Florida Senate - 2009 SB 998
By Senator Ring
32-00405A-09 2009998__
1 A bill to be entitled
2 An act relating to condominium and homeowners'
3 associations; amending s. 718.110, F.S.; limiting the
4 application of certain amendments to the declaration
5 of condominium to certain unit owners; amending s.
6 718.111, F.S.; providing that a homeowners'
7 association may satisfy its obligation to provide unit
8 owners access to the association's official records by
9 making such records available by specified means;
10 providing that certain records shall not be accessible
11 to unit owners; amending s. 718.112, F.S.; deleting a
12 requirement that each unit owner eligible to vote in
13 an election of board members submit a form certifying
14 certain information within a specified period before
15 such election; requiring that each newly elected board
16 member certify certain information in writing within a
17 specified period after being elected; providing that
18 failure to timely file such certification disqualifies
19 the director from serving on the board; requiring that
20 the secretary of the association retain such
21 certification for a specified period; providing that
22 failure to have such certification on file does not
23 affect the validity of any association action;
24 amending s. 718.113, F.S.; authorizing the board to
25 install code-compliant impact glass under certain
26 conditions; amending s. 718.116, F.S.; further
27 limiting the application of certain limitations to the
28 liability of a first mortgagee, its successor, or
29 assignee acquiring title to a unit by foreclosure or
30 deed in lieu of foreclosure for certain unpaid
31 assessments; clarifying the definition of “successor
32 or assignee”; limiting the amount of costs to a unit
33 owner resulting from certain collection efforts by an
34 association under certain conditions; providing an
35 exception; providing for the collection of transfer
36 fees; amending s. 718.303, F.S.; authorizing an
37 association to suspend the right of a unit owner or a
38 unit's occupant, licensee, or invitee to use certain
39 common elements or association property; excluding
40 certain common elements and property from such
41 authorization; authorizing the association to levy
42 fines for certain activities; requiring that
43 reasonable notice and opportunity for a hearing be
44 provided before an association levies such fines;
45 granting certain powers to the committee before which
46 hearings are held; providing exceptions to notice and
47 hearing requirements; authorizing an association to
48 suspend the voting rights of a member due to
49 nonpayment of assessments, fines, or other charges
50 delinquent for a specified period under certain
51 circumstances; creating s. 720.3076, F.S.; authorizing
52 the amendment of certain governing documents of
53 certain associations if such amendment is approved by
54 a specified portion of parcels; providing an
55 exception; providing that a governing document may not
56 require that amendments be approved by more than a
57 specified percentage of parcel owners; providing that
58 nonmaterial errors or omissions in the amendment
59 process do not invalidate an otherwise properly
60 adopted amendment; providing that an amendment to a
61 governing document is effective when properly recorded
62 in the public records of the county in which the
63 declaration is recorded; providing that an amendment
64 to the articles of the association becomes effective
65 when properly filed with the state; providing
66 legislative findings and intent; amending s. 720.3085,
67 F.S.; limiting the amount of costs to a unit owner
68 resulting from certain collection efforts by an
69 association under certain conditions; providing
70 exceptions; further limiting the application of
71 certain limitations to the liability of a first
72 mortgagee, its successor, or assignee acquiring title
73 to a unit by foreclosure or deed in lieu of
74 foreclosure for certain unpaid assessments; amending
75 s. 720.30851, F.S.; inserting a cross-reference to
76 clarify the manner of collection of a refund of
77 certain fees; amending s. 720.303, F.S.; specifying
78 actions constituting compliance with provisions of
79 state law regarding inspection and copying of official
80 records of an association; providing that any official
81 record of a homeowners' association requested by an
82 owner shall be deemed provided under certain
83 conditions; providing an effective date.
84
85 Be It Enacted by the Legislature of the State of Florida:
86
87 Section 1. Subsection (13) of section 718.110, Florida
88 Statutes, is amended to read:
89 718.110 Amendment of declaration; correction of error or
90 omission in declaration by circuit court.—
91 (13) Any amendment prohibiting restricting unit owners from
92 renting their units or altering the number of times unit owners
93 are entitled to rent their units during a specified period
94 owners' rights relating to the rental of units applies only to
95 unit owners who consent to the amendment and unit owners who
96 acquire title to purchase their units after the effective date
97 of that amendment.
98 Section 2. Paragraphs (b) and (c) of subsection (12) of
99 section 718.111, Florida Statutes, are amended to read:
100 718.111 The association.—
101 (12) OFFICIAL RECORDS.—
102 (b) The official records of the association shall be
103 maintained within the state for at least 7 years. The records of
104 the association shall be made available to a unit owner within
105 45 miles of the condominium property or within the county in
106 which the condominium property is located within 5 working days
107 after receipt of written request by the board or its designee.
108 However, such distance requirement does not apply to an
109 association governing a timeshare condominium. This paragraph
110 may be complied with by having a copy of the official records of
111 the association available for inspection or copying on the
112 condominium property or association property, or the association
113 may offer the option of making the records of the association
114 available to a unit owner either electronically via the Internet
115 or by allowing the records to be viewed in electronic format on
116 a computer screen or website and printed by the unit owner upon
117 request.
118 (c) The official records of the association are open to
119 inspection by any association member or the authorized
120 representative of such member at all reasonable times. The right
121 to inspect the records includes the right to make or obtain
122 copies, at the reasonable expense, if any, of the association
123 member. The association may adopt reasonable rules regarding the
124 frequency, time, location, notice, and manner of record
125 inspections and copying. The failure of an association to
126 provide the records within 10 working days after receipt of a
127 written request shall create a rebuttable presumption that the
128 association willfully failed to comply with this paragraph. A
129 unit owner who is denied access to official records is entitled
130 to the actual damages or minimum damages for the association's
131 willful failure to comply with this paragraph. The minimum
132 damages shall be $50 per calendar day up to 10 days, the
133 calculation to begin on the 11th working day after receipt of
134 the written request. The failure to permit inspection of the
135 association records as provided herein entitles any person
136 prevailing in an enforcement action to recover reasonable
137 attorney's fees from the person in control of the records who,
138 directly or indirectly, knowingly denied access to the records
139 for inspection. Any person who knowingly or intentionally
140 defaces or destroys accounting records that are required by this
141 chapter, or knowingly or intentionally fails to create or
142 maintain accounting records that are required by this chapter,
143 is personally subject to a civil penalty pursuant to s.
144 718.501(1)(d). The association shall maintain an adequate number
145 of copies of the declaration, articles of incorporation, bylaws,
146 and rules, and all amendments to each of the foregoing, as well
147 as the question and answer sheet provided for in s. 718.504 and
148 year-end financial information required in this section on the
149 condominium property to ensure their availability to unit owners
150 and prospective purchasers, and may charge its actual costs for
151 preparing and furnishing these documents to those requesting the
152 same. Notwithstanding the provisions of this paragraph, the
153 following records shall not be accessible to unit owners:
154 1. Any record protected by the lawyer-client privilege as
155 described in s. 90.502; and any record protected by the work
156 product privilege, including any record prepared by an
157 association attorney or prepared at the attorney's express
158 direction; which reflects a mental impression, conclusion,
159 litigation strategy, or legal theory of the attorney or the
160 association, and which was prepared exclusively for civil or
161 criminal litigation or for adversarial administrative
162 proceedings, or which was prepared in anticipation of imminent
163 civil or criminal litigation or imminent adversarial
164 administrative proceedings until the conclusion of the
165 litigation or adversarial administrative proceedings.
166 2. Information obtained by an association in connection
167 with the approval of the lease, sale, or other transfer of a
168 unit.
169 3. Medical records of unit owners.
170 4. Social security numbers, driver's license numbers,
171 credit card numbers, e-mail addresses, and other personal
172 identifying information of any person.
173 Section 3. Paragraph (d) of subsection (2) of section
174 718.112, Florida Statutes, is amended to read:
175 718.112 Bylaws.—
176 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
177 following and, if they do not do so, shall be deemed to include
178 the following:
179 (d) Unit owner meetings.—
180 1. There shall be an annual meeting of the unit owners held
181 at the location provided in the association bylaws and, if the
182 bylaws are silent as to the location, the meeting shall be held
183 within 45 miles of the condominium property. However, such
184 distance requirement does not apply to an association governing
185 a timeshare condominium. Unless the bylaws provide otherwise, a
186 vacancy on the board caused by the expiration of a director's
187 term shall be filled by electing a new board member, and the
188 election shall be by secret ballot; however, if the number of
189 vacancies equals or exceeds the number of candidates, no
190 election is required. The terms of all members of the board
191 shall expire at the annual meeting and such board members may
192 stand for reelection unless otherwise permitted by the bylaws.
193 In the event that the bylaws permit staggered terms of no more
194 than 2 years, and upon approval of a majority of the total
195 voting interests, the association board members may serve 2-year
196 staggered terms. If no person is interested in or demonstrates
197 an intention to run for the position of a board member whose
198 term has expired according to the provisions of this
199 subparagraph, such board member whose term has expired shall be
200 automatically reappointed to the board of administration and
201 need not stand for reelection. In a condominium association of
202 more than 10 units, coowners of a unit may not serve as members
203 of the board of directors at the same time. Any unit owner
204 desiring to be a candidate for board membership shall comply
205 with subparagraph 3. A person who has been suspended or removed
206 by the division under this chapter, or who is delinquent in the
207 payment of any fee or assessment as provided in paragraph (n),
208 is not eligible for board membership. A person who has been
209 convicted of any felony in this state or in a United States
210 District or Territorial Court, or who has been convicted of any
211 offense in another jurisdiction that would be considered a
212 felony if committed in this state, is not eligible for board
213 membership unless such felon's civil rights have been restored
214 for a period of no less than 5 years as of the date on which
215 such person seeks election to the board. The validity of an
216 action by the board is not affected if it is later determined
217 that a member of the board is ineligible for board membership
218 due to having been convicted of a felony.
219 2. The bylaws shall provide the method of calling meetings
220 of unit owners, including annual meetings. Written notice, which
221 notice must include an agenda, shall be mailed, hand delivered,
222 or electronically transmitted to each unit owner at least 14
223 days prior to the annual meeting and shall be posted in a
224 conspicuous place on the condominium property at least 14
225 continuous days preceding the annual meeting. Upon notice to the
226 unit owners, the board shall by duly adopted rule designate a
227 specific location on the condominium property or association
228 property upon which all notices of unit owner meetings shall be
229 posted; however, if there is no condominium property or
230 association property upon which notices can be posted, this
231 requirement does not apply. In lieu of or in addition to the
232 physical posting of notice of any meeting of the unit owners on
233 the condominium property, the association may, by reasonable
234 rule, adopt a procedure for conspicuously posting and repeatedly
235 broadcasting the notice and the agenda on a closed-circuit cable
236 television system serving the condominium association. However,
237 if broadcast notice is used in lieu of a notice posted
238 physically on the condominium property, the notice and agenda
239 must be broadcast at least four times every broadcast hour of
240 each day that a posted notice is otherwise required under this
241 section. When broadcast notice is provided, the notice and
242 agenda must be broadcast in a manner and for a sufficient
243 continuous length of time so as to allow an average reader to
244 observe the notice and read and comprehend the entire content of
245 the notice and the agenda. Unless a unit owner waives in writing
246 the right to receive notice of the annual meeting, such notice
247 shall be hand delivered, mailed, or electronically transmitted
248 to each unit owner. Notice for meetings and notice for all other
249 purposes shall be mailed to each unit owner at the address last
250 furnished to the association by the unit owner, or hand
251 delivered to each unit owner. However, if a unit is owned by
252 more than one person, the association shall provide notice, for
253 meetings and all other purposes, to that one address which the
254 developer initially identifies for that purpose and thereafter
255 as one or more of the owners of the unit shall so advise the
256 association in writing, or if no address is given or the owners
257 of the unit do not agree, to the address provided on the deed of
258 record. An officer of the association, or the manager or other
259 person providing notice of the association meeting, shall
260 provide an affidavit or United States Postal Service certificate
261 of mailing, to be included in the official records of the
262 association affirming that the notice was mailed or hand
263 delivered, in accordance with this provision.
264 3. The members of the board shall be elected by written
265 ballot or voting machine. Proxies shall in no event be used in
266 electing the board, either in general elections or elections to
267 fill vacancies caused by recall, resignation, or otherwise,
268 unless otherwise provided in this chapter. Not less than 60 days
269 before a scheduled election, the association shall mail,
270 deliver, or electronically transmit, whether by separate
271 association mailing or included in another association mailing,
272 delivery, or transmission, including regularly published
273 newsletters, to each unit owner entitled to a vote, a first
274 notice of the date of the election along with a certification
275 form provided by the division attesting that he or she has read
276 and understands, to the best of his or her ability, the
277 governing documents of the association and the provisions of
278 this chapter and any applicable rules. Any unit owner or other
279 eligible person desiring to be a candidate for the board must
280 give written notice to the association not less than 40 days
281 before a scheduled election. Together with the written notice
282 and agenda as set forth in subparagraph 2., the association
283 shall mail, deliver, or electronically transmit a second notice
284 of the election to all unit owners entitled to vote therein,
285 together with a ballot which shall list all candidates. Upon
286 request of a candidate, the association shall include an
287 information sheet, no larger than 8 1/2 inches by 11 inches,
288 which must be furnished by the candidate not less than 35 days
289 before the election, along with the signed certification form
290 provided for in this subparagraph, to be included with the
291 mailing, delivery, or transmission of the ballot, with the costs
292 of mailing, delivery, or electronic transmission and copying to
293 be borne by the association. The association is not liable for
294 the contents of the information sheets prepared by the
295 candidates. In order to reduce costs, the association may print
296 or duplicate the information sheets on both sides of the paper.
297 The division shall by rule establish voting procedures
298 consistent with the provisions contained herein, including rules
299 establishing procedures for giving notice by electronic
300 transmission and rules providing for the secrecy of ballots.
301 Elections shall be decided by a plurality of those ballots cast.
302 There shall be no quorum requirement; however, at least 20
303 percent of the eligible voters must cast a ballot in order to
304 have a valid election of members of the board. No unit owner
305 shall permit any other person to vote his or her ballot, and any
306 such ballots improperly cast shall be deemed invalid, provided
307 any unit owner who violates this provision may be fined by the
308 association in accordance with s. 718.303. A unit owner who
309 needs assistance in casting the ballot for the reasons stated in
310 s. 101.051 may obtain assistance in casting the ballot. The
311 regular election shall occur on the date of the annual meeting.
312 The provisions of this subparagraph do shall not apply to
313 timeshare condominium associations. Notwithstanding the
314 provisions of this subparagraph, an election is not required
315 unless more candidates file notices of intent to run or are
316 nominated than board vacancies exist. Within 30 days after being
317 elected to the board of directors, a director shall provide
318 written certification to the secretary of the association, using
319 the form adopted by the division, that he or she has read the
320 association's declaration of condominium, articles of
321 incorporation, bylaws, and current written policies, that he or
322 she will work to uphold such documents and policies to the best
323 of his or her ability, and that he or she will faithfully
324 discharge his or her fiduciary responsibility to the
325 association's members. Failure to timely file the statement
326 disqualifies the director from serving on the association's
327 board of directors. The association shall retain a director's
328 certification for inspection by the members for 7 years after
329 the date of a director's election. Failure to have such
330 certification on file does not affect the validity of any
331 association action.
332 4. Any approval by unit owners called for by this chapter
333 or the applicable declaration or bylaws, including, but not
334 limited to, the approval requirement in s. 718.111(8), shall be
335 made at a duly noticed meeting of unit owners and shall be
336 subject to all requirements of this chapter or the applicable
337 condominium documents relating to unit owner decisionmaking,
338 except that unit owners may take action by written agreement,
339 without meetings, on matters for which action by written
340 agreement without meetings is expressly allowed by the
341 applicable bylaws or declaration or any statute that provides
342 for such action.
343 5. Unit owners may waive notice of specific meetings if
344 allowed by the applicable bylaws or declaration or any statute.
345 If authorized by the bylaws, notice of meetings of the board of
346 administration, unit owner meetings, except unit owner meetings
347 called to recall board members under paragraph (j), and
348 committee meetings may be given by electronic transmission to
349 unit owners who consent to receive notice by electronic
350 transmission.
351 6. Unit owners shall have the right to participate in
352 meetings of unit owners with reference to all designated agenda
353 items. However, the association may adopt reasonable rules
354 governing the frequency, duration, and manner of unit owner
355 participation.
356 7. Any unit owner may tape record or videotape a meeting of
357 the unit owners subject to reasonable rules adopted by the
358 division.
359 8. Unless otherwise provided in the bylaws, any vacancy
360 occurring on the board before the expiration of a term may be
361 filled by the affirmative vote of the majority of the remaining
362 directors, even if the remaining directors constitute less than
363 a quorum, or by the sole remaining director. In the alternative,
364 a board may hold an election to fill the vacancy, in which case
365 the election procedures must conform to the requirements of
366 subparagraph 3. unless the association governs 10 units or less
367 and has opted out of the statutory election process, in which
368 case the bylaws of the association control. Unless otherwise
369 provided in the bylaws, a board member appointed or elected
370 under this section shall fill the vacancy for the unexpired term
371 of the seat being filled. Filling vacancies created by recall is
372 governed by paragraph (j) and rules adopted by the division.
373 Notwithstanding subparagraphs (b)2. and (d)3., an association of
374 10 or fewer units may, by the affirmative vote of a majority of
375 the total voting interests, provide for different voting and
376 election procedures in its bylaws, which vote may be by a proxy
377 specifically delineating the different voting and election
378 procedures. The different voting and election procedures may
379 provide for elections to be conducted by limited or general
380 proxy.
381 Section 4. Paragraph (a) of subsection (5) of section
382 718.113, Florida Statutes, is amended, present paragraphs (b),
383 (c), and (d) of that subsection are redesignated as paragraphs
384 (c), (d), and (e), respectively, and a new paragraph (b) is
385 added to that subsection, to read:
386 718.113 Maintenance; limitation upon improvement; display
387 of flag; hurricane shutters; display of religious decorations.—
388 (5) Each board of administration shall adopt hurricane
389 shutter specifications for each building within each condominium
390 operated by the association which shall include color, style,
391 and other factors deemed relevant by the board. All
392 specifications adopted by the board shall comply with the
393 applicable building code.
394 (a) The board may, subject to the provisions of s.
395 718.3026, and the approval of a majority of voting interests of
396 the condominium, install hurricane shutters or hurricane
397 protection that complies with or exceeds the applicable building
398 code, or both, except that a vote of the owners is not required
399 if the maintenance, repair, and replacement of hurricane
400 shutters or other forms of hurricane protection are the
401 responsibility of the association pursuant to the declaration of
402 condominium. However, where hurricane protection or laminated
403 glass or window film architecturally designed to function as
404 hurricane protection which complies with or exceeds the current
405 applicable building code has been previously installed, the
406 board may not install hurricane shutters or other hurricane
407 protection, except for code-compliant impact glass.
408 (b) Code-compliant impact glass may be installed by the
409 association as hurricane protection if the area where the code
410 compliant impact glass is to be installed is an area that is the
411 responsibility of the association to maintain or repair pursuant
412 to the declaration of condominium as originally recorded or as
413 amended in accordance with the procedures in the declaration.
414 Section 5. Paragraphs (b) and (g) of subsection (1),
415 paragraph (b) of subsection (5), paragraph (b) of subsection
416 (6), and paragraph (c) of subsection (8) of section 718.116,
417 Florida Statutes, are amended to read:
418 718.116 Assessments; liability; lien and priority;
419 interest; collection.—
420 (1)
421 (b) The liability of a first mortgagee or its successor or
422 assignees who acquire title to a unit by foreclosure or by
423 recorded deed in lieu of foreclosure for the unpaid assessments
424 that became due prior to the mortgagee's acquisition of title is
425 limited to the lesser of:
426 1. The unit's unpaid common expenses and regular periodic
427 assessments which accrued or came due during the 6 months
428 immediately preceding the acquisition of title and for which
429 payment in full has not been received by the association; or
430 2. One percent of the original mortgage debt. The
431 provisions of this paragraph apply only if the first mortgagee
432 joined the association as a defendant in the foreclosure action
433 and the first mortgagee acquires title to the unit within 1 year
434 following the date on which the foreclosure action is filed,
435 regardless of the date on which the foreclosure action was
436 initiated. If the unit is owner-occupied, the 1-year time limit
437 does not apply. Joinder of the association is not required if,
438 on the date the complaint is filed, the association was
439 dissolved or did not maintain an office or agent for service of
440 process at a location which was known to or reasonably
441 discoverable by the mortgagee. Notwithstanding any provision to
442 the contrary, the 1-year period established in this subparagraph
443 shall automatically be extended for any length of time during
444 which the first mortgagee is prevented from filing or continuing
445 a foreclosure due to a bankruptcy petition filed by the owner
446 under chapter 7 or chapter 13 of the Bankruptcy Code through
447 which the mortgagee diligently pursues stay relief.
448 (g) For purposes of this subsection, the term “successor or
449 assignee” as used with respect to a first mortgagee includes
450 only a subsequent holder of the first mortgage who acquires the
451 first mortgage before any action to foreclose the first mortgage
452 is initiated or any recorded deed in lieu of foreclosure is
453 given to the successor or assignee.
454 (5)
455 (b) To be valid, a claim of lien must state the description
456 of the condominium parcel, the name of the record owner, the
457 name and address of the association, the amount due, and the due
458 dates. It must be executed and acknowledged by an officer or
459 authorized agent of the association. No such lien shall be
460 effective longer than 1 year after the claim of lien was
461 recorded unless, within that time, an action to enforce the lien
462 is commenced. The 1-year period shall automatically be extended
463 for any length of time during which the association is prevented
464 from filing a foreclosure action by an automatic stay resulting
465 from a bankruptcy petition filed by the parcel owner or any
466 other person claiming an interest in the parcel. The claim of
467 lien shall secure all unpaid assessments which are due and which
468 may accrue subsequent to the recording of the claim of lien and
469 prior to the entry of a certificate of title, as well as
470 interest and all reasonable costs and attorney's fees incurred
471 by the association incident to the collection process. Costs to
472 the unit owner secured by the association’s claim of lien with
473 regard to collection letters or any other collection efforts by
474 management companies or licensed managers may not exceed $50
475 unless the management company is preparing any letter or
476 certificate required by this chapter and charging a reasonable
477 fee related to the preparation of such a letter or certificate.
478 Upon payment in full, the person making the payment is entitled
479 to a satisfaction of the lien.
480 After notice of contest of lien has been recorded, the clerk of
481 the circuit court shall mail a copy of the recorded notice to
482 the association by certified mail, return receipt requested, at
483 the address shown in the claim of lien or most recent amendment
484 to it and shall certify to the service on the face of the
485 notice. Service is complete upon mailing. After service, the
486 association has 90 days in which to file an action to enforce
487 the lien; and, if the action is not filed within the 90-day
488 period, the lien is void. However, the 90-day period shall be
489 extended for any length of time that the association is
490 prevented from filing its action because of an automatic stay
491 resulting from the filing of a bankruptcy petition by the unit
492 owner or by any other person claiming an interest in the parcel.
493 (6)
494 (b) No foreclosure judgment may be entered until at least
495 30 days after the association gives written notice to the unit
496 owner of its intention to foreclose its lien to collect the
497 unpaid assessments. If this notice is not given at least 30 days
498 before the foreclosure action is filed, and if the unpaid
499 assessments, including those coming due after the claim of lien
500 is recorded, are paid before the entry of a final judgment of
501 foreclosure, the association shall not recover attorney's fees
502 or costs. The notice must be given by delivery of a copy of it
503 to the unit owner or by certified or registered mail, return
504 receipt requested, addressed to the unit owner at his or her
505 last known address; and, upon such mailing, the notice shall be
506 deemed to have been given, and the court shall proceed with the
507 foreclosure action and may award attorney's fees and costs as
508 permitted by law. The notice requirements of this subsection are
509 satisfied if the unit owner records a notice of contest of lien
510 as provided in subsection (5). The notice requirements contained
511 in of this subsection and s. 718.121(4) do not apply if an
512 action to foreclose a mortgage on the condominium unit is
513 pending before any court; if the rights of the association would
514 be affected by such foreclosure; and if actual, constructive, or
515 substitute service of process has been made on the unit owner.
516 (8) Within 15 days after receiving a written request
517 therefor from a unit owner or his or her designee, or a unit
518 mortgagee or his or her designee, the association shall provide
519 a certificate signed by an officer or agent of the association
520 stating all assessments and other moneys owed to the association
521 by the unit owner with respect to the condominium parcel.
522 (c) Notwithstanding any limitation on transfer fees
523 contained in s. 718.112(2)(i), the association or its authorized
524 agent may charge a reasonable fee for the preparation of the
525 certificate. The amount of the fee must be included on the
526 certificate. The fee may be collected in the same manner as
527 provided in this section for the collection of unpaid
528 assessments.
529 Section 6. Section 718.303, Florida Statutes, is amended to
530 read:
531 718.303 Obligations of owners and occupants; waiver; levy
532 of fines, suspension of use or voting rights, and other
533 nonexclusive remedies in law or equity fine against unit by an
534 association.—
535 (1) Each unit owner, each tenant and other invitee, and
536 each association shall be governed by, and shall comply with the
537 provisions of, this chapter, the declaration, the documents
538 creating the association, and the association bylaws and the
539 provisions thereof shall be deemed expressly incorporated into
540 any lease of a unit. Actions for damages or for injunctive
541 relief, or both, for failure to comply with these provisions may
542 be brought by the association or by a unit owner against:
543 (a) The association.
544 (b) A unit owner.
545 (c) Directors designated by the developer, for actions
546 taken by them prior to the time control of the association is
547 assumed by unit owners other than the developer.
548 (d) Any director who willfully and knowingly fails to
549 comply with these provisions.
550 (e) Any tenant leasing a unit, and any other invitee
551 occupying a unit.
552 The prevailing party in any such action or in any action in
553 which the purchaser claims a right of voidability based upon
554 contractual provisions as required in s. 718.503(1)(a) is
555 entitled to recover reasonable attorney's fees. A unit owner
556 prevailing in an action between the association and the unit
557 owner under this section, in addition to recovering his or her
558 reasonable attorney's fees, may recover additional amounts as
559 determined by the court to be necessary to reimburse the unit
560 owner for his or her share of assessments levied by the
561 association to fund its expenses of the litigation. This relief
562 does not exclude other remedies provided by law. Actions arising
563 under this subsection shall not be deemed to be actions for
564 specific performance.
565 (2) A provision of this chapter may not be waived if the
566 waiver would adversely affect the rights of a unit owner or the
567 purpose of the provision, except that unit owners or members of
568 a board of administration may waive notice of specific meetings
569 in writing if provided by the bylaws. Any instruction given in
570 writing by a unit owner or purchaser to an escrow agent may be
571 relied upon by an escrow agent, whether or not such instruction
572 and the payment of funds thereunder might constitute a waiver of
573 any provision of this chapter.
574 (3) If the declaration or bylaws so provide, the
575 association may suspend, for a reasonable period of time, the
576 right of a unit owner or a unit’s occupant, licensee, or
577 invitee, to use common elements, common facilities, or any other
578 association property. This subsection does not apply to limited
579 common elements intended to be used only by that unit, common
580 elements that must be used to access the unit, utility services
581 provided to the unit, parking spaces, or elevators. The
582 association may also levy reasonable fines against a unit for
583 the failure of the owner of the unit, or its occupant, licensee,
584 or invitee, to comply with any provision of the declaration, the
585 association bylaws, or reasonable rules of the association. A No
586 fine does not will become a lien against a unit. A No fine may
587 not exceed $100 per violation. However, a fine may be levied on
588 the basis of each day of a continuing violation, with a single
589 notice and opportunity for hearing, except provided that no such
590 fine shall in the aggregate may not exceed $1,000. A No fine may
591 not be levied and a suspension may not be imposed unless the
592 association first gives except after giving reasonable notice
593 and opportunity for a hearing to the unit owner and, if
594 applicable, its occupant, licensee, or invitee. The hearing must
595 be held before a committee of other unit owners who are neither
596 board members nor persons residing in a board member's
597 household. If the committee does not agree with the fine or
598 suspension, the fine or suspension may not be levied or imposed.
599 The provisions of this subsection do not apply to unoccupied
600 units.
601 (4) The notice and hearing requirements of subsection (3)
602 do not apply to the imposition of suspensions or fines against
603 any unit owner or a unit’s occupant, licensee, or invitee
604 because of the failure to pay any amounts due the association.
605 If such a fine or suspension is imposed, the association must
606 levy the fine or impose a reasonable suspension at a properly
607 noticed board meeting and notify the unit owner and, if
608 applicable, the owner's occupant, licensee, or invitee by mail
609 or hand delivery after the imposition of such fine or
610 suspension.
611 (5) If the declaration or bylaws so provide, an association
612 may also suspend the voting rights of a member due to nonpayment
613 of assessments, fines, or other charges payable to the
614 association which are delinquent in excess of 90 days.
615 Section 7. Section 720.3076, Florida Statutes, is created
616 to read:
617 720.3076 Amendment of governing documents.—
618 (1)(a) For associations no longer controlled by the
619 developer and turned over to the parcel owners pursuant to s.
620 720.307, the governing documents may be amended by a vote of
621 two-thirds of all parcels unless provided otherwise in the
622 documents as recorded. A governing document may not require that
623 amendments be approved by more than 80 percent of the parcel
624 owners.
625 (b) Nonmaterial errors or omissions in the amendment
626 process do not invalidate an otherwise properly adopted
627 amendment.
628 (2) An amendment to any governing document is effective
629 when properly recorded in the public records of the county in
630 which the declaration is recorded. If an amendment is to the
631 articles, such amendment becomes effective when properly filed
632 with the state.
633 (3)(a) The Legislature finds that the requirement of
634 mortgagee notification of or consent to amendments that do not
635 adversely affect the priority of the mortgagee's lien rights or
636 the right to foreclose its lien or otherwise materially
637 adversely affect the rights and interests of the mortgagee not
638 otherwise authorized by this chapter are unenforceable in the
639 courts of this state as a matter of public policy. The
640 Legislature also finds that such requirements are an
641 unreasonable, substantial, logistical, and financial burden on
642 the homeowners of this state and that there exists a compelling
643 state interest in enabling the members of homeowners’
644 associations to approve amendments to governing documents
645 through reasonable means.
646 (b) This subsection is intended to apply retroactively and
647 to all associations whether created on, before, or after July 1,
648 2009.
649 Section 8. Paragraph (a) of subsection (1) and paragraph
650 (c) of subsection (2) of section 720.3085, Florida Statutes, are
651 amended to read:
652 720.3085 Payment for assessments; lien claims.—
653 (1) When authorized by the governing documents, the
654 association has a lien on each parcel to secure the payment of
655 assessments and other amounts provided for by this section.
656 Except as otherwise set forth in this section, the lien is
657 effective from and shall relate back to the date on which the
658 original declaration of the community was recorded. However, as
659 to first mortgages of record, the lien is effective from and
660 after recording of a claim of lien in the public records of the
661 county in which the parcel is located. This subsection does not
662 bestow upon any lien, mortgage, or certified judgment of record
663 on July 1, 2008, including the lien for unpaid assessments
664 created in this section, a priority that, by law, the lien,
665 mortgage, or judgment did not have before July 1, 2008.
666 (a) To be valid, a claim of lien must state the description
667 of the parcel, the name of the record owner, the name and
668 address of the association, the assessment amount due, and the
669 due date. The claim of lien shall secure all unpaid assessments
670 that are due and that may accrue subsequent to the recording of
671 the claim of lien and before entry of a certificate of title, as
672 well as interest, late charges, and reasonable costs and
673 attorney's fees incurred by the association incident to the
674 collection process. Costs to the unit owner which are secured by
675 the association’s claim of lien with regard to collection
676 letters or any other collection efforts by management companies
677 or licensed managers may not exceed $50 unless the management
678 company is preparing any letter or certificate required by this
679 chapter and charging a reasonable fee related to the preparation
680 of such a letter or certificate. The person making the payment
681 is entitled to a satisfaction of the lien upon payment in full.
682 (2)
683 (c) Notwithstanding anything to the contrary contained in
684 this section, the liability of a first mortgagee, or its
685 successor or assignee as a subsequent holder of the first
686 mortgage who acquires title to a parcel by foreclosure or by
687 recorded deed in lieu of foreclosure for the unpaid assessments
688 that became due before the mortgagee's acquisition of title,
689 shall be the lesser of:
690 1. The parcel's unpaid common expenses and regular periodic
691 or special assessments that accrued or came due during the 12
692 months immediately preceding the acquisition of title and for
693 which payment in full has not been received by the association;
694 or
695 2. One percent of the original mortgage debt.
696 The limitations on first mortgagee liability provided in this
697 chapter by this paragraph apply only if the first mortgagee
698 filed suit against the parcel owner and initially joined the
699 association as a defendant in the mortgagee foreclosure action,
700 and the first mortgagee acquires title to the parcel within 1
701 year following the date on which the foreclosure action is
702 filed, regardless of the date on which the foreclosure action
703 was initiated. If the parcel is owner-occupied, the 1-year time
704 limit does not apply. Joinder of the association is not required
705 if, on the date the complaint is filed, the association was
706 dissolved or did not maintain an office or agent for service of
707 process at a location that was known to or reasonably
708 discoverable by the mortgagee. Notwithstanding any provision to
709 the contrary, the 1-year period set forth in this subsection
710 shall automatically be extended for any length of time during
711 which the first mortgagee is prevented from filing or continuing
712 the foreclosure process due to the filing of a bankruptcy
713 petition by the owner pursuant to chapter 7 or chapter 13 of the
714 Bankruptcy Code through which the mortgagee diligently pursues
715 stay relief.
716 Section 9. Subsection (3) of section 720.30851, Florida
717 Statutes, is amended to read:
718 720.30851 Estoppel certificates.—Within 15 days after the
719 date on which a request for an estoppel certificate is received
720 from a parcel owner or mortgagee, or his or her designee, the
721 association shall provide a certificate signed by an officer or
722 authorized agent of the association stating all assessments and
723 other moneys owed to the association by the parcel owner or
724 mortgagee with respect to the parcel. An association may charge
725 a fee for the preparation of such certificate, and the amount of
726 such fee must be stated on the certificate.
727 (3) The authority to charge a fee for the certificate shall
728 be established by a written resolution adopted by the board or
729 provided by a written management, bookkeeping, or maintenance
730 contract and is payable upon the preparation of the certificate.
731 If the certificate is requested in conjunction with the sale or
732 mortgage of a parcel but the closing does not occur and no later
733 than 30 days after the closing date for which the certificate
734 was sought the preparer receives a written request, accompanied
735 by reasonable documentation, that the sale did not occur from a
736 payor that is not the parcel owner, the fee shall be refunded to
737 that payor within 30 days after receipt of the request. The
738 refund is the obligation of the parcel owner, and the
739 association may collect it from that owner in the same manner as
740 an assessment as provided in s. 720.3085 this section.
741 Section 10. Subsection (5) of section 720.303, Florida
742 Statutes, is amended to read:
743 720.303 Association powers and duties; meetings of board;
744 official records; budgets; financial reporting; association
745 funds; recalls.—
746 (5) INSPECTION AND COPYING OF RECORDS.—The official records
747 shall be maintained within the state and must be open to
748 inspection and available for photocopying by members or their
749 authorized agents at reasonable times and places within 10
750 business days after receipt of a written request for access.
751 This subsection may be complied with by having a copy of the
752 official records available for inspection or copying in the
753 community. If the association has a photocopy machine available
754 where the records are maintained, it must provide parcel owners
755 with copies on request during the inspection if the entire
756 request is limited to no more than 25 pages. An association may
757 comply with this subsection by having a copy of the official
758 records of the association available for inspection or copying
759 on the association property, making such records available to an
760 owner electronically via the Internet, or by allowing such
761 records to be viewed in electronic format on a website or
762 computer screen and printed by the parcel owner. Any record
763 requested by an owner shall be deemed to have been provided if
764 the association maintains a website, such records may be
765 accessed by the requesting owner on that website, and the
766 website is accessible in a library within the county in which
767 the condominium is located.
768 (a) The failure of an association to provide access to the
769 records within 10 business days after receipt of a written
770 request creates a rebuttable presumption that the association
771 willfully failed to comply with this subsection.
772 (b) A member who is denied access to official records is
773 entitled to the actual damages or minimum damages for the
774 association's willful failure to comply with this subsection.
775 The minimum damages are to be $50 per calendar day up to 10
776 days, the calculation to begin on the 11th business day after
777 receipt of the written request.
778 (c) The association may adopt reasonable written rules
779 governing the frequency, time, location, notice, records to be
780 inspected, and manner of inspections, but may not impose a
781 requirement that a parcel owner demonstrate any proper purpose
782 for the inspection, state any reason for the inspection, or
783 limit a parcel owner's right to inspect records to less than one
784 8-hour business day per month. The association may impose fees
785 to cover the costs of providing copies of the official records,
786 including, without limitation, the costs of copying. The
787 association may charge up to 50 cents per page for copies made
788 on the association's photocopier. If the association does not
789 have a photocopy machine available where the records are kept,
790 or if the records requested to be copied exceed 25 pages in
791 length, the association may have copies made by an outside
792 vendor and may charge the actual cost of copying. The
793 association shall maintain an adequate number of copies of the
794 recorded governing documents, to ensure their availability to
795 members and prospective members. Notwithstanding the provisions
796 of this paragraph, the following records shall not be accessible
797 to members or parcel owners:
798 1. Any record protected by the lawyer-client privilege as
799 described in s. 90.502 and any record protected by the work
800 product privilege, including, but not limited to, any record
801 prepared by an association attorney or prepared at the
802 attorney's express direction which reflects a mental impression,
803 conclusion, litigation strategy, or legal theory of the attorney
804 or the association and was prepared exclusively for civil or
805 criminal litigation or for adversarial administrative
806 proceedings or which was prepared in anticipation of imminent
807 civil or criminal litigation or imminent adversarial
808 administrative proceedings until the conclusion of the
809 litigation or adversarial administrative proceedings.
810 2. Information obtained by an association in connection
811 with the approval of the lease, sale, or other transfer of a
812 parcel.
813 3. Disciplinary, health, insurance, and personnel records
814 of the association's employees.
815 4. Medical records of parcel owners or community residents.
816 (d) The association or its authorized agent is not required
817 to provide a prospective purchaser or lienholder with
818 information about the residential subdivision or the association
819 other than information or documents required by this chapter to
820 be made available or disclosed. The association or its
821 authorized agent may charge a reasonable fee to the prospective
822 purchaser or lienholder or the current parcel owner or member
823 for providing good faith responses to requests for information
824 by or on behalf of a prospective purchaser or lienholder, other
825 than that required by law, if the fee does not exceed $150 plus
826 the reasonable cost of photocopying and any attorney's fees
827 incurred by the association in connection with the response.
828 Section 11. This act shall take effect October 1, 2009.