1 |
A bill to be entitled |
2 |
An act relating to residential properties;
amending s. |
3 |
34.01, F.S.; conforming a cross-reference;
amending s. |
4 |
514.011, F.S.; providing definitions; amending
s. |
5 |
514.0115, F.S.; providing specified supervision
and |
6 |
regulation exemptions for homeowners'
association swimming |
7 |
pools; amending s. 515.25, F.S.; conforming a
cross- |
8 |
reference; creating s. 515.295, F.S.; providing |
9 |
definitions; requiring residential pools and
spas built |
10 |
after a specified date to have certain
features; amending |
11 |
s. 720.302, F.S.; conforming a cross-reference;
providing |
12 |
legislative intent; amending s. 720.303, F.S.;
revising |
13 |
provisions relating to homeowners' association
board |
14 |
meetings, inspection and copying of records,
and reserve |
15 |
accounts of budgets; prohibiting salary or
compensation of |
16 |
certain association personnel for certain
duties; |
17 |
providing exceptions; amending s. 720.305, F.S.;
revising |
18 |
a lien restriction; amending s. 720.306, F.S.;
providing |
19 |
absentee ballot voting requirements; requiring
newly |
20 |
elected members of a board of directors to make
certain |
21 |
certifications in writing to the association;
providing |
22 |
for disqualification for failure to make such |
23 |
certifications; requiring an association to
retain such |
24 |
certifications for a certain time; repealing s.
720.311, |
25 |
F.S., relating to dispute resolution; providing
that |
26 |
dispute resolution proceedings that are pending
as of the |
27 |
date of repeal shall continue under the
repealed |
28 |
provisions; amending s. 720.401, F.S.; revising
certain |
29 |
prospective parcel owner disclosure summary
requirements; |
30 |
creating part IV of ch. 720, F.S.; creating s.
720.501, |
31 |
F.S.; providing a short title; creating s.
720.502, F.S.; |
32 |
providing legislative findings; creating s.
720.503, F.S.; |
33 |
providing applicability; providing for
mediation and |
34 |
arbitration of homeowners' association
disputes; providing |
35 |
exceptions; authorizing the filing of a motion
for |
36 |
temporary injunctive relief; providing for the
tolling of |
37 |
applicable statutes of limitations; creating s.
720.504, |
38 |
F.S.; providing notification requirements;
creating s. |
39 |
720.505, F.S.; providing a statutory notice
form for |
40 |
referral to mediation; providing requirements
for the |
41 |
service of such notice; requiring parties to
share costs |
42 |
of presuit mediation equally; providing
response |
43 |
requirements; providing scheduling
requirements; providing |
44 |
for impasse under certain conditions;
prohibiting certain |
45 |
parties from recovering attorney's fees and
costs in |
46 |
subsequent litigation proceedings; creating s.
720.506, |
47 |
F.S.; authorizing certain persons to opt out of
presuit |
48 |
mediation; providing requirements for a person
to opt out |
49 |
of such mediation; creating s. 720.507, F.S.;
providing a |
50 |
statutory notice form for referral to
arbitration; |
51 |
providing requirements for the service of such
notice; |
52 |
requiring parties to share costs of arbitration
equally; |
53 |
providing scheduling requirements; providing
for impasse |
54 |
under certain conditions; prohibiting certain
parties from |
55 |
recovering attorney's fees and costs in
subsequent |
56 |
litigation proceedings; creating s. 720.508,
F.S.; |
57 |
providing rules of procedure for presuit
mediation and |
58 |
presuit arbitration proceedings; providing for |
59 |
confidentiality; creating s. 720.509, F.S.;
providing |
60 |
qualifications for mediators and arbitrators;
creating s. |
61 |
720.510, F.S.; providing for enforcement of
mediation |
62 |
settlement agreements and arbitration awards;
requiring |
63 |
the department to apply for and implement a
federal grant |
64 |
for enforcing swimming pool safety standards;
requiring |
65 |
the Department of Health, the Department of
Community |
66 |
Affairs, and the Florida Building Commission to
assess |
67 |
state statutes and the Florida Building Code to
determine |
68 |
if changes are needed to comply with federal
standards |
69 |
pertaining to swimming pool and spa safety;
requiring the |
70 |
Department of Health to present the assessment
to the |
71 |
Legislature by a specified date; providing
effective |
72 |
dates. |
73 |
|
74 |
Be It Enacted by the Legislature of the State
of Florida: |
75 |
|
76 |
Section 1. Paragraph
(d) of subsection (1) of section |
77 |
34.01, Florida Statutes, is amended to read: |
78 |
34.01 Jurisdiction
of county court.-- |
79 |
(1) County
courts shall have original jurisdiction: |
80 |
(d) Of
disputes occurring in the homeowners' associations |
81 |
as described in part IV of chapter 720 s.
720.311(2)(a), which |
82 |
shall be concurrent with jurisdiction of the
circuit courts. |
83 |
Section 2. Section
514.011, Florida Statutes, is amended |
84 |
to read: |
85 |
514.011 Definitions.--As
used in this chapter, the term: |
86 |
(1) "Department"
means the Department of Health. |
87 |
(2) "Homeowners'
association" means a homeowners' |
88 |
association as defined in s. 720.301. |
89 |
(3)(5) "Portable
pool" means a pool or spa, and related |
90 |
equipment systems of any kind, which is
designed or intended to |
91 |
be movable from location to location. |
92 |
(4)(3) "Private
pool" means a facility used only by an |
93 |
individual, family, or living unit members and
their guests |
94 |
which does not serve any type of cooperative
housing or joint |
95 |
tenancy of five or more living units. |
96 |
(5)(4) "Public
bathing place" means a body of water, |
97 |
natural or modified by humans, for swimming,
diving, and |
98 |
recreational bathing, together with adjacent
shoreline or land |
99 |
area, buildings, equipment, and appurtenances
pertaining |
100 |
thereto, used by consent of the owner or owners
and held out to |
101 |
the public by any person or public body,
irrespective of whether |
102 |
a fee is charged for the use thereof. The
bathing water areas of |
103 |
public bathing places include, but are not
limited to, lakes, |
104 |
ponds, rivers, streams, artificial
impoundments, and waters |
105 |
along the coastal and intracoastal beaches and
shores of the |
106 |
state. |
107 |
(6)(2) "Public
swimming pool" or "public pool" means a |
108 |
watertight structure of concrete, masonry, or
other approved |
109 |
materials which is located either indoors or
outdoors, used for |
110 |
bathing or swimming by humans, and filled with
a filtered and |
111 |
disinfected water supply, together with
buildings, |
112 |
appurtenances, and equipment used in connection
therewith. A |
113 |
public swimming pool or public pool shall mean
a conventional |
114 |
pool, spa-type pool, wading pool, special
purpose pool, or water |
115 |
recreation attraction, to which admission may
be gained with or |
116 |
without payment of a fee and includes, but is
not limited to, |
117 |
pools operated by or serving camps, churches,
cities, counties, |
118 |
day care centers, group home facilities for
eight or more |
119 |
clients, health spas, institutions, parks,
state agencies, |
120 |
schools, subdivisions, or the cooperative
living-type projects |
121 |
of five or more living units, such as
apartments, |
122 |
boardinghouses, hotels, mobile home parks,
motels, recreational |
123 |
vehicle parks, and townhouses. |
124 |
Section 3. Subsection
(2) of section 514.0115, Florida |
125 |
Statutes, is amended to read: |
126 |
514.0115 Exemptions
from supervision or regulation; |
127 |
variances.-- |
128 |
(2)(a) Pools
serving no more than 32 condominium or |
129 |
cooperative units or 32 parcels governed by
a homeowners' |
130 |
association which are not operated as a
public lodging |
131 |
establishment shall be exempt from supervision
under this |
132 |
chapter, except for water quality. |
133 |
(b) Pools
serving condominium or cooperative associations |
134 |
of more than 32 units or homeowners'
associations of more than |
135 |
32 parcels
and whose recorded documents
prohibit the rental or |
136 |
sublease of the units for periods of less than
60 days are |
137 |
exempt from supervision under this chapter,
except that the |
138 |
homeowners' association or
condominium
or cooperative owner or |
139 |
association must file applications with the
department and |
140 |
obtain construction plans approval and receive
an initial |
141 |
operating permit. The department shall inspect
the swimming |
142 |
pools at such places annually, at the fee set
forth in s. |
143 |
514.033(3), or upon request by a unit owner, to
determine |
144 |
compliance with department rules relating to
water quality and |
145 |
lifesaving equipment. The department may not
require compliance |
146 |
with rules relating to swimming pool lifeguard
standards. |
147 |
Section 4. Subsection
(9) of section 515.25, Florida |
148 |
Statutes, is amended to read: |
149 |
515.25 Definitions.--As
used in this chapter, the term: |
150 |
(9) "Public
swimming pool" means a swimming pool, as |
151 |
defined in s. 514.011(6)(2),
which is operated, with or without |
152 |
charge, for the use of the general public;
however, the term |
153 |
does not include a swimming pool located on the
grounds of a |
154 |
private residence. |
155 |
Section 5. Effective
January 1, 2009, section 515.295, |
156 |
Florida Statutes, is created to read: |
157 |
515.295 Residential
swimming pool and spa drain-cover |
158 |
safety.-- |
159 |
(1) For
purposes of this section, the term: |
160 |
(a) "ASME/ANSI"
as applied to a safety standard means a |
161 |
standard that is accredited by the American
National Standards |
162 |
Institute and published by the American
Society of Mechanical |
163 |
Engineers. |
164 |
(b) "Main
drain" means a submerged suction outlet |
165 |
typically located at the bottom of a
swimming pool or spa to |
166 |
conduct water to a recirculating pump. |
167 |
(c) "Safety
vacuum release system" means a vacuum release |
168 |
system capable of providing vacuum release
at a suction outlet |
169 |
caused by a high vacuum occurrence due to a
suction outlet flow |
170 |
blockage. |
171 |
(d) "Unblockable
drain" means a drain of any size and |
172 |
shape which a human body cannot sufficiently
block to create a |
173 |
suction-entrapment hazard. |
174 |
(2) All
residential swimming pools and spas constructed on |
175 |
or after January 1, 2009, must have more
than one drain, one or |
176 |
more unblockable drains, or no main drain. |
177 |
(3) All
residential swimming pools and spas constructed on |
178 |
or after January 1, 2009, must be equipped
with one or more of |
179 |
the following devices and systems designed
to prevent entrapment |
180 |
by the pool or spa drain: |
181 |
(a) A
safety vacuum release system that ceases operation |
182 |
of the pump, reverses the circulation flow,
or otherwise |
183 |
provides a vacuum release at a suction
outlet when a blockage is |
184 |
detected. Such system must have been tested
by an independent |
185 |
third party and found to conform to ASME/ANSI
standard |
186 |
A112.19.17 or ASTM standard F2387. |
187 |
(b) A
suction-limiting vent system that has a tamper- |
188 |
resistant atmospheric opening. |
189 |
(c) A
gravity drainage system that uses a collector tank. |
190 |
(d) An
automatic pump shut-off system. |
191 |
(e) A
device or system that disables the drain. |
192 |
(f) Any
other system determined by the department to be |
193 |
equally effective as, or better than, the
systems described in |
194 |
this subsection at preventing or eliminating
the risk of injury |
195 |
or death associated with swimming pool and
spa drainage systems. |
196 |
(4) Any
device or system described in subsection (3) must |
197 |
meet the requirements of any ASME/ANSI or
ASTM performance |
198 |
standard, if there is such a standard for
such a device or |
199 |
system, or any applicable consumer product
safety standard. |
200 |
Section 6. Subsection
(2) of section 720.302, Florida |
201 |
Statutes, is amended to read: |
202 |
720.302 Purposes,
scope, and application.-- |
203 |
(2) The
Legislature recognizes that it is not in the best |
204 |
interest of homeowners' associations or the
individual |
205 |
association members thereof to create or impose
a bureau or |
206 |
other agency of state government to regulate
the affairs of |
207 |
homeowners' associations. However, in
accordance with part IV of |
208 |
this chapter s. 720.311, the
Legislature finds that homeowners' |
209 |
associations and their individual members will
benefit from an |
210 |
expedited alternative process for resolution of
election and |
211 |
recall disputes and presuit mediation of
other disputes |
212 |
involving covenant enforcement in
homeowner's associations and |
213 |
deed restricted communities using the
procedures provided in |
214 |
part IV of and authorizes the
department to hear, administer, |
215 |
and determine these disputes as more fully
set forth in this |
216 |
chapter. Further, the Legislature recognizes
that certain |
217 |
contract rights have been created for the
benefit of homeowners' |
218 |
associations and members thereof as well as
deed-restricted |
219 |
communities before the effective date of
this act and that this |
220 |
chapter is ss. 720.301-720.407 are
not intended to impair such |
221 |
contract rights, including, but not limited to,
the rights of |
222 |
the developer to complete the community as
initially |
223 |
contemplated. |
224 |
Section 7. Paragraph
(b) of subsection (2), paragraphs (a) |
225 |
and (c) of subsection (5), and paragraphs (b),
(c), (d), (f), |
226 |
and (g) of subsection (6) of section 720.303,
Florida Statutes, |
227 |
are amended, and subsection (12) is added to
that section, to |
228 |
read: |
229 |
720.303 Association
powers and duties; meetings of board; |
230 |
official records; budgets; financial reporting;
association |
231 |
funds; recalls.-- |
232 |
(2) BOARD
MEETINGS.-- |
233 |
(b) Members
have the right to attend all meetings of the |
234 |
board and to speak on any matter placed on the
agenda by |
235 |
petition of the voting interests for at least 3
minutes. The |
236 |
association may adopt written reasonable rules
expanding the |
237 |
right of members to speak and governing the
frequency, duration, |
238 |
and other manner of member statements, which
rules must be |
239 |
consistent with this paragraph and may include
a sign-up sheet |
240 |
for members wishing to speak. Notwithstanding
any other law, the |
241 |
requirement that board meetings and committee
meetings be open |
242 |
to the members is inapplicable to meetings
between the board or |
243 |
a committee to discuss proposed or pending
litigation with and |
244 |
the association's attorney, and with
respect to meetings of the |
245 |
board held for the purpose of discussing
personnel matters. |
246 |
(5) INSPECTION
AND COPYING OF RECORDS.--The official |
247 |
records shall be maintained within the state
and must be open to |
248 |
inspection and available for photocopying by
members or their |
249 |
authorized agents at reasonable times and
places within 10 |
250 |
business days after receipt of a written
request for access. |
251 |
This subsection may be complied with by having
a copy of the |
252 |
official records available for inspection or
copying in the |
253 |
community. If the association has a photocopy
machine available |
254 |
where the records are maintained, it must
provide parcel owners |
255 |
with copies on request during the inspection if
the entire |
256 |
request is limited to no more than 25 pages. |
257 |
(a) The
failure of an association to provide access to the |
258 |
records within 10 business days after receipt
of a written |
259 |
request submitted by certified mail, return
receipt requested, |
260 |
creates a rebuttable presumption that the
association willfully |
261 |
failed to comply with this subsection. |
262 |
(c) The
association may adopt reasonable written rules |
263 |
governing the frequency, time, location,
notice, records to be |
264 |
inspected, and manner of inspections, but may
not impose a |
265 |
requirement that a parcel owner demonstrate any
proper purpose |
266 |
for the inspection, state any reason for the
inspection, or |
267 |
limit a parcel owner's right to inspect records
to less than one |
268 |
8-hour business day per month. The association
may impose fees |
269 |
to cover the costs of providing copies of the
official records, |
270 |
including, without limitation, the costs of
copying. The |
271 |
association may charge up to 50 cents per page
for copies made |
272 |
on the association's photocopier. If the
association does not |
273 |
have a photocopy machine available where the
records are kept, |
274 |
or if the records requested to be copied exceed
25 pages in |
275 |
length, the association may have copies made by
an outside |
276 |
vendor or association management company
personnel and may |
277 |
charge the actual cost of copying, including
any reasonable |
278 |
costs involving personnel fees and charges
at an hourly rate for |
279 |
employee time to cover administrative costs
to the association. |
280 |
The association shall maintain an adequate
number of copies of |
281 |
the recorded governing documents, to ensure
their availability |
282 |
to members and prospective members.
Notwithstanding the |
283 |
provisions of this paragraph, the following
records shall not be |
284 |
accessible to members or parcel owners: |
285 |
1. Any
record protected by the lawyer-client privilege as |
286 |
described in s. 90.502 and any record protected
by the work- |
287 |
product privilege, including, but not limited
to, any record |
288 |
prepared by an association attorney or prepared
at the |
289 |
attorney's express direction which reflects a
mental impression, |
290 |
conclusion, litigation strategy, or legal
theory of the attorney |
291 |
or the association and was prepared exclusively
for civil or |
292 |
criminal litigation or for adversarial
administrative |
293 |
proceedings or which was prepared in
anticipation of imminent |
294 |
civil or criminal litigation or imminent
adversarial |
295 |
administrative proceedings until the conclusion
of the |
296 |
litigation or adversarial administrative
proceedings. |
297 |
2. Information
obtained by an association in connection |
298 |
with the approval of the lease, sale, or other
transfer of a |
299 |
parcel. |
300 |
3. Disciplinary,
health, insurance, and personnel records |
301 |
of the association's employees. |
302 |
4. Medical
records of parcel owners or community |
303 |
residents. |
304 |
(6) BUDGETS.-- |
305 |
(b) In
addition to annual operating expenses, the budget |
306 |
may include reserve accounts for capital
expenditures and |
307 |
deferred maintenance for which the association
is responsible. |
308 |
To the extent that such reserve accounts are
not created or |
309 |
established pursuant to paragraph (d),
funding of such reserves |
310 |
shall be limited to the extent that the
governing documents do |
311 |
not limit increases in assessments,
including reserves. If the |
312 |
budget of the association includes reserve
accounts created or |
313 |
established pursuant to paragraph (d),
such reserves shall be |
314 |
determined, maintained, and waived in the
manner provided in |
315 |
this subsection. Once an association provides
for reserve |
316 |
accounts created or established pursuant to
paragraph (d) in the |
317 |
budget, the association shall thereafter
determine, maintain, |
318 |
and waive reserves in compliance with this
subsection. Nothing |
319 |
in this section precludes termination of a
reserve account |
320 |
established pursuant to this paragraph upon
approval of a |
321 |
majority of the voting interests of the
association. Upon such |
322 |
approval, the terminating reserve account
shall be removed from |
323 |
the budget. |
324 |
(c)1. If
the budget of the association does not provide |
325 |
for reserve accounts created or established
pursuant to |
326 |
paragraph (d) governed by this
subsection and the association is |
327 |
responsible for the repair and maintenance of
capital |
328 |
improvements that may result in a special
assessment if reserves |
329 |
are not provided, each financial report for the
preceding fiscal |
330 |
year required by subsection (7) shall contain
the following |
331 |
statement in conspicuous type: THE BUDGET OF
THE ASSOCIATION |
332 |
DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR
CAPITAL EXPENDITURES |
333 |
AND DEFERRED MAINTENANCE THAT MAY RESULT IN
SPECIAL ASSESSMENTS. |
334 |
OWNERS MAY ELECT TO PROVIDE FOR RESERVE
ACCOUNTS PURSUANT TO THE |
335 |
PROVISIONS OF SECTION 720.303(6), FLORIDA
STATUTES, UPON THE |
336 |
APPROVAL OF NOT LESS THAN A MAJORITY OF THE
TOTAL VOTING |
337 |
INTERESTS OF THE ASSOCIATION ATTAINED BY
VOTE OF THE MEMBERS AT |
338 |
A MEETING OR BY WRITTEN CONSENT EXECUTED BY
A MAJORITY OF THE |
339 |
VOTING INTERESTS. |
340 |
2. If
the budget of the association does provide for |
341 |
funding of accounts for deferred
expenditures, including, but |
342 |
not limited to, funds for capital
expenditures and deferred |
343 |
maintenance, but such accounts are not
created or established |
344 |
pursuant to paragraph (d), each financial
report for the |
345 |
preceding fiscal year required by subsection
(7) shall also |
346 |
contain the following statement in
conspicuous type: THE BUDGET |
347 |
OF THE ASSOCIATION DOES PROVIDE FOR LIMITED
VOLUNTARY DEFERRED |
348 |
EXPENDITURE ACCOUNTS, INCLUDING CAPITAL
EXPENDITURES AND |
349 |
DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON
FUNDING CONTAINED IN |
350 |
OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS
HAVE NOT ELECTED TO |
351 |
PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE
PROVISIONS OF |
352 |
SECTION 720.303(6), FLORIDA STATUTES, THESE
FUNDS ARE NOT |
353 |
SUBJECT TO THE RESTRICTIONS ON USE OF SUCH
FUNDS SET FORTH IN |
354 |
THAT STATUTE, NOR ARE RESERVES CALCULATED IN
ACCORDANCE WITH |
355 |
THAT STATUTE. |
356 |
(d) An
association shall be deemed to have provided for |
357 |
reserve accounts when reserve accounts have
been initially |
358 |
established by the developer or when the
membership of the |
359 |
association affirmatively elects to provide for
reserves. If |
360 |
reserve accounts are not initially provided for
by the |
361 |
developer, the membership of the association
may elect to do so |
362 |
upon the affirmative approval of not less than
a majority of the |
363 |
total voting interests of the association. Such
approval may be |
364 |
attained by vote of the members at a duly
called meeting of the |
365 |
membership or upon a written consent executed
by not less than a |
366 |
majority of the total voting interests in the
community. The |
367 |
approval action of the membership shall state
that reserve |
368 |
accounts shall be provided for in the budget
and shall designate |
369 |
the components for which the reserve accounts
are to be |
370 |
established. Upon approval by the membership,
the board of |
371 |
directors shall provide for the required
reserve accounts for |
372 |
inclusion in the budget in the next fiscal year
following the |
373 |
approval and in each year thereafter. Once
established as |
374 |
provided in this subsection, the reserve
accounts shall be |
375 |
funded or maintained or shall have their
funding waived in the |
376 |
manner provided in paragraph (f). |
377 |
(f) After
one or more Once a reserve account or reserve |
378 |
accounts are established, the membership of the
association, |
379 |
upon a majority vote at a meeting at which a
quorum is present, |
380 |
may provide for no reserves or less reserves
than required by |
381 |
this section. If a meeting of the unit owners
has been called to |
382 |
determine whether to waive or reduce the
funding of reserves and |
383 |
no such result is achieved or a quorum is not
present, the |
384 |
reserves as included in the budget shall go
into effect. After |
385 |
the turnover, the developer may vote its voting
interest to |
386 |
waive or reduce the funding of reserves. Any
vote taken pursuant |
387 |
to this subsection to waive or reduce reserves
shall be |
388 |
applicable only to one budget year. |
389 |
(g) Funding
formulas for reserves authorized by this |
390 |
section shall be based on either a separate
analysis of each of |
391 |
the required assets or a pooled analysis of two
or more of the |
392 |
required assets. |
393 |
1. If
the association maintains separate reserve accounts |
394 |
for each of the required assets, the amount of
the contribution |
395 |
to each reserve account shall be the sum of the
following two |
396 |
calculations: |
397 |
a. The
total amount necessary, if any, to bring a negative |
398 |
component balance to zero. |
399 |
b. The
total estimated deferred maintenance expense or |
400 |
estimated replacement cost of the reserve
component less the |
401 |
estimated balance of the reserve component as
of the beginning |
402 |
of the period for which the budget will be in
effect. The |
403 |
remainder, if greater than zero, shall be
divided by the |
404 |
estimated remaining useful life of the
component. |
405 |
|
406 |
The formula may be adjusted each year for
changes in estimates |
407 |
and deferred maintenance performed during the
year and may |
408 |
include factors such as inflation and earnings
on invested |
409 |
funds. |
410 |
2. If
the association maintains a pooled account of two or |
411 |
more of the required reserve assets, the amount
of the |
412 |
contribution to the pooled reserve account as
disclosed on the |
413 |
proposed budget shall not be less than that
required to ensure |
414 |
that the balance on hand at the beginning of
the period for |
415 |
which the budget will go into effect plus the
projected annual |
416 |
cash inflows over the remaining estimated
useful life of all of |
417 |
the assets that make up the reserve pool are
equal to or greater |
418 |
than the projected annual cash outflows over
the remaining |
419 |
estimated useful lives of all of the assets
that make up the |
420 |
reserve pool, based on the current reserve
analysis. The |
421 |
projected annual cash inflows may include
estimated earnings |
422 |
from investment of principal and accounts
receivable minus the |
423 |
allowance for doubtful accounts. The
reserve funding formula |
424 |
shall not include any type of balloon payments. |
425 |
(12) COMPENSATION
PROHIBITED.-- A director, officer, or |
426 |
committee member of the association may not
receive directly or |
427 |
indirectly any salary or compensation from
the association for |
428 |
performance of duties as a director,
officer, or committee |
429 |
member and such person may not in any other
way benefit |
430 |
financially from service to the association.
This subsection |
431 |
shall not be construed to preclude: |
432 |
(a) Participation
by such person in a financial benefit |
433 |
accruing to all or a significant number of
members as a result |
434 |
of actions lawfully taken by the board or a
committee of which |
435 |
he or she is a member, including, but not
limited to, routine |
436 |
maintenance, repair, or replacement of
community assets; |
437 |
(b) Reimbursement
for out-of-pocket expenses incurred by |
438 |
such person on behalf of the association,
subject to approval of |
439 |
such reimbursement in accordance with
procedures established by |
440 |
the association's governing documents or, in
the absence of such |
441 |
procedures, in accordance with an approval
process established |
442 |
by the board; |
443 |
(c) Any
recovery of insurance proceeds derived from a |
444 |
policy of insurance maintained by the
association for the |
445 |
benefit of its members; |
446 |
(d) Any
fee or compensation authorized in the governing |
447 |
documents; or |
448 |
(e) Any
fee or compensation authorized in advance by a |
449 |
vote of a majority of the voting interests
voting in person or |
450 |
by proxy at the meeting of the members. |
451 |
Section 8. Subsection
(2) of section 720.305, Florida |
452 |
Statutes, are amended to read: |
453 |
720.305 Obligations
of members; remedies at law or in |
454 |
equity; levy of fines and suspension of use
rights; failure to |
455 |
fill sufficient number of vacancies on board of
directors to |
456 |
constitute a quorum; appointment of receiver
upon petition of |
457 |
any member.-- |
458 |
(2) If
the governing documents so provide, an association |
459 |
may suspend, for a reasonable period of time,
the rights of a |
460 |
member or a member's tenants, guests, or
invitees, or both, to |
461 |
use common areas and facilities and may levy
reasonable fines, |
462 |
not to exceed $100 per violation, against any
member or any |
463 |
tenant, guest, or invitee. A fine may be levied
on the basis of |
464 |
each day of a continuing violation, with a
single notice and |
465 |
opportunity for hearing, except that no such
fine shall exceed |
466 |
$1,000 in the aggregate unless otherwise
provided in the |
467 |
governing documents. A fine of less than
$1,000 shall not become |
468 |
a lien against a parcel. In any action to
recover a fine, the |
469 |
prevailing party is entitled to collect its
reasonable |
470 |
attorney's fees and costs from the
nonprevailing party as |
471 |
determined by the court. |
472 |
(a) A
fine or suspension may not be imposed without notice |
473 |
of at least 14 days to the person sought to be
fined or |
474 |
suspended and an opportunity for a hearing
before a committee of |
475 |
at least three members appointed by the board
who are not |
476 |
officers, directors, or employees of the
association, or the |
477 |
spouse, parent, child, brother, or sister of an
officer, |
478 |
director, or employee. If the committee, by
majority vote, does |
479 |
not approve a proposed fine or suspension, it
may not be |
480 |
imposed. |
481 |
(b) The
requirements of this subsection do not apply to |
482 |
the imposition of suspensions or fines upon any
member because |
483 |
of the failure of the member to pay assessments
or other charges |
484 |
when due if such action is authorized by the
governing |
485 |
documents. |
486 |
(c) Suspension
of common-area-use rights shall not impair |
487 |
the right of an owner or tenant of a parcel to
have vehicular |
488 |
and pedestrian ingress to and egress from the
parcel, including, |
489 |
but not limited to, the right to park. |
490 |
Section 9. Subsections
(8) and (9) of section 720.306, |
491 |
Florida Statutes, are amended to read: |
492 |
720.306 Meetings
of members; voting and election |
493 |
procedures; amendments.-- |
494 |
(8) PROXY
VOTING.--The members have the right, unless |
495 |
otherwise provided in this subsection or in the
governing |
496 |
documents, to vote in person or by proxy. |
497 |
(a) To
be valid, a proxy must be dated, must state the |
498 |
date, time, and place of the meeting for which
it was given, and |
499 |
must be signed by the authorized person who
executed the proxy. |
500 |
A proxy is effective only for the specific
meeting for which it |
501 |
was originally given, as the meeting may
lawfully be adjourned |
502 |
and reconvened from time to time, and
automatically expires 90 |
503 |
days after the date of the meeting for which it
was originally |
504 |
given. A proxy is revocable at any time at the
pleasure of the |
505 |
person who executes it. If the proxy form
expressly so provides, |
506 |
any proxy holder may appoint, in writing, a
substitute to act in |
507 |
his or her place. |
508 |
(b) If
the governing documents permit voting by secret |
509 |
ballot by owners who are not in attendance
at a meeting of the |
510 |
members for the election of directors, such
ballots shall be |
511 |
placed in an inner envelope with no
identifying markings and |
512 |
mailed or delivered to the association in an
outer envelope |
513 |
bearing identifying information reflecting
the name of the |
514 |
owner, the lot or parcel for which the vote
is being cast, and |
515 |
the signature of the lot or parcel owner
casting that ballot. |
516 |
After the eligibility of the member to vote
and confirmation |
517 |
that no other ballot has been submitted for
that lot or parcel |
518 |
has been determined, the inner envelope
shall be removed from |
519 |
the outer envelope bearing the
identification information and |
520 |
placed with the ballots which were
personally cast and shall be |
521 |
opened when the ballots are counted. In the
event that more than |
522 |
one ballot is submitted for a lot or parcel,
the ballots for |
523 |
that lot or parcel shall be disqualified.
Any vote by ballot |
524 |
received after the closing of the balloting
by a vote of the |
525 |
membership shall not be considered. |
526 |
(9) ELECTIONS;
BOARD MEMBER CERTIFICATION.-- |
527 |
(a) Elections
of directors must be conducted in accordance |
528 |
with the procedures set forth in the governing
documents of the |
529 |
association. All members of the association
shall be eligible to |
530 |
serve on the board of directors, and a member
may nominate |
531 |
himself or herself as a candidate for the board
at a meeting |
532 |
where the election is to be held or, in the
case of an election |
533 |
process that allows voting by absentee
ballot, in advance of the |
534 |
balloting. Except as otherwise provided
in the governing |
535 |
documents, boards of directors must be elected
by a plurality of |
536 |
the votes cast by eligible voters. Any election
dispute between |
537 |
a member and an association must be submitted
to mandatory |
538 |
binding arbitration with the division. Such
proceedings shall be |
539 |
conducted in the manner provided by s. 718.1255
and the |
540 |
procedural rules adopted by the division. |
541 |
(b) Within
30 days after being elected to the board of |
542 |
directors, a new director shall certify in
writing to the |
543 |
secretary of the association that he or she
has read the |
544 |
association's declarations of covenants and
restrictions, |
545 |
articles of incorporation, bylaws, and
current written policies |
546 |
and that he or she will work to uphold each
to the best of his |
547 |
or her ability and will faithfully discharge
his or her |
548 |
fiduciary responsibility to the
association's members. Failure |
549 |
to timely file such statement shall
automatically disqualify the |
550 |
director from service on the association's
board of directors. |
551 |
The secretary shall cause the association to
retain a director's |
552 |
certification for inspection by the
membership of the |
553 |
association for a period of 5 years after a
director's election. |
554 |
Failure to have such certification on file
shall not affect the |
555 |
validity of any appropriate action. |
556 |
Section 10. Section
720.311, Florida Statutes is repealed. |
557 |
Dispute resolution proceedings that have
begun, subject to the |
558 |
provisions of 720.311, Florida Statutes, and
are still pending |
559 |
as of the date of this repeal shall continue
under that section. |
560 |
Section 11. Paragraph
(a) of subsection (1) of section |
561 |
720.401, Florida Statutes, is amended to read: |
562 |
720.401 Prospective
purchasers subject to association |
563 |
membership requirement; disclosure required;
covenants; |
564 |
assessments; contract cancellation.-- |
565 |
(1)(a) A
prospective parcel owner in a community must be |
566 |
presented a disclosure summary before executing
the contract for |
567 |
sale. The disclosure summary must be in a form
substantially |
568 |
similar to the following form: |
569 |
|
570 |
DISCLOSURE SUMMARY |
571 |
FOR |
572 |
(NAME OF COMMUNITY) |
573 |
|
574 |
1. AS
A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL |
575 |
BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS'
ASSOCIATION. |
576 |
2. THERE
HAVE BEEN OR WILL BE RECORDED RESTRICTIVE |
577 |
COVENANTS GOVERNING THE USE AND OCCUPANCY OF
PROPERTIES IN THIS |
578 |
COMMUNITY. |
579 |
3. YOU
WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE |
580 |
ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO
PERIODIC CHANGE. IF |
581 |
APPLICABLE, THE CURRENT AMOUNT IS $_____ PER
_____. YOU WILL |
582 |
ALSO BE OBLIGATED TO PAY ANY SPECIAL
ASSESSMENTS IMPOSED BY THE |
583 |
ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE
SUBJECT TO CHANGE. |
584 |
IF APPLICABLE, THE CURRENT AMOUNT IS $_____ PER
_____. |
585 |
4. YOU
MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE |
586 |
RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL
DISTRICT. ALL |
587 |
ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE. |
588 |
5. YOUR
FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS |
589 |
LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION
COULD RESULT IN A |
590 |
LIEN ON YOUR PROPERTY. |
591 |
6. THERE
MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES |
592 |
FOR RECREATIONAL OR OTHER COMMONLY USED
FACILITIES AS AN |
593 |
OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS'
ASSOCIATION. IF |
594 |
APPLICABLE, THE CURRENT AMOUNT IS $_____ PER
_____. |
595 |
7. IF
THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE |
596 |
DEVELOPER, THE DEVELOPER MAY HAVE THE
RIGHT TO AMEND THE |
597 |
RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF
THE ASSOCIATION |
598 |
MEMBERSHIP OR THE APPROVAL OF THE PARCEL
OWNERS. |
599 |
8. THE
STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE |
600 |
ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE
PURCHASER, YOU |
601 |
SHOULD REFER TO THE COVENANTS AND THE
ASSOCIATION GOVERNING |
602 |
DOCUMENTS BEFORE PURCHASING PROPERTY. |
603 |
9. THESE
DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND |
604 |
CAN BE OBTAINED FROM THE RECORD OFFICE IN THE
COUNTY WHERE THE |
605 |
PROPERTY IS LOCATED, OR ARE NOT RECORDED AND
CAN BE OBTAINED |
606 |
FROM THE DEVELOPER. |
607 |
10. THERE
MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES |
608 |
AND/OR FEES) TO A COMMUNITY DEVELOPMENT
DISTRICT FOR THE PURPOSE |
609 |
OF RETIRING BOND OBLIGATIONS USED TO
CONSTRUCT INFRASTRUCTURE |
610 |
AND/OR OTHER IMPROVEMENTS. |
611 |
11. YOU
ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS |
612 |
OWNER OF YOUR PROPERTY FOR ALL UNPAID
ASSESSMENTS THAT BECAME |
613 |
DUE UP TO THE TIME OF TRANSFER OF TITLE. |
614 |
|
615 |
DATE: PURCHASER: |
616 |
PURCHASER: |
617 |
The disclosure must be supplied by the
developer, or by the |
618 |
parcel owner if the sale is by an owner that is
not the |
619 |
developer. Any contract or agreement for sale
shall refer to and |
620 |
incorporate the disclosure summary and shall
include, in |
621 |
prominent language, a statement that the
potential buyer should |
622 |
not execute the contract or agreement until
they have received |
623 |
and read the disclosure summary required by
this section. |
624 |
Section 12. Part
IV of chapter 720, Florida Statutes, to |
625 |
be entitled "Dispute Resolution"
consisting of sections 720.501, |
626 |
720.502, 720.503, 720.504, 720.505, 720.506,
720.507, 720.508, |
627 |
720.509, and 720.510, is created to read: |
628 |
720.501 Short
title.--This part may be cited as the "Home |
629 |
Court Advantage Dispute Resolution
Act." |
630 |
720.502 Legislative
findings.--The Legislature finds that |
631 |
alternative dispute resolution has made
progress in reducing |
632 |
court dockets and trials and in offering a
more efficient, cost- |
633 |
effective option to litigation. |
634 |
720.503 Applicability.-- |
635 |
(1) Unless
otherwise provided in this part, before a |
636 |
dispute described in this part between a
homeowners' association |
637 |
and a parcel owner or owners, or a dispute
between parcel owners |
638 |
within the same homeowners association, may
be filed in court, |
639 |
the dispute is subject to presuit mediation
pursuant to s. |
640 |
720.505 or presuit arbitration pursuant to
s. 720.507, at the |
641 |
option of the aggrieved party who initiates
the first formal |
642 |
action of alternative dispute resolution
under this part. The |
643 |
parties may mutually agree to participate in
both presuit |
644 |
mediation and by presuit arbitration prior
to suit being filed |
645 |
by either party. |
646 |
(2) Unless
otherwise provided in this part, the mediation |
647 |
and arbitration provisions of this part are
limited to disputes |
648 |
between an association and a parcel owner or
owners, or between |
649 |
parcel owners, regarding the use of or
changes to the parcel or |
650 |
the common areas under the governing
documents or other disputes |
651 |
involving violations of the recorded
declaration of covenants or |
652 |
other governing documents; disputes arising
concerning |
653 |
enforcement of the governing documents or
any amendments |
654 |
thereto; and disputes involving access to
the official records |
655 |
of the association. A dispute concerning
title to any parcel or |
656 |
common area; interpretation or enforcement
of any warranty; the |
657 |
levy of a fee or assessment; the collection
of an assessment |
658 |
levied against a party; the eviction or
other removal of a |
659 |
tenant from a parcel; alleged breaches of
fiduciary duty by one |
660 |
or more directors; or any action to collect
mortgage |
661 |
indebtedness or to foreclosure a mortgage
shall not be subject |
662 |
to the provisions of this part. |
663 |
(3) All
disputes arising after the effective date of this |
664 |
part involving the election of the board of
directors for an |
665 |
association or the recall of any member of
the board or officer |
666 |
of the association shall not be eligible for
presuit mediation |
667 |
under s. 720.505, but shall be subject to
the provisions |
668 |
concerning presuit arbitration under s.
720.507. |
669 |
(4) In
any dispute subject to presuit mediation or presuit |
670 |
arbitration under this part for which
emergency relief is |
671 |
required, a motion for temporary injunctive
relief may be filed |
672 |
with the court without first complying with
the presuit |
673 |
mediation or presuit arbitration
requirements of this part. |
674 |
After any issues regarding emergency or
temporary relief are |
675 |
resolved, the court may refer the parties to
a mediation program |
676 |
administered by the courts or require
mediation or arbitration |
677 |
under this part. |
678 |
(5) The
mailing of a statutory notice of presuit mediation |
679 |
or presuit arbitration as provided in this
part shall toll the |
680 |
applicable statute of limitations during the
pendency of the |
681 |
mediation or arbitration and for a period of
30 days following |
682 |
the conclusion of either proceeding. The
30-day period shall |
683 |
start upon the filing of the mediator's
notice of impasse or the |
684 |
arbitrator's written arbitration award. If
the parties mutually |
685 |
agree to participate in both presuit
mediation and presuit |
686 |
arbitration under this part, then the
tolling of the applicable |
687 |
statute of limitations for each such
alternative dispute |
688 |
resolution proceeding shall be consecutive. |
689 |
720.504 Notice
of violation.--Prior to giving the |
690 |
statutory notice to proceed under presuit
medication or presuit |
691 |
arbitration under this part, the aggrieved
association or parcel |
692 |
owner shall first provide written notice of
the alleged |
693 |
violation to the alleged violator in the
manner provided by this |
694 |
section. |
695 |
(1) The
notice of violation shall be delivered to the |
696 |
alleged violator by certified mail, return
receipt requested, or |
697 |
hand delivered. The person making delivery
shall file with their |
698 |
notice of mediation either the proof of
receipt of mailing or an |
699 |
affidavit stating the date and time of the
delivery of the |
700 |
notice of violation. If the notice is
delivered by certified |
701 |
mail, return receipt requested and the
alleged violator fails or |
702 |
refuses to accept delivery, notice shall be
considered properly |
703 |
delivered for purposes of this section on
the date of the first |
704 |
attempted delivery. |
705 |
(2) The
notice of violation shall state with specificity |
706 |
the nature of the alleged violation,
including the date, time, |
707 |
and location of each violation and the
action requested to abate |
708 |
or otherwise correct the violation. The
notice shall also |
709 |
include the text of any provision in the
governing documents, |
710 |
including the rules and regulations, of the
association that |
711 |
have allegedly been violated. |
712 |
(3) Unless
the parties otherwise agree in writing to a |
713 |
longer time period for abatement, the party
receiving the notice |
714 |
of violation shall have 10 days from the
date of receipt of |
715 |
notice to correct the violation. If the
alleged violation has |
716 |
not been abated within or otherwise
corrected within the 10-day |
717 |
period, the party alleging the violation may
proceed under this |
718 |
part at any time thereafter within the
applicable statute of |
719 |
limitations. |
720 |
(4) A
copy of the notice and the text of the provision in |
721 |
the governing documents or the rules and
regulations of the |
722 |
association that has allegedly been
violated, along with proof |
723 |
of service of the notice of violation and a
copy of any written |
724 |
responses received from the alleged
violator, shall be included |
725 |
as an exhibit to any demand for mediation or
arbitration under |
726 |
this part. |
727 |
720.505 Presuit
mediation.-- |
728 |
(1) Disputes
between an association and a parcel owner or |
729 |
owners and between parcel owners must be
submitted to presuit |
730 |
mediation before the dispute may be filed in
court, or at the |
731 |
election of the party initiating the presuit
procedures such |
732 |
dispute may be submitted to presuit
arbitration pursuant to s. |
733 |
720.507, before the dispute may be filed in
court. An aggrieved |
734 |
party who elects to utilize the presuit
mediation procedure |
735 |
under this section shall serve on the
responding party a written |
736 |
notice of presuit mediation in substantially
the following form: |
737 |
|
738 |
STATUTORY NOTICE OF PRESUIT MEDIATION |
739 |
|
740 |
The alleged aggrieved party,
____________________, |
741 |
hereby demands that ____________________, as
the |
742 |
responding party, engage in mandatory
presuit |
743 |
mediation in connection with a dispute(s)
with you, |
744 |
which by statute are of a type that are
subject to |
745 |
presuit mediation: |
746 |
|
747 |
Attached is a copy of the prior notice of
violation |
748 |
which details the specific nature of the
dispute(s)to |
749 |
be mediated and the authority supporting a
finding of |
750 |
a violation as to each dispute, including,
but not |
751 |
limited to, the applicable provisions of the
governing |
752 |
documents of the association believed to
apply to the |
753 |
dispute between the parties, and a copy of
the notice |
754 |
you received or refused and copies of any
written |
755 |
response(s) received from you about this
dispute. |
756 |
|
757 |
Pursuant to part IV of chapter 720, Florida
Statutes, |
758 |
this demand to resolve the dispute through
presuit |
759 |
mediation is required before a lawsuit can
be filed |
760 |
concerning the dispute. Pursuant to Florida
Statutes, |
761 |
the parties are required to engage in
presuit |
762 |
mediation with a neutral third-party
mediator in order |
763 |
to attempt to resolve this dispute without
court |
764 |
action, and the aggrieved party demands that
you |
765 |
participate in this process. Unless you
respond to |
766 |
this notice by filing with the aggrieved
party a |
767 |
notice of opting out and demand for
arbitration under |
768 |
s. 720.506, Florida Statutes, your failure
to |
769 |
participate in the mediation process may
result in a |
770 |
lawsuit being filed in court against you
without |
771 |
further notice. |
772 |
|
773 |
The process of mediation involves a
supervised |
774 |
negotiation process in which a trained,
neutral third- |
775 |
party mediator meets with both parties and
assists |
776 |
them in exploring possible opportunities for
resolving |
777 |
part or all of the dispute. By agreeing to
participate |
778 |
in presuit mediation, you are not bound in
any way to |
779 |
change your position. Furthermore, the
mediator has no |
780 |
authority to make any decisions in this
matter or to |
781 |
determine who is right or wrong and merely
acts as a |
782 |
facilitator to ensure that each party
understands the |
783 |
position of the other party and that all
options for |
784 |
reasonable settlement are fully explored. |
785 |
|
786 |
If an agreement is reached, it shall be
reduced to |
787 |
writing and become a binding and enforceable
contract |
788 |
between the parties. A resolution of one or
more |
789 |
disputes in this fashion avoids the need to
litigate |
790 |
these issues in court. The failure to reach
an |
791 |
agreement, or the failure of a party to
participate in |
792 |
the process, results in the mediator
declaring an |
793 |
impasse in the mediation, after which the
aggrieved |
794 |
party may proceed to file a law suit on all |
795 |
outstanding, unsettled disputes. If you have
failed or |
796 |
refused to participate in the entire
mediation |
797 |
process, you will not be entitled to recover |
798 |
attorney's fees if you prevail in a
subsequent court |
799 |
proceeding involving the same dispute. |
800 |
|
801 |
The aggrieved party has selected from a list
of |
802 |
eligible qualified mediators at least five
certified |
803 |
mediators who the aggrieved party believes
to be |
804 |
neutral and qualified to mediate the
dispute. You have |
805 |
the right to select any one of these
mediators. The |
806 |
fact that one party may be familiar with one
or more |
807 |
of the listed mediators does not mean that
the |
808 |
mediator cannot act as a neutral and
impartial |
809 |
facilitator. The names of the mediators that
the |
810 |
aggrieved party hereby submits to you from
whom you |
811 |
may choose one, and their current addresses,
telephone |
812 |
numbers and hourly rates, are as follows: |
813 |
|
814 |
(List the names, addresses, telephone
numbers, and |
815 |
hourly rates of the mediators. Other
pertinent |
816 |
information about the background of the
mediators may |
817 |
be included as an attachment.) |
818 |
|
819 |
You may contact the offices of these
mediators to |
820 |
confirm that each of the above listed
mediators will |
821 |
be neutral and will not show any favoritism
toward |
822 |
either party. Unless otherwise agreed to by
the |
823 |
parties, part IV of chapter 720, Florida
Statutes, |
824 |
requires that the parties share the costs of
presuit |
825 |
mediation equally, including the fee charged
by the |
826 |
mediator. An average mediation may require 3
to 4 |
827 |
hours of the mediator's time, including some |
828 |
preparation time, and the parties would need
to |
829 |
equally share the mediator's fees as well as
be |
830 |
responsible for all of their own attorney's
fees if |
831 |
they choose to employ an attorney in
connection with |
832 |
the mediation. However, use of an attorney
is not |
833 |
required and is at the option of each party.
The |
834 |
mediators may require the advance payment of
some or |
835 |
all of the anticipated fees. The aggrieved
party |
836 |
hereby agrees to pay or prepay one-half of
the |
837 |
selected mediator's estimated fees and to
forward this |
838 |
amount or such other reasonable advance
deposits as |
839 |
the mediator requires for this purpose upon
the |
840 |
selection of the mediator. Any funds
deposited will be |
841 |
returned to you if these funds are in excess
of your |
842 |
share of the mediator fees incurred. |
843 |
|
844 |
To begin your participation in presuit
mediation to |
845 |
try to resolve the dispute with you and
avoid further |
846 |
legal action, please sign below and clearly
indicate |
847 |
which mediator is acceptable to you from the
five |
848 |
mediators listed by the aggrieved party
above. |
849 |
|
850 |
You must respond in writing to this
statutory notice |
851 |
of presuit mediation within 20 days. In your
response |
852 |
you must provide a listing of at least three
dates and |
853 |
times in which you are available to
participate in the |
854 |
mediation that are within 90 days after the
postmarked |
855 |
date of the mailing of this notice of
presuit |
856 |
mediation or within 90 days after the date
you were |
857 |
served with a copy of this notice. The
aggrieved party |
858 |
will then ask the mediator to schedule a
mutually |
859 |
convenient time and place for the mediation
conference |
860 |
to be held. If you do not provide a list of
available |
861 |
dates and times, the mediator is authorized
to |
862 |
schedule a mediation conference without
taking your |
863 |
schedule and convenience into consideration.
In no |
864 |
event shall the mediation conference be
later than 90 |
865 |
days after the notice of presuit mediation
was first |
866 |
served unless all parties mutually agree
otherwise. |
867 |
in the event that you fail to respond within
20 days |
868 |
after the date of this notice, fail to
provide the |
869 |
mediator with dates and times in which you
are |
870 |
available for the mediation conference, fail
to agree |
871 |
to at least one of the mediators that the
aggrieved |
872 |
party has listed, fail to pay or prepay to
the |
873 |
mediator one-half of the costs involved, or
fail to |
874 |
appear and participate at the scheduled
mediation, the |
875 |
aggrieved party will be authorized to
proceed with the |
876 |
filing of a lawsuit against you without
further |
877 |
notice. In any subsequent court action, the
aggrieved |
878 |
party may seek an award of reasonable
attorney's fees |
879 |
and costs incurred in attempting to obtain
mediation. |
880 |
|
881 |
Please give this matter your immediate
attention. By |
882 |
law, your response must be mailed by
certified, first- |
883 |
class mail, return receipt requested, to the
aggrieved |
884 |
party listed above at the address shown on
this notice |
885 |
and postmarked no more than 20 days after
the date of |
886 |
the postmarked date for this notice or
within 20 days |
887 |
after the date upon which you were served
with a copy |
888 |
of this notice. |
889 |
|
890 |
________________________ |
891 |
Signature of aggrieved party |
892 |
|
893 |
______________________ |
894 |
Printed name of aggrieved party |
895 |
|
896 |
Responding party: your signature below
indicates your |
897 |
acceptance of the agreement to mediate. |
898 |
|
899 |
AGREEMENT TO MEDIATE |
900 |
|
901 |
The undersigned hereby agrees to participate
in |
902 |
presuit mediation and agrees to attend a
mediation |
903 |
conducted by the following mediator(s)
listed below as |
904 |
acceptable to mediate this dispute: |
905 |
|
906 |
(List one acceptable mediator from those
listed by the |
907 |
aggrieved party.) |
908 |
|
909 |
The undersigned hereby represents that he or
she can |
910 |
attend and participate in the presuit
mediation at the |
911 |
following dates and times: |
912 |
|
913 |
(List at least three available dates and
times within |
914 |
the 90-day time limit described above.) |
915 |
|
916 |
I/We further agree to pay or prepay one-half
of the |
917 |
mediator's fees and to forward such advance
deposits |
918 |
as the mediator may require for this
purpose. |
919 |
|
920 |
______________________________ |
921 |
Signature of responding party #1 |
922 |
______________________________ |
923 |
Telephone contact information |
924 |
______________________________ |
925 |
Signature and telephone contact information
of |
926 |
responding party #2, if applicable. If the
property is |
927 |
owned by more than one person, all parcel
owners or |
928 |
unit owners who are subject of the dispute
must sign |
929 |
or have a person acting under authority of a
power of |
930 |
attorney sign. |
931 |
|
932 |
(2)(a) Service
of the notice of presuit mediation shall be |
933 |
effected either by personal service, as
provided in chapter 48, |
934 |
or by certified mail, return receipt
requested, in a letter in |
935 |
substantial conformity with the form
provided in subsection (1), |
936 |
with an additional copy being sent by
regular first-class mail, |
937 |
to the address of the responding party as it
last appears on the |
938 |
books and records of the association or if
not available, then |
939 |
as it last appears in the official records
of the county |
940 |
property appraiser where the parcel in
dispute is located. The |
941 |
responding party has either 20 days after
the postmarked date of |
942 |
the mailing of the statutory notice or 20
days after the date |
943 |
the responding party is served with a copy
of the notice to |
944 |
serve a written response to the aggrieved
party. The response |
945 |
shall be served by certified mail, return
receipt requested, |
946 |
with an additional copy being sent by
regular first-class mail, |
947 |
to the address shown on the statutory
notice. The date of the |
948 |
postmark on the envelope for the response
shall constitute the |
949 |
date that the response is served. Once the
parties have agreed |
950 |
on a mediator, the mediator may schedule or
reschedule the |
951 |
mediation for a date and time mutually
convenient to the parties |
952 |
within 90 days after the date of service of
the statutory |
953 |
notice. After such 90-day period, the
mediator may reschedule |
954 |
the mediation only upon the mutual written
agreement of all the |
955 |
parties. |
956 |
(b) The
parties shall share the costs of presuit mediation |
957 |
equally, including the fee charged by the
mediator, if any, |
958 |
unless the parties agree otherwise, and the
mediator may require |
959 |
advance payment of his or her reasonable
fees and costs. Each |
960 |
party shall be responsible for their own
attorney's fees, if a |
961 |
party chooses to be represented by an
attorney at the mediation. |
962 |
(c) The
party responding to the aggrieved party may either |
963 |
provide a notice of opting out pursuant to
s. 720.506, and |
964 |
demand arbitration, or the responding party
shall sign the |
965 |
agreement to mediate included in the notice
of presuit mediation |
966 |
and clearly indicate the name of the
mediator who is acceptable |
967 |
from the five names provided by the
aggrieved party. The |
968 |
responding party must provide in their
response a list of dates |
969 |
and times in which the responding party is
available to |
970 |
participate in the mediation within 90 days
after the date the |
971 |
responding party was served, either by
process server or by |
972 |
certified mail, with the statutory notice of
presuit mediation. |
973 |
(d) The
mediator who has been selected and agreed to |
974 |
mediate must schedule the mediation
conference at a mutually |
975 |
convenient time and place within that 90-day
period. However, if |
976 |
the responding party does not provide a list
of available dates |
977 |
and times, the mediator is authorized to
schedule a mediation |
978 |
conference without taking the responding
party's schedule and |
979 |
convenience into consideration. Within 10
days after the |
980 |
designation of the mediator, the mediator
shall coordinate with |
981 |
the parties and notify the parties in
writing of the date, time, |
982 |
and place of the mediation conference. |
983 |
(e) The
mediation conference must be held on the scheduled |
984 |
date and may be rescheduled if a rescheduled
date is approved by |
985 |
the mediator. However, in no event shall the
mediation be held |
986 |
later than 90 days after the notice of
presuit mediation was |
987 |
first served, unless all parties mutually
agree in writing |
988 |
otherwise. If the presuit mediation is not
completed within the |
989 |
required time limits the mediator shall
declare an impasse |
990 |
unless the mediation date is extended by
mutual written |
991 |
agreement by all parties and approved by the
mediator. |
992 |
(f) If
the responding party fails to respond within 30 |
993 |
days after the date of service of the
statutory notice of |
994 |
presuit mediation, fails to agree either to
at least one of the |
995 |
mediators listed by the aggrieved party in
the notice, fails to |
996 |
pay or prepay to the mediator one-half of
the costs of the |
997 |
mediator, or fails to appear and participate
at the scheduled |
998 |
mediation, the aggrieved party shall be
authorized to proceed |
999 |
with the filing of a lawsuit without further
notice. |
1000 |
(g)1. Failure
of any party to respond to the statutory |
1001 |
notice of presuit mediation within 20 days,
failure to agree |
1002 |
upon a mediator, failure to provide a
listing of dates and times |
1003 |
in which the responding party is available
to participate in the |
1004 |
mediation within 90 days after the date the
responding party was |
1005 |
served with the statutory notice of presuit
mediation, failure |
1006 |
to make payment of fees and costs within the
time established by |
1007 |
the mediator, or failure to appear for a
scheduled mediation |
1008 |
session without the approval of the
mediator, shall, in each |
1009 |
instance, constitute a failure or refusal to
participate in the |
1010 |
mediation process and shall operate as an
impasse in the presuit |
1011 |
mediation by such party, entitling the other
party to file a |
1012 |
lawsuit in court and to seek an award of the
costs and |
1013 |
attorney's fees associated with the
mediation. |
1014 |
2. Persons
who fail or refuse to participate in the entire |
1015 |
mediation process may not recover attorney's
fees and costs in |
1016 |
subsequent litigation relating to the same
dispute between the |
1017 |
same parties. If any presuit mediation
session cannot be |
1018 |
scheduled and conducted within 90 days after
the offer to |
1019 |
participate in mediation was filed, through
no fault of either |
1020 |
party, then an impasse shall be deemed to
have occurred unless |
1021 |
the parties mutually agree in writing to
extend this deadline. |
1022 |
In the event of such impasse, each party
will be responsible for |
1023 |
its own costs and attorney's fees and
one-half of any mediator |
1024 |
fees and filing fees, and either party may
file a lawsuit in |
1025 |
court regarding the dispute. |
1026 |
720.506 Opt
out of presuit mediation.--A party served with |
1027 |
a notice of presuit mediation under s.
720.505, may opt out of |
1028 |
presuit mediation and demand that the
dispute proceed under |
1029 |
nonbinding arbitration in the following
manner provided in this |
1030 |
section: |
1031 |
(1) In
lieu of a response to the notice of presuit |
1032 |
mediation as required under s. 720.505, the
responding party may |
1033 |
serve upon the aggrieved party in the same
manner as the |
1034 |
response to a notice for presuit mediation
under s. 720.505, a |
1035 |
notice of opting out of mediation and demand
that the dispute |
1036 |
instead proceed to presuit arbitration under
s. 720.507. |
1037 |
(2) Where
a party elects to opt out of presuit mediation |
1038 |
in favor of nonbinding arbitration, the
aggrieved party shall |
1039 |
not be required to comply with the
requirements of s. 720.505. |
1040 |
(3) Except
as otherwise provided in this part, the choice |
1041 |
of which presuit alternative dispute
resolution procedure is |
1042 |
utilized shall be at the election of the
aggrieved party who |
1043 |
first initiated such proceeding after
complying with the |
1044 |
provisions of s. 720.504. |
1045 |
720.507 Presuit
arbitration.-- |
1046 |
(1) Disputes
between an association and a parcel owner or |
1047 |
owners and disputes between parcel owners
are subject to a |
1048 |
demand for presuit arbitration pursuant to
s. 720.507, before |
1049 |
the dispute may be filed in court. A party
who elects to utilize |
1050 |
the presuit arbitration procedure under this
part shall serve on |
1051 |
the responding party a written notice of
presuit arbitration in |
1052 |
substantially the following form: |
1053 |
|
1054 |
STATUTORY NOTICE OF PRESUIT
ARBITRATION |
1055 |
|
1056 |
The alleged aggrieved party,
____________________, |
1057 |
hereby demands that ____________________, as
the |
1058 |
responding party, engage in mandatory
presuit |
1059 |
arbitration in connection with the following |
1060 |
dispute(s) with you, which by statute are of
a type |
1061 |
that are subject to presuit arbitration: |
1062 |
|
1063 |
(List specific nature of the dispute or
disputes to be |
1064 |
arbitrated and the authority supporting a
finding of a |
1065 |
violation as to each dispute, including, but
not |
1066 |
limited to, all applicable provisions of the
governing |
1067 |
documents believed to apply to the dispute
between the |
1068 |
parties.) |
1069 |
|
1070 |
Pursuant to part IV of chapter 720, Florida
Statutes, |
1071 |
this demand to resolve the dispute through
presuit |
1072 |
arbitration is required before a lawsuit can
be filed |
1073 |
concerning the dispute. Pursuant to Florida
Statutes, |
1074 |
the parties are required to engage in
presuit |
1075 |
arbitration with a neutral third-party
arbitrator in |
1076 |
order to attempt to resolve this dispute
without court |
1077 |
action, and the aggrieved party demands that
you |
1078 |
participate in this process. If you fail to |
1079 |
participate in the arbitration process, a
lawsuit may |
1080 |
be brought against you in court without
further |
1081 |
warning. |
1082 |
|
1083 |
The process of arbitration involves a
neutral third |
1084 |
person who considers the law and facts
presented by |
1085 |
the parties and renders a written decision
called an |
1086 |
"arbitration award." Pursuant to
s. 720.507, Florida |
1087 |
Statutes, the arbitration award shall be
final unless |
1088 |
a lawsuit is filed in a court of competent |
1089 |
jurisdiction for the judicial circuit in
which the |
1090 |
parcel(s) governed by the homeowners'
association |
1091 |
is/are located within 30 days after the date
that the |
1092 |
arbitration award. |
1093 |
|
1094 |
If a settlement agreement is reached before
the |
1095 |
arbitration award, it shall be reduced to
writing and |
1096 |
become a binding and enforceable contract of
the |
1097 |
parties. A resolution of one or more
disputes in this |
1098 |
fashion avoids the need to arbitrate these
issues or |
1099 |
to litigate these issues in court and shall
be the |
1100 |
same as a settlement agreement reached
between the |
1101 |
parties under s. 720.505, Florida Statutes.
The |
1102 |
failure of a party to participate in the
arbitration |
1103 |
process may result in the arbitrator issuing
an |
1104 |
arbitration award by default in the
arbitration. If |
1105 |
you have failed or refused to participate in
the |
1106 |
entire arbitration process, you will not be
entitled |
1107 |
to recover attorney's fees, even if you
prevail in a |
1108 |
subsequent court proceeding involving the
same dispute |
1109 |
between the same parties. |
1110 |
|
1111 |
The aggrieved party has selected at least
five |
1112 |
arbitrators who the aggrieved party believes
to be |
1113 |
neutral and qualified to arbitrate the
dispute. You |
1114 |
have the right to select any one of the
arbitrators. |
1115 |
The fact that one party may be familiar with
one or |
1116 |
more of the listed arbitrators does not mean
that the |
1117 |
arbitrator cannot act as a neutral and
impartial |
1118 |
arbitrator. Any arbitrator who cannot act in
this |
1119 |
capacity is required ethically to decline to
accept |
1120 |
engagement. The names of the five
arbitrators that the |
1121 |
aggrieved party has chosen from which you
may select |
1122 |
one, and their current addresses, telephone
numbers, |
1123 |
and hourly rates, are as follows: |
1124 |
|
1125 |
(List the names, addresses, telephone
numbers, and |
1126 |
hourly rates of at least five arbitrators.) |
1127 |
|
1128 |
You may contact the offices of these
arbitrators to |
1129 |
confirm that the listed arbitrators will be
neutral |
1130 |
and will not show any favoritism toward
either party. |
1131 |
|
1132 |
Unless otherwise agreed to by the parties,
part IV of |
1133 |
chapter 720, Florida Statutes, requires that
the |
1134 |
parties share the costs of presuit
arbitration |
1135 |
equally, including the fee charged by the
arbitrator. |
1136 |
the parties shall be responsible for their
own |
1137 |
attorney's fees if they choose to employ an
attorney |
1138 |
in connection with the arbitration. However,
use of an |
1139 |
attorney to represent you for the
arbitration is not |
1140 |
required. The arbitrator selected may
require the |
1141 |
advance payment of some or all of the
anticipated |
1142 |
fees. The aggrieved party hereby agrees to
pay or |
1143 |
prepay one-half of the selected arbitrator's
estimated |
1144 |
fees and to forward this amount or such
other |
1145 |
reasonable advance deposits as the
arbitrator who is |
1146 |
selected requires for this purpose. Any
funds |
1147 |
deposited will be returned to you if these
funds are |
1148 |
in excess of your share of the fees
incurred. |
1149 |
|
1150 |
Please sign the agreement to arbitrate below
and |
1151 |
clearly indicate the name of the arbitrator
who is |
1152 |
acceptable to you from the names listed by
the |
1153 |
aggrieved party. |
1154 |
|
1155 |
You must respond in writing to this
statutory notice |
1156 |
within 20 days after the date that the
notice of |
1157 |
presuit arbitration was either personally
served on |
1158 |
you or 20 days after the postmarked date
that this |
1159 |
notice of presuit arbitration was sent to
you by |
1160 |
certified mail. You must also provide a list
of at |
1161 |
least three dates and times in which you are
available |
1162 |
to participate in the arbitration that are
within 90 |
1163 |
days after either the date you were
personally served |
1164 |
or 90 days after the postmarked date of the
certified |
1165 |
mailing of this statutory notice of presuit |
1166 |
arbitration. A copy of this notice and your
response |
1167 |
will be provided by the aggrieved party to
the |
1168 |
arbitrator selected and the arbitrator will
schedule a |
1169 |
mutually convenient time and place for the
arbitration |
1170 |
conference to be held. If you do not provide
a list of |
1171 |
available dates and times, the arbitrator is |
1172 |
authorized to schedule an arbitration
conference |
1173 |
without taking your schedule and convenience
into |
1174 |
consideration. The arbitration conference
must be held |
1175 |
on the scheduled date, or any rescheduled
date |
1176 |
approved by the arbitrator. In no event
shall the |
1177 |
arbitration conference be later than 90 days
after |
1178 |
notice of the presuit arbitration was first
served, |
1179 |
unless all parties mutually agree in writing |
1180 |
otherwise. If the arbitration is not
completed within |
1181 |
the required time limits, the arbitrator
shall issue |
1182 |
an arbitration award, unless the hearing is
extended |
1183 |
by mutual written agreement of the parties
and |
1184 |
approved by the arbitrator. In the event
that you fail |
1185 |
to respond within 20 days after the date you
were |
1186 |
served with a copy of this notice, fail to
provide the |
1187 |
arbitrator with dates and times in which you
are |
1188 |
available for the arbitration conference,
fail to |
1189 |
agree either to one of the arbitrators that
the |
1190 |
aggrieved party has named, fail to pay or
prepay to |
1191 |
the arbitrator one-half of the costs
involved as |
1192 |
required, or fail to appear and participate
at the |
1193 |
scheduled arbitration conference, the
aggrieved party |
1194 |
may request the arbitrator to issue an
arbitration |
1195 |
award. In the subsequent court action, the
aggrieved |
1196 |
party shall be entitled to recover an award
of |
1197 |
reasonable attorney's fees and costs,
including any |
1198 |
fees paid to the arbitrator, incurred in
obtaining an |
1199 |
arbitration award pursuant to s. 720.507,
Florida |
1200 |
Statutes. |
1201 |
|
1202 |
Please give this matter your immediate
attention. By |
1203 |
law, your response must be postmarked and
mailed by |
1204 |
certified, first-class mail, return receipt
requested, |
1205 |
to the address shown on this notice of
presuit |
1206 |
arbitration. |
1207 |
|
1208 |
_________________________ |
1209 |
Signature of aggrieved party |
1210 |
|
1211 |
______________________ |
1212 |
Printed name of aggrieved party |
1213 |
|
1214 |
Responding party: your signature below
indicates your |
1215 |
acceptance of the agreement to arbitrate. |
1216 |
|
1217 |
AGREEMENT TO ARBITRATE |
1218 |
|
1219 |
The undersigned hereby agrees to participate
in |
1220 |
presuit arbitration and agrees to attend an |
1221 |
arbitration conducted by the following
arbitrator |
1222 |
listed below as someone who would be
acceptable to |
1223 |
arbitrate this dispute: |
1224 |
|
1225 |
(In your response either select the name of
one |
1226 |
arbitrator that is acceptable to you from
those |
1227 |
arbitrators listed by the aggrieved party.) |
1228 |
|
1229 |
The undersigned hereby represents that he or
she is |
1230 |
available and able to attend and participate
in the |
1231 |
presuit arbitration conference at the
following dates |
1232 |
and times: |
1233 |
|
1234 |
(List all available dates and times, of
which there |
1235 |
must be at least three, within 90 days after
the date |
1236 |
on which you were served, either by process
server or |
1237 |
by certified mail, with the notice of
presuit |
1238 |
arbitration.) |
1239 |
|
1240 |
I/We further agree to pay or prepay one-half
of the |
1241 |
arbitrator's fees and to forward such
advance deposits |
1242 |
as the arbitrator may require for this
purpose. |
1243 |
|
1244 |
______________________________ |
1245 |
Signature of responding party #1 |
1246 |
______________________________ |
1247 |
Telephone contact information |
1248 |
______________________________ |
1249 |
Signature and telephone contact information
of |
1250 |
responding party #2, if applicable. If the
property is |
1251 |
owned by more than one person, all owners
must sign, |
1252 |
or a person may sign who is acting under
authority of |
1253 |
a valid power of attorney granted by an
owner. |
1254 |
|
1255 |
(2)(a) Service
of the statutory notice of presuit |
1256 |
arbitration shall be effected either by
personal service, as |
1257 |
provided in chapter 48, or by certified
mail, return receipt |
1258 |
requested, in a letter in substantial
conformity with the form |
1259 |
provided in subsection (1), with an
additional copy being sent |
1260 |
by regular first-class mail, to the address
of the responding |
1261 |
party as it last appears on the books and
records of the |
1262 |
association, or if not available, the last
address as it appears |
1263 |
on the official records of the county
property appraiser for the |
1264 |
county in which the property is situated
that is subject to the |
1265 |
association documents. The responding party
has 20 days after |
1266 |
the postmarked date of the certified mailing
of the statutory |
1267 |
notice of presuit arbitration or 20 days
after the date the |
1268 |
responding party is personally served with
the statutory notice |
1269 |
of presuit arbitration by to serve a written
response to the |
1270 |
aggrieved party. The response shall be
served by certified mail, |
1271 |
return receipt requested, with an additional
copy being sent by |
1272 |
regular first-class mail, to the address
shown on the statutory |
1273 |
notice of presuit arbitration. The
postmarked date on the |
1274 |
envelope of the response shall constitute
the date the response |
1275 |
was served. |
1276 |
(b) The
parties shall share the costs of presuit |
1277 |
arbitration equally, including the fee
charged by the |
1278 |
arbitrator, if any, unless the parties agree
otherwise, and the |
1279 |
arbitrator may require advance payment of
his or her reasonable |
1280 |
fees and costs. Each party shall be
responsible for all of their |
1281 |
own attorney's fees if a party chooses to be
represented by an |
1282 |
attorney for the arbitration proceedings. |
1283 |
(c)1. The
party responding to the aggrieved party must |
1284 |
sign the agreement to arbitrate included in
the notice of |
1285 |
presuit arbitration and clearly indicate the
name of the |
1286 |
arbitrator who is acceptable of those
arbitrators listed by the |
1287 |
aggrieved party. The responding party must
provide a list of at |
1288 |
least three dates and times in which the
responding party is |
1289 |
available to participate in the arbitration
conference within 90 |
1290 |
days after the date the responding party was
served with the |
1291 |
statutory notice of presuit arbitration. |
1292 |
2. The
arbitrator must schedule the arbitration conference |
1293 |
at a mutually convenient time and place, but
if the responding |
1294 |
party does not provide a list of available
dates and times, the |
1295 |
arbitrator is authorized to schedule an
arbitration conference |
1296 |
without taking the responding party's
schedule and convenience |
1297 |
into consideration. Within 10 days after the
designation of the |
1298 |
arbitrator, the arbitrator shall notify the
parties in writing |
1299 |
of the date, time, and place of the
arbitration conference. |
1300 |
3. The
arbitration conference must be held on the |
1301 |
scheduled date and may be rescheduled if
approved by the |
1302 |
arbitrator. However, in no event shall the
arbitration hearing |
1303 |
be later than 90 days following the notice
of presuit |
1304 |
arbitration was first served, unless all
parties mutually agree |
1305 |
in writing otherwise. If the arbitration
hearing is not |
1306 |
completed within the required time limits,
the arbitrator may |
1307 |
issue an arbitration award unless the time
for the hearing is |
1308 |
extended as provided herein. If the
responding party fails to |
1309 |
respond within 20 days after the date of
statutory notice of |
1310 |
presuit arbitration, fails to agree to at
least one of the |
1311 |
arbitrators that have been listed by the
aggrieved party in the |
1312 |
presuit notice of arbitration, fails to pay
or prepay to the |
1313 |
arbitrator one-half of the costs involved,
or fails to appear |
1314 |
and participate at the scheduled
arbitration, the aggrieved |
1315 |
party is authorized to proceed with a
request that the |
1316 |
arbitrator issue an arbitration award. |
1317 |
(d)1. Failure
of any party to respond to the statutory |
1318 |
notice of presuit arbitration within 20
days, failure to either |
1319 |
select one of the five arbitrators listed by
the aggrieved |
1320 |
party, failure to provide a listing of dates
and times in which |
1321 |
the responding party is available to
participate in the |
1322 |
arbitration conference within 90 days after
the date of the |
1323 |
responding party being served with the
statutory notice of |
1324 |
presuit arbitration, failure to make payment
of fees and costs |
1325 |
as required within the time established by
the arbitrator, or |
1326 |
the failure to appear for an arbitration
conference without the |
1327 |
approval of the arbitrator, shall entitle
the other party to |
1328 |
request the arbitrator to enter an
arbitration award, including |
1329 |
an award of the reasonable costs and
attorney's fees associated |
1330 |
with the arbitration. |
1331 |
2. Persons
who fail or refuse to participate in the entire |
1332 |
arbitration process may not recover
attorney's fees and costs in |
1333 |
any subsequent litigation proceeding
relating to the same |
1334 |
dispute involving the same parties. |
1335 |
(3)(a) In
an arbitration proceeding, the arbitrator may |
1336 |
not consider any unsuccessful mediation of
the dispute. |
1337 |
(b) An
arbitrator in a proceeding initiated pursuant to |
1338 |
the provisions of this part may shorten the
time for discovery |
1339 |
or otherwise limit discovery in a manner
consistent with the |
1340 |
policy goals of this part to reduce the time
and expense of |
1341 |
litigating homeowners' association disputes
initiated pursuant |
1342 |
to this chapter and promoting an expeditious
alternative dispute |
1343 |
resolution procedure for parties to such
actions. |
1344 |
(4) At
the request of any party to the arbitration, the |
1345 |
arbitrator may issue subpoenas for the
attendance of witnesses |
1346 |
and the production of books, records,
documents, and other |
1347 |
evidence, and any party on whose behalf a
subpoena is issued may |
1348 |
apply to the court for orders compelling
such attendance and |
1349 |
production. Subpoenas shall be served and
are enforceable in the |
1350 |
manner provided by the Florida Rules of
Civil Procedure. |
1351 |
Discovery may, at the discretion of the
arbitrator, be permitted |
1352 |
in the manner provided by the Florida Rules
of Civil Procedure. |
1353 |
(5) The
final arbitration award shall be sent to the |
1354 |
parties in writing no later than 30 days
after the date of the |
1355 |
arbitration hearing, absent extraordinary
circumstances |
1356 |
necessitating a later filing the reasons for
which shall be |
1357 |
stated in the final award if filed more than
30 days after the |
1358 |
date of the final session of the arbitration
conference. An |
1359 |
agreed arbitration award is final in those
disputes in which the |
1360 |
parties have mutually agreed to be bound. An
arbitration award |
1361 |
decided by the arbitrator is final unless a
lawsuit seeking a |
1362 |
trial de novo is filed in a court of
competent jurisdiction |
1363 |
within 30 days after the date of the
arbitration award. The |
1364 |
right to file for a trial de novo entitles
the parties to file a |
1365 |
complaint in the appropriate trial court for
a judicial |
1366 |
resolution of the dispute. The prevailing
party in an |
1367 |
arbitration proceeding shall be awarded the
costs of the |
1368 |
arbitration and reasonable attorney's fees
in an amount |
1369 |
determined by the arbitrator. |
1370 |
(6) The
party filing a motion for a trial de novo shall be |
1371 |
assessed the other party's arbitration
costs, court costs, and |
1372 |
other reasonable costs, including attorney's
fees, investigation |
1373 |
expenses, and expenses for expert or other
testimony or evidence |
1374 |
incurred after the arbitration hearing if
the judgment upon the |
1375 |
trial de novo is not more favorable than the
final arbitration |
1376 |
award. |
1377 |
720.508 Rules
of procedure.-- |
1378 |
(1) Presuit
mediation and presuit arbitration proceedings |
1379 |
under this part must be conducted in
accordance with the |
1380 |
applicable Florida Rules of Civil Procedure
and rules governing |
1381 |
mediations and arbitrations under chapter
44, except this part |
1382 |
shall be controlling to the extent of any
conflict with other |
1383 |
applicable rules or statutes. The arbitrator
can shorten any |
1384 |
applicable time period and otherwise limit
the scope of |
1385 |
discovery on request of the parties or
within the discretion of |
1386 |
the arbitrator exercised consistent with the
purpose and |
1387 |
objective of reducing the expense and
expeditiously concluding |
1388 |
proceedings under this part. |
1389 |
(2) Presuit
mediation proceedings under s. 720.505 are |
1390 |
privileged and confidential to the same
extent as court-ordered |
1391 |
mediation under chapter 44. An arbitrator or
judge may not |
1392 |
consider any information or evidence arising
from the presuit |
1393 |
mediation proceeding except in a proceeding
to impose sanctions |
1394 |
for failure to attend a presuit mediation
session or to enforce |
1395 |
a mediated settlement agreement. |
1396 |
(3) Persons
who are not parties to the dispute may not |
1397 |
attend the presuit mediation conference
without consent of all |
1398 |
parties, with the exception of counsel for
the parties and a |
1399 |
corporate representative designated by the
association. Presuit |
1400 |
mediations under this part are not a board
meeting for purposes |
1401 |
of notice and participation set forth in
this chapter. |
1402 |
(4) Attendance
at a mediation conference by the board of |
1403 |
directors shall not require notice or
participation by nonboard |
1404 |
members as otherwise required by this
chapter for meetings of |
1405 |
the board. |
1406 |
(5) Settlement
agreements resulting from a mediation or |
1407 |
arbitration proceeding do not have
precedential value in |
1408 |
proceedings involving parties other than
those participating in |
1409 |
the mediation or arbitration. |
1410 |
(6) Arbitration
awards by an arbitrator shall have |
1411 |
precedential value in other proceedings
involving the same |
1412 |
association or with respect to the same
parcel owner. |
1413 |
720.509 Mediators
and arbitrators; qualifications and |
1414 |
registration.--A person is authorized to
conduct mediation or |
1415 |
arbitration under this part if he or she has
been certified as a |
1416 |
circuit court civil mediator pursuant to the
requirements |
1417 |
adopted pursuant to s. 44.106, is a member
in good standing with |
1418 |
The Florida Bar, and otherwise meets all
other requirements |
1419 |
imposed by chapter 44. |
1420 |
720.510 Enforcement
of mediation settlement agreement or |
1421 |
arbitration award.-- |
1422 |
(1) A
mediation settlement agreement may be enforced |
1423 |
through the county or circuit court, as
applicable, and any |
1424 |
costs and attorney's fees incurred in the
enforcement of a |
1425 |
settlement agreement reached at mediation
shall be awarded to |
1426 |
the prevailing party in any enforcement
action. |
1427 |
(2) Any
party to an arbitration proceeding may enforce an |
1428 |
arbitration award by filing a petition in a
court of competent |
1429 |
jurisdiction in which the homeowners'
association is located. |
1430 |
The prevailing party in such proceeding
shall be awarded |
1431 |
reasonable attorney's fees and costs
incurred in such |
1432 |
proceeding. |
1433 |
(3) If
a complaint is filed seeking a trial de novo, the |
1434 |
arbitration award shall be stayed and a
petition to enforce the |
1435 |
award may not be granted. Such award,
however, shall be |
1436 |
admissible in the court proceeding seeking a
trial de novo. |
1437 |
Section 13. The
Department of Health shall apply for and |
1438 |
implement, if awarded, a federal grant for
swimming pool and spa |
1439 |
safety standards education and enforcement
under the State |
1440 |
Swimming Pool Safety Grant Program as
established in 15 U.S.C. |
1441 |
s. 8004. To ensure the state's eligibility
for the grant award, |
1442 |
the Department of Health, in coordination
with the Department of |
1443 |
Community Affairs and the Florida Building
Commission, shall |
1444 |
assess the Florida Statutes and the Florida
Building Code to |
1445 |
determine if additional changes are
necessary to ensure |
1446 |
compliance with federal standards regarding
swimming pool and |
1447 |
spa safety. The Department of Health shall
provide the |
1448 |
assessment to the Legislature by January 1,
2009. |
1449 |
Section 14. Except
as otherwise expressly provided in this |
1450 |
act, this act shall take effect July 1, 2008. |