| 1 |
A bill to be entitled |
| 2 |
An act relating to condominiums;
amending s. 718.111, |
| 3 |
F.S.; removing provision providing for
windstorm insurance |
| 4 |
for condominium associations; requiring
official records |
| 5 |
of the association to be maintained for
at least 5 years |
| 6 |
and to be made available at certain
locations; providing |
| 7 |
civil and criminal sanctions, including
personally against |
| 8 |
any officer, director, or manager who
knowingly or |
| 9 |
intentionally defaces, destroys, or
fails to create or |
| 10 |
maintain accounting records; prohibiting
accessibility to |
| 11 |
certain personal identifying information
of unit owners by |
| 12 |
fellow unit owners; restricting a
condominium association |
| 13 |
from waiving a financial report for more
than 2 years; |
| 14 |
amending s. 718.112, F.S.; prohibiting
votes allocated to |
| 15 |
units owned by the association from
being cast by proxy, |
| 16 |
ballot or otherwise, for any purpose;
requiring the board |
| 17 |
to address certain agenda items proposed
by a petition of |
| 18 |
a specified percent of the unit owners;
providing |
| 19 |
requirements for the location of annual
unit owner |
| 20 |
meetings; revising notice procedures;
providing for the |
| 21 |
securing of ballots; revising procedures
relating to the |
| 22 |
filling of a vacancy on the board;
authorizing persons |
| 23 |
acting under a specific power of
attorney to vote on |
| 24 |
behalf of a unit owner; removing a
provision allowing an |
| 25 |
association to provide for different
voting and election |
| 26 |
procedures in its bylaws; requiring the
association to |
| 27 |
prepare an annual budget of estimated
revenues and |
| 28 |
expenses; requiring certain ballot
statements to contain |
| 29 |
certain statements; requiring a vote to
provide for no |
| 30 |
reserves or a percentage of reserves to
be made at annual |
| 31 |
meetings; authorizing the association to
use reserve funds |
| 32 |
for nonscheduled purposes under certain
conditions; |
| 33 |
amending s. 718.113, F.S.; requiring the
board to have the |
| 34 |
condominium buildings periodically
inspected for |
| 35 |
structural and electrical soundness by a
professional |
| 36 |
engineer or professional architect
registered in the |
| 37 |
state; requiring the inspector to
provide a report to the |
| 38 |
association and unit owners; prohibiting
the board from |
| 39 |
adopting rules or regulations impairing
certain rights or |
| 40 |
prohibiting reasonable accommodation for
religious |
| 41 |
practices; creating s. 718.1224, F.S.;
prohibiting certain |
| 42 |
lawsuits arising from unit owners'
appearances and |
| 43 |
presentations before a governmental
entity; providing a |
| 44 |
definition; providing for award of
damages and attorney |
| 45 |
fees; prohibiting associations from
expending association |
| 46 |
funds in prosecuting such a suit against
a unit owner; |
| 47 |
providing an effective date. |
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|
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Be It Enacted by the Legislature of the
State of Florida: |
| 50 |
|
| 51 |
Section 1. Paragraph
(a) of subsection (11), paragraphs |
| 52 |
(a), (b), and (c) of subsection (12),
and subsection (13) of |
| 53 |
section 718.111, Florida Statutes, are
amended to read: |
| 54 |
718.111 The
association.-- |
| 55 |
(11) INSURANCE.--In
order to protect the safety, health, |
| 56 |
and welfare of the people of the State
of Florida and to ensure |
| 57 |
consistency in the provision of
insurance coverage to |
| 58 |
condominiums and their unit owners,
paragraphs (a), (b), and (c) |
| 59 |
are deemed to apply to every residential
condominium in the |
| 60 |
state, regardless of the date of its
declaration of condominium. |
| 61 |
It is the intent of the Legislature to
encourage lower or stable |
| 62 |
insurance premiums for associations
described in this section. |
| 63 |
Therefore, the Legislature requires a
report to be prepared by |
| 64 |
the Office of Insurance Regulation of
the Department of |
| 65 |
Financial Services for publication 18
months from the effective |
| 66 |
date of this act, evaluating premium
increases or decreases for |
| 67 |
associations, unit owner premium
increases or decreases, |
| 68 |
recommended changes to better define
common areas, or any other |
| 69 |
information the Office of Insurance
Regulation deems |
| 70 |
appropriate. |
| 71 |
(a)1. A
unit-owner controlled association operating a |
| 72 |
residential condominium shall use its
best efforts to obtain and |
| 73 |
maintain adequate insurance to protect
the association, the |
| 74 |
association property, the common
elements, and the condominium |
| 75 |
property required to be insured by the
association pursuant to |
| 76 |
paragraph (b). If the association is
developer controlled, the |
| 77 |
association shall exercise due diligence
to obtain and maintain |
| 78 |
such insurance. Failure to obtain and
maintain adequate |
| 79 |
insurance during any period of developer
control shall |
| 80 |
constitute a breach of fiduciary
responsibility by the |
| 81 |
developer-appointed members of the board
of directors of the |
| 82 |
association, unless said members can
show that despite such |
| 83 |
failure, they have exercised due
diligence. The declaration of |
| 84 |
condominium as originally recorded, or
amended pursuant to |
| 85 |
procedures provided therein, may require
that condominium |
| 86 |
property consisting of freestanding
buildings where there is no |
| 87 |
more than one building in or on such
unit need not be insured by |
| 88 |
the association if the declaration
requires the unit owner to |
| 89 |
obtain adequate insurance for the
condominium property. An |
| 90 |
association may also obtain and maintain
liability insurance for |
| 91 |
directors and officers, insurance for
the benefit of association |
| 92 |
employees, and flood insurance for
common elements, association |
| 93 |
property, and units. Adequate insurance,
regardless of any |
| 94 |
requirement in the declaration of
condominium for coverage by |
| 95 |
the association for "full insurable
value," "replacement cost," |
| 96 |
or the like, may include reasonable
deductibles as determined by |
| 97 |
the board based upon available funds or
predetermined assessment |
| 98 |
authority at the time that the insurance
is obtained. |
| 99 |
1. Windstorm
insurance coverage for a group of no fewer |
| 100 |
than three
communities created and operating under this chapter, |
| 101 |
chapter 719, chapter
720, or chapter 721 may be obtained and |
| 102 |
maintained for the
communities if the insurance coverage is |
| 103 |
sufficient to cover
an amount equal to the probable maximum loss |
| 104 |
for the communities
for a 250-year windstorm event. Such |
| 105 |
probable maximum loss
must be determined through the use of a |
| 106 |
competent model that
has been accepted by the Florida Commission |
| 107 |
on Hurricane Loss
Projection Methodology. Such insurance |
| 108 |
coverage is deemed
adequate windstorm insurance for the purposes |
| 109 |
of this section. |
| 110 |
2. An
association or group of associations may self-insure |
| 111 |
against claims against the association,
the association |
| 112 |
property, and the condominium property
required to be insured by |
| 113 |
an association, upon compliance with the
applicable provisions |
| 114 |
of ss. 624.460-624.488, which shall be
considered adequate |
| 115 |
insurance for the purposes of this
section. A copy of each |
| 116 |
policy of insurance in effect shall be
made available for |
| 117 |
inspection by unit owners at reasonable
times. |
| 118 |
(12) OFFICIAL
RECORDS.-- |
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(a) From
the inception of the association, the association |
| 120 |
shall maintain each of the following
items, when applicable, |
| 121 |
which shall constitute the official
records of the association: |
| 122 |
1. A
copy of the plans, permits, warranties, and other |
| 123 |
items provided by the developer pursuant
to s. 718.301(4). |
| 124 |
2. A
photocopy of the recorded declaration of condominium |
| 125 |
of each condominium operated by the
association and of each |
| 126 |
amendment to each declaration. |
| 127 |
3. A
photocopy of the recorded bylaws of the association |
| 128 |
and of each amendment to the bylaws. |
| 129 |
4. A
certified copy of the articles of incorporation of |
| 130 |
the association, or other documents
creating the association, |
| 131 |
and of each amendment thereto. |
| 132 |
5. A
copy of the current rules of the association. |
| 133 |
6. A
book or books which contain the minutes of all |
| 134 |
meetings of the association, of the
board of administration |
| 135 |
directors, and of unit owners,
which minutes shall be retained |
| 136 |
for a period of not less than 7 years. |
| 137 |
7. A
current roster of all unit owners and their mailing |
| 138 |
addresses, unit identifications, voting
certifications, and, if |
| 139 |
known, telephone numbers. The
association shall also maintain |
| 140 |
the electronic mailing addresses and the
numbers designated by |
| 141 |
unit owners for receiving notice sent by
electronic transmission |
| 142 |
of those unit owners consenting to
receive notice by electronic |
| 143 |
transmission. The electronic mailing
addresses and numbers |
| 144 |
provided by unit owners to receive
notice by electronic |
| 145 |
transmission shall be removed from
association records when |
| 146 |
consent to receive notice by electronic
transmission is revoked. |
| 147 |
However, the association is not liable
for an erroneous |
| 148 |
disclosure of the electronic mail
address or the number for |
| 149 |
receiving electronic transmission of
notices. |
| 150 |
8. All
current insurance policies of the association and |
| 151 |
condominiums operated by the
association. |
| 152 |
9. A
current copy of any management agreement, lease, or |
| 153 |
other contract to which the association
is a party or under |
| 154 |
which the association or the unit owners
have an obligation or |
| 155 |
responsibility. |
| 156 |
10. Bills
of sale or transfer for all property owned by |
| 157 |
the association. |
| 158 |
11. Accounting
records for the association and separate |
| 159 |
accounting records for each condominium
which the association |
| 160 |
operates. All accounting records shall
be maintained for a |
| 161 |
period of not less than 7 years. Any
officer, director, or |
| 162 |
manager who knowingly
or intentionally defaces, destroys, or |
| 163 |
fails to create or
maintain accounting records is personally |
| 164 |
subject to a civil
penalty pursuant to s. 718.501(1)(d) and |
| 165 |
appropriate
criminal sanctions. The accounting records shall |
| 166 |
include, but are not limited to: |
| 167 |
a. Accurate,
itemized, and detailed records of all |
| 168 |
receipts and expenditures. |
| 169 |
b. A
current account and a monthly, bimonthly, or |
| 170 |
quarterly statement of the account for
each unit designating the |
| 171 |
name of the unit owner, the due date and
amount of each |
| 172 |
assessment, the amount paid upon the
account, and the balance |
| 173 |
due. |
| 174 |
c. All
audits, reviews, accounting statements, and |
| 175 |
financial reports of the association or
condominium. |
| 176 |
d. All
contracts for work to be performed. Bids for work |
| 177 |
to be performed shall also be considered
official records and |
| 178 |
shall be maintained for a period of 1
year. |
| 179 |
12. Ballots,
sign-in sheets, voting proxies, and all other |
| 180 |
papers relating to voting by unit
owners, which shall be |
| 181 |
maintained for a period of 1 year from
the date of the election, |
| 182 |
vote, or meeting to which the document
relates. |
| 183 |
13. All
rental records, when the association is acting as |
| 184 |
agent for the rental of condominium
units. |
| 185 |
14. A
copy of the current question and answer sheet as |
| 186 |
described by s. 718.504. |
| 187 |
15. All
other records of the association not specifically |
| 188 |
included in the foregoing which are
related to the operation of |
| 189 |
the association. |
| 190 |
(b) The
official records of the association shall be |
| 191 |
maintained within the state for
at least 5 years. The records of |
| 192 |
the association shall be made available
to a unit owner, at a |
| 193 |
location within the
county in which the condominium property is |
| 194 |
located,
within 5 working days after receipt of written request |
| 195 |
by the board or its designee. This
paragraph may be complied |
| 196 |
with by having a copy of the official
records of the association |
| 197 |
available for inspection or copying on
the condominium property |
| 198 |
or association property. |
| 199 |
(c) The
official records of the association are open to |
| 200 |
inspection by any association member or
the authorized |
| 201 |
representative of such member at all
reasonable times. The right |
| 202 |
to inspect the records includes the
right to make or obtain |
| 203 |
copies, at the reasonable expense, if
any, of the association |
| 204 |
member. The association may adopt
reasonable rules regarding the |
| 205 |
frequency, time, location, notice, and
manner of record |
| 206 |
inspections and copying. The failure of
an association to |
| 207 |
provide the records within 10 working
days after receipt of a |
| 208 |
written request shall create a
rebuttable presumption that the |
| 209 |
association willfully failed to comply
with this paragraph. A |
| 210 |
unit owner who is denied access to
official records is entitled |
| 211 |
to the actual damages or minimum damages
for the association's |
| 212 |
willful failure to comply with this
paragraph. The minimum |
| 213 |
damages shall be $50 per calendar day up
to 10 days, the |
| 214 |
calculation to begin on the 11th working
day after receipt of |
| 215 |
the written request. The failure to
permit inspection of the |
| 216 |
association records as provided herein
entitles any person |
| 217 |
prevailing in an enforcement action to
recover reasonable |
| 218 |
attorney's fees from the person in
control of the records who, |
| 219 |
directly or indirectly, knowingly denied
access to the records |
| 220 |
for inspection. Any
officer, director, or manager who knowingly |
| 221 |
or intentionally
defaces, destroys, or fails to create or |
| 222 |
maintain accounting
records is personally subject to a civil |
| 223 |
penalty pursuant to
s. 718.501(1)(d) and appropriate criminal |
| 224 |
sanctions. The
association shall maintain an adequate number of |
| 225 |
copies of the declaration, articles of
incorporation, bylaws, |
| 226 |
and rules, and all amendments to each of
the foregoing, as well |
| 227 |
as the question and answer sheet
provided for in s. 718.504 and |
| 228 |
year-end financial information required
in this section on the |
| 229 |
condominium property to ensure their
availability to unit owners |
| 230 |
and prospective purchasers, and may
charge its actual costs for |
| 231 |
preparing and furnishing these documents
to those requesting the |
| 232 |
same. Notwithstanding the provisions of
this paragraph, the |
| 233 |
following records shall not be
accessible to unit owners: |
| 234 |
1. Any
record protected by the lawyer-client privilege as |
| 235 |
described in s. 90.502; and any record
protected by the work- |
| 236 |
product privilege, including any record
prepared by an |
| 237 |
association attorney or prepared at the
attorney's express |
| 238 |
direction; which reflects a mental
impression, conclusion, |
| 239 |
litigation strategy, or legal theory of
the attorney or the |
| 240 |
association, and which was prepared
exclusively for civil or |
| 241 |
criminal litigation or for adversarial
administrative |
| 242 |
proceedings, or which was prepared in
anticipation of imminent |
| 243 |
civil or criminal litigation or imminent
adversarial |
| 244 |
administrative proceedings until the
conclusion of the |
| 245 |
litigation or adversarial administrative
proceedings. |
| 246 |
2. Information
obtained by an association in connection |
| 247 |
with the approval of the lease, sale, or
other transfer of a |
| 248 |
unit. |
| 249 |
3. Medical
records of unit owners. |
| 250 |
4. Social
security numbers, driver's license numbers, |
| 251 |
credit card numbers,
and other personal identifying information |
| 252 |
of unit owners,
occupants, or tenants. |
| 253 |
(13) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 254 |
the fiscal year, or annually on a date
provided in the bylaws, |
| 255 |
the association shall prepare and
complete, or contract for the |
| 256 |
preparation and completion of, a
financial report for the |
| 257 |
preceding fiscal year. Within 21 days
after the final financial |
| 258 |
report is completed by the association
or received from the |
| 259 |
third party, but not later than 120 days
after the end of the |
| 260 |
fiscal year or other date as provided in
the bylaws, the |
| 261 |
association shall mail to each unit
owner at the address last |
| 262 |
furnished to the association by the unit
owner, or hand deliver |
| 263 |
to each unit owner, a copy of the
financial report or a notice |
| 264 |
that a copy of the financial report will
be mailed or hand |
| 265 |
delivered to the unit owner, without
charge, upon receipt of a |
| 266 |
written request from the unit owner. The
division shall adopt |
| 267 |
rules setting forth uniform accounting
principles and standards |
| 268 |
to be used by all associations and shall
adopt rules addressing |
| 269 |
financial reporting requirements for
multicondominium |
| 270 |
associations. In adopting such rules,
the division shall |
| 271 |
consider the number of members and
annual revenues of an |
| 272 |
association. Financial reports shall be
prepared as follows: |
| 273 |
(a) An
association that meets the criteria of this |
| 274 |
paragraph shall prepare or cause to be
prepared a complete set |
| 275 |
of financial statements in accordance
with generally accepted |
| 276 |
accounting principles. The financial
statements shall be based |
| 277 |
upon the association's total annual
revenues, as follows: |
| 278 |
1. An
association with total annual revenues of $100,000 |
| 279 |
or more, but less than $200,000, shall
prepare compiled |
| 280 |
financial statements. |
| 281 |
2. An
association with total annual revenues of at least |
| 282 |
$200,000, but less than $400,000, shall
prepare reviewed |
| 283 |
financial statements. |
| 284 |
3. An
association with total annual revenues of $400,000 |
| 285 |
or more shall prepare audited financial
statements. |
| 286 |
(b)1. An
association with total annual revenues of less |
| 287 |
than $100,000 shall prepare a report of
cash receipts and |
| 288 |
expenditures. |
| 289 |
2. An
association which operates less than 50 units, |
| 290 |
regardless of the association's annual
revenues, shall prepare a |
| 291 |
report of cash receipts and expenditures
in lieu of financial |
| 292 |
statements required by paragraph (a). |
| 293 |
3. A
report of cash receipts and disbursements must |
| 294 |
disclose the amount of receipts by
accounts and receipt |
| 295 |
classifications and the amount of
expenses by accounts and |
| 296 |
expense classifications, including, but
not limited to, the |
| 297 |
following, as applicable: costs for
security, professional and |
| 298 |
management fees and expenses, taxes,
costs for recreation |
| 299 |
facilities, expenses for refuse
collection and utility services, |
| 300 |
expenses for lawn care, costs for
building maintenance and |
| 301 |
repair, insurance costs, administration
and salary expenses, and |
| 302 |
reserves accumulated and expended for
capital expenditures, |
| 303 |
deferred maintenance, and any other
category for which the |
| 304 |
association maintains reserves. |
| 305 |
(c) An
association may prepare or cause to be prepared, |
| 306 |
without a meeting of or approval by the
unit owners: |
| 307 |
1. Compiled,
reviewed, or audited financial statements, if |
| 308 |
the association is required to prepare a
report of cash receipts |
| 309 |
and expenditures; |
| 310 |
2. Reviewed
or audited financial statements, if the |
| 311 |
association is required to prepare
compiled financial |
| 312 |
statements; or |
| 313 |
3. Audited
financial statements if the association is |
| 314 |
required to prepare reviewed financial
statements. |
| 315 |
(d) If
approved by a majority of the voting interests |
| 316 |
present at a properly called meeting of
the association, an |
| 317 |
association may prepare or cause to be
prepared: |
| 318 |
1. A
report of cash receipts and expenditures in lieu of a |
| 319 |
compiled, reviewed, or audited financial
statement; |
| 320 |
2. A
report of cash receipts and expenditures or a |
| 321 |
compiled financial statement in lieu of
a reviewed or audited |
| 322 |
financial statement; or |
| 323 |
3. A
report of cash receipts and expenditures, a compiled |
| 324 |
financial statement, or a reviewed
financial statement in lieu |
| 325 |
of an audited financial statement. |
| 326 |
|
| 327 |
Such meeting and approval must occur
prior to the end of the |
| 328 |
fiscal year and is effective only for
the fiscal year in which |
| 329 |
the vote is taken. With respect to an
association to which the |
| 330 |
developer has not turned over control of
the association, all |
| 331 |
unit owners, including the developer,
may vote on issues related |
| 332 |
to the preparation of financial reports
for the first 2 fiscal |
| 333 |
years of the association's operation,
beginning with the fiscal |
| 334 |
year in which the declaration is
recorded. Thereafter, all unit |
| 335 |
owners except the developer may vote on
such issues until |
| 336 |
control is turned over to the
association by the developer. An |
| 337 |
association or board
of administration may not waive the |
| 338 |
financial reporting
requirements of this section for more than 2 |
| 339 |
consecutive years. |
| 340 |
Section 2. Subsection
(2) of section 718.112, Florida |
| 341 |
Statutes, is amended to read: |
| 342 |
718.112 Bylaws.-- |
| 343 |
(2) REQUIRED
PROVISIONS.--The bylaws of the association |
| 344 |
shall provide for the following and, if
they do not do so, shall |
| 345 |
be deemed to include the following: |
| 346 |
(a) Administration.-- |
| 347 |
1. The
form of administration of the association shall be |
| 348 |
described indicating the title of the
officers and board of |
| 349 |
administration and specifying the
powers, duties, manner of |
| 350 |
selection and removal, and compensation,
if any, of officers and |
| 351 |
boards. In the absence of such a
provision, the board of |
| 352 |
administration shall be composed of five
members, except in the |
| 353 |
case of a condominium which has five or
fewer units, in which |
| 354 |
case in a not-for-profit corporation the
board shall consist of |
| 355 |
not fewer than three members. In the
absence of provisions to |
| 356 |
the contrary in the bylaws, the board of
administration shall |
| 357 |
have a president, a secretary, and a
treasurer, who shall |
| 358 |
perform the duties of such officers
customarily performed by |
| 359 |
officers of corporations. Unless
prohibited in the bylaws, the |
| 360 |
board of administration may appoint
other officers and grant |
| 361 |
them the duties it deems appropriate.
Unless otherwise provided |
| 362 |
in the bylaws, the officers shall serve
without compensation and |
| 363 |
at the pleasure of the board of
administration. Unless otherwise |
| 364 |
provided in the bylaws, the members of
the board shall serve |
| 365 |
without compensation. |
| 366 |
2. When
a unit owner files a written inquiry by certified |
| 367 |
mail with the board of administration,
the board shall respond |
| 368 |
in writing to the unit owner within 30
days of receipt of the |
| 369 |
inquiry. The board's response shall
either give a substantive |
| 370 |
response to the inquirer, notify the
inquirer that a legal |
| 371 |
opinion has been requested, or notify
the inquirer that advice |
| 372 |
has been requested from the division. If
the board requests |
| 373 |
advice from the division, the board
shall, within 10 days of its |
| 374 |
receipt of the advice, provide in
writing a substantive response |
| 375 |
to the inquirer. If a legal opinion is
requested, the board |
| 376 |
shall, within 60 days after the receipt
of the inquiry, provide |
| 377 |
in writing a substantive response to the
inquiry. The failure to |
| 378 |
provide a substantive response to the
inquiry as provided herein |
| 379 |
precludes the board from recovering
attorney's fees and costs in |
| 380 |
any subsequent litigation,
administrative proceeding, or |
| 381 |
arbitration arising out of the inquiry.
The association may |
| 382 |
through its board of administration
adopt reasonable rules and |
| 383 |
regulations regarding the frequency and
manner of responding to |
| 384 |
unit owner inquiries, one of which may
be that the association |
| 385 |
is only obligated to respond to one
written inquiry per unit in |
| 386 |
any given 30-day period. In such a case,
any additional inquiry |
| 387 |
or inquiries must be responded to in the
subsequent 30-day |
| 388 |
period, or periods, as applicable. |
| 389 |
(b) Quorum;
voting requirements; proxies.-- |
| 390 |
1. Unless
a lower number is provided in the bylaws, the |
| 391 |
percentage of voting interests required
to constitute a quorum |
| 392 |
at a meeting of the members shall be a
majority of the voting |
| 393 |
interests. Unless otherwise provided in
this chapter or in the |
| 394 |
declaration, articles of incorporation,
or bylaws, and except as |
| 395 |
provided in subparagraph (d)3.,
decisions shall be made by |
| 396 |
owners of a majority of the voting
interests represented at a |
| 397 |
meeting at which a quorum is present. |
| 398 |
2. Except
as specifically otherwise provided herein, after |
| 399 |
January 1, 1992, unit owners may not
vote by general proxy, but |
| 400 |
may vote by limited proxies
substantially conforming to a |
| 401 |
limited proxy form adopted by the
division. Votes allocated to |
| 402 |
units owned by the
association may not be cast by proxy, ballot, |
| 403 |
or otherwise
for any purpose. Limited proxies and general |
| 404 |
proxies may be used to establish a
quorum. Limited proxies shall |
| 405 |
be used for votes taken to waive or
reduce reserves in |
| 406 |
accordance with subparagraph (f)2.; for
votes taken to waive the |
| 407 |
financial reporting requirements of s.
718.111(13); for votes |
| 408 |
taken to amend the declaration pursuant
to s. 718.110; for votes |
| 409 |
taken to amend the articles of
incorporation or bylaws pursuant |
| 410 |
to this section; and for any other
matter for which this chapter |
| 411 |
requires or permits a vote of the unit
owners. Except as |
| 412 |
provided in paragraph (d), after January
1, 1992, no proxy, |
| 413 |
limited or general, shall be used in the
election of board |
| 414 |
members. General proxies may be used for
other matters for which |
| 415 |
limited proxies are not required, and
may also be used in voting |
| 416 |
for nonsubstantive changes to items for
which a limited proxy is |
| 417 |
required and given. Notwithstanding the
provisions of this |
| 418 |
subparagraph, unit owners may vote in
person at unit owner |
| 419 |
meetings. Nothing contained herein shall
limit the use of |
| 420 |
general proxies or require the use of
limited proxies for any |
| 421 |
agenda item or election at any meeting
of a timeshare |
| 422 |
condominium association. |
| 423 |
3. Any
proxy given shall be effective only for the |
| 424 |
specific meeting for which originally
given and any lawfully |
| 425 |
adjourned meetings thereof. In no event
shall any proxy be valid |
| 426 |
for a period longer than 90 days after
the date of the first |
| 427 |
meeting for which it was given. Every
proxy is revocable at any |
| 428 |
time at the pleasure of the unit owner
executing it. |
| 429 |
4. A
member of the board of administration or a committee |
| 430 |
may submit in writing his or her
agreement or disagreement with |
| 431 |
any action taken at a meeting that the
member did not attend. |
| 432 |
This agreement or disagreement may not
be used as a vote for or |
| 433 |
against the action taken and may not be
used for the purposes of |
| 434 |
creating a quorum. |
| 435 |
5. When
any of the board or committee members meet by |
| 436 |
telephone conference, those board or
committee members attending |
| 437 |
by telephone conference may be counted
toward obtaining a quorum |
| 438 |
and may vote by telephone. A telephone
speaker must be used so |
| 439 |
that the conversation of those board or
committee members |
| 440 |
attending by telephone may be heard by
the board or committee |
| 441 |
members attending in person as well as
by any unit owners |
| 442 |
present at a meeting. |
| 443 |
(c) Board
of administration meetings.--Meetings of the |
| 444 |
board of administration at which a
quorum of the members is |
| 445 |
present shall be open to all unit
owners. Any unit owner may |
| 446 |
tape record or videotape meetings of the
board of |
| 447 |
administration. The right to attend such
meetings includes the |
| 448 |
right to speak at such meetings with
reference to all designated |
| 449 |
agenda items. The division shall adopt
reasonable rules |
| 450 |
governing the tape recording and
videotaping of the meeting. The |
| 451 |
association may adopt written reasonable
rules governing the |
| 452 |
frequency, duration, and manner of unit
owner statements. |
| 453 |
Adequate notice of all meetings, which
notice shall specifically |
| 454 |
incorporate an identification of agenda
items, shall be posted |
| 455 |
conspicuously on the condominium
property at least 48 continuous |
| 456 |
hours preceding the meeting except in an
emergency. Any item not |
| 457 |
included on the notice may be taken up
on an emergency basis by |
| 458 |
at least a majority plus one of the
members of the board or by a |
| 459 |
petition of 20
percent of the unit owners. Such emergency action |
| 460 |
shall be noticed and ratified at the
next regular meeting of the |
| 461 |
board. However, written notice of any
meeting at which |
| 462 |
nonemergency special assessments, or at
which amendment to rules |
| 463 |
regarding unit use, will be considered
shall be mailed, |
| 464 |
delivered, or electronically transmitted
to the unit owners and |
| 465 |
posted conspicuously on the condominium
property not less than |
| 466 |
14 days prior to the meeting. Evidence
of compliance with this |
| 467 |
14-day notice shall be made by an
affidavit executed by the |
| 468 |
person providing the notice and filed
among the official records |
| 469 |
of the association. Upon notice to the
unit owners, the board |
| 470 |
shall by duly adopted rule designate a
specific location on the |
| 471 |
condominium property or association
property upon which all |
| 472 |
notices of board meetings shall be
posted. If there is no |
| 473 |
condominium property or association
property upon which notices |
| 474 |
can be posted, notices of board meetings
shall be mailed, |
| 475 |
delivered, or electronically transmitted
at least 14 days before |
| 476 |
the meeting to the owner of each unit.
In lieu of or in addition |
| 477 |
to the physical posting of notice of any
meeting of the board of |
| 478 |
administration on the condominium
property, the association may, |
| 479 |
by reasonable rule, adopt a procedure
for conspicuously posting |
| 480 |
and repeatedly broadcasting the notice
and the agenda on a |
| 481 |
closed-circuit cable television system
serving the condominium |
| 482 |
association. However, if broadcast
notice is used in lieu of a |
| 483 |
notice posted physically on the
condominium property, the notice |
| 484 |
and agenda must be broadcast at least
four times every broadcast |
| 485 |
hour of each day that a posted notice is
otherwise required |
| 486 |
under this section. When broadcast
notice is provided, the |
| 487 |
notice and agenda must be broadcast in a
manner and for a |
| 488 |
sufficient continuous length of time so
as to allow an average |
| 489 |
reader to observe the notice and read
and comprehend the entire |
| 490 |
content of the notice and the agenda.
Notice of any meeting in |
| 491 |
which regular or
special assessments against unit owners are to |
| 492 |
be considered for any reason shall
specifically state contain
a |
| 493 |
statement
that assessments will be considered and the nature, |
| 494 |
cost, and
breakdown of any such assessments. Meetings of a |
| 495 |
committee to take final action on behalf
of the board or make |
| 496 |
recommendations to the board regarding
the association budget |
| 497 |
are subject to the provisions of this
paragraph. Meetings of a |
| 498 |
committee that does not take final
action on behalf of the board |
| 499 |
or make recommendations to the board
regarding the association |
| 500 |
budget are subject to the provisions of
this section, unless |
| 501 |
those meetings are exempted from this
section by the bylaws of |
| 502 |
the association. Notwithstanding any
other law, the requirement |
| 503 |
that board meetings and committee
meetings be open to the unit |
| 504 |
owners is inapplicable to meetings
between the board or a |
| 505 |
committee and the association's
attorney, with respect to |
| 506 |
proposed or pending litigation, when the
meeting is held for the |
| 507 |
purpose of seeking or rendering legal
advice. |
| 508 |
(d) Unit
owner meetings.-- |
| 509 |
1. There
shall be an annual meeting of the unit owners |
| 510 |
held at the location
provided in the association bylaws; and, if |
| 511 |
the bylaws are silent
as to the location, the meeting shall be |
| 512 |
held in the state
within 30 miles of the condominium property. |
| 513 |
Unless the bylaws provide otherwise, a
vacancy on the board |
| 514 |
caused by the expiration of a director's
term shall be filled by |
| 515 |
electing a new board member, and the
election shall be by secret |
| 516 |
ballot; however, if the number of
vacancies equals or exceeds |
| 517 |
the number of candidates, no election is
required. If there is |
| 518 |
no provision in the bylaws for terms of
the members of the |
| 519 |
board, the terms of all members of the
board shall expire upon |
| 520 |
the election of their successors at the
annual meeting. Any unit |
| 521 |
owner desiring to be a candidate for
board membership shall |
| 522 |
comply with subparagraph 3. A person is
not eligible for board |
| 523 |
membership if
that person who has
been convicted of any felony |
| 524 |
by any court of record in the United
States and who has not had |
| 525 |
his or her right to vote restored
pursuant to law in the |
| 526 |
jurisdiction of his or her residence
is not eligible for board |
| 527 |
membership.
The validity of an action by the board is not |
| 528 |
affected if it is later determined that
a member of the board is |
| 529 |
ineligible for board membership due to
having been convicted of |
| 530 |
a felony. |
| 531 |
2. The
bylaws shall provide the method of calling meetings |
| 532 |
of unit owners, including annual
meetings. Written notice, which |
| 533 |
notice must include an agenda, shall be
mailed, hand delivered, |
| 534 |
or electronically transmitted to each
unit owner at least 14 |
| 535 |
days prior to the annual meeting and
shall be posted in a |
| 536 |
conspicuous place on the condominium
property at least 14 |
| 537 |
continuous days preceding the annual
meeting. Upon notice to the |
| 538 |
unit owners, the board shall by duly
adopted rule designate a |
| 539 |
specific location on the condominium
property or association |
| 540 |
property upon which all notices of unit
owner meetings shall be |
| 541 |
posted; however, if there is no
condominium property or |
| 542 |
association property upon which notices
can be posted, this |
| 543 |
requirement does not apply. In lieu of
or in addition to the |
| 544 |
physical posting of notice of any
meeting of the unit owners on |
| 545 |
the condominium property, the
association may, by reasonable |
| 546 |
rule, adopt a procedure for
conspicuously posting and repeatedly |
| 547 |
broadcasting the notice and the agenda
on a closed-circuit cable |
| 548 |
television system serving the
condominium association. However, |
| 549 |
if broadcast notice is used in lieu of a
notice posted |
| 550 |
physically on the condominium property,
the notice and agenda |
| 551 |
must be broadcast at least four times
every broadcast hour of |
| 552 |
each day that a posted notice is
otherwise required under this |
| 553 |
section. When broadcast notice is
provided, the notice and |
| 554 |
agenda must be broadcast in a manner and
for a sufficient |
| 555 |
continuous length of time so as to allow
an average reader to |
| 556 |
observe the notice and read and
comprehend the entire content of |
| 557 |
the notice and the agenda. Unless a unit
owner waives in writing |
| 558 |
the right to receive notice of the
annual meeting, such notice |
| 559 |
shall be hand delivered, mailed, or
electronically transmitted |
| 560 |
to each unit owner. Notice for meetings
and notice for all other |
| 561 |
purposes shall be mailed to each unit
owner at the address last |
| 562 |
furnished to the association by the unit
owner, or hand |
| 563 |
delivered to each unit owner. However,
if a unit is owned by |
| 564 |
more than one person, the association
shall provide notice, for |
| 565 |
meetings and all other purposes, to that
one address which the |
| 566 |
developer initially identifies for that
purpose and thereafter |
| 567 |
as one or more of the owners of the unit
shall so advise the |
| 568 |
association in writing, or if no address
is given or the owners |
| 569 |
of the unit do not agree, to the address
provided on the deed of |
| 570 |
record. An officer of the association,
or the manager or other |
| 571 |
person providing notice of the
association meeting, shall |
| 572 |
provide an affidavit or United States
Postal Service certificate |
| 573 |
of mailing, to be included in the
official records of the |
| 574 |
association affirming that the notice
was mailed or hand |
| 575 |
delivered, in accordance with this
provision. |
| 576 |
3. The
members of the board shall be elected by written |
| 577 |
ballot or voting machine. Proxies shall
in no event be used in |
| 578 |
electing the board, either in general
elections or elections to |
| 579 |
fill vacancies caused by recall,
resignation, or otherwise, |
| 580 |
unless otherwise provided in this
chapter. Not less than 60 days |
| 581 |
before a scheduled election, the
association or its |
| 582 |
representative
shall mail, deliver, or electronically transmit, |
| 583 |
whether by separate association mailing
or included in another |
| 584 |
association mailing, delivery, or
transmission, including |
| 585 |
regularly published newsletters, to each
unit owner entitled to |
| 586 |
a vote, a first notice of the date of
the election. Any unit |
| 587 |
owner or other eligible person desiring
to be a candidate for |
| 588 |
the board must give written notice to
the association or its |
| 589 |
representative
not less than 40 days before a scheduled |
| 590 |
election. Together with the written
notice and agenda as set |
| 591 |
forth in subparagraph 2., the
association or its representative |
| 592 |
shall mail, deliver, or electronically
transmit a second notice |
| 593 |
of the election to all unit owners
entitled to vote therein, |
| 594 |
together with a ballot which shall list
all candidates. Upon |
| 595 |
request of a candidate, the association or
its representative |
| 596 |
shall include an information sheet, no
larger than 81/2 inches |
| 597 |
by 11 inches, which must be furnished by
the candidate not less |
| 598 |
than 35 days before the election, to be
included with the |
| 599 |
mailing, delivery, or transmission of
the ballot, with the costs |
| 600 |
of mailing, delivery, or electronic
transmission and copying to |
| 601 |
be borne by the association. An
officer of the association, or |
| 602 |
the manager or other
person providing the first and second |
| 603 |
notices, shall
provide an affidavit or United States Postal |
| 604 |
Service certificate
of mailing, to be included in the official |
| 605 |
records of the
association, affirming that the notices were |
| 606 |
mailed or hand
delivered in accordance with this subparagraph. |
| 607 |
The association or
its representative is not liable for the |
| 608 |
contents of the information sheets
prepared by the candidates. |
| 609 |
In order to reduce costs, the
association may print or duplicate |
| 610 |
the information sheets on both sides of
the paper. The division |
| 611 |
shall by rule establish voting
procedures consistent with the |
| 612 |
provisions contained herein, including
rules establishing |
| 613 |
procedures for giving notice by
electronic transmission and |
| 614 |
rules providing for the secrecy of
ballots. All ballot envelopes |
| 615 |
must be placed in a
locked or sealed ballot drop box immediately |
| 616 |
upon receipt, and the
box shall not be opened in advance of the |
| 617 |
election
meeting. Elections shall be decided by a plurality of |
| 618 |
those ballots cast. There shall be no
quorum requirement; |
| 619 |
however, at least 20 percent of the
eligible voters must cast a |
| 620 |
ballot in order to have a valid election
of members of the |
| 621 |
board. No unit owner shall permit any
other person to vote his |
| 622 |
or her ballot, except
for a person acting under a specific power |
| 623 |
of attorney,
and any such ballots improperly cast shall be |
| 624 |
deemed invalid, provided any unit owner
who violates this |
| 625 |
provision may be fined by the
association in accordance with s. |
| 626 |
718.303. A unit owner who needs
assistance in casting the ballot |
| 627 |
for the reasons stated in s. 101.051 may
obtain assistance in |
| 628 |
casting the ballot. The regular election
shall occur on the date |
| 629 |
of the annual meeting. The provisions of
this subparagraph shall |
| 630 |
not apply to timeshare condominium
associations. Notwithstanding |
| 631 |
the provisions of this subparagraph, an
election is not required |
| 632 |
unless more candidates file notices of
intent to run or are |
| 633 |
nominated than board vacancies exist. |
| 634 |
4. Any
approval by unit owners called for by this chapter |
| 635 |
or the applicable declaration or bylaws,
including, but not |
| 636 |
limited to, the approval requirement in
s. 718.111(8), shall be |
| 637 |
made at a duly noticed meeting of unit
owners and shall be |
| 638 |
subject to all requirements of this
chapter or the applicable |
| 639 |
condominium documents relating to unit
owner decisionmaking, |
| 640 |
except that unit owners may take action
by written agreement, |
| 641 |
without meetings, on matters for which
action by written |
| 642 |
agreement without meetings is expressly
allowed by the |
| 643 |
applicable bylaws or declaration or any
statute that provides |
| 644 |
for such action. |
| 645 |
5. Unit
owners may waive notice of specific meetings if |
| 646 |
allowed by the applicable bylaws or
declaration or any statute. |
| 647 |
If authorized by the bylaws, notice of
meetings of the board of |
| 648 |
administration, unit owner meetings,
except unit owner meetings |
| 649 |
called to recall board members under
paragraph (j), and |
| 650 |
committee meetings may be given by
electronic transmission to |
| 651 |
unit owners who consent to receive
notice by electronic |
| 652 |
transmission. |
| 653 |
6. Unit
owners shall have the right to participate in |
| 654 |
meetings of unit owners with reference
to all designated agenda |
| 655 |
items. However, the association may
adopt reasonable rules |
| 656 |
governing the frequency, duration, and
manner of unit owner |
| 657 |
participation. |
| 658 |
7. Any
unit owner may tape record or videotape a meeting |
| 659 |
of the unit owners subject to reasonable
rules adopted by the |
| 660 |
division. |
| 661 |
8. Unless
otherwise provided in the bylaws, any vacancy |
| 662 |
occurring on the board before the
expiration of a term may be |
| 663 |
filled by the affirmative vote of the
majority of the remaining |
| 664 |
directors, even if the remaining
directors constitute less than |
| 665 |
a quorum, or by the sole remaining
director. In the alternative, |
| 666 |
a board may hold an election to fill the
vacancy, in which case |
| 667 |
the election procedures must conform to
the requirements of |
| 668 |
subparagraph 3. unless
the association has opted out of the |
| 669 |
statutory election
process, in which case the bylaws of the |
| 670 |
association
control. Unless otherwise provided in the bylaws, a |
| 671 |
board member appointed or elected under
this section shall fill |
| 672 |
the vacancy for the unexpired term of
the seat being filled. |
| 673 |
Filling vacancies created by recall is
governed by paragraph (j) |
| 674 |
and rules adopted by the division. |
| 675 |
|
| 676 |
Notwithstanding
subparagraphs (b)2. and (d)3., an association |
| 677 |
may, by the
affirmative vote of a majority of the total voting |
| 678 |
interests, provide
for different voting and election procedures |
| 679 |
in its bylaws, which
vote may be by a proxy specifically |
| 680 |
delineating the
different voting and election procedures. The |
| 681 |
different voting and
election procedures may provide for |
| 682 |
elections to be
conducted by limited or general proxy. |
| 683 |
(e) Budget
meeting.-- |
| 684 |
1. Any
meeting at which a proposed annual budget of an |
| 685 |
association will be considered by the
board or unit owners shall |
| 686 |
be open to all unit owners. At least 14
days prior to such a |
| 687 |
meeting, the board shall hand deliver to
each unit owner, mail |
| 688 |
to each unit owner at the address last
furnished to the |
| 689 |
association by the unit owner, or
electronically transmit to the |
| 690 |
location furnished by the unit owner for
that purpose a notice |
| 691 |
of such meeting and a copy of the
proposed annual budget. An |
| 692 |
officer or manager of the association,
or other person providing |
| 693 |
notice of such meeting, shall execute an
affidavit evidencing |
| 694 |
compliance with such notice requirement,
and such affidavit |
| 695 |
shall be filed among the official
records of the association. |
| 696 |
2.a. If
a board adopts in any fiscal year an annual budget |
| 697 |
which requires assessments against unit
owners which exceed 115 |
| 698 |
percent of assessments for the preceding
fiscal year, the board |
| 699 |
shall conduct a special meeting of the
unit owners to consider a |
| 700 |
substitute budget if the board receives,
within 21 days after |
| 701 |
adoption of the annual budget, a written
request for a special |
| 702 |
meeting from at least 10 percent of all
voting interests. The |
| 703 |
special meeting shall be conducted
within 60 days after adoption |
| 704 |
of the annual budget. At least 14 days
prior to such special |
| 705 |
meeting, the board shall hand deliver to
each unit owner, or |
| 706 |
mail to each unit owner at the address
last furnished to the |
| 707 |
association, a notice of the meeting. An
officer or manager of |
| 708 |
the association, or other person
providing notice of such |
| 709 |
meeting shall execute an affidavit
evidencing compliance with |
| 710 |
this notice requirement, and such
affidavit shall be filed among |
| 711 |
the official records of the association.
Unit owners may |
| 712 |
consider and adopt a substitute budget
at the special meeting. A |
| 713 |
substitute budget is adopted if approved
by a majority of all |
| 714 |
voting interests unless the bylaws
require adoption by a greater |
| 715 |
percentage of voting interests. If there
is not a quorum at the |
| 716 |
special meeting or a substitute budget
is not adopted, the |
| 717 |
annual budget previously adopted by the
board shall take effect |
| 718 |
as scheduled. |
| 719 |
b. Any
determination of whether assessments exceed 115 |
| 720 |
percent of assessments for the prior
fiscal year shall exclude |
| 721 |
any authorized provision for reasonable
reserves for repair or |
| 722 |
replacement of the condominium property,
anticipated expenses of |
| 723 |
the association which the board does not
expect to be incurred |
| 724 |
on a regular or annual basis, or
assessments for betterments to |
| 725 |
the condominium property. |
| 726 |
c. If
the developer controls the board, assessments shall |
| 727 |
not exceed 115 percent of assessments
for the prior fiscal year |
| 728 |
unless approved by a majority of all
voting interests. |
| 729 |
(f) Annual
budget.-- |
| 730 |
1. The
association shall prepare an annual budget of |
| 731 |
estimated revenues
and expenses. The adopted budget of the prior |
| 732 |
fiscal year shall
remain in effect until the association has |
| 733 |
adopted a new
budget for the current fiscal year. The proposed |
| 734 |
annual budget of estimated
revenues and common
expenses shall be |
| 735 |
detailed and shall show the amounts
budgeted by accounts and |
| 736 |
expense classifications, including, if
applicable, but not |
| 737 |
limited to, those expenses listed in s.
718.504(21). A |
| 738 |
multicondominium association shall adopt
a separate budget of |
| 739 |
common expenses for each condominium the
association operates |
| 740 |
and shall adopt a separate budget of
common expenses for the |
| 741 |
association. In addition, if the
association maintains limited |
| 742 |
common elements with the cost to be
shared only by those |
| 743 |
entitled to use the limited common
elements as provided for in |
| 744 |
s. 718.113(1), the budget or a schedule
attached thereto shall |
| 745 |
show amounts budgeted therefor. If,
after turnover of control of |
| 746 |
the association to the unit owners, any
of the expenses listed |
| 747 |
in s. 718.504(21) are not applicable,
they need not be listed. |
| 748 |
2. In
addition to annual operating expenses, the budget |
| 749 |
shall include reserve accounts for
capital expenditures and |
| 750 |
deferred maintenance. These accounts
shall include, but are not |
| 751 |
limited to, roof replacement, building
painting, and pavement |
| 752 |
resurfacing, regardless of the amount of
deferred maintenance |
| 753 |
expense or replacement cost, and for any
other item for which |
| 754 |
the deferred maintenance expense or
replacement cost exceeds |
| 755 |
$10,000. The amount to be reserved shall
be computed by means of |
| 756 |
a formula which is based upon estimated
remaining useful life |
| 757 |
and estimated replacement cost or
deferred maintenance expense |
| 758 |
of each reserve item. The association
may adjust replacement |
| 759 |
reserve assessments annually to take
into account any changes in |
| 760 |
estimates or extension of the useful
life of a reserve item |
| 761 |
caused by deferred maintenance. This
subsection does not apply |
| 762 |
to an adopted budget in which the
members of an association have |
| 763 |
determined, by a majority vote at a duly
called meeting of the |
| 764 |
association, to provide no reserves or
less reserves than |
| 765 |
required by this subsection. However,
prior to turnover of |
| 766 |
control of an association by a developer
to unit owners other |
| 767 |
than a developer pursuant to s. 718.301,
the developer may vote |
| 768 |
to waive the reserves or reduce the
funding of reserves for the |
| 769 |
first 2 fiscal years of the
association's operation, beginning |
| 770 |
with the fiscal year in which the
initial declaration is |
| 771 |
recorded, after which time reserves may
be waived or reduced |
| 772 |
only upon the vote of a majority of all
nondeveloper voting |
| 773 |
interests voting in person or by limited
proxy at a duly called |
| 774 |
meeting of the association. If a meeting
of the unit owners has |
| 775 |
been called to determine whether to
waive or reduce the funding |
| 776 |
of reserves, and no such result is
achieved or a quorum is not |
| 777 |
attained, the reserves as included in
the budget shall go into |
| 778 |
effect. After the turnover, the
developer may vote its voting |
| 779 |
interest to waive or reduce the funding
of reserves. |
| 780 |
3. Reserve
funds and any interest accruing thereon shall |
| 781 |
remain in the reserve account or
accounts, and shall be used |
| 782 |
only for authorized reserve expenditures
unless their use for |
| 783 |
other purposes is approved in advance by
a majority vote at a |
| 784 |
duly called meeting of the association.
Prior to turnover of |
| 785 |
control of an association by a developer
to unit owners other |
| 786 |
than the developer pursuant to s.
718.301, the developer- |
| 787 |
controlled association shall not vote to
use reserves for |
| 788 |
purposes other than that for which they
were intended without |
| 789 |
the approval of a majority of all
nondeveloper voting interests, |
| 790 |
voting in person or by limited proxy at
a duly called meeting of |
| 791 |
the association. |
| 792 |
4. The
only voting interests which are eligible to vote on |
| 793 |
questions that involve waiving or
reducing the funding of |
| 794 |
reserves, or using existing reserve
funds for purposes other |
| 795 |
than purposes for which the reserves
were intended, are the |
| 796 |
voting interests of the units subject to
assessment to fund the |
| 797 |
reserves in question. The
face of all ballots that involve |
| 798 |
questions relating to
waiving or reducing the funding of |
| 799 |
reserves or using
existing reserve funds for purposes other than |
| 800 |
purposes for which
the reserves were intended shall contain the |
| 801 |
following statement
in capitalized, bold letters in a font size |
| 802 |
larger than any other
used on the face of the ballot: WAIVING OF |
| 803 |
RESERVES, IN WHOLE OR
IN PART, OR ALLOWING ALTERNATE USES OF |
| 804 |
EXISTING RESERVES MAY
RESULT IN UNIT OWNER LIABILITY FOR PAYMENT |
| 805 |
OF UNANTICIPATED
SPECIAL ASSESSMENTS REGARDING THOSE RESERVE |
| 806 |
ITEMS. |
| 807 |
5. A
vote to provide for no reserves or a percentage of |
| 808 |
reserves shall be
made at the annual meeting of the unit owners |
| 809 |
called under
paragraph (d). The division shall adopt the form |
| 810 |
for the ballot for no
reserves and a percentage of reserves. |
| 811 |
6. Notwithstanding
subparagraph 3., the association after |
| 812 |
turnover of control
of the association may, in case of a |
| 813 |
catastrophic event,
use reserve funds for nonscheduled purposes |
| 814 |
to mitigate further
damage to units or common elements or to |
| 815 |
make the condominium
accessible for repairs. |
| 816 |
(g) Assessments.--The
manner of collecting from the unit |
| 817 |
owners their shares of the common
expenses shall be stated in |
| 818 |
the bylaws. Assessments shall be made
against units not less |
| 819 |
frequently than quarterly in an amount
which is not less than |
| 820 |
that required to provide funds in
advance for payment of all of |
| 821 |
the anticipated current operating
expenses and for all of the |
| 822 |
unpaid operating expenses previously
incurred. Nothing in this |
| 823 |
paragraph shall preclude the right of an
association to |
| 824 |
accelerate assessments of an owner
delinquent in payment of |
| 825 |
common expenses. Accelerated assessments
shall be due and |
| 826 |
payable on the date the claim of lien is
filed. Such accelerated |
| 827 |
assessments shall include the amounts
due for the remainder of |
| 828 |
the budget year in which the claim of
lien was filed. |
| 829 |
(h) Amendment
of bylaws.-- |
| 830 |
1. The
method by which the bylaws may be amended |
| 831 |
consistent with the provisions of this
chapter shall be stated. |
| 832 |
If the bylaws fail to provide a method
of amendment, the bylaws |
| 833 |
may be amended if the amendment is
approved by the owners of not |
| 834 |
less than two-thirds of the voting
interests. |
| 835 |
2. No
bylaw shall be revised or amended by reference to |
| 836 |
its title or number only. Proposals to
amend existing bylaws |
| 837 |
shall contain the full text of the
bylaws to be amended; new |
| 838 |
words shall be inserted in the text
underlined, and words to be |
| 839 |
deleted shall be lined through with
hyphens. However, if the |
| 840 |
proposed change is so extensive that
this procedure would |
| 841 |
hinder, rather than assist, the
understanding of the proposed |
| 842 |
amendment, it is not necessary to use
underlining and hyphens as |
| 843 |
indicators of words added or deleted,
but, instead, a notation |
| 844 |
must be inserted immediately preceding
the proposed amendment in |
| 845 |
substantially the following language:
"Substantial rewording of |
| 846 |
bylaw. See bylaw _____ for present
text." |
| 847 |
3. Nonmaterial
errors or omissions in the bylaw process |
| 848 |
will not invalidate an otherwise
properly promulgated amendment. |
| 849 |
(i) Transfer
fees.--No charge shall be made by the |
| 850 |
association or any body thereof in
connection with the sale, |
| 851 |
mortgage, lease, sublease, or other
transfer of a unit unless |
| 852 |
the association is required to approve
such transfer and a fee |
| 853 |
for such approval is provided for in the
declaration, articles, |
| 854 |
or bylaws. Any such fee may be preset,
but in no event may such |
| 855 |
fee exceed $100 per applicant other than
husband/wife or |
| 856 |
parent/dependent child, which are
considered one applicant. |
| 857 |
However, if the lease or sublease is a
renewal of a lease or |
| 858 |
sublease with the same lessee or
sublessee, no charge shall be |
| 859 |
made. The foregoing notwithstanding, an
association may, if the |
| 860 |
authority to do so appears in the
declaration or bylaws, require |
| 861 |
that a prospective lessee place a
security deposit, in an amount |
| 862 |
not to exceed the equivalent of 1
month's rent, into an escrow |
| 863 |
account maintained by the association.
The security deposit |
| 864 |
shall protect against damages to the
common elements or |
| 865 |
association property. Payment of
interest, claims against the |
| 866 |
deposit, refunds, and disputes under
this paragraph shall be |
| 867 |
handled in the same fashion as provided
in part II of chapter |
| 868 |
83. |
| 869 |
(j) Recall
of board members.--Subject to the provisions of |
| 870 |
s. 718.301, any member of the board of
administration may be |
| 871 |
recalled and removed from office with or
without cause by the |
| 872 |
vote or agreement in writing by a
majority of all the voting |
| 873 |
interests. A special meeting of the unit
owners to recall a |
| 874 |
member or members of the board of
administration may be called |
| 875 |
by 10 percent of the voting interests
giving notice of the |
| 876 |
meeting as required for a meeting of
unit owners, and the notice |
| 877 |
shall state the purpose of the meeting.
Electronic transmission |
| 878 |
may not be used as a method of giving
notice of a meeting called |
| 879 |
in whole or in part for this purpose. |
| 880 |
1. If
the recall is approved by a majority of all voting |
| 881 |
interests by a vote at a meeting, the
recall will be effective |
| 882 |
as provided herein. The board shall duly
notice and hold a board |
| 883 |
meeting within 5 full business days of
the adjournment of the |
| 884 |
unit owner meeting to recall one or more
board members. At the |
| 885 |
meeting, the board shall either certify
the recall, in which |
| 886 |
case such member or members shall be
recalled effective |
| 887 |
immediately and shall turn over to the
board within 5 full |
| 888 |
business days any and all records and
property of the |
| 889 |
association in their possession, or
shall proceed as set forth |
| 890 |
in subparagraph 3. |
| 891 |
2. If
the proposed recall is by an agreement in writing by |
| 892 |
a majority of all voting interests, the
agreement in writing or |
| 893 |
a copy thereof shall be served on the
association by certified |
| 894 |
mail or by personal service in the
manner authorized by chapter |
| 895 |
48 and the Florida Rules of Civil
Procedure. The board of |
| 896 |
administration shall duly notice and
hold a meeting of the board |
| 897 |
within 5 full business days after
receipt of the agreement in |
| 898 |
writing. At the meeting, the board shall
either certify the |
| 899 |
written agreement to recall a member or
members of the board, in |
| 900 |
which case such member or members shall
be recalled effective |
| 901 |
immediately and shall turn over to the
board within 5 full |
| 902 |
business days any and all records and
property of the |
| 903 |
association in their possession, or
proceed as described in |
| 904 |
subparagraph 3. |
| 905 |
3. If
the board determines not to certify the written |
| 906 |
agreement to recall a member or members
of the board, or does |
| 907 |
not certify the recall by a vote at a
meeting, the board shall, |
| 908 |
within 5 full business days after the
meeting, file with the |
| 909 |
division a petition for arbitration
pursuant to the procedures |
| 910 |
in s. 718.1255. For the purposes of this
section, the unit |
| 911 |
owners who voted at the meeting or who
executed the agreement in |
| 912 |
writing shall constitute one party under
the petition for |
| 913 |
arbitration. If the arbitrator certifies
the recall as to any |
| 914 |
member or members of the board, the
recall will be effective |
| 915 |
upon mailing of the final order of
arbitration to the |
| 916 |
association. If the association fails to
comply with the order |
| 917 |
of the arbitrator, the division may take
action pursuant to s. |
| 918 |
718.501. Any member or members so
recalled shall deliver to the |
| 919 |
board any and all records of the
association in their possession |
| 920 |
within 5 full business days of the
effective date of the recall. |
| 921 |
4. If
the board fails to duly notice and hold a board |
| 922 |
meeting within 5 full business days of
service of an agreement |
| 923 |
in writing or within 5 full business
days of the adjournment of |
| 924 |
the unit owner recall meeting, the
recall shall be deemed |
| 925 |
effective and the board members so
recalled shall immediately |
| 926 |
turn over to the board any and all
records and property of the |
| 927 |
association. |
| 928 |
5. If
a vacancy occurs on the board as a result of a |
| 929 |
recall and less than a majority of the
board members are |
| 930 |
removed, the vacancy may be filled by
the affirmative vote of a |
| 931 |
majority of the remaining directors,
notwithstanding any |
| 932 |
provision to the contrary contained in
this subsection. If |
| 933 |
vacancies occur on the board as a result
of a recall and a |
| 934 |
majority or more of the board members
are removed, the vacancies |
| 935 |
shall be filled in accordance with
procedural rules to be |
| 936 |
adopted by the division, which rules
need not be consistent with |
| 937 |
this subsection. The rules must provide
procedures governing the |
| 938 |
conduct of the recall election as well
as the operation of the |
| 939 |
association during the period after a
recall but prior to the |
| 940 |
recall election. |
| 941 |
(k) Arbitration.--There
shall be a provision for mandatory |
| 942 |
nonbinding arbitration as provided for
in s. 718.1255. |
| 943 |
(l) Certificate
of compliance.--There shall be a provision |
| 944 |
that a certificate of compliance from a
licensed electrical |
| 945 |
contractor or electrician may be
accepted by the association's |
| 946 |
board as evidence of compliance of the
condominium units with |
| 947 |
the applicable fire and life safety
code. Notwithstanding the |
| 948 |
provisions of chapter 633 or of any
other code, statute, |
| 949 |
ordinance, administrative rule, or
regulation, or any |
| 950 |
interpretation of the foregoing, an
association, condominium, or |
| 951 |
unit owner is not obligated to retrofit
the common elements or |
| 952 |
units of a residential condominium with
a fire sprinkler system |
| 953 |
or other engineered lifesafety system in
a building that has |
| 954 |
been certified for occupancy by the
applicable governmental |
| 955 |
entity, if the unit owners have voted to
forego such |
| 956 |
retrofitting and engineered lifesafety
system by the affirmative |
| 957 |
vote of two-thirds of all voting
interests in the affected |
| 958 |
condominium. However, a condominium
association may not vote to |
| 959 |
forego the retrofitting with a fire
sprinkler system of common |
| 960 |
areas in a high-rise building. For
purposes of this subsection, |
| 961 |
the term "high-rise building"
means a building that is greater |
| 962 |
than 75 feet in height where the
building height is measured |
| 963 |
from the lowest level of fire department
access to the floor of |
| 964 |
the highest occupiable story. For
purposes of this subsection, |
| 965 |
the term "common areas" means
any enclosed hallway, corridor, |
| 966 |
lobby, stairwell, or entryway. In no
event shall the local |
| 967 |
authority having jurisdiction require
completion of retrofitting |
| 968 |
of common areas with a sprinkler system
before the end of 2014. |
| 969 |
1. A
vote to forego retrofitting may be obtained by |
| 970 |
limited proxy or by a ballot personally
cast at a duly called |
| 971 |
membership meeting, or by execution of a
written consent by the |
| 972 |
member, and shall be effective upon the
recording of a |
| 973 |
certificate attesting to such vote in
the public records of the |
| 974 |
county where the condominium is located.
The association shall |
| 975 |
mail, hand deliver, or electronically
transmit to each unit |
| 976 |
owner written notice at least 14 days
prior to such membership |
| 977 |
meeting in which the vote to forego
retrofitting of the required |
| 978 |
fire sprinkler system is to take place.
Within 30 days after the |
| 979 |
association's opt-out vote, notice of
the results of the opt-out |
| 980 |
vote shall be mailed, hand delivered, or
electronically |
| 981 |
transmitted to all unit owners. Evidence
of compliance with this |
| 982 |
30-day notice shall be made by an
affidavit executed by the |
| 983 |
person providing the notice and filed
among the official records |
| 984 |
of the association. After such notice is
provided to each owner, |
| 985 |
a copy of such notice shall be provided
by the current owner to |
| 986 |
a new owner prior to closing and shall
be provided by a unit |
| 987 |
owner to a renter prior to signing a
lease. |
| 988 |
2. As
part of the information collected annually from |
| 989 |
condominiums, the division shall require
condominium |
| 990 |
associations to report the membership
vote and recording of a |
| 991 |
certificate under this subsection and,
if retrofitting has been |
| 992 |
undertaken, the per-unit cost of such
work. The division shall |
| 993 |
annually report to the Division of State
Fire Marshal of the |
| 994 |
Department of Financial Services the
number of condominiums that |
| 995 |
have elected to forego retrofitting. |
| 996 |
(m) Common
elements; limited power to convey.-- |
| 997 |
1. With
respect to condominiums created on or after |
| 998 |
October 1, 1994, the bylaws shall
include a provision granting |
| 999 |
the association a limited power to
convey a portion of the |
| 1000 |
common elements to a condemning
authority for the purpose of |
| 1001 |
providing utility easements,
right-of-way expansion, or other |
| 1002 |
public purposes, whether negotiated or
as a result of eminent |
| 1003 |
domain proceedings. |
| 1004 |
2. In
any case where the bylaws are silent as to the |
| 1005 |
association's power to convey common
elements as described in |
| 1006 |
subparagraph 1., the bylaws shall be
deemed to include the |
| 1007 |
provision described in subparagraph 1. |
| 1008 |
Section 3. Subsections
(6) and (7) are added to section |
| 1009 |
718.113, Florida Statutes, to read: |
| 1010 |
718.113 Maintenance;
limitation upon improvement; display |
| 1011 |
of flag; hurricane shutters;
display of religious decorations.-- |
| 1012 |
(6) Every
5 years, each board of administration shall have |
| 1013 |
the condominium
buildings inspected by a professional engineer |
| 1014 |
or professional
architect registered in the state for the |
| 1015 |
purposes of
determining whether the buildings are structurally |
| 1016 |
and electrically safe
and determining any immediate maintenance |
| 1017 |
required as well as
any long-term maintenance necessary in the |
| 1018 |
form of a long-term
maintenance plan. The long-term maintenance |
| 1019 |
plan shall include an
executive summary that shall be |
| 1020 |
distributed to all
unit owners. The engineer or architect shall |
| 1021 |
provide a report
indicating the manner and type of inspection |
| 1022 |
forming the basis for
the report and description of any matters |
| 1023 |
identified as
requiring remedial action. The report shall become |
| 1024 |
an official record of
the association and be provided to the |
| 1025 |
members upon request
pursuant to s. 718.111(12). |
| 1026 |
(7) The
board of administration may not adopt any rule or |
| 1027 |
regulation impairing
any rights guaranteed by the First |
| 1028 |
Amendment to the
Constitution of the United States or s. 3, Art. |
| 1029 |
I of the Florida
Constitution, including, but not limited to, |
| 1030 |
the free exercise of
religion, nor may any rules or regulations |
| 1031 |
conflict with the
provisions of this chapter or the condominium |
| 1032 |
instruments. A rule
or regulation may not prohibit any |
| 1033 |
reasonable
accommodation for religious practices, including the |
| 1034 |
attachment of
religiously mandated objects to the front-door |
| 1035 |
area of a condominium
unit. |
| 1036 |
Section 4. Section
718.1224, Florida Statutes, is created |
| 1037 |
to read: |
| 1038 |
718.1224 Prohibition
against SLAPP suits.-- |
| 1039 |
(1) It
is the intent of the Legislature to protect the |
| 1040 |
right of condominium
unit owners to exercise their rights to |
| 1041 |
instruct their
representatives and petition for redress of |
| 1042 |
grievances before the
various governmental entities of this |
| 1043 |
state as protected by
the First Amendment to the United States |
| 1044 |
Constitution and s.
5, Art. I of the State Constitution. The |
| 1045 |
Legislature
recognizes that strategic lawsuits against public |
| 1046 |
participation, or
"SLAPP suits" as they are typically referred |
| 1047 |
to, have occurred
when association members are sued by |
| 1048 |
individuals, business
entities, or governmental entities arising |
| 1049 |
out of a condominium
unit owner's appearance and presentation |
| 1050 |
before a governmental
entity on matters related to the |
| 1051 |
condominium
association. However, it is the public policy of |
| 1052 |
this state that
governmental entities, business organizations, |
| 1053 |
and individuals not
engage in SLAPP suits, because such actions |
| 1054 |
are inconsistent with
the right of condominium unit owners to |
| 1055 |
participate in the
state's institutions of government. |
| 1056 |
Therefore, the
Legislature finds and declares that prohibiting |
| 1057 |
such lawsuits by
governmental entities, business entities, and |
| 1058 |
individuals against
condominium unit owners who address matters |
| 1059 |
concerning their
condominium association will preserve this |
| 1060 |
fundamental state
policy, preserve the constitutional rights of |
| 1061 |
condominium unit
owners, and ensure the continuation of |
| 1062 |
representative
government in this state. It is the intent of the |
| 1063 |
Legislature that such
lawsuits be expeditiously disposed of by |
| 1064 |
the courts. As used
in this subsection, the term "governmental |
| 1065 |
entity" means
the state, including the executive, legislative, |
| 1066 |
and judicial branches
of government; the independent |
| 1067 |
establishments of the
state, counties, municipalities, |
| 1068 |
districts,
authorities, boards, or commissions; or any agencies |
| 1069 |
of these branches
which are subject to chapter 286. |
| 1070 |
(2) A
governmental entity, business organization, or |
| 1071 |
individual in this
state may not file or cause to be filed |
| 1072 |
through its employees
or agents any lawsuit, cause of action, |
| 1073 |
claim, cross-claim,
or counterclaim against a condominium unit |
| 1074 |
owner without merit
and solely because such condominium unit |
| 1075 |
owner has exercised
the right to instruct his or her |
| 1076 |
representatives or
the right to petition for redress of |
| 1077 |
grievances before the
various governmental entities of this |
| 1078 |
state, as protected
by the First Amendment to the United States |
| 1079 |
Constitution and s.
5, Art. I of the State Constitution. |
| 1080 |
(3) A
condominium unit owner sued by a governmental |
| 1081 |
entity, business
organization, or individual in violation of |
| 1082 |
this section has a
right to an expeditious resolution of a claim |
| 1083 |
that the suit is in
violation of this section. A condominium |
| 1084 |
unit owner may
petition the court for an order dismissing the |
| 1085 |
action or granting
final judgment in favor of that condominium |
| 1086 |
unit owner. The
petitioner may file a motion for summary |
| 1087 |
judgment, together
with supplemental affidavits, seeking a |
| 1088 |
determination that
the governmental entity's, business |
| 1089 |
organization's, or
individual's lawsuit has been brought in |
| 1090 |
violation of this
section. The governmental entity, business |
| 1091 |
organization, or
individual shall thereafter file its response |
| 1092 |
and any supplemental
affidavits. As soon as practicable, the |
| 1093 |
court shall set a
hearing on the petitioner's motion, which |
| 1094 |
shall be held at the
earliest possible time after the filing of |
| 1095 |
the governmental
entity's, business organization's, or |
| 1096 |
individual's
response. The court may award the condominium unit |
| 1097 |
owner sued by the
governmental entity, business organization, or |
| 1098 |
individual actual
damages arising from the governmental |
| 1099 |
entity's,
individual's, or business organization's violation of |
| 1100 |
this section. A court
may treble the damages awarded to a |
| 1101 |
prevailing
condominium unit owner and shall state the basis for |
| 1102 |
the treble damages
award in its judgment. The court shall award |
| 1103 |
the prevailing party
reasonable attorney fees and costs incurred |
| 1104 |
in connection with a
claim that an action was filed in violation |
| 1105 |
of this section. |
| 1106 |
(4) Condominium
associations may not expend association |
| 1107 |
funds in prosecuting
a SLAPP suit against a condominium unit |
| 1108 |
owner. |
| 1109 |
Section 5. This
act shall take effect July 1, 2008. |