| 179 |
Be It Enacted by the
Legislature of the State of Florida: |
| 180 |
|
| 181 |
Section
1. Section 468.431, Florida Statutes, is amended |
| 182 |
to read: |
| 183 |
468.431 Definitions.--
As used in this part: |
| 184 |
(1) "Community
association" means a residential |
| 185 |
homeowners' association in
which membership is a condition of |
| 186 |
ownership of a unit in a
planned unit development, or of a lot |
| 187 |
for a home or a mobile
home, or of a townhouse, villa, |
| 188 |
condominium, cooperative,
or other residential unit which is |
| 189 |
part of a residential
development scheme and which is authorized |
| 190 |
to impose a fee which may
become a lien on the parcel. |
| 191 |
(2) "Community
association management" means any of the |
| 192 |
following practices
requiring substantial specialized knowledge, |
| 193 |
judgment, and managerial
skill when done for remuneration and |
| 194 |
when the association or
associations served contain more than 10 |
| 195 |
50 units or have an
annual budget or budgets in excess of |
| 196 |
$100,000: controlling or
disbursing funds of a community |
| 197 |
association, preparing
budgets or other financial documents for |
| 198 |
a community association,
assisting in the noticing or conduct of |
| 199 |
community association
meetings, and coordinating maintenance for |
| 200 |
the residential
development and other day-to-day services |
| 201 |
involved with the
operation of a community association. A person |
| 202 |
who performs clerical or
ministerial functions under the direct |
| 203 |
supervision and control of
a licensed manager or who is charged |
| 204 |
only with performing the
maintenance of a community association |
| 205 |
and who does not assist in
any of the management services |
| 206 |
described in this
subsection is not required to be licensed |
| 207 |
under this part. |
| 208 |
(3) "Community
association management firm" means a |
| 209 |
corporation,
limited liability company, partnership, trust, |
| 210 |
association,
sole proprietorship, or other similar organization |
| 211 |
engaging
in the business of community association management for |
| 212 |
the
purpose of providing any of the services described in |
| 213 |
subsection
(2). |
| 214 |
(4)(3) "Community
association manager" means a natural |
| 215 |
person who is licensed
pursuant to this part to perform |
| 216 |
community association
management services. |
| 217 |
(5)(4) "Council"
means the Regulatory Council of Community |
| 218 |
Association Managers. |
| 219 |
(6)(5) "Department"
means the Department of Business and |
| 220 |
Professional Regulation. |
| 221 |
Section
2. Section 468.4315, Florida Statutes, is amended |
| 222 |
to read: |
| 223 |
468.4315 Regulatory
Council of Community Association |
| 224 |
Managers.-- |
| 225 |
(1) The
Regulatory Council of Community Association |
| 226 |
Managers is created within
the department and shall consist of |
| 227 |
seven members appointed by
the Governor and confirmed by the |
| 228 |
Senate. |
| 229 |
(a) Five
members of the council shall be licensed |
| 230 |
community association
managers, one of whom may shall be a |
| 231 |
community association
manager employed by a timeshare managing |
| 232 |
entity as described in ss.
468.438 and 721.13, who have held an |
| 233 |
active license for at
least 5 years. The remaining two council |
| 234 |
members shall be residents
of this state, and must not be or |
| 235 |
ever have been connected
with the business of community |
| 236 |
association management,
and shall not be prohibited from serving |
| 237 |
because
the member is or has been a resident or board member of |
| 238 |
a
community association. |
| 239 |
(b) The
Governor shall appoint members for terms of 4 |
| 240 |
years. Such members shall
serve until their successors are |
| 241 |
appointed. Members'
service on the council shall begin upon |
| 242 |
appointment and shall
continue until their successors are |
| 243 |
appointed. |
| 244 |
(2) The
council may adopt rules relating to the licensure |
| 245 |
examination, continuing
education requirements, continuing |
| 246 |
education providers, fees,
and professional practice standards |
| 247 |
to assist the department
in carrying out the duties and |
| 248 |
authorities conferred upon
the department by this part. |
| 249 |
(3)
To the extent the council is authorized to exercise |
| 250 |
functions otherwise
exercised by a board pursuant to chapter |
| 251 |
455, the provisions of
chapter 455 and s. 20.165 relating to |
| 252 |
regulatory boards shall
apply, including, but not limited to, |
| 253 |
provisions relating to
board rules and the accountability and |
| 254 |
liability of board
members. All proceedings and actions of the |
| 255 |
council are subject to the
provisions of chapter 120. In |
| 256 |
addition, the provisions
of chapter 455 and s. 20.165 shall |
| 257 |
apply to the department in
carrying out the duties and |
| 258 |
authorities conferred upon
the department by this part. |
| 259 |
(4) The
council may establish a public education program |
| 260 |
relating
to professional community association management. |
| 261 |
(5) Members
of the council shall serve without |
| 262 |
compensation
but are entitled to receive per diem and travel |
| 263 |
expenses
pursuant to s. 112.061 while carrying out business |
| 264 |
approved
by the council. |
| 265 |
(6) The
responsibilities of the council shall include, but |
| 266 |
not be
limited to: |
| 267 |
(a) Receiving
input regarding issues of concern with |
| 268 |
respect
to community association management and recommendations |
| 269 |
for
changes in applicable laws. |
| 270 |
(b) Reviewing,
evaluating, and advising the division |
| 271 |
concerning
revisions and adoption of rules affecting community |
| 272 |
association
management. |
| 273 |
(c) Recommending
improvements, if needed, in the education |
| 274 |
programs
offered by the division. |
| 275 |
Section
3. Section 468.432, Florida Statutes, is amended |
| 276 |
to read: |
| 277 |
468.432 Licensure
of community association managers and |
| 278 |
community
association management firms; exceptions.-- |
| 279 |
(1) A
person shall not manage or hold herself or himself |
| 280 |
out to the public as being
able to manage a community |
| 281 |
association in this state
unless she or he is licensed by the |
| 282 |
department in accordance
with the provisions of this part. |
| 283 |
However, nothing in this
part prohibits any person licensed in |
| 284 |
this state under any other
law or court rule from engaging in |
| 285 |
the profession for which
she or he is licensed. |
| 286 |
(2) As
of January 1, 2009, a community association |
| 287 |
management
firm or other similar organization responsible for |
| 288 |
the
management of more than 10 units or a budget of $100,000 or |
| 289 |
greater
shall not engage or hold itself out to the public as |
| 290 |
being
able to engage in the business of community association |
| 291 |
management
in this state unless it is licensed by the department |
| 292 |
as a
community association management firm in accordance with |
| 293 |
the
provisions of this part. |
| 294 |
(a) A
community association management firm or other |
| 295 |
similar
organization desiring to be licensed as a community |
| 296 |
association
management firm shall apply to the department on a |
| 297 |
form
approved by the department together with the application |
| 298 |
and
licensure fees required by s. 468.435(1)(a) and (c). Each |
| 299 |
community
association management firm applying for licensure |
| 300 |
under
this subsection must be actively registered and authorized |
| 301 |
to do
business in this state. |
| 302 |
(b) Each
applicant shall designate on its application a |
| 303 |
licensed
community association manager who shall be required to |
| 304 |
respond
to all inquires from and investigations by the |
| 305 |
department
or division. |
| 306 |
(c) Each
licensed community association management firm |
| 307 |
shall
notify the department within 30 days after any change of |
| 308 |
information
contained in the application upon which licensure is |
| 309 |
based. |
| 310 |
(d) Community
association management firm licenses shall |
| 311 |
expire
on September 30 of odd-numbered years and shall be |
| 312 |
renewed
every 2 years. An application for renewal shall be |
| 313 |
accompanied
by the renewal fee as required by s. 468.435(1)(d). |
| 314 |
(e) The
department shall license each applicant whom the |
| 315 |
department
certifies as meeting the requirements of this |
| 316 |
subsection. |
| 317 |
(f) If
the license of at least one individual active |
| 318 |
community
association manager member is not in force, the |
| 319 |
license
of the community association management firm or other |
| 320 |
similar
organization is canceled automatically during that time. |
| 321 |
(g) Any
community association management firm or other |
| 322 |
similar
organization agrees by being licensed that it will |
| 323 |
employ
only licensed persons in the direct provision of |
| 324 |
community
association management services as described in s. |
| 325 |
468.431(3). |
| 326 |
(2) Nothing
in this part prohibits a corporation, |
| 327 |
partnership,
trust, association, or other like organization from |
| 328 |
engaging
in the business of community association management |
| 329 |
without
being licensed if it employs licensed natural persons in |
| 330 |
the
direct provision of community association management |
| 331 |
services.
Such corporation, partnership, trust, association, or |
| 332 |
other
organization shall also file with the department a |
| 333 |
statement
on a form approved by the department that it submits |
| 334 |
itself
to the rules of the council and the department and the |
| 335 |
provisions
of this part which the department deems applicable. |
| 336 |
Section
4. Subsections (2) and (4) of section 468.433, |
| 337 |
Florida Statutes, are
amended to read: |
| 338 |
468.433 Licensure
by examination.-- |
| 339 |
(2) The
department shall examine each applicant who is at |
| 340 |
least 18 years of age, who
has successfully completed all |
| 341 |
prelicensure education
requirements, and who the department |
| 342 |
certifies is of good moral
character. |
| 343 |
(a) Good
moral character means a personal history of |
| 344 |
honesty, fairness, and
respect for the rights of others and for |
| 345 |
the laws of this state and
nation. |
| 346 |
(b) The
department may refuse to certify an applicant only |
| 347 |
if: |
| 348 |
1. There
is a substantial connection between the lack of |
| 349 |
good moral character of
the applicant and the professional |
| 350 |
responsibilities of a
community association manager; and |
| 351 |
2. The
finding by the department of lack of good moral |
| 352 |
character is supported by
clear and convincing evidence; or |
| 353 |
3. The
applicant is found to have provided management |
| 354 |
services
requiring licensure without the requisite license. |
| 355 |
(c) When
an applicant is found to be unqualified for a |
| 356 |
license because of a lack
of good moral character, the |
| 357 |
department shall furnish
the applicant a statement containing |
| 358 |
its findings, a complete
record of the evidence upon which the |
| 359 |
determination was based,
and a notice of the rights of the |
| 360 |
applicant to a rehearing
and appeal. |
| 361 |
(d) The
council shall establish by rule the required |
| 362 |
amount of prelicensure
education, which shall consist of not |
| 363 |
more than 24 hours of
in-person instruction by a department- |
| 364 |
approved provider and
which shall cover all areas of the |
| 365 |
examination specified in
subsection (3). Such instruction shall |
| 366 |
be completed within 12
months prior to the date of the |
| 367 |
examination. Prelicensure
education providers shall be |
| 368 |
considered continuing
education providers for purposes of |
| 369 |
establishing provider
approval fees. A licensee shall not be |
| 370 |
required to comply with
the continuing education requirements of |
| 371 |
s. 468.4337 prior to the
first license renewal. The department |
| 372 |
shall, by rule, set
standards for exceptions to the requirement |
| 373 |
of in-person instruction
in cases of hardship or disability. |
| 374 |
(4) The
department shall issue a license to practice in |
| 375 |
this state as a community
association manager to any qualified |
| 376 |
applicant who successfully
completes the examination in |
| 377 |
accordance with this
section and pays the appropriate fee. |
| 378 |
Section
5. Section 468.436, Florida Statutes, is amended |
| 379 |
to read: |
| 380 |
468.436 Disciplinary
proceedings.-- |
| 381 |
(1) The
department shall investigate complaints and |
| 382 |
allegations
of a violation of this part or chapter 455, or any |
| 383 |
rule
adopted thereunder, filed against community association |
| 384 |
managers
or firms and forwarded from other divisions under the |
| 385 |
Department
of Business and Professional Regulation. After a |
| 386 |
complaint
is received, the department shall conduct its inquiry |
| 387 |
with
due regard to the interests of the affected parties. Within |
| 388 |
30 days
after receipt of a complaint, the department shall |
| 389 |
acknowledge
the complaint in writing and notify the complainant |
| 390 |
whether
or not the complaint is within the jurisdiction of the |
| 391 |
department
and whether or not additional information is needed |
| 392 |
by the
department from the complainant. The department shall |
| 393 |
conduct
an investigation and shall, within 90 days after receipt |
| 394 |
of the
original complaint or of a timely request for additional |
| 395 |
information,
take action upon the complaint. However, the |
| 396 |
failure
to complete the investigation within 90 days does not |
| 397 |
prevent
the department from continuing the investigation, |
| 398 |
accepting
or considering evidence obtained or received after 90 |
| 399 |
days,
or taking administrative action if reasonable cause exists |
| 400 |
to
believe that a violation of this part or chapter 455, or a |
| 401 |
rule of
the department has occurred. If an investigation is not |
| 402 |
completed
within the time limits established in this subsection, |
| 403 |
the
department shall, on a monthly basis, notify the complainant |
| 404 |
in
writing of the status of the investigation. When reporting |
| 405 |
its
action to the complainant, the department shall inform the |
| 406 |
complainant
of any right to a hearing pursuant to ss. 120.569 |
| 407 |
and
120.57. |
| 408 |
(2)(1) The
following acts constitute grounds for which the |
| 409 |
disciplinary actions in
subsection (4) (3) may be taken: |
| 410 |
(a) Violation
of any provision of s. 455.227(1). |
| 411 |
(b)1. Violation
of any provision of this part. |
| 412 |
2. Violation
of any lawful order or rule rendered or |
| 413 |
adopted by the department
or the council. |
| 414 |
3. Being
convicted of or pleading nolo contendere to a |
| 415 |
felony in any court in the
United States. |
| 416 |
4. Obtaining
a license or certification or any other |
| 417 |
order, ruling, or
authorization by means of fraud, |
| 418 |
misrepresentation, or
concealment of material facts. |
| 419 |
5. Committing
acts of gross misconduct or gross negligence |
| 420 |
in connection with the
profession. |
| 421 |
6. Contracting,
on behalf of an association, with any |
| 422 |
entity
in which the licensee has a financial interest that is |
| 423 |
not
disclosed. |
| 424 |
(3)(2) The
council shall specify by rule the acts or |
| 425 |
omissions that constitute
a violation of subsection (2) (1). |
| 426 |
(4)(3) When
the department finds any community association |
| 427 |
manager or firm
guilty of any of the grounds set forth in |
| 428 |
subsection (2)
(1), it may enter an order
imposing one or more |
| 429 |
of the following
penalties: |
| 430 |
(a) Denial
of an application for licensure. |
| 431 |
(b) Revocation
or suspension of a license. |
| 432 |
(c) Imposition
of an administrative fine not to exceed |
| 433 |
$5,000 for each count or
separate offense. |
| 434 |
(d) Issuance
of a reprimand. |
| 435 |
(e) Placement
of the community association manager on |
| 436 |
probation for a period of
time and subject to such conditions as |
| 437 |
the department specifies. |
| 438 |
(f) Restriction
of the authorized scope of practice by the |
| 439 |
community association
manager. |
| 440 |
(5)(4) The
department may shall
reissue the license of a |
| 441 |
disciplined community
association manager or firm upon |
| 442 |
certification by the
department that the disciplined person or |
| 443 |
firm
has complied with all of the terms and conditions set forth |
| 444 |
in the final order. |
| 445 |
Section
6. Paragraph (b) of subsection (1) and subsections |
| 446 |
(12) and (13) of section
718.111, Florida Statutes are amended, |
| 447 |
and paragraph (d) is added
to subsection (1) of that section, to |
| 448 |
read: |
| 449 |
718.111 The
association.-- |
| 450 |
(1) CORPORATE
ENTITY.-- |
| 451 |
(b) A
director of the association who is present at a |
| 452 |
meeting of its board at
which action on any corporate matter is |
| 453 |
taken shall be presumed to
have assented to the action taken |
| 454 |
unless he or she votes
against such action or abstains from |
| 455 |
voting
in respect thereto because of an asserted conflict of |
| 456 |
interest. A
director of the association who abstains from voting |
| 457 |
on any
action taken on any corporate matter shall be presumed to |
| 458 |
have
taken no position with regard to the action. Directors
may |
| 459 |
not vote by proxy or by
secret ballot at board meetings, except |
| 460 |
that officers may be
elected by secret ballot. A vote or |
| 461 |
abstention for each member
present shall be recorded in the |
| 462 |
minutes. |
| 463 |
(d) As
required by s. 617.0830, an officer, director, or |
| 464 |
agent
shall discharge his or her duties in good faith, with the |
| 465 |
care an
ordinarily prudent person in a like position would |
| 466 |
exercise
under similar circumstances, and in a manner he or she |
| 467 |
reasonably
believes to be in the interests of the association. |
| 468 |
An
officer, director, or agent shall be liable for monetary |
| 469 |
damages
as provided in s. 617.0834 if such officer, director, or |
| 470 |
agent
breached or failed to perform his or her duties and the |
| 471 |
breach
of, or failure to perform, his or her duties constitutes |
| 472 |
a
violation of criminal law as provided in s. 617.0834; |
| 473 |
constitutes
a transaction from which the officer or director |
| 474 |
derived
an improper personal benefit, either directly or |
| 475 |
indirectly;
or constitutes recklessness or an act or omission |
| 476 |
that
was in bad faith, with malicious purpose, or in a manner |
| 477 |
exhibiting
wanton and willful disregard of human rights, safety, |
| 478 |
or
property. |
| 479 |
(12) OFFICIAL
RECORDS.-- |
| 480 |
(a) From
the inception of the association, the association |
| 481 |
shall maintain each of the
following items, when applicable, |
| 482 |
which shall constitute the
official records of the association: |
| 483 |
1. A
copy of the plans, permits, warranties, and other |
| 484 |
items provided by the
developer pursuant to s. 718.301(4). |
| 485 |
2. A
photocopy of the recorded declaration of condominium |
| 486 |
of each condominium
operated by the association and of each |
| 487 |
amendment to each
declaration. |
| 488 |
3. A
photocopy of the recorded bylaws of the association |
| 489 |
and of each amendment to
the bylaws. |
| 490 |
4. A
certified copy of the articles of incorporation of |
| 491 |
the association, or other
documents creating the association, |
| 492 |
and of each amendment
thereto. |
| 493 |
5. A
copy of the current rules of the association. |
| 494 |
6. A
book or books which contain the minutes of all |
| 495 |
meetings of the
association, of the board of administration |
| 496 |
directors,
and of unit owners, which minutes shall be retained |
| 497 |
for a period of not less
than 7 years. |
| 498 |
7. A
current roster of all unit owners and their mailing |
| 499 |
addresses, unit
identifications, voting certifications, and, if |
| 500 |
known, telephone numbers.
The association shall also maintain |
| 501 |
the electronic mailing
addresses and the numbers designated by |
| 502 |
unit owners for receiving
notice sent by electronic transmission |
| 503 |
of those unit owners
consenting to receive notice by electronic |
| 504 |
transmission. The
electronic mailing addresses and numbers |
| 505 |
provided by unit owners to
receive notice by electronic |
| 506 |
transmission shall be
removed from association records when |
| 507 |
consent to receive notice
by electronic transmission is revoked. |
| 508 |
However, the association
is not liable for an erroneous |
| 509 |
disclosure of the
electronic mail address or the number for |
| 510 |
receiving electronic
transmission of notices. |
| 511 |
8. All
current insurance policies of the association and |
| 512 |
condominiums operated by
the association. |
| 513 |
9. A
current copy of any management agreement, lease, or |
| 514 |
other contract to which
the association is a party or under |
| 515 |
which the association or
the unit owners have an obligation or |
| 516 |
responsibility. |
| 517 |
10. Bills
of sale or transfer for all property owned by |
| 518 |
the association. |
| 519 |
11. Accounting
records for the association and separate |
| 520 |
accounting records for
each condominium which the association |
| 521 |
operates. All accounting
records shall be maintained for a |
| 522 |
period of not less than 7
years. Any person who knowingly or |
| 523 |
intentionally
defaces or destroys accounting records required to |
| 524 |
be
maintained by this chapter, or who knowingly or intentionally |
| 525 |
fails
to create or maintain accounting records required to be |
| 526 |
maintained
by this chapter, is personally subject to a civil |
| 527 |
penalty
pursuant to s. 718.501(1)(d). The accounting records |
| 528 |
shall include, but are not
limited to: |
| 529 |
a. Accurate,
itemized, and detailed records of all |
| 530 |
receipts and expenditures. |
| 531 |
b. A
current account and a monthly, bimonthly, or |
| 532 |
quarterly statement of the
account for each unit designating the |
| 533 |
name of the unit owner,
the due date and amount of each |
| 534 |
assessment, the amount
paid upon the account, and the balance |
| 535 |
due. |
| 536 |
c. All
audits, reviews, accounting statements, and |
| 537 |
financial reports of the
association or condominium. |
| 538 |
d. All
contracts for work to be performed. Bids for work |
| 539 |
to be performed shall also
be considered official records and |
| 540 |
shall be maintained by
the association for a period of
1 year. |
| 541 |
12. Ballots,
sign-in sheets, voting proxies, and all other |
| 542 |
papers relating to voting
by unit owners, which shall be |
| 543 |
maintained for a period of
1 year from the date of the election, |
| 544 |
vote, or meeting to which
the document relates, notwithstanding |
| 545 |
paragraph
(b). |
| 546 |
13. All
rental records, when the association is acting as |
| 547 |
agent for the rental of
condominium units. |
| 548 |
14. A
copy of the current question and answer sheet as |
| 549 |
described by s. 718.504. |
| 550 |
15. All
other records of the association not specifically |
| 551 |
included in the foregoing
which are related to the operation of |
| 552 |
the association. |
| 553 |
16. A
copy of the inspection report as provided for in s. |
| 554 |
718.301(4)(p). |
| 555 |
(b) The
official records of the association shall be |
| 556 |
maintained within the
state for at least 7 years. The
records of |
| 557 |
the association shall be
made available to a unit owner within |
| 558 |
45
miles of the condominium property or within the county in |
| 559 |
which
the condominium property is located within 5 working days |
| 560 |
after receipt of written
request by the board or its designee. |
| 561 |
However,
such distance requirement does not apply to an |
| 562 |
association
governing a timeshare condominium. This paragraph |
| 563 |
may be complied with by
having a copy of the official records of |
| 564 |
the association available
for inspection or copying on the |
| 565 |
condominium property or
association property, or the association |
| 566 |
may
offer the option of making the records of the association |
| 567 |
available
to a unit owner either electronically via the Internet |
| 568 |
or by
allowing the records to be viewed in electronic format on |
| 569 |
a
computer screen and printed upon request. |
| 570 |
(c) The
official records of the association are open to |
| 571 |
inspection by any
association member or the authorized |
| 572 |
representative of such
member at all reasonable times. The right |
| 573 |
to inspect the records
includes the right to make or obtain |
| 574 |
copies, at the reasonable
expense, if any, of the association |
| 575 |
member. The association
may adopt reasonable rules regarding the |
| 576 |
frequency, time, location,
notice, and manner of record |
| 577 |
inspections and copying.
The failure of an association to |
| 578 |
provide the records within
10 working days after receipt of a |
| 579 |
written request shall
create a rebuttable presumption that the |
| 580 |
association willfully
failed to comply with this paragraph. A |
| 581 |
unit owner who is denied
access to official records is entitled |
| 582 |
to the actual damages or
minimum damages for the association's |
| 583 |
willful failure to comply
with this paragraph. The minimum |
| 584 |
damages shall be $50 per
calendar day up to 10 days, the |
| 585 |
calculation to begin on
the 11th working day after receipt of |
| 586 |
the written request. The
failure to permit inspection of the |
| 587 |
association records as
provided herein entitles any person |
| 588 |
prevailing in an
enforcement action to recover reasonable |
| 589 |
attorney's fees from the
person in control of the records who, |
| 590 |
directly or indirectly,
knowingly denied access to the records |
| 591 |
for inspection. Any
person who knowingly or intentionally |
| 592 |
defaces
or destroys accounting records that are required by this |
| 593 |
chapter,
or knowingly or intentionally fails to create or |
| 594 |
maintain
accounting records that are required by this chapter, |
| 595 |
is
personally subject to a civil penalty pursuant to s. |
| 596 |
718.501(1)(d).
The association shall maintain an adequate number |
| 597 |
of copies of the
declaration, articles of incorporation, bylaws, |
| 598 |
and rules, and all
amendments to each of the foregoing, as well |
| 599 |
as the question and answer
sheet provided for in s. 718.504 and |
| 600 |
year-end financial
information required in this section on the |
| 601 |
condominium property to
ensure their availability to unit owners |
| 602 |
and prospective
purchasers, and may charge its actual costs for |
| 603 |
preparing and furnishing
these documents to those requesting the |
| 604 |
same. Notwithstanding the
provisions of this paragraph, the |
| 605 |
following records shall
not be accessible to unit owners: |
| 606 |
1. Any
record protected by the lawyer-client privilege as |
| 607 |
described in s. 90.502;
and any record protected by the work- |
| 608 |
product privilege,
including any record prepared by an |
| 609 |
association attorney or
prepared at the attorney's express |
| 610 |
direction; which reflects
a mental impression, conclusion, |
| 611 |
litigation strategy, or
legal theory of the attorney or the |
| 612 |
association, and which was
prepared exclusively for civil or |
| 613 |
criminal litigation or for
adversarial administrative |
| 614 |
proceedings, or which was
prepared in anticipation of imminent |
| 615 |
civil or criminal
litigation or imminent adversarial |
| 616 |
administrative proceedings
until the conclusion of the |
| 617 |
litigation or adversarial
administrative proceedings. |
| 618 |
2. Information
obtained by an association in connection |
| 619 |
with the approval of the
lease, sale, or other transfer of a |
| 620 |
unit. |
| 621 |
3. Medical
records of unit owners. |
| 622 |
4. Social
security numbers, driver's license numbers, |
| 623 |
credit
card numbers, and other personal identifying information |
| 624 |
of any
person. |
| 625 |
(d) The
association shall prepare a question and answer |
| 626 |
sheet as described in s.
718.504, and shall update it annually. |
| 627 |
(e)1. The
association or its authorized agent is not |
| 628 |
required to provide a
prospective purchaser or lienholder with |
| 629 |
information about the
condominium or the association other than |
| 630 |
information or documents
required by this chapter to be made |
| 631 |
available or disclosed.
The association or its authorized agent |
| 632 |
may charge a reasonable
fee to the prospective purchaser, |
| 633 |
lienholder, or the current
unit owner for providing good faith |
| 634 |
responses to requests for
information by or on behalf of a |
| 635 |
prospective purchaser or
lienholder, other than that required by |
| 636 |
law, if the fee does not
exceed $150 plus the reasonable cost of |
| 637 |
photocopying and any
attorney's fees incurred by the association |
| 638 |
in connection with the
response. |
| 639 |
2. An
association and its authorized agent are not liable |
| 640 |
for providing such
information in good faith pursuant to a |
| 641 |
written request if the
person providing the information includes |
| 642 |
a written statement in
substantially the following form: "The |
| 643 |
responses herein are made
in good faith and to the best of my |
| 644 |
ability as to their
accuracy." |
| 645 |
(13) FINANCIAL
REPORTING.--Within 90 days after the end of |
| 646 |
the fiscal year, or
annually on a date provided in the bylaws, |
| 647 |
the association shall
prepare and complete, or contract for the |
| 648 |
preparation and completion
of, a financial report for the |
| 649 |
preceding fiscal year.
Within 21 days after the final financial |
| 650 |
report is completed by the
association or received from the |
| 651 |
third party, but not later
than 120 days after the end of the |
| 652 |
fiscal year or other date
as provided in the bylaws, the |
| 653 |
association shall mail to
each unit owner at the address last |
| 654 |
furnished to the
association by the unit owner, or hand deliver |
| 655 |
to each unit owner, a copy
of the financial report or a notice |
| 656 |
that a copy of the
financial report will be mailed or hand |
| 657 |
delivered to the unit
owner, without charge, upon receipt of a |
| 658 |
written request from the
unit owner. The division shall adopt |
| 659 |
rules setting forth
uniform accounting principles and standards |
| 660 |
to be used by all
associations and shall adopt rules addressing |
| 661 |
financial reporting
requirements for multicondominium |
| 662 |
associations. The
rules shall include, but not be limited to, |
| 663 |
uniform
accounting principles and standards for stating the |
| 664 |
disclosure
of at least a summary of the reserves, including |
| 665 |
information
as to whether such reserves are being funded at a |
| 666 |
level
sufficient to prevent the need for a special assessment |
| 667 |
and, if
not, the amount of assessments necessary to bring the |
| 668 |
reserves
up to the level necessary to avoid a special |
| 669 |
assessment.
The person preparing the financial reports shall be |
| 670 |
entitled
to rely on an inspection report prepared for or |
| 671 |
provided
to the association to meet the fiscal and fiduciary |
| 672 |
standards
of this chapter. In adopting such rules, the division |
| 673 |
shall consider the number
of members and annual revenues of an |
| 674 |
association. Financial
reports shall be prepared as follows: |
| 675 |
(a) An
association that meets the criteria of this |
| 676 |
paragraph shall prepare or
cause to be prepared a complete set |
| 677 |
of financial statements in
accordance with generally accepted |
| 678 |
accounting principles. The
financial statements shall be based |
| 679 |
upon the association's
total annual revenues, as follows: |
| 680 |
1. An
association with total annual revenues of $100,000 |
| 681 |
or more, but less than
$200,000, shall prepare compiled |
| 682 |
financial statements. |
| 683 |
2. An
association with total annual revenues of at least |
| 684 |
$200,000, but less than
$400,000, shall prepare reviewed |
| 685 |
financial statements. |
| 686 |
3. An
association with total annual revenues of $400,000 |
| 687 |
or more shall prepare
audited financial statements. |
| 688 |
(b)1. An
association with total annual revenues of less |
| 689 |
than $100,000 shall
prepare a report of cash receipts and |
| 690 |
expenditures. |
| 691 |
2. An
association which operates less than 50 units, |
| 692 |
regardless of the
association's annual revenues, shall prepare a |
| 693 |
report of cash receipts
and expenditures in lieu of financial |
| 694 |
statements required by
paragraph (a). |
| 695 |
3. A
report of cash receipts and disbursements must |
| 696 |
disclose the amount of
receipts by accounts and receipt |
| 697 |
classifications and the
amount of expenses by accounts and |
| 698 |
expense classifications,
including, but not limited to, the |
| 699 |
following, as applicable:
costs for security, professional and |
| 700 |
management fees and
expenses, taxes, costs for recreation |
| 701 |
facilities, expenses for
refuse collection and utility services, |
| 702 |
expenses for lawn care,
costs for building maintenance and |
| 703 |
repair, insurance costs,
administration and salary expenses, and |
| 704 |
reserves accumulated and
expended for capital expenditures, |
| 705 |
deferred maintenance, and
any other category for which the |
| 706 |
association maintains
reserves. |
| 707 |
(c) An
association may prepare or cause to be prepared, |
| 708 |
without a meeting of or
approval by the unit owners: |
| 709 |
1. Compiled,
reviewed, or audited financial statements, if |
| 710 |
the association is
required to prepare a report of cash receipts |
| 711 |
and expenditures; |
| 712 |
2. Reviewed
or audited financial statements, if the |
| 713 |
association is required to
prepare compiled financial |
| 714 |
statements; or |
| 715 |
3. Audited
financial statements if the association is |
| 716 |
required to prepare
reviewed financial statements. |
| 717 |
(d) If
approved by a majority of the voting interests |
| 718 |
present at a properly
called meeting of the association, an |
| 719 |
association may prepare or
cause to be prepared: |
| 720 |
1. A
report of cash receipts and expenditures in lieu of a |
| 721 |
compiled, reviewed, or
audited financial statement; |
| 722 |
2. A
report of cash receipts and expenditures or a |
| 723 |
compiled financial
statement in lieu of a reviewed or audited |
| 724 |
financial statement; or |
| 725 |
3. A
report of cash receipts and expenditures, a compiled |
| 726 |
financial statement, or a
reviewed financial statement in lieu |
| 727 |
of an audited financial
statement. |
| 728 |
|
| 729 |
Such meeting and approval
must occur prior to the end of the |
| 730 |
fiscal year and is
effective only for the fiscal year in which |
| 731 |
the vote is taken,
except that the approval also may be |
| 732 |
effective
for the following fiscal year. With respect to an |
| 733 |
association to which the
developer has not turned over control |
| 734 |
of the association, all
unit owners, including the developer, |
| 735 |
may vote on issues related
to the preparation of financial |
| 736 |
reports for the first 2
fiscal years of the association's |
| 737 |
operation, beginning with
the fiscal year in which the |
| 738 |
declaration is recorded.
Thereafter, all unit owners except the |
| 739 |
developer may vote on such
issues until control is turned over |
| 740 |
to the association by the
developer. Any audit or review |
| 741 |
prepared
under this section shall be paid for by the developer |
| 742 |
if done
prior to turnover of control of the association. An |
| 743 |
association
may not waive the financial reporting requirements |
| 744 |
of this
section for more than 3 consecutive years. |
| 745 |
Section
7. Subsection (2) of section 718.112, Florida |
| 746 |
Statutes, is amended to
read: |
| 747 |
718.112 Bylaws.-- |
| 748 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
| 749 |
following and, if they do
not do so, shall be deemed to include |
| 750 |
the following: |
| 751 |
(a) Administration.-- |
| 752 |
1. The
form of administration of the association shall be |
| 753 |
described indicating the
title of the officers and board of |
| 754 |
administration and
specifying the powers, duties, manner of |
| 755 |
selection and removal, and
compensation, if any, of officers and |
| 756 |
boards. In the absence of
such a provision, the board of |
| 757 |
administration shall be
composed of five members, except in the |
| 758 |
case of a condominium
which has five or fewer units, in which |
| 759 |
case in a not-for-profit
corporation the board shall consist of |
| 760 |
not fewer than three
members. In the absence of provisions to |
| 761 |
the contrary in the
bylaws, the board of administration shall |
| 762 |
have a president, a
secretary, and a treasurer, who shall |
| 763 |
perform the duties of such
officers customarily performed by |
| 764 |
officers of corporations.
Unless prohibited in the bylaws, the |
| 765 |
board of administration
may appoint other officers and grant |
| 766 |
them the duties it deems
appropriate. Unless otherwise provided |
| 767 |
in the bylaws, the
officers shall serve without compensation and |
| 768 |
at the pleasure of the
board of administration. Unless otherwise |
| 769 |
provided in the bylaws,
the members of the board shall serve |
| 770 |
without compensation. |
| 771 |
2. When
a unit owner files a written inquiry by certified |
| 772 |
mail with the board of
administration, the board shall respond |
| 773 |
in writing to the unit
owner within 30 days of receipt of the |
| 774 |
inquiry. The board's
response shall either give a substantive |
| 775 |
response to the inquirer,
notify the inquirer that a legal |
| 776 |
opinion has been
requested, or notify the inquirer that advice |
| 777 |
has been requested from
the division. If the board requests |
| 778 |
advice from the division,
the board shall, within 10 days of its |
| 779 |
receipt of the advice,
provide in writing a substantive response |
| 780 |
to the inquirer. If a
legal opinion is requested, the board |
| 781 |
shall, within 60 days
after the receipt of the inquiry, provide |
| 782 |
in writing a substantive
response to the inquiry. The failure to |
| 783 |
provide a substantive
response to the inquiry as provided herein |
| 784 |
precludes the board from
recovering attorney's fees and costs in |
| 785 |
any subsequent litigation,
administrative proceeding, or |
| 786 |
arbitration arising out of
the inquiry. The association may |
| 787 |
through its board of
administration adopt reasonable rules and |
| 788 |
regulations regarding the
frequency and manner of responding to |
| 789 |
unit owner inquiries, one
of which may be that the association |
| 790 |
is only obligated to
respond to one written inquiry per unit in |
| 791 |
any given 30-day period.
In such a case, any additional inquiry |
| 792 |
or inquiries must be
responded to in the subsequent 30-day |
| 793 |
period, or periods, as
applicable. |
| 794 |
(b) Quorum;
voting requirements; proxies.-- |
| 795 |
1. Unless
a lower number is provided in the bylaws, the |
| 796 |
percentage of voting
interests required to constitute a quorum |
| 797 |
at a meeting of the
members shall be a majority of the voting |
| 798 |
interests. Unless
otherwise provided in this chapter or in the |
| 799 |
declaration, articles of
incorporation, or bylaws, and except as |
| 800 |
provided in subparagraph
(d)3., decisions shall be made by |
| 801 |
owners of a majority of
the voting interests represented at a |
| 802 |
meeting at which a quorum
is present. |
| 803 |
2. Except
as specifically otherwise provided herein, after |
| 804 |
January 1, 1992, unit
owners may not vote by general proxy, but |
| 805 |
may vote by limited
proxies substantially conforming to a |
| 806 |
limited proxy form adopted
by the division. No voting interest |
| 807 |
or
consent right allocated to a unit owned by the association |
| 808 |
shall
be exercised or considered for any purpose, whether for a |
| 809 |
quorum,
an election, or otherwise. Limited proxies and general |
| 810 |
proxies may be used to
establish a quorum. Limited proxies shall |
| 811 |
be used for votes taken to
waive or reduce reserves in |
| 812 |
accordance with
subparagraph (f)2.; for votes taken to waive the |
| 813 |
financial reporting
requirements of s. 718.111(13); for votes |
| 814 |
taken to amend the
declaration pursuant to s. 718.110; for votes |
| 815 |
taken to amend the
articles of incorporation or bylaws pursuant |
| 816 |
to this section; and for
any other matter for which this chapter |
| 817 |
requires or permits a vote
of the unit owners. Except as |
| 818 |
provided in paragraph (d),
after January 1, 1992, no proxy, |
| 819 |
limited or general, shall
be used in the election of board |
| 820 |
members. General proxies
may be used for other matters for which |
| 821 |
limited proxies are not
required, and may also be used in voting |
| 822 |
for nonsubstantive changes
to items for which a limited proxy is |
| 823 |
required and given.
Notwithstanding the provisions of this |
| 824 |
subparagraph, unit owners
may vote in person at unit owner |
| 825 |
meetings. Nothing
contained herein shall limit the use of |
| 826 |
general proxies or require
the use of limited proxies for any |
| 827 |
agenda item or election at
any meeting of a timeshare |
| 828 |
condominium association. |
| 829 |
3. Any
proxy given shall be effective only for the |
| 830 |
specific meeting for which
originally given and any lawfully |
| 831 |
adjourned meetings
thereof. In no event shall any proxy be valid |
| 832 |
for a period longer than
90 days after the date of the first |
| 833 |
meeting for which it was
given. Every proxy is revocable at any |
| 834 |
time at the pleasure of
the unit owner executing it. |
| 835 |
4. A
member of the board of administration or a committee |
| 836 |
may submit in writing his
or her agreement or disagreement with |
| 837 |
any action taken at a
meeting that the member did not attend. |
| 838 |
This agreement or
disagreement may not be used as a vote for or |
| 839 |
against the action taken
and may not be used for the purposes of |
| 840 |
creating a quorum. |
| 841 |
5. When
any of the board or committee members meet by |
| 842 |
telephone conference,
those board or committee members attending |
| 843 |
by telephone conference
may be counted toward obtaining a quorum |
| 844 |
and may vote by telephone.
A telephone speaker must be used so |
| 845 |
that the conversation of
those board or committee members |
| 846 |
attending by telephone may
be heard by the board or committee |
| 847 |
members attending in
person as well as by any unit owners |
| 848 |
present at a meeting. |
| 849 |
(c) Board
of administration meetings.--Meetings of the |
| 850 |
board of administration at
which a quorum of the members is |
| 851 |
present shall be open to
all unit owners. Any unit owner may |
| 852 |
tape record or videotape
meetings of the board of |
| 853 |
administration. The right
to attend such meetings includes the |
| 854 |
right to speak at such
meetings with reference to all designated |
| 855 |
agenda items. The division
shall adopt reasonable rules |
| 856 |
governing the tape
recording and videotaping of the meeting. The |
| 857 |
association may adopt
written reasonable rules governing the |
| 858 |
frequency, duration, and
manner of unit owner statements. |
| 859 |
Adequate notice of all
meetings, which notice shall specifically |
| 860 |
incorporate an
identification of agenda items, shall be posted |
| 861 |
conspicuously on the
condominium property at least 48 continuous |
| 862 |
hours preceding the
meeting except in an emergency. If 20 |
| 863 |
percent
of the voting interests petition the board to address an |
| 864 |
item of
business, the board shall at its next regular board |
| 865 |
meeting
or at a special meeting of the board, but not later than |
| 866 |
60 days
after the receipt of the petition, place the item on the |
| 867 |
agenda.
Any item not included on the notice may be taken up on |
| 868 |
an emergency basis by at
least a majority plus one of the |
| 869 |
members of the board. Such
emergency action shall be noticed and |
| 870 |
ratified at the next
regular meeting of the board. However, |
| 871 |
written notice of any
meeting at which nonemergency special |
| 872 |
assessments, or at which
amendment to rules regarding unit use, |
| 873 |
will be considered shall
be mailed, delivered, or electronically |
| 874 |
transmitted to the unit
owners and posted conspicuously on the |
| 875 |
condominium property not
less than 14 days prior to the meeting. |
| 876 |
Evidence of compliance
with this 14-day notice shall be made by |
| 877 |
an affidavit executed by
the person providing the notice and |
| 878 |
filed among the official
records of the association. Upon notice |
| 879 |
to the unit owners, the
board shall by duly adopted rule |
| 880 |
designate a specific
location on the condominium property or |
| 881 |
association property upon
which all notices of board meetings |
| 882 |
shall be posted. If there
is no condominium property or |
| 883 |
association property upon
which notices can be posted, notices |
| 884 |
of board meetings shall be
mailed, delivered, or electronically |
| 885 |
transmitted at least 14
days before the meeting to the owner of |
| 886 |
each unit. In lieu of or
in addition to the physical posting of |
| 887 |
notice of any meeting of
the board of administration on the |
| 888 |
condominium property, the
association may, by reasonable rule, |
| 889 |
adopt a procedure for
conspicuously posting and repeatedly |
| 890 |
broadcasting the notice
and the agenda on a closed-circuit cable |
| 891 |
television system serving
the condominium association. However, |
| 892 |
if broadcast notice is
used in lieu of a notice posted |
| 893 |
physically on the
condominium property, the notice and agenda |
| 894 |
must be broadcast at least
four times every broadcast hour of |
| 895 |
each day that a posted
notice is otherwise required under this |
| 896 |
section. When broadcast
notice is provided, the notice and |
| 897 |
agenda must be broadcast
in a manner and for a sufficient |
| 898 |
continuous length of time
so as to allow an average reader to |
| 899 |
observe the notice and
read and comprehend the entire content of |
| 900 |
the notice and the agenda.
Notice of any meeting in which |
| 901 |
regular or
special assessments against unit owners are to be |
| 902 |
considered for any reason
shall specifically state contain
a |
| 903 |
statement that
assessments will be considered and the nature, |
| 904 |
estimated
cost, and description of the
purposes for any such |
| 905 |
assessments. Meetings of a
committee to take final action on |
| 906 |
behalf of the board or
make recommendations to the board |
| 907 |
regarding the association
budget are subject to the provisions |
| 908 |
of this paragraph.
Meetings of a committee that does not take |
| 909 |
final action on behalf of
the board or make recommendations to |
| 910 |
the board regarding the
association budget are subject to the |
| 911 |
provisions of this
section, unless those meetings are exempted |
| 912 |
from this section by the
bylaws of the association. |
| 913 |
Notwithstanding any other
law, the requirement that board |
| 914 |
meetings and committee
meetings be open to the unit owners is |
| 915 |
inapplicable to meetings
between the board or a committee and |
| 916 |
the association's
attorney, with respect to proposed or pending |
| 917 |
litigation, when the
meeting is held for the purpose of seeking |
| 918 |
or rendering legal advice. |
| 919 |
(d) Unit
owner meetings.-- |
| 920 |
1. There
shall be an annual meeting of the unit owners |
| 921 |
held at
the location provided in the association bylaws and, if |
| 922 |
the
bylaws are silent as to the location, the meeting shall be |
| 923 |
held
within 45 miles of the condominium property. However, such |
| 924 |
distance
requirement does not apply to an association governing |
| 925 |
a
timeshare condominium. Unless the bylaws provide
otherwise, a |
| 926 |
vacancy on the board
caused by the expiration of a director's |
| 927 |
term shall be filled by
electing a new board member, and the |
| 928 |
election shall be by
secret ballot; however, if the number of |
| 929 |
vacancies equals or
exceeds the number of candidates, no |
| 930 |
election is required. If
there is no provision in the bylaws for |
| 931 |
terms
of the members of the board, The terms of all members of |
| 932 |
the board shall expire upon
the election of their successors at |
| 933 |
the annual meeting and
such board members may stand for |
| 934 |
reelection
unless otherwise permitted by the bylaws. In the |
| 935 |
event
that the bylaws permit staggered terms of no more than 2 |
| 936 |
years
and upon approval of a majority of the total voting |
| 937 |
interests,
the association board members may serve 2-year |
| 938 |
staggered
terms. If no person is interested in or demonstrates |
| 939 |
an
intention to run for the position of a board member whose |
| 940 |
term
has expired according to the provisions of this |
| 941 |
subparagraph,
such board member whose term has expired shall be |
| 942 |
automatically
reappointed to the board of administration and |
| 943 |
need
not stand for reelection. In a condominium association of |
| 944 |
more
than 10 units, coowners of a unit may not serve as members |
| 945 |
of
the board of directors at the same time. Any unit owner |
| 946 |
desiring to be a candidate
for board membership shall comply |
| 947 |
with subparagraph 3. A
person who has been suspended or removed |
| 948 |
by the
division under this chapter, or who is delinquent in the |
| 949 |
payment
of any fee or assessment as provided in paragraph (n), |
| 950 |
is not
eligible for board membership. A person who has been |
| 951 |
convicted of any felony in
this state or by any court of
record |
| 952 |
in a
the United States District
or Territorial Court, or who has |
| 953 |
been
convicted of any offense in another jurisdiction that would |
| 954 |
be
considered a felony if committed in this state, and
who has |
| 955 |
not had
his or her right to vote restored pursuant to law in the |
| 956 |
jurisdiction
of his or her residence is not eligible for board |
| 957 |
membership unless
such felon's civil rights have been restored |
| 958 |
for a
period of no less than 5 years as of the date on which |
| 959 |
such
person seeks election to the board. The validity of an |
| 960 |
action by the board is not
affected if it is later determined |
| 961 |
that a member of the board
is ineligible for board membership |
| 962 |
due to having been
convicted of a felony. |
| 963 |
2. The
bylaws shall provide the method of calling meetings |
| 964 |
of unit owners, including
annual meetings. Written notice, which |
| 965 |
notice must include an
agenda, shall be mailed, hand delivered, |
| 966 |
or electronically
transmitted to each unit owner at least 14 |
| 967 |
days prior to the annual
meeting and shall be posted in a |
| 968 |
conspicuous place on the
condominium property at least 14 |
| 969 |
continuous days preceding
the annual meeting. Upon notice to the |
| 970 |
unit owners, the board
shall by duly adopted rule designate a |
| 971 |
specific location on the
condominium property or association |
| 972 |
property upon which all
notices of unit owner meetings shall be |
| 973 |
posted; however, if there
is no condominium property or |
| 974 |
association property upon
which notices can be posted, this |
| 975 |
requirement does not
apply. In lieu of or in addition to the |
| 976 |
physical posting of notice
of any meeting of the unit owners on |
| 977 |
the condominium property,
the association may, by reasonable |
| 978 |
rule, adopt a procedure
for conspicuously posting and repeatedly |
| 979 |
broadcasting the notice
and the agenda on a closed-circuit cable |
| 980 |
television system serving
the condominium association. However, |
| 981 |
if broadcast notice is
used in lieu of a notice posted |
| 982 |
physically on the
condominium property, the notice and agenda |
| 983 |
must be broadcast at least
four times every broadcast hour of |
| 984 |
each day that a posted
notice is otherwise required under this |
| 985 |
section. When broadcast
notice is provided, the notice and |
| 986 |
agenda must be broadcast
in a manner and for a sufficient |
| 987 |
continuous length of time
so as to allow an average reader to |
| 988 |
observe the notice and
read and comprehend the entire content of |
| 989 |
the notice and the agenda.
Unless a unit owner waives in writing |
| 990 |
the right to receive
notice of the annual meeting, such notice |
| 991 |
shall be hand delivered,
mailed, or electronically transmitted |
| 992 |
to each unit owner. Notice
for meetings and notice for all other |
| 993 |
purposes shall be mailed
to each unit owner at the address last |
| 994 |
furnished to the
association by the unit owner, or hand |
| 995 |
delivered to each unit
owner. However, if a unit is owned by |
| 996 |
more than one person, the
association shall provide notice, for |
| 997 |
meetings and all other
purposes, to that one address which the |
| 998 |
developer initially
identifies for that purpose and thereafter |
| 999 |
as one or more of the
owners of the unit shall so advise the |
| 1000 |
association in writing, or
if no address is given or the owners |
| 1001 |
of the unit do not agree,
to the address provided on the deed of |
| 1002 |
record. An officer of the
association, or the manager or other |
| 1003 |
person providing notice of
the association meeting, shall |
| 1004 |
provide an affidavit or
United States Postal Service certificate |
| 1005 |
of mailing, to be included
in the official records of the |
| 1006 |
association affirming that
the notice was mailed or hand |
| 1007 |
delivered, in accordance
with this provision. |
| 1008 |
3. The
members of the board shall be elected by written |
| 1009 |
ballot or voting machine.
Proxies shall in no event be used in |
| 1010 |
electing the board, either
in general elections or elections to |
| 1011 |
fill vacancies caused by
recall, resignation, or otherwise, |
| 1012 |
unless otherwise provided
in this chapter. Not less than 60 days |
| 1013 |
before a scheduled
election, the association shall mail, |
| 1014 |
deliver, or electronically
transmit, whether by separate |
| 1015 |
association mailing or
included in another association mailing, |
| 1016 |
delivery, or transmission,
including regularly published |
| 1017 |
newsletters, to each unit
owner entitled to a vote, a first |
| 1018 |
notice of the date of the
election along with a certification |
| 1019 |
form
provided by the division attesting that he or she has read |
| 1020 |
and
understands, to the best of his or her ability, the |
| 1021 |
governing
documents of the association and the provisions of |
| 1022 |
this
chapter and any applicable rules. Any unit owner or other |
| 1023 |
eligible person desiring
to be a candidate for the board must |
| 1024 |
give written notice to the
association not less than 40 days |
| 1025 |
before a scheduled
election. Together with the written notice |
| 1026 |
and agenda as set forth in
subparagraph 2., the association |
| 1027 |
shall mail, deliver, or
electronically transmit a second notice |
| 1028 |
of the election to all
unit owners entitled to vote therein, |
| 1029 |
together with a ballot
which shall list all candidates. Upon |
| 1030 |
request of a candidate,
the association shall include an |
| 1031 |
information sheet, no
larger than 81/2 inches by 11 inches, |
| 1032 |
which must be furnished by
the candidate not less than 35 days |
| 1033 |
before the election, along
with the signed certification form |
| 1034 |
provided
for in this subparagraph, to be included with the |
| 1035 |
mailing, delivery, or
transmission of the ballot, with the costs |
| 1036 |
of mailing, delivery, or
electronic transmission and copying to |
| 1037 |
be borne by the
association. The association is not liable for |
| 1038 |
the contents of the
information sheets prepared by the |
| 1039 |
candidates. In order to
reduce costs, the association may print |
| 1040 |
or duplicate the
information sheets on both sides of the paper. |
| 1041 |
The division shall by rule
establish voting procedures |
| 1042 |
consistent with the
provisions contained herein, including rules |
| 1043 |
establishing procedures
for giving notice by electronic |
| 1044 |
transmission and rules
providing for the secrecy of ballots. |
| 1045 |
Elections shall be decided
by a plurality of those ballots cast. |
| 1046 |
There shall be no quorum
requirement; however, at least 20 |
| 1047 |
percent of the eligible
voters must cast a ballot in order to |
| 1048 |
have a valid election of
members of the board. No unit owner |
| 1049 |
shall permit any other
person to vote his or her ballot, and any |
| 1050 |
such ballots improperly
cast shall be deemed invalid, provided |
| 1051 |
any unit owner who
violates this provision may be fined by the |
| 1052 |
association in accordance
with s. 718.303. A unit owner who |
| 1053 |
needs assistance in
casting the ballot for the reasons stated in |
| 1054 |
s. 101.051 may obtain
assistance in casting the ballot. The |
| 1055 |
regular election shall
occur on the date of the annual meeting. |
| 1056 |
The provisions of this
subparagraph shall not apply to timeshare |
| 1057 |
condominium associations.
Notwithstanding the provisions of this |
| 1058 |
subparagraph, an election
is not required unless more candidates |
| 1059 |
file notices of intent to
run or are nominated than board |
| 1060 |
vacancies exist. |
| 1061 |
4. Any
approval by unit owners called for by this chapter |
| 1062 |
or the applicable
declaration or bylaws, including, but not |
| 1063 |
limited to, the approval
requirement in s. 718.111(8), shall be |
| 1064 |
made at a duly noticed
meeting of unit owners and shall be |
| 1065 |
subject to all
requirements of this chapter or the applicable |
| 1066 |
condominium documents
relating to unit owner decisionmaking, |
| 1067 |
except that unit owners
may take action by written agreement, |
| 1068 |
without meetings, on
matters for which action by written |
| 1069 |
agreement without meetings
is expressly allowed by the |
| 1070 |
applicable bylaws or
declaration or any statute that provides |
| 1071 |
for such action. |
| 1072 |
5. Unit
owners may waive notice of specific meetings if |
| 1073 |
allowed by the applicable
bylaws or declaration or any statute. |
| 1074 |
If authorized by the
bylaws, notice of meetings of the board of |
| 1075 |
administration, unit owner
meetings, except unit owner meetings |
| 1076 |
called to recall board
members under paragraph (j), and |
| 1077 |
committee meetings may be
given by electronic transmission to |
| 1078 |
unit owners who consent to
receive notice by electronic |
| 1079 |
transmission. |
| 1080 |
6. Unit
owners shall have the right to participate in |
| 1081 |
meetings of unit owners
with reference to all designated agenda |
| 1082 |
items. However, the
association may adopt reasonable rules |
| 1083 |
governing the frequency,
duration, and manner of unit owner |
| 1084 |
participation. |
| 1085 |
7. Any
unit owner may tape record or videotape a meeting |
| 1086 |
of the unit owners subject
to reasonable rules adopted by the |
| 1087 |
division. |
| 1088 |
8. Unless
otherwise provided in the bylaws, any vacancy |
| 1089 |
occurring on the board
before the expiration of a term may be |
| 1090 |
filled by the affirmative
vote of the majority of the remaining |
| 1091 |
directors, even if the
remaining directors constitute less than |
| 1092 |
a quorum, or by the sole
remaining director. In the alternative, |
| 1093 |
a board may hold an
election to fill the vacancy, in which case |
| 1094 |
the election procedures
must conform to the requirements of |
| 1095 |
subparagraph 3. unless the
association governs 10 units or less |
| 1096 |
and
has opted out of the statutory election process, in which |
| 1097 |
case the bylaws of the
association control. Unless otherwise |
| 1098 |
provided in the bylaws, a
board member appointed or elected |
| 1099 |
under this section shall
fill the vacancy for the unexpired term |
| 1100 |
of the seat being filled.
Filling vacancies created by recall is |
| 1101 |
governed by paragraph (j)
and rules adopted by the division. |
| 1102 |
|
| 1103 |
Notwithstanding
subparagraphs (b)2. and (d)3., an association of |
| 1104 |
10
or fewer units may, by the affirmative vote of a majority
of |
| 1105 |
the total voting
interests, provide for different voting and |
| 1106 |
election procedures in its
bylaws, which vote may be by a proxy |
| 1107 |
specifically delineating
the different voting and election |
| 1108 |
procedures. The different
voting and election procedures may |
| 1109 |
provide for elections to
be conducted by limited or general |
| 1110 |
proxy. |
| 1111 |
(e) Budget
meeting.-- |
| 1112 |
1. Any
meeting at which a proposed annual budget of an |
| 1113 |
association will be
considered by the board or unit owners shall |
| 1114 |
be open to all unit
owners. At least 14 days prior to such a |
| 1115 |
meeting, the board shall
hand deliver to each unit owner, mail |
| 1116 |
to each unit owner at the
address last furnished to the |
| 1117 |
association by the unit
owner, or electronically transmit to the |
| 1118 |
location furnished by the
unit owner for that purpose a notice |
| 1119 |
of such meeting and a copy
of the proposed annual budget. An |
| 1120 |
officer or manager of the
association, or other person providing |
| 1121 |
notice of such meeting,
shall execute an affidavit evidencing |
| 1122 |
compliance with such
notice requirement, and such affidavit |
| 1123 |
shall be filed among the
official records of the association. |
| 1124 |
2.a. If
a board adopts in any fiscal year an annual budget |
| 1125 |
which requires assessments
against unit owners which exceed 115 |
| 1126 |
percent of assessments for
the preceding fiscal year, the board |
| 1127 |
shall conduct a special
meeting of the unit owners to consider a |
| 1128 |
substitute budget if the
board receives, within 21 days after |
| 1129 |
adoption of the annual
budget, a written request for a special |
| 1130 |
meeting from at least 10
percent of all voting interests. The |
| 1131 |
special meeting shall be
conducted within 60 days after adoption |
| 1132 |
of the annual budget. At
least 14 days prior to such special |
| 1133 |
meeting, the board shall
hand deliver to each unit owner, or |
| 1134 |
mail to each unit owner at
the address last furnished to the |
| 1135 |
association, a notice of
the meeting. An officer or manager of |
| 1136 |
the association, or other
person providing notice of such |
| 1137 |
meeting shall execute an
affidavit evidencing compliance with |
| 1138 |
this notice requirement,
and such affidavit shall be filed among |
| 1139 |
the official records of
the association. Unit owners may |
| 1140 |
consider and adopt a
substitute budget at the special meeting. A |
| 1141 |
substitute budget is
adopted if approved by a majority of all |
| 1142 |
voting interests unless
the bylaws require adoption by a greater |
| 1143 |
percentage of voting
interests. If there is not a quorum at the |
| 1144 |
special meeting or a
substitute budget is not adopted, the |
| 1145 |
annual budget previously
adopted by the board shall take effect |
| 1146 |
as scheduled. |
| 1147 |
b. Any
determination of whether assessments exceed 115 |
| 1148 |
percent of assessments for
the prior fiscal year shall exclude |
| 1149 |
any authorized provision
for reasonable reserves for repair or |
| 1150 |
replacement of the
condominium property, anticipated expenses of |
| 1151 |
the association which the
board does not expect to be incurred |
| 1152 |
on a regular or annual
basis, or assessments for betterments to |
| 1153 |
the condominium property. |
| 1154 |
c. If
the developer controls the board, assessments shall |
| 1155 |
not exceed 115 percent of
assessments for the prior fiscal year |
| 1156 |
unless approved by a
majority of all voting interests. |
| 1157 |
(f) Annual
budget.-- |
| 1158 |
1. The
proposed annual budget of estimated
revenues and |
| 1159 |
common
expenses shall be detailed and shall show the amounts |
| 1160 |
budgeted by accounts and
expense classifications, including, if |
| 1161 |
applicable, but not
limited to, those expenses listed in s. |
| 1162 |
718.504(21). A
multicondominium association shall adopt a |
| 1163 |
separate budget of common
expenses for each condominium the |
| 1164 |
association operates and
shall adopt a separate budget of common |
| 1165 |
expenses for the
association. In addition, if the association |
| 1166 |
maintains limited common
elements with the cost to be shared |
| 1167 |
only by those entitled to
use the limited common elements as |
| 1168 |
provided for in s.
718.113(1), the budget or a schedule attached |
| 1169 |
thereto shall show amounts
budgeted therefor. If, after turnover |
| 1170 |
of control of the
association to the unit owners, any of the |
| 1171 |
expenses listed in s.
718.504(21) are not applicable, they need |
| 1172 |
not be listed. |
| 1173 |
2. In
addition to annual operating expenses, the budget |
| 1174 |
shall include reserve
accounts for capital expenditures and |
| 1175 |
deferred maintenance.
These accounts shall include, but are not |
| 1176 |
limited to, roof
replacement, building painting, and pavement |
| 1177 |
resurfacing, regardless of
the amount of deferred maintenance |
| 1178 |
expense or replacement
cost, and for any other item for which |
| 1179 |
the deferred maintenance
expense or replacement cost exceeds |
| 1180 |
$10,000. The amount to be
reserved shall be computed by means of |
| 1181 |
a formula which is based
upon estimated remaining useful life |
| 1182 |
and estimated replacement
cost or deferred maintenance expense |
| 1183 |
of each reserve item. The
association may adjust replacement |
| 1184 |
reserve assessments
annually to take into account any changes in |
| 1185 |
estimates or extension of
the useful life of a reserve item |
| 1186 |
caused by deferred
maintenance. This subsection does not apply |
| 1187 |
to an adopted budget in
which the members of an association have |
| 1188 |
determined, by a majority
vote at a duly called meeting of the |
| 1189 |
association, to provide no
reserves or less reserves than |
| 1190 |
required by this
subsection. However, prior to turnover of |
| 1191 |
control of an association
by a developer to unit owners other |
| 1192 |
than a developer pursuant
to s. 718.301, the developer may vote |
| 1193 |
to waive the reserves or
reduce the funding of reserves for the |
| 1194 |
first 2 fiscal years of
the association's operation, beginning |
| 1195 |
with the fiscal year in
which the initial declaration is |
| 1196 |
recorded, after which time
reserves may be waived or reduced |
| 1197 |
only upon the vote of a
majority of all nondeveloper voting |
| 1198 |
interests voting in person
or by limited proxy at a duly called |
| 1199 |
meeting of the
association. If a meeting of the unit owners has |
| 1200 |
been called to determine
whether to waive or reduce the funding |
| 1201 |
of reserves, and no such
result is achieved or a quorum is not |
| 1202 |
attained, the reserves as
included in the budget shall go into |
| 1203 |
effect. After the
turnover, the developer may vote its voting |
| 1204 |
interest to waive or
reduce the funding of reserves. |
| 1205 |
3. Reserve
funds and any interest accruing thereon shall |
| 1206 |
remain in the reserve
account or accounts, and shall be used |
| 1207 |
only for authorized
reserve expenditures unless their use for |
| 1208 |
other purposes is approved
in advance by a majority vote at a |
| 1209 |
duly called meeting of the
association. Prior to turnover of |
| 1210 |
control of an association
by a developer to unit owners other |
| 1211 |
than the developer
pursuant to s. 718.301, the developer- |
| 1212 |
controlled association
shall not vote to use reserves for |
| 1213 |
purposes other than that
for which they were intended without |
| 1214 |
the approval of a majority
of all nondeveloper voting interests, |
| 1215 |
voting in person or by
limited proxy at a duly called meeting of |
| 1216 |
the association. |
| 1217 |
4. The
only voting interests which are eligible to vote on |
| 1218 |
questions that involve
waiving or reducing the funding of |
| 1219 |
reserves, or using
existing reserve funds for purposes other |
| 1220 |
than purposes for which
the reserves were intended, are the |
| 1221 |
voting interests of the
units subject to assessment to fund the |
| 1222 |
reserves in question. Proxy
questions relating to waiving or |
| 1223 |
reducing
the funding of reserves or using existing reserve funds |
| 1224 |
for
purposes other than purposes for which the reserves were |
| 1225 |
intended
shall contain the following statement in capitalized, |
| 1226 |
bold
letters in a font size larger than any other used on the |
| 1227 |
face of
the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN |
| 1228 |
PART,
OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY |
| 1229 |
RESULT
IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED |
| 1230 |
SPECIAL
ASSESSMENTS REGARDING THOSE ITEMS. |
| 1231 |
(g) Assessments.--The
manner of collecting from the unit |
| 1232 |
owners their shares of the
common expenses shall be stated in |
| 1233 |
the bylaws. Assessments
shall be made against units not less |
| 1234 |
frequently than quarterly
in an amount which is not less than |
| 1235 |
that required to provide
funds in advance for payment of all of |
| 1236 |
the anticipated current
operating expenses and for all of the |
| 1237 |
unpaid operating expenses
previously incurred. Nothing in this |
| 1238 |
paragraph shall preclude
the right of an association to |
| 1239 |
accelerate assessments of
an owner delinquent in payment of |
| 1240 |
common expenses.
Accelerated assessments shall be due and |
| 1241 |
payable on the date the
claim of lien is filed. Such accelerated |
| 1242 |
assessments shall include
the amounts due for the remainder of |
| 1243 |
the budget year in which
the claim of lien was filed. |
| 1244 |
(h) Amendment
of bylaws.-- |
| 1245 |
1. The
method by which the bylaws may be amended |
| 1246 |
consistent with the
provisions of this chapter shall be stated. |
| 1247 |
If the bylaws fail to
provide a method of amendment, the bylaws |
| 1248 |
may be amended if the
amendment is approved by the owners of not |
| 1249 |
less than two-thirds of
the voting interests. |
| 1250 |
2. No
bylaw shall be revised or amended by reference to |
| 1251 |
its title or number only.
Proposals to amend existing bylaws |
| 1252 |
shall contain the full
text of the bylaws to be amended; new |
| 1253 |
words shall be inserted in
the text underlined, and words to be |
| 1254 |
deleted shall be lined
through with hyphens. However, if the |
| 1255 |
proposed change is so
extensive that this procedure would |
| 1256 |
hinder, rather than
assist, the understanding of the proposed |
| 1257 |
amendment, it is not
necessary to use underlining and hyphens as |
| 1258 |
indicators of words added
or deleted, but, instead, a notation |
| 1259 |
must be inserted
immediately preceding the proposed amendment in |
| 1260 |
substantially the
following language: "Substantial rewording of |
| 1261 |
bylaw. See bylaw _____ for
present text." |
| 1262 |
3. Nonmaterial
errors or omissions in the bylaw process |
| 1263 |
will not invalidate an
otherwise properly promulgated amendment. |
| 1264 |
(i) Transfer
fees.--No charge shall be made by the |
| 1265 |
association or any body
thereof in connection with the sale, |
| 1266 |
mortgage, lease, sublease,
or other transfer of a unit unless |
| 1267 |
the association is
required to approve such transfer and a fee |
| 1268 |
for such approval is
provided for in the declaration, articles, |
| 1269 |
or bylaws. Any such fee
may be preset, but in no event may such |
| 1270 |
fee exceed $100 per
applicant other than husband/wife or |
| 1271 |
parent/dependent child,
which are considered one applicant. |
| 1272 |
However, if the lease or
sublease is a renewal of a lease or |
| 1273 |
sublease with the same
lessee or sublessee, no charge shall be |
| 1274 |
made. The foregoing
notwithstanding, an association may, if the |
| 1275 |
authority to do so appears
in the declaration or bylaws, require |
| 1276 |
that a prospective lessee
place a security deposit, in an amount |
| 1277 |
not to exceed the
equivalent of 1 month's rent, into an escrow |
| 1278 |
account maintained by the
association. The security deposit |
| 1279 |
shall protect against
damages to the common elements or |
| 1280 |
association property.
Payment of interest, claims against the |
| 1281 |
deposit, refunds, and
disputes under this paragraph shall be |
| 1282 |
handled in the same
fashion as provided in part II of chapter |
| 1283 |
83. |
| 1284 |
(j) Recall
of board members.--Subject to the provisions of |
| 1285 |
s. 718.301, any member of
the board of administration may be |
| 1286 |
recalled and removed from
office with or without cause by the |
| 1287 |
vote or agreement in
writing by a majority of all the voting |
| 1288 |
interests. A special
meeting of the unit owners to recall a |
| 1289 |
member or members of the
board of administration may be called |
| 1290 |
by 10 percent of the
voting interests giving notice of the |
| 1291 |
meeting as required for a
meeting of unit owners, and the notice |
| 1292 |
shall state the purpose of
the meeting. Electronic transmission |
| 1293 |
may not be used as a
method of giving notice of a meeting called |
| 1294 |
in whole or in part for
this purpose. |
| 1295 |
1. If
the recall is approved by a majority of all voting |
| 1296 |
interests by a vote at a
meeting, the recall will be effective |
| 1297 |
as provided herein. The
board shall duly notice and hold a board |
| 1298 |
meeting within 5 full
business days of the adjournment of the |
| 1299 |
unit owner meeting to
recall one or more board members. At the |
| 1300 |
meeting, the board shall
either certify the recall, in which |
| 1301 |
case such member or
members shall be recalled effective |
| 1302 |
immediately and shall turn
over to the board within 5 full |
| 1303 |
business days any and all
records and property of the |
| 1304 |
association in their
possession, or shall proceed as set forth |
| 1305 |
in subparagraph 3. |
| 1306 |
2. If
the proposed recall is by an agreement in writing by |
| 1307 |
a majority of all voting
interests, the agreement in writing or |
| 1308 |
a copy thereof shall be
served on the association by certified |
| 1309 |
mail or by personal
service in the manner authorized by chapter |
| 1310 |
48 and the Florida Rules
of Civil Procedure. The board of |
| 1311 |
administration shall duly
notice and hold a meeting of the board |
| 1312 |
within 5 full business
days after receipt of the agreement in |
| 1313 |
writing. At the meeting,
the board shall either certify the |
| 1314 |
written agreement to
recall a member or members of the board, in |
| 1315 |
which case such member or
members shall be recalled effective |
| 1316 |
immediately and shall turn
over to the board within 5 full |
| 1317 |
business days any and all
records and property of the |
| 1318 |
association in their
possession, or proceed as described in |
| 1319 |
subparagraph 3. |
| 1320 |
3. If
the board determines not to certify the written |
| 1321 |
agreement to recall a
member or members of the board, or does |
| 1322 |
not certify the recall by
a vote at a meeting, the board shall, |
| 1323 |
within 5 full business
days after the meeting, file with the |
| 1324 |
division a petition for
arbitration pursuant to the procedures |
| 1325 |
in s. 718.1255. For the
purposes of this section, the unit |
| 1326 |
owners who voted at the
meeting or who executed the agreement in |
| 1327 |
writing shall constitute
one party under the petition for |
| 1328 |
arbitration. If the
arbitrator certifies the recall as to any |
| 1329 |
member or members of the
board, the recall will be effective |
| 1330 |
upon mailing of the final
order of arbitration to the |
| 1331 |
association. If the
association fails to comply with the order |
| 1332 |
of the arbitrator, the
division may take action pursuant to s. |
| 1333 |
718.501. Any member or
members so recalled shall deliver to the |
| 1334 |
board any and all records
of the association in their possession |
| 1335 |
within 5 full business
days of the effective date of the recall. |
| 1336 |
4. If
the board fails to duly notice and hold a board |
| 1337 |
meeting within 5 full
business days of service of an agreement |
| 1338 |
in writing or within 5
full business days of the adjournment of |
| 1339 |
the unit owner recall
meeting, the recall shall be deemed |
| 1340 |
effective and the board
members so recalled shall immediately |
| 1341 |
turn over to the board any
and all records and property of the |
| 1342 |
association. |
| 1343 |
5. If
a vacancy occurs on the board as a result of a |
| 1344 |
recall or
removal and less than a majority of the board members |
| 1345 |
are removed, the vacancy
may be filled by the affirmative vote |
| 1346 |
of a majority of the
remaining directors, notwithstanding any |
| 1347 |
provision to the contrary
contained in this subsection. If |
| 1348 |
vacancies occur on the
board as a result of a recall and a |
| 1349 |
majority or more of the
board members are removed, the vacancies |
| 1350 |
shall be filled in
accordance with procedural rules to be |
| 1351 |
adopted by the division,
which rules need not be consistent with |
| 1352 |
this subsection. The rules
must provide procedures governing the |
| 1353 |
conduct of the recall
election as well as the operation of the |
| 1354 |
association during the
period after a recall but prior to the |
| 1355 |
recall election. |
| 1356 |
(k) Arbitration.--There
shall be a provision for mandatory |
| 1357 |
nonbinding arbitration as
provided for in s. 718.1255. |
| 1358 |
(l) Certificate
of compliance.--There shall be a provision |
| 1359 |
that a certificate of
compliance from a licensed electrical |
| 1360 |
contractor or electrician
may be accepted by the association's |
| 1361 |
board as evidence of
compliance of the condominium units with |
| 1362 |
the applicable fire and
life safety code. Notwithstanding the |
| 1363 |
provisions of chapter 633
or of any other code, statute, |
| 1364 |
ordinance, administrative
rule, or regulation, or any |
| 1365 |
interpretation of the
foregoing, an association, condominium, or |
| 1366 |
unit owner is not
obligated to retrofit the common elements or |
| 1367 |
units of a residential
condominium with a fire sprinkler system |
| 1368 |
or other engineered
lifesafety system in a building that has |
| 1369 |
been certified for
occupancy by the applicable governmental |
| 1370 |
entity, if the unit owners
have voted to forego such |
| 1371 |
retrofitting and
engineered lifesafety system by the affirmative |
| 1372 |
vote of two-thirds of all
voting interests in the affected |
| 1373 |
condominium. However, a
condominium association may not vote to |
| 1374 |
forego the retrofitting
with a fire sprinkler system of common |
| 1375 |
areas in a high-rise
building. For purposes of this subsection, |
| 1376 |
the term "high-rise
building" means a building that is greater |
| 1377 |
than 75 feet in height
where the building height is measured |
| 1378 |
from the lowest level of
fire department access to the floor of |
| 1379 |
the highest occupiable
story. For purposes of this subsection, |
| 1380 |
the term "common
areas" means any enclosed hallway, corridor, |
| 1381 |
lobby, stairwell, or
entryway. In no event shall the local |
| 1382 |
authority having
jurisdiction require completion of retrofitting |
| 1383 |
of common areas with a
sprinkler system before the end of 2014. |
| 1384 |
1. A
vote to forego retrofitting may be obtained by |
| 1385 |
limited proxy or by a
ballot personally cast at a duly called |
| 1386 |
membership meeting, or by
execution of a written consent by the |
| 1387 |
member, and shall be
effective upon the recording of a |
| 1388 |
certificate attesting to
such vote in the public records of the |
| 1389 |
county where the
condominium is located. The association shall |
| 1390 |
mail, hand deliver, or
electronically transmit to each unit |
| 1391 |
owner written notice at
least 14 days prior to such membership |
| 1392 |
meeting in which the vote
to forego retrofitting of the required |
| 1393 |
fire sprinkler system is
to take place. Within 30 days after the |
| 1394 |
association's opt-out
vote, notice of the results of the opt-out |
| 1395 |
vote shall be mailed, hand
delivered, or electronically |
| 1396 |
transmitted to all unit
owners. Evidence of compliance with this |
| 1397 |
30-day notice shall be
made by an affidavit executed by the |
| 1398 |
person providing the
notice and filed among the official records |
| 1399 |
of the association. After
such notice is provided to each owner, |
| 1400 |
a copy of such notice
shall be provided by the current owner to |
| 1401 |
a new owner prior to
closing and shall be provided by a unit |
| 1402 |
owner to a renter prior to
signing a lease. |
| 1403 |
2. As
part of the information collected annually from |
| 1404 |
condominiums, the division
shall require condominium |
| 1405 |
associations to report the
membership vote and recording of a |
| 1406 |
certificate under this
subsection and, if retrofitting has been |
| 1407 |
undertaken, the per-unit
cost of such work. The division shall |
| 1408 |
annually report to the
Division of State Fire Marshal of the |
| 1409 |
Department of Financial
Services the number of condominiums that |
| 1410 |
have elected to forego
retrofitting. |
| 1411 |
(m) Common
elements; limited power to convey.-- |
| 1412 |
1. With
respect to condominiums created on or after |
| 1413 |
October 1, 1994, the
bylaws shall include a provision granting |
| 1414 |
the association a limited
power to convey a portion of the |
| 1415 |
common elements to a
condemning authority for the purpose of |
| 1416 |
providing utility
easements, right-of-way expansion, or other |
| 1417 |
public purposes, whether
negotiated or as a result of eminent |
| 1418 |
domain proceedings. |
| 1419 |
2. In
any case where the bylaws are silent as to the |
| 1420 |
association's power to
convey common elements as described in |
| 1421 |
subparagraph 1., the
bylaws shall be deemed to include the |
| 1422 |
provision described in
subparagraph 1. |
| 1423 |
(n) Director
or officer delinquencies.--A director or |
| 1424 |
officer
more than 90 days delinquent in the payment of regular |
| 1425 |
assessments
shall be deemed to have abandoned the office, |
| 1426 |
creating
a vacancy in the office to be filled according to law. |
| 1427 |
(o) Director
and officer offenses.--A director or officer |
| 1428 |
charged
with a felony theft or embezzlement offense involving |
| 1429 |
the
association's funds or property shall be removed from |
| 1430 |
office,
creating a vacancy in the office to be filled according |
| 1431 |
to law.
While such director or officer has such criminal charge |
| 1432 |
pending,
he or she may not be appointed or elected to a position |
| 1433 |
as a
director or officer. However, should the charges be |
| 1434 |
resolved
without a finding of guilt, the director of officer |
| 1435 |
shall
be reinstated for the remainder of his or her term of |
| 1436 |
office,
if any. |
| 1437 |
Section
8. Section 718.1124, Florida Statutes, is amended |
| 1438 |
to read: |
| 1439 |
718.1124 Failure
to fill vacancies on board of |
| 1440 |
administration sufficient
to constitute a quorum; appointment of |
| 1441 |
receiver upon petition of
unit owner.-- |
| 1442 |
(1) If
an association fails to fill vacancies on the board |
| 1443 |
of administration
sufficient to constitute a quorum in |
| 1444 |
accordance with the
bylaws, any unit owner may give notice of |
| 1445 |
his
or her intent to apply to the circuit court within whose |
| 1446 |
jurisdiction the
condominium lies for the appointment of a |
| 1447 |
receiver to manage the
affairs of the association. The form of |
| 1448 |
the
notice shall be as follows: |
| 1449 |
|
| 1450 |
NOTICE
OF INTENT TO APPLY FOR RECEIVERSHIP |
| 1451 |
|
| 1452 |
YOU ARE
HEREBY NOTIFIED that the undersigned owner of |
| 1453 |
a
condominium unit in (name of condominium) intends to |
| 1454 |
file a
petition in the circuit court for appointment |
| 1455 |
of a
receiver to manage the affairs of the association |
| 1456 |
on the
grounds that the association has failed to fill |
| 1457 |
vacancies
on the board of administration sufficient to |
| 1458 |
constitute
a quorum. This petition will not be filed |
| 1459 |
if the
vacancies are filled within 30 days after the |
| 1460 |
date on
which this notice was sent or posted, |
| 1461 |
whichever
is later. If a receiver is appointed, the |
| 1462 |
receiver
shall have all of the powers of the board and |
| 1463 |
shall
be entitled to receive a salary and |
| 1464 |
reimbursement
of all costs and attorney's fees payable |
| 1465 |
from
association funds. |
| 1466 |
|
| 1467 |
(name
and address of petitioning unit owner) |
| 1468 |
|
| 1469 |
(2) The
notice required by subsection (1) must be provided |
| 1470 |
by At
least 30 days prior to applying to the circuit court, the |
| 1471 |
unit owner
shall mail to the association by certified mail or |
| 1472 |
personal
delivery, must be posted and post in a conspicuous |
| 1473 |
place on
the condominium property, and must be provided by the |
| 1474 |
unit
owner to every other unit owner of the association by |
| 1475 |
certified
mail or personal delivery. The a notice must be posted |
| 1476 |
and
mailed or delivered at least 30 days prior to the filing of |
| 1477 |
a
petition seeking receivership. Notice by mail to a unit owner |
| 1478 |
shall
be sent to the address used by the county property |
| 1479 |
appraiser
for notice to the unit owner, except that where a unit |
| 1480 |
owner's
address is not publicly available the notice shall be |
| 1481 |
mailed
to the unit describing the
intended action, giving the |
| 1482 |
association
the opportunity to fill the vacancies. |
| 1483 |
(3) If
during such time the association
fails to fill the |
| 1484 |
vacancies
within 30 days after the notice required by subsection |
| 1485 |
(1)
is posted and mailed or delivered, the unit owner may |
| 1486 |
proceed with the petition. |
| 1487 |
(4) If
a receiver is appointed, all unit owners
shall be |
| 1488 |
given
written notice of such appointment as provided in s. |
| 1489 |
718.127. |
| 1490 |
(5) The
association shall be responsible for the salary of |
| 1491 |
the receiver, court costs,
and attorney's fees. The receiver |
| 1492 |
shall have all powers and
duties of a duly constituted board of |
| 1493 |
administration and shall
serve until the association fills |
| 1494 |
vacancies on the board
sufficient to constitute a quorum and the |
| 1495 |
court
relieves the receiver of the appointment. |
| 1496 |
Section
9. Paragraph (a) of subsection (2) and subsection |
| 1497 |
(5) of section 718.113,
Florida Statutes, are amended, and |
| 1498 |
subsections (6) and (7)
are added to that section, to read: |
| 1499 |
718.113 Maintenance;
limitation upon improvement; display |
| 1500 |
of flag; hurricane
shutters; display of religious decorations.-- |
| 1501 |
(2)(a) Except
as otherwise provided in this section, there |
| 1502 |
shall be no material
alteration or substantial additions to the |
| 1503 |
common elements or to real
property which is association |
| 1504 |
property, except in a
manner provided in the declaration as |
| 1505 |
originally recorded or as
amended under the procedures provided |
| 1506 |
therein. If the
declaration as originally recorded or as amended |
| 1507 |
under the procedures
provided therein does not specify the |
| 1508 |
procedure for approval of
material alterations or substantial |
| 1509 |
additions, 75 percent of
the total voting interests of the |
| 1510 |
association must approve
the alterations or additions. This |
| 1511 |
paragraph
is intended to clarify existing law and applies to |
| 1512 |
associations
existing on October 1, 2008. |
| 1513 |
(5) Each
board of administration shall adopt hurricane |
| 1514 |
shutter specifications for
each building within each condominium |
| 1515 |
operated by the
association which shall include color, style, |
| 1516 |
and other factors deemed
relevant by the board. All |
| 1517 |
specifications adopted by
the board shall comply with the |
| 1518 |
applicable building code. Notwithstanding
any provision to the |
| 1519 |
contrary
in the condominium documents, if approval is required |
| 1520 |
by the
documents, a board shall not refuse to approve the |
| 1521 |
installation
or replacement of hurricane shutters conforming to |
| 1522 |
the
specifications adopted by the board. |
| 1523 |
(a) The
board may, subject to the provisions of s. |
| 1524 |
718.3026, and the approval
of a majority of voting interests of |
| 1525 |
the condominium, install
hurricane shutters or hurricane |
| 1526 |
protection
that complies with or exceeds the applicable building |
| 1527 |
code,
or both, except that a vote of the owners is not required |
| 1528 |
if the
maintenance, repair, and replacement of hurricane |
| 1529 |
shutters
or other forms of hurricane protection are the |
| 1530 |
responsibility
of the association pursuant to the declaration of |
| 1531 |
condominium
and may maintain, repair, or replace such
approved |
| 1532 |
hurricane
shutters, whether on or within common elements, |
| 1533 |
limited
common elements, units, or association property. |
| 1534 |
However, where hurricane
protection or laminated glass or window |
| 1535 |
film architecturally
designed to function as hurricane |
| 1536 |
protection which complies
with or exceeds the current
applicable |
| 1537 |
building code has been previously
installed, the board may not |
| 1538 |
install hurricane shutters
or other hurricane protection. |
| 1539 |
(b) The
association shall be responsible for the |
| 1540 |
maintenance,
repair, and replacement of the hurricane shutters |
| 1541 |
or
other hurricane protection authorized by this subsection if |
| 1542 |
such
hurricane shutters or other hurricane protection are the |
| 1543 |
responsibility
of the association pursuant to the declaration of |
| 1544 |
condominium.
If the hurricane shutters or other hurricane |
| 1545 |
protection
authorized by this subsection are the responsibility |
| 1546 |
of the
unit owners pursuant to the declaration of condominium, |
| 1547 |
the
responsibility for the maintenance, repair, and replacement |
| 1548 |
of such
items shall be the responsibility of the unit owner. |
| 1549 |
(c) The
board may operate shutters installed pursuant to |
| 1550 |
this subsection without
permission of the unit owners only where |
| 1551 |
such operation is
necessary to preserve and protect the |
| 1552 |
condominium property and
association property. The installation, |
| 1553 |
replacement, operation,
repair, and maintenance of such shutters |
| 1554 |
in accordance with the
procedures set forth herein shall not be |
| 1555 |
deemed a material
alteration to the common elements or |
| 1556 |
association property
within the meaning of this section. |
| 1557 |
(d) Notwithstanding
any provision to the contrary in the |
| 1558 |
condominium
documents, if approval is required by the documents, |
| 1559 |
a board
shall not refuse to approve the installation or |
| 1560 |
replacement
of hurricane shutters by a unit owner conforming to |
| 1561 |
the
specifications adopted by the board. |
| 1562 |
(6) As
to any condominium building greater than three |
| 1563 |
stories
in height, at least every 5 years, and within 5 years if |
| 1564 |
not
available for inspection on October 1, 2008, the board shall |
| 1565 |
have
the condominium building inspected to provide a report |
| 1566 |
under
seal of an architect or engineer authorized to practice in |
| 1567 |
this
state attesting to required maintenance, useful life, and |
| 1568 |
replacement
costs of the common elements. However, if approved |
| 1569 |
by a
majority of the voting interests present at a properly |
| 1570 |
called
meeting of the association, an association may waive this |
| 1571 |
requirement.
Such meeting and approval must occur prior to the |
| 1572 |
end of
the 5-year period and is effective only for that 5-year |
| 1573 |
period. |
| 1574 |
(7) An
association may not refuse the request of a unit |
| 1575 |
owner
for a reasonable accommodation for the attachment on the |
| 1576 |
mantle
or frame of the door of the unit owner a religious object |
| 1577 |
not to
exceed 3 inches wide, 6 inches high, and 1.5 inches deep. |
| 1578 |
Section
10. Paragraph (e) of subsection (1) of section |
| 1579 |
718.115, Florida Statutes,
is amended to read: |
| 1580 |
718.115 Common
expenses and common surplus.-- |
| 1581 |
(1) |
| 1582 |
(e) The
expense of installation, replacement, operation, |
| 1583 |
repair, and maintenance of
hurricane shutters or other hurricane |
| 1584 |
protection
by the board pursuant to s. 718.113(5) shall |
| 1585 |
constitute a common
expense as defined herein and shall be |
| 1586 |
collected as provided in
this section if the association is |
| 1587 |
responsible
for the maintenance, repair, and replacement of the |
| 1588 |
hurricane
shutters or other hurricane protection pursuant to the |
| 1589 |
declaration
of condominium. However, if the maintenance, repair, |
| 1590 |
and
replacement of the hurricane shutters or other hurricane |
| 1591 |
protection
is the responsibility of the unit owners pursuant to |
| 1592 |
the
declaration of condominium, the cost of the installation of |
| 1593 |
the
hurricane shutters or other hurricane protection shall not |
| 1594 |
be a
common expense, but shall be charged individually to the |
| 1595 |
unit
owners based on the cost of installation of the hurricane |
| 1596 |
shutters
or other hurricane protection appurtenant to the unit. |
| 1597 |
Notwithstanding the
provisions of s. 718.116(9), and regardless |
| 1598 |
of
whether or not the declaration requires the association or |
| 1599 |
unit
owners maintain, repair, or replace hurricane shutters or |
| 1600 |
other
hurricane protection a unit owner who has previously |
| 1601 |
installed hurricane
shutters in accordance with s. 718.113(5) |
| 1602 |
other
hurricane protection or laminated glass architecturally |
| 1603 |
designed to function as
hurricane protection, which hurricane |
| 1604 |
shutters
or other hurricane protection or laminated glass comply |
| 1605 |
complies
with the current applicable
building code shall receive |
| 1606 |
a credit equal to the pro
rata portion of the assessed |
| 1607 |
installation cost assigned
to each unit. However, such unit |
| 1608 |
owner shall remain
responsible for the pro rata share of |
| 1609 |
expenses for hurricane
shutters or other hurricane protection |
| 1610 |
installed on common
elements and association property by the |
| 1611 |
board pursuant to s.
718.113(5), and shall remain responsible |
| 1612 |
for a pro rata share of
the expense of the replacement, |
| 1613 |
operation, repair, and
maintenance of such shutters or other |
| 1614 |
hurricane
protection. |
| 1615 |
Section
11. Paragraph (a) of subsection (7) of section |
| 1616 |
718.117, Florida Statutes,
is amended to read: |
| 1617 |
718.117 Termination
of condominium.-- |
| 1618 |
(7) NATURAL
DISASTERS.-- |
| 1619 |
(a) If,
after a natural disaster, the identity of the |
| 1620 |
directors or their right
to hold office is in doubt, if they are |
| 1621 |
deceased or unable to act,
if they fail or refuse to act, or if |
| 1622 |
they cannot be located,
any interested person may petition the |
| 1623 |
circuit court to determine
the identity of the directors or, if |
| 1624 |
found to be in the best
interests of the unit owners, to appoint |
| 1625 |
a receiver to conclude the
affairs of the association after a |
| 1626 |
hearing following notice
to such persons as the court directs. |
| 1627 |
Lienholders shall be given
notice of the petition and have the |
| 1628 |
right to propose persons
for the consideration by the court as |
| 1629 |
receiver. If
a receiver is appointed, the court shall direct the |
| 1630 |
receiver
to provide to all unit owners written notice of his or |
| 1631 |
her
appointment as receiver. Such notice shall be mailed or |
| 1632 |
delivered
within 10 days after the appointment. Notice by mail |
| 1633 |
to a
unit owner shall be sent to the address used by the county |
| 1634 |
property
appraiser for notice to the unit owner. |
| 1635 |
Section
12. Subsection (4) is added to section 718.121, |
| 1636 |
Florida Statutes, to read: |
| 1637 |
718.121 Liens.-- |
| 1638 |
(4) Except
as otherwise provided in this chapter, no lien |
| 1639 |
may be
filed by the association against a condominium unit until |
| 1640 |
30 days
after the date on which a notice of intent to file a |
| 1641 |
lien
has been delivered to the owner by certified mail, return |
| 1642 |
receipt
requested, and by first-class United States mail to the |
| 1643 |
owner
at his or her last known address as reflected in the |
| 1644 |
records
of the association. However, if the address reflected in |
| 1645 |
the
records is outside the United States, then the notice must |
| 1646 |
be sent
by first-class United States mail to the unit and to the |
| 1647 |
last
known address by regular mail with international postage, |
| 1648 |
which
shall be deemed sufficient. Delivery of the notice shall |
| 1649 |
be
deemed given upon mailing as required by this subsection. |
| 1650 |
Alternatively,
notice shall be complete if served on the unit |
| 1651 |
owner
in the manner authorized by chapter 48 and the Florida |
| 1652 |
Rules
of Civil Procedure. |
| 1653 |
Section
13. Section 718.1224, Florida Statutes, is created |
| 1654 |
to read: |
| 1655 |
718.1224 Prohibition
against SLAPP suits.-- |
| 1656 |
(1) It
is the intent of the Legislature to protect the |
| 1657 |
right
of condominium unit owners to exercise their rights to |
| 1658 |
instruct
their representatives and petition for redress of |
| 1659 |
grievances
before the various governmental entities of this |
| 1660 |
state
as protected by the First Amendment to the United States |
| 1661 |
Constitution
and s. 5, Art. I of the State Constitution. The |
| 1662 |
Legislature
recognizes that strategic lawsuits against public |
| 1663 |
participation,
or "SLAPP suits," as they are typically referred |
| 1664 |
to,
have occurred when association members are sued by |
| 1665 |
individuals,
business entities, or governmental entities arising |
| 1666 |
out of
a condominium unit owner's appearance and presentation |
| 1667 |
before
a governmental entity on matters related to the |
| 1668 |
condominium
association. However, it is the public policy of |
| 1669 |
this
state that governmental entities, business organizations, |
| 1670 |
and
individuals not engage in SLAPP suits, because such actions |
| 1671 |
are
inconsistent with the right of condominium unit owners to |
| 1672 |
participate
in the state's institutions of government. |
| 1673 |
Therefore,
the Legislature finds and declares that prohibiting |
| 1674 |
such
lawsuits by governmental entities, business entities, and |
| 1675 |
individuals
against condominium unit owners who address matters |
| 1676 |
concerning
their condominium association will preserve this |
| 1677 |
fundamental
state policy, preserve the constitutional rights of |
| 1678 |
condominium
unit owners, and ensure the continuation of |
| 1679 |
representative
government in this state. It is the intent of the |
| 1680 |
Legislature
that such lawsuits be expeditiously disposed of by |
| 1681 |
the
courts. As used in this subsection, the term "governmental |
| 1682 |
entity"
means the state, including the executive, legislative, |
| 1683 |
and
judicial branches of government; the independent |
| 1684 |
establishments
of the state, counties, municipalities, |
| 1685 |
districts,
authorities, boards, or commissions; or any agencies |
| 1686 |
of
these branches that are subject to chapter 286. |
| 1687 |
(2) A
governmental entity, business organization, or |
| 1688 |
individual
in this state may not file or cause to be filed |
| 1689 |
through
its employees or agents any lawsuit, cause of action, |
| 1690 |
claim,
cross-claim, or counterclaim against a condominium unit |
| 1691 |
owner
without merit and solely because such condominium unit |
| 1692 |
owner
has exercised the right to instruct his or her |
| 1693 |
representatives
or the right to petition for redress of |
| 1694 |
grievances
before the various governmental entities of this |
| 1695 |
state,
as protected by the First Amendment to the United States |
| 1696 |
Constitution
and s. 5, Art. I of the State Constitution. |
| 1697 |
(3) A
condominium unit owner sued by a governmental |
| 1698 |
entity,
business organization, or individual in violation of |
| 1699 |
this
section has a right to an expeditious resolution of a claim |
| 1700 |
that
the suit is in violation of this section. A condominium |
| 1701 |
unit
owner may petition the court for an order dismissing the |
| 1702 |
action
or granting final judgment in favor of that condominium |
| 1703 |
unit
owner. The petitioner may file a motion for summary |
| 1704 |
judgment,
together with supplemental affidavits, seeking a |
| 1705 |
determination
that the governmental entity's, business |
| 1706 |
organization's,
or individual's lawsuit has been brought in |
| 1707 |
violation
of this section. The governmental entity, business |
| 1708 |
organization,
or individual shall thereafter file its response |
| 1709 |
and any
supplemental affidavits. As soon as practicable, the |
| 1710 |
court
shall set a hearing on the petitioner's motion, which |
| 1711 |
shall
be held at the earliest possible time after the filing of |
| 1712 |
the
governmental entity's, business organization's, or |
| 1713 |
individual's
response. The court may award the condominium unit |
| 1714 |
owner
sued by the governmental entity, business organization, or |
| 1715 |
individual
actual damages arising from the governmental |
| 1716 |
entity's,
individual's, or business organization's violation of |
| 1717 |
this
section. A court may treble the damages awarded to a |
| 1718 |
prevailing
condominium unit owner and shall state the basis for |
| 1719 |
the
treble damages award in its judgment. The court shall award |
| 1720 |
the
prevailing party reasonable attorney's fees and costs |
| 1721 |
incurred
in connection with a claim that an action was filed in |
| 1722 |
violation
of this section. |
| 1723 |
(4) Condominium
associations may not expend association |
| 1724 |
funds
in prosecuting a SLAPP suit against a condominium unit |
| 1725 |
owner. |
| 1726 |
Section
14. Paragraph (b) of subsection (3) of section |
| 1727 |
718.1255, Florida
Statutes, is amended to read: |
| 1728 |
718.1255 Alternative
dispute resolution; voluntary |
| 1729 |
mediation; mandatory
nonbinding arbitration; legislative |
| 1730 |
findings.-- |
| 1731 |
(3) LEGISLATIVE
FINDINGS.-- |
| 1732 |
(b) The
Legislature finds that the courts are
becoming |
| 1733 |
overcrowded
with condominium and other disputes, and further |
| 1734 |
finds
that alternative dispute resolution has been making |
| 1735 |
progress in reducing court
dockets and trials and in offering a |
| 1736 |
more efficient,
cost-effective option to court litigation. |
| 1737 |
However, the Legislature
also finds that alternative dispute |
| 1738 |
resolution should not be
used as a mechanism to encourage the |
| 1739 |
filing of frivolous or
nuisance suits. |
| 1740 |
Section
15. Section 718.1265, Florida Statutes, is created |
| 1741 |
to read: |
| 1742 |
718.1265 Association
emergency powers.-- |
| 1743 |
(1) To
the extent allowed by law and unless specifically |
| 1744 |
prohibited
by the declaration of condominium, the articles, or |
| 1745 |
the
bylaws of an association, and consistent with the provisions |
| 1746 |
of s.
617.0830, the board of administration, in response to |
| 1747 |
damage
caused by an event for which a state of emergency is |
| 1748 |
declared
pursuant to s. 252.36 in the locale in which the |
| 1749 |
condominium
is located, may, but is not required to, exercise |
| 1750 |
the
following powers: |
| 1751 |
(a) Conduct
board meetings and membership meetings with |
| 1752 |
notice
given as is practicable. Such notice may be given in any |
| 1753 |
practicable
manner, including publication, radio, United States |
| 1754 |
mail,
the Internet, public service announcements, and |
| 1755 |
conspicuous
posting on the condominium property or any other |
| 1756 |
means
the board deems reasonable under the circumstances. Notice |
| 1757 |
of
board decisions may be communicated as provided in this |
| 1758 |
paragraph. |
| 1759 |
(b) Cancel
and reschedule any association meeting. |
| 1760 |
(c) Name
as assistant officers persons who are not |
| 1761 |
directors,
which assistant officers shall have the same |
| 1762 |
authority
as the executive officers to whom they are assistants |
| 1763 |
during
the state of emergency to accommodate the incapacity or |
| 1764 |
unavailability
of any officer of the association. |
| 1765 |
(d) Relocate
the association's principal office or |
| 1766 |
designate
alternative principal offices. |
| 1767 |
(e) Enter
into agreements with local counties and |
| 1768 |
municipalities
to assist counties and municipalities with debris |
| 1769 |
removal. |
| 1770 |
(f) Implement
a disaster plan before or immediately |
| 1771 |
following
the event for which a state of emergency is declared |
| 1772 |
which
may include, but is not limited to, shutting down or off |
| 1773 |
elevators;
electricity; water, sewer, or security systems; or |
| 1774 |
air
conditioners. |
| 1775 |
(g) Based
upon advice of emergency management officials or |
| 1776 |
upon
the advice of licensed professionals retained by the board, |
| 1777 |
determine
any portion of the condominium property unavailable |
| 1778 |
for
entry or occupancy by unit owners, family members, tenants, |
| 1779 |
guests,
agents, or invitees to protect the health, safety, or |
| 1780 |
welfare
of such persons. |
| 1781 |
(h) Require
the evacuation of the condominium property in |
| 1782 |
the
event of a mandatory evacuation order in the locale in which |
| 1783 |
the
condominium is located. Should any unit owner or other |
| 1784 |
occupant
of a condominium fail or refuse to evacuate the |
| 1785 |
condominium
property where the board has required evacuation, |
| 1786 |
the
association shall be immune from liability or injury to |
| 1787 |
persons
or property arising from such failure or refusal. |
| 1788 |
(i) Based
upon advice of emergency management officials or |
| 1789 |
upon
the advice of licensed professionals retained by the board, |
| 1790 |
determine
whether the condominium property can be safely |
| 1791 |
inhabited
or occupied. However, such determination is not |
| 1792 |
conclusive
as to any determination of habitability pursuant to |
| 1793 |
the
declaration. |
| 1794 |
(j) Mitigate
further damage, including taking action to |
| 1795 |
contract
for the removal of debris and to prevent or mitigate |
| 1796 |
the
spread of fungus, including, but not limited to, mold or |
| 1797 |
mildew,
by removing and disposing of wet drywall, insulation, |
| 1798 |
carpet,
cabinetry, or other fixtures on or within the |
| 1799 |
condominium
property, even if the unit owner is obligated by the |
| 1800 |
declaration
or law to insure or replace those fixtures and to |
| 1801 |
remove
personal property from a unit. |
| 1802 |
(k) Contract,
on behalf of any unit owner or owners, for |
| 1803 |
items
or services for which the owners are otherwise |
| 1804 |
individually
responsible for, but which are necessary to prevent |
| 1805 |
further
damage to the condominium property. In such event, the |
| 1806 |
unit
owner or owners on whose behalf the board has contracted |
| 1807 |
are
responsible for reimbursing the association for the actual |
| 1808 |
costs
of the items or services, and the association may use its |
| 1809 |
lien
authority provided by s. 718.116 to enforce collection of |
| 1810 |
the
charges. Without limitation, such items or services may |
| 1811 |
include
the drying of units, the boarding of broken windows or |
| 1812 |
doors,
and the replacement of damaged air conditioners or air |
| 1813 |
handlers
to provide climate control in the units or other |
| 1814 |
portions
of the property. |
| 1815 |
(l) Regardless
of any provision to the contrary and even |
| 1816 |
if such
authority does not specifically appear in the |
| 1817 |
declaration
of condominium, articles, or bylaws of the |
| 1818 |
association,
levy special assessments without a vote of the |
| 1819 |
owners. |
| 1820 |
(m) Without
unit owners' approval, borrow money and pledge |
| 1821 |
association
assets as collateral to fund emergency repairs and |
| 1822 |
carry
out the duties of the association when operating funds are |
| 1823 |
insufficient.
This paragraph does not limit the general |
| 1824 |
authority
of the association to borrow money, subject to such |
| 1825 |
restrictions
as are contained in the declaration of condominium, |
| 1826 |
articles,
or bylaws of the association. |
| 1827 |
(2) The
special powers authorized under subsection (1) |
| 1828 |
shall
be limited to that time reasonably necessary to protect |
| 1829 |
the
health, safety, and welfare of the association and the unit |
| 1830 |
owners
and the unit owners' family members, tenants, guests, |
| 1831 |
agents,
or invitees and shall be reasonably necessary to |
| 1832 |
mitigate
further damage and make emergency repairs. |
| 1833 |
Section
16. Section 718.127, Florida Statutes, is created |
| 1834 |
to read: |
| 1835 |
718.127 Receivership
notification.--Upon the appointment |
| 1836 |
of a
receiver by a court for any reason relating to a |
| 1837 |
condominium
association, the court shall direct the receiver to |
| 1838 |
provide
to all unit owners written notice of his or her |
| 1839 |
appointment
as receiver. Such notice shall be mailed or |
| 1840 |
delivered
within 10 days after the appointment. Notice by mail |
| 1841 |
to a
unit owner shall be sent to the address used by the county |
| 1842 |
property
appraiser for notice to the unit owner. |
| 1843 |
Section
17. Subsection (1) of section 718.301, Florida |
| 1844 |
Statutes, is amended, and
paragraph (p) is added to subsection |
| 1845 |
(4) of that section, to
read: |
| 1846 |
718.301 Transfer
of association control; claims of defect |
| 1847 |
by association.-- |
| 1848 |
(1) When
unit owners other than the developer own 15 |
| 1849 |
percent or more of the
units in a condominium that will be |
| 1850 |
operated ultimately by an
association, the unit owners other |
| 1851 |
than the developer shall
be entitled to elect no less than one- |
| 1852 |
third of the members of
the board of administration of the |
| 1853 |
association. Unit owners
other than the developer are entitled |
| 1854 |
to elect not less than a
majority of the members of the board of |
| 1855 |
administration of an
association: |
| 1856 |
(a) Three
years after 50 percent of the units that will be |
| 1857 |
operated ultimately by the
association have been conveyed to |
| 1858 |
purchasers; |
| 1859 |
(b) Three
months after 90 percent of the units that will |
| 1860 |
be operated ultimately by
the association have been conveyed to |
| 1861 |
purchasers; |
| 1862 |
(c) When
all the units that will be operated ultimately by |
| 1863 |
the association have been
completed, some of them have been |
| 1864 |
conveyed to purchasers,
and none of the others are being offered |
| 1865 |
for sale by the developer
in the ordinary course of business; |
| 1866 |
(d) When
some of the units have been conveyed to |
| 1867 |
purchasers and none of the
others are being constructed or |
| 1868 |
offered for sale by the
developer in the ordinary course of |
| 1869 |
business; or |
| 1870 |
(e) When
the developer files a petition seeking protection |
| 1871 |
in
bankruptcy; |
| 1872 |
(f) When
a receiver for the developer is appointed by a |
| 1873 |
circuit
court and is not discharged within 30 days after such |
| 1874 |
appointment;
or |
| 1875 |
(g)(e) Seven
years after recordation of the declaration of |
| 1876 |
condominium; or, in the
case of an association which may |
| 1877 |
ultimately operate more
than one condominium, 7 years after |
| 1878 |
recordation of the
declaration for the first condominium it |
| 1879 |
operates; or, in the case
of an association operating a phase |
| 1880 |
condominium created
pursuant to s. 718.403, 7 years after |
| 1881 |
recordation of the
declaration creating the initial phase, |
| 1882 |
|
| 1883 |
whichever occurs first.
The developer is entitled to elect at |
| 1884 |
least one member of the
board of administration of an |
| 1885 |
association as long as the
developer holds for sale in the |
| 1886 |
ordinary course of
business at least 5 percent, in condominiums |
| 1887 |
with fewer than 500 units,
and 2 percent, in condominiums with |
| 1888 |
more than 500 units, of
the units in a condominium operated by |
| 1889 |
the association. Following
the time the developer relinquishes |
| 1890 |
control of the
association, the developer may exercise the right |
| 1891 |
to vote any
developer-owned units in the same manner as any |
| 1892 |
other unit owner except
for purposes of reacquiring control of |
| 1893 |
the association or
selecting the majority members of the board |
| 1894 |
of administration. |
| 1895 |
(4) At
the time that unit owners other than the developer |
| 1896 |
elect a majority of the
members of the board of administration |
| 1897 |
of an association, the
developer shall relinquish control of the |
| 1898 |
association, and the unit
owners shall accept control. |
| 1899 |
Simultaneously, or for the
purposes of paragraph (c) not more |
| 1900 |
than 90 days thereafter,
the developer shall deliver to the |
| 1901 |
association, at the
developer's expense, all property of the |
| 1902 |
unit owners and of the
association which is held or controlled |
| 1903 |
by the developer,
including, but not limited to, the following |
| 1904 |
items, if applicable, as
to each condominium operated by the |
| 1905 |
association: |
| 1906 |
(p) A
report included in the official records, under seal |
| 1907 |
of an
architect or engineer authorized to practice in this |
| 1908 |
state,
attesting to required maintenance, useful life, and |
| 1909 |
replacement
costs of the following applicable common elements |
| 1910 |
comprising
a turnover inspection report: |
| 1911 |
1. Roof. |
| 1912 |
2. Structure. |
| 1913 |
3. Fireproofing
and fire protection systems. |
| 1914 |
4. Elevators. |
| 1915 |
5. Heating
and cooling systems. |
| 1916 |
6. Plumbing. |
| 1917 |
7. Electrical
systems. |
| 1918 |
8. Swimming
pool or spa and equipment. |
| 1919 |
9. Seawalls. |
| 1920 |
10. Pavement
and parking areas. |
| 1921 |
11. Drainage
systems. |
| 1922 |
12. Painting. |
| 1923 |
13. Irrigation
systems. |
| 1924 |
Section
18. Paragraph (f) is added to subsection (1) of |
| 1925 |
section 718.3025, Florida
Statutes, to read: |
| 1926 |
718.3025 Agreements
for operation, maintenance, or |
| 1927 |
management of
condominiums; specific requirements.-- |
| 1928 |
(1) No
written contract between a party contracting to |
| 1929 |
provide maintenance or
management services and an association |
| 1930 |
which contract provides
for operation, maintenance, or |
| 1931 |
management of a
condominium association or property serving the |
| 1932 |
unit owners of a
condominium shall be valid or enforceable |
| 1933 |
unless the contract: |
| 1934 |
(f) Discloses
any financial or ownership interest a board |
| 1935 |
member
or any party providing maintenance or management services |
| 1936 |
to the
association holds with the contracting party. |
| 1937 |
Section
19. Section 718.3026, Florida Statutes, is amended |
| 1938 |
to read: |
| 1939 |
718.3026 Contracts
for products and services; in writing; |
| 1940 |
bids;
exceptions.--Associations with 10 or fewer
with less than |
| 1941 |
100
units may opt out of the provisions of this section if two- |
| 1942 |
thirds of the unit owners
vote to do so, which opt-out may be |
| 1943 |
accomplished by a proxy
specifically setting forth the exception |
| 1944 |
from this section. |
| 1945 |
(1) All
contracts as further described herein or any |
| 1946 |
contract that is not to be
fully performed within 1 year after |
| 1947 |
the making thereof, for
the purchase, lease, or renting of |
| 1948 |
materials or equipment to
be used by the association in |
| 1949 |
accomplishing its purposes
under this chapter, and all contracts |
| 1950 |
for the provision of
services, shall be in writing. If a |
| 1951 |
contract for the purchase,
lease, or renting of materials or |
| 1952 |
equipment, or for the
provision of services, requires payment by |
| 1953 |
the association on behalf
of any condominium operated by the |
| 1954 |
association in the
aggregate that exceeds 5 percent of the total |
| 1955 |
annual budget of the
association, including reserves, the |
| 1956 |
association shall obtain
competitive bids for the materials, |
| 1957 |
equipment, or services.
Nothing contained herein shall be |
| 1958 |
construed to require the
association to accept the lowest bid. |
| 1959 |
(2)(a)1. Notwithstanding
the foregoing, contracts with |
| 1960 |
employees of the
association, and contracts for attorney, |
| 1961 |
accountant, architect,
community association manager, timeshare |
| 1962 |
management firm,
engineering, and landscape architect services |
| 1963 |
are not subject to the
provisions of this section. |
| 1964 |
2. A
contract executed before January 1, 1992, and any |
| 1965 |
renewal
thereof, is not subject to the competitive bid |
| 1966 |
requirements
of this section. If a contract was awarded under |
| 1967 |
the
competitive bid procedures of this section, any renewal of |
| 1968 |
that
contract is not subject to such competitive bid |
| 1969 |
requirements
if the contract contains a provision that allows |
| 1970 |
the
board to cancel the contract on 30 days' notice. Materials, |
| 1971 |
equipment,
or services provided to a condominium under a local |
| 1972 |
government
franchise agreement by a franchise holder are not |
| 1973 |
subject
to the competitive bid requirements of this section. A |
| 1974 |
contract
with a manager, if made by a competitive bid, may be |
| 1975 |
made
for up to 3 years. A condominium whose declaration or |
| 1976 |
bylaws
provides for competitive bidding for services may operate |
| 1977 |
under
the provisions of that declaration or bylaws in lieu of |
| 1978 |
this
section if those provisions are not less stringent than the |
| 1979 |
requirements
of this section. |
| 1980 |
(b) Nothing
contained herein is intended to limit the |
| 1981 |
ability of an association
to obtain needed products and services |
| 1982 |
in an emergency. |
| 1983 |
(c) This
section shall not apply if the business entity |
| 1984 |
with which the association
desires to enter into a contract is |
| 1985 |
the only source of supply
within the county serving the |
| 1986 |
association. |
| 1987 |
(d) Nothing
contained herein shall excuse a party |
| 1988 |
contracting to provide
maintenance or management services from |
| 1989 |
compliance with s.
718.3025. |
| 1990 |
(3) As
to any contract or other transaction between an |
| 1991 |
association
and one or more of its directors or any other |
| 1992 |
corporation,
firm, association, or entity in which one or more |
| 1993 |
of its
directors are directors or officers or are financially |
| 1994 |
interested: |
| 1995 |
(a) The
association shall comply with the requirements of |
| 1996 |
s.
617.0832. |
| 1997 |
(b) The
disclosures required by s. 617.0832 shall be |
| 1998 |
entered
into the written minutes of the meeting. |
| 1999 |
(c) Approval
of the contract or other transaction shall |
| 2000 |
require
an affirmative vote of two-thirds of the directors |
| 2001 |
present. |
| 2002 |
(d) At
the next regular or special meeting of the members, |
| 2003 |
the
existence of the contract or other transaction shall be |
| 2004 |
disclosed
to the members. Upon motion of any member, the |
| 2005 |
contract
or transaction shall be brought up for a vote and may |
| 2006 |
be
canceled by a majority vote of the members present. Should |
| 2007 |
the
members cancel the contract, the association shall only be |
| 2008 |
liable
for the reasonable value of goods and services provided |
| 2009 |
up to
the time of cancellation and shall not be liable for any |
| 2010 |
termination
fee, liquidated damages, or other form of penalty |
| 2011 |
for
such cancellation. |
| 2012 |
Section
20. Subsection (3) of section 718.303, Florida |
| 2013 |
Statutes, is amended to
read: |
| 2014 |
718.303 Obligations
of owners; waiver; levy of fine |
| 2015 |
against unit by
association.-- |
| 2016 |
(3) If
the declaration or bylaws so provide, the |
| 2017 |
association may levy
reasonable fines against a unit for the |
| 2018 |
failure of the owner of
the unit, or its occupant, licensee, or |
| 2019 |
invitee, to comply with
any provision of the declaration, the |
| 2020 |
association bylaws, or
reasonable rules of the association. No |
| 2021 |
fine will become a lien
against a unit. No fine may exceed $100 |
| 2022 |
per violation. However, a
fine may be levied on the basis of |
| 2023 |
each day of a continuing
violation, with a single notice and |
| 2024 |
opportunity for hearing,
provided that no such fine shall in the |
| 2025 |
aggregate exceed $1,000.
No fine may be levied except after |
| 2026 |
giving reasonable notice
and opportunity for a hearing to the |
| 2027 |
unit owner and, if
applicable, its licensee or invitee. The |
| 2028 |
hearing must be held
before a committee of other unit owners who |
| 2029 |
are
neither board members nor persons residing in a board |
| 2030 |
member's
household. If the committee does not agree with the |
| 2031 |
fine, the fine may not be
levied. The provisions of this |
| 2032 |
subsection do not apply to
unoccupied units. |
| 2033 |
Section
21. Section 718.501, Florida Statutes, is amended |
| 2034 |
to read: |
| 2035 |
718.501 Authority,
responsibility, Powers and duties of |
| 2036 |
Division of Florida Land
Sales, Condominiums, and Mobile |
| 2037 |
Homes.-- |
| 2038 |
(1) The
Division of Florida Land Sales, Condominiums, and |
| 2039 |
Mobile Homes of the
Department of Business and Professional |
| 2040 |
Regulation, referred to as
the "division" in this part, in |
| 2041 |
addition to other powers
and duties prescribed by chapter 498, |
| 2042 |
has the power to enforce
and ensure compliance with the |
| 2043 |
provisions of this chapter
and rules promulgated pursuant hereto |
| 2044 |
relating to the
development, construction, sale, lease, |
| 2045 |
ownership, operation, and
management of residential condominium |
| 2046 |
units. In performing its
duties, the division has complete |
| 2047 |
jurisdiction
to investigate complaints and enforce compliance |
| 2048 |
with
the provisions of this chapter with respect to associations |
| 2049 |
that
are still under developer control and complaints against |
| 2050 |
developers
involving improper turnover or failure to turnover, |
| 2051 |
pursuant
to s. 718.301. However, after turnover has occurred, |
| 2052 |
the
division shall only have jurisdiction to investigate |
| 2053 |
complaints
related to financial issues, elections, and unit |
| 2054 |
owner
access to association records pursuant to s. 718.111(12). |
| 2055 |
the
following powers and duties: |
| 2056 |
(a) The
division may make necessary public or private |
| 2057 |
investigations within or
outside this state to determine whether |
| 2058 |
any person has violated
this chapter or any rule or order |
| 2059 |
hereunder, to aid in the
enforcement of this chapter, or to aid |
| 2060 |
in the adoption of rules
or forms hereunder. |
| 2061 |
(b) The
division may require or permit any person to file |
| 2062 |
a statement in writing,
under oath or otherwise, as the division |
| 2063 |
determines, as to the
facts and circumstances concerning a |
| 2064 |
matter to be investigated. |
| 2065 |
(c) For
the purpose of any investigation under this |
| 2066 |
chapter, the division
director or any officer or employee |
| 2067 |
designated by the division
director may administer oaths or |
| 2068 |
affirmations, subpoena
witnesses and compel their attendance, |
| 2069 |
take evidence, and require
the production of any matter which is |
| 2070 |
relevant to the
investigation, including the existence, |
| 2071 |
description, nature,
custody, condition, and location of any |
| 2072 |
books, documents, or other
tangible things and the identity and |
| 2073 |
location of persons having
knowledge of relevant facts or any |
| 2074 |
other matter reasonably
calculated to lead to the discovery of |
| 2075 |
material evidence. Upon
the failure by a person to obey a |
| 2076 |
subpoena or to answer
questions propounded by the investigating |
| 2077 |
officer and upon
reasonable notice to all persons affected |
| 2078 |
thereby, the division may
apply to the circuit court for an |
| 2079 |
order compelling
compliance. |
| 2080 |
(d) Notwithstanding
any remedies available to unit owners |
| 2081 |
and associations, if the
division has reasonable cause to |
| 2082 |
believe that a violation
of any provision of this chapter or |
| 2083 |
rule promulgated pursuant
hereto has occurred, the division may |
| 2084 |
institute enforcement
proceedings in its own name against any |
| 2085 |
developer, association,
officer, or member of the board of |
| 2086 |
administration, or its
assignees or agents, as follows: |
| 2087 |
1. The
division may permit a person whose conduct or |
| 2088 |
actions may be under
investigation to waive formal proceedings |
| 2089 |
and enter into a consent
proceeding whereby orders, rules, or |
| 2090 |
letters of censure or
warning, whether formal or informal, may |
| 2091 |
be entered against the
person. |
| 2092 |
2. The
division may issue an order requiring the |
| 2093 |
developer, association, developer-designated
officer, or |
| 2094 |
developer-designated
member of the board of administration, or |
| 2095 |
developer-designated
its assignees or agents, community |
| 2096 |
association
manager, or community association management firm to |
| 2097 |
cease and desist from the
unlawful practice and take such |
| 2098 |
affirmative action as in
the judgment of the division will carry |
| 2099 |
out the purposes of this
chapter. Such affirmative action may |
| 2100 |
include, but is not
limited to, an order requiring a developer |
| 2101 |
to pay moneys determined
to be owed to a condominium |
| 2102 |
association. |
| 2103 |
3. If
a developer fails to pay any restitution determined |
| 2104 |
by the
division to be owed, plus any accrued interest at the |
| 2105 |
highest
rate permitted by law, within 30 days after expiration |
| 2106 |
of any
appellate time period of a final order requiring payment |
| 2107 |
of
restitution or the conclusion of any appeal thereof, |
| 2108 |
whichever
is later, the division shall bring an action in |
| 2109 |
circuit
or county court on behalf of any association, class of |
| 2110 |
unit
owners, lessees, or purchasers for restitution, declaratory |
| 2111 |
relief,
injunctive relief, or any other available remedy. The |
| 2112 |
division
may also temporarily revoke its acceptance of the |
| 2113 |
filing
for the developer to which the restitution relates until |
| 2114 |
payment
of restitution is made. The
division may bring an action |
| 2115 |
in
circuit court on behalf of a class of unit owners, lessees, |
| 2116 |
or
purchasers for declaratory relief, injunctive relief, or |
| 2117 |
restitution. |
| 2118 |
4. The
division may impose a civil penalty against a |
| 2119 |
developer or association,
or its assignee or agent, for any |
| 2120 |
violation of this chapter
or a rule promulgated pursuant hereto. |
| 2121 |
The division may impose a
civil penalty individually against any |
| 2122 |
officer or board member
who willfully and knowingly violates a |
| 2123 |
provision of this chapter,
a rule adopted pursuant hereto, or a |
| 2124 |
final order of the
division; may order the removal of such |
| 2125 |
individual
as an officer or from the board of administration or |
| 2126 |
as an
officer of the association; and may prohibit such |
| 2127 |
individual
from serving as an officer or on the board of a |
| 2128 |
community
association for a period of time. The term
"willfully |
| 2129 |
and knowingly" means
that the division informed the officer or |
| 2130 |
board member that his or
her action or intended action violates |
| 2131 |
this chapter, a rule
adopted under this chapter, or a final |
| 2132 |
order of the division and
that the officer or board member |
| 2133 |
refused to comply with the
requirements of this chapter, a rule |
| 2134 |
adopted under this
chapter, or a final order of the division. |
| 2135 |
The division, prior to
initiating formal agency action under |
| 2136 |
chapter 120, shall afford
the officer or board member an |
| 2137 |
opportunity to voluntarily
comply with this chapter, a rule |
| 2138 |
adopted under this
chapter, or a final order of the division. An |
| 2139 |
officer or board member
who complies within 10 days is not |
| 2140 |
subject to a civil
penalty. A penalty may be imposed on the |
| 2141 |
basis of each day of
continuing violation, but in no event shall |
| 2142 |
the penalty for any
offense exceed $5,000. By January 1, 1998, |
| 2143 |
the division shall adopt,
by rule, penalty guidelines applicable |
| 2144 |
to possible violations or
to categories of violations of this |
| 2145 |
chapter or rules adopted
by the division. The guidelines must |
| 2146 |
specify a meaningful range
of civil penalties for each such |
| 2147 |
violation of the statute
and rules and must be based upon the |
| 2148 |
harm caused by the
violation, the repetition of the violation, |
| 2149 |
and upon such other
factors deemed relevant by the division. For |
| 2150 |
example, the division may
consider whether the violations were |
| 2151 |
committed by a developer
or owner-controlled association, the |
| 2152 |
size of the association,
and other factors. The guidelines must |
| 2153 |
designate the possible
mitigating or aggravating circumstances |
| 2154 |
that justify a departure
from the range of penalties provided by |
| 2155 |
the rules. It is the
legislative intent that minor violations be |
| 2156 |
distinguished from those
which endanger the health, safety, or |
| 2157 |
welfare of the condominium
residents or other persons and that |
| 2158 |
such guidelines provide
reasonable and meaningful notice to the |
| 2159 |
public of likely penalties
that may be imposed for proscribed |
| 2160 |
conduct. This subsection
does not limit the ability of the |
| 2161 |
division to informally
dispose of administrative actions or |
| 2162 |
complaints by stipulation,
agreed settlement, or consent order. |
| 2163 |
All amounts collected
shall be deposited with the Chief |
| 2164 |
Financial Officer to the
credit of the Division of Florida Land |
| 2165 |
Sales, Condominiums, and
Mobile Homes Trust Fund. If a developer |
| 2166 |
fails to pay the civil
penalty and the amount deemed to be owed |
| 2167 |
to
the association, the division shall thereupon issue an
order |
| 2168 |
directing that such
developer cease and desist from further |
| 2169 |
operation until such time
as the civil penalty is paid or may |
| 2170 |
pursue enforcement of the
penalty in a court of competent |
| 2171 |
jurisdiction. If an
association fails to pay the civil penalty, |
| 2172 |
the division shall
thereupon pursue enforcement in a court of |
| 2173 |
competent jurisdiction,
and the order imposing the civil penalty |
| 2174 |
or the cease and desist
order will not become effective until 20 |
| 2175 |
days after the date of
such order. Any action commenced by the |
| 2176 |
division shall be brought
in the county in which the division |
| 2177 |
has its executive offices
or in the county where the violation |
| 2178 |
occurred. |
| 2179 |
5. If
a unit owner presents the division with proof that |
| 2180 |
the
unit owner has requested access to official records in |
| 2181 |
writing
by certified mail, and that after 10 days the unit owner |
| 2182 |
again
made the same request for access to official records in |
| 2183 |
writing
by certified mail, and that more than 10 days has |
| 2184 |
elapsed
since the second request and the association has still |
| 2185 |
failed
or refused to provide access to official records as |
| 2186 |
required
by this chapter, the division shall issue a subpoena |
| 2187 |
requiring
production of the requested records where the records |
| 2188 |
are
kept pursuant to s. 718.112. |
| 2189 |
(e) The
division is authorized to prepare and disseminate |
| 2190 |
a prospectus and other
information to assist prospective owners, |
| 2191 |
purchasers, lessees, and
developers of residential condominiums |
| 2192 |
in assessing the rights,
privileges, and duties pertaining |
| 2193 |
thereto. |
| 2194 |
(f) The
division has authority to adopt rules pursuant to |
| 2195 |
ss. 120.536(1) and 120.54
to implement and enforce the |
| 2196 |
provisions of this
chapter. |
| 2197 |
(g) The
division shall establish procedures for providing |
| 2198 |
notice to an association and
the developer during the period |
| 2199 |
where
the developer controls the association when the division |
| 2200 |
is considering the
issuance of a declaratory statement with |
| 2201 |
respect to the declaration
of condominium or any related |
| 2202 |
document governing in such
condominium community. |
| 2203 |
(h) The
division shall furnish each association which pays |
| 2204 |
the fees required by
paragraph (2)(a) a copy of this act, |
| 2205 |
subsequent changes to this
act on an annual basis, an amended |
| 2206 |
version of this act as it
becomes available from the Secretary |
| 2207 |
of State's office on a
biennial basis, and the rules promulgated |
| 2208 |
pursuant thereto on an
annual basis. |
| 2209 |
(i) The
division shall annually provide each association |
| 2210 |
with a summary of
declaratory statements and formal legal |
| 2211 |
opinions relating to the
operations of condominiums which were |
| 2212 |
rendered by the division
during the previous year. |
| 2213 |
(j) The
division shall provide training and educational |
| 2214 |
programs for condominium
association board members and unit |
| 2215 |
owners. The
training may, in the division's discretion, include |
| 2216 |
web-based
electronic media, and live training and seminars in |
| 2217 |
various
locations throughout the state. The division shall have |
| 2218 |
the
authority to review and approve education and training |
| 2219 |
programs
for board members and unit owners offered by providers |
| 2220 |
and
shall maintain a current list of approved programs and |
| 2221 |
providers
and shall make such list available to board members |
| 2222 |
and
unit owners in a reasonable and cost-effective manner. |
| 2223 |
(k) The
division shall maintain a toll-free telephone |
| 2224 |
number accessible to
condominium unit owners. |
| 2225 |
(l) The
division shall develop a program to certify both |
| 2226 |
volunteer and paid
mediators to provide mediation of condominium |
| 2227 |
disputes. The division
shall provide, upon request, a list of |
| 2228 |
such mediators to any
association, unit owner, or other |
| 2229 |
participant in arbitration
proceedings under s. 718.1255 |
| 2230 |
requesting a copy of the
list. The division shall include on the |
| 2231 |
list of volunteer
mediators only the names of persons who have |
| 2232 |
received at least 20 hours
of training in mediation techniques |
| 2233 |
or who have mediated at
least 20 disputes. In order to become |
| 2234 |
initially certified by the
division, paid mediators must be |
| 2235 |
certified by the Supreme
Court to mediate court cases in either |
| 2236 |
county or circuit courts.
However, the division may adopt, by |
| 2237 |
rule, additional factors
for the certification of paid |
| 2238 |
mediators, which factors
must be related to experience, |
| 2239 |
education, or background.
Any person initially certified as a |
| 2240 |
paid mediator by the
division must, in order to continue to be |
| 2241 |
certified, comply with the
factors or requirements imposed by |
| 2242 |
rules adopted by the
division. |
| 2243 |
(m) When
a complaint is made, the division shall conduct |
| 2244 |
its inquiry with due
regard to the interests of the affected |
| 2245 |
parties. Within 30 days
after receipt of a complaint, the |
| 2246 |
division shall acknowledge
the complaint in writing and notify |
| 2247 |
the complainant whether
the complaint is within the jurisdiction |
| 2248 |
of the division and
whether additional information is needed by |
| 2249 |
the division from the
complainant. The division shall conduct |
| 2250 |
its investigation and
shall, within 90 days after receipt of the |
| 2251 |
original complaint or of
timely requested additional |
| 2252 |
information, take action
upon the complaint. However, the |
| 2253 |
failure to complete the
investigation within 90 days does not |
| 2254 |
prevent the division from
continuing the investigation, |
| 2255 |
accepting or considering
evidence obtained or received after 90 |
| 2256 |
days, or taking
administrative action if reasonable cause exists |
| 2257 |
to believe that a
violation of this chapter or a rule of the |
| 2258 |
division has occurred. If
an investigation is not completed |
| 2259 |
within the time limits
established in this paragraph, the |
| 2260 |
division shall, on a
monthly basis, notify the complainant in |
| 2261 |
writing of the status of
the investigation. When reporting its |
| 2262 |
action to the complainant,
the division shall inform the |
| 2263 |
complainant of any right
to a hearing pursuant to ss. 120.569 |
| 2264 |
and 120.57. |
| 2265 |
(n) Condominium
association directors, officers, and |
| 2266 |
employees;
condominium developers; community association |
| 2267 |
managers;
and community association management firms have an |
| 2268 |
ongoing
duty to reasonably cooperate with the division in any |
| 2269 |
investigation
pursuant to this section. The division shall refer |
| 2270 |
to
local law enforcement authorities any person whom the |
| 2271 |
division
believes has altered, destroyed, concealed, or removed |
| 2272 |
any
record, document, or thing required to be kept or maintained |
| 2273 |
by this
chapter with the purpose to impair its verity or |
| 2274 |
availability
in the department's investigation. |
| 2275 |
(2)(a) Effective
January 1, 1992, Each condominium |
| 2276 |
association which operates
more than two units shall pay to the |
| 2277 |
division an annual fee in
the amount of $4 for each residential |
| 2278 |
unit in condominiums
operated by the association. If the fee is |
| 2279 |
not paid by March 1, then
the association shall be assessed a |
| 2280 |
penalty of 10 percent of
the amount due, and the association |
| 2281 |
will not have standing to
maintain or defend any action in the |
| 2282 |
courts of this state until
the amount due, plus any penalty, is |
| 2283 |
paid. |
| 2284 |
(b) All
fees shall be deposited in the Division of Florida |
| 2285 |
Land Sales, Condominiums,
and Mobile Homes Trust Fund as |
| 2286 |
provided by law. |
| 2287 |
Section
22. Subsection (9) of section 718.5012, Florida |
| 2288 |
Statutes, is renumbered as
subsection (10), and a new subsection |
| 2289 |
(9) is added to that
section to read: |
| 2290 |
718.5012 Ombudsman;
powers and duties.--The ombudsman |
| 2291 |
shall have the powers that
are necessary to carry out the duties |
| 2292 |
of his or her office,
including the following specific powers: |
| 2293 |
(9) To
assist with the resolution of disputes between unit |
| 2294 |
owners
and the association or between unit owners when the |
| 2295 |
dispute
is not within the jurisdiction of the division to |
| 2296 |
resolve. |
| 2297 |
Section
23. Section 718.50151, Florida Statutes, is |
| 2298 |
amended to read: |
| 2299 |
718.50151 Community
Association Living Study Advisory |
| 2300 |
Council; membership
functions.-- |
| 2301 |
(1) There
is created the Community Association Living |
| 2302 |
Study
Advisory Council on
Condominiums. The council shall |
| 2303 |
consist of seven appointed
members. Two members shall be |
| 2304 |
appointed by the President
of the Senate, two members shall be |
| 2305 |
appointed by the Speaker
of the House of Representatives, and |
| 2306 |
three members shall be
appointed by the Governor. At least One |
| 2307 |
member that is appointed
by the Governor may shall
represent |
| 2308 |
timeshare condominiums. The
council shall be created as of |
| 2309 |
October
1 every 5 years, commencing October 1, 2008, and shall |
| 2310 |
exist
for a 6-month term. Members
shall be appointed to 2-year |
| 2311 |
terms;
however, one of the persons initially appointed by the |
| 2312 |
Governor,
by the President of the Senate, and by the Speaker of |
| 2313 |
the
House of Representatives shall be appointed to a 1-year |
| 2314 |
term.
The director of the division shall appoint
serve as an ex |
| 2315 |
officio nonvoting member.
The Legislature intends that the |
| 2316 |
persons appointed
represent a cross-section of persons |
| 2317 |
interested in community
association condominium
issues. The |
| 2318 |
council shall be located
within the division for administrative |
| 2319 |
purposes. Members of the
council shall serve without |
| 2320 |
compensation but are
entitled to receive per diem and travel |
| 2321 |
expenses pursuant to s.
112.061 while on official business. |
| 2322 |
(2) The
functions of the advisory
council shall be to: |
| 2323 |
(a) Receive,
from the public, input regarding issues of |
| 2324 |
concern with respect to community
association living, including |
| 2325 |
living
in condominiums, cooperatives,
and homeowners' |
| 2326 |
associations.
The council shall make and
recommendations for |
| 2327 |
changes in the condominium
law related to community association |
| 2328 |
living.
The issues that the council shall consider include, but |
| 2329 |
are not limited to, the
rights and responsibilities of the unit |
| 2330 |
owners in relation to the
rights and responsibilities of the |
| 2331 |
association. |
| 2332 |
(b) Review,
evaluate, and advise the division concerning |
| 2333 |
revisions and adoption of
rules affecting condominiums and |
| 2334 |
cooperatives. |
| 2335 |
(c) Recommend
improvements, if needed, in the education |
| 2336 |
programs offered by the
division. |
| 2337 |
(d) Review,
evaluate, and advise the Legislature |
| 2338 |
concerning
revisions and improvements to the laws relating to |
| 2339 |
condominiums,
cooperatives, and homeowners' associations. |
| 2340 |
(3) The
council may elect a chair and vice chair and such |
| 2341 |
other officers as it may
deem advisable. The council shall meet |
| 2342 |
at the call of its chair,
at the request of a majority of its |
| 2343 |
membership, at the request
of the division, or at such times as |
| 2344 |
it may prescribe. A
majority of the members of the council shall |
| 2345 |
constitute a quorum.
Council action may be taken by vote of a |
| 2346 |
majority of the voting
members who are present at a meeting |
| 2347 |
where there is a quorum. |
| 2348 |
Section
24. Paragraph (a) of subsection (2) of section |
| 2349 |
718.503, Florida Statutes,
is amended to read: |
| 2350 |
718.503 Developer
disclosure prior to sale; nondeveloper |
| 2351 |
unit owner disclosure
prior to sale; voidability.-- |
| 2352 |
(2) NONDEVELOPER
DISCLOSURE.-- |
| 2353 |
(a) Each
unit owner who is not a developer as defined by |
| 2354 |
this chapter shall comply
with the provisions of this subsection |
| 2355 |
prior to the sale of his
or her unit. Each prospective purchaser |
| 2356 |
who has entered into a
contract for the purchase of a |
| 2357 |
condominium unit is
entitled, at the seller's expense, to a |
| 2358 |
current copy of the
declaration of condominium, articles of |
| 2359 |
incorporation of the
association, bylaws and rules of the |
| 2360 |
association, financial
information required by s. 718.111, and |
| 2361 |
the document entitled
"Frequently Asked Questions and Answers" |
| 2362 |
required by s. 718.504. On
and after January 1, 2009, the |
| 2363 |
prospective
purchaser shall also be entitled to receive from the |
| 2364 |
seller
a copy of a governance form. Such form shall be provided |
| 2365 |
by the
division summarizing governance of condominium |
| 2366 |
associations.
In addition to such other information as the |
| 2367 |
division
considers helpful to a prospective purchaser in |
| 2368 |
understanding
association governance, the governance form shall |
| 2369 |
address
the following subjects: |
| 2370 |
1. The
role of the board in conducting the day-to-day |
| 2371 |
affairs
of the association on behalf of, and in the best |
| 2372 |
interests
of, the owners. |
| 2373 |
2. The
board's responsibility to provide advance notice of |
| 2374 |
board
and membership meetings. |
| 2375 |
3. The
rights of owners to attend and speak at board and |
| 2376 |
membership
meetings. |
| 2377 |
4. The
responsibility of the board and of owners with |
| 2378 |
respect
to maintenance of the condominium property. |
| 2379 |
5. The
responsibility of the board and owners to abide by |
| 2380 |
the
condominium documents, this chapter, rules adopted by the |
| 2381 |
division,
and reasonable rules adopted by the board. |
| 2382 |
6. Owners'
rights to inspect and copy association records |
| 2383 |
and the
limitations on such rights. |
| 2384 |
7. Remedies
available to owners with respect to actions by |
| 2385 |
the
board which may be abusive or beyond the board's power and |
| 2386 |
authority. |
| 2387 |
8. The
right of the board to hire a property management |
| 2388 |
firm,
subject to its own primary responsibility for such |
| 2389 |
management. |
| 2390 |
9. The
responsibility of owners with regard to payment of |
| 2391 |
regular
or special assessments necessary for the operation of |
| 2392 |
the
property and the potential consequences of failure to pay |
| 2393 |
such
assessments. |
| 2394 |
10. The
voting rights of owners. |
| 2395 |
11. Rights
and obligations of the board in enforcement of |
| 2396 |
rules
in the condominium documents and rules adopted by the |
| 2397 |
board. |
| 2398 |
|
| 2399 |
The
governance form shall also include the following statement |
| 2400 |
in
conspicuous type: "This publication is intended as an |
| 2401 |
informal
educational overview of condominium governance. In the |
| 2402 |
event
of a conflict, the provisions of chapter 718, Florida |
| 2403 |
Statutes,
rules adopted by the Division of Florida Land Sales, |
| 2404 |
Condominiums,
and Mobile Homes of the Department of Business and |
| 2405 |
Professional
Regulation, the provisions of the condominium |
| 2406 |
documents,
and reasonable rules adopted by the condominium |
| 2407 |
association's
board of administration prevail over the contents |
| 2408 |
of this
publication." |
| 2409 |
Section
25. This act shall take effect October 1, 2008. |