. There shall be no |
| 315 |
quorum requirement; however, at least
20 percent of the eligible |
| 316 |
voters must cast a ballot in order to
have a valid election of |
| 317 |
members of the board. No unit owner
shall permit any other |
| 318 |
person to vote his or her ballot, and
any such ballots |
| 319 |
improperly cast shall be deemed
invalid, provided any unit owner |
| 320 |
who violates this provision may be
fined by the association in |
| 321 |
accordance with s. 718.303. A unit
owner who needs assistance in |
| 322 |
casting the ballot for the reasons
stated in s. 101.051 may |
| 323 |
obtain assistance in casting the
ballot. The regular election |
| 324 |
shall occur on the date of the annual
meeting. The provisions of |
| 325 |
this subparagraph shall not apply to
timeshare condominium |
| 326 |
associations. Notwithstanding the
provisions of this |
| 327 |
subparagraph, an election is not
required unless more candidates |
| 328 |
file notices of intent to run or are
nominated than board |
| 329 |
vacancies exist. |
| 330 |
4. Any
approval by unit owners called for by this chapter |
| 331 |
or the applicable declaration or
bylaws, including, but not |
| 332 |
limited to, the approval requirement
in s. 718.111(8), shall be |
| 333 |
made at a duly noticed meeting of
unit owners and shall be |
| 334 |
subject to all requirements of this
chapter or the applicable |
| 335 |
condominium documents relating to
unit owner decisionmaking, |
| 336 |
except that unit owners may take
action by written agreement, |
| 337 |
without meetings, on matters for
which action by written |
| 338 |
agreement without meetings is
expressly allowed by the |
| 339 |
applicable bylaws or declaration or
any statute that provides |
| 340 |
for such action. |
| 341 |
5. Unit
owners may waive notice of specific meetings if |
| 342 |
allowed by the applicable bylaws or
declaration or any statute. |
| 343 |
If authorized by the bylaws, notice
of meetings of the board of |
| 344 |
administration, unit owner meetings,
except unit owner meetings |
| 345 |
called to recall board members under
paragraph (j), and |
| 346 |
committee meetings may be given by
electronic transmission to |
| 347 |
unit owners who consent to receive
notice by electronic |
| 348 |
transmission. |
| 349 |
6. Unit
owners shall have the right to participate in |
| 350 |
meetings of unit owners with
reference to all designated agenda |
| 351 |
items. However, the association may
adopt reasonable rules |
| 352 |
governing the frequency, duration,
and manner of unit owner |
| 353 |
participation. |
| 354 |
7. Any
unit owner may tape record or videotape a meeting |
| 355 |
of the unit owners subject to
reasonable rules adopted by the |
| 356 |
division. |
| 357 |
8. Unless
otherwise provided in the bylaws, any vacancy |
| 358 |
occurring on the board before the
expiration of a term may be |
| 359 |
filled by the affirmative vote of the
majority of the remaining |
| 360 |
directors, even if the remaining
directors constitute less than |
| 361 |
a quorum, or by the sole remaining
director. In the alternative, |
| 362 |
a board may hold an election to fill
the vacancy, in which case |
| 363 |
the election procedures must conform
to the requirements of |
| 364 |
subparagraph 3. unless the
association governs 10 units or less |
| 365 |
and has opted out of the
statutory election process, in which |
| 366 |
case the bylaws of the association
control. Unless otherwise |
| 367 |
provided in the bylaws, a board
member appointed or elected |
| 368 |
under this section shall fill the
vacancy for the unexpired term |
| 369 |
of the seat being filled. Filling
vacancies created by recall is |
| 370 |
governed by paragraph (j) and rules
adopted by the division. |
| 371 |
9. Within
30 days after being elected to the board of |
| 372 |
directors, a new
director shall certify in writing to the |
| 373 |
secretary of the
association that he or she has read the |
| 374 |
association's
declarations of covenants and restrictions, |
| 375 |
articles of
incorporation, bylaws, and current written policies, |
| 376 |
he or she will
work to uphold such documents and policies to the |
| 377 |
best of his or her
ability, and he or she will faithfully |
| 378 |
discharge his or
her fiduciary responsibility to the |
| 379 |
association's
members. Failure to timely file the statement |
| 380 |
automatically
disqualifies the director from service on the |
| 381 |
association's
board of directors. The secretary shall cause the |
| 382 |
association to
retain a director's certification for inspection |
| 383 |
by the members for
5 years after a director's election. Failure |
| 384 |
to have such
certification on file does not affect the validity |
| 385 |
of any appropriate
action. |
| 386 |
|
| 387 |
Notwithstanding subparagraphs (b)2.
and (d)3., an association of |
| 388 |
10 or fewer
units may, by the affirmative vote of a majority of |
| 389 |
the total voting interests, provide
for different voting and |
| 390 |
election procedures in its bylaws,
which vote may be by a proxy |
| 391 |
specifically delineating the
different voting and election |
| 392 |
procedures. The different voting and
election procedures may |
| 393 |
provide for elections to be conducted
by limited or general |
| 394 |
proxy. |
| 395 |
Section
5. Paragraph (b) of subsection (2), paragraphs (a) |
| 396 |
and (c) of subsection (5), paragraphs
(b), (c), (d), (f), and |
| 397 |
(g) of subsection (6) of section
720.303, Florida Statutes, are |
| 398 |
amended, and subsection (12) is added
to that section, to read: |
| 399 |
720.303 Association
powers and duties; meetings of board; |
| 400 |
official records; budgets; financial
reporting; association |
| 401 |
funds; recalls.-- |
| 402 |
(2) BOARD
MEETINGS.-- |
| 403 |
(b) Members
have the right to attend all meetings of the |
| 404 |
board and to speak on any matter
placed on the agenda by |
| 405 |
petition of the voting interests for
at least 3 minutes. The |
| 406 |
association may adopt written
reasonable rules expanding the |
| 407 |
right of members to speak and
governing the frequency, duration, |
| 408 |
and other manner of member
statements, which rules must be |
| 409 |
consistent with this paragraph and
may include a sign-up sheet |
| 410 |
for members wishing to speak.
Notwithstanding any other law, the |
| 411 |
requirement that
board meetings and committee meetings be open |
| 412 |
to the
members is inapplicable to meetings between the board or |
| 413 |
a committee to
discuss proposed or pending litigation with and |
| 414 |
the association's attorney, or
with respect to meetings of the |
| 415 |
board held for the purpose of
discussing personnel matters are |
| 416 |
not required to be
open to the members. |
| 417 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
| 418 |
records shall be maintained within
the state and must be open to |
| 419 |
inspection and available for
photocopying by members or their |
| 420 |
authorized agents at reasonable times
and places within 10 |
| 421 |
business days after receipt of a
written request for access. |
| 422 |
This subsection may be complied with
by having a copy of the |
| 423 |
official records available for
inspection or copying in the |
| 424 |
community. If the association has a
photocopy machine available |
| 425 |
where the records are maintained, it
must provide parcel owners |
| 426 |
with copies on request during the
inspection if the entire |
| 427 |
request is limited to no more than 25
pages. |
| 428 |
(a) The
failure of an association to provide access to the |
| 429 |
records within 10 business days after
receipt of a written |
| 430 |
request submitted
by certified mail, return receipt requested, |
| 431 |
creates a rebuttable presumption that
the association willfully |
| 432 |
failed to comply with this
subsection. |
| 433 |
(c) The
association may adopt reasonable written rules |
| 434 |
governing the frequency, time,
location, notice, records to be |
| 435 |
inspected, and manner of inspections,
but may not require impose |
| 436 |
a
requirement that a parcel owner to
demonstrate any proper |
| 437 |
purpose for the inspection, state any
reason for the inspection, |
| 438 |
or limit a parcel owner's right to
inspect records to less than |
| 439 |
one 8-hour business day per month.
The association may impose |
| 440 |
fees to cover the costs of providing
copies of the official |
| 441 |
records, including, without
limitation, the costs of copying. |
| 442 |
The association may charge up to 50
cents per page for copies |
| 443 |
made on the association's
photocopier. If the association does |
| 444 |
not have a photocopy machine
available where the records are |
| 445 |
kept, or if the records requested to
be copied exceed 25 pages |
| 446 |
in length, the association may have
copies made by an outside |
| 447 |
vendor or
association management company personnel and may |
| 448 |
charge the actual cost of copying,
including any reasonable |
| 449 |
costs involving
personnel fees and charges at an hourly rate for |
| 450 |
employee time to
cover administrative costs to the association. |
| 451 |
The association shall maintain an
adequate number of copies of |
| 452 |
the recorded governing documents,
to ensure their availability |
| 453 |
to members and prospective members.
Notwithstanding the |
| 454 |
provisions of this paragraph, the
following records are shall |
| 455 |
not be accessible to members
or parcel owners: |
| 456 |
1. Any
record protected by the lawyer-client privilege as |
| 457 |
described in s. 90.502 and any record
protected by the work- |
| 458 |
product privilege, including, but not
limited to, any record |
| 459 |
prepared by an association attorney
or prepared at the |
| 460 |
attorney's express direction which
reflects a mental impression, |
| 461 |
conclusion, litigation strategy, or
legal theory of the attorney |
| 462 |
or the association and which
was prepared exclusively for civil |
| 463 |
or criminal litigation or for
adversarial administrative |
| 464 |
proceedings or which was prepared in
anticipation of imminent |
| 465 |
civil or criminal litigation or
imminent adversarial |
| 466 |
administrative proceedings until the
conclusion of the |
| 467 |
litigation or adversarial
administrative proceedings. |
| 468 |
2. Information
obtained by an association in connection |
| 469 |
with the approval of the lease, sale,
or other transfer of a |
| 470 |
parcel. |
| 471 |
3. Disciplinary,
health, insurance, and personnel records |
| 472 |
of the association's employees. |
| 473 |
4. Medical
records of parcel owners or community |
| 474 |
residents. |
| 475 |
(6) BUDGETS.-- |
| 476 |
(b) In
addition to annual operating expenses, the budget |
| 477 |
may include reserve accounts for
capital expenditures and |
| 478 |
deferred maintenance for which the
association is responsible. |
| 479 |
If reserve
accounts are not established pursuant to paragraph |
| 480 |
(d), funding
of such reserves shall be limited to the extent |
| 481 |
that the governing documents do
not limit increases in |
| 482 |
assessments, including reserves. If
the budget of the |
| 483 |
association includes reserve accounts
established pursuant to |
| 484 |
paragraph
(d), such reserves shall be determined, maintained, |
| 485 |
and waived in the manner provided in
this subsection. Once an |
| 486 |
association provides for reserve
accounts pursuant to paragraph |
| 487 |
(d) in
the budget, the association shall thereafter determine, |
| 488 |
maintain, and waive reserves in
compliance with this subsection. |
| 489 |
The provisions of
this section do not preclude the termination |
| 490 |
of a reserve
account established pursuant to this paragraph upon |
| 491 |
approval of a
majority of the voting interests of the |
| 492 |
association. Upon
such approval, the terminating reserve account |
| 493 |
shall be removed
from the budget. |
| 494 |
(c)1. If
the budget of the association does not provide |
| 495 |
for reserve accounts pursuant
to paragraph (d) governed by this |
| 496 |
subsection
and the association is responsible for the repair and |
| 497 |
maintenance of capital improvements
that may result in a special |
| 498 |
assessment if reserves are not
provided, each financial report |
| 499 |
for the preceding fiscal year
required by subsection (7) shall |
| 500 |
contain the following statement in
conspicuous type: THE BUDGET |
| 501 |
OF THE ASSOCIATION DOES NOT PROVIDE
FOR RESERVE ACCOUNTS FOR |
| 502 |
CAPITAL EXPENDITURES AND DEFERRED
MAINTENANCE THAT MAY RESULT IN |
| 503 |
SPECIAL ASSESSMENTS. OWNERS MAY ELECT
TO PROVIDE FOR RESERVE |
| 504 |
ACCOUNTS PURSUANT TO THE PROVISIONS
OF SECTION 720.303(6), |
| 505 |
FLORIDA STATUTES, UPON OBTAINING
THE APPROVAL OF NOT LESS THAN A |
| 506 |
MAJORITY OF THE TOTAL VOTING
INTERESTS OF THE ASSOCIATION BY |
| 507 |
VOTE OF THE
MEMBERS AT A MEETING OR BY WRITTEN CONSENT. |
| 508 |
2. If
the budget of the association does provide for |
| 509 |
funding accounts
for deferred expenditures, including, but not |
| 510 |
limited to, funds
for capital expenditures and deferred |
| 511 |
maintenance, but
such accounts are not created or established |
| 512 |
pursuant to
paragraph (d), each financial report for the |
| 513 |
preceding fiscal
year required under subsection (7) must also |
| 514 |
contain the
following statement in conspicuous type: THE BUDGET |
| 515 |
OF THE ASSOCIATION
DOES PROVIDE FOR LIMITED VOLUNTARY DEFERRED |
| 516 |
EXPENDITURE
ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND |
| 517 |
DEFERRED
MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN |
| 518 |
OUR GOVERNING
DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO |
| 519 |
PROVIDE FOR
RESERVE ACCOUNTS PURSUANT TO SECTION 720.303(6), |
| 520 |
FLORIDA STATUTES,
THESE FUNDS ARE NOT SUBJECT TO THE |
| 521 |
RESTRICTIONS ON
USE OF SUCH FUNDS SET FORTH IN THAT STATUTE, NOR |
| 522 |
ARE RESERVES
CALCULATED IN ACCORDANCE WITH THAT STATUTE. |
| 523 |
(d) An
association shall be deemed to have provided for |
| 524 |
reserve accounts if when
reserve accounts have been initially |
| 525 |
established by the developer or if
when the membership of the |
| 526 |
association affirmatively elects to
provide for reserves. If |
| 527 |
reserve accounts are not initially
provided for by the |
| 528 |
developer, the membership of the
association may elect to do so |
| 529 |
upon the affirmative approval of not
less than a majority of the |
| 530 |
total voting interests of the
association. Such approval may be |
| 531 |
obtained
attained by vote of the members at
a duly called |
| 532 |
meeting of the membership or by
the upon a written
consent of |
| 533 |
executed by
not less than a majority of the total voting |
| 534 |
interests in the community. The
approval action of the |
| 535 |
membership shall state that reserve
accounts shall be provided |
| 536 |
for in the budget and shall
designate the components for which |
| 537 |
the reserve accounts are to be
established. Upon approval by the |
| 538 |
membership, the board of directors
shall include provide
for the |
| 539 |
required reserve accounts for
inclusion in the budget in the |
| 540 |
next fiscal year following the
approval and in each year |
| 541 |
thereafter. Once established as
provided in this subsection, the |
| 542 |
reserve accounts shall be funded or
maintained or shall have |
| 543 |
their funding waived in the manner
provided in paragraph (f). |
| 544 |
(f) After
one or more Once a reserve account
or reserve |
| 545 |
accounts are established, the
membership of the association, |
| 546 |
upon a majority vote at a meeting at
which a quorum is present, |
| 547 |
may provide for no reserves or less
reserves than required by |
| 548 |
this section. If a meeting of the
unit owners has been called to |
| 549 |
determine whether to waive or reduce
the funding of reserves and |
| 550 |
no such result is achieved or a
quorum is not present, the |
| 551 |
reserves as included in the budget
shall go into effect. After |
| 552 |
the turnover, the developer may vote
its voting interest to |
| 553 |
waive or reduce the funding of
reserves. Any vote taken pursuant |
| 554 |
to this subsection to waive or reduce
reserves is shall
be |
| 555 |
applicable only to one budget year. |
| 556 |
(g) Funding
formulas for reserves authorized by this |
| 557 |
section shall be based on either a
separate analysis of each of |
| 558 |
the required assets or a pooled
analysis of two or more of the |
| 559 |
required assets. |
| 560 |
1. If
the association maintains separate reserve accounts |
| 561 |
for each of the required assets, the
amount of the contribution |
| 562 |
to each reserve account is
shall be the sum of the following
two |
| 563 |
calculations: |
| 564 |
a. The
total amount necessary, if any, to bring a negative |
| 565 |
component balance to zero. |
| 566 |
b. The
total estimated deferred maintenance expense or |
| 567 |
estimated replacement cost of the
reserve component less the |
| 568 |
estimated balance of the reserve
component as of the beginning |
| 569 |
of the period for
which the budget will be in effect. The |
| 570 |
remainder, if greater than zero,
shall be divided by the |
| 571 |
estimated remaining useful life of
the component. |
| 572 |
|
| 573 |
The formula may be adjusted each year
for changes in estimates |
| 574 |
and deferred maintenance performed
during the year and may |
| 575 |
include factors such as inflation and
earnings on invested |
| 576 |
funds. |
| 577 |
2. If
the association maintains a pooled account of two or |
| 578 |
more of the required reserve assets,
the amount of the |
| 579 |
contribution to the pooled reserve
account as disclosed on the |
| 580 |
proposed budget may
shall not be less than that
required to |
| 581 |
ensure that the balance on hand at
the beginning of the period |
| 582 |
for which
the budget will go into effect plus the projected |
| 583 |
annual cash inflows over the
remaining estimated useful life of |
| 584 |
all of the assets that make up the
reserve pool are equal to or |
| 585 |
greater than the projected annual
cash outflows over the |
| 586 |
remaining estimated useful lives of
all of the assets that make |
| 587 |
up the reserve pool, based on the
current reserve analysis. The |
| 588 |
projected annual cash inflows may
include estimated earnings |
| 589 |
from investment of principal and
accounts receivable minus the |
| 590 |
allowance
for doubtful accounts. The reserve funding formula may |
| 591 |
shall
not include any type of balloon payments. |
| 592 |
(12) COMPENSATION
PROHIBITED.--A director, officer, or |
| 593 |
committee member
of the association may not receive directly or |
| 594 |
indirectly any
salary or compensation from the association for |
| 595 |
the performance of
duties as a director, officer, or committee |
| 596 |
member and may not
in any other way benefit financially from |
| 597 |
service to the
association. This subsection does not preclude: |
| 598 |
(a) Participation
by such person in a financial benefit |
| 599 |
accruing to all or
a significant number of members as a result |
| 600 |
of actions
lawfully taken by the board or a committee of which |
| 601 |
he or she is a
member, including, but not limited to, routine |
| 602 |
maintenance,
repair, or replacement of community assets. |
| 603 |
(b) Reimbursement
for out-of-pocket expenses incurred by |
| 604 |
such person on
behalf of the association, subject to approval in |
| 605 |
accordance with
procedures established by the association's |
| 606 |
governing
documents or, in the absence of such procedures, in |
| 607 |
accordance with an
approval process established by the board. |
| 608 |
(c) Any
recovery of insurance proceeds derived from a |
| 609 |
policy of
insurance maintained by the association for the |
| 610 |
benefit of its
members. |
| 611 |
(d) Any
fee or compensation authorized in the governing |
| 612 |
documents. |
| 613 |
(e) Any
fee or compensation authorized in advance by a |
| 614 |
vote of a majority
of the voting interests voting in person or |
| 615 |
by proxy at a
meeting of the members. |
| 616 |
Section
6. Subsection (2) of section 720.305, Florida |
| 617 |
Statutes, are amended to read: |
| 618 |
720.305 Obligations
of members; remedies at law or in |
| 619 |
equity; levy of fines and suspension
of use rights; failure to |
| 620 |
fill sufficient number of vacancies
on board of directors to |
| 621 |
constitute a quorum; appointment of
receiver upon petition of |
| 622 |
any member.-- |
| 623 |
(2) If
the governing documents so provide, an association |
| 624 |
may suspend, for a reasonable period
of time, the rights of a |
| 625 |
member or a member's tenants, guests,
or invitees, or both, to |
| 626 |
use common areas and facilities and
may levy reasonable fines of |
| 627 |
up to,
not to exceed $100 per violation, against any member or |
| 628 |
any tenant, guest, or invitee. A fine
may be levied on the basis |
| 629 |
of each day of a continuing
violation, with a single notice and |
| 630 |
opportunity for hearing, except that
no such fine may
shall |
| 631 |
exceed $1,000 in the aggregate unless
otherwise provided in the |
| 632 |
governing documents. A fine of
less than $1,000 may shall
not |
| 633 |
become a lien against a parcel. In
any action to recover a fine, |
| 634 |
the prevailing party is entitled to
collect its reasonable |
| 635 |
attorney's fees and costs from the
nonprevailing party as |
| 636 |
determined by the court. |
| 637 |
(a) A
fine or suspension may not be imposed without notice |
| 638 |
of
at least 14 days notice to the
person sought to be fined or |
| 639 |
suspended and an opportunity for a
hearing before a committee of |
| 640 |
at least three members appointed by
the board who are not |
| 641 |
officers, directors, or employees of
the association, or the |
| 642 |
spouse, parent, child, brother, or
sister of an officer, |
| 643 |
director, or employee. If the
committee, by majority vote, does |
| 644 |
not approve a proposed fine or
suspension, it may not be |
| 645 |
imposed. |
| 646 |
(b) The
requirements of this subsection do not apply to |
| 647 |
the imposition of suspensions or
fines upon any member because |
| 648 |
of the failure of the member to pay
assessments or other charges |
| 649 |
when due if such action is authorized
by the governing |
| 650 |
documents. |
| 651 |
(c) Suspension
of common-area-use rights do shall not |
| 652 |
impair the right of an owner or
tenant of a parcel to have |
| 653 |
vehicular and pedestrian ingress to
and egress from the parcel, |
| 654 |
including, but not limited to, the
right to park. |
| 655 |
Section
7. Subsections (8) and (9) of section 720.306, |
| 656 |
Florida Statutes, are amended to
read: |
| 657 |
720.306 Meetings
of members; voting and election |
| 658 |
procedures; amendments.-- |
| 659 |
(8) PROXY
VOTING.--The members have the right, unless |
| 660 |
otherwise provided in this subsection
or in the governing |
| 661 |
documents, to vote in person or by
proxy. |
| 662 |
(a) To
be valid, a proxy must be dated, must state the |
| 663 |
date, time, and place of the meeting
for which it was given, and |
| 664 |
must be signed by the authorized
person who executed the proxy. |
| 665 |
A proxy is effective only for the
specific meeting for which it |
| 666 |
was originally given, as the meeting
may lawfully be adjourned |
| 667 |
and reconvened from time to time, and
automatically expires 90 |
| 668 |
days after the date of the meeting
for which it was originally |
| 669 |
given. A proxy is revocable at any
time at the pleasure of the |
| 670 |
person who executes it. If the proxy
form expressly so provides, |
| 671 |
any proxy holder may appoint, in
writing, a substitute to act in |
| 672 |
his or her place. |
| 673 |
(b) If
the governing documents permit voting by secret |
| 674 |
ballot by members
who are not in attendance at a meeting of the |
| 675 |
members for the
election of directors, such ballots shall be |
| 676 |
placed in an inner
envelope with no identifying markings and |
| 677 |
mailed or
delivered to the association in an outer envelope |
| 678 |
bearing
identifying information reflecting the name of the |
| 679 |
member, the lot or
parcel for which the vote is being cast, and |
| 680 |
the signature of
the lot or parcel owner casting that ballot. |
| 681 |
After the
eligibility of the member to vote and confirmation |
| 682 |
that no other
ballot has been submitted for that lot or parcel, |
| 683 |
the inner envelope
shall be removed from the outer envelope |
| 684 |
bearing the
identification information, placed with the ballots |
| 685 |
which were
personally cast, and opened when the ballots are |
| 686 |
counted. If more
than one ballot is submitted for a lot or |
| 687 |
parcel, the
ballots for that lot or parcel shall be |
| 688 |
disqualified. Any
vote by ballot received after the closing of |
| 689 |
the balloting may
not be considered. |
| 690 |
(9) ELECTIONS;
BOARD MEMBER CERTIFICATION.-- |
| 691 |
(a) Elections
of directors must be conducted in accordance |
| 692 |
with the procedures set forth in the
governing documents of the |
| 693 |
association. All members of the
association are shall
be |
| 694 |
eligible to serve on the board of
directors, and a member may |
| 695 |
nominate himself or herself as a
candidate for the board at a |
| 696 |
meeting where the election is to be
held or, if the election |
| 697 |
process allows
voting by absentee ballot, in advance of the |
| 698 |
balloting.
Except as otherwise provided in the governing |
| 699 |
documents, boards of directors must
be elected by a plurality of |
| 700 |
the votes cast by eligible voters.
Any election dispute between |
| 701 |
a member and an association must be
submitted to mandatory |
| 702 |
binding arbitration with the
division. Such proceedings shall be |
| 703 |
conducted in the manner provided by
s. 718.1255 and the |
| 704 |
procedural rules adopted by the
division. |
| 705 |
(b) Within
30 days after being elected to the board of |
| 706 |
directors, a new
director shall certify in writing to the |
| 707 |
secretary of the
association that he or she has read the |
| 708 |
association's
declarations of covenants and restrictions, |
| 709 |
articles of
incorporation, bylaws, and current written policies |
| 710 |
and that he or she
will work to uphold each to the best of his |
| 711 |
or her ability and
will faithfully discharge his or her |
| 712 |
fiduciary
responsibility to the association's members. Failure |
| 713 |
to timely file
such statement shall automatically disqualify the |
| 714 |
director from
service on the association's board of directors. |
| 715 |
The secretary
shall cause the association to retain a director's |
| 716 |
certification for
inspection by the members for 5 years after a |
| 717 |
director's
election. Failure to have such certification on file |
| 718 |
does not affect
the validity of any appropriate action. |
| 719 |
Section
8. Paragraph (a) of subsection (1) of section |
| 720 |
720.401, Florida Statutes, is amended
to read: |
| 721 |
720.401 Prospective
purchasers subject to association |
| 722 |
membership requirement; disclosure
required; covenants; |
| 723 |
assessments; contract cancellation.-- |
| 724 |
(1)(a) A
prospective parcel owner in a community must be |
| 725 |
presented a disclosure summary before
executing the contract for |
| 726 |
sale. The disclosure summary must be
in a form substantially |
| 727 |
similar to the following form: |
| 728 |
|
| 729 |
DISCLOSURE SUMMARY |
| 730 |
FOR |
| 731 |
(NAME OF COMMUNITY) |
| 732 |
|
| 733 |
1. AS
A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL |
| 734 |
BE OBLIGATED TO BE A MEMBER OF A
HOMEOWNERS' ASSOCIATION. |
| 735 |
2. THERE
HAVE BEEN OR WILL BE RECORDED RESTRICTIVE |
| 736 |
COVENANTS GOVERNING THE USE AND
OCCUPANCY OF PROPERTIES IN THIS |
| 737 |
COMMUNITY. |
| 738 |
3. YOU
WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE |
| 739 |
ASSOCIATION. ASSESSMENTS MAY BE
SUBJECT TO PERIODIC CHANGE. IF |
| 740 |
APPLICABLE, THE CURRENT AMOUNT IS
$_____ PER _____. YOU WILL |
| 741 |
ALSO BE OBLIGATED TO PAY ANY SPECIAL
ASSESSMENTS IMPOSED BY THE |
| 742 |
ASSOCIATION. SUCH SPECIAL ASSESSMENTS
MAY BE SUBJECT TO CHANGE. |
| 743 |
IF APPLICABLE, THE CURRENT AMOUNT IS
$_____ PER _____. |
| 744 |
4. YOU
MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE |
| 745 |
RESPECTIVE MUNICIPALITY, COUNTY, OR
SPECIAL DISTRICT. ALL |
| 746 |
ASSESSMENTS ARE SUBJECT TO PERIODIC
CHANGE. |
| 747 |
5. YOUR
FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS |
| 748 |
LEVIED BY A MANDATORY HOMEOWNERS'
ASSOCIATION MAY COULD RESULT |
| 749 |
IN A LIEN ON YOUR PROPERTY. |
| 750 |
6. THERE
MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES |
| 751 |
FOR RECREATIONAL OR OTHER COMMONLY
USED FACILITIES AS AN |
| 752 |
OBLIGATION OF MEMBERSHIP IN THE
HOMEOWNERS' ASSOCIATION. IF |
| 753 |
APPLICABLE, THE CURRENT AMOUNT IS
$_____ PER _____. |
| 754 |
7. IF
THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE |
| 755 |
DEVELOPER,
THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE |
| 756 |
RESTRICTIVE COVENANTS WITHOUT THE
APPROVAL OF THE ASSOCIATION |
| 757 |
MEMBERSHIP OR THE APPROVAL OF THE
PARCEL OWNERS. |
| 758 |
8. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE |
| 759 |
ONLY SUMMARY IN NATURE, AND, AS A
PROSPECTIVE PURCHASER, YOU |
| 760 |
SHOULD REFER TO THE COVENANTS AND THE
ASSOCIATION GOVERNING |
| 761 |
DOCUMENTS BEFORE PURCHASING PROPERTY. |
| 762 |
9. THESE
DOCUMENTS ARE EITHER MATTERS OF
PUBLIC RECORD AND |
| 763 |
CAN BE OBTAINED FROM THE RECORD
OFFICE IN THE COUNTY WHERE THE |
| 764 |
PROPERTY IS LOCATED, OR,
IF ARE NOT RECORDED,
AND CAN BE |
| 765 |
OBTAINED FROM THE DEVELOPER. |
| 766 |
10. THERE
MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES |
| 767 |
OR FEES) TO A
RESIDENTIAL COMMUNITY DEVELOPMENT DISTRICT FOR THE |
| 768 |
PURPOSE OF
RETIRING BOND OBLIGATIONS USED TO CONSTRUCT |
| 769 |
INFRASTRUCTURE OR
OTHER IMPROVEMENTS. |
| 770 |
11. YOU
ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS |
| 771 |
OWNER OF YOUR
PROPERTY FOR ALL UNPAID ASSESSMENTS THAT CAME DUE |
| 772 |
UP TO THE TIME OF
TRANSFER OF TITLE. |
| 773 |
|
| 774 |
DATE: PURCHASER: |
| 775 |
PURCHASER: |
| 776 |
The disclosure must be supplied by
the developer, or by the |
| 777 |
parcel owner if the sale is by an
owner that is not the |
| 778 |
developer. Any contract or agreement
for sale shall refer to and |
| 779 |
incorporate the disclosure summary
and shall include, in |
| 780 |
prominent language, a statement that
the potential buyer should |
| 781 |
not execute the contract or agreement
until he or she has they |
| 782 |
have
received and read the disclosure summary required by this |
| 783 |
section. |
| 784 |
Section
9. Effective July 1, 2009, Paragraph (d) of |
| 785 |
subsection (1) of section 34.01,
Florida Statutes, is amended to |
| 786 |
read: |
| 787 |
34.01 Jurisdiction
of county court.-- |
| 788 |
(1) County
courts shall have original jurisdiction: |
| 789 |
(d) Of
disputes occurring in the homeowners' associations |
| 790 |
as described in part
IV of chapter 720 s. 720.311(2)(a),
which |
| 791 |
shall be concurrent with jurisdiction
of the circuit courts. |
| 792 |
Section
10. Effective July 1, 2009, Subsection (2) of |
| 793 |
section 720.302, Florida Statutes, is
amended to read: |
| 794 |
720.302 Purposes,
scope, and application.-- |
| 795 |
(2) The
Legislature recognizes that it is not in the best |
| 796 |
interest of homeowners' associations
or the individual |
| 797 |
association members thereof to create
or impose a bureau or |
| 798 |
other agency of state government to
regulate the affairs of |
| 799 |
homeowners' associations. However, in
accordance with part IV of |
| 800 |
chapter 720
s. 720.311, the Legislature finds
that homeowners' |
| 801 |
associations and their individual
members will benefit from an |
| 802 |
expedited alternative process for
resolution of election and |
| 803 |
recall
disputes and presuit mediation of other disputes |
| 804 |
involving covenant enforcement in
homeowner's associations and |
| 805 |
deed restricted
communities using the procedures provided in |
| 806 |
part IV of
and authorizes the department to hear,
administer, |
| 807 |
and
determine these disputes as more fully set forth in this |
| 808 |
chapter. Further, the Legislature
recognizes that certain |
| 809 |
contract rights have been created for
the benefit of homeowners' |
| 810 |
associations and members thereof as
well as deed-restricted |
| 811 |
communities
before the effective date of this act and that part |
| 812 |
IV of
chapter 720 is ss. 720.301-720.407
are not intended to |
| 813 |
impair such contract rights,
including, but not limited to, the |
| 814 |
rights of the developer to complete
the community as initially |
| 815 |
contemplated. |
| 816 |
Section
11. Effective July 1, 2009, Section
720.311, |
| 817 |
Florida Statutes,
is repealed. |
| 818 |
Section
12. Effective July 1, 2009, Part IV of chapter |
| 819 |
720, Florida Statutes, to be entitled
"Dispute Resolution" |
| 820 |
consisting of sections 720.501,
720.502, 720.503, 720.504, |
| 821 |
720.505, 720.506, 720.507, 720.508,
720.509, and 720.510, is |
| 822 |
created to read: |
| 823 |
720.501 Short
title.--This part may be cited as the "Home |
| 824 |
Court Advantage
Dispute Resolution Act." |
| 825 |
720.502 Legislative
findings.--The Legislature finds that |
| 826 |
alternative
dispute resolution has made progress in reducing |
| 827 |
court dockets and
trials and in offering a more efficient, cost- |
| 828 |
effective option
to litigation. |
| 829 |
720.503 Applicability
of this part.-- |
| 830 |
(1) Unless
otherwise provided in this part, before a |
| 831 |
dispute described
herein between a homeowners' association and a |
| 832 |
parcel owner or
owners, or a dispute between parcel owners |
| 833 |
within the same
homeowners' association, may be filed in court |
| 834 |
the dispute is
subject to presuit mediation pursuant to s. |
| 835 |
720.505 or presuit
arbitration pursuant to s. 720.507, at the |
| 836 |
option of the
aggrieved party who initiates the first formal |
| 837 |
action of
alternative dispute resolution under this part. The |
| 838 |
parties may
mutually agree to participate in both presuit |
| 839 |
mediation and
presuit arbitration prior to suit being filed by |
| 840 |
either party. |
| 841 |
(2) Unless
otherwise provided in this part, the mediation |
| 842 |
and arbitration
provisions of this part are limited to disputes |
| 843 |
between an
association and a parcel owner or owners or between |
| 844 |
parcel owners
regarding the use of or changes to the parcel or |
| 845 |
the common areas
under the governing documents and other |
| 846 |
disputes involving
violations of the recorded declaration of |
| 847 |
covenants or other
governing documents, disputes arising |
| 848 |
concerning
enforcement of the governing documents or any |
| 849 |
amendments
thereto, and disputes involving access to the |
| 850 |
official records
of the association. A dispute concerning title |
| 851 |
to any parcel or
common area, interpretation or enforcement of |
| 852 |
any warranty, the
levy of a fee or assessment, the collection of |
| 853 |
an assessment
levied against a party, the eviction or other |
| 854 |
removal of a
tenant from a parcel, alleged breaches of fiduciary |
| 855 |
duty by one or
more directors, or any action to collect mortgage |
| 856 |
indebtedness or to
foreclosure a mortgage shall not be subject |
| 857 |
to the provisions
of this part. |
| 858 |
(3) All
disputes arising after the effective date of this |
| 859 |
part involving the
election of the board of directors for an |
| 860 |
association or the
recall of any member of the board or officer |
| 861 |
of the association
shall not be eligible for presuit mediation |
| 862 |
under s. 720.505,
but shall be subject to the provisions |
| 863 |
concerning presuit
arbitration under s. 720.507. |
| 864 |
(4) In
any dispute subject to presuit mediation or presuit |
| 865 |
arbitration under
this part for which emergency relief is |
| 866 |
required, a motion
for temporary injunctive relief may be filed |
| 867 |
with the court
without first complying with the presuit |
| 868 |
mediation or
presuit arbitration requirements of this part. |
| 869 |
After any issues
regarding emergency or temporary relief are |
| 870 |
resolved, the
court may refer the parties to a mediation program |
| 871 |
administered by
the courts or require mediation or arbitration |
| 872 |
under this part. |
| 873 |
(5) The
mailing of a statutory notice of presuit mediation |
| 874 |
or presuit
arbitration as provided in this part shall toll the |
| 875 |
applicable statute
of limitations during the pendency of the |
| 876 |
mediation or
arbitration and for a period of 30 days following |
| 877 |
the conclusion of
either proceeding. The 30-day period shall |
| 878 |
start upon the
filing of the mediator's notice of impasse or the |
| 879 |
arbitrator's
written arbitration award. If the parties mutually |
| 880 |
agree to
participate in both presuit mediation and presuit |
| 881 |
arbitration under
this part, the tolling of the applicable |
| 882 |
statute of
limitations for each such alternative dispute |
| 883 |
resolution
proceeding shall be consecutive. |
| 884 |
720.504 Notice
of dispute.--Prior to giving the statutory |
| 885 |
notice to proceed
under presuit medication or presuit |
| 886 |
arbitration under
this part, the aggrieved association or parcel |
| 887 |
owner shall first
provide written notice of the dispute to the |
| 888 |
responding party
in the manner provided by this section. |
| 889 |
(1) The
notice of dispute shall be delivered to the |
| 890 |
responding party
by certified mail, return receipt requested, or |
| 891 |
the notice of
dispute may be hand delivered and the person |
| 892 |
making delivery
shall file with their notice of mediation either |
| 893 |
the proof of
receipt of mailing or an affidavit stating the date |
| 894 |
and time of the
delivery of the notice of dispute. If the notice |
| 895 |
is delivered by
certified mail, return receipt requested, and |
| 896 |
the responding
party fails or refuses to accept delivery, notice |
| 897 |
shall be
considered properly delivered for purposes of this |
| 898 |
section on the
date of the first attempted delivery. |
| 899 |
(2) The
notice of dispute shall state with specificity the |
| 900 |
nature of the
dispute, including the date, time, and location of |
| 901 |
each event that is
the subject of the dispute and the action |
| 902 |
requested to
resolve the dispute. The notice shall also include |
| 903 |
the text of any
provision in the governing documents, including |
| 904 |
the rules and
regulations, of the association which form the |
| 905 |
basis of the
dispute. |
| 906 |
(3) Unless
the parties otherwise agree in writing to a |
| 907 |
longer time
period, the party receiving the notice of dispute |
| 908 |
shall have 10 days
following the date of receipt of notice to |
| 909 |
resolve the
dispute. If the alleged dispute has not been |
| 910 |
resolved within
the 10-day period, the aggrieved party may |
| 911 |
proceed under this
part at any time thereafter within the |
| 912 |
applicable statute
of limitations. |
| 913 |
(4) A
copy of the notice and the text of the provision in |
| 914 |
the governing
documents or the rules and regulations of the |
| 915 |
association which
are the basis of the dispute, along with proof |
| 916 |
of service of the
notice of dispute and a copy of any written |
| 917 |
responses received
from the responding party, shall be included |
| 918 |
as an exhibit to
any demand for mediation or arbitration under |
| 919 |
this part. |
| 920 |
720.505 Presuit
mediation.-- |
| 921 |
(1) Disputes
between an association and a parcel owner or |
| 922 |
owners and between
parcel owners must be submitted to presuit |
| 923 |
mediation before
the dispute may be filed in court or, at the |
| 924 |
election of the
party initiating the presuit procedures, such |
| 925 |
dispute may be
submitted to presuit arbitration pursuant to s. |
| 926 |
720.507 before the
dispute may be filed in court. An aggrieved |
| 927 |
party who elects
to use the presuit mediation procedure under |
| 928 |
this section shall
serve on the responding party a written |
| 929 |
notice of presuit
mediation in substantially the following form: |
| 930 |
|
| 931 |
STATUTORY NOTICE
OF PRESUIT MEDIATION |
| 932 |
THE ALLEGED
AGGRIEVED PARTY, ____________________, |
| 933 |
HEREBY DEMANDS
THAT ____________________, AS THE |
| 934 |
RESPONDING PARTY,
ENGAGE IN MANDATORY PRESUIT |
| 935 |
MEDIATION IN
CONNECTION WITH A DISPUTE(S) WITH YOU, |
| 936 |
WHICH BY STATUTE
ARE OF A TYPE THAT ARE SUBJECT TO |
| 937 |
PRESUIT MEDIATION: |
| 938 |
|
| 939 |
ATTACHED IS A COPY
OF THE PRIOR NOTICE OF VIOLATION |
| 940 |
WHICH DETAILS THE
SPECIFIC NATURE OF THE DISPUTE(S)TO |
| 941 |
BE MEDIATED AND
THE AUTHORITY SUPPORTING A FINDING OF |
| 942 |
A VIOLATION AS TO
EACH DISPUTE, INCLUDING, BUT NOT |
| 943 |
LIMITED TO, THE
APPLICABLE PROVISIONS OF THE GOVERNING |
| 944 |
DOCUMENTS OF THE
ASSOCIATION BELIEVED TO APPLY TO THE |
| 945 |
DISPUTE BETWEEN
THE PARTIES, AND A COPY OF THE NOTICE |
| 946 |
YOU RECEIVED OR
REFUSED AND COPIES OF ANY WRITTEN |
| 947 |
RESPONSE(S)
RECEIVED FROM YOU ABOUT THIS DISPUTE. |
| 948 |
|
| 949 |
PURSUANT TO PART
IV OF CHAPTER 720, FLORIDA STATUTES, |
| 950 |
THIS DEMAND TO
RESOLVE THE DISPUTE THROUGH PRESUIT |
| 951 |
MEDIATION IS
REQUIRED BEFORE A LAWSUIT CAN BE FILED |
| 952 |
CONCERNING THE
DISPUTE. PURSUANT TO FLORIDA STATUTES, |
| 953 |
THE PARTIES ARE
REQUIRED TO ENGAGE IN PRESUIT |
| 954 |
MEDIATION WITH A
NEUTRAL THIRD-PARTY MEDIATOR IN ORDER |
| 955 |
TO ATTEMPT TO
RESOLVE THIS DISPUTE WITHOUT COURT |
| 956 |
ACTION, AND THE
AGGRIEVED PARTY DEMANDS THAT YOU |
| 957 |
PARTICIPATE IN
THIS PROCESS. UNLESS YOU RESPOND TO |
| 958 |
THIS NOTICE BY
FILING WITH THE AGGRIEVED PARTY A |
| 959 |
NOTICE OF OPTING
OUT AND DEMAND FOR ARBITRATION UNDER |
| 960 |
S. 720.506,
FLORIDA STATUTES, YOUR FAILURE TO |
| 961 |
PARTICIPATE IN THE
MEDIATION PROCESS MAY RESULT IN A |
| 962 |
LAWSUIT BEING
FILED IN COURT AGAINST YOU WITHOUT |
| 963 |
FURTHER NOTICE. |
| 964 |
|
| 965 |
THE PROCESS OF
MEDIATION INVOLVES A SUPERVISED |
| 966 |
NEGOTIATION
PROCESS IN WHICH A TRAINED, NEUTRAL THIRD- |
| 967 |
PARTY MEDIATOR
MEETS WITH BOTH PARTIES AND ASSISTS |
| 968 |
THEM IN EXPLORING
POSSIBLE OPPORTUNITIES FOR RESOLVING |
| 969 |
PART OR ALL OF THE
DISPUTE. BY AGREEING TO PARTICIPATE |
| 970 |
IN PRESUIT
MEDIATION, YOU ARE NOT BOUND IN ANY WAY TO |
| 971 |
CHANGE YOUR
POSITION. FURTHERMORE, THE MEDIATOR HAS NO |
| 972 |
AUTHORITY TO MAKE
ANY DECISIONS IN THIS MATTER OR TO |
| 973 |
DETERMINE WHO IS
RIGHT OR WRONG AND MERELY ACTS AS A |
| 974 |
FACILITATOR TO
ENSURE THAT EACH PARTY UNDERSTANDS THE |
| 975 |
POSITION OF THE
OTHER PARTY AND THAT ALL OPTIONS FOR |
| 976 |
REASONABLE
SETTLEMENT ARE FULLY EXPLORED. |
| 977 |
|
| 978 |
IF AN AGREEMENT IS
REACHED, IT SHALL BE REDUCED TO |
| 979 |
WRITING AND BECOME
A BINDING AND ENFORCEABLE CONTRACT |
| 980 |
BETWEEN THE
PARTIES. A RESOLUTION OF ONE OR MORE |
| 981 |
DISPUTES IN THIS
FASHION AVOIDS THE NEED TO LITIGATE |
| 982 |
THESE ISSUES IN
COURT. THE FAILURE TO REACH AN |
| 983 |
AGREEMENT, OR THE
FAILURE OF A PARTY TO PARTICIPATE IN |
| 984 |
THE PROCESS,
RESULTS IN THE MEDIATOR DECLARING AN |
| 985 |
IMPASSE IN THE
MEDIATION, AFTER WHICH THE AGGRIEVED |
| 986 |
PARTY MAY PROCEED
TO FILE A LAW SUIT ON ALL |
| 987 |
OUTSTANDING,
UNSETTLED DISPUTES. IF YOU HAVE FAILED OR |
| 988 |
REFUSED TO
PARTICIPATE IN THE ENTIRE MEDIATION |
| 989 |
PROCESS, YOU WILL
NOT BE ENTITLED TO RECOVER |
| 990 |
ATTORNEY'S FEES IF
YOU PREVAIL IN A SUBSEQUENT COURT |
| 991 |
PROCEEDING
INVOLVING THE SAME DISPUTE. |
| 992 |
|
| 993 |
THE AGGRIEVED
PARTY HAS SELECTED FROM A LIST OF |
| 994 |
ELIGIBLE QUALIFIED
MEDIATORS AT LEAST FIVE CERTIFIED |
| 995 |
MEDIATORS WHO THE
AGGRIEVED PARTY BELIEVES TO BE |
| 996 |
NEUTRAL AND
QUALIFIED TO MEDIATE THE DISPUTE. YOU HAVE |
| 997 |
THE RIGHT TO
SELECT ANY ONE OF THESE MEDIATORS. THE |
| 998 |
FACT THAT ONE
PARTY MAY BE FAMILIAR WITH ONE OR MORE |
| 999 |
OF THE LISTED
MEDIATORS DOES NOT MEAN THAT THE |
| 1000 |
MEDIATOR CANNOT
ACT AS A NEUTRAL AND IMPARTIAL |
| 1001 |
FACILITATOR. THE
NAMES OF THE MEDIATORS THAT THE |
| 1002 |
AGGRIEVED PARTY
HEREBY SUBMITS TO YOU FROM WHOM YOU |
| 1003 |
MAY CHOOSE ONE,
AND THEIR CURRENT ADDRESSES, TELEPHONE |
| 1004 |
NUMBERS, AND
HOURLY RATES ARE AS FOLLOWS: |
| 1005 |
|
| 1006 |
(LIST THE NAMES,
ADDRESSES, TELEPHONE NUMBERS, AND |
| 1007 |
HOURLY RATES OF
THE MEDIATORS. OTHER PERTINENT |
| 1008 |
INFORMATION ABOUT
THE BACKGROUND OF THE MEDIATORS MAY |
| 1009 |
BE INCLUDED AS AN
ATTACHMENT.) |
| 1010 |
|
| 1011 |
YOU MAY CONTACT
THE OFFICES OF THESE MEDIATORS TO |
| 1012 |
CONFIRM THAT EACH
OF THE ABOVE LISTED MEDIATORS WILL |
| 1013 |
BE NEUTRAL AND
WILL NOT SHOW ANY FAVORITISM TOWARD |
| 1014 |
EITHER PARTY.
UNLESS OTHERWISE AGREED TO BY THE |
| 1015 |
PARTIES, PART IV
OF CHAPTER 720, FLORIDA STATUTES, |
| 1016 |
REQUIRES THAT THE
PARTIES SHARE THE COSTS OF PRESUIT |
| 1017 |
MEDIATION EQUALLY,
INCLUDING THE FEE CHARGED BY THE |
| 1018 |
MEDIATOR. AN
AVERAGE MEDIATION MAY REQUIRE 3 TO 4 |
| 1019 |
HOURS OF THE
MEDIATOR'S TIME, INCLUDING SOME |
| 1020 |
PREPARATION TIME,
AND THE PARTIES WOULD NEED TO |
| 1021 |
EQUALLY SHARE THE
MEDIATOR'S FEES AS WELL AS BE |
| 1022 |
RESPONSIBLE FOR
ALL OF THEIR OWN ATTORNEY'S FEES IF |
| 1023 |
THEY CHOOSE TO
EMPLOY AN ATTORNEY IN CONNECTION WITH |
| 1024 |
THE MEDIATION.
HOWEVER, USE OF AN ATTORNEY IS NOT |
| 1025 |
REQUIRED AND IS AT
THE OPTION OF EACH PARTY. THE |
| 1026 |
MEDIATORS MAY
REQUIRE THE ADVANCE PAYMENT OF SOME OR |
| 1027 |
ALL OF THE
ANTICIPATED FEES. THE AGGRIEVED PARTY |
| 1028 |
HEREBY AGREES TO
PAY OR PREPAY ONE-HALF OF THE |
| 1029 |
SELECTED
MEDIATOR'S ESTIMATED FEES AND TO FORWARD THIS |
| 1030 |
AMOUNT OR SUCH
OTHER REASONABLE ADVANCE DEPOSITS AS |
| 1031 |
THE MEDIATOR
REQUIRES FOR THIS PURPOSE UPON THE |
| 1032 |
SELECTION OF THE
MEDIATOR. ANY FUNDS DEPOSITED WILL BE |
| 1033 |
RETURNED TO YOU IF
THESE FUNDS ARE IN EXCESS OF YOUR |
| 1034 |
SHARE OF THE
MEDIATOR FEES INCURRED. |
| 1035 |
|
| 1036 |
TO BEGIN YOUR
PARTICIPATION IN PRESUIT MEDIATION TO |
| 1037 |
TRY TO RESOLVE THE
DISPUTE WITH YOU AND AVOID FURTHER |
| 1038 |
LEGAL ACTION,
PLEASE SIGN BELOW AND CLEARLY INDICATE |
| 1039 |
WHICH MEDIATOR IS
ACCEPTABLE TO YOU FROM THE FIVE |
| 1040 |
MEDIATORS LISTED
BY THE AGGRIEVED PARTY ABOVE. |
| 1041 |
|
| 1042 |
YOU MUST RESPOND
IN WRITING TO THIS STATUTORY NOTICE |
| 1043 |
OF PRESUIT
MEDIATION WITHIN 20 DAYS. IN YOUR RESPONSE |
| 1044 |
YOU MUST PROVIDE A
LISTING OF AT LEAST THREE DATES AND |
| 1045 |
TIMES IN WHICH YOU
ARE AVAILABLE TO PARTICIPATE IN THE |
| 1046 |
MEDIATION THAT ARE
WITHIN 90 DAYS AFTER THE POSTMARKED |
| 1047 |
DATE OF THE
MAILING OF THIS NOTICE OF PRESUIT |
| 1048 |
MEDIATION OR
WITHIN 90 DAYS AFTER THE DATE YOU WERE |
| 1049 |
SERVED WITH A COPY
OF THIS NOTICE. THE AGGRIEVED PARTY |
| 1050 |
WILL THEN ASK THE
MEDIATOR TO SCHEDULE A MUTUALLY |
| 1051 |
CONVENIENT TIME
AND PLACE FOR THE MEDIATION CONFERENCE |
| 1052 |
TO BE HELD. IF YOU
DO NOT PROVIDE A LIST OF AVAILABLE |
| 1053 |
DATES AND TIMES,
THE MEDIATOR IS AUTHORIZED TO |
| 1054 |
SCHEDULE A
MEDIATION CONFERENCE WITHOUT TAKING YOUR |
| 1055 |
SCHEDULE AND
CONVENIENCE INTO CONSIDERATION. IN NO |
| 1056 |
EVENT SHALL THE
MEDIATION CONFERENCE BE LATER THAN 90 |
| 1057 |
DAYS AFTER THE
NOTICE OF PRESUIT MEDIATION WAS FIRST |
| 1058 |
SERVED UNLESS ALL
PARTIES MUTUALLY AGREE OTHERWISE. IN |
| 1059 |
THE EVENT THAT YOU
FAIL TO RESPOND WITHIN 20 DAYS |
| 1060 |
AFTER THE DATE OF
THIS NOTICE, FAIL TO PROVIDE THE |
| 1061 |
MEDIATOR WITH
DATES AND TIMES IN WHICH YOU ARE |
| 1062 |
AVAILABLE FOR THE
MEDIATION CONFERENCE, FAIL TO AGREE |
| 1063 |
TO AT LEAST ONE OF
THE MEDIATORS THAT THE AGGRIEVED |
| 1064 |
PARTY HAS LISTED,
FAIL TO PAY OR PREPAY TO THE |
| 1065 |
MEDIATOR ONE-HALF
OF THE COSTS INVOLVED, OR FAIL TO |
| 1066 |
APPEAR AND
PARTICIPATE AT THE SCHEDULED MEDIATION, THE |
| 1067 |
AGGRIEVED PARTY
WILL BE AUTHORIZED TO PROCEED WITH THE |
| 1068 |
FILING OF A
LAWSUIT AGAINST YOU WITHOUT FURTHER |
| 1069 |
NOTICE. IN ANY
SUBSEQUENT COURT ACTION, THE AGGRIEVED |
| 1070 |
PARTY MAY SEEK AN
AWARD OF REASONABLE ATTORNEY'S FEES |
| 1071 |
AND COSTS INCURRED
IN ATTEMPTING TO OBTAIN MEDIATION. |
| 1072 |
|
| 1073 |
PLEASE GIVE THIS
MATTER YOUR IMMEDIATE ATTENTION. BY |
| 1074 |
LAW, YOUR RESPONSE
MUST BE MAILED BY CERTIFIED, FIRST- |
| 1075 |
CLASS MAIL, RETURN
RECEIPT REQUESTED, TO THE AGGRIEVED |
| 1076 |
PARTY LISTED ABOVE
AT THE ADDRESS SHOWN ON THIS NOTICE |
| 1077 |
AND POSTMARKED NO
MORE THAN 20 DAYS AFTER THE DATE OF |
| 1078 |
THE POSTMARKED
DATE FOR THIS NOTICE OR WITHIN 20 DAYS |
| 1079 |
AFTER THE DATE
UPON WHICH YOU WERE SERVED WITH A COPY |
| 1080 |
OF THIS NOTICE. |
| 1081 |
|
| 1082 |
________________________ |
| 1083 |
SIGNATURE OF
AGGRIEVED PARTY |
| 1084 |
|
| 1085 |
______________________ |
| 1086 |
PRINTED NAME OF
AGGRIEVED PARTY |
| 1087 |
|
| 1088 |
RESPONDING PARTY:
YOUR SIGNATURE BELOW INDICATES YOUR |
| 1089 |
ACCEPTANCE OF THE
AGREEMENT TO MEDIATE. |
| 1090 |
|
| 1091 |
AGREEMENT
TO MEDIATE |
| 1092 |
|
| 1093 |
THE UNDERSIGNED
HEREBY AGREES TO PARTICIPATE IN |
| 1094 |
PRESUIT MEDIATION
AND AGREES TO ATTEND A MEDIATION |
| 1095 |
CONDUCTED BY THE
FOLLOWING MEDIATOR(S) LISTED BELOW AS |
| 1096 |
ACCEPTABLE TO
MEDIATE THIS DISPUTE: |
| 1097 |
|
| 1098 |
(LIST ONE
ACCEPTABLE MEDIATOR FROM THOSE LISTED BY THE |
| 1099 |
AGGRIEVED PARTY.) |
| 1100 |
|
| 1101 |
THE UNDERSIGNED
HEREBY REPRESENTS THAT HE OR SHE CAN |
| 1102 |
ATTEND AND
PARTICIPATE IN THE PRESUIT MEDIATION AT THE |
| 1103 |
FOLLOWING DATES
AND TIMES: |
| 1104 |
|
| 1105 |
(LIST AT LEAST
THREE AVAILABLE DATES AND TIMES WITHIN |
| 1106 |
THE 90-DAY TIME
LIMIT DESCRIBED ABOVE.) |
| 1107 |
|
| 1108 |
I/WE FURTHER AGREE
TO PAY OR PREPAY ONE-HALF OF THE |
| 1109 |
MEDIATOR'S FEES
AND TO FORWARD SUCH ADVANCE DEPOSITS |
| 1110 |
AS THE MEDIATOR
MAY REQUIRE FOR THIS PURPOSE. |
| 1111 |
|
| 1112 |
______________________________ |
| 1113 |
SIGNATURE OF
RESPONDING PARTY #1 |
| 1114 |
______________________________ |
| 1115 |
TELEPHONE CONTACT
INFORMATION |
| 1116 |
______________________________ |
| 1117 |
SIGNATURE AND
TELEPHONE CONTACT INFORMATION OF |
| 1118 |
RESPONDING PARTY
#2, IF APPLICABLE. IF THE PROPERTY IS |
| 1119 |
OWNED BY MORE THAN
ONE PERSON, ALL PARCEL OWNERS OR |
| 1120 |
UNIT OWNERS WHO
ARE SUBJECT OF THE DISPUTE MUST SIGN |
| 1121 |
OR HAVE A PERSON
ACTING UNDER AUTHORITY OF A POWER OF |
| 1122 |
ATTORNEY SIGN. |
| 1123 |
|
| 1124 |
(2)(a) Service
of the notice of presuit mediation shall be |
| 1125 |
effected either by
personal service, as provided in chapter 48, |
| 1126 |
or by certified
mail, return receipt requested, in a letter in |
| 1127 |
substantial
conformity with the form provided in subsection (1), |
| 1128 |
with an additional
copy being sent by regular first-class mail, |
| 1129 |
to the address of
the responding party as it last appears on the |
| 1130 |
books and records
of the association or if not available, then |
| 1131 |
as it last appears
in the official records of the county |
| 1132 |
property appraiser
where the parcel in dispute is located. The |
| 1133 |
responding party
has either 20 days after the postmarked date of |
| 1134 |
the mailing of the
statutory notice or 20 days after the date |
| 1135 |
the responding
party is served with a copy of the notice to |
| 1136 |
serve a written
response to the aggrieved party. The response |
| 1137 |
shall be served by
certified mail, return receipt requested, |
| 1138 |
with an additional
copy being sent by regular first-class mail, |
| 1139 |
to the address
shown on the statutory notice. The date of the |
| 1140 |
postmark on the
envelope for the response shall constitute the |
| 1141 |
date that the
response is served. Once the parties have agreed |
| 1142 |
on a mediator, the
mediator may schedule or reschedule the |
| 1143 |
mediation for a
date and time mutually convenient to the parties |
| 1144 |
within 90 days
after the date of service of the statutory |
| 1145 |
notice. After such
90-day period, the mediator may reschedule |
| 1146 |
the mediation only
upon the mutual written agreement of all the |
| 1147 |
parties. |
| 1148 |
(b) The
parties shall share the costs of presuit mediation |
| 1149 |
equally, including
the fee charged by the mediator, if any, |
| 1150 |
unless the parties
agree otherwise, and the mediator may require |
| 1151 |
advance payment of
his or her reasonable fees and costs. Each |
| 1152 |
party shall be
responsible for their own attorney's fees if a |
| 1153 |
party chooses to
be represented by an attorney at the mediation. |
| 1154 |
(c) The
party responding to the aggrieved party may either |
| 1155 |
provide a notice
of opting out under s. 720.506, and demand |
| 1156 |
arbitration, or
the responding party shall sign the agreement to |
| 1157 |
mediate included
in the notice of presuit mediation and clearly |
| 1158 |
indicate the name
of the mediator who is acceptable from the |
| 1159 |
five names
provided by the aggrieved party, and the responding |
| 1160 |
party must provide
in their response a list of dates and times |
| 1161 |
in which the
responding party is available to participate in the |
| 1162 |
mediation within
90 days after the date the responding party was |
| 1163 |
served, either by
process server or by certified mail, with the |
| 1164 |
statutory notice
of presuit mediation. |
| 1165 |
(d) The
mediator who has been selected and agreed to |
| 1166 |
mediate must
schedule the mediation conference at a mutually |
| 1167 |
convenient time
and place within that 90-day period, but if the |
| 1168 |
responding party
does not provide a list of available dates and |
| 1169 |
times, the
mediator is authorized to schedule a mediation |
| 1170 |
conference without
taking the responding party's schedule and |
| 1171 |
convenience into
consideration. Within 10 days after the |
| 1172 |
designation of the
mediator, the mediator shall coordinate with |
| 1173 |
the parties and
notify the parties in writing of the date, time, |
| 1174 |
and place of the
mediation conference. |
| 1175 |
(e) The
mediation conference must be held on the scheduled |
| 1176 |
date and may be
rescheduled if a rescheduled date is approved by |
| 1177 |
the mediator.
However, in no event shall the mediation be held |
| 1178 |
later than 90 days
after the notice of presuit mediation was |
| 1179 |
first served,
unless all parties mutually agree in writing |
| 1180 |
otherwise. If the
presuit mediation is not completed within the |
| 1181 |
required time
limits, the mediator shall declare an impasse |
| 1182 |
unless the
mediation date is extended by mutual written |
| 1183 |
agreement by all
parties and approved by the mediator. |
| 1184 |
(f) If
the responding party fails to respond within 30 |
| 1185 |
days after the
date of service of the statutory notice of |
| 1186 |
presuit mediation,
fails to agree to at least one of the |
| 1187 |
mediators listed
by the aggrieved party in the notice, fails to |
| 1188 |
pay or prepay to
the mediator one-half of the costs of the |
| 1189 |
mediator, or fails
to appear and participate at the scheduled |
| 1190 |
mediation, the
aggrieved party shall be authorized to proceed |
| 1191 |
with the filing of
a lawsuit without further notice. |
| 1192 |
(g)1. The
failure of any party to respond to the statutory |
| 1193 |
notice of presuit
mediation within 20 days, the failure to agree |
| 1194 |
upon a mediator,
the failure to provide a listing of dates and |
| 1195 |
times in which the
responding party is available to participate |
| 1196 |
in the mediation
within 90 days after the date the responding |
| 1197 |
party was served
with the statutory notice of presuit mediation, |
| 1198 |
the failure to
make payment of fees and costs within the time |
| 1199 |
established by the
mediator, or the failure to appear for a |
| 1200 |
scheduled
mediation session without the approval of the |
| 1201 |
mediator, shall in
each instance constitute a failure or refusal |
| 1202 |
to participate in
the mediation process and shall operate as an |
| 1203 |
impasse in the
presuit mediation by such party, entitling the |
| 1204 |
other party to
file a lawsuit in court and to seek an award of |
| 1205 |
the costs and
attorney's fees associated with the mediation. |
| 1206 |
2. Persons
who fail or refuse to participate in the entire |
| 1207 |
mediation process
may not recover attorney's fees and costs in |
| 1208 |
subsequent
litigation relating to the same dispute between the |
| 1209 |
same parties. If
any presuit mediation session cannot be |
| 1210 |
scheduled and
conducted within 90 days after the offer to |
| 1211 |
participate in
mediation was filed, through no fault of either |
| 1212 |
party, then an
impasse shall be deemed to have occurred unless |
| 1213 |
the parties
mutually agree in writing to extend this deadline. |
| 1214 |
In the event of
such impasse, each party will be responsible for |
| 1215 |
its own costs and
attorney's fees and one-half of any mediator |
| 1216 |
fees and filing
fees, and either party may file a lawsuit in |
| 1217 |
court regarding
the dispute. |
| 1218 |
720.506 Opt-out
of presuit mediation.--A party served with |
| 1219 |
a notice of
presuit mediation under s. 720.505, may opt out of |
| 1220 |
presuit mediation
and demand that the dispute proceed under |
| 1221 |
nonbinding
arbitration in the following manner provided in this |
| 1222 |
section: |
| 1223 |
(1) In
lieu of a response to the notice of presuit |
| 1224 |
mediation as
required under s. 720.505, the responding party may |
| 1225 |
serve upon the
aggrieved party in the same manner as the |
| 1226 |
response to a
notice for presuit mediation under s. 720.505, a |
| 1227 |
notice of opting
out of mediation and demand that the dispute |
| 1228 |
instead proceed to
presuit arbitration under s. 720.507. |
| 1229 |
(2) The
aggrieved party shall be relieved from having to |
| 1230 |
satisfy the
requirements of s. 720.504 as a condition precedent |
| 1231 |
to filing the
demand for presuit arbitration. |
| 1232 |
(3) Except
as otherwise provided in this part, the choice |
| 1233 |
of which presuit
alternative dispute resolution procedure is |
| 1234 |
used shall be at
the election of the aggrieved party who first |
| 1235 |
initiated such
proceeding after complying with the provisions of |
| 1236 |
s. 720.504. |
| 1237 |
720.507 Presuit
arbitration.-- |
| 1238 |
(1) Disputes
between an association and a parcel owner or |
| 1239 |
owners and
disputes between parcel owners are subject to a |
| 1240 |
demand for presuit
arbitration pursuant to s. 720.507, before |
| 1241 |
the dispute may be
filed in court. A party who elects to use the |
| 1242 |
presuit
arbitration procedure under this part shall serve on the |
| 1243 |
responding party a
written notice of presuit arbitration in |
| 1244 |
substantially the
following form: |
| 1245 |
|
| 1246 |
STATUTORY
NOTICE OF PRESUIT ARBITRATION |
| 1247 |
|
| 1248 |
THE ALLEGED
AGGRIEVED PARTY, ____________________, |
| 1249 |
HEREBY DEMANDS
THAT ____________________, AS THE |
| 1250 |
RESPONDING PARTY,
ENGAGE IN MANDATORY PRESUIT |
| 1251 |
ARBITRATION IN
CONNECTION WITH THE FOLLOWING |
| 1252 |
DISPUTE(S) WITH
YOU, WHICH BY STATUTE ARE OF A TYPE |
| 1253 |
THAT ARE SUBJECT
TO PRESUIT ARBITRATION: |
| 1254 |
|
| 1255 |
(LIST SPECIFIC
NATURE OF THE DISPUTE OR DISPUTES TO BE |
| 1256 |
ARBITRATED AND THE
AUTHORITY SUPPORTING A FINDING OF A |
| 1257 |
VIOLATION AS TO
EACH DISPUTE, INCLUDING, BUT NOT |
| 1258 |
LIMITED TO, ALL
APPLICABLE PROVISIONS OF THE GOVERNING |
| 1259 |
DOCUMENTS BELIEVED
TO APPLY TO THE DISPUTE BETWEEN THE |
| 1260 |
PARTIES.) |
| 1261 |
|
| 1262 |
PURSUANT TO PART
IV OF CHAPTER 720, FLORIDA STATUTES, |
| 1263 |
THIS DEMAND TO
RESOLVE THE DISPUTE THROUGH PRESUIT |
| 1264 |
ARBITRATION IS
REQUIRED BEFORE A LAWSUIT CAN BE FILED |
| 1265 |
CONCERNING THE
DISPUTE. PURSUANT TO FLORIDA STATUTES, |
| 1266 |
THE PARTIES ARE
REQUIRED TO ENGAGE IN PRESUIT |
| 1267 |
ARBITRATION WITH A
NEUTRAL THIRD-PARTY ARBITRATOR IN |
| 1268 |
ORDER TO ATTEMPT
TO RESOLVE THIS DISPUTE WITHOUT COURT |
| 1269 |
ACTION, AND THE
AGGRIEVED PARTY DEMANDS THAT YOU |
| 1270 |
PARTICIPATE IN
THIS PROCESS. IF YOU FAIL TO |
| 1271 |
PARTICIPATE IN THE
ARBITRATION PROCESS, A LAWSUIT MAY |
| 1272 |
BE BROUGHT AGAINST
YOU IN COURT WITHOUT FURTHER |
| 1273 |
WARNING. |
| 1274 |
|
| 1275 |
THE PROCESS OF
ARBITRATION INVOLVES A NEUTRAL THIRD |
| 1276 |
PERSON WHO
CONSIDERS THE LAW AND FACTS PRESENTED BY |
| 1277 |
THE PARTIES AND
RENDERS A WRITTEN DECISION CALLED AN |
| 1278 |
"ARBITRATION
AWARD." PURSUANT TO S. 720.507, FLORIDA |
| 1279 |
STATUTES, THE
ARBITRATION AWARD SHALL BE FINAL UNLESS |
| 1280 |
A LAWSUIT IS FILED
IN A COURT OF COMPETENT |
| 1281 |
JURISDICTION FOR
THE JUDICIAL CIRCUIT IN WHICH THE |
| 1282 |
PARCEL(S) GOVERNED
BY THE HOMEOWNERS' ASSOCIATION |
| 1283 |
IS/ARE LOCATED
WITHIN 30 DAYS AFTER THE DATE THAT THE |
| 1284 |
ARBITRATION AWARD. |
| 1285 |
|
| 1286 |
IF A SETTLEMENT
AGREEMENT IS REACHED BEFORE THE |
| 1287 |
ARBITRATION AWARD,
IT SHALL BE REDUCED TO WRITING AND |
| 1288 |
BECOME A BINDING
AND ENFORCEABLE CONTRACT OF THE |
| 1289 |
PARTIES. A
RESOLUTION OF ONE OR MORE DISPUTES IN THIS |
| 1290 |
FASHION AVOIDS THE
NEED TO ARBITRATE THESE ISSUES OR |
| 1291 |
TO LITIGATE THESE
ISSUES IN COURT AND SHALL BE THE |
| 1292 |
SAME AS A
SETTLEMENT AGREEMENT REACHED BETWEEN THE |
| 1293 |
PARTIES UNDER S.
720.505, FLORIDA STATUTES. THE |
| 1294 |
FAILURE OF A PARTY
TO PARTICIPATE IN THE ARBITRATION |
| 1295 |
PROCESS MAY RESULT
IN THE ARBITRATOR ISSUING AN |
| 1296 |
ARBITRATION AWARD
BY DEFAULT IN THE ARBITRATION. IF |
| 1297 |
YOU HAVE FAILED OR
REFUSED TO PARTICIPATE IN THE |
| 1298 |
ENTIRE ARBITRATION
PROCESS, YOU WILL NOT BE ENTITLED |
| 1299 |
TO RECOVER
ATTORNEY'S FEES, EVEN IF YOU PREVAIL IN A |
| 1300 |
SUBSEQUENT COURT
PROCEEDING INVOLVING THE SAME DISPUTE |
| 1301 |
BETWEEN THE SAME
PARTIES. |
| 1302 |
|
| 1303 |
THE AGGRIEVED
PARTY HAS SELECTED AT LEAST FIVE |
| 1304 |
ARBITRATORS WHO
THE AGGRIEVED PARTY BELIEVES TO BE |
| 1305 |
NEUTRAL AND
QUALIFIED TO ARBITRATE THE DISPUTE. YOU |
| 1306 |
HAVE THE RIGHT TO
SELECT ANY ONE OF THE ARBITRATORS. |
| 1307 |
THE FACT THAT ONE
PARTY MAY BE FAMILIAR WITH ONE OR |
| 1308 |
MORE OF THE LISTED
ARBITRATORS DOES NOT MEAN THAT THE |
| 1309 |
ARBITRATOR CANNOT
ACT AS A NEUTRAL AND IMPARTIAL |
| 1310 |
ARBITRATOR. ANY
ARBITRATOR WHO CANNOT ACT IN THIS |
| 1311 |
CAPACITY IS
REQUIRED ETHICALLY TO DECLINE TO ACCEPT |
| 1312 |
ENGAGEMENT. THE
NAMES OF THE FIVE ARBITRATORS THAT THE |
| 1313 |
AGGRIEVED PARTY
HAS CHOSEN FROM WHICH YOU MAY SELECT |
| 1314 |
ONE, AND THEIR
CURRENT ADDRESSES, TELEPHONE NUMBERS, |
| 1315 |
AND HOURLY RATES,
ARE AS FOLLOWS: |
| 1316 |
|
| 1317 |
(LIST THE NAMES,
ADDRESSES, TELEPHONE NUMBERS, AND |
| 1318 |
HOURLY RATES OF AT
LEAST FIVE ARBITRATORS. |
| 1319 |
|
| 1320 |
YOU MAY CONTACT
THE OFFICES OF THESE ARBITRATORS TO |
| 1321 |
CONFIRM THAT THE
LISTED ARBITRATORS WILL BE NEUTRAL |
| 1322 |
AND WILL NOT SHOW
ANY FAVORITISM TOWARD EITHER PARTY. |
| 1323 |
|
| 1324 |
UNLESS OTHERWISE
AGREED TO BY THE PARTIES, PART IV OF |
| 1325 |
CHAPTER 720,
FLORIDA STATUTES, REQUIRES THAT THE |
| 1326 |
PARTIES SHARE THE
COSTS OF PRESUIT ARBITRATION |
| 1327 |
EQUALLY, INCLUDING
THE FEE CHARGED BY THE ARBITRATOR. |
| 1328 |
THE PARTIES SHALL
BE RESPONSIBLE FOR THEIR OWN |
| 1329 |
ATTORNEY'S FEES IF
THEY CHOOSE TO EMPLOY AN ATTORNEY |
| 1330 |
IN CONNECTION WITH
THE ARBITRATION. HOWEVER, USE OF AN |
| 1331 |
ATTORNEY TO
REPRESENT YOU FOR THE ARBITRATION IS NOT |
| 1332 |
REQUIRED. THE
ARBITRATOR SELECTED MAY REQUIRE THE |
| 1333 |
ADVANCE PAYMENT OF
SOME OR ALL OF THE ANTICIPATED |
| 1334 |
FEES. THE
AGGRIEVED PARTY HEREBY AGREES TO PAY OR |
| 1335 |
PREPAY ONE-HALF OF
THE SELECTED ARBITRATOR'S ESTIMATED |
| 1336 |
FEES AND TO
FORWARD THIS AMOUNT OR SUCH OTHER |
| 1337 |
REASONABLE ADVANCE
DEPOSITS AS THE ARBITRATOR WHO IS |
| 1338 |
SELECTED REQUIRES
FOR THIS PURPOSE. ANY FUNDS |
| 1339 |
DEPOSITED WILL BE
RETURNED TO YOU IF THESE FUNDS ARE |
| 1340 |
IN EXCESS OF YOUR
SHARE OF THE FEES INCURRED. |
| 1341 |
|
| 1342 |
PLEASE SIGN THE
AGREEMENT TO ARBITRATE BELOW AND |
| 1343 |
CLEARLY INDICATE
THE NAME OF THE ARBITRATOR WHO IS |
| 1344 |
ACCEPTABLE TO YOU
FROM THE NAMES LISTED BY THE |
| 1345 |
AGGRIEVED PARTY. |
| 1346 |
|
| 1347 |
YOU MUST RESPOND
IN WRITING TO THIS STATUTORY NOTICE |
| 1348 |
WITHIN 20 DAYS
AFTER THE DATE THAT THE NOTICE OF |
| 1349 |
PRESUIT
ARBITRATION WAS EITHER PERSONALLY SERVED ON |
| 1350 |
YOU OR 20 DAYS
AFTER THE POSTMARKED DATE THAT THIS |
| 1351 |
NOTICE OF PRESUIT
ARBITRATION WAS SENT TO YOU BY |
| 1352 |
CERTIFIED MAIL.
YOU MUST ALSO PROVIDE A LIST OF AT |
| 1353 |
LEAST THREE DATES
AND TIMES IN WHICH YOU ARE AVAILABLE |
| 1354 |
TO PARTICIPATE IN
THE ARBITRATION THAT ARE WITHIN 90 |
| 1355 |
DAYS AFTER EITHER
THE DATE YOU WERE PERSONALLY SERVED |
| 1356 |
OR 90 DAYS AFTER
THE POSTMARKED DATE OF THE CERTIFIED |
| 1357 |
MAILING OF THIS
STATUTORY NOTICE OF PRESUIT |
| 1358 |
ARBITRATION. A
COPY OF THIS NOTICE AND YOUR RESPONSE |
| 1359 |
WILL BE PROVIDED
BY THE AGGRIEVED PARTY TO THE |
| 1360 |
ARBITRATOR
SELECTED AND THE ARBITRATOR WILL SCHEDULE A |
| 1361 |
MUTUALLY
CONVENIENT TIME AND PLACE FOR THE ARBITRATION |
| 1362 |
CONFERENCE TO BE
HELD. IF YOU DO NOT PROVIDE A LIST OF |
| 1363 |
AVAILABLE DATES
AND TIMES, THE ARBITRATOR IS |
| 1364 |
AUTHORIZED TO
SCHEDULE AN ARBITRATION CONFERENCE |
| 1365 |
WITHOUT TAKING
YOUR SCHEDULE AND CONVENIENCE INTO |
| 1366 |
CONSIDERATION. THE
ARBITRATION CONFERENCE MUST BE HELD |
| 1367 |
ON THE SCHEDULED
DATE, OR ANY RESCHEUDLED DATE |
| 1368 |
APPROVED BY THE
ARBITRATOR. IN NO EVENT SHALL THE |
| 1369 |
ARBITRATION
CONFERENCE BE LATER THAN 90 DAYS AFTER |
| 1370 |
NOTICE OF THE
PRESUIT ARBITRATION WAS FIRST SERVED, |
| 1371 |
UNLESS ALL PARTIES
MUTUALLY AGREE IN WRITING |
| 1372 |
OTHERWISE. IF THE
ARBITRATION IS NOT COMPLETED WITHIN |
| 1373 |
THE REQUIRED TIME
LIMITS, THE ARBITRATOR SHALL ISSUE |
| 1374 |
AN ARBITRATION
AWARD, UNLESS THE HEARING IS EXTENDED |
| 1375 |
BY MUTUAL WRITTEN
AGREEMENT OF THE PARTIES AND |
| 1376 |
APPROVED BY THE
ARBITRATOR. IN THE EVENT THAT YOU FAIL |
| 1377 |
TO RESPOND WITHIN
20 DAYS AFTER THE DATE YOU WERE |
| 1378 |
SERVED WITH A COPY
OF THIS NOTICE, FAIL TO PROVIDE THE |
| 1379 |
ARBITRATOR WITH
DATES AND TIMES IN WHICH YOU ARE |
| 1380 |
AVAILABLE FOR THE
ARBITRATION CONFERENCE, FAIL TO |
| 1381 |
AGREE EITHER TO
ONE OF THE ARBITRATORS THAT THE |
| 1382 |
AGGRIEVED PARTY
HAS NAMED, FAIL TO PAY OR PREPAY TO |
| 1383 |
THE ARBITRATOR
ONE-HALF OF THE COSTS INVOLVED AS |
| 1384 |
REQUIRED, OR FAIL
TO APPEAR AND PARTICIPATE AT THE |
| 1385 |
SCHEDULED
ARBITRATION CONFERENCE, THE AGGRIEVED PARTY |
| 1386 |
MAY REQUEST THE
ARBITRATOR TO ISSUE AN ARBITRATION |
| 1387 |
AWARD. IN THE
SUBSEQUENT COURT ACTION, THE AGGRIEVED |
| 1388 |
PARTY SHALL BE
ENTITLED TO RECOVER AN AWARD OF |
| 1389 |
REASONABLE
ATTORNEY'S FEES AND COSTS, INCLUDING ANY |
| 1390 |
FEES PAID TO THE
ARBITRATOR, INCURRED IN OBTAINING AN |
| 1391 |
ARBITRATION AWARD
PURSUANT TO S. 720.507, FLORIDA |
| 1392 |
STATUTES. |
| 1393 |
|
| 1394 |
PLEASE GIVE THIS
MATTER YOUR IMMEDIATE ATTENTION. BY |
| 1395 |
LAW, YOUR RESPONSE
MUST BE POSTMARKED AND MAILED BY |
| 1396 |
CERTIFIED,
FIRST-CLASS MAIL, RETURN RECEIPT REQUESTED, |
| 1397 |
TO THE ADDRESS
SHOWN ON THIS NOTICE OF PRESUIT |
| 1398 |
ARBITRATION. |
| 1399 |
|
| 1400 |
_________________________ |
| 1401 |
Signature of
aggrieved party |
| 1402 |
|
| 1403 |
______________________ |
| 1404 |
PRINTED NAME OF
AGGRIEVED PARTY |
| 1405 |
|
| 1406 |
RESPONDING PARTY:
YOUR SIGNATURE BELOW INDICATES YOUR |
| 1407 |
ACCEPTANCE OF THE
AGREEMENT TO ARTITRATE. |
| 1408 |
|
| 1409 |
AGREEMENT
TO ARBITRATE |
| 1410 |
|
| 1411 |
THE UNDERSIGNED
HEREBY AGREES TO PARTICIPATE IN |
| 1412 |
PRESUIT
ARBITRATION AND AGREES TO ATTEND AN |
| 1413 |
ARBITRATION
CONDUCTED BY THE FOLLOWING ARBITRATOR |
| 1414 |
LISTED BELOW AS
SOMEONE WHO WOULD BE ACCEPTABLE TO |
| 1415 |
ARBITRATE THIS
DISPUTE: |
| 1416 |
|
| 1417 |
(IN YOUR RESPONSE
EITHER SELECT THE NAME OF ONE |
| 1418 |
ARBITRATOR THAT IS
ACCEPTABLE TO YOU FROM THOSE |
| 1419 |
ARBITRATORS LISTED
BY THE AGGRIEVED PARTY.) |
| 1420 |
|
| 1421 |
THE UNDERSIGNED
HEREBY REPRESENTS THAT HE OR SHE IS |
| 1422 |
AVAILABLE AND ABLE
TO ATTEND AND PARTICIPATE IN THE |
| 1423 |
PRESUIT
ARBITRATION CONFERENCE AT THE FOLLOWING DATES |
| 1424 |
AND TIMES: |
| 1425 |
|
| 1426 |
(LIST ALL
AVAILABLE DATES AND TIMES, OF WHICH THERE |
| 1427 |
MUST BE AT LEAST
THREE, WITHIN 90 DAYS AFTER THE DATE |
| 1428 |
ON WHICH YOU WERE
SERVED, EITHER BY PROCESS SERVER OR |
| 1429 |
BY CERTIFIED MAIL,
WITH THE NOTICE OF PRESUIT |
| 1430 |
ARBITRATION.) |
| 1431 |
|
| 1432 |
I/WE FURTHER AGREE
TO PAY OR PREPAY ONE-HALF OF THE |
| 1433 |
ARBITRATOR'S FEES
AND TO FORWARD SUCH ADVANCE DEPOSITS |
| 1434 |
AS THE ARBITRATOR
MAY REQUIRE FOR THIS PURPOSE. |
| 1435 |
|
| 1436 |
______________________________ |
| 1437 |
SIGNATURE OF
RESPONDING PARTY #1 |
| 1438 |
______________________________ |
| 1439 |
TELEPHONE CONTACT
INFORMATION |
| 1440 |
______________________________ |
| 1441 |
SIGNATURE AND
TELEPHONE CONTACT INFORMATION OF |
| 1442 |
RESPONDING PARTY
#2, IF APPLICABLE. IF THE PROPERTY IS |
| 1443 |
OWNED BY MORE THAN
ONE PERSON, ALL OWNERS MUST SIGN, |
| 1444 |
OR A PERSON MAY
SIGN WHO IS ACTING UNDER AUTHORITY OF |
| 1445 |
A VALID POWER OF
ATTORNEY GRANTED BY AN OWNER. |
| 1446 |
|
| 1447 |
(2)(a) Service
of the statutory notice of presuit |
| 1448 |
arbitration shall
be effected either by personal service, as |
| 1449 |
provided in
chapter 48, or by certified mail, return receipt |
| 1450 |
requested, in a
letter in substantial conformity with the form |
| 1451 |
provided in
subsection (1), with an additional copy being sent |
| 1452 |
by regular
first-class mail, to the address of the responding |
| 1453 |
party as it last
appears on the books and records of the |
| 1454 |
association, or if
not available, the last address as it appears |
| 1455 |
on the official
records of the county property appraiser for the |
| 1456 |
county in which
the property is situated that is subject to the |
| 1457 |
association
documents. The responding party has 20 days after |
| 1458 |
the postmarked
date of the certified mailing of the statutory |
| 1459 |
notice of presuit
arbitration or 20 days after the date the |
| 1460 |
responding party
is personally served with the statutory notice |
| 1461 |
of presuit
arbitration by to serve a written response to the |
| 1462 |
aggrieved party.
The response shall be served by certified mail, |
| 1463 |
return receipt
requested, with an additional copy being sent by |
| 1464 |
regular
first-class mail, to the address shown on the statutory |
| 1465 |
notice of presuit
arbitration. The postmarked date on the |
| 1466 |
envelope of the
response shall constitute the date the response |
| 1467 |
was served. |
| 1468 |
(b) The
parties shall share the costs of presuit |
| 1469 |
arbitration
equally, including the fee charged by the |
| 1470 |
arbitrator, if
any, unless the parties agree otherwise, and the |
| 1471 |
arbitrator may
require advance payment of his or her reasonable |
| 1472 |
fees and costs.
Each party shall be responsible for all of their |
| 1473 |
own attorney's
fees if a party chooses to be represented by an |
| 1474 |
attorney for the
arbitration proceedings. |
| 1475 |
(c)1. The
party responding to the aggrieved party must |
| 1476 |
sign the agreement
to arbitrate included in the notice of |
| 1477 |
presuit
arbitration and clearly indicate the name of the |
| 1478 |
arbitrator who is
acceptable of those arbitrators listed by the |
| 1479 |
aggrieved party.
The responding party must provide a list of at |
| 1480 |
least three dates
and times in which the responding party is |
| 1481 |
available to
participate in the arbitration conference within 90 |
| 1482 |
days after the
date the responding party was served with the |
| 1483 |
statutory notice
of presuit arbitration. |
| 1484 |
2. The
arbitrator must schedule the arbitration conference |
| 1485 |
at a mutually
convenient time and place, but if the responding |
| 1486 |
party does not
provide a list of available dates and times, the |
| 1487 |
arbitrator is
authorized to schedule an arbitration conference |
| 1488 |
without taking the
responding party's schedule and convenience |
| 1489 |
into
consideration. Within 10 days after the designation of the |
| 1490 |
arbitrator, the
arbitrator shall notify the parties in writing |
| 1491 |
of the date, time,
and place of the arbitration conference. |
| 1492 |
3. The
arbitration conference must be held on the |
| 1493 |
scheduled date and
may be rescheduled if approved by the |
| 1494 |
arbitrator.
However, in no event shall the arbitration hearing |
| 1495 |
be later than 90
days after the notice of presuit arbitration |
| 1496 |
was first served,
unless all parties mutually agree in writing |
| 1497 |
otherwise. If the
arbitration hearing is not completed within |
| 1498 |
the required time
limits, the arbitrator may issue an |
| 1499 |
arbitration award
unless the time for the hearing is extended as |
| 1500 |
provided herein.
If the responding party fails to respond within |
| 1501 |
20 days after the
date of statutory notice of presuit |
| 1502 |
arbitration, fails
to agree to at least one of the arbitrators |
| 1503 |
that have been
listed by the aggrieved party in the presuit |
| 1504 |
notice of
arbitration, fails to pay or prepay to the arbitrator |
| 1505 |
one-half of the
costs involved, or fails to appear and |
| 1506 |
participate at the
scheduled arbitration, the aggrieved party is |
| 1507 |
authorized to
proceed with a request that the arbitrator issue |
| 1508 |
an arbitration
award. |
| 1509 |
(d)1. The
failure of any party to respond to the statutory |
| 1510 |
notice of presuit
arbitration within 20 days, the failure to |
| 1511 |
either select one
of the five arbitrators listed by the |
| 1512 |
aggrieved party,
the failure to provide a listing of dates and |
| 1513 |
times in which the
responding party is available to participate |
| 1514 |
in the arbitration
conference within 90 days after the date of |
| 1515 |
the responding
party being served with the statutory notice of |
| 1516 |
presuit
arbitration, the failure to make payment of fees and |
| 1517 |
costs as required
within the time established by the arbitrator, |
| 1518 |
or the failure to
appear for an arbitration conference without |
| 1519 |
the approval of
the arbitrator, shall entitle the other party to |
| 1520 |
request the
arbitrator to enter an arbitration award including |
| 1521 |
an award of the
reasonable costs and attorney's fees associated |
| 1522 |
with the
arbitration. |
| 1523 |
2. Persons
who fail or refuse to participate in the entire |
| 1524 |
arbitration
process may not recover attorney's fees and costs in |
| 1525 |
any subsequent
litigation proceeding relating to the same |
| 1526 |
dispute involving
the same parties. |
| 1527 |
(3)(a) In
an arbitration proceeding, the arbitrator may |
| 1528 |
not consider any
unsuccessful mediation of the dispute. |
| 1529 |
(b) An
arbitrator in a proceeding initiated pursuant to |
| 1530 |
the provisions of
this part may shorten the time for discovery |
| 1531 |
or otherwise limit
discovery in a manner consistent with the |
| 1532 |
policy goals of
this part to reduce the time and expense of |
| 1533 |
litigating
homeowners' association disputes initiated pursuant |
| 1534 |
to this chapter
and promoting an expeditious alternative dispute |
| 1535 |
resolution
procedure for parties to such actions. |
| 1536 |
(4) At
the request of any party to the arbitration, the |
| 1537 |
arbitrator may
issue subpoenas for the attendance of witnesses |
| 1538 |
and the production
of books, records, documents, and other |
| 1539 |
evidence, and any
party on whose behalf a subpoena is issued may |
| 1540 |
apply to the court
for orders compelling such attendance and |
| 1541 |
production.
Subpoenas shall be served and are enforceable in the |
| 1542 |
manner provided by
the Florida Rules of Civil Procedure. |
| 1543 |
Discovery may, at
the discretion of the arbitrator, be permitted |
| 1544 |
in the manner
provided by the Florida Rules of Civil Procedure. |
| 1545 |
(5) The
final arbitration award shall be sent to the |
| 1546 |
parties in writing
no later than 30 days after the date of the |
| 1547 |
arbitration
hearing, absent extraordinary circumstances |
| 1548 |
necessitating a
later filing the reasons for which shall be |
| 1549 |
stated in the
final award if filed more than 30 days after the |
| 1550 |
date of the final
session of the arbitration conference. An |
| 1551 |
agreed arbitration
award is final in those disputes in which the |
| 1552 |
parties have
mutually agreed to be bound. An arbitration award |
| 1553 |
decided by the
arbitrator is final unless a lawsuit seeking a |
| 1554 |
trial de novo is
filed in a court of competent jurisdiction |
| 1555 |
within 30 days
after the date of the arbitration award. The |
| 1556 |
right to file for
a trial de novo entitles the parties to file a |
| 1557 |
complaint in the
appropriate trial court for a judicial |
| 1558 |
resolution of the
dispute. The prevailing party in an |
| 1559 |
arbitration
proceeding shall be awarded the costs of the |
| 1560 |
arbitration and
reasonable attorney's fees in an amount |
| 1561 |
determined by the
arbitrator. |
| 1562 |
(6) The
party filing a motion for a trial de novo shall be |
| 1563 |
assessed the other
party's arbitration costs, court costs, and |
| 1564 |
other reasonable
costs, including attorney's fees, investigation |
| 1565 |
expenses, and
expenses for expert or other testimony or evidence |
| 1566 |
incurred after the
arbitration hearing if the judgment upon the |
| 1567 |
trial de novo is
not more favorable than the final arbitration |
| 1568 |
award. |
| 1569 |
720.508 Rules
of procedure.-- |
| 1570 |
(1) Presuit
mediation and presuit arbitration proceedings |
| 1571 |
under this part
must be conducted in accordance with the |
| 1572 |
applicable Florida
Rules of Civil Procedure and rules governing |
| 1573 |
mediations and
arbitrations under chapter 44, except this part |
| 1574 |
shall be
controlling to the extent of any conflict with other |
| 1575 |
applicable rules
or statutes. The arbitrator can shorten any |
| 1576 |
applicable time
period and otherwise limit the scope of |
| 1577 |
discovery on
request of the parties or within the discretion of |
| 1578 |
the arbitrator
exercised consistent with the purpose and |
| 1579 |
objective of
reducing the expense and expeditiously concluding |
| 1580 |
proceedings under
this part. |
| 1581 |
(2) Presuit
mediation proceedings under s. 720.505 are |
| 1582 |
privileged and
confidential to the same extent as court-ordered |
| 1583 |
mediation under
chapter 44. An arbitrator or judge may not |
| 1584 |
consider any
information or evidence arising from the presuit |
| 1585 |
mediation
proceeding except in a proceeding to impose sanctions |
| 1586 |
for failure to
attend a presuit mediation session or to enforce |
| 1587 |
a mediated
settlement agreement. |
| 1588 |
(3) Persons
who are not parties to the dispute may not |
| 1589 |
attend the presuit
mediation conference without consent of all |
| 1590 |
parties, with the
exception of counsel for the parties and a |
| 1591 |
corporate
representative designated by the association. Presuit |
| 1592 |
mediations under
this part are not a board meeting for purposes |
| 1593 |
of notice and
participation set forth in this chapter. |
| 1594 |
(4) Attendance
at a mediation conference by the board of |
| 1595 |
directors shall
not require notice or participation by nonboard |
| 1596 |
members as
otherwise required by this chapter for meetings of |
| 1597 |
the board. |
| 1598 |
(5) Settlement
agreements resulting from a mediation or |
| 1599 |
arbitration
proceeding do not have precedential value in |
| 1600 |
proceedings
involving parties other than those participating in |
| 1601 |
the mediation or
arbitration. |
| 1602 |
(6) Arbitration
awards by an arbitrator shall have |
| 1603 |
precedential value
in other proceedings involving the same |
| 1604 |
association or
with respect to the same parcel owner. |
| 1605 |
720.509 Mediators
and arbitrators; qualifications and |
| 1606 |
registration.--A
person is authorized to conduct mediation or |
| 1607 |
arbitration under
this part if he or she has been certified as a |
| 1608 |
circuit court
civil mediator pursuant to the requirements |
| 1609 |
adopted pursuant
to s. 44.106, is a member in good standing with |
| 1610 |
The Florida Bar,
and otherwise meets all other requirements |
| 1611 |
imposed by chapter
44. |
| 1612 |
720.510 Enforcement
of mediation agreement or arbitration |
| 1613 |
award.-- |
| 1614 |
(1) A
mediation settlement may be enforced through the |
| 1615 |
county or circuit
court, as applicable, and any costs and |
| 1616 |
attorney's fees
incurred in the enforcement of a settlement |
| 1617 |
agreement reached
at mediation shall be awarded to the |
| 1618 |
prevailing party
in any enforcement action. |
| 1619 |
(2) Any
party to an arbitration proceeding may enforce an |
| 1620 |
arbitration award
by filing a petition in a court of competent |
| 1621 |
jurisdiction in
which the homeowners' association is located. |
| 1622 |
The prevailing
party in such proceeding shall be awarded |
| 1623 |
reasonable
attorney's fees and costs incurred in such |
| 1624 |
proceeding. |
| 1625 |
(3) If
a complaint is filed seeking a trial de novo, the |
| 1626 |
arbitration award
shall be stayed and a petition to enforce the |
| 1627 |
award may not be
granted. Such award, however, shall be |
| 1628 |
admissible in the
court proceeding seeking a trial de novo. |
| 1629 |
Section
13. (1) Notwithstanding any other provisions
of |
| 1630 |
law, any three or
more condominium associations may form a |
| 1631 |
self-insurance
fund for the purposes of pooling and spreading |
| 1632 |
the liabilities of
its participant associations arising from the |
| 1633 |
deductible
provisions of the commercial lines residential |
| 1634 |
property insurance
policies of the participants applicable to |
| 1635 |
hurricane losses,
if: |
| 1636 |
(a) Such
fund is a not-for-profit corporation pursuant to |
| 1637 |
chapter 617,
Florida Statutes. |
| 1638 |
(b) The
fund is implemented through contracts among the |
| 1639 |
participating
associations, or through contracts between the |
| 1640 |
participating
associations and another legal entity established |
| 1641 |
for and limited to
establishing and implementing the program. |
| 1642 |
(c) The
liability of the fund for claims is limited to |
| 1643 |
funds available
for the payment of claims. |
| 1644 |
(d) The
contract provided to a participating |
| 1645 |
association
clearly discloses the obligations of the |
| 1646 |
participants in
the fund and the obligations of the fund, |
| 1647 |
including the
limited liability of the fund as defined in |
| 1648 |
paragraph (c). The
contract must specify a reasonable date |
| 1649 |
for the payment of
claims which provides the fund with |
| 1650 |
adequate time to
verify and account for all claims for a |
| 1651 |
given year so that
claims payments can be properly |
| 1652 |
calculated after
consideration of the funds available. Before |
| 1653 |
execution of the
contract, the association or its |
| 1654 |
representative
must be provided a separate disclosure form |
| 1655 |
specifying the
limited liability of the fund and all |
| 1656 |
administrative
fees and estimated expenses, and provide |
| 1657 |
examples of the
manner in which available funds will be |
| 1658 |
allocated among
claimants if claims exceed the funds |
| 1659 |
available for the
payment thereof. Such disclosure must be |
| 1660 |
signed by a
representative of the participating association |
| 1661 |
before or at the
time of execution of the contract. |
| 1662 |
(e) The
contributions charged for participating in the |
| 1663 |
fund are
established by the fund and calculated as a percentage |
| 1664 |
of the
participant's hurricane deductible dollar amount. The |
| 1665 |
fund may determine
the method and timing of payment of |
| 1666 |
contributions. |
| 1667 |
(f) All
members of the governing board of the fund must |
| 1668 |
be participating
associations in the fund and the governing |
| 1669 |
body shall have
all powers necessary to establish and |
| 1670 |
administer the
fund as authorized by the participants in the |
| 1671 |
fund. All
decisions of the fund shall be based upon a vote of |
| 1672 |
the majority of
the board. The board may contract with |
| 1673 |
individual
professionals to administer the fund. |
| 1674 |
(g) The
fund uses and contracts with knowledgeable |
| 1675 |
persons or
business entities to administer and service the fund, |
| 1676 |
including
marketing, policy, contract administration, claims |
| 1677 |
administration,
accounting services, and legal services. |
| 1678 |
(h) The
fund uses a properly licensed general lines |
| 1679 |
insurance agent
who is a Florida resident for solicitation |
| 1680 |
of participation
in the fund and does not prevent, |
| 1681 |
impede, or
restrict any applicant or participant in |
| 1682 |
the fund from
maintaining or selecting an agent of |
| 1683 |
choice. The fund
may not favor one or more agents over |
| 1684 |
another agent. The
organizational documents, the contract |
| 1685 |
and notices of
disclosure must be filed with the Office of |
| 1686 |
Insurance
Regulation not less than 45 days prior to |
| 1687 |
solicitation by
the fund. |
| 1688 |
(i) The
fund is audited by an independent auditor no less |
| 1689 |
frequently than
every 2 years. |
| 1690 |
(2) The
fund may accumulate funds or periodically |
| 1691 |
distribute excess
funds to its participants on a pro rata |
| 1692 |
basis, reflecting
loss experience of individual participants |
| 1693 |
and proportionate
contributions paid by participants. |
| 1694 |
(3) Participants
in the fund must have a deductible |
| 1695 |
no greater than as
provided in s. 627.701(8), Florida |
| 1696 |
Statutes.
Self-insurance funds or pools established |
| 1697 |
pursuant to this
section are not subject to licensure |
| 1698 |
requirements or
regulation pursuant to the Florida |
| 1699 |
Insurance Code
except for part IX of chapter 626, |
| 1700 |
Florida Statutes,
which may be enforced by the |
| 1701 |
Office of
Insurance Regulation or the Department |
| 1702 |
of Financial
Services, as applicable, and are not |
| 1703 |
subject to any
fees, taxes, or assessments related to |
| 1704 |
the writing or
transaction of insurance in this state. |
| 1705 |
Section
14. Except as otherwise expressly provided in this |
| 1706 |
act, this act shall take effect July
1, 2008. |