| HB 1229
Relating to Community Associations |
|
Last Action: 05/06/2005 H Died in Committee on State Administration Appropriations (FC) H 1229 GENERAL BILL by Representative Julio Robaina : Co-Sponsors: Anitere Flores, Priscilla Taylor, David Rivera, Juan Zapata
Referred Committees and Committee Actions: STAFF ANALYSIS (OLD) State Administration Appropriations Committee Justice Council
Amendment (with title amendment)
Section 1. Subsections (3), (4), and (5) of section 468.431, Florida Statutes, are renumbered as subsections (4), (5), and (6), respectively, the renumbered subsection (4) is amended, and a new subsection (3) is added to said section to read: 468.431 Definitions.-- (3) “Community association management firm” means a corporation, limited liability company, partnership, trust, association, sole proprietorship or other like organization engaging in the business of community association management to provide any of the services described in subsection (2).
(4
(5
(6 Section 2. Paragraph (a) of subsection (1) of section 468.4315, Florida Statutes, is amended to read: 468.4315 Regulatory Council of Community Association Managers.-- (1) The Regulatory Council of Community Association Managers is created within the department and shall consist of seven members appointed by the Governor and confirmed by the Senate.
(a) Five
members of the council shall be licensed community association managers, one of
whom may Section 3. Section 468.432, Florida Statutes, is amended to read: 468.432 Licensure of community association managers; community association management firms; exceptions.-- (1) A person shall not manage or hold herself or himself out to the public as being able to manage a community association in this state unless she or he is licensed by the department in accordance with the provisions of this part. However, nothing in this part prohibits any person licensed in this state under any other law or court rule from engaging in the profession for which she or he is licensed.
(2)
(a)
As of January 1, 2006, a community
association management firm or other like organization shall not engage nor hold
itself out to the public as being able to engage in the business of community
association management in this state unless it is licensed by the department as
a community association management firm in accordance with the provisions of
this part.
(b) A
community association management firm or other like organization desiring to be
licensed as a community association management firm shall apply to the
department on a form approved by the department together with the application
and licensure fees required by ss. 468.435(1)(a) and 468.435(1)(g). Each
community association management firm applying for licensure under this
subsection must be actively registered and authorized to do business in this
state.
(c) On
its application each applicant shall designate a licensed community association
manager who shall be required to respond to all inquires from and investigations
by the department or division.
(d)
Each licensed community association management firm shall notify the
department within thirty days of the change of information contained in the
application upon which licensure is based.
(e) A
community association management firm license shall expire September 30 of even
numbered years and shall be renewed every two years.
An application for renewal shall be accompanied by the renewal fee as
required by s. 468.435(1)(d).
(f) The
department shall license each applicant who the department certifies as meeting
the requirements of his subsection.
(g)
If the license of at least one natural
person individual active community association manager member is not in force,
the license of the community association management firm or other like
organization is cancelled automatically during that time.
(h) Any community
association management firm or other like organization agrees by being licensed
that it will employ only licensed persons in the direct provision of community
association management services as defined in s. 468.431(2). Section 4. Paragraph (g) is added to subsection (1) of section 468.435, Florida Statutes, to read: 468.435 Fees; establishment; disposition.-- (1) The council shall, by rule, establish fees for the described purposes and within the ranges specified in this section: (g) Management firm license fee: not to exceed $250. Section 5. Section 468.436, Florida Statutes, is amended to read: 468.436 Disciplinary proceedings.-- (1) Upon a finding by the Division of Florida Land Sales, Condominiums, and Mobile Homes or the department, the following acts constitute grounds for which the disciplinary actions in subsection (3) may be taken: (a) Violation of any provision of s. 455.227(1). (b)1. Violation of any provision of this part. 2. Violation of any lawful order or rule rendered or adopted by the department or the council. 3. Being convicted of or pleading nolo contendere to a felony in any court in the United States. 4. Obtaining a license or certification or any other order, ruling, or authorization by means of fraud, misrepresentation, or concealment of material facts. 5. Committing acts of gross misconduct or gross negligence in connection with the profession.
6. Contracting,
on behalf of an association, with any entity in which the licensee has a
financial interest that is not disclosed. (2) The council shall specify by rule the acts or omissions that constitute a violation of subsection (1).
(3) When
the Division of Florida Land Sales, Condominiums, and
Mobile Homes or the department finds any community association
manager or firm guilty of any of the grounds
set forth in subsection (1), the department (a) Denial of an application for licensure. (b) Revocation or suspension of a license. (c) Imposition of an administrative fine not to exceed $5,000 for each count or separate offense. (d) Issuance of a reprimand. (e) Placement of the community association manager or firm on probation for a period of time and subject to such conditions as the department specifies. (f) Restriction of the authorized scope of practice by the community association manager or firm. (4) The department shall reissue the license of a disciplined community association manager or firm upon certification by the department that the disciplined person or firm has complied with all of the terms and conditions set forth in the final order. Section 6. Subsection (4) of section 718.110, Florida Statutes, is amended to read: 718.110 Amendment of declaration; correction of error or omission in declaration by circuit court.-- (4) Unless otherwise provided in the declaration as originally recorded, no amendment may change the configuration or size of any unit in any material fashion, materially alter or modify the appurtenances to the unit, or change the proportion or percentage by which the unit owner shares the common expenses of the condominium and owns the common surplus of the condominium unless the record owner of the unit and all record owners of liens on the unit join in the execution of the amendment and unless all the record owners of all other units in the same condominium approve the amendment. The acquisition of property by the association and material alterations or substantial additions to such property or the common elements by the association in accordance with s. 718.111(7), s. 718.111(15), or s. 718.113, and amendments providing for the transfer of use rights in limited common elements pursuant to s. 718.106(2)(b) shall not be deemed to constitute a material alteration or modification of the appurtenances to the units. A declaration recorded after April 1, 1992, may not require the approval of less than a majority of total voting interests of the condominium for amendments under this subsection, unless otherwise required by a governmental entity. Section 7. Paragraph (d) of subsection (13) of section 718.111, Florida Statutes, is amended and subsection (15) of said section is created to read: 718.111 The association.-- (13) FINANCIAL REPORTING.--Within 90 days after the end of the fiscal year, or annually on a date provided in the bylaws, the association shall prepare and complete, or contract for the preparation and completion of, a financial report for the preceding fiscal year. Within 21 days after the final financial report is completed by the association or received from the third party, but not later than 120 days after the end of the fiscal year or other date as provided in the bylaws, the association shall mail to each unit owner at the address last furnished to the association by the unit owner, or hand deliver to each unit owner, a copy of the financial report or a notice that a copy of the financial report will be mailed or hand delivered to the unit owner, without charge, upon receipt of a written request from the unit owner. The division shall adopt rules setting forth uniform accounting principles and standards to be used by all associations and shall adopt rules addressing financial reporting requirements for multicondominium associations. In adopting such rules, the division shall consider the number of members and annual revenues of an association. Financial reports shall be prepared as follows: (d) If approved by a majority of the voting interests present at a properly called meeting of the association, an association may prepare or cause to be prepared: 1. A report of cash receipts and expenditures in lieu of a compiled, reviewed, or audited financial statement; 2. A report of cash receipts and expenditures or a compiled financial statement in lieu of a reviewed or audited financial statement; or 3. A report of cash receipts and expenditures, a compiled financial statement, or a reviewed financial statement in lieu of an audited financial statement. 4. In no event shall an association waive its requirement for an audit, if applicable, for more than 2 consecutive years. Such meeting and approval must occur prior to the end of the fiscal year and is effective only for the fiscal year in which the vote is taken. With respect to an association to which the developer has not turned over control of the association, all unit owners, including the developer, may vote on issues related to the preparation of financial reports for the first 2 fiscal years of the association's operation, beginning with the fiscal year in which the declaration is recorded. Thereafter, all unit owners except the developer may vote on such issues until control is turned over to the association by the developer.
(15)
PARKING SPACES FOR PERSONS WHO HAVE SEVERE MOBILITY DISABILITIES.--
Whereas parking in condominium associations generally is not configured to
provide vehicular ingress and egress for persons who have severe mobility
disabilities requiring the use of a vehicle with a lift or ramp, it is
determined to be in the best interest of all residents of the state that these
persons not be precluded from housing choices that are desirable to them where
alterations may be made to accommodate this disability. The association shall
make reasonable provisions for a mobility disabled person to transfer the use
rights to a limited common element parking place that does not accommodate their
vehicle for a common area parking space that will.
If alterations to the parking areas are required to bring the parking
space into compliance with s. 553.5041, it shall be at the expense of the person
requesting the accommodation and the cost of returning the parking area to its
previous condition will also be paid by the person requesting the accommodation. Section 8. Paragraphs (a), (b), (d), and (f) of subsection (2) of section 718.112, Florida Statutes, are amended to read: 718.112 Bylaws.-- (2) REQUIRED PROVISIONS.--The bylaws shall provide for the following and, if they do not do so, shall be deemed to include the following: (a) Administration.-- 1. The form of administration of the association shall be described indicating the title of the officers and board of administration and specifying the powers, duties, manner of selection and removal, and compensation, if any, of officers and boards. In the absence of such a provision, the board of administration shall be composed of five members, except in the case of a condominium which has five or fewer units, in which case in a not-for-profit corporation the board shall consist of not fewer than three members. In the absence of provisions to the contrary in the bylaws, the board of administration shall have a president, a secretary, and a treasurer, who shall perform the duties of such officers customarily performed by officers of corporations. Unless prohibited in the bylaws, the board of administration may appoint other officers and grant them the duties it deems appropriate. Unless otherwise provided in the bylaws, the officers shall serve without compensation and at the pleasure of the board of administration. Unless otherwise provided in the bylaws, the members of the board shall serve without compensation.
2. When
a unit owner files a written inquiry by certified mail with the board of
administration, the board shall respond in writing to the unit owner within 30
days of receipt of the inquiry. The board's response shall either give a
substantive response to the inquirer, notify the inquirer that a legal opinion
has been requested, or notify the inquirer that advice has been requested from
the division. If the board requests advice from the division, the board shall,
within 10 days of its receipt of the advice, provide in writing a substantive
response to the inquirer. If a legal opinion is requested, the board shall,
within 60 days after the receipt of the inquiry, provide in writing a
substantive response to the inquiry. The failure to provide a substantive
response to the inquiry as provided herein precludes the board from recovering
attorney's fees and costs in any subsequent litigation, administrative
proceeding, or arbitration arising out of the inquiry. (b) Quorum; voting requirements; proxies.-- 1. Unless a lower number is provided in the bylaws, the percentage of voting interests required to constitute a quorum at a meeting of the members shall be a majority of the voting interests. Unless otherwise provided in this chapter or in the declaration, articles of incorporation, or bylaws, and except as provided in subparagraph (d)3., decisions shall be made by owners of a majority of the voting interests represented at a meeting at which a quorum is present.
2. Except
as specifically otherwise provided herein, after January 1, 1992, unit owners
may not vote by general proxy, but may vote by limited proxies substantially
conforming to a limited proxy form adopted by the division. Limited proxies and
general proxies may be used to establish a quorum. Limited proxies shall be used
3. Any proxy given shall be effective only for the specific meeting for which originally given and any lawfully adjourned meetings thereof. In no event shall any proxy be valid for a period longer than 90 days after the date of the first meeting for which it was given. Every proxy is revocable at any time at the pleasure of the unit owner executing it. 4. A member of the board of administration or a committee may submit in writing his or her agreement or disagreement with any action taken at a meeting that the member did not attend. This agreement or disagreement may not be used as a vote for or against the action taken and may not be used for the purposes of creating a quorum. 5. When any of the board or committee members meet by telephone conference, those board or committee members attending by telephone conference may be counted toward obtaining a quorum and may vote by telephone. A telephone speaker must be used so that the conversation of those board or committee members attending by telephone may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting. (d) Unit owner meetings.--
1. There
shall be an annual meeting of the unit owners. Unless the bylaws provide
otherwise, a vacancy on the board caused by the expiration of a director's term
shall be filled by electing a new board member, and the election shall be by
secret ballot; however, if the number of vacancies equals or exceeds the number
of candidates, no election is required. 2. The bylaws shall provide the method of calling meetings of unit owners, including annual meetings. Written notice, which notice must include an agenda, shall be mailed, hand delivered, or electronically transmitted to each unit owner at least 14 days prior to the annual meeting and shall be posted in a conspicuous place on the condominium property at least 14 continuous days preceding the annual meeting. Upon notice to the unit owners, the board shall by duly adopted rule designate a specific location on the condominium property or association property upon which all notices of unit owner meetings shall be posted; however, if there is no condominium property or association property upon which notices can be posted, this requirement does not apply. In lieu of or in addition to the physical posting of notice of any meeting of the unit owners on the condominium property, the association may, by reasonable rule, adopt a procedure for conspicuously posting and repeatedly broadcasting the notice and the agenda on a closed-circuit cable television system serving the condominium association. However, if broadcast notice is used in lieu of a notice posted physically on the condominium property, the notice and agenda must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required under this section. When broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda. Unless a unit owner waives in writing the right to receive notice of the annual meeting, such notice shall be hand delivered, mailed, or electronically transmitted to each unit owner. Notice for meetings and notice for all other purposes shall be mailed to each unit owner at the address last furnished to the association by the unit owner, or hand delivered to each unit owner. However, if a unit is owned by more than one person, the association shall provide notice, for meetings and all other purposes, to that one address which the developer initially identifies for that purpose and thereafter as one or more of the owners of the unit shall so advise the association in writing, or if no address is given or the owners of the unit do not agree, to the address provided on the deed of record. An officer of the association, or the manager or other person providing notice of the association meeting, shall provide an affidavit or United States Postal Service certificate of mailing, to be included in the official records of the association affirming that the notice was mailed or hand delivered, in accordance with this provision. 3. The members of the board shall be elected by written ballot or voting machine. Proxies shall in no event be used in electing the board, either in general elections or elections to fill vacancies caused by recall, resignation, or otherwise, unless otherwise provided in this chapter. Not less than 60 days before a scheduled election, the association shall mail, deliver, or electronically transmit, whether by separate association mailing or included in another association mailing, delivery, or transmission, including regularly published newsletters, to each unit owner entitled to a vote, a first notice of the date of the election. Any unit owner or other eligible person desiring to be a candidate for the board must give written notice to the association not less than 40 days before a scheduled election. Together with the written notice and agenda as set forth in subparagraph 2., the association shall mail, deliver, or electronically transmit a second notice of the election to all unit owners entitled to vote therein, together with a ballot which shall list all candidates. Upon request of a candidate, the association shall include an information sheet, no larger than 81/2 inches by 11 inches, which must be furnished by the candidate not less than 35 days before the election, to be included with the mailing, delivery, or transmission of the ballot, with the costs of mailing, delivery, or electronic transmission and copying to be borne by the association. The association is not liable for the contents of the information sheets prepared by the candidates. In order to reduce costs, the association may print or duplicate the information sheets on both sides of the paper. The division shall by rule establish voting procedures consistent with the provisions contained herein, including rules establishing procedures for giving notice by electronic transmission and rules providing for the secrecy of ballots. Elections shall be decided by a plurality of those ballots cast. There shall be no quorum requirement; however, at least 20 percent of the eligible voters must cast a ballot in order to have a valid election of members of the board. No unit owner shall permit any other person to vote his or her ballot, and any such ballots improperly cast shall be deemed invalid, provided any unit owner who violates this provision may be fined by the association in accordance with s. 718.303. A unit owner who needs assistance in casting the ballot for the reasons stated in s. 101.051 may obtain assistance in casting the ballot. The regular election shall occur on the date of the annual meeting. The provisions of this subparagraph shall not apply to timeshare condominium associations. Notwithstanding the provisions of this subparagraph, an election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist. 4. Any approval by unit owners called for by this chapter or the applicable declaration or bylaws, including, but not limited to, the approval requirement in s. 718.111(8), shall be made at a duly noticed meeting of unit owners and shall be subject to all requirements of this chapter or the applicable condominium documents relating to unit owner decisionmaking, except that unit owners may take action by written agreement, without meetings, on matters for which action by written agreement without meetings is expressly allowed by the applicable bylaws or declaration or any statute that provides for such action. 5. Unit owners may waive notice of specific meetings if allowed by the applicable bylaws or declaration or any statute. If authorized by the bylaws, notice of meetings of the board of administration, unit owner meetings, except unit owner meetings called to recall board members under paragraph (j), and committee meetings may be given by electronic transmission to unit owners who consent to receive notice by electronic transmission. 6. Unit owners shall have the right to participate in meetings of unit owners with reference to all designated agenda items. However, the association may adopt reasonable rules governing the frequency, duration, and manner of unit owner participation. 7. Any unit owner may tape record or videotape a meeting of the unit owners subject to reasonable rules adopted by the division.
8. Unless
otherwise provided in the bylaws, any vacancy occurring on the board before the
expiration of a term may be filled by the affirmative vote of the majority of
the remaining directors, even if the remaining directors constitute less than a
quorum, or by the sole remaining director. In the alternative, a board may hold
an election to fill the vacancy, in which case the election procedures must
conform to the requirements of subparagraph 3.
(f) Annual budget.-- 1. The proposed annual budget of common expenses shall be detailed and shall show the amounts budgeted by accounts and expense classifications, including, if applicable, but not limited to, those expenses listed in s. 718.504(21). A multicondominium association shall adopt a separate budget of common expenses for each condominium the association operates and shall adopt a separate budget of common expenses for the association. In addition, if the association maintains limited common elements with the cost to be shared only by those entitled to use the limited common elements as provided for in s. 718.113(1), the budget or a schedule attached thereto shall show amounts budgeted therefor. If, after turnover of control of the association to the unit owners, any of the expenses listed in s. 718.504(21) are not applicable, they need not be listed.
2. In
addition to annual operating expenses, the budget shall include reserve accounts
for capital expenditures and deferred maintenance for
the improvements that exist. These accounts shall include, but are
not limited to, roof replacement, building painting, and pavement resurfacing,
regardless of the amount of deferred maintenance expense or replacement cost,
and for any other item for which the deferred maintenance expense or replacement
cost exceeds $10,000. The amount to be reserved shall be computed by means of a
formula which is based upon estimated remaining useful life and estimated
replacement cost or deferred maintenance expense of each reserve item. The
association shall 3. Reserve funds and any interest accruing thereon shall remain in the reserve account or accounts, and shall be used only for authorized reserve expenditures unless their use for other purposes is approved in advance by a majority vote at a duly called meeting of the association. Prior to turnover of control of an association by a developer to unit owners other than the developer pursuant to s. 718.301, the developer-controlled association shall not vote to use reserves for purposes other than that for which they were intended without the approval of a majority of all nondeveloper voting interests, voting in person or by limited proxy at a duly called meeting of the association.
4. The
only voting interests which are eligible to vote on questions that involve
5.
Notwithstanding the provisions of subparagraph 3., the association after
turnover may, in case of a catastrophic event, use reserve funds for
non-scheduled purposes to mitigate further damage to units or common elements or
to make the condominium accessible for repairs.
Section 9. Subsection (5) of section 718.113, Florida Statutes, is amended to read: 718.113 Maintenance; limitation upon improvement; display of flag; hurricane shutters.-- (5) Each board of administration shall adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include color, style, and other factors deemed relevant by the board. All specifications adopted by the board shall comply with the applicable building code. Notwithstanding any provision to the contrary in the condominium documents, if approval is required by the documents, a board shall not refuse to approve the installation or replacement of hurricane shutters conforming to the specifications adopted by the board. The board may, subject to the provisions of s. 718.3026, and the approval of a majority of voting interests of the condominium, install hurricane shutters or hurricane protection that complies with or exceeds the applicable building code and may maintain, repair, or replace such approved hurricane shutters, whether on or within common elements, limited common elements, units, or association property. However, where laminated glass or window film architecturally designed to function as hurricane protection which complies with the applicable building code has been installed, the board may not install hurricane shutters. The board may operate shutters installed pursuant to this subsection without permission of the unit owners only where such operation is necessary to preserve and protect the condominium property and association property. The installation, replacement, operation, repair, and maintenance of such shutters in accordance with the procedures set forth herein shall not be deemed a material alteration to the common elements or association property within the meaning of this section. Section 10. Subsection (4) is added to section 718.303, Florida Statutes, to read: 718.303 Obligations of owners; waiver; levy of fine against unit by association.-- (4) Anyone subject to an action under this section shall be notified of the violation by certified mail, return receipt requested and, except in the case of eminent danger to person or property, have 30 days in which to respond in writing. If no response is provided and the violation continues or is repeated the association may proceed as above without further notice except as provided in subsection (3). Section 10. Subsection (1) of section 718.50151, Florida Statutes, is amended to read: 718.50151 Advisory council; membership functions.-- (1) There is created the Advisory Council on Condominiums. The council shall consist of seven appointed members. Two members shall be appointed by the President of the Senate, two members shall be appointed by the Speaker of the House of Representatives, and three members shall be appointed by the Governor. At least one member that is appointed by the Governor shall represent timeshare condominiums. Members shall be appointed to 2-year terms; however, one of the persons initially appointed by the Governor, by the President of the Senate, and by the Speaker of the House of Representatives shall be appointed to a 1-year term. The director of the division shall appoint a designee to serve as an ex officio nonvoting member. The Legislature intends that the persons appointed represent a cross-section of persons interested in condominium issues. The council shall be located within the division for administrative purposes. Members of the council shall serve without compensation but are entitled to receive per diem and travel expenses pursuant to s. 112.061 while on official business. Section 11. Paragraph (b) of subsection (4) of section 719.104, Florida Statutes, is amended to read: 719.104 Cooperatives; access to units; records; financial reports; assessments; purchase of leases.-- (4) FINANCIAL REPORT.-- (b) The division shall adopt rules that may require that the association deliver to the unit owners, in lieu of the financial report required by this section, a complete set of financial statements for the preceding fiscal year. The financial statements shall be delivered within 90 days following the end of the previous fiscal year or annually on such other date as provided in the bylaws. The rules of the division may require that the financial statements be compiled, reviewed, or audited, and the rules shall take into consideration the criteria set forth in s. 719.501(1)(j). The requirement to have the financial statements compiled, reviewed, or audited does not apply to associations if a majority of the voting interests of the association present at a duly called meeting of the association have determined for a fiscal year to waive this requirement. In an association in which turnover of control by the developer has not occurred, the developer may vote to waive the audit requirement for the first 2 years of the operation of the association, after which time waiver of an applicable audit requirement shall be by a majority of voting interests other than the developer. In no event shall an association waive its requirement for an audit if applicable for more than 2 consecutive years. The meeting shall be held prior to the end of the fiscal year, and the waiver shall be effective for only one fiscal year. This subsection does not apply to a cooperative that consists of 50 or fewer units.
Section 12. Subsection (7) is added to section 719.1055, Florida Statutes, to read: 719.1055 Amendment of cooperative documents; alteration and acquisition of property.-- (7) Any amendment restricting cooperative unit owners' rights relating to the rental of units applies only to unit owners who consent to the amendment and unit owners who purchase their units after the effective date of that amendment. Section 13. This act shall take effect July 1, 2005.
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