H1229
GENERAL BILL by Representative Julio Robaina : Co-Sponsors: Anitere Flores, Anne Gannon, Priscilla Taylor,
David Rivera, Juan Zapata
Referred
Committees and Committee Actions:
Civil Justice
Committee
STAFF
ANALYSIS
State
Administration Appropriations Committee
Justice
Council
Homeowners'
and Condominium Associations: Redesignates
the Division of Florida Land Sales, Condominiums, and Mobile Homes as the
Division of Florida Land Sales, Condominiums, Homeowners' Associations,
Community Association Management, and Mobile Homes; provides a definition;
provides that the Regulatory Council of Community Association Managers
shall be within the Division of Florida Land Sales, Condominiums,
Homeowners' Associations, Community Association Management, and Mobile
Homes; provides that community association managers are subject to
disciplinary action upon a finding by the division; requires the division
to refer its findings to the Department of Business and Professional
Regulation; includes cooperative units into rental rights grandfathered
clause; provides condominium associations guidelines for the designation
of disabled parking; requires association bylaws to mandate a specified
reserve minimum; provides powers of the division to include homeowners'
associations and community association management; requires training of
condominium association board members; requires notice of violations;
provides criteria for notice, including a response deadline; provides the
ombudsman with certain powers concerning homeowners' associations;
provides that an association or board may not waive its audit for more
than 2 consecutive years.
|
Effective
Date: July 1, 2005. |
1 |
A bill to be entitled |
2 |
An act relating to homeowners' and
condominium |
3 |
associations; amending s. 20.165, F.S.;
redesignating the |
4 |
Division of Florida Land Sales,
Condominiums, and Mobile |
5 |
Homes as the Division of Florida Land
Sales, Condominiums, |
6 |
Homeowners' Associations, Community
Association |
7 |
Management, and Mobile Homes; amending
s. 468.431, F.S.; |
8 |
providing a definition; amending s.
468.4315, F.S.; |
9 |
providing that the Regulatory Council of
Community |
10 |
Association Managers shall be within the
Division of |
11 |
Florida Land Sales, Condominiums,
Homeowners' |
12 |
Associations, Community Association
Management, and Mobile |
13 |
Homes; amending s. 468.436, F.S.;
providing that community |
14 |
association managers are subject to
disciplinary action |
15 |
upon a finding by the division;
requiring the division to |
16 |
refer its findings to the Department of
Business and |
17 |
Professional Regulation; providing
penalties; amending s. |
18 |
718.111, F.S.; providing condominium
associations |
19 |
guidelines for the designation of
disabled parking; |
20 |
amending s. 718.112, F.S.; requiring
association bylaws to |
21 |
mandate a specified reserve minimum;
amending s. 718.501, |
22 |
F.S.; providing powers of the division
to include |
23 |
homeowners' associations and community
association |
24 |
management; requiring training of
condominium association |
25 |
board members; requiring notice of
violations; providing |
26 |
criteria for notice, including a
response deadline; |
27 |
amending s. 718.5012, F.S.; providing
the ombudsman with |
28 |
certain powers concerning homeowners'
associations; |
29 |
amending s. 719.104, F.S.; providing
that an association |
30 |
or board may not waive its audit for
more than 2 |
31 |
consecutive years; amending s. 719.1055,
F.S.; including |
32 |
cooperative units in rental rights
grandfathered clause; |
33 |
creating s. 720.3015, F.S.; providing
the division with |
34 |
certain powers and duties relating to
homeowners' |
35 |
associations; creating s. 720.3071, F.S.;
requiring |
36 |
training of homeowners' association
board members; |
37 |
amending ss. 73.073, 190.009, 192.037,
213.053, 215.20, |
38 |
326.002, 326.006, 380.0651, 455.116,
475.455, 498.005, |
39 |
498.019, 498.047, 498.049, 509.512,
559.935, 718.103, |
40 |
718.105, 718.1255, 718.5011, 718.502,
718.504, 718.508, |
41 |
718.509, 718.608, 719.103, 719.1255,
719.501, 719.502, |
42 |
719.504, 719.508, 719.608, 720.301,
721.05, 721.07, |
43 |
721.08, 721.26, 721.28, 721.301, 721.50,
723.003, 723.006, |
44 |
723.009, and 723.0611, F.S., to conform
references; |
45 |
providing an effective date. |
46 |
|
47 |
Be It Enacted by the Legislature of the State of
Florida: |
48 |
|
49 |
Section 1. Paragraph
(d) of subsection (2) of section |
50 |
20.165, Florida Statutes, is amended to read: |
51 |
20.165 Department
of Business and Professional |
52 |
Regulation.--There is created a Department of
Business and |
53 |
Professional Regulation. |
54 |
(2) The
following divisions of the Department of Business |
55 |
and Professional Regulation are established: |
56 |
(d) Division
of Florida Land Sales, Condominiums, |
57 |
Homeowners' Associations, Community Association
Management, and |
58 |
Mobile Homes. |
59 |
Section 2. Subsection
(5) of section 468.431, Florida |
60 |
Statutes, is renumbered as subsection (6), and a new
subsection |
61 |
(5) is added to said section, to read: |
62 |
468.431 Definitions.-- |
63 |
(5) "Division"
means the Division of Florida Land Sales, |
64 |
Condominiums, Homeowners' Associations, Community
Association |
65 |
Management, and Mobile Homes of the Department of
Business and |
66 |
Professional Regulation. |
67 |
Section 3. Subsection
(1) of section 468.4315, Florida |
68 |
Statutes, is amended to read: |
69 |
468.4315 Regulatory
Council of Community Association |
70 |
Managers.-- |
71 |
(1) The
Regulatory Council of Community Association |
72 |
Managers is created within the division department
and shall |
73 |
consist of seven members appointed by the Governor
and confirmed |
74 |
by the Senate. |
75 |
(a) Five
members of the council shall be licensed |
76 |
community association managers, one of whom shall be
a community |
77 |
association manager employed by a timeshare managing
entity as |
78 |
described in ss. 468.438 and 721.13, who have held an
active |
79 |
license for 5 years. The remaining two council
members shall be |
80 |
residents of this state and must not be or ever have
been |
81 |
connected with the business of community association
management. |
82 |
(b) The
Governor shall appoint members for terms of 4 |
83 |
years. Such members shall serve until their
successors are |
84 |
appointed. Members' service on the council shall
begin upon |
85 |
appointment and shall continue until their successors
are |
86 |
appointed. |
87 |
Section 4. Section
468.436, Florida Statutes, is amended |
88 |
to read: |
89 |
468.436 Disciplinary
proceedings.-- |
90 |
(1) Upon
a finding by the division, the following acts |
91 |
constitute grounds for which the disciplinary actions
in |
92 |
subsection (3) may be taken: |
93 |
(a) Violation
of any provision of s. 455.227(1). |
94 |
(b)1. Violation
of any provision of this part. |
95 |
2. Violation
of any lawful order or rule rendered or |
96 |
adopted by the department or the council. |
97 |
3. Being
convicted of or pleading nolo contendere to a |
98 |
felony in any court in the United States. |
99 |
4. Obtaining
a license or certification or any other |
100 |
order, ruling, or authorization by means of fraud, |
101 |
misrepresentation, or concealment of material facts. |
102 |
5. Committing
acts of gross misconduct or gross negligence |
103 |
in connection with the profession. |
104 |
(2) The
council shall specify by rule the acts or |
105 |
omissions that constitute a violation of subsection
(1). |
106 |
(3) When the
division department finds any community |
107 |
association manager guilty of any of the grounds set
forth in |
108 |
subsection (1), it shall refer the matter to the
department, |
109 |
which may enter an order imposing one or more
of the following |
110 |
penalties: |
111 |
(a) Denial
of an application for licensure. |
112 |
(b) Revocation
or suspension of a license. |
113 |
(c) Imposition
of an administrative fine not to exceed |
114 |
$5,000 for each count or separate offense. |
115 |
(d) Issuance
of a reprimand. |
116 |
(e) Placement
of the community association manager on |
117 |
probation for a period of time and subject to such
conditions as |
118 |
the department specifies. |
119 |
(f) Restriction
of the authorized scope of practice by the |
120 |
community association manager. |
121 |
(4) The
department shall reissue the license of a |
122 |
disciplined community association manager upon
certification by |
123 |
the department that the disciplined person has
complied with all |
124 |
of the terms and conditions set forth in the final
order. |
125 |
Section 5. Subsection
(15) is added to section 718.111, |
126 |
Florida Statutes, to read: |
127 |
718.111 The
association.-- |
128 |
(15) PARKING
SPACES FOR PERSONS WHO HAVE |
129 |
DISABILITIES.--Where guest parking is provided,
guest parking |
130 |
spaces shall be configured and assigned pursuant
to s. 553.5041. |
131 |
The association may increase the number of guest
parking spaces, |
132 |
if needed. Residents with disabilities shall not
park in a |
133 |
disabled guest parking space unless their assigned
parking space |
134 |
is in use illegally. Resident disabled parking
shall be by |
135 |
assignment from available spaces by the
association, pursuant to |
136 |
local fair housing law. When a resident has two
vehicles, one |
137 |
equipped with a lift, the association shall assign
a second |
138 |
parking space that satisfies the needs of the
vehicle's lift |
139 |
operation, if an additional parking space is
available and |
140 |
unassigned. |
141 |
Section 6. Paragraph
(f) of subsection (2) of section |
142 |
718.112, Florida Statutes, is amended to read: |
143 |
718.112 Bylaws.-- |
144 |
(2) REQUIRED
PROVISIONS.--The bylaws shall provide for the |
145 |
following and, if they do not do so, shall be deemed
to include |
146 |
the following: |
147 |
(f) Annual
budget.-- |
148 |
1. The
proposed annual budget of common expenses shall be |
149 |
detailed and shall show the amounts budgeted by
accounts and |
150 |
expense classifications, including, if applicable,
but not |
151 |
limited to, those expenses listed in s. 718.504(21).
A |
152 |
multicondominium association shall adopt a separate
budget of |
153 |
common expenses for each condominium the association
operates |
154 |
and shall adopt a separate budget of common expenses
for the |
155 |
association. In addition, if the association
maintains limited |
156 |
common elements with the cost to be shared only by
those |
157 |
entitled to use the limited common elements as
provided for in |
158 |
s. 718.113(1), the budget or a schedule attached
thereto shall |
159 |
show amounts budgeted therefor. If, after turnover of
control of |
160 |
the association to the unit owners, any of the
expenses listed |
161 |
in s. 718.504(21) are not applicable, they need not
be listed. |
162 |
2. In
addition to annual operating expenses, the budget |
163 |
shall include reserve accounts for capital
expenditures and |
164 |
deferred maintenance. These accounts shall include,
but are not |
165 |
limited to, roof replacement, building painting, and
pavement |
166 |
resurfacing, regardless of the amount of deferred
maintenance |
167 |
expense or replacement cost, and for any other item
for which |
168 |
the deferred maintenance expense or replacement cost
exceeds |
169 |
$10,000. The amount to be reserved shall be computed
by means of |
170 |
a formula which is based upon estimated remaining
useful life |
171 |
and estimated replacement cost or deferred
maintenance expense |
172 |
of each reserve item. The association may adjust
replacement |
173 |
reserve assessments annually to take into account any
changes in |
174 |
estimates or extension of the useful life of a
reserve item |
175 |
caused by deferred maintenance. Reserves shall
maintain a |
176 |
minimum level of at least 10 percent of the yearly
operating |
177 |
budget. This subsection does not apply to an
adopted budget in |
178 |
which the members of an association have determined,
by a |
179 |
majority vote at a duly called meeting of the
association, to |
180 |
provide no reserves or less reserves than required by
this |
181 |
subsection. However, prior to turnover of control of
an |
182 |
association by a developer to unit owners other than
a developer |
183 |
pursuant to s. 718.301, the developer may vote to
waive the |
184 |
reserves or reduce the funding of reserves for the
first 2 |
185 |
fiscal years of the association's operation,
beginning with the |
186 |
fiscal year in which the initial declaration is
recorded, after |
187 |
which time reserves may be waived or reduced only
upon the vote |
188 |
of a majority of all nondeveloper voting interests
voting in |
189 |
person or by limited proxy at a duly called meeting
of the |
190 |
association. If a meeting of the unit owners has been
called to |
191 |
determine whether to waive or reduce the funding of
reserves, |
192 |
and no such result is achieved or a quorum is not
attained, the |
193 |
reserves as included in the budget shall go into
effect. After |
194 |
the turnover, the developer may vote its voting
interest to |
195 |
waive or reduce the funding of reserves. |
196 |
3. Reserve
funds and any interest accruing thereon shall |
197 |
remain in the reserve account or accounts, and shall
be used |
198 |
only for authorized reserve expenditures unless their
use for |
199 |
other purposes is approved in advance by a majority
vote at a |
200 |
duly called meeting of the association. Prior to
turnover of |
201 |
control of an association by a developer to unit
owners other |
202 |
than the developer pursuant to s. 718.301, the
developer- |
203 |
controlled association shall not vote to use reserves
for |
204 |
purposes other than that for which they were intended
without |
205 |
the approval of a majority of all nondeveloper voting
interests, |
206 |
voting in person or by limited proxy at a duly called
meeting of |
207 |
the association. |
208 |
4. The only
voting interests which are eligible to vote on |
209 |
questions that involve waiving or reducing the
funding of |
210 |
reserves, or using existing reserve funds for
purposes other |
211 |
than purposes for which the reserves were intended,
are the |
212 |
voting interests of the units subject to assessment
to fund the |
213 |
reserves in question. |
214 |
Section 7. Section
718.501, Florida Statutes, is amended, |
215 |
to read: |
216 |
718.501 Powers
and duties of Division of Florida Land |
217 |
Sales, Condominiums, Homeowners' Associations,
Community |
218 |
Association Management, and Mobile Homes.-- |
219 |
(1) The
Division of Florida Land Sales, Condominiums, |
220 |
Homeowners' Associations, Community Association
Management, and |
221 |
Mobile Homes of the Department of Business and
Professional |
222 |
Regulation, referred to as the "division"
in this part, in |
223 |
addition to other powers and duties prescribed by
chapter 498, |
224 |
has the power to enforce and ensure compliance with
the |
225 |
provisions of this chapter and rules promulgated
pursuant hereto |
226 |
relating to the development, construction, sale,
lease, |
227 |
ownership, operation, and management of residential
condominium |
228 |
units. In performing its duties, the division has the
following |
229 |
powers and duties: |
230 |
(a) The
division may make necessary public or private |
231 |
investigations within or outside this state to
determine whether |
232 |
any person or association has violated this
chapter or any rule |
233 |
or order hereunder, to aid in the enforcement of this
chapter, |
234 |
or to aid in the adoption of rules or forms
hereunder. |
235 |
(b) The
division may require or permit any person to file |
236 |
a statement in writing, under oath or otherwise, as
the division |
237 |
determines, as to the facts and circumstances
concerning a |
238 |
matter to be investigated. |
239 |
(c) For the
purpose of any investigation under this |
240 |
chapter, the division director or any officer or
employee |
241 |
designated by the division director may administer
oaths or |
242 |
affirmations, subpoena witnesses and compel their
attendance, |
243 |
take evidence, and require the production of any
matter which is |
244 |
relevant to the investigation, including the
existence, |
245 |
description, nature, custody, condition, and location
of any |
246 |
books, documents, or other tangible things and the
identity and |
247 |
location of persons having knowledge of relevant
facts or any |
248 |
other matter reasonably calculated to lead to the
discovery of |
249 |
material evidence. Upon the failure by a person to
obey a |
250 |
subpoena or to answer questions propounded by the
investigating |
251 |
officer and upon reasonable notice to all persons
affected |
252 |
thereby, the division may apply to the circuit court
for an |
253 |
order compelling compliance. |
254 |
(d) Notwithstanding
any remedies available to unit owners |
255 |
and associations, if the division has reasonable
cause to |
256 |
believe that a violation of any provision of this
chapter or |
257 |
rule promulgated pursuant hereto has occurred, the
division may |
258 |
institute enforcement proceedings in its own name
against any |
259 |
developer, association, officer, or member of the
board of |
260 |
administration, or its assignees or agents, as
follows: |
261 |
1. The
division may permit a person whose conduct or |
262 |
actions may be under investigation to waive formal
proceedings |
263 |
and enter into a consent proceeding whereby orders,
rules, or |
264 |
letters of censure or warning, whether formal or
informal, may |
265 |
be entered against the person. |
266 |
2. The
division may issue an order requiring the |
267 |
developer, association, officer, or member of the
board of |
268 |
administration, or its assignees or agents, to cease
and desist |
269 |
from the unlawful practice and take such affirmative
action as |
270 |
in the judgment of the division will carry out the
purposes of |
271 |
this chapter. Such affirmative action may include,
but is not |
272 |
limited to, an order requiring a developer to pay
moneys |
273 |
determined to be owed to a condominium association. |
274 |
3. The
division may bring an action in circuit court on |
275 |
behalf of a class of unit owners, lessees, or
purchasers for |
276 |
declaratory relief, injunctive relief, or
restitution. |
277 |
4. The
division may impose a civil penalty against a |
278 |
developer or association, or its assignee or agent,
for any |
279 |
violation of this chapter or a rule promulgated
pursuant hereto. |
280 |
The division may impose a civil penalty individually
against any |
281 |
officer or board member who willfully and knowingly
violates a |
282 |
provision of this chapter, a rule adopted pursuant
hereto, or a |
283 |
final order of the division. The term "willfully
and knowingly" |
284 |
means that the division informed the officer or board
member |
285 |
that his or her action or intended action violates
this chapter, |
286 |
a rule adopted under this chapter, or a final order
of the |
287 |
division and that the officer or board member refused
to comply |
288 |
with the requirements of this chapter, a rule adopted
under this |
289 |
chapter, or a final order of the division. The
division, prior |
290 |
to initiating formal agency action under chapter 120,
shall |
291 |
afford the officer or board member an opportunity to
voluntarily |
292 |
comply with this chapter, a rule adopted under this
chapter, or |
293 |
a final order of the division. An officer or board
member who |
294 |
complies within 10 days is not subject to a civil
penalty. A |
295 |
penalty may be imposed on the basis of each day of
continuing |
296 |
violation, but in no event shall the penalty for any
offense |
297 |
exceed $5,000. By January 1, 1998, the division shall
adopt, by |
298 |
rule, penalty guidelines applicable to possible
violations or to |
299 |
categories of violations of this chapter or rules
adopted by the |
300 |
division. The guidelines must specify a meaningful
range of |
301 |
civil penalties for each such violation of the
statute and rules |
302 |
and must be based upon the harm caused by the
violation, the |
303 |
repetition of the violation, and upon such other
factors deemed |
304 |
relevant by the division. For example, the division
may consider |
305 |
whether the violations were committed by a developer
or owner- |
306 |
controlled association, the size of the association,
and other |
307 |
factors. The guidelines must designate the possible
mitigating |
308 |
or aggravating circumstances that justify a departure
from the |
309 |
range of penalties provided by the rules. It is the
legislative |
310 |
intent that minor violations be distinguished from
those which |
311 |
endanger the health, safety, or welfare of the
condominium |
312 |
residents or other persons and that such guidelines
provide |
313 |
reasonable and meaningful notice to the public of
likely |
314 |
penalties that may be imposed for proscribed conduct.
This |
315 |
subsection does not limit the ability of the division
to |
316 |
informally dispose of administrative actions or
complaints by |
317 |
stipulation, agreed settlement, or consent order. All
amounts |
318 |
collected shall be deposited with the Chief Financial
Officer to |
319 |
the credit of the Division of Florida Land Sales,
Condominiums, |
320 |
Homeowners' Associations, Community Association
Management, and |
321 |
Mobile Homes Trust Fund. If a developer fails to pay
the civil |
322 |
penalty, the division shall thereupon issue an order
directing |
323 |
that such developer cease and desist from further
operation |
324 |
until such time as the civil penalty is paid or may
pursue |
325 |
enforcement of the penalty in a court of competent
jurisdiction. |
326 |
If an association fails to pay the civil penalty, the
division |
327 |
shall thereupon pursue enforcement in a court of
competent |
328 |
jurisdiction, and the order imposing the civil
penalty or the |
329 |
cease and desist order will not become effective
until 20 days |
330 |
after the date of such order. Any action commenced by
the |
331 |
division shall be brought in the county in which the
division |
332 |
has its executive offices or in the county where the
violation |
333 |
occurred. |
334 |
(e) The
division is authorized to prepare and disseminate |
335 |
a prospectus and other information to assist
prospective owners, |
336 |
purchasers, lessees, and developers of residential
condominiums |
337 |
in assessing the rights, privileges, and duties
pertaining |
338 |
thereto. |
339 |
(f) The
division has authority to adopt rules pursuant to |
340 |
ss. 120.536(1) and 120.54 to implement and enforce
the |
341 |
provisions of this chapter. |
342 |
(g) The
division shall establish procedures for providing |
343 |
notice to an association when the division is
considering the |
344 |
issuance of a declaratory statement with respect to
the |
345 |
declaration of condominium or any related document
governing in |
346 |
such condominium community. |
347 |
(h) The
division shall furnish each association which pays |
348 |
the fees required by paragraph (2)(a) a copy of this
act, |
349 |
subsequent changes to this act on an annual basis, an
amended |
350 |
version of this act as it becomes available from the
Secretary |
351 |
of State's office on a biennial basis, and the rules
promulgated |
352 |
pursuant thereto on an annual basis. |
353 |
(i) The
division shall annually provide each association |
354 |
with a summary of declaratory statements and formal
legal |
355 |
opinions relating to the operations of condominiums
which were |
356 |
rendered by the division during the previous year. |
357 |
(j) The
division shall provide training programs for |
358 |
condominium association board members and unit
owners. Training |
359 |
shall be mandatory for newly elected board members
and members |
360 |
currently serving on a board who have not
previously voluntarily |
361 |
attended training. |
362 |
(k) The
division shall maintain a toll-free telephone |
363 |
number accessible to condominium unit owners. |
364 |
(l) The
division shall develop a program to certify both |
365 |
volunteer and paid mediators to provide mediation of
condominium |
366 |
disputes. The division shall provide, upon request, a
list of |
367 |
such mediators to any association, unit owner, or
other |
368 |
participant in arbitration proceedings under s.
718.1255 |
369 |
requesting a copy of the list. The division shall
include on the |
370 |
list of volunteer mediators only the names of persons
who have |
371 |
received at least 20 hours of training in mediation
techniques |
372 |
or who have mediated at least 20 disputes. In order
to become |
373 |
initially certified by the division, paid mediators
must be |
374 |
certified by the Supreme Court to mediate court cases
in either |
375 |
county or circuit courts. However, the division may
adopt, by |
376 |
rule, additional factors for the certification of
paid |
377 |
mediators, which factors must be related to
experience, |
378 |
education, or background. Any person initially
certified as a |
379 |
paid mediator by the division must, in order to
continue to be |
380 |
certified, comply with the factors or requirements
imposed by |
381 |
rules adopted by the division. |
382 |
(m) When a
complaint is made, the division shall conduct |
383 |
its inquiry with due regard to the interests of the
affected |
384 |
parties. Within 30 days after receipt of a complaint,
the |
385 |
division shall acknowledge the complaint in writing
and notify |
386 |
the complainant whether the complaint is within the
jurisdiction |
387 |
of the division and whether additional information is
needed by |
388 |
the division from the complainant. The division shall
conduct |
389 |
its investigation and shall, within 90 days after
receipt of the |
390 |
original complaint or of timely requested additional |
391 |
information, take action upon the complaint. However,
the |
392 |
failure to complete the investigation within 90 days
does not |
393 |
prevent the division from continuing the
investigation, |
394 |
accepting or considering evidence obtained or
received after 90 |
395 |
days, or taking administrative action if reasonable
cause exists |
396 |
to believe that a violation of this chapter or a rule
of the |
397 |
division has occurred. If an investigation is not
completed |
398 |
within the time limits established in this paragraph,
the |
399 |
division shall, on a monthly basis, notify the
complainant in |
400 |
writing of the status of the investigation. When
reporting its |
401 |
action to the complainant, the division shall inform
the |
402 |
complainant of any right to a hearing pursuant to ss.
120.569 |
403 |
and 120.57. |
404 |
(n) Any
condominium owner found to be in violation of this |
405 |
chapter shall be notified by the department by
certified mail, |
406 |
return receipt requested, at which time the
condominium owner |
407 |
will have 30 days in which to respond in writing. |
408 |
(2)(a) Effective
January 1, 1992, each condominium |
409 |
association which operates more than two units shall
pay to the |
410 |
division an annual fee in the amount of $4 for each
residential |
411 |
unit in condominiums operated by the association. If
the fee is |
412 |
not paid by March 1, then the association shall be
assessed a |
413 |
penalty of 10 percent of the amount due, and the
association |
414 |
will not have standing to maintain or defend any
action in the |
415 |
courts of this state until the amount due, plus any
penalty, is |
416 |
paid. |
417 |
(b) All fees
shall be deposited in the Division of Florida |
418 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
419 |
Association Management, and Mobile Homes Trust
Fund as provided |
420 |
by law. |
421 |
Section 8. Subsection
(10) is added to section 718.5012, |
422 |
Florida Statutes, to read: |
423 |
718.5012 Ombudsman;
powers and duties.--The ombudsman |
424 |
shall have the powers that are necessary to carry out
the duties |
425 |
of his or her office, including the following
specific powers: |
426 |
(10) To
monitor and review procedures and disputes |
427 |
concerning homeowners' associations. |
428 |
Section 9. Paragraph
(b) of subsection (4) of section |
429 |
719.104, Florida Statutes, is amended to read: |
430 |
719.104 Cooperatives;
access to units; records; financial |
431 |
reports; assessments; purchase of leases.-- |
432 |
(4) FINANCIAL
REPORT.-- |
433 |
(b) The
division shall adopt rules that may require that |
434 |
the association deliver to the unit owners, in lieu
of the |
435 |
financial report required by this section, a complete
set of |
436 |
financial statements for the preceding fiscal year.
The |
437 |
financial statements shall be delivered within 90
days following |
438 |
the end of the previous fiscal year or annually on
such other |
439 |
date as provided in the bylaws. The rules of the
division may |
440 |
require that the financial statements be compiled,
reviewed, or |
441 |
audited, and the rules shall take into consideration
the |
442 |
criteria set forth in s. 719.501(1)(j). The
requirement to have |
443 |
the financial statements compiled, reviewed, or
audited does not |
444 |
apply to associations if a majority of the voting
interests of |
445 |
the association present at a duly called meeting of
the |
446 |
association have determined for a fiscal year to
waive this |
447 |
requirement. In an association in which turnover of
control by |
448 |
the developer has not occurred, the developer may
vote to waive |
449 |
the audit requirement for the first 2 years of the
operation of |
450 |
the association, after which time waiver of an
applicable audit |
451 |
requirement shall be by a majority of voting
interests other |
452 |
than the developer. Under no circumstance may an
association or |
453 |
board waive its audit for more than 2 consecutive
years. The |
454 |
meeting shall be held prior to the end of the fiscal
year, and |
455 |
the waiver shall be effective for only one fiscal
year. This |
456 |
subsection does not apply to a cooperative that
consists of 50 |
457 |
or fewer units. |
458 |
Section 10. Subsection
(7) is added to section 719.1055, |
459 |
Florida Statutes, to read: |
460 |
719.1055 Amendment
of cooperative documents; alteration |
461 |
and acquisition of property.-- |
462 |
(7) Any
amendment restricting cooperative unit owners' |
463 |
rights relating to the rental of units applies
only to unit |
464 |
owners who consent to the amendment and unit
owners who purchase |
465 |
their units after the effective date of that
amendment. |
466 |
Section 11. Section
720.3015, Florida Statutes, is created |
467 |
to read: |
468 |
720.3015 Powers
and duties of Division of Florida Land |
469 |
Sales, Condominiums, Homeowners' Associations,
Community |
470 |
Association Management, and Mobile Homes.--The
Division of |
471 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
472 |
Community Association Management, and Mobile Homes
of the |
473 |
Department of Business and Professional Regulation
in addition |
474 |
to other powers and duties prescribed by chapter
498, has the |
475 |
power to enforce and ensure compliance with the
provisions of |
476 |
this chapter and rules adopted pursuant hereto
relating to |
477 |
homeowners' associations as defined in s. 720.301: |
478 |
(1) The
division may make necessary public or private |
479 |
investigations within or outside this state to
determine whether |
480 |
any person or association has violated this
chapter or any rule |
481 |
or order hereunder, to aid in the enforcement of
this chapter, |
482 |
or to aid in the adoption of rules or forms
hereunder. |
483 |
(2) The
division may require or permit any person to file |
484 |
a statement in writing, under oath or otherwise,
as the division |
485 |
determines, as to the facts and circumstances
concerning a |
486 |
matter to be investigated. |
487 |
(3) For
the purpose of any investigation under this |
488 |
chapter, the division director or any officer or
employee |
489 |
designated by the division director may administer
oaths or |
490 |
affirmations, subpoena witnesses and compel their
attendance, |
491 |
take evidence, and require the production of any
matter which is |
492 |
relevant to the investigation, including the
existence, |
493 |
description, nature, custody, condition, and
location of any |
494 |
books, documents, or other tangible things, and
the identity and |
495 |
location of persons having knowledge of relevant
facts or any |
496 |
other matter reasonably calculated to lead to the
discovery of |
497 |
material evidence. Upon the failure by a person to
obey a |
498 |
subpoena or to answer questions propounded by the
investigating |
499 |
officer and upon reasonable notice to all persons
affected |
500 |
thereby, the division may apply to the circuit
court for an |
501 |
order compelling compliance. |
502 |
(4) Notwithstanding
any remedies available to homeowners' |
503 |
associations, if the division has reasonable cause
to believe |
504 |
that a violation of any provision of this chapter
or rule |
505 |
adopted pursuant hereto has occurred, the division
may institute |
506 |
enforcement proceedings in its own name against
any association, |
507 |
officer, or member of the board, or its assignees
or agents, as |
508 |
follows: |
509 |
(a) The
division may permit a person whose conduct or |
510 |
actions may be under investigation to waive formal
proceedings |
511 |
and enter into a consent proceeding whereby
orders, rules, or |
512 |
letters of censure or warning, whether formal or
informal, may |
513 |
be entered against the person. |
514 |
(b) The
division may issue an order requiring the |
515 |
homeowners' association to cease and desist from
the unlawful |
516 |
practice and take such affirmative action as in
the judgment of |
517 |
the division will carry out the purposes of this
chapter. |
518 |
(c) The
division may bring an action in circuit court on |
519 |
behalf of a class of homeowners, lessees, or
purchasers for |
520 |
declaratory relief, injunctive relief, or
restitution. |
521 |
(d) The
division may impose a civil penalty against an |
522 |
association, or its assignee or agent, for any
violation of this |
523 |
chapter or a rule adopted pursuant hereto. The
division may |
524 |
impose a civil penalty individually against any
officer or board |
525 |
member who willfully and knowingly violates a
provision of this |
526 |
chapter, a rule adopted pursuant hereto, or a
final order of the |
527 |
division. The term "willfully and
knowingly" means that the |
528 |
division informed the officer or board member that
his or her |
529 |
action or intended action violates this chapter, a
rule adopted |
530 |
under this chapter, or a final order of the
division and that |
531 |
the officer or board member refused to comply with
the |
532 |
requirements of this chapter, a rule adopted under
this chapter, |
533 |
or a final order of the division. The division,
prior to |
534 |
initiating formal agency action under chapter 120,
shall afford |
535 |
the officer or board member an opportunity to
voluntarily comply |
536 |
with this chapter, a rule adopted under this
chapter, or a final |
537 |
order of the division. An officer or board member
who complies |
538 |
within 10 days is not subject to a civil penalty.
A penalty may |
539 |
be imposed on the basis of each day of continuing
violation, but |
540 |
in no event shall the penalty for any offense
exceed $5,000. By |
541 |
January 1, 2006, the division shall adopt, by
rule, penalty |
542 |
guidelines applicable to possible violations or to
categories of |
543 |
violations of this chapter or rules adopted by the
division. The |
544 |
guidelines must specify a meaningful range of
civil penalties |
545 |
for each such violation of the statute and rules
and must be |
546 |
based upon the harm caused by the violation, the
repetition of |
547 |
the violation, and such other factors deemed
relevant by the |
548 |
division. For example, the division may consider
whether the |
549 |
violations were committed by a association, the
size of the |
550 |
association, and other factors. The guidelines
must designate |
551 |
the possible mitigating or aggravating
circumstances that |
552 |
justify a departure from the range of penalties
provided by the |
553 |
rules. It is the legislative intent that minor
violations be |
554 |
distinguished from those which endanger the
health, safety, or |
555 |
welfare of the homeowners' association members or
other persons |
556 |
and that such guidelines provide reasonable and
meaningful |
557 |
notice to the public of likely penalties that may
be imposed for |
558 |
proscribed conduct. This paragraph does not limit
the ability of |
559 |
the division to informally dispose of
administrative actions or |
560 |
complaints by stipulation, agreed settlement, or
consent order. |
561 |
All amounts collected shall be deposited with the
Chief |
562 |
Financial Officer to the credit of the Division of
Florida Land |
563 |
Sales, Condominiums, Homeowners' Associations,
Community |
564 |
Association Management, and Mobile Homes Trust
Fund. If an |
565 |
association fails to pay the civil penalty, the
division shall |
566 |
thereupon pursue enforcement in a court of
competent |
567 |
jurisdiction, and the order imposing the civil
penalty or the |
568 |
cease and desist order will not become effective
until 20 days |
569 |
after the date of such order. Any action commenced
by the |
570 |
division shall be brought in the county in which
the division |
571 |
has its executive offices or in the county in
which the |
572 |
violation occurred. |
573 |
(5) The
division is authorized to prepare and disseminate |
574 |
a prospectus and other information to assist
prospective owners, |
575 |
purchasers, lessees, and developers of communities
with |
576 |
homeowners' associations in assessing the rights,
privileges, |
577 |
and duties pertaining thereto. |
578 |
(6) The
division has authority to adopt rules pursuant to |
579 |
ss. 120.536(1) and 120.54 to implement and enforce
the |
580 |
provisions of this chapter. |
581 |
(7) The
division shall establish procedures for providing |
582 |
notice to an association when the division is
considering the |
583 |
issuance of a declaratory statement with respect
to the |
584 |
homeowners' association documents governing such
communities. |
585 |
(8) The
division shall furnish each association a copy of |
586 |
this act, subsequent changes to this act on an
annual basis, an |
587 |
amended version of this act as it becomes
available from the |
588 |
Secretary of State's office on a biennial basis,
and the rules |
589 |
adopted pursuant thereto on an annual basis. |
590 |
(9) The
division shall annually provide each association |
591 |
with a summary of declaratory statements and
formal legal |
592 |
opinions relating to the operations of homeowners'
associations |
593 |
which were rendered by the division during the
previous year. |
594 |
(10) The
division shall provide training programs for |
595 |
homeowners' association board members. Training
shall be |
596 |
mandatory for newly elected board members and
members currently |
597 |
serving on a board who have not previously
voluntarily attended |
598 |
training. |
599 |
(11) The
division shall maintain a toll-free telephone |
600 |
number accessible to homeowners' association
members. |
601 |
(12) The
division shall develop a program to certify both |
602 |
volunteer and paid mediators to provide mediation
of homeowners' |
603 |
association disputes. The division shall provide,
upon request, |
604 |
a list of such mediators to any association, unit
owner, or |
605 |
other participant in arbitration proceedings under
s. 718.1255. |
606 |
The division shall include on the list of
volunteer mediators |
607 |
only the names of persons who have received at
least 20 hours of |
608 |
training in mediation techniques or who have
mediated at least |
609 |
20 disputes. In order to become initially
certified by the |
610 |
division, paid mediators must be certified by the
Supreme Court |
611 |
to mediate court cases in either county or circuit
courts. |
612 |
However, the division may adopt, by rule,
additional factors for |
613 |
the certification of paid mediators, which factors
must be |
614 |
related to experience, education, or background.
Any person |
615 |
initially certified as a paid mediator by the
division must, in |
616 |
order to remain certified, comply with the factors
or |
617 |
requirements imposed by rules adopted by the
division. |
618 |
(13) When
a complaint is made, the division shall conduct |
619 |
its inquiry with due regard to the interests of
the affected |
620 |
parties. Within 30 days after receipt of a
complaint, the |
621 |
division shall acknowledge the complaint in
writing and notify |
622 |
the complainant whether the complaint is within
the jurisdiction |
623 |
of the division and whether additional information
is needed by |
624 |
the division from the complainant. The division
shall conduct |
625 |
its investigation and shall, within 90 days after
receipt of the |
626 |
original complaint or of timely requested
additional |
627 |
information, take action upon the complaint.
However, the |
628 |
failure to complete the investigation within 90
days does not |
629 |
prevent the division from continuing the
investigation, |
630 |
accepting or considering evidence obtained or
received after 90 |
631 |
days, or taking administrative action if
reasonable cause exists |
632 |
to believe that a violation of this chapter or a
rule of the |
633 |
division has occurred. If an investigation is not
completed |
634 |
within the time limits established in this
subsection, the |
635 |
division shall, on a monthly basis, notify the
complainant in |
636 |
writing of the status of the investigation. When
reporting its |
637 |
action to the complainant, the division shall
inform the |
638 |
complainant of any right to a hearing pursuant to
ss. 120.569 |
639 |
and 120.57. |
640 |
(14) Any
homeowner's association member found to be in |
641 |
violation of this chapter shall be notified by the
department by |
642 |
certified mail, return receipt requested, at which
time the |
643 |
homeowners' association member will have 30 days
in which to |
644 |
respond in writing. |
645 |
Section 12. Section
720.3071, Florida Statutes, is created |
646 |
to read: |
647 |
720.3071 Board
member training.--The division shall |
648 |
provide training programs for homeowners'
association board |
649 |
members and unit owners. Training shall be
mandatory for newly |
650 |
elected board members and members currently
serving on a board |
651 |
who have not previously voluntarily attended
training. |
652 |
Section 13. Subsection
(2) of section 73.073, Florida |
653 |
Statutes, is amended to read: |
654 |
73.073 Eminent
domain procedure with respect to |
655 |
condominium common elements.-- |
656 |
(2) With
respect to the exercise of eminent domain or a |
657 |
negotiated sale for the purchase or taking of a
portion of the |
658 |
common elements of a condominium, the condemning
authority shall |
659 |
have the responsibility of contacting the condominium |
660 |
association and acquiring the most recent rolls
indicating the |
661 |
names of the unit owners or contacting the
appropriate taxing |
662 |
authority to obtain the names of the owners of record
on the tax |
663 |
rolls. Notification shall thereupon be sent by
certified mail, |
664 |
return receipt requested, to the unit owners of
record of the |
665 |
condominium units by the condemning authority
indicating the |
666 |
intent to purchase or take the required property and
requesting |
667 |
a response from the unit owner. The condemning
authority shall |
668 |
be responsible for the expense of sending
notification pursuant |
669 |
to this section. Such notice shall, at a minimum,
include: |
670 |
(a) The name
and address of the condemning authority. |
671 |
(b) A
written or visual description of the property. |
672 |
(c) The
public purpose for which the property is needed. |
673 |
(d) The
appraisal value of the property. |
674 |
(e) A clear,
concise statement relating to the unit |
675 |
owner's right to object to the taking or appraisal
value and the |
676 |
procedures and effects of exercising that right. |
677 |
(f) A clear,
concise statement relating to the power of |
678 |
the association to convey the property on behalf of
the unit |
679 |
owners if no objection to the taking or appraisal
value is |
680 |
raised, and the effects of this alternative on the
unit owner. |
681 |
|
682 |
The Division of Florida Land Sales, Condominiums, Homeowners' |
683 |
Associations, Community Association Management,
and Mobile Homes |
684 |
of the Department of Business and Professional
Regulation may |
685 |
adopt, by rule, a standard form for such notice and
may require |
686 |
the notice to include any additional relevant
information. |
687 |
Section 14. Subsection
(2) of section 190.009, Florida |
688 |
Statutes, is amended to read: |
689 |
190.009 Disclosure
of public financing.-- |
690 |
(2) The
Division of Florida Land Sales, Condominiums, |
691 |
Homeowners' Associations, Community Association
Management, and |
692 |
Mobile Homes of the Department of Business and
Professional |
693 |
Regulation shall ensure that disclosures made by
developers |
694 |
pursuant to chapter 498 meet the requirements of
subsection (1). |
695 |
Section 15. Paragraph
(e) of subsection (6) of section |
696 |
192.037, Florida Statutes, is amended to read: |
697 |
192.037 Fee
timeshare real property; taxes and |
698 |
assessments; escrow.-- |
699 |
(6) |
700 |
(e) On or
before May 1 of each year, a statement of |
701 |
receipts and disbursements of the escrow account must
be filed |
702 |
with the Division of Florida Land Sales,
Condominiums, |
703 |
Homeowners' Associations, Community Association
Management, and |
704 |
Mobile Homes of the Department of Business and
Professional |
705 |
Regulation, which may enforce this paragraph pursuant
to s. |
706 |
721.26. This statement must appropriately show the
amount of |
707 |
principal and interest in such account. |
708 |
Section 16. Paragraph
(i) of subsection (7) of section |
709 |
213.053, Florida Statutes, is amended to read: |
710 |
213.053 Confidentiality
and information sharing.-- |
711 |
(7) Notwithstanding
any other provision of this section, |
712 |
the department may provide: |
713 |
(i) Information
relative to chapters 212 and 326 to the |
714 |
Division of Florida Land Sales, Condominiums, Homeowners' |
715 |
Associations, Community Association Management,
and Mobile Homes |
716 |
of the Department of Business and Professional
Regulation in the |
717 |
conduct of its official duties. |
718 |
|
719 |
Disclosure of information under this subsection shall
be |
720 |
pursuant to a written agreement between the executive
director |
721 |
and the agency. Such agencies, governmental or
nongovernmental, |
722 |
shall be bound by the same requirements of
confidentiality as |
723 |
the Department of Revenue. Breach of confidentiality
is a |
724 |
misdemeanor of the first degree, punishable as
provided by s. |
725 |
775.082 or s. 775.083. |
726 |
Section 17. Paragraph
(d) of subsection (4) of section |
727 |
215.20, Florida Statutes, is amended to read: |
728 |
215.20 Certain
income and certain trust funds to |
729 |
contribute to the General Revenue Fund.-- |
730 |
(4) The
income of a revenue nature deposited in the |
731 |
following described trust funds, by whatever name
designated, is |
732 |
that from which the appropriations authorized by
subsection (3) |
733 |
shall be made: |
734 |
(d) Within
the Department of Business and Professional |
735 |
Regulation: |
736 |
1. The
Administrative Trust Fund. |
737 |
2. The
Alcoholic Beverage and Tobacco Trust Fund. |
738 |
3. The
Cigarette Tax Collection Trust Fund. |
739 |
4. The
Division of Florida Land Sales, Condominiums, |
740 |
Homeowners' Associations, Community Association
Management, and |
741 |
Mobile Homes Trust Fund. |
742 |
5. The Hotel
and Restaurant Trust Fund, with the exception |
743 |
of those fees collected for the purpose of funding of
the |
744 |
hospitality education program as stated in s.
509.302. |
745 |
6. The
Professional Regulation Trust Fund. |
746 |
7. The trust
funds administered by the Division of Pari- |
747 |
mutuel Wagering. |
748 |
|
749 |
The enumeration of the foregoing moneys or trust
funds shall not |
750 |
prohibit the applicability thereto of s. 215.24
should the |
751 |
Governor determine that for the reasons mentioned in
s. 215.24 |
752 |
the money or trust funds should be exempt herefrom,
as it is the |
753 |
purpose of this law to exempt income from its force
and effect |
754 |
when, by the operation of this law, federal matching
funds or |
755 |
contributions or private grants to any trust fund
would be lost |
756 |
to the state. |
757 |
Section 18. Subsection
(2) of section 326.002, Florida |
758 |
Statutes, is amended to read: |
759 |
326.002 Definitions.--As
used in ss. 326.001-326.006, the |
760 |
term: |
761 |
(2) "Division"
means the Division of Florida Land Sales, |
762 |
Condominiums, Homeowners' Associations, Community
Association |
763 |
Management, and Mobile Homes of the Department
of Business and |
764 |
Professional Regulation. |
765 |
Section 19. Paragraph
(d) of subsection (2) and subsection |
766 |
(3) of section 326.006, Florida Statutes, are amended
to read: |
767 |
326.006 Powers
and duties of division.-- |
768 |
(2) The
division has the power to enforce and ensure |
769 |
compliance with the provisions of this chapter and
rules adopted |
770 |
under this chapter relating to the sale and ownership
of yachts |
771 |
and ships. In performing its duties, the division has
the |
772 |
following powers and duties: |
773 |
(d) Notwithstanding
any remedies available to a yacht or |
774 |
ship purchaser, if the division has reasonable cause
to believe |
775 |
that a violation of any provision of this chapter or
rule |
776 |
adopted under this chapter has occurred, the division
may |
777 |
institute enforcement proceedings in its own name
against any |
778 |
broker or salesperson or any of his or her assignees
or agents, |
779 |
or against any unlicensed person or any of his or her
assignees |
780 |
or agents, as follows: |
781 |
1. The
division may permit a person whose conduct or |
782 |
actions are under investigation to waive formal
proceedings and |
783 |
enter into a consent proceeding whereby orders,
rules, or |
784 |
letters of censure or warning, whether formal or
informal, may |
785 |
be entered against the person. |
786 |
2. The
division may issue an order requiring the broker or |
787 |
salesperson or any of his or her assignees or agents,
or |
788 |
requiring any unlicensed person or any of his or her
assignees |
789 |
or agents, to cease and desist from the unlawful
practice and |
790 |
take such affirmative action as in the judgment of
the division |
791 |
will carry out the purposes of this chapter. |
792 |
3. The
division may bring an action in circuit court on |
793 |
behalf of a class of yacht or ship purchasers for
declaratory |
794 |
relief, injunctive relief, or restitution. |
795 |
4. The
division may impose a civil penalty against a |
796 |
broker or salesperson or any of his or her assignees
or agents, |
797 |
or against an unlicensed person or any of his or her
assignees |
798 |
or agents, for any violation of this chapter or a
rule adopted |
799 |
under this chapter. A penalty may be imposed for each
day of |
800 |
continuing violation, but in no event may the penalty
for any |
801 |
offense exceed $10,000. All amounts collected must be
deposited |
802 |
with the Chief Financial Officer to the credit of the
Division |
803 |
of Florida Land Sales, Condominiums, Homeowners'
Associations, |
804 |
Community Association Management, and Mobile
Homes Trust Fund. |
805 |
If a broker, salesperson, or unlicensed person
working for a |
806 |
broker, fails to pay the civil penalty, the division
shall |
807 |
thereupon issue an order suspending the broker's
license until |
808 |
such time as the civil penalty is paid or may pursue
enforcement |
809 |
of the penalty in a court of competent jurisdiction.
The order |
810 |
imposing the civil penalty or the order of suspension
may not |
811 |
become effective until 20 days after the date of such
order. Any |
812 |
action commenced by the division must be brought in
the county |
813 |
in which the division has its executive offices or in
the county |
814 |
where the violation occurred. |
815 |
(3) All fees
must be deposited in the Division of Florida |
816 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
817 |
Association Management, and Mobile Homes Trust
Fund as provided |
818 |
by law. |
819 |
Section 20. Paragraph
(a) of subsection (4) of section |
820 |
380.0651, Florida Statutes, is amended to read: |
821 |
380.0651 Statewide
guidelines and standards.-- |
822 |
(4) Two or
more developments, represented by their owners |
823 |
or developers to be separate developments, shall be
aggregated |
824 |
and treated as a single development under this
chapter when they |
825 |
are determined to be part of a unified plan of
development and |
826 |
are physically proximate to one other. |
827 |
(a) The
criteria of two of the following subparagraphs |
828 |
must be met in order for the state land planning
agency to |
829 |
determine that there is a unified plan of
development: |
830 |
1.a. The
same person has retained or shared control of the |
831 |
developments; |
832 |
b. The same
person has ownership or a significant legal or |
833 |
equitable interest in the developments; or |
834 |
c. There is
common management of the developments |
835 |
controlling the form of physical development or
disposition of |
836 |
parcels of the development. |
837 |
2. There is
a reasonable closeness in time between the |
838 |
completion of 80 percent or less of one development
and the |
839 |
submission to a governmental agency of a master plan
or series |
840 |
of plans or drawings for the other development which
is |
841 |
indicative of a common development effort. |
842 |
3. A master
plan or series of plans or drawings exists |
843 |
covering the developments sought to be aggregated
which have |
844 |
been submitted to a local general-purpose government,
water |
845 |
management district, the Florida Department of
Environmental |
846 |
Protection, or the Division of Florida Land Sales,
Condominiums, |
847 |
Homeowners' Associations, Community Association
Management, and |
848 |
Mobile Homes for authorization to commence
development. The |
849 |
existence or implementation of a utility's master
utility plan |
850 |
required by the Public Service Commission or
general-purpose |
851 |
local government or a master drainage plan shall not
be the sole |
852 |
determinant of the existence of a master plan. |
853 |
4. The
voluntary sharing of infrastructure that is |
854 |
indicative of a common development effort or is
designated |
855 |
specifically to accommodate the developments sought
to be |
856 |
aggregated, except that which was implemented because
it was |
857 |
required by a local general-purpose government; water
management |
858 |
district; the Department of Environmental Protection;
the |
859 |
Division of Florida Land Sales, Condominiums, Homeowners' |
860 |
Associations, Community Association Management,
and Mobile |
861 |
Homes; or the Public Service Commission. |
862 |
5. There is
a common advertising scheme or promotional |
863 |
plan in effect for the developments sought to be
aggregated. |
864 |
Section 21. Subsection
(5) of section 455.116, Florida |
865 |
Statutes, is amended to read: |
866 |
455.116 Regulation
trust funds.--The following trust funds |
867 |
shall be placed in the department: |
868 |
(5) Division
of Florida Land Sales, Condominiums, |
869 |
Homeowners' Associations, Community Association
Management, and |
870 |
Mobile Homes Trust Fund. |
871 |
Section 22. Section
475.455, Florida Statutes, is amended |
872 |
to read: |
873 |
475.455 Exchange
of disciplinary information.--The |
874 |
commission shall inform the Division of Florida Land
Sales, |
875 |
Condominiums, Homeowners' Associations, Community
Association |
876 |
Management, and Mobile Homes of the Department
of Business and |
877 |
Professional Regulation of any disciplinary action
the |
878 |
commission has taken against any of its licensees.
The division |
879 |
shall inform the commission of any disciplinary
action the |
880 |
division has taken against any broker or sales
associate |
881 |
registered with the division. |
882 |
Section 23. Subsection
(5) of section 498.005, Florida |
883 |
Statutes, is amended to read: |
884 |
498.005 Definitions.--As
used in this chapter, unless the |
885 |
context otherwise requires, the term: |
886 |
(5) "Division"
means the Division of Florida Land Sales, |
887 |
Condominiums, Homeowners' Associations, Community
Association |
888 |
Management, and Mobile Homes of the Department
of Business and |
889 |
Professional Regulation. |
890 |
Section 24. Section
498.019, Florida Statutes, is amended |
891 |
to read: |
892 |
498.019 Division
of Florida Land Sales, Condominiums, |
893 |
Homeowners' Associations, Community Association
Management, and |
894 |
Mobile Homes Trust Fund.-- |
895 |
(1) There is
created within the State Treasury the |
896 |
Division of Florida Land Sales, Condominiums, Homeowners' |
897 |
Associations, Community Association Management,
and Mobile Homes |
898 |
Trust Fund to be used for the administration and
operation of |
899 |
this chapter, part VIII of chapter 468, and
chapters 718, 719, |
900 |
720, 721, and 723 by the division. |
901 |
(2) All
moneys collected by the division from fees, fines, |
902 |
or penalties or from costs awarded to the division by
a court |
903 |
shall be paid into the Division of Florida Land
Sales, |
904 |
Condominiums, Homeowners' Associations, Community
Association |
905 |
Management, and Mobile Homes Trust Fund. The
Legislature shall |
906 |
appropriate funds from this trust fund sufficient to
carry out |
907 |
the provisions of this chapter and the provisions of
law with |
908 |
respect to each category of business covered by this
trust fund. |
909 |
The division shall maintain separate revenue accounts
in the |
910 |
trust fund for each of the businesses regulated by
the division. |
911 |
The division shall provide for the proportionate
allocation |
912 |
among the accounts of expenses incurred by the
division in the |
913 |
performance of its duties with respect to each of
these |
914 |
businesses. As part of its normal budgetary process,
the |
915 |
division shall prepare an annual report of revenue
and allocated |
916 |
expenses related to the operation of each of these
businesses |
917 |
which may be used to determine fees charged by the
division. |
918 |
This subsection shall operate pursuant to the
provisions of s. |
919 |
215.20. |
920 |
Section 25. Paragraph
(a) of subsection (8) of section |
921 |
498.047, Florida Statutes, is amended to read: |
922 |
498.047 Investigations.-- |
923 |
(8)(a) Information
held by the Division of Florida Land |
924 |
Sales, Condominiums, Homeowners' Associations,
Community |
925 |
Association Management, and Mobile Homes
relative to an |
926 |
investigation pursuant to this chapter, including any
consumer |
927 |
complaint, is confidential and exempt from s.
119.07(1) and s. |
928 |
24(a), Art. I of the State Constitution, until 10
days after a |
929 |
notice to show cause has been filed by the division,
or, in the |
930 |
case in which no notice to show cause is filed, the |
931 |
investigation is completed or ceases to be active.
For purposes |
932 |
of this section, an investigation shall be considered
"active" |
933 |
so long as the division or any law enforcement or
administrative |
934 |
agency or regulatory organization is proceeding with
reasonable |
935 |
dispatch and has a reasonable good faith belief that
the |
936 |
investigation may lead to the filing of an
administrative, |
937 |
civil, or criminal proceeding or to the denial or
conditional |
938 |
grant of a license or registration. However, in
response to a |
939 |
specific inquiry about the registration status of a
registered |
940 |
or unregistered subdivider, the division may disclose
the |
941 |
existence and the status of an active investigation.
This |
942 |
subsection shall not be construed to prohibit
disclosure of |
943 |
information which is required by law to be filed with
the |
944 |
division and which, but for the investigation, would
be subject |
945 |
to s. 119.07(1). |
946 |
Section 26. Subsection
(5) of section 498.049, Florida |
947 |
Statutes, is amended to read: |
948 |
498.049 Suspension;
revocation; civil penalties.-- |
949 |
(5) Each
person who materially participates in any offer |
950 |
or disposition of any interest in subdivided lands in
violation |
951 |
of this chapter or relevant rules involving fraud,
deception, |
952 |
false pretenses, misrepresentation, or false
advertising or the |
953 |
disposition, concealment, or diversion of any funds
or assets of |
954 |
any person which adversely affects the interests of a
purchaser |
955 |
of any interest in subdivided lands, and who directly
or |
956 |
indirectly controls a subdivider or is a general
partner, |
957 |
officer, director, agent, or employee of a subdivider
shall also |
958 |
be liable under this subsection jointly and severally
with and |
959 |
to the same extent as the subdivider, unless that
person did not |
960 |
know, and in the exercise of reasonable care could
not have |
961 |
known, of the existence of the facts creating the
alleged |
962 |
liability. Among these persons a right of
contribution shall |
963 |
exist, except that a creditor of a subdivider shall
not be |
964 |
jointly and severally liable unless the creditor has
assumed |
965 |
managerial or fiduciary responsibility in a manner
related to |
966 |
the basis for the liability of the subdivider under
this |
967 |
subsection. Civil penalties shall be limited to
$10,000 for each |
968 |
offense, and all amounts collected shall be deposited
with the |
969 |
Chief Financial Officer to the credit of the Division
of Florida |
970 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
971 |
Association Management, and Mobile Homes Trust
Fund. No order |
972 |
requiring the payment of a civil penalty shall become
effective |
973 |
until 20 days after the date of the order, unless
otherwise |
974 |
agreed in writing by the person on whom the penalty
is imposed. |
975 |
Section 27. Section
509.512, Florida Statutes, is amended |
976 |
to read: |
977 |
509.512 Timeshare
plan developer and exchange company |
978 |
exemption.--Sections 509.501-509.511 do not apply to
a developer |
979 |
of a timeshare plan or an exchange company approved
by the |
980 |
Division of Florida Land Sales, Condominiums, Homeowners' |
981 |
Associations, Community Association Management,
and Mobile Homes |
982 |
pursuant to chapter 721, but only to the extent that
the |
983 |
developer or exchange company engages in conduct
regulated under |
984 |
chapter 721. |
985 |
Section 28. Paragraph
(h) of subsection (1) of section |
986 |
559.935, Florida Statutes, is amended to read: |
987 |
559.935 Exemptions.-- |
988 |
(1) This
part does not apply to: |
989 |
(h) A
developer of a timeshare plan or an exchange company |
990 |
approved by the Division of Florida Land Sales,
Condominiums, |
991 |
Homeowners' Associations, Community Association
Management, and |
992 |
Mobile Homes pursuant to chapter 721, but only to the
extent |
993 |
that the developer or exchange company engages in
conduct |
994 |
regulated under chapter 721; or |
995 |
Section 29. Subsection
(17) of section 718.103, Florida |
996 |
Statutes, is amended to read: |
997 |
718.103 Definitions.--As
used in this chapter, the term: |
998 |
(17) "Division"
means the Division of Florida Land Sales, |
999 |
Condominiums, Homeowners' Associations, Community
Association |
1000 |
Management, and Mobile Homes of the Department
of Business and |
1001 |
Professional Regulation. |
1002 |
Section 30. Paragraph
(c) of subsection (4) of section |
1003 |
718.105, Florida Statutes, is amended to read: |
1004 |
718.105 Recording
of declaration.-- |
1005 |
(4) |
1006 |
(c) If the
sum of money held by the clerk has not been |
1007 |
paid to the developer or association as provided in
paragraph |
1008 |
(b) by 3 years after the date the declaration was
originally |
1009 |
recorded, the clerk in his or her discretion may
notify, in |
1010 |
writing, the registered agent of the association that
the sum is |
1011 |
still available and the purpose for which it was
deposited. If |
1012 |
the association does not record the certificate
within 90 days |
1013 |
after the clerk has given the notice, the clerk may
disburse the |
1014 |
money to the developer. If the developer cannot be
located, the |
1015 |
clerk shall disburse the money to the Division of
Florida Land |
1016 |
Sales, Condominiums, Homeowners' Associations,
Community |
1017 |
Association Management, and Mobile Homes for
deposit in the |
1018 |
Division of Florida Land Sales, Condominiums, Homeowners' |
1019 |
Associations, Community Association Management,
and Mobile Homes |
1020 |
Trust Fund. |
1021 |
Section 31. Subsection
(4) of section 718.1255, Florida |
1022 |
Statutes, is amended to read: |
1023 |
718.1255 Alternative
dispute resolution; voluntary |
1024 |
mediation; mandatory nonbinding arbitration;
legislative |
1025 |
findings.-- |
1026 |
(4) MANDATORY
NONBINDING ARBITRATION AND MEDIATION OF |
1027 |
DISPUTES.--The Division of Florida Land Sales,
Condominiums, |
1028 |
Homeowners' Associations, Community Association
Management, and |
1029 |
Mobile Homes of the Department of Business and
Professional |
1030 |
Regulation shall employ full-time attorneys to act as |
1031 |
arbitrators to conduct the arbitration hearings
provided by this |
1032 |
chapter. The division may also certify attorneys who
are not |
1033 |
employed by the division to act as arbitrators to
conduct the |
1034 |
arbitration hearings provided by this section. No
person may be |
1035 |
employed by the department as a full-time arbitrator
unless he |
1036 |
or she is a member in good standing of The Florida
Bar. The |
1037 |
department shall promulgate rules of procedure to
govern such |
1038 |
arbitration hearings including mediation incident
thereto. The |
1039 |
decision of an arbitrator shall be final; however,
such a |
1040 |
decision shall not be deemed final agency action.
Nothing in |
1041 |
this provision shall be construed to foreclose
parties from |
1042 |
proceeding in a trial de novo unless the parties have
agreed |
1043 |
that the arbitration is binding. If such judicial
proceedings |
1044 |
are initiated, the final decision of the arbitrator
shall be |
1045 |
admissible in evidence in the trial de novo. |
1046 |
(a) Prior to
the institution of court litigation, a party |
1047 |
to a dispute shall petition the division for
nonbinding |
1048 |
arbitration. The petition must be accompanied by a
filing fee in |
1049 |
the amount of $50. Filing fees collected under this
section must |
1050 |
be used to defray the expenses of the alternative
dispute |
1051 |
resolution program. |
1052 |
(b) The
petition must recite, and have attached thereto, |
1053 |
supporting proof that the petitioner gave the
respondents: |
1054 |
1. Advance
written notice of the specific nature of the |
1055 |
dispute; |
1056 |
2. A demand
for relief, and a reasonable opportunity to |
1057 |
comply or to provide the relief; and |
1058 |
3. Notice of
the intention to file an arbitration petition |
1059 |
or other legal action in the absence of a resolution
of the |
1060 |
dispute. |
1061 |
|
1062 |
Failure to include the allegations or proof of
compliance with |
1063 |
these prerequisites requires dismissal of the
petition without |
1064 |
prejudice. |
1065 |
(c) Upon
receipt, the petition shall be promptly reviewed |
1066 |
by the division to determine the existence of a
dispute and |
1067 |
compliance with the requirements of paragraphs (a)
and (b). If |
1068 |
emergency relief is required and is not available
through |
1069 |
arbitration, a motion to stay the arbitration may be
filed. The |
1070 |
motion must be accompanied by a verified petition
alleging facts |
1071 |
that, if proven, would support entry of a temporary
injunction, |
1072 |
and if an appropriate motion and supporting papers
are filed, |
1073 |
the division may abate the arbitration pending a
court hearing |
1074 |
and disposition of a motion for temporary injunction. |
1075 |
(d) Upon
determination by the division that a dispute |
1076 |
exists and that the petition substantially meets the |
1077 |
requirements of paragraphs (a) and (b) and any other
applicable |
1078 |
rules, a copy of the petition shall forthwith be
served by the |
1079 |
division upon all respondents. |
1080 |
(e) Either
before or after the filing of the respondents' |
1081 |
answer to the petition, any party may request that
the |
1082 |
arbitrator refer the case to mediation under this
section and |
1083 |
any rules adopted by the division. Upon receipt of a
request for |
1084 |
mediation, the division shall promptly contact the
parties to |
1085 |
determine if there is agreement that mediation would
be |
1086 |
appropriate. If all parties agree, the dispute must
be referred |
1087 |
to mediation. Notwithstanding a lack of an agreement
by all |
1088 |
parties, the arbitrator may refer a dispute to
mediation at any |
1089 |
time. |
1090 |
(f) Upon
referral of a case to mediation, the parties must |
1091 |
select a mutually acceptable mediator. To assist in
the |
1092 |
selection, the arbitrator shall provide the parties
with a list |
1093 |
of both volunteer and paid mediators that have been
certified by |
1094 |
the division under s. 718.501. If the parties are
unable to |
1095 |
agree on a mediator within the time allowed by the
arbitrator, |
1096 |
the arbitrator shall appoint a mediator from the list
of |
1097 |
certified mediators. If a case is referred to
mediation, the |
1098 |
parties shall attend a mediation conference, as
scheduled by the |
1099 |
parties and the mediator. If any party fails to
attend a duly |
1100 |
noticed mediation conference, without the permission
or approval |
1101 |
of the arbitrator or mediator, the arbitrator must
impose |
1102 |
sanctions against the party, including the striking
of any |
1103 |
pleadings filed, the entry of an order of dismissal
or default |
1104 |
if appropriate, and the award of costs and attorneys'
fees |
1105 |
incurred by the other parties. Unless otherwise
agreed to by the |
1106 |
parties or as provided by order of the arbitrator, a
party is |
1107 |
deemed to have appeared at a mediation conference by
the |
1108 |
physical presence of the party or its representative
having full |
1109 |
authority to settle without further consultation,
provided that |
1110 |
an association may comply by having one or more
representatives |
1111 |
present with full authority to negotiate a settlement
and |
1112 |
recommend that the board of administration ratify and
approve |
1113 |
such a settlement within 5 days from the date of the
mediation |
1114 |
conference. The parties shall share equally the
expense of |
1115 |
mediation, unless they agree otherwise. |
1116 |
(g) The
purpose of mediation as provided for by this |
1117 |
section is to present the parties with an opportunity
to resolve |
1118 |
the underlying dispute in good faith, and with a
minimum |
1119 |
expenditure of time and resources. |
1120 |
(h) Mediation
proceedings must generally be conducted in |
1121 |
accordance with the Florida Rules of Civil Procedure,
and these |
1122 |
proceedings are privileged and confidential to the
same extent |
1123 |
as court-ordered mediation. Persons who are not
parties to the |
1124 |
dispute are not allowed to attend the mediation
conference |
1125 |
without the consent of all parties, with the
exception of |
1126 |
counsel for the parties and corporate representatives
designated |
1127 |
to appear for a party. If the mediator declares an
impasse after |
1128 |
a mediation conference has been held, the arbitration
proceeding |
1129 |
terminates, unless all parties agree in writing to
continue the |
1130 |
arbitration proceeding, in which case the
arbitrator's decision |
1131 |
shall be either binding or nonbinding, as agreed upon
by the |
1132 |
parties; in the arbitration proceeding, the
arbitrator shall not |
1133 |
consider any evidence relating to the unsuccessful
mediation |
1134 |
except in a proceeding to impose sanctions for
failure to appear |
1135 |
at the mediation conference. If the parties do not
agree to |
1136 |
continue arbitration, the arbitrator shall enter an
order of |
1137 |
dismissal, and either party may institute a suit in a
court of |
1138 |
competent jurisdiction. The parties may seek to
recover any |
1139 |
costs and attorneys' fees incurred in connection with |
1140 |
arbitration and mediation proceedings under this
section as part |
1141 |
of the costs and fees that may be recovered by the
prevailing |
1142 |
party in any subsequent litigation. |
1143 |
(i) Arbitration
shall be conducted according to rules |
1144 |
promulgated by the division. The filing of a petition
for |
1145 |
arbitration shall toll the applicable statute of
limitations. |
1146 |
(j) At the
request of any party to the arbitration, such |
1147 |
arbitrator shall issue subpoenas for the attendance
of witnesses |
1148 |
and the production of books, records, documents, and
other |
1149 |
evidence and any party on whose behalf a subpoena is
issued may |
1150 |
apply to the court for orders compelling such
attendance and |
1151 |
production. Subpoenas shall be served and shall be
enforceable |
1152 |
in the manner provided by the Florida Rules of Civil
Procedure. |
1153 |
Discovery may, in the discretion of the arbitrator,
be permitted |
1154 |
in the manner provided by the Florida Rules of Civil
Procedure. |
1155 |
Rules adopted by the division may authorize any
reasonable |
1156 |
sanctions except contempt for a violation of the
arbitration |
1157 |
procedural rules of the division or for the failure
of a party |
1158 |
to comply with a reasonable nonfinal order issued by
an |
1159 |
arbitrator which is not under judicial review. |
1160 |
(k) The
arbitration decision shall be presented to the |
1161 |
parties in writing. An arbitration decision is final
in those |
1162 |
disputes in which the parties have agreed to be
bound. An |
1163 |
arbitration decision is also final if a complaint for
a trial de |
1164 |
novo is not filed in a court of competent
jurisdiction in which |
1165 |
the condominium is located within 30 days. The right
to file for |
1166 |
a trial de novo entitles the parties to file a
complaint in the |
1167 |
appropriate trial court for a judicial resolution of
the |
1168 |
dispute. The prevailing party in an arbitration
proceeding shall |
1169 |
be awarded the costs of the arbitration and
reasonable |
1170 |
attorney's fees in an amount determined by the
arbitrator. Such |
1171 |
an award shall include the costs and reasonable
attorney's fees |
1172 |
incurred in the arbitration proceeding as well as the
costs and |
1173 |
reasonable attorney's fees incurred in preparing for
and |
1174 |
attending any scheduled mediation. |
1175 |
(l) The
party who files a complaint for a trial de novo |
1176 |
shall be assessed the other party's arbitration
costs, court |
1177 |
costs, and other reasonable costs, including
attorney's fees, |
1178 |
investigation expenses, and expenses for expert or
other |
1179 |
testimony or evidence incurred after the arbitration
hearing if |
1180 |
the judgment upon the trial de novo is not more
favorable than |
1181 |
the arbitration decision. If the judgment is more
favorable, the |
1182 |
party who filed a complaint for trial de novo shall
be awarded |
1183 |
reasonable court costs and attorney's fees. |
1184 |
(m) Any
party to an arbitration proceeding may enforce an |
1185 |
arbitration award by filing a petition in a court of
competent |
1186 |
jurisdiction in which the condominium is located. A
petition may |
1187 |
not be granted unless the time for appeal by the
filing of a |
1188 |
complaint for trial de novo has expired. If a
complaint for a |
1189 |
trial de novo has been filed, a petition may not be
granted with |
1190 |
respect to an arbitration award that has been stayed.
If the |
1191 |
petition for enforcement is granted, the petitioner
shall |
1192 |
recover reasonable attorney's fees and costs incurred
in |
1193 |
enforcing the arbitration award. A mediation
settlement may also |
1194 |
be enforced through the county or circuit court, as
applicable, |
1195 |
and any costs and fees incurred in the enforcement of
a |
1196 |
settlement agreement reached at mediation must be
awarded to the |
1197 |
prevailing party in any enforcement action. |
1198 |
Section 32. Subsection
(1) of section 718.5011, Florida |
1199 |
Statutes, is amended to read: |
1200 |
718.5011 Ombudsman;
appointment; administration.-- |
1201 |
(1) There is
created an Office of the Condominium |
1202 |
Ombudsman, to be located for administrative purposes
within the |
1203 |
Division of Florida Land Sales, Condominiums, Homeowners' |
1204 |
Associations, Community Association Management,
and Mobile |
1205 |
Homes. The functions of the office shall be funded by
the |
1206 |
Division of Florida Land Sales, Condominiums, Homeowners' |
1207 |
Associations, Community Association Management,
and Mobile Homes |
1208 |
Trust Fund. The ombudsman shall be a bureau chief of
the |
1209 |
division, and the office shall be set within the
division in the |
1210 |
same manner as any other bureau is staffed and
funded. |
1211 |
Section 33. Paragraph
(a) of subsection (2) of section |
1212 |
718.502, Florida Statutes, is amended to read: |
1213 |
718.502 Filing
prior to sale or lease.-- |
1214 |
(2)(a) Prior
to filing as required by subsection (1), and |
1215 |
prior to acquiring an ownership, leasehold, or
contractual |
1216 |
interest in the land upon which the condominium is to
be |
1217 |
developed, a developer shall not offer a contract for
purchase |
1218 |
of a unit or lease of a unit for more than 5 years.
However, the |
1219 |
developer may accept deposits for reservations upon
the approval |
1220 |
of a fully executed escrow agreement and reservation
agreement |
1221 |
form properly filed with the Division of Florida Land
Sales, |
1222 |
Condominiums, Homeowners' Associations, Community
Association |
1223 |
Management, and Mobile Homes. Each filing of a
proposed |
1224 |
reservation program shall be accompanied by a filing
fee of |
1225 |
$250. Reservations shall not be taken on a proposed
condominium |
1226 |
unless the developer has an ownership, leasehold, or
contractual |
1227 |
interest in the land upon which the condominium is to
be |
1228 |
developed. The division shall notify the developer
within 20 |
1229 |
days of receipt of the reservation filing of any
deficiencies |
1230 |
contained therein. Such notification shall not
preclude the |
1231 |
determination of reservation filing deficiencies at a
later |
1232 |
date, nor shall it relieve the developer of any
responsibility |
1233 |
under the law. The escrow agreement and the
reservation |
1234 |
agreement form shall include a statement of the right
of the |
1235 |
prospective purchaser to an immediate unqualified
refund of the |
1236 |
reservation deposit moneys upon written request to
the escrow |
1237 |
agent by the prospective purchaser or the developer. |
1238 |
Section 34. Section
718.504, Florida Statutes, is amended |
1239 |
to read: |
1240 |
718.504 Prospectus
or offering circular.--Every developer |
1241 |
of a residential condominium which contains more than
20 |
1242 |
residential units, or which is part of a group of
residential |
1243 |
condominiums which will be served by property to be
used in |
1244 |
common by unit owners of more than 20 residential
units, shall |
1245 |
prepare a prospectus or offering circular and file it
with the |
1246 |
Division of Florida Land Sales, Condominiums, Homeowners' |
1247 |
Associations, Community Association Management,
and Mobile Homes |
1248 |
prior to entering into an enforceable contract of
purchase and |
1249 |
sale of any unit or lease of a unit for more than 5
years and |
1250 |
shall furnish a copy of the prospectus or offering
circular to |
1251 |
each buyer. In addition to the prospectus or offering
circular, |
1252 |
each buyer shall be furnished a separate page
entitled |
1253 |
"Frequently Asked Questions and Answers,"
which shall be in |
1254 |
accordance with a format approved by the division and
a copy of |
1255 |
the financial information required by s. 718.111.
This page |
1256 |
shall, in readable language, inform prospective
purchasers |
1257 |
regarding their voting rights and unit use
restrictions, |
1258 |
including restrictions on the leasing of a unit;
shall indicate |
1259 |
whether and in what amount the unit owners or the
association is |
1260 |
obligated to pay rent or land use fees for
recreational or other |
1261 |
commonly used facilities; shall contain a statement
identifying |
1262 |
that amount of assessment which, pursuant to the
budget, would |
1263 |
be levied upon each unit type, exclusive of any
special |
1264 |
assessments, and which shall further identify the
basis upon |
1265 |
which assessments are levied, whether monthly,
quarterly, or |
1266 |
otherwise; shall state and identify any court cases
in which the |
1267 |
association is currently a party of record in which
the |
1268 |
association may face liability in excess of $100,000;
and which |
1269 |
shall further state whether membership in a
recreational |
1270 |
facilities association is mandatory, and if so, shall
identify |
1271 |
the fees currently charged per unit type. The
division shall by |
1272 |
rule require such other disclosure as in its judgment
will |
1273 |
assist prospective purchasers. The prospectus or
offering |
1274 |
circular may include more than one condominium,
although not all |
1275 |
such units are being offered for sale as of the date
of the |
1276 |
prospectus or offering circular. The prospectus or
offering |
1277 |
circular must contain the following information: |
1278 |
(1) The
front cover or the first page must contain only: |
1279 |
(a) The name
of the condominium. |
1280 |
(b) The
following statements in conspicuous type: |
1281 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
1282 |
MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM
UNIT. |
1283 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
1284 |
NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL
REFERENCES, |
1285 |
ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND
SALES |
1286 |
MATERIALS. |
1287 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
1288 |
STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER
TO THIS |
1289 |
PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR
CORRECT |
1290 |
REPRESENTATIONS. |
1291 |
(2) Summary:
The next page must contain all statements |
1292 |
required to be in conspicuous type in the prospectus
or offering |
1293 |
circular. |
1294 |
(3) A
separate index of the contents and exhibits of the |
1295 |
prospectus. |
1296 |
(4) Beginning
on the first page of the text (not including |
1297 |
the summary and index), a description of the
condominium, |
1298 |
including, but not limited to, the following
information: |
1299 |
(a) Its name
and location. |
1300 |
(b) A
description of the condominium property, including, |
1301 |
without limitation: |
1302 |
1. The
number of buildings, the number of units in each |
1303 |
building, the number of bathrooms and bedrooms in
each unit, and |
1304 |
the total number of units, if the condominium is not
a phase |
1305 |
condominium, or the maximum number of buildings that
may be |
1306 |
contained within the condominium, the minimum and
maximum |
1307 |
numbers of units in each building, the minimum and
maximum |
1308 |
numbers of bathrooms and bedrooms that may be
contained in each |
1309 |
unit, and the maximum number of units that may be
contained |
1310 |
within the condominium, if the condominium is a phase |
1311 |
condominium. |
1312 |
2. The page
in the condominium documents where a copy of |
1313 |
the plot plan and survey of the condominium is
located. |
1314 |
3. The
estimated latest date of completion of |
1315 |
constructing, finishing, and equipping. In lieu of a
date, the |
1316 |
description shall include a statement that the
estimated date of |
1317 |
completion of the condominium is in the purchase
agreement and a |
1318 |
reference to the article or paragraph containing that |
1319 |
information. |
1320 |
(c) The
maximum number of units that will use facilities |
1321 |
in common with the condominium. If the maximum number
of units |
1322 |
will vary, a description of the basis for variation
and the |
1323 |
minimum amount of dollars per unit to be spent for
additional |
1324 |
recreational facilities or enlargement of such
facilities. If |
1325 |
the addition or enlargement of facilities will result
in a |
1326 |
material increase of a unit owner's maintenance
expense or |
1327 |
rental expense, if any, the maximum increase and
limitations |
1328 |
thereon shall be stated. |
1329 |
(5)(a) A
statement in conspicuous type describing whether |
1330 |
the condominium is created and being sold as fee
simple |
1331 |
interests or as leasehold interests. If the
condominium is |
1332 |
created or being sold on a leasehold, the location of
the lease |
1333 |
in the disclosure materials shall be stated. |
1334 |
(b) If
timeshare estates are or may be created with |
1335 |
respect to any unit in the condominium, a statement
in |
1336 |
conspicuous type stating that timeshare estates are
created and |
1337 |
being sold in units in the condominium. |
1338 |
(6) A
description of the recreational and other commonly |
1339 |
used facilities that will be used only by unit owners
of the |
1340 |
condominium, including, but not limited to, the
following: |
1341 |
(a) Each
room and its intended purposes, location, |
1342 |
approximate floor area, and capacity in numbers of
people. |
1343 |
(b) Each
swimming pool, as to its general location, |
1344 |
approximate size and depths, approximate deck size
and capacity, |
1345 |
and whether heated. |
1346 |
(c) Additional
facilities, as to the number of each |
1347 |
facility, its approximate location, approximate size,
and |
1348 |
approximate capacity. |
1349 |
(d) A
general description of the items of personal |
1350 |
property and the approximate number of each item of
personal |
1351 |
property that the developer is committing to furnish
for each |
1352 |
room or other facility or, in the alternative, a
representation |
1353 |
as to the minimum amount of expenditure that will be
made to |
1354 |
purchase the personal property for the facility. |
1355 |
(e) The
estimated date when each room or other facility |
1356 |
will be available for use by the unit owners. |
1357 |
(f)1. An
identification of each room or other facility to |
1358 |
be used by unit owners that will not be owned by the
unit owners |
1359 |
or the association; |
1360 |
2. A
reference to the location in the disclosure materials |
1361 |
of the lease or other agreements providing for the
use of those |
1362 |
facilities; and |
1363 |
3. A
description of the terms of the lease or other |
1364 |
agreements, including the length of the term; the
rent payable, |
1365 |
directly or indirectly, by each unit owner, and the
total rent |
1366 |
payable to the lessor, stated in monthly and annual
amounts for |
1367 |
the entire term of the lease; and a description of
any option to |
1368 |
purchase the property leased under any such lease,
including the |
1369 |
time the option may be exercised, the purchase price
or how it |
1370 |
is to be determined, the manner of payment, and
whether the |
1371 |
option may be exercised for a unit owner's share or
only as to |
1372 |
the entire leased property. |
1373 |
(g) A
statement as to whether the developer may provide |
1374 |
additional facilities not described above; their
general |
1375 |
locations and types; improvements or changes that may
be made; |
1376 |
the approximate dollar amount to be expended; and the
maximum |
1377 |
additional common expense or cost to the individual
unit owners |
1378 |
that may be charged during the first annual period of
operation |
1379 |
of the modified or added facilities. |
1380 |
|
1381 |
Descriptions as to locations, areas, capacities,
numbers, |
1382 |
volumes, or sizes may be stated as approximations or
minimums. |
1383 |
(7) A
description of the recreational and other facilities |
1384 |
that will be used in common with other condominiums,
community |
1385 |
associations, or planned developments which require
the payment |
1386 |
of the maintenance and expenses of such facilities,
either |
1387 |
directly or indirectly, by the unit owners. The
description |
1388 |
shall include, but not be limited to, the following: |
1389 |
(a) Each
building and facility committed to be built. |
1390 |
(b) Facilities
not committed to be built except under |
1391 |
certain conditions, and a statement of those
conditions or |
1392 |
contingencies. |
1393 |
(c) As to
each facility committed to be built, or which |
1394 |
will be committed to be built upon the happening of
one of the |
1395 |
conditions in paragraph (b), a statement of whether
it will be |
1396 |
owned by the unit owners having the use thereof or by
an |
1397 |
association or other entity which will be controlled
by them, or |
1398 |
others, and the location in the exhibits of the lease
or other |
1399 |
document providing for use of those facilities. |
1400 |
(d) The year
in which each facility will be available for |
1401 |
use by the unit owners or, in the alternative, the
maximum |
1402 |
number of unit owners in the project at the time each
of all of |
1403 |
the facilities is committed to be completed. |
1404 |
(e) A
general description of the items of personal |
1405 |
property, and the approximate number of each item of
personal |
1406 |
property, that the developer is committing to furnish
for each |
1407 |
room or other facility or, in the alternative, a
representation |
1408 |
as to the minimum amount of expenditure that will be
made to |
1409 |
purchase the personal property for the facility. |
1410 |
(f) If there
are leases, a description thereof, including |
1411 |
the length of the term, the rent payable, and a
description of |
1412 |
any option to purchase. |
1413 |
|
1414 |
Descriptions shall include location, areas,
capacities, numbers, |
1415 |
volumes, or sizes and may be stated as approximations
or |
1416 |
minimums. |
1417 |
(8) Recreation
lease or associated club membership: |
1418 |
(a) If any
recreational facilities or other facilities |
1419 |
offered by the developer and available to, or to be
used by, |
1420 |
unit owners are to be leased or have club membership
associated, |
1421 |
the following statement in conspicuous type shall be
included: |
1422 |
THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED
WITH THIS |
1423 |
CONDOMINIUM; or, THERE IS A CLUB MEMBERSHIP
ASSOCIATED WITH THIS |
1424 |
CONDOMINIUM. There shall be a reference to the
location in the |
1425 |
disclosure materials where the recreation lease or
club |
1426 |
membership is described in detail. |
1427 |
(b) If it is
mandatory that unit owners pay a fee, rent, |
1428 |
dues, or other charges under a recreational
facilities lease or |
1429 |
club membership for the use of facilities, there
shall be in |
1430 |
conspicuous type the applicable statement: |
1431 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
1432 |
MANDATORY FOR UNIT OWNERS; or |
1433 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
1434 |
TO BE LESSEES UNDER THE RECREATIONAL FACILITIES
LEASE; or |
1435 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
1436 |
COSTS AND EXPENSES OF MAINTENANCE, MANAGEMENT,
UPKEEP, |
1437 |
REPLACEMENT, RENT, AND FEES UNDER THE RECREATIONAL
FACILITIES |
1438 |
LEASE (OR THE OTHER INSTRUMENTS PROVIDING THE
FACILITIES); or |
1439 |
4. A similar
statement of the nature of the organization |
1440 |
or the manner in which the use rights are created,
and that unit |
1441 |
owners are required to pay. |
1442 |
|
1443 |
Immediately following the applicable statement, the
location in |
1444 |
the disclosure materials where the development is
described in |
1445 |
detail shall be stated. |
1446 |
(c) If the
developer, or any other person other than the |
1447 |
unit owners and other persons having use rights in
the |
1448 |
facilities, reserves, or is entitled to receive, any
rent, fee, |
1449 |
or other payment for the use of the facilities, then
there shall |
1450 |
be the following statement in conspicuous type: THE
UNIT OWNERS |
1451 |
OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES
FOR |
1452 |
RECREATIONAL OR OTHER COMMONLY USED FACILITIES.
Immediately |
1453 |
following this statement, the location in the
disclosure |
1454 |
materials where the rent or land use fees are
described in |
1455 |
detail shall be stated. |
1456 |
(d) If, in
any recreation format, whether leasehold, club, |
1457 |
or other, any person other than the association has
the right to |
1458 |
a lien on the units to secure the payment of
assessments, rent, |
1459 |
or other exactions, there shall appear a statement in |
1460 |
conspicuous type in substantially the following form: |
1461 |
1. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
1462 |
SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER
THE |
1463 |
RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE
THESE |
1464 |
PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or |
1465 |
2. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
1466 |
SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS
COMING DUE |
1467 |
FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE
RECREATIONAL |
1468 |
OR COMMONLY USED FACILITIES. THE UNIT OWNER'S FAILURE
TO MAKE |
1469 |
THESE PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN. |
1470 |
|
1471 |
Immediately following the applicable statement, the
location in |
1472 |
the disclosure materials where the lien or lien right
is |
1473 |
described in detail shall be stated. |
1474 |
(9) If the
developer or any other person has the right to |
1475 |
increase or add to the recreational facilities at any
time after |
1476 |
the establishment of the condominium whose unit
owners have use |
1477 |
rights therein, without the consent of the unit
owners or |
1478 |
associations being required, there shall appear a
statement in |
1479 |
conspicuous type in substantially the following form: |
1480 |
RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED
WITHOUT CONSENT |
1481 |
OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately
following this |
1482 |
statement, the location in the disclosure materials
where such |
1483 |
reserved rights are described shall be stated. |
1484 |
(10) A
statement of whether the developer's plan includes |
1485 |
a program of leasing units rather than selling them,
or leasing |
1486 |
units and selling them subject to such leases. If so,
there |
1487 |
shall be a description of the plan, including the
number and |
1488 |
identification of the units and the provisions and
term of the |
1489 |
proposed leases, and a statement in boldfaced type
that: THE |
1490 |
UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE. |
1491 |
(11) The
arrangements for management of the association |
1492 |
and maintenance and operation of the condominium
property and of |
1493 |
other property that will serve the unit owners of the |
1494 |
condominium property, and a description of the
management |
1495 |
contract and all other contracts for these purposes
having a |
1496 |
term in excess of 1 year, including the following: |
1497 |
(a) The
names of contracting parties. |
1498 |
(b) The term
of the contract. |
1499 |
(c) The
nature of the services included. |
1500 |
(d) The
compensation, stated on a monthly and annual |
1501 |
basis, and provisions for increases in the
compensation. |
1502 |
(e) A
reference to the volumes and pages of the |
1503 |
condominium documents and of the exhibits containing
copies of |
1504 |
such contracts. |
1505 |
|
1506 |
Copies of all described contracts shall be attached
as exhibits. |
1507 |
If there is a contract for the management of the
condominium |
1508 |
property, then a statement in conspicuous type in
substantially |
1509 |
the following form shall appear, identifying the
proposed or |
1510 |
existing contract manager: THERE IS (IS TO BE) A
CONTRACT FOR |
1511 |
THE MANAGEMENT OF THE CONDOMINIUM PROPERTY WITH (NAME
OF THE |
1512 |
CONTRACT MANAGER). Immediately following this
statement, the |
1513 |
location in the disclosure materials of the contract
for |
1514 |
management of the condominium property shall be
stated. |
1515 |
(12) If the
developer or any other person or persons other |
1516 |
than the unit owners has the right to retain control
of the |
1517 |
board of administration of the association for a
period of time |
1518 |
which can exceed 1 year after the closing of the sale
of a |
1519 |
majority of the units in that condominium to persons
other than |
1520 |
successors or alternate developers, then a statement
in |
1521 |
conspicuous type in substantially the following form
shall be |
1522 |
included: THE DEVELOPER (OR OTHER PERSON) HAS THE
RIGHT TO |
1523 |
RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF
THE UNITS |
1524 |
HAVE BEEN SOLD. Immediately following this statement,
the |
1525 |
location in the disclosure materials where this right
to control |
1526 |
is described in detail shall be stated. |
1527 |
(13) If
there are any restrictions upon the sale, |
1528 |
transfer, conveyance, or leasing of a unit, then a
statement in |
1529 |
conspicuous type in substantially the following form
shall be |
1530 |
included: THE SALE, LEASE, OR TRANSFER OF UNITS IS
RESTRICTED OR |
1531 |
CONTROLLED. Immediately following this statement, the
location |
1532 |
in the disclosure materials where the restriction,
limitation, |
1533 |
or control on the sale, lease, or transfer of units
is described |
1534 |
in detail shall be stated. |
1535 |
(14) If the
condominium is part of a phase project, the |
1536 |
following information shall be stated: |
1537 |
(a) A
statement in conspicuous type in substantially the |
1538 |
following form: THIS IS A PHASE CONDOMINIUM.
ADDITIONAL LAND AND |
1539 |
UNITS MAY BE ADDED TO THIS CONDOMINIUM. Immediately
following |
1540 |
this statement, the location in the disclosure
materials where |
1541 |
the phasing is described shall be stated. |
1542 |
(b) A
summary of the provisions of the declaration which |
1543 |
provide for the phasing. |
1544 |
(c) A
statement as to whether or not residential buildings |
1545 |
and units which are added to the condominium may be |
1546 |
substantially different from the residential
buildings and units |
1547 |
originally in the condominium. If the added
residential |
1548 |
buildings and units may be substantially different,
there shall |
1549 |
be a general description of the extent to which such
added |
1550 |
residential buildings and units may differ, and a
statement in |
1551 |
conspicuous type in substantially the following form
shall be |
1552 |
included: BUILDINGS AND UNITS WHICH ARE ADDED TO THE
CONDOMINIUM |
1553 |
MAY BE SUBSTANTIALLY DIFFERENT FROM THE OTHER
BUILDINGS AND |
1554 |
UNITS IN THE CONDOMINIUM. Immediately following this
statement, |
1555 |
the location in the disclosure materials where the
extent to |
1556 |
which added residential buildings and units may
substantially |
1557 |
differ is described shall be stated. |
1558 |
(d) A
statement of the maximum number of buildings |
1559 |
containing units, the maximum and minimum numbers of
units in |
1560 |
each building, the maximum number of units, and the
minimum and |
1561 |
maximum square footage of the units that may be
contained within |
1562 |
each parcel of land which may be added to the
condominium. |
1563 |
(15) If a
condominium created on or after July 1, 2000, is |
1564 |
or may become part of a multicondominium, the
following |
1565 |
information must be provided: |
1566 |
(a) A
statement in conspicuous type in substantially the |
1567 |
following form: THIS CONDOMINIUM IS (MAY BE) PART OF
A |
1568 |
MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER
CONDOMINIUMS WILL |
1569 |
(MAY) BE OPERATED BY THE SAME ASSOCIATION.
Immediately following |
1570 |
this statement, the location in the prospectus or
offering |
1571 |
circular and its exhibits where the multicondominium
aspects of |
1572 |
the offering are described must be stated. |
1573 |
(b) A
summary of the provisions in the declaration, |
1574 |
articles of incorporation, and bylaws which establish
and |
1575 |
provide for the operation of the multicondominium,
including a |
1576 |
statement as to whether unit owners in the
condominium will have |
1577 |
the right to use recreational or other facilities
located or |
1578 |
planned to be located in other condominiums operated
by the same |
1579 |
association, and the manner of sharing the common
expenses |
1580 |
related to such facilities. |
1581 |
(c) A
statement of the minimum and maximum number of |
1582 |
condominiums, and the minimum and maximum number of
units in |
1583 |
each of those condominiums, which will or may be
operated by the |
1584 |
association, and the latest date by which the exact
number will |
1585 |
be finally determined. |
1586 |
(d) A
statement as to whether any of the condominiums in |
1587 |
the multicondominium may include units intended to be
used for |
1588 |
nonresidential purposes and the purpose or purposes
permitted |
1589 |
for such use. |
1590 |
(e) A
general description of the location and approximate |
1591 |
acreage of any land on which any additional
condominiums to be |
1592 |
operated by the association may be located. |
1593 |
(16) If the
condominium is created by conversion of |
1594 |
existing improvements, the following information
shall be |
1595 |
stated: |
1596 |
(a) The
information required by s. 718.616. |
1597 |
(b) A caveat
that there are no express warranties unless |
1598 |
they are stated in writing by the developer. |
1599 |
(17) A
summary of the restrictions, if any, to be imposed |
1600 |
on units concerning the use of any of the condominium
property, |
1601 |
including statements as to whether there are
restrictions upon |
1602 |
children and pets, and reference to the volumes and
pages of the |
1603 |
condominium documents where such restrictions are
found, or if |
1604 |
such restrictions are contained elsewhere, then a
copy of the |
1605 |
documents containing the restrictions shall be
attached as an |
1606 |
exhibit. |
1607 |
(18) If
there is any land that is offered by the developer |
1608 |
for use by the unit owners and that is neither owned
by them nor |
1609 |
leased to them, the association, or any entity
controlled by |
1610 |
unit owners and other persons having the use rights
to such |
1611 |
land, a statement shall be made as to how such land
will serve |
1612 |
the condominium. If any part of such land will serve
the |
1613 |
condominium, the statement shall describe the land
and the |
1614 |
nature and term of service, and the declaration or
other |
1615 |
instrument creating such servitude shall be included
as an |
1616 |
exhibit. |
1617 |
(19) The
manner in which utility and other services, |
1618 |
including, but not limited to, sewage and waste
disposal, water |
1619 |
supply, and storm drainage, will be provided and the
person or |
1620 |
entity furnishing them. |
1621 |
(20) An
explanation of the manner in which the |
1622 |
apportionment of common expenses and ownership of the
common |
1623 |
elements has been determined. |
1624 |
(21) An
estimated operating budget for the condominium and |
1625 |
the association, and a schedule of the unit owner's
expenses |
1626 |
shall be attached as an exhibit and shall contain the
following |
1627 |
information: |
1628 |
(a) The
estimated monthly and annual expenses of the |
1629 |
condominium and the association that are collected
from unit |
1630 |
owners by assessments. |
1631 |
(b) The
estimated monthly and annual expenses of each unit |
1632 |
owner for a unit, other than common expenses paid by
all unit |
1633 |
owners, payable by the unit owner to persons or
entities other |
1634 |
than the association, as well as to the association,
including |
1635 |
fees assessed pursuant to s. 718.113(1) for
maintenance of |
1636 |
limited common elements where such costs are shared
only by |
1637 |
those entitled to use the limited common element, and
the total |
1638 |
estimated monthly and annual expense. There may be
excluded from |
1639 |
this estimate expenses which are not provided for or |
1640 |
contemplated by the condominium documents, including,
but not |
1641 |
limited to, the costs of private telephone;
maintenance of the |
1642 |
interior of condominium units, which is not the
obligation of |
1643 |
the association; maid or janitorial services
privately |
1644 |
contracted for by the unit owners; utility bills
billed directly |
1645 |
to each unit owner for utility services to his or her
unit; |
1646 |
insurance premiums other than those incurred for
policies |
1647 |
obtained by the condominium; and similar personal
expenses of |
1648 |
the unit owner. A unit owner's estimated payments for |
1649 |
assessments shall also be stated in the estimated
amounts for |
1650 |
the times when they will be due. |
1651 |
(c) The
estimated items of expenses of the condominium and |
1652 |
the association, except as excluded under paragraph
(b), |
1653 |
including, but not limited to, the following items,
which shall |
1654 |
be stated either as an association expense
collectible by |
1655 |
assessments or as unit owners' expenses payable to
persons other |
1656 |
than the association: |
1657 |
1. Expenses
for the association and condominium: |
1658 |
a. Administration
of the association. |
1659 |
b. Management
fees. |
1660 |
c. Maintenance. |
1661 |
d. Rent for
recreational and other commonly used |
1662 |
facilities. |
1663 |
e. Taxes
upon association property. |
1664 |
f. Taxes
upon leased areas. |
1665 |
g. Insurance. |
1666 |
h. Security
provisions. |
1667 |
i. Other
expenses. |
1668 |
j. Operating
capital. |
1669 |
k. Reserves. |
1670 |
l. Fees
payable to the division. |
1671 |
2. Expenses
for a unit owner: |
1672 |
a. Rent for
the unit, if subject to a lease. |
1673 |
b. Rent
payable by the unit owner directly to the lessor |
1674 |
or agent under any recreational lease or lease for
the use of |
1675 |
commonly used facilities, which use and payment is a
mandatory |
1676 |
condition of ownership and is not included in the
common expense |
1677 |
or assessments for common maintenance paid by the
unit owners to |
1678 |
the association. |
1679 |
(d) The
estimated amounts shall be stated for a period of |
1680 |
at least 12 months and may distinguish between the
period prior |
1681 |
to the time unit owners other than the developer
elect a |
1682 |
majority of the board of administration and the
period after |
1683 |
that date. |
1684 |
(22) A
schedule of estimated closing expenses to be paid |
1685 |
by a buyer or lessee of a unit and a statement of
whether title |
1686 |
opinion or title insurance policy is available to the
buyer and, |
1687 |
if so, at whose expense. |
1688 |
(23) The
identity of the developer and the chief operating |
1689 |
officer or principal directing the creation and sale
of the |
1690 |
condominium and a statement of its and his or her
experience in |
1691 |
this field. |
1692 |
(24) Copies
of the following, to the extent they are |
1693 |
applicable, shall be included as exhibits: |
1694 |
(a) The
declaration of condominium, or the proposed |
1695 |
declaration if the declaration has not been recorded. |
1696 |
(b) The
articles of incorporation creating the |
1697 |
association. |
1698 |
(c) The
bylaws of the association. |
1699 |
(d) The
ground lease or other underlying lease of the |
1700 |
condominium. |
1701 |
(e) The
management agreement and all maintenance and other |
1702 |
contracts for management of the association and
operation of the |
1703 |
condominium and facilities used by the unit owners
having a |
1704 |
service term in excess of 1 year. |
1705 |
(f) The
estimated operating budget for the condominium and |
1706 |
the required schedule of unit owners' expenses. |
1707 |
(g) A copy
of the floor plan of the unit and the plot plan |
1708 |
showing the location of the residential buildings and
the |
1709 |
recreation and other common areas. |
1710 |
(h) The
lease of recreational and other facilities that |
1711 |
will be used only by unit owners of the subject
condominium. |
1712 |
(i) The
lease of facilities used by owners and others. |
1713 |
(j) The form
of unit lease, if the offer is of a |
1714 |
leasehold. |
1715 |
(k) A
declaration of servitude of properties serving the |
1716 |
condominium but not owned by unit owners or leased to
them or |
1717 |
the association. |
1718 |
(l) The
statement of condition of the existing building or |
1719 |
buildings, if the offering is of units in an
operation being |
1720 |
converted to condominium ownership. |
1721 |
(m) The
statement of inspection for termite damage and |
1722 |
treatment of the existing improvements, if the
condominium is a |
1723 |
conversion. |
1724 |
(n) The form
of agreement for sale or lease of units. |
1725 |
(o) A copy
of the agreement for escrow of payments made to |
1726 |
the developer prior to closing. |
1727 |
(p) A copy
of the documents containing any restrictions on |
1728 |
use of the property required by subsection (17). |
1729 |
(25) Any
prospectus or offering circular complying, prior |
1730 |
to the effective date of this act, with the
provisions of former |
1731 |
ss. 711.69 and 711.802 may continue to be used
without amendment |
1732 |
or may be amended to comply with the provisions of
this chapter. |
1733 |
(26) A brief
narrative description of the location and |
1734 |
effect of all existing and intended easements located
or to be |
1735 |
located on the condominium property other than those
described |
1736 |
in the declaration. |
1737 |
(27) If the
developer is required by state or local |
1738 |
authorities to obtain acceptance or approval of any
dock or |
1739 |
marina facilities intended to serve the condominium,
a copy of |
1740 |
any such acceptance or approval acquired by the time
of filing |
1741 |
with the division under s. 718.502(1) or a statement
that such |
1742 |
acceptance or approval has not been acquired or
received. |
1743 |
(28) Evidence
demonstrating that the developer has an |
1744 |
ownership, leasehold, or contractual interest in the
land upon |
1745 |
which the condominium is to be developed. |
1746 |
Section 35. Section
718.508, Florida Statutes, is amended |
1747 |
to read: |
1748 |
718.508 Regulation
by Division of Hotels and |
1749 |
Restaurants.--In addition to the authority,
regulation, or |
1750 |
control exercised by the Division of Florida Land
Sales, |
1751 |
Condominiums, Homeowners' Associations, Community
Association |
1752 |
Management, and Mobile Homes pursuant to this
act with respect |
1753 |
to condominiums, buildings included in a condominium
property |
1754 |
shall be subject to the authority, regulation, or
control of the |
1755 |
Division of Hotels and Restaurants of the Department
of Business |
1756 |
and Professional Regulation, to the extent provided
for in |
1757 |
chapter 399. |
1758 |
Section 36. Section
718.509, Florida Statutes, is amended |
1759 |
to read: |
1760 |
718.509 Division
of Florida Land Sales, Condominiums, |
1761 |
Homeowners' Associations, Community Association
Management, and |
1762 |
Mobile Homes Trust Fund.--All funds collected by the
division |
1763 |
and any amount paid for a fee or penalty under this
chapter |
1764 |
shall be deposited in the State Treasury to the
credit of the |
1765 |
Division of Florida Land Sales, Condominiums, Homeowners' |
1766 |
Associations, Community Association Management,
and Mobile Homes |
1767 |
Trust Fund created by s. 498.019. |
1768 |
Section 37. Paragraph
(a) of subsection (2) of section |
1769 |
718.608, Florida Statutes, is amended to read: |
1770 |
718.608 Notice
of intended conversion; time of delivery; |
1771 |
content.-- |
1772 |
(2)(a) Each
notice of intended conversion shall be dated |
1773 |
and in writing. The notice shall contain the
following |
1774 |
statement, with the phrases of the following
statement which |
1775 |
appear in upper case printed in conspicuous type: |
1776 |
|
1777 |
These apartments are being
converted to condominium by |
1778 |
(name of developer) , the developer. |
1779 |
1. YOU
MAY REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
1780 |
YOUR RENTAL AGREEMENT. FURTHER, YOU MAY
EXTEND YOUR RENTAL |
1781 |
AGREEMENT AS FOLLOWS: |
1782 |
a. If
you have continuously been a resident of these |
1783 |
apartments during the last 180 days and
your rental agreement |
1784 |
expires during the next 270 days, you may
extend your rental |
1785 |
agreement for up to 270 days after the
date of this notice. |
1786 |
b. If
you have not been a continuous resident of these |
1787 |
apartments for the last 180 days and your
rental agreement |
1788 |
expires during the next 180 days, you may
extend your rental |
1789 |
agreement for up to 180 days after the
date of this notice. |
1790 |
c. IN
ORDER FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
1791 |
MUST GIVE THE DEVELOPER WRITTEN NOTICE
WITHIN 45 DAYS AFTER THE |
1792 |
DATE OF THIS NOTICE. |
1793 |
2. IF
YOUR RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
1794 |
you may extend your rental agreement for
up to 45 days after the |
1795 |
date of this notice while you decide
whether to extend your |
1796 |
rental agreement as explained above. To
do so, you must notify |
1797 |
the developer in writing. You will then
have the full 45 days to |
1798 |
decide whether to extend your rental
agreement as explained |
1799 |
above. |
1800 |
3. During
the extension of your rental agreement you will |
1801 |
be charged the same rent that you are now
paying. |
1802 |
4. YOU
MAY CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
1803 |
OF THE RENTAL AGREEMENT AS FOLLOWS: |
1804 |
a. If
your rental agreement began or was extended or |
1805 |
renewed after May 1, 1980, and your
rental agreement, including |
1806 |
extensions and renewals, has an unexpired
term of 180 days or |
1807 |
less, you may cancel your rental
agreement upon 30 days' written |
1808 |
notice and move. Also, upon 30 days'
written notice, you may |
1809 |
cancel any extension of the rental
agreement. |
1810 |
b. If
your rental agreement was not begun or was not |
1811 |
extended or renewed after May 1, 1980,
you may not cancel the |
1812 |
rental agreement without the consent of
the developer. If your |
1813 |
rental agreement, including extensions
and renewals, has an |
1814 |
unexpired term of 180 days or less, you
may, however, upon 30 |
1815 |
days' written notice cancel any extension
of the rental |
1816 |
agreement. |
1817 |
5. All
notices must be given in writing and sent by mail, |
1818 |
return receipt requested, or delivered in
person to the |
1819 |
developer at this address:
(name and address of developer) . |
1820 |
6. If
you have continuously been a resident of these |
1821 |
apartments during the last 180 days: |
1822 |
a. You
have the right to purchase your apartment and will |
1823 |
have 45 days to decide whether to
purchase. If you do not buy |
1824 |
the unit at that price and the unit is
later offered at a lower |
1825 |
price, you will have the opportunity to
buy the unit at the |
1826 |
lower price. However, in all events your
right to purchase the |
1827 |
unit ends when the rental agreement or
any extension of the |
1828 |
rental agreement ends or when you waive
this right in writing. |
1829 |
b. Within
90 days you will be provided purchase |
1830 |
information relating to your apartment,
including the price of |
1831 |
your unit and the condition of the
building. If you do not |
1832 |
receive this information within 90 days,
your rental agreement |
1833 |
and any extension will be extended 1 day
for each day over 90 |
1834 |
days until you are given the purchase
information. If you do not |
1835 |
want this rental agreement extension, you
must notify the |
1836 |
developer in writing. |
1837 |
7. If
you have any questions regarding this conversion or |
1838 |
the Condominium Act, you may contact the
developer or the state |
1839 |
agency which regulates condominiums: The
Division of Florida |
1840 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
1841 |
Association Management, and Mobile
Homes, (Tallahassee address |
1842 |
and telephone number of division). |
1843 |
Section 38. Subsection
(17) of section 719.103, Florida |
1844 |
Statutes, is amended to read: |
1845 |
719.103 Definitions.--As
used in this chapter: |
1846 |
(17) "Division"
means the Division of Florida Land Sales, |
1847 |
Condominiums, Homeowners'
Associations, Community Association |
1848 |
Management, and Mobile Homes of
the Department of Business and |
1849 |
Professional Regulation. |
1850 |
Section 39. Section
719.1255, Florida Statutes, is amended |
1851 |
to read: |
1852 |
719.1255 Alternative
resolution of disputes.--The Division |
1853 |
of Florida Land Sales, Condominiums, Homeowners'
Associations, |
1854 |
Community Association Management,
and Mobile Homes of the |
1855 |
Department of Business and Professional
Regulation shall provide |
1856 |
for alternative dispute resolution in
accordance with s. |
1857 |
718.1255. |
1858 |
Section 40. Section
719.501, Florida Statutes, is amended |
1859 |
to read: |
1860 |
719.501 Powers
and duties of Division of Florida Land |
1861 |
Sales, Condominiums, Homeowners'
Associations, Community |
1862 |
Association Management, and Mobile
Homes.-- |
1863 |
(1) The
Division of Florida Land Sales, Condominiums, |
1864 |
Homeowners' Associations, Community
Association Management, and |
1865 |
Mobile Homes of the Department of
Business and Professional |
1866 |
Regulation, referred to as the
"division" in this part, in |
1867 |
addition to other powers and duties
prescribed by chapter 498, |
1868 |
has the power to enforce and ensure
compliance with the |
1869 |
provisions of this chapter and rules
promulgated pursuant hereto |
1870 |
relating to the development,
construction, sale, lease, |
1871 |
ownership, operation, and management of
residential cooperative |
1872 |
units. In performing its duties, the
division shall have the |
1873 |
following powers and duties: |
1874 |
(a) The
division may make necessary public or private |
1875 |
investigations within or outside this
state to determine whether |
1876 |
any person has violated this chapter or
any rule or order |
1877 |
hereunder, to aid in the enforcement of
this chapter, or to aid |
1878 |
in the adoption of rules or forms
hereunder. |
1879 |
(b) The
division may require or permit any person to file |
1880 |
a statement in writing, under oath or
otherwise, as the division |
1881 |
determines, as to the facts and
circumstances concerning a |
1882 |
matter to be investigated. |
1883 |
(c) For
the purpose of any investigation under this |
1884 |
chapter, the division director or any
officer or employee |
1885 |
designated by the division director may
administer oaths or |
1886 |
affirmations, subpoena witnesses and
compel their attendance, |
1887 |
take evidence, and require the production
of any matter which is |
1888 |
relevant to the investigation, including
the existence, |
1889 |
description, nature, custody, condition,
and location of any |
1890 |
books, documents, or other tangible
things and the identity and |
1891 |
location of persons having knowledge of
relevant facts or any |
1892 |
other matter reasonably calculated to
lead to the discovery of |
1893 |
material evidence. Upon failure by a
person to obey a subpoena |
1894 |
or to answer questions propounded by the
investigating officer |
1895 |
and upon reasonable notice to all persons
affected thereby, the |
1896 |
division may apply to the circuit court
for an order compelling |
1897 |
compliance. |
1898 |
(d) Notwithstanding
any remedies available to unit owners |
1899 |
and associations, if the division has
reasonable cause to |
1900 |
believe that a violation of any provision
of this chapter or |
1901 |
rule promulgated pursuant hereto has
occurred, the division may |
1902 |
institute enforcement proceedings in its
own name against a |
1903 |
developer, association, officer, or
member of the board, or its |
1904 |
assignees or agents, as follows: |
1905 |
1. The
division may permit a person whose conduct or |
1906 |
actions may be under investigation to
waive formal proceedings |
1907 |
and enter into a consent proceeding
whereby orders, rules, or |
1908 |
letters of censure or warning, whether
formal or informal, may |
1909 |
be entered against the person. |
1910 |
2. The
division may issue an order requiring the |
1911 |
developer, association, officer, or
member of the board, or its |
1912 |
assignees or agents, to cease and desist
from the unlawful |
1913 |
practice and take such affirmative action
as in the judgment of |
1914 |
the division will carry out the purposes
of this chapter. Such |
1915 |
affirmative action may include, but is
not limited to, an order |
1916 |
requiring a developer to pay moneys
determined to be owed to a |
1917 |
condominium association. |
1918 |
3. The
division may bring an action in circuit court on |
1919 |
behalf of a class of unit owners,
lessees, or purchasers for |
1920 |
declaratory relief, injunctive relief, or
restitution. |
1921 |
4. The
division may impose a civil penalty against a |
1922 |
developer or association, or its
assignees or agents, for any |
1923 |
violation of this chapter or a rule
promulgated pursuant hereto. |
1924 |
The division may impose a civil penalty
individually against any |
1925 |
officer or board member who willfully and
knowingly violates a |
1926 |
provision of this chapter, a rule adopted
pursuant to this |
1927 |
chapter, or a final order of the
division. The term "willfully |
1928 |
and knowingly" means that the
division informed the officer or |
1929 |
board member that his or her action or
intended action violates |
1930 |
this chapter, a rule adopted under this
chapter, or a final |
1931 |
order of the division, and that the
officer or board member |
1932 |
refused to comply with the requirements
of this chapter, a rule |
1933 |
adopted under this chapter, or a final
order of the division. |
1934 |
The division, prior to initiating formal
agency action under |
1935 |
chapter 120, shall afford the officer or
board member an |
1936 |
opportunity to voluntarily comply with
this chapter, a rule |
1937 |
adopted under this chapter, or a final
order of the division. An |
1938 |
officer or board member who complies
within 10 days is not |
1939 |
subject to a civil penalty. A penalty may
be imposed on the |
1940 |
basis of each day of continuing
violation, but in no event shall |
1941 |
the penalty for any offense exceed
$5,000. By January 1, 1998, |
1942 |
the division shall adopt, by rule,
penalty guidelines applicable |
1943 |
to possible violations or to categories
of violations of this |
1944 |
chapter or rules adopted by the division.
The guidelines must |
1945 |
specify a meaningful range of civil
penalties for each such |
1946 |
violation of the statute and rules and
must be based upon the |
1947 |
harm caused by the violation, the
repetition of the violation, |
1948 |
and upon such other factors deemed
relevant by the division. For |
1949 |
example, the division may consider
whether the violations were |
1950 |
committed by a developer or
owner-controlled association, the |
1951 |
size of the association, and other
factors. The guidelines must |
1952 |
designate the possible mitigating or
aggravating circumstances |
1953 |
that justify a departure from the range
of penalties provided by |
1954 |
the rules. It is the legislative intent
that minor violations be |
1955 |
distinguished from those which endanger
the health, safety, or |
1956 |
welfare of the cooperative residents or
other persons and that |
1957 |
such guidelines provide reasonable and
meaningful notice to the |
1958 |
public of likely penalties that may be
imposed for proscribed |
1959 |
conduct. This subsection does not limit
the ability of the |
1960 |
division to informally dispose of
administrative actions or |
1961 |
complaints by stipulation, agreed
settlement, or consent order. |
1962 |
All amounts collected shall be deposited
with the Chief |
1963 |
Financial Officer to the credit of the
Division of Florida Land |
1964 |
Sales, Condominiums, Homeowners'
Associations, Community |
1965 |
Association Management, and Mobile
Homes Trust Fund. If a |
1966 |
developer fails to pay the civil penalty,
the division shall |
1967 |
thereupon issue an order directing that
such developer cease and |
1968 |
desist from further operation until such
time as the civil |
1969 |
penalty is paid or may pursue enforcement
of the penalty in a |
1970 |
court of competent jurisdiction. If an
association fails to pay |
1971 |
the civil penalty, the division shall
thereupon pursue |
1972 |
enforcement in a court of competent
jurisdiction, and the order |
1973 |
imposing the civil penalty or the cease
and desist order shall |
1974 |
not become effective until 20 days after
the date of such order. |
1975 |
Any action commenced by the division
shall be brought in the |
1976 |
county in which the division has its
executive offices or in the |
1977 |
county where the violation occurred. |
1978 |
(e) The
division is authorized to prepare and disseminate |
1979 |
a prospectus and other information to
assist prospective owners, |
1980 |
purchasers, lessees, and developers of
residential cooperatives |
1981 |
in assessing the rights, privileges, and
duties pertaining |
1982 |
thereto. |
1983 |
(f) The
division has authority to adopt rules pursuant to |
1984 |
ss. 120.536(1) and 120.54 to implement
and enforce the |
1985 |
provisions of this chapter. |
1986 |
(g) The
division shall establish procedures for providing |
1987 |
notice to an association when the
division is considering the |
1988 |
issuance of a declaratory statement with
respect to the |
1989 |
cooperative documents governing such
cooperative community. |
1990 |
(h) The
division shall furnish each association which pays |
1991 |
the fees required by paragraph (2)(a) a
copy of this act, |
1992 |
subsequent changes to this act on an
annual basis, an amended |
1993 |
version of this act as it becomes
available from the Secretary |
1994 |
of State's office on a biennial basis,
and the rules promulgated |
1995 |
pursuant thereto on an annual basis. |
1996 |
(i) The
division shall annually provide each association |
1997 |
with a summary of declaratory statements
and formal legal |
1998 |
opinions relating to the operations of
cooperatives which were |
1999 |
rendered by the division during the
previous year. |
2000 |
(j) The
division shall adopt uniform accounting |
2001 |
principles, policies, and standards to be
used by all |
2002 |
associations in the preparation and
presentation of all |
2003 |
financial statements required by this
chapter. The principles, |
2004 |
policies, and standards shall take into
consideration the size |
2005 |
of the association and the total revenue
collected by the |
2006 |
association. |
2007 |
(k) The
division shall provide training programs for |
2008 |
cooperative association board members and
unit owners. |
2009 |
(l) The
division shall maintain a toll-free telephone |
2010 |
number accessible to cooperative unit
owners. |
2011 |
(m) When
a complaint is made to the division, the division |
2012 |
shall conduct its inquiry with reasonable
dispatch and with due |
2013 |
regard to the interests of the affected
parties. Within 30 days |
2014 |
after receipt of a complaint, the
division shall acknowledge the |
2015 |
complaint in writing and notify the
complainant whether the |
2016 |
complaint is within the jurisdiction of
the division and whether |
2017 |
additional information is needed by the
division from the |
2018 |
complainant. The division shall conduct
its investigation and |
2019 |
shall, within 90 days after receipt of
the original complaint or |
2020 |
timely requested additional information,
take action upon the |
2021 |
complaint. However, the failure to
complete the investigation |
2022 |
within 90 days does not prevent the
division from continuing the |
2023 |
investigation, accepting or considering
evidence obtained or |
2024 |
received after 90 days, or taking
administrative action if |
2025 |
reasonable cause exists to believe that a
violation of this |
2026 |
chapter or a rule of the division has
occurred. If an |
2027 |
investigation is not completed within the
time limits |
2028 |
established in this paragraph, the
division shall, on a monthly |
2029 |
basis, notify the complainant in writing
of the status of the |
2030 |
investigation. When reporting its action
to the complainant, the |
2031 |
division shall inform the complainant of
any right to a hearing |
2032 |
pursuant to ss. 120.569 and 120.57. |
2033 |
(n) The
division shall develop a program to certify both |
2034 |
volunteer and paid mediators to provide
mediation of cooperative |
2035 |
disputes. The division shall provide,
upon request, a list of |
2036 |
such mediators to any association, unit
owner, or other |
2037 |
participant in arbitration proceedings
under s. 718.1255 |
2038 |
requesting a copy of the list. The
division shall include on the |
2039 |
list of voluntary mediators only persons
who have received at |
2040 |
least 20 hours of training in mediation
techniques or have |
2041 |
mediated at least 20 disputes. In order
to become initially |
2042 |
certified by the division, paid mediators
must be certified by |
2043 |
the Supreme Court to mediate court cases
in either county or |
2044 |
circuit courts. However, the division may
adopt, by rule, |
2045 |
additional factors for the certification
of paid mediators, |
2046 |
which factors must be related to
experience, education, or |
2047 |
background. Any person initially
certified as a paid mediator by |
2048 |
the division must, in order to continue
to be certified, comply |
2049 |
with the factors or requirements imposed
by rules adopted by the |
2050 |
division. |
2051 |
(2)(a) Each
cooperative association shall pay to the |
2052 |
division, on or before January 1 of each year, an
annual fee in |
2053 |
the amount of $4 for each residential unit in
cooperatives |
2054 |
operated by the association. If the fee is not paid
by March 1, |
2055 |
then the association shall be assessed a penalty of
10 percent |
2056 |
of the amount due, and the association shall not have
the |
2057 |
standing to maintain or defend any action in the
courts of this |
2058 |
state until the amount due is paid. |
2059 |
(b) All fees
shall be deposited in the Division of Florida |
2060 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
2061 |
Association Management, and Mobile Homes Trust
Fund as provided |
2062 |
by law. |
2063 |
Section 41. Paragraph
(a) of subsection (2) of section |
2064 |
719.502, Florida Statutes, is amended to read: |
2065 |
719.502 Filing
prior to sale or lease.-- |
2066 |
(2)(a) Prior
to filing as required by subsection (1), and |
2067 |
prior to acquiring an ownership, leasehold, or
contractual |
2068 |
interest in the land upon which the cooperative is to
be |
2069 |
developed, a developer shall not offer a contract for
purchase |
2070 |
or lease of a unit for more than 5 years. However,
the developer |
2071 |
may accept deposits for reservations upon the
approval of a |
2072 |
fully executed escrow agreement and reservation
agreement form |
2073 |
properly filed with the Division of Florida Land
Sales, |
2074 |
Condominiums, Homeowners' Associations, Community
Association |
2075 |
Management, and Mobile Homes. Each filing of a
proposed |
2076 |
reservation program shall be accompanied by a filing
fee of |
2077 |
$250. Reservations shall not be taken on a proposed
cooperative |
2078 |
unless the developer has an ownership, leasehold, or
contractual |
2079 |
interest in the land upon which the cooperative is to
be |
2080 |
developed. The division shall notify the developer
within 20 |
2081 |
days of receipt of the reservation filing of any
deficiencies |
2082 |
contained therein. Such notification shall not
preclude the |
2083 |
determination of reservation filing deficiencies at a
later |
2084 |
date, nor shall it relieve the developer of any
responsibility |
2085 |
under the law. The escrow agreement and the
reservation |
2086 |
agreement form shall include a statement of the right
of the |
2087 |
prospective purchaser to an immediate unqualified
refund of the |
2088 |
reservation deposit moneys upon written request to
the escrow |
2089 |
agent by the prospective purchaser or the developer. |
2090 |
Section 42. Section
719.504, Florida Statutes, is amended |
2091 |
to read: |
2092 |
719.504 Prospectus
or offering circular.--Every developer |
2093 |
of a residential cooperative which contains more than
20 |
2094 |
residential units, or which is part of a group of
residential |
2095 |
cooperatives which will be served by property to be
used in |
2096 |
common by unit owners of more than 20 residential
units, shall |
2097 |
prepare a prospectus or offering circular and file it
with the |
2098 |
Division of Florida Land Sales, Condominiums, Homeowners' |
2099 |
Associations, Community Association Management,
and Mobile Homes |
2100 |
prior to entering into an enforceable contract of
purchase and |
2101 |
sale of any unit or lease of a unit for more than 5
years and |
2102 |
shall furnish a copy of the prospectus or offering
circular to |
2103 |
each buyer. In addition to the prospectus or offering
circular, |
2104 |
each buyer shall be furnished a separate page
entitled |
2105 |
"Frequently Asked Questions and Answers,"
which must be in |
2106 |
accordance with a format approved by the division.
This page |
2107 |
must, in readable language: inform prospective
purchasers |
2108 |
regarding their voting rights and unit use
restrictions, |
2109 |
including restrictions on the leasing of a unit;
indicate |
2110 |
whether and in what amount the unit owners or the
association is |
2111 |
obligated to pay rent or land use fees for
recreational or other |
2112 |
commonly used facilities; contain a statement
identifying that |
2113 |
amount of assessment which, pursuant to the budget,
would be |
2114 |
levied upon each unit type, exclusive of any special |
2115 |
assessments, and which identifies the basis upon
which |
2116 |
assessments are levied, whether monthly, quarterly,
or |
2117 |
otherwise; state and identify any court cases in
which the |
2118 |
association is currently a party of record in which
the |
2119 |
association may face liability in excess of $100,000;
and state |
2120 |
whether membership in a recreational facilities
association is |
2121 |
mandatory and, if so, identify the fees currently
charged per |
2122 |
unit type. The division shall by rule require such
other |
2123 |
disclosure as in its judgment will assist prospective |
2124 |
purchasers. The prospectus or offering circular may
include more |
2125 |
than one cooperative, although not all such units are
being |
2126 |
offered for sale as of the date of the prospectus or
offering |
2127 |
circular. The prospectus or offering circular must
contain the |
2128 |
following information: |
2129 |
(1) The
front cover or the first page must contain only: |
2130 |
(a) The name
of the cooperative. |
2131 |
(b) The
following statements in conspicuous type: |
2132 |
1. THIS
PROSPECTUS (OFFERING CIRCULAR) CONTAINS IMPORTANT |
2133 |
MATTERS TO BE CONSIDERED IN ACQUIRING A COOPERATIVE
UNIT. |
2134 |
2. THE
STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN |
2135 |
NATURE. A PROSPECTIVE PURCHASER SHOULD REFER TO ALL
REFERENCES, |
2136 |
ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND
SALES |
2137 |
MATERIALS. |
2138 |
3. ORAL
REPRESENTATIONS CANNOT BE RELIED UPON AS CORRECTLY |
2139 |
STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER
TO THIS |
2140 |
PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR
CORRECT |
2141 |
REPRESENTATIONS. |
2142 |
(2) Summary:
The next page must contain all statements |
2143 |
required to be in conspicuous type in the prospectus
or offering |
2144 |
circular. |
2145 |
(3) A
separate index of the contents and exhibits of the |
2146 |
prospectus. |
2147 |
(4) Beginning
on the first page of the text (not including |
2148 |
the summary and index), a description of the
cooperative, |
2149 |
including, but not limited to, the following
information: |
2150 |
(a) Its name
and location. |
2151 |
(b) A
description of the cooperative property, including, |
2152 |
without limitation: |
2153 |
1. The
number of buildings, the number of units in each |
2154 |
building, the number of bathrooms and bedrooms in
each unit, and |
2155 |
the total number of units, if the cooperative is not
a phase |
2156 |
cooperative; or, if the cooperative is a phase
cooperative, the |
2157 |
maximum number of buildings that may be contained
within the |
2158 |
cooperative, the minimum and maximum number of units
in each |
2159 |
building, the minimum and maximum number of bathrooms
and |
2160 |
bedrooms that may be contained in each unit, and the
maximum |
2161 |
number of units that may be contained within the
cooperative. |
2162 |
2. The page
in the cooperative documents where a copy of |
2163 |
the survey and plot plan of the cooperative is
located. |
2164 |
3. The
estimated latest date of completion of |
2165 |
constructing, finishing, and equipping. In lieu of a
date, a |
2166 |
statement that the estimated date of completion of
the |
2167 |
cooperative is in the purchase agreement and a
reference to the |
2168 |
article or paragraph containing that information. |
2169 |
(c) The
maximum number of units that will use facilities |
2170 |
in common with the cooperative. If the maximum number
of units |
2171 |
will vary, a description of the basis for variation
and the |
2172 |
minimum amount of dollars per unit to be spent for
additional |
2173 |
recreational facilities or enlargement of such
facilities. If |
2174 |
the addition or enlargement of facilities will result
in a |
2175 |
material increase of a unit owner's maintenance
expense or |
2176 |
rental expense, if any, the maximum increase and
limitations |
2177 |
thereon shall be stated. |
2178 |
(5)(a) A
statement in conspicuous type describing whether |
2179 |
the cooperative is created and being sold as fee
simple |
2180 |
interests or as leasehold interests. If the
cooperative is |
2181 |
created or being sold on a leasehold, the location of
the lease |
2182 |
in the disclosure materials shall be stated. |
2183 |
(b) If
timeshare estates are or may be created with |
2184 |
respect to any unit in the cooperative, a statement
in |
2185 |
conspicuous type stating that timeshare estates are
created and |
2186 |
being sold in such specified units in the
cooperative. |
2187 |
(6) A
description of the recreational and other common |
2188 |
areas that will be used only by unit owners of the
cooperative, |
2189 |
including, but not limited to, the following: |
2190 |
(a) Each
room and its intended purposes, location, |
2191 |
approximate floor area, and capacity in numbers of
people. |
2192 |
(b) Each
swimming pool, as to its general location, |
2193 |
approximate size and depths, approximate deck size
and capacity, |
2194 |
and whether heated. |
2195 |
(c) Additional
facilities, as to the number of each |
2196 |
facility, its approximate location, approximate size,
and |
2197 |
approximate capacity. |
2198 |
(d) A
general description of the items of personal |
2199 |
property and the approximate number of each item of
personal |
2200 |
property that the developer is committing to furnish
for each |
2201 |
room or other facility or, in the alternative, a
representation |
2202 |
as to the minimum amount of expenditure that will be
made to |
2203 |
purchase the personal property for the facility. |
2204 |
(e) The
estimated date when each room or other facility |
2205 |
will be available for use by the unit owners. |
2206 |
(f)1. An
identification of each room or other facility to |
2207 |
be used by unit owners that will not be owned by the
unit owners |
2208 |
or the association; |
2209 |
2. A
reference to the location in the disclosure materials |
2210 |
of the lease or other agreements providing for the
use of those |
2211 |
facilities; and |
2212 |
3. A
description of the terms of the lease or other |
2213 |
agreements, including the length of the term; the
rent payable, |
2214 |
directly or indirectly, by each unit owner, and the
total rent |
2215 |
payable to the lessor, stated in monthly and annual
amounts for |
2216 |
the entire term of the lease; and a description of
any option to |
2217 |
purchase the property leased under any such lease,
including the |
2218 |
time the option may be exercised, the purchase price
or how it |
2219 |
is to be determined, the manner of payment, and
whether the |
2220 |
option may be exercised for a unit owner's share or
only as to |
2221 |
the entire leased property. |
2222 |
(g) A
statement as to whether the developer may provide |
2223 |
additional facilities not described above, their
general |
2224 |
locations and types, improvements or changes that may
be made, |
2225 |
the approximate dollar amount to be expended, and the
maximum |
2226 |
additional common expense or cost to the individual
unit owners |
2227 |
that may be charged during the first annual period of
operation |
2228 |
of the modified or added facilities. |
2229 |
|
2230 |
Descriptions as to locations, areas, capacities,
numbers, |
2231 |
volumes, or sizes may be stated as approximations or
minimums. |
2232 |
(7) A
description of the recreational and other facilities |
2233 |
that will be used in common with other cooperatives,
community |
2234 |
associations, or planned developments which require
the payment |
2235 |
of the maintenance and expenses of such facilities,
either |
2236 |
directly or indirectly, by the unit owners. The
description |
2237 |
shall include, but not be limited to, the following: |
2238 |
(a) Each
building and facility committed to be built. |
2239 |
(b) Facilities
not committed to be built except under |
2240 |
certain conditions, and a statement of those
conditions or |
2241 |
contingencies. |
2242 |
(c) As to
each facility committed to be built, or which |
2243 |
will be committed to be built upon the happening of
one of the |
2244 |
conditions in paragraph (b), a statement of whether
it will be |
2245 |
owned by the unit owners having the use thereof or by
an |
2246 |
association or other entity which will be controlled
by them, or |
2247 |
others, and the location in the exhibits of the lease
or other |
2248 |
document providing for use of those facilities. |
2249 |
(d) The year
in which each facility will be available for |
2250 |
use by the unit owners or, in the alternative, the
maximum |
2251 |
number of unit owners in the project at the time each
of all of |
2252 |
the facilities is committed to be completed. |
2253 |
(e) A
general description of the items of personal |
2254 |
property, and the approximate number of each item of
personal |
2255 |
property, that the developer is committing to furnish
for each |
2256 |
room or other facility or, in the alternative, a
representation |
2257 |
as to the minimum amount of expenditure that will be
made to |
2258 |
purchase the personal property for the facility. |
2259 |
(f) If there
are leases, a description thereof, including |
2260 |
the length of the term, the rent payable, and a
description of |
2261 |
any option to purchase. |
2262 |
|
2263 |
Descriptions shall include location, areas,
capacities, numbers, |
2264 |
volumes, or sizes and may be stated as approximations
or |
2265 |
minimums. |
2266 |
(8) Recreation
lease or associated club membership: |
2267 |
(a) If any
recreational facilities or other common areas |
2268 |
offered by the developer and available to, or to be
used by, |
2269 |
unit owners are to be leased or have club membership
associated, |
2270 |
the following statement in conspicuous type shall be
included: |
2271 |
THERE IS A RECREATIONAL FACILITIES LEASE ASSOCIATED
WITH THIS |
2272 |
COOPERATIVE; or, THERE IS A CLUB MEMBERSHIP
ASSOCIATED WITH THIS |
2273 |
COOPERATIVE. There shall be a reference to the
location in the |
2274 |
disclosure materials where the recreation lease or
club |
2275 |
membership is described in detail. |
2276 |
(b) If it is
mandatory that unit owners pay a fee, rent, |
2277 |
dues, or other charges under a recreational
facilities lease or |
2278 |
club membership for the use of facilities, there
shall be in |
2279 |
conspicuous type the applicable statement: |
2280 |
1. MEMBERSHIP
IN THE RECREATIONAL FACILITIES CLUB IS |
2281 |
MANDATORY FOR UNIT OWNERS; or |
2282 |
2. UNIT
OWNERS ARE REQUIRED, AS A CONDITION OF OWNERSHIP, |
2283 |
TO BE LESSEES UNDER THE RECREATIONAL FACILITIES
LEASE; or |
2284 |
3. UNIT
OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE |
2285 |
COSTS AND EXPENSES OF MAINTENANCE, MANAGEMENT,
UPKEEP, |
2286 |
REPLACEMENT, RENT, AND FEES UNDER THE RECREATIONAL
FACILITIES |
2287 |
LEASE (OR THE OTHER INSTRUMENTS PROVIDING THE
FACILITIES); or |
2288 |
4. A similar
statement of the nature of the organization |
2289 |
or manner in which the use rights are created, and
that unit |
2290 |
owners are required to pay. |
2291 |
|
2292 |
Immediately following the applicable statement, the
location in |
2293 |
the disclosure materials where the development is
described in |
2294 |
detail shall be stated. |
2295 |
(c) If the
developer, or any other person other than the |
2296 |
unit owners and other persons having use rights in
the |
2297 |
facilities, reserves, or is entitled to receive, any
rent, fee, |
2298 |
or other payment for the use of the facilities, then
there shall |
2299 |
be the following statement in conspicuous type: THE
UNIT OWNERS |
2300 |
OR THE ASSOCIATION(S) MUST PAY RENT OR LAND USE FEES
FOR |
2301 |
RECREATIONAL OR OTHER COMMON AREAS. Immediately
following this |
2302 |
statement, the location in the disclosure materials
where the |
2303 |
rent or land use fees are described in detail shall
be stated. |
2304 |
(d) If, in
any recreation format, whether leasehold, club, |
2305 |
or other, any person other than the association has
the right to |
2306 |
a lien on the units to secure the payment of
assessments, rent, |
2307 |
or other exactions, there shall appear a statement in |
2308 |
conspicuous type in substantially the following form: |
2309 |
1. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
2310 |
SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER
THE |
2311 |
RECREATION LEASE. THE UNIT OWNER'S FAILURE TO MAKE
THESE |
2312 |
PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or |
2313 |
2. THERE IS
A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO |
2314 |
SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS
COMING DUE |
2315 |
FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE
RECREATIONAL |
2316 |
OR COMMONLY USED AREAS. THE UNIT OWNER'S FAILURE TO
MAKE THESE |
2317 |
PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN. |
2318 |
|
2319 |
Immediately following the applicable statement, the
location in |
2320 |
the disclosure materials where the lien or lien right
is |
2321 |
described in detail shall be stated. |
2322 |
(9) If the
developer or any other person has the right to |
2323 |
increase or add to the recreational facilities at any
time after |
2324 |
the establishment of the cooperative whose unit
owners have use |
2325 |
rights therein, without the consent of the unit
owners or |
2326 |
associations being required, there shall appear a
statement in |
2327 |
conspicuous type in substantially the following form: |
2328 |
RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED
WITHOUT CONSENT |
2329 |
OF UNIT OWNERS OR THE ASSOCIATION(S). Immediately
following this |
2330 |
statement, the location in the disclosure materials
where such |
2331 |
reserved rights are described shall be stated. |
2332 |
(10) A
statement of whether the developer's plan includes |
2333 |
a program of leasing units rather than selling them,
or leasing |
2334 |
units and selling them subject to such leases. If so,
there |
2335 |
shall be a description of the plan, including the
number and |
2336 |
identification of the units and the provisions and
term of the |
2337 |
proposed leases, and a statement in boldfaced type
that: THE |
2338 |
UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE. |
2339 |
(11) The
arrangements for management of the association |
2340 |
and maintenance and operation of the cooperative
property and of |
2341 |
other property that will serve the unit owners of the |
2342 |
cooperative property, and a description of the
management |
2343 |
contract and all other contracts for these purposes
having a |
2344 |
term in excess of 1 year, including the following: |
2345 |
(a) The
names of contracting parties. |
2346 |
(b) The term
of the contract. |
2347 |
(c) The
nature of the services included. |
2348 |
(d) The
compensation, stated on a monthly and annual |
2349 |
basis, and provisions for increases in the
compensation. |
2350 |
(e) A
reference to the volumes and pages of the |
2351 |
cooperative documents and of the exhibits containing
copies of |
2352 |
such contracts. |
2353 |
|
2354 |
Copies of all described contracts shall be attached
as exhibits. |
2355 |
If there is a contract for the management of the
cooperative |
2356 |
property, then a statement in conspicuous type in
substantially |
2357 |
the following form shall appear, identifying the
proposed or |
2358 |
existing contract manager: THERE IS (IS TO BE) A
CONTRACT FOR |
2359 |
THE MANAGEMENT OF THE COOPERATIVE PROPERTY WITH (NAME
OF THE |
2360 |
CONTRACT MANAGER). Immediately following this
statement, the |
2361 |
location in the disclosure materials of the contract
for |
2362 |
management of the cooperative property shall be
stated. |
2363 |
(12) If the
developer or any other person or persons other |
2364 |
than the unit owners has the right to retain control
of the |
2365 |
board of administration of the association for a
period of time |
2366 |
which can exceed 1 year after the closing of the sale
of a |
2367 |
majority of the units in that cooperative to persons
other than |
2368 |
successors or alternate developers, then a statement
in |
2369 |
conspicuous type in substantially the following form
shall be |
2370 |
included: THE DEVELOPER (OR OTHER PERSON) HAS THE
RIGHT TO |
2371 |
RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF
THE UNITS |
2372 |
HAVE BEEN SOLD. Immediately following this statement,
the |
2373 |
location in the disclosure materials where this right
to control |
2374 |
is described in detail shall be stated. |
2375 |
(13) If
there are any restrictions upon the sale, |
2376 |
transfer, conveyance, or leasing of a unit, then a
statement in |
2377 |
conspicuous type in substantially the following form
shall be |
2378 |
included: THE SALE, LEASE, OR TRANSFER OF UNITS IS
RESTRICTED OR |
2379 |
CONTROLLED. Immediately following this statement, the
location |
2380 |
in the disclosure materials where the restriction,
limitation, |
2381 |
or control on the sale, lease, or transfer of units
is described |
2382 |
in detail shall be stated. |
2383 |
(14) If the
cooperative is part of a phase project, the |
2384 |
following shall be stated: |
2385 |
(a) A
statement in conspicuous type in substantially the |
2386 |
following form shall be included: THIS IS A PHASE
COOPERATIVE. |
2387 |
ADDITIONAL LAND AND UNITS MAY BE ADDED TO THIS
COOPERATIVE. |
2388 |
Immediately following this statement, the location in
the |
2389 |
disclosure materials where the phasing is described
shall be |
2390 |
stated. |
2391 |
(b) A
summary of the provisions of the declaration |
2392 |
providing for the phasing. |
2393 |
(c) A
statement as to whether or not residential buildings |
2394 |
and units which are added to the cooperative may be |
2395 |
substantially different from the residential
buildings and units |
2396 |
originally in the cooperative, and, if the added
residential |
2397 |
buildings and units may be substantially different,
there shall |
2398 |
be a general description of the extent to which such
added |
2399 |
residential buildings and units may differ, and a
statement in |
2400 |
conspicuous type in substantially the following form
shall be |
2401 |
included: BUILDINGS AND UNITS WHICH ARE ADDED TO THE
COOPERATIVE |
2402 |
MAY BE SUBSTANTIALLY DIFFERENT FROM THE OTHER
BUILDINGS AND |
2403 |
UNITS IN THE COOPERATIVE. Immediately following this
statement, |
2404 |
the location in the disclosure materials where the
extent to |
2405 |
which added residential buildings and units may
substantially |
2406 |
differ is described shall be stated. |
2407 |
(d) A
statement of the maximum number of buildings |
2408 |
containing units, the maximum and minimum number of
units in |
2409 |
each building, the maximum number of units, and the
minimum and |
2410 |
maximum square footage of the units that may be
contained within |
2411 |
each parcel of land which may be added to the
cooperative. |
2412 |
(15) If the
cooperative is created by conversion of |
2413 |
existing improvements, the following information
shall be |
2414 |
stated: |
2415 |
(a) The
information required by s. 719.616. |
2416 |
(b) A caveat
that there are no express warranties unless |
2417 |
they are stated in writing by the developer. |
2418 |
(16) A
summary of the restrictions, if any, to be imposed |
2419 |
on units concerning the use of any of the cooperative
property, |
2420 |
including statements as to whether there are
restrictions upon |
2421 |
children and pets, and reference to the volumes and
pages of the |
2422 |
cooperative documents where such restrictions are
found, or if |
2423 |
such restrictions are contained elsewhere, then a
copy of the |
2424 |
documents containing the restrictions shall be
attached as an |
2425 |
exhibit. |
2426 |
(17) If
there is any land that is offered by the developer |
2427 |
for use by the unit owners and that is neither owned
by them nor |
2428 |
leased to them, the association, or any entity
controlled by |
2429 |
unit owners and other persons having the use rights
to such |
2430 |
land, a statement shall be made as to how such land
will serve |
2431 |
the cooperative. If any part of such land will serve
the |
2432 |
cooperative, the statement shall describe the land
and the |
2433 |
nature and term of service, and the cooperative
documents or |
2434 |
other instrument creating such servitude shall be
included as an |
2435 |
exhibit. |
2436 |
(18) The
manner in which utility and other services, |
2437 |
including, but not limited to, sewage and waste
disposal, water |
2438 |
supply, and storm drainage, will be provided and the
person or |
2439 |
entity furnishing them. |
2440 |
(19) An
explanation of the manner in which the |
2441 |
apportionment of common expenses and ownership of the
common |
2442 |
areas have been determined. |
2443 |
(20) An
estimated operating budget for the cooperative and |
2444 |
the association, and a schedule of the unit owner's
expenses |
2445 |
shall be attached as an exhibit and shall contain the
following |
2446 |
information: |
2447 |
(a) The
estimated monthly and annual expenses of the |
2448 |
cooperative and the association that are collected
from unit |
2449 |
owners by assessments. |
2450 |
(b) The
estimated monthly and annual expenses of each unit |
2451 |
owner for a unit, other than assessments payable to
the |
2452 |
association, payable by the unit owner to persons or
entities |
2453 |
other than the association, and the total estimated
monthly and |
2454 |
annual expense. There may be excluded from this
estimate |
2455 |
expenses that are personal to unit owners, which are
not |
2456 |
uniformly incurred by all unit owners, or which are
not provided |
2457 |
for or contemplated by the cooperative documents,
including, but |
2458 |
not limited to, the costs of private telephone;
maintenance of |
2459 |
the interior of cooperative units, which is not the
obligation |
2460 |
of the association; maid or janitorial services
privately |
2461 |
contracted for by the unit owners; utility bills
billed directly |
2462 |
to each unit owner for utility services to his or her
unit; |
2463 |
insurance premiums other than those incurred for
policies |
2464 |
obtained by the cooperative; and similar personal
expenses of |
2465 |
the unit owner. A unit owner's estimated payments for |
2466 |
assessments shall also be stated in the estimated
amounts for |
2467 |
the times when they will be due. |
2468 |
(c) The
estimated items of expenses of the cooperative and |
2469 |
the association, except as excluded under paragraph
(b), |
2470 |
including, but not limited to, the following items,
which shall |
2471 |
be stated either as an association expense
collectible by |
2472 |
assessments or as unit owners' expenses payable to
persons other |
2473 |
than the association: |
2474 |
1. Expenses
for the association and cooperative: |
2475 |
a. Administration
of the association. |
2476 |
b. Management
fees. |
2477 |
c. Maintenance. |
2478 |
d. Rent for
recreational and other commonly used areas. |
2479 |
e. Taxes
upon association property. |
2480 |
f. Taxes
upon leased areas. |
2481 |
g. Insurance. |
2482 |
h. Security
provisions. |
2483 |
i. Other
expenses. |
2484 |
j. Operating
capital. |
2485 |
k. Reserves. |
2486 |
l. Fee
payable to the division. |
2487 |
2. Expenses
for a unit owner: |
2488 |
a. Rent for
the unit, if subject to a lease. |
2489 |
b. Rent
payable by the unit owner directly to the lessor |
2490 |
or agent under any recreational lease or lease for
the use of |
2491 |
commonly used areas, which use and payment are a
mandatory |
2492 |
condition of ownership and are not included in the
common |
2493 |
expense or assessments for common maintenance paid by
the unit |
2494 |
owners to the association. |
2495 |
(d) The
estimated amounts shall be stated for a period of |
2496 |
at least 12 months and may distinguish between the
period prior |
2497 |
to the time unit owners other than the developer
elect a |
2498 |
majority of the board of administration and the
period after |
2499 |
that date. |
2500 |
(21) A
schedule of estimated closing expenses to be paid |
2501 |
by a buyer or lessee of a unit and a statement of
whether title |
2502 |
opinion or title insurance policy is available to the
buyer and, |
2503 |
if so, at whose expense. |
2504 |
(22) The
identity of the developer and the chief operating |
2505 |
officer or principal directing the creation and sale
of the |
2506 |
cooperative and a statement of its and his or her
experience in |
2507 |
this field. |
2508 |
(23) Copies
of the following, to the extent they are |
2509 |
applicable, shall be included as exhibits: |
2510 |
(a) The
cooperative documents, or the proposed cooperative |
2511 |
documents if the documents have not been recorded. |
2512 |
(b) The
articles of incorporation creating the |
2513 |
association. |
2514 |
(c) The
bylaws of the association. |
2515 |
(d) The
ground lease or other underlying lease of the |
2516 |
cooperative. |
2517 |
(e) The
management agreement and all maintenance and other |
2518 |
contracts for management of the association and
operation of the |
2519 |
cooperative and facilities used by the unit owners
having a |
2520 |
service term in excess of 1 year. |
2521 |
(f) The
estimated operating budget for the cooperative and |
2522 |
the required schedule of unit owners' expenses. |
2523 |
(g) A copy
of the floor plan of the unit and the plot plan |
2524 |
showing the location of the residential buildings and
the |
2525 |
recreation and other common areas. |
2526 |
(h) The
lease of recreational and other facilities that |
2527 |
will be used only by unit owners of the subject
cooperative. |
2528 |
(i) The
lease of facilities used by owners and others. |
2529 |
(j) The form
of unit lease, if the offer is of a |
2530 |
leasehold. |
2531 |
(k) A
declaration of servitude of properties serving the |
2532 |
cooperative but not owned by unit owners or leased to
them or |
2533 |
the association. |
2534 |
(l) The
statement of condition of the existing building or |
2535 |
buildings, if the offering is of units in an
operation being |
2536 |
converted to cooperative ownership. |
2537 |
(m) The
statement of inspection for termite damage and |
2538 |
treatment of the existing improvements, if the
cooperative is a |
2539 |
conversion. |
2540 |
(n) The form
of agreement for sale or lease of units. |
2541 |
(o) A copy
of the agreement for escrow of payments made to |
2542 |
the developer prior to closing. |
2543 |
(p) A copy
of the documents containing any restrictions on |
2544 |
use of the property required by subsection (16). |
2545 |
(24) Any
prospectus or offering circular complying with |
2546 |
the provisions of former ss. 711.69 and 711.802 may
continue to |
2547 |
be used without amendment, or may be amended to
comply with the |
2548 |
provisions of this chapter. |
2549 |
(25) A brief
narrative description of the location and |
2550 |
effect of all existing and intended easements located
or to be |
2551 |
located on the cooperative property other than those
in the |
2552 |
declaration. |
2553 |
(26) If the
developer is required by state or local |
2554 |
authorities to obtain acceptance or approval of any
dock or |
2555 |
marina facility intended to serve the cooperative, a
copy of |
2556 |
such acceptance or approval acquired by the time of
filing with |
2557 |
the division pursuant to s. 719.502 or a statement
that such |
2558 |
acceptance has not been acquired or received. |
2559 |
(27) Evidence
demonstrating that the developer has an |
2560 |
ownership, leasehold, or contractual interest in the
land upon |
2561 |
which the cooperative is to be developed. |
2562 |
Section 43. Section
719.508, Florida Statutes, is amended |
2563 |
to read: |
2564 |
719.508 Regulation
by Division of Hotels and |
2565 |
Restaurants.--In addition to the authority,
regulation, or |
2566 |
control exercised by the Division of Florida Land
Sales, |
2567 |
Condominiums, Homeowners' Associations, Community
Association |
2568 |
Management, and Mobile Homes pursuant to this
act with respect |
2569 |
to cooperatives, buildings included in a cooperative
property |
2570 |
shall be subject to the authority, regulation, or
control of the |
2571 |
Division of Hotels and Restaurants of the Department
of Business |
2572 |
and Professional Regulation, to the extent provided
for in |
2573 |
chapters 399 and 509. |
2574 |
Section 44. Paragraph
(a) of subsection (2) of section |
2575 |
719.608, Florida Statutes, is amended to read: |
2576 |
719.608 Notice
of intended conversion; time of delivery; |
2577 |
content.-- |
2578 |
(2)(a) Each
notice of intended conversion shall be dated |
2579 |
and in writing. The notice shall contain the
following |
2580 |
statement, with the phrases of the following
statement which |
2581 |
appear in upper case printed in conspicuous type: |
2582 |
|
2583 |
These apartments are
being converted to cooperative by |
2584 |
(name of developer) , the developer. |
2585 |
1. YOU MAY
REMAIN AS A RESIDENT UNTIL THE EXPIRATION OF |
2586 |
YOUR RENTAL AGREEMENT. FURTHER, YOU MAY EXTEND YOUR
RENTAL |
2587 |
AGREEMENT AS FOLLOWS: |
2588 |
a. If you
have continuously been a resident of these |
2589 |
apartments during the last 180 days and your rental
agreement |
2590 |
expires during the next 270 days, you may extend your
rental |
2591 |
agreement for up to 270 days after the date of this
notice. |
2592 |
b. If you
have not been a continuous resident of these |
2593 |
apartments for the last 180 days and your rental
agreement |
2594 |
expires during the next 180 days, you may extend your
rental |
2595 |
agreement for up to 180 days after the date of this
notice. |
2596 |
c. IN ORDER
FOR YOU TO EXTEND YOUR RENTAL AGREEMENT, YOU |
2597 |
MUST GIVE THE DEVELOPER WRITTEN NOTICE WITHIN 45 DAYS
AFTER THE |
2598 |
DATE OF THIS NOTICE. |
2599 |
2. IF YOUR
RENTAL AGREEMENT EXPIRES IN THE NEXT 45 DAYS, |
2600 |
you may extend your rental agreement for up to 45
days after the |
2601 |
date of this notice while you decide whether to
extend your |
2602 |
rental agreement as explained above. To do so, you
must notify |
2603 |
the developer in writing. You will then have the full
45 days to |
2604 |
decide whether to extend your rental agreement as
explained |
2605 |
above. |
2606 |
3. During
the extension of your rental agreement you will |
2607 |
be charged the same rent that you are now paying. |
2608 |
4. YOU MAY
CANCEL YOUR RENTAL AGREEMENT AND ANY EXTENSION |
2609 |
OF THE RENTAL AGREEMENT AS FOLLOWS: |
2610 |
a. If your
rental agreement began or was extended or |
2611 |
renewed after May 1, 1980, and your rental agreement,
including |
2612 |
extensions and renewals, has an unexpired term of 180
days or |
2613 |
less, you may cancel your rental agreement upon 30
days' written |
2614 |
notice and move. Also, upon 30 days' written notice,
you may |
2615 |
cancel any extension of the rental agreement. |
2616 |
b. If your
rental agreement was not begun or was not |
2617 |
extended or renewed after May 1, 1980, you may not
cancel the |
2618 |
rental agreement without the consent of the
developer. If your |
2619 |
rental agreement, including extensions and renewals,
has an |
2620 |
unexpired term of 180 days or less, you may, however,
upon 30 |
2621 |
days' written notice cancel any extension of the
rental |
2622 |
agreement. |
2623 |
5. All
notices must be given in writing and sent by mail, |
2624 |
return receipt requested, or delivered in person to
the |
2625 |
developer at this address: (name and
address of developer) . |
2626 |
6. If you
have continuously been a resident of these |
2627 |
apartments during the last 180 days: |
2628 |
a. You have
the right to purchase your apartment and will |
2629 |
have 45 days to decide whether to purchase. If you do
not buy |
2630 |
the unit at that price and the unit is later offered
at a lower |
2631 |
price, you will have the opportunity to buy the unit
at the |
2632 |
lower price. However, in all events your right to
purchase the |
2633 |
unit ends when the rental agreement or any extension
of the |
2634 |
rental agreement ends or when you waive this right in
writing. |
2635 |
b. Within 90
days you will be provided purchase |
2636 |
information relating to your apartment, including the
price of |
2637 |
your unit and the condition of the building. If you
do not |
2638 |
receive this information within 90 days, your rental
agreement |
2639 |
and any extension will be extended 1 day for each day
over 90 |
2640 |
days until you are given the purchase information. If
you do not |
2641 |
want this rental agreement extension, you must notify
the |
2642 |
developer in writing. |
2643 |
7. If you
have any questions regarding this conversion or |
2644 |
the Cooperative Act, you may contact the developer or
the state |
2645 |
agency which regulates cooperatives: The Division of
Florida |
2646 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
2647 |
Association Management, and Mobile Homes,
(Tallahassee address |
2648 |
and telephone number of division). |
2649 |
Section 45. Subsection
(7) of section 720.301, Florida |
2650 |
Statutes, is amended to read: |
2651 |
720.301 Definitions.--As
used in this chapter, the term: |
2652 |
(7) "Division"
means the Division of Florida Land Sales, |
2653 |
Condominiums, Homeowners' Associations, Community
Association |
2654 |
Management, and Mobile Homes in the Department
of Business and |
2655 |
Professional Regulation. |
2656 |
Section 46. Subsection
(11) of section 721.05, Florida |
2657 |
Statutes, is amended to read: |
2658 |
721.05 Definitions.--As
used in this chapter, the term: |
2659 |
(11) "Division"
means the Division of Florida Land Sales, |
2660 |
Condominiums, Homeowners' Associations, Community
Association |
2661 |
Management, and Mobile Homes of the Department
of Business and |
2662 |
Professional Regulation. |
2663 |
Section 47. Paragraph
(d) of subsection (2) of section |
2664 |
721.07, Florida Statutes, is amended to read: |
2665 |
721.07 Public
offering statement.--Prior to offering any |
2666 |
timeshare plan, the developer must submit a filed
public |
2667 |
offering statement to the division for approval as
prescribed by |
2668 |
s. 721.03, s. 721.55, or this section. Until the
division |
2669 |
approves such filing, any contract regarding the sale
of that |
2670 |
timeshare plan is subject to cancellation by the
purchaser |
2671 |
pursuant to s. 721.10. |
2672 |
(2) |
2673 |
(d) A
developer shall have the authority to deliver to |
2674 |
purchasers any purchaser public offering statement
that is not |
2675 |
yet approved by the division, provided that the
following shall |
2676 |
apply: |
2677 |
1. At the
time the developer delivers an unapproved |
2678 |
purchaser public offering statement to a purchaser
pursuant to |
2679 |
this paragraph, the developer shall deliver a fully
completed |
2680 |
and executed copy of the purchase contract required
by s. 721.06 |
2681 |
that contains the following statement in conspicuous
type in |
2682 |
substantially the following form which shall replace
the |
2683 |
statements required by s. 721.06(1)(g): |
2684 |
|
2685 |
The developer is delivering to you a public offering
statement |
2686 |
that has been filed with but not yet approved by the
Division of |
2687 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
2688 |
Community Association Management, and Mobile
Homes. Any |
2689 |
revisions to the unapproved public offering statement
you have |
2690 |
received must be delivered to you, but only if the
revisions |
2691 |
materially alter or modify the offering in a manner
adverse to |
2692 |
you. After the division approves the public offering
statement, |
2693 |
you will receive notice of the approval from the
developer and |
2694 |
the required revisions, if any. |
2695 |
|
2696 |
Your statutory right to cancel this transaction
without any |
2697 |
penalty or obligation expires 10 calendar days after
the date |
2698 |
you signed your purchase contract or the date on
which you |
2699 |
receive the last of all documents required to be
given to you |
2700 |
pursuant to section 721.07(6), Florida Statutes, or
10 calendar |
2701 |
days after you receive revisions required to be
delivered to |
2702 |
you, if any, whichever is later. If you decide to
cancel this |
2703 |
contract, you must notify the seller in writing of
your intent |
2704 |
to cancel. Your notice of cancellation shall be
effective upon |
2705 |
the date sent and shall be sent to (Name
of Seller) at |
2706 |
(Address of Seller) . Any attempt to
obtain a waiver of your |
2707 |
cancellation right is void and of no effect. While
you may |
2708 |
execute all closing documents in advance, the
closing, as |
2709 |
evidenced by delivery of the deed or other document,
before |
2710 |
expiration of your 10-day cancellation period, is
prohibited. |
2711 |
|
2712 |
2. After
receipt of approval from the division and prior |
2713 |
to closing, if any revisions made to the documents
contained in |
2714 |
the purchaser public offering statement materially
alter or |
2715 |
modify the offering in a manner adverse to a
purchaser, the |
2716 |
developer shall send the purchaser such revisions
together with |
2717 |
a notice containing a statement in conspicuous type
in |
2718 |
substantially the following form: |
2719 |
|
2720 |
The unapproved public offering statement previously
delivered to |
2721 |
you, together with the enclosed revisions, has been
approved by |
2722 |
the Division of Florida Land Sales, Condominiums, Homeowners' |
2723 |
Associations, Community Association Management,
and Mobile |
2724 |
Homes. Accordingly, your cancellation right expires
10 calendar |
2725 |
days after you sign your purchase contract or 10
calendar days |
2726 |
after you receive these revisions, whichever is
later. If you |
2727 |
have any questions regarding your cancellation
rights, you may |
2728 |
contact the division at [insert division's current
address]. |
2729 |
|
2730 |
3. After
receipt of approval from the division and prior |
2731 |
to closing, if no revisions have been made to the
documents |
2732 |
contained in the unapproved purchaser public offering
statement, |
2733 |
or if such revisions do not materially alter or
modify the |
2734 |
offering in a manner adverse to a purchaser, the
developer shall |
2735 |
send the purchaser a notice containing a statement in |
2736 |
conspicuous type in substantially the following form: |
2737 |
|
2738 |
The unapproved public offering statement previously
delivered to |
2739 |
you has been approved by the Division of Florida Land
Sales, |
2740 |
Condominiums, Homeowners' Associations, Community
Association |
2741 |
Management, and Mobile Homes. Revisions made
to the unapproved |
2742 |
public offering statement, if any, are either not
required to be |
2743 |
delivered to you or are not deemed by the developer,
in its |
2744 |
opinion, to materially alter or modify the offering
in a manner |
2745 |
that is adverse to you. Accordingly, your
cancellation right |
2746 |
expired 10 days after you signed your purchase
contract. A |
2747 |
complete copy of the approved public offering
statement is |
2748 |
available through the managing entity for inspection
as part of |
2749 |
the books and records of the plan. If you have any
questions |
2750 |
regarding your cancellation rights, you may contact
the division |
2751 |
at [insert division's current address]. |
2752 |
Section 48. Subsection
(8) of section 721.08, Florida |
2753 |
Statutes, is amended to read: |
2754 |
721.08 Escrow
accounts; nondisturbance instruments; |
2755 |
alternate security arrangements; transfer of legal
title.-- |
2756 |
(8) An
escrow agent holding escrowed funds pursuant to |
2757 |
this chapter that have not been claimed for a period
of 5 years |
2758 |
after the date of deposit shall make at least one
reasonable |
2759 |
attempt to deliver such unclaimed funds to the
purchaser who |
2760 |
submitted such funds to escrow. In making such
attempt, an |
2761 |
escrow agent is entitled to rely on a purchaser's
last known |
2762 |
address as set forth in the books and records of the
escrow |
2763 |
agent and is not required to conduct any further
search for the |
2764 |
purchaser. If an escrow agent's attempt to deliver
unclaimed |
2765 |
funds to any purchaser is unsuccessful, the escrow
agent may |
2766 |
deliver such unclaimed funds to the division and the
division |
2767 |
shall deposit such unclaimed funds in the Division of
Florida |
2768 |
Land Sales, Condominiums, Homeowners'
Associations, Community |
2769 |
Association Management, and Mobile Homes Trust
Fund, 30 days |
2770 |
after giving notice in a publication of general
circulation in |
2771 |
the county in which the timeshare property containing
the |
2772 |
purchaser's timeshare interest is located. The
purchaser may |
2773 |
claim the same at any time prior to the delivery of
such funds |
2774 |
to the division. After delivery of such funds to the
division, |
2775 |
the purchaser shall have no more rights to the
unclaimed funds. |
2776 |
The escrow agent shall not be liable for any claims
from any |
2777 |
party arising out of the escrow agent's delivery of
the |
2778 |
unclaimed funds to the division pursuant to this
section. |
2779 |
Section 49. Paragraph
(e) of subsection (5) of section |
2780 |
721.26, Florida Statutes, is amended to read: |
2781 |
721.26 Regulation
by division.--The division has the power |
2782 |
to enforce and ensure compliance with the provisions
of this |
2783 |
chapter, except for parts III and IV, using the
powers provided |
2784 |
in this chapter, as well as the powers prescribed in
chapters |
2785 |
498, 718, and 719. In performing its duties, the
division shall |
2786 |
have the following powers and duties: |
2787 |
(5) Notwithstanding
any remedies available to purchasers, |
2788 |
if the division has reasonable cause to believe that
a violation |
2789 |
of this chapter, or of any division rule or order
promulgated or |
2790 |
issued pursuant to this chapter, has occurred, the
division may |
2791 |
institute enforcement proceedings in its own name
against any |
2792 |
regulated party, as such term is defined in this
subsection: |
2793 |
(e)1. The
division may impose a penalty against any |
2794 |
regulated party for a violation of this chapter or
any rule |
2795 |
adopted thereunder. A penalty may be imposed on the
basis of |
2796 |
each day of continuing violation, but in no event may
the |
2797 |
penalty for any offense exceed $10,000. All accounts
collected |
2798 |
shall be deposited with the Chief Financial Officer
to the |
2799 |
credit of the Division of Florida Land Sales,
Condominiums, |
2800 |
Homeowners' Associations, Community Association
Management, and |
2801 |
Mobile Homes Trust Fund. |
2802 |
2.a. If a
regulated party fails to pay a penalty, the |
2803 |
division shall thereupon issue an order directing
that such |
2804 |
regulated party cease and desist from further
operation until |
2805 |
such time as the penalty is paid; or the division may
pursue |
2806 |
enforcement of the penalty in a court of competent
jurisdiction. |
2807 |
b. If an
owners' association or managing entity fails to |
2808 |
pay a civil penalty, the division may pursue
enforcement in a |
2809 |
court of competent jurisdiction. |
2810 |
Section 50. Section
721.28, Florida Statutes, is amended |
2811 |
to read: |
2812 |
721.28 Division
of Florida Land Sales, Condominiums, |
2813 |
Homeowners' Associations, Community Association
Management, and |
2814 |
Mobile Homes Trust Fund.--All funds collected by the
division |
2815 |
and any amounts paid as fees or penalties under this
chapter |
2816 |
shall be deposited in the State Treasury to the
credit of the |
2817 |
Division of Florida Land Sales, Condominiums, Homeowners' |
2818 |
Associations, Community Association Management,
and Mobile Homes |
2819 |
Trust Fund created by s. 498.019. |
2820 |
Section 51. Paragraph
(c) of subsection (1) of section |
2821 |
721.301, Florida Statutes, is amended to read: |
2822 |
721.301 Florida
Timesharing, Vacation Club, and |
2823 |
Hospitality Program.-- |
2824 |
(1) |
2825 |
(c) The
director may designate funds from the Division of |
2826 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
2827 |
Community Association Management, and Mobile
Homes Trust Fund, |
2828 |
not to exceed $50,000 annually, to support the
projects and |
2829 |
proposals undertaken pursuant to paragraph (b). All
state trust |
2830 |
funds to be expended pursuant to this section must be
matched |
2831 |
equally with private moneys and shall comprise no
more than half |
2832 |
of the total moneys expended annually. |
2833 |
Section 52. Section
721.50, Florida Statutes, is amended |
2834 |
to read: |
2835 |
721.50 Short
title.--This part may be cited as the |
2836 |
"McAllister Act" in recognition and
appreciation for the years |
2837 |
of extraordinary and insightful contributions by Mr.
Bryan C. |
2838 |
McAllister, Examinations Supervisor, Division of
Florida Land |
2839 |
Sales, Condominiums, Homeowners' Associations,
Community |
2840 |
Association Management, and Mobile Homes. |
2841 |
Section 53. Subsection
(1) of section 723.003, Florida |
2842 |
Statutes, is amended to read: |
2843 |
723.003 Definitions.--As
used in this chapter, the |
2844 |
following words and terms have the following meanings
unless |
2845 |
clearly indicated otherwise: |
2846 |
(1) The term
"division" means the Division of Florida Land |
2847 |
Sales, Condominiums, Homeowners' Associations,
Community |
2848 |
Association Management, and Mobile Homes of
the Department of |
2849 |
Business and Professional Regulation. |
2850 |
Section 54. Paragraph
(e) of subsection (5) of section |
2851 |
723.006, Florida Statutes, is amended to read: |
2852 |
723.006 Powers
and duties of division.--In performing its |
2853 |
duties, the division has the following powers and
duties: |
2854 |
(5) Notwithstanding
any remedies available to mobile home |
2855 |
owners, mobile home park owners, and homeowners'
associations, |
2856 |
if the division has reasonable cause to believe that
a violation |
2857 |
of any provision of this chapter or any rule
promulgated |
2858 |
pursuant hereto has occurred, the division may
institute |
2859 |
enforcement proceedings in its own name against a
developer, |
2860 |
mobile home park owner, or homeowners' association,
or its |
2861 |
assignee or agent, as follows: |
2862 |
(e)1. The
division may impose a civil penalty against a |
2863 |
mobile home park owner or homeowners' association, or
its |
2864 |
assignee or agent, for any violation of this chapter,
a properly |
2865 |
promulgated park rule or regulation, or a rule or
regulation |
2866 |
promulgated pursuant hereto. A penalty may be imposed
on the |
2867 |
basis of each separate violation and, if the
violation is a |
2868 |
continuing one, for each day of continuing violation,
but in no |
2869 |
event may the penalty for each separate violation or
for each |
2870 |
day of continuing violation exceed $5,000. All
amounts collected |
2871 |
shall be deposited with the Chief Financial Officer
to the |
2872 |
credit of the Division of Florida Land Sales,
Condominiums, |
2873 |
Homeowners' Associations, Community Association
Management, and |
2874 |
Mobile Homes Trust Fund. |
2875 |
2. If a
violator fails to pay the civil penalty, the |
2876 |
division shall thereupon issue an order directing
that such |
2877 |
violator cease and desist from further violation
until such time |
2878 |
as the civil penalty is paid or may pursue
enforcement of the |
2879 |
penalty in a court of competent jurisdiction. If a
homeowners' |
2880 |
association fails to pay the civil penalty, the
division shall |
2881 |
thereupon pursue enforcement in a court of competent |
2882 |
jurisdiction, and the order imposing the civil
penalty or the |
2883 |
cease and desist order shall not become effective
until 20 days |
2884 |
after the date of such order. Any action commenced by
the |
2885 |
division shall be brought in the county in which the
division |
2886 |
has its executive offices or in which the violation
occurred. |
2887 |
Section 55. Section
723.009, Florida Statutes, is amended |
2888 |
to read: |
2889 |
723.009 Division
of Florida Land Sales, Condominiums, |
2890 |
Homeowners' Associations, Community Association
Management, and |
2891 |
Mobile Homes Trust Fund.--All proceeds from the fees,
penalties, |
2892 |
and fines imposed pursuant to this chapter shall be
deposited |
2893 |
into the Division of Florida Land Sales,
Condominiums, |
2894 |
Homeowners' Associations, Community Association
Management, and |
2895 |
Mobile Homes Trust Fund created by s. 498.019. Moneys
in this |
2896 |
fund, as appropriated by the Legislature pursuant to
chapter |
2897 |
216, may be used to defray the expenses incurred by
the division |
2898 |
in administering the provisions of this chapter. |
2899 |
Section 56. Paragraph
(c) of subsection (2) of section |
2900 |
723.0611, Florida Statutes, is amended to read: |
2901 |
723.0611 Florida
Mobile Home Relocation Corporation.-- |
2902 |
(2) |
2903 |
(c) There
shall be no liability on the part of, and no |
2904 |
cause of action of any nature shall arise against,
agents or |
2905 |
employees of the corporation, members of the board of
directors |
2906 |
of the corporation, or representatives of the
Division of |
2907 |
Florida Land Sales, Condominiums, Homeowners'
Associations, |
2908 |
Community Association Management, and Mobile
Homes for any act |
2909 |
or omission of the board of directors in the
performance of |
2910 |
their powers and duties under this section, unless
such act or |
2911 |
omission by such person is in intentional disregard
of the |
2912 |
rights of the claimant. |
2913 |
Section 57. This
act shall take effect July 1, 2005. |
CODING: Words stricken
are deletions; words underlined are
additions. |