Florida Senate - 2017                          SENATOR AMENDMENT
       Bill No. CS/CS/CS/HB 735, 2nd Eng.
       
       
       
       
       
       
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                              LEGISLATIVE ACTION                        
                    Senate             .             House              
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                Floor: 1/AE/2R         .        Floor: SENA1/RC         
             05/04/2017 10:15 PM       .      05/05/2017 06:09 PM       
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       Senator Passidomo moved the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Section 702.12, Florida Statutes, is created to
    6  read:
    7         702.12 Actions in foreclosure.—
    8         (1)(a) A lienholder, in an action to foreclose a mortgage,
    9  may submit any document the defendant filed in the defendant’s
   10  bankruptcy case under penalty of perjury for use as an admission
   11  by the defendant.
   12         (b) A rebuttable presumption that the defendant has waived
   13  any defenses to the foreclosure is created if a lienholder
   14  submits documents filed in the defendant’s bankruptcy case
   15  which:
   16         1. Evidence the defendant’s intention to surrender to the
   17  lienholder the property that is the subject of the foreclosure;
   18         2. Have not been withdrawn by the defendant; and
   19         3. Show that a final order has been entered in the
   20  defendant’s bankruptcy case which discharges the defendant’s
   21  debts or confirms the defendant’s repayment plan that provides
   22  for the surrender of the property.
   23         (2) Pursuant to s. 90.203, a court shall take judicial
   24  notice of any order entered in a bankruptcy case upon the
   25  request of a lienholder.
   26         (3) This section does not preclude the defendant in a
   27  foreclosure action from raising a defense based upon the
   28  lienholder’s action or inaction subsequent to the filing of the
   29  document filed in the bankruptcy case which evidenced the
   30  defendant’s intention to surrender the mortgaged property to the
   31  lienholder.
   32         (4) This section applies to any foreclosure action filed on
   33  or after October 1, 2017.
   34         Section 2. Subsection (6) of section 125.022, Florida
   35  Statutes, is amended to read:
   36         125.022 Development permits.—
   37         (6) A county may not delegate its police power to a third
   38  party by restriction, covenant, or otherwise. The imposition by
   39  a county of a recorded or unrecorded restriction or covenant as
   40  a condition of a county’s approval or issuance of a development
   41  permit does not preclude the county from exercising its police
   42  power to later amend, release, or terminate the restriction or
   43  covenant. Any such amendment, release, or termination of the
   44  restriction or covenant must follow the procedural requirements
   45  in s. 125.66(4). This section does not prohibit a county from
   46  providing information to an applicant regarding what other
   47  state or federal permits may apply.
   48         Section 3. Subsection (6) of section 166.033, Florida
   49  Statutes, is amended to read:
   50         166.033 Development permits.—
   51         (6) A municipality may not delegate its police power to a
   52  third party by restriction, covenant, or otherwise. The
   53  imposition by a municipality of a recorded or unrecorded
   54  restriction or covenant as a condition of a municipality’s
   55  approval or issuance of a development permit does not preclude a
   56  municipality from exercising its police power to later amend,
   57  release, or terminate the restriction or covenant. Any such
   58  amendment, release, or termination of the restriction or
   59  covenant must follow the procedural requirements in s.
   60  166.041(3)(c). This section does not prohibit a municipality
   61  from providing information to an applicant regarding what other
   62  state or federal permits may apply.
   63         Section 4. Section 712.04, Florida Statutes, is amended to
   64  read:
   65         712.04 Interests extinguished by marketable record title.—
   66         (1) Subject to s. 712.03, a marketable record title is free
   67  and clear of all estates, interests, claims, covenants,
   68  restrictions, or charges, the existence of which depends upon
   69  any act, title transaction, event, zoning requirement, building
   70  or development permit, or omission that occurred before the
   71  effective date of the root of title. Except as provided in s.
   72  712.03, all such estates, interests, claims, covenants,
   73  restrictions, or charges, however denominated, whether they are
   74  or appear to be held or asserted by a person sui juris or under
   75  a disability, whether such person is within or without the
   76  state, natural or corporate, or private or governmental, are
   77  declared to be null and void. However, this chapter does not
   78  affect any right, title, or interest of the United States,
   79  Florida, or any of its officers, boards, commissions, or other
   80  agencies reserved in the patent or deed by which the United
   81  States, Florida, or any of its agencies parted with title.
   82         (2) This section may not be construed to alter or
   83  invalidate a zoning ordinance, land development regulation,
   84  building code, or other ordinance, rule, regulation, or law if
   85  such ordinance, rule, regulation, or law operates independently
   86  of matters recorded in the official records.
   87         Section 5. Section 712.001, Florida Statutes, is created to
   88  read:
   89         712.001 Short title.—This chapter may be cited as the
   90  “Marketable Record Title Act.”
   91         Section 6. Section 712.01, Florida Statutes, is reordered
   92  and amended to read:
   93         712.01 Definitions.—As used in this chapter, the term law:
   94         (1) “Community covenant or restriction” means any agreement
   95  or limitation contained in a document recorded in the public
   96  records of the county in which a parcel is located which:
   97         (a) Subjects the parcel to any use restriction that may be
   98  enforced by a property owners’ association; or
   99         (b) Authorizes a property owners’ association to impose a
  100  charge or assessment against the parcel or the parcel owner.
  101         (4)(1)The term “Person” includes the as used herein
  102  denotes singular or plural, natural or corporate, private or
  103  governmental, including the state and any political subdivision
  104  or agency thereof as the context for the use thereof requires or
  105  denotes and including any property owners’ homeowners’
  106  association.
  107         (6)(2) “Root of title” means any title transaction
  108  purporting to create or transfer the estate claimed by any
  109  person and which is the last title transaction to have been
  110  recorded at least 30 years before prior to the time when
  111  marketability is being determined. The effective date of the
  112  root of title is the date on which it was recorded.
  113         (7)(3) “Title transaction” means any recorded instrument or
  114  court proceeding that which affects title to any estate or
  115  interest in land and that which describes the land sufficiently
  116  to identify its location and boundaries.
  117         (5)(4)Property owners’ association” The termhomeowners’
  118  association” means a homeowners’ association as defined in s.
  119  720.301, a corporation or other entity responsible for the
  120  operation of property in which the voting membership is made up
  121  of the owners of the property or their agents, or a combination
  122  thereof, and in which membership is a mandatory condition of
  123  property ownership, or an association of parcel owners which is
  124  authorized to enforce a community covenant or restriction use
  125  restrictions that is are imposed on the parcels.
  126         (3)(5)The term “Parcel” means real property that which is
  127  used for residential purposes and that is subject to exclusive
  128  ownership and which is subject to any covenant or restriction of
  129  a property owners’ homeowners’ association.
  130         (2)(6)The term “Covenant or restriction” means any
  131  agreement or limitation contained in a document recorded in the
  132  public records of the county in which a parcel is located which
  133  subjects the parcel to any use or other restriction or
  134  obligation which may be enforced by a homeowners’ association or
  135  which authorizes a homeowners’ association to impose a charge or
  136  assessment against the parcel or the owner of the parcel or
  137  which may be enforced by the Florida Department of Environmental
  138  Protection pursuant to chapter 376 or chapter 403.
  139         Section 7. Section 712.05, Florida Statutes, is amended to
  140  read:
  141         712.05 Effect of filing notice.—
  142         (1) A person claiming an interest in land or other right
  143  subject to extinguishment under this chapter a homeowners’
  144  association desiring to preserve a covenant or restriction may
  145  preserve and protect such interest or right the same from
  146  extinguishment by the operation of this chapter act by filing
  147  for record, at any time during the 30-year period immediately
  148  following the effective date of the root of title, a written
  149  notice in accordance with s. 712.06 this chapter.
  150         (2) A property owners’ association may preserve and protect
  151  a community covenant or restriction from extinguishment by the
  152  operation of this chapter by filing for record, at any time
  153  during the 30-year period immediately following the effective
  154  date of the root of title:
  155         (a) A written notice in accordance with s. 712.06; or
  156         (b) A summary notice in substantial form and content as
  157  required under s. 720.3032(2). Failure of a summary notice to be
  158  indexed to the current owners of the affected property does not
  159  affect the validity of the notice or vitiate the effect of the
  160  filing of such notice.
  161         (3)A Such notice under subsection (1) or subsection (2)
  162  preserves an interest in land or other such claim of right
  163  subject to extinguishment under this chapter, or a such covenant
  164  or restriction or portion of such covenant or restriction, for
  165  not less than up to 30 years after filing the notice unless the
  166  notice is filed again as required in this chapter. A person’s
  167  disability or lack of knowledge of any kind may not delay the
  168  commencement of or suspend the running of the 30-year period.
  169  Such notice may be filed for record by the claimant or by any
  170  other person acting on behalf of a claimant who is:
  171         (a) Under a disability;
  172         (b) Unable to assert a claim on his or her behalf; or
  173         (c) One of a class, but whose identity cannot be
  174  established or is uncertain at the time of filing such notice of
  175  claim for record.
  176  
  177  Such notice may be filed by a homeowners’ association only if
  178  the preservation of such covenant or restriction or portion of
  179  such covenant or restriction is approved by at least two-thirds
  180  of the members of the board of directors of an incorporated
  181  homeowners’ association at a meeting for which a notice, stating
  182  the meeting’s time and place and containing the statement of
  183  marketable title action described in s. 712.06(1)(b), was mailed
  184  or hand delivered to members of the homeowners’ association at
  185  least 7 days before such meeting. The property owners’
  186  homeowners’ association or clerk of the circuit court is not
  187  required to provide additional notice pursuant to s. 712.06(3).
  188  The preceding sentence is intended to clarify existing law.
  189         (4)(2) It is shall not be necessary for the owner of the
  190  marketable record title, as described in s. 712.02 herein
  191  defined, to file a notice to protect his or her marketable
  192  record title.
  193         Section 8. Subsections (1) and (3) of section 712.06,
  194  Florida Statutes, are amended to read:
  195         712.06 Contents of notice; recording and indexing.—
  196         (1) To be effective, the notice referred to in s. 712.05,
  197  other than the summary notice referred to in s. 712.05(2)(b),
  198  must shall contain:
  199         (a) The name or description and mailing address of the
  200  claimant or the property owners’ homeowners’ association
  201  desiring to preserve any covenant or restriction and the name
  202  and particular post office address of the person filing the
  203  claim or the homeowners’ association.
  204         (b) The name and mailing post office address of an owner,
  205  or the name and mailing post office address of the person in
  206  whose name the said property is assessed on the last completed
  207  tax assessment roll of the county at the time of filing, who,
  208  for purpose of such notice, shall be deemed to be an owner;
  209  provided, however, if a property owners’ homeowners’ association
  210  is filing the notice, then the requirements of this paragraph
  211  may be satisfied by attaching to and recording with the notice
  212  an affidavit executed by the appropriate member of the board of
  213  directors of the property owners’ homeowners’ association
  214  affirming that the board of directors of the property owners’
  215  homeowners’ association caused a statement in substantially the
  216  following form to be mailed or hand delivered to the members of
  217  that property owners’ homeowners’ association:
  218  
  219                STATEMENT OF MARKETABLE TITLE ACTION               
  220  
  221         The [name of property owners’ homeowners’ association] (the
  222  “Association”) has taken action to ensure that the [name of
  223  declaration, covenant, or restriction], recorded in Official
  224  Records Book ...., Page ...., of the public records of ....
  225  County, Florida, as may be amended from time to time, currently
  226  burdening the property of each and every member of the
  227  Association, retains its status as the source of marketable
  228  title with regard to the affected real property the transfer of
  229  a member’s residence. To this end, the Association shall cause
  230  the notice required by chapter 712, Florida Statutes, to be
  231  recorded in the public records of .... County, Florida. Copies
  232  of this notice and its attachments are available through the
  233  Association pursuant to the Association’s governing documents
  234  regarding official records of the Association.
  235  
  236         (c) A full and complete description of all land affected by
  237  such notice, which description shall be set forth in particular
  238  terms and not by general reference, but if said claim is founded
  239  upon a recorded instrument or a covenant or a restriction, then
  240  the description in such notice may be the same as that contained
  241  in such recorded instrument or covenant or restriction, provided
  242  the same shall be sufficient to identify the property.
  243         (d) A statement of the claim showing the nature,
  244  description, and extent of such claim or other right subject to
  245  extinguishment under this chapter or, in the case of a covenant
  246  or restriction, a copy of the covenant or restriction, except
  247  that it is shall not be necessary to show the amount of any
  248  claim for money or the terms of payment.
  249         (e) If such claim or other right subject to extinguishment
  250  under this chapter is based upon an instrument of record or a
  251  recorded covenant or restriction, such instrument of record or
  252  recorded covenant or restriction shall be deemed sufficiently
  253  described to identify the same if the notice includes a
  254  reference to the book and page in which the same is recorded.
  255         (f) Such notice shall be acknowledged in the same manner as
  256  deeds are acknowledged for record.
  257         (3) The person providing the notice referred to in s.
  258  712.05, other than a notice for preservation of a community
  259  covenant or restriction, shall:
  260         (a) Cause the clerk of the circuit court to mail by
  261  registered or certified mail to the purported owner of said
  262  property, as stated in such notice, a copy thereof and shall
  263  enter on the original, before recording the same, a certificate
  264  showing such mailing. For preparing the certificate, the
  265  claimant shall pay to the clerk the service charge as prescribed
  266  in s. 28.24(8) and the necessary costs of mailing, in addition
  267  to the recording charges as prescribed in s. 28.24(12). If the
  268  notice names purported owners having more than one address, the
  269  person filing the same shall furnish a true copy for each of the
  270  several addresses stated, and the clerk shall send one such copy
  271  to the purported owners named at each respective address. Such
  272  certificate shall be sufficient if the same reads substantially
  273  as follows:
  274  
  275         I hereby certify that I did on this ...., mail by
  276  registered (or certified) mail a copy of the foregoing notice to
  277  each of the following at the address stated:
  278  
  279  ...(Clerk of the circuit court)...
  280  of .... County, Florida,
  281  By...(Deputy clerk)...
  282  
  283  The clerk of the circuit court is not required to mail to the
  284  purported owner of such property any such notice that pertains
  285  solely to the preserving of any covenant or restriction or any
  286  portion of a covenant or restriction; or
  287         (b) Publish once a week, for 2 consecutive weeks, the
  288  notice referred to in s. 712.05, with the official record book
  289  and page number in which such notice was recorded, in a
  290  newspaper as defined in chapter 50 in the county in which the
  291  property is located.
  292         Section 9. Section 712.11, Florida Statutes, is amended to
  293  read:
  294         712.11 Covenant revitalization.—A property owners’
  295  homeowners’ association not otherwise subject to chapter 720 may
  296  use the procedures set forth in ss. 720.403-720.407 to revive
  297  covenants that have lapsed under the terms of this chapter.
  298         Section 10. Section 712.12, Florida Statutes, is created to
  299  read:
  300         712.12 Covenant or restriction revitalization by parcel
  301  owners not subject to chapter 720.—
  302         (1) As used in this section, the term:
  303         (a) “Community” means the real property that is subject to
  304  a covenant or restriction that is recorded in the county where
  305  the property is located.
  306         (b) “Covenant or restriction” means any agreement or
  307  limitation imposed by a private party and not required by a
  308  governmental agency as a condition of a development permit, as
  309  defined in s. 163.3164, which is contained in a document
  310  recorded in the public records of the county in which a parcel
  311  is located and which subjects the parcel to any use restriction
  312  that may be enforced by a parcel owner.
  313         (c) “Parcel” means real property that is used for
  314  residential purposes and that is subject to exclusive ownership
  315  and any covenant or restriction that may be enforced by a parcel
  316  owner.
  317         (d) “Parcel owner” means the record owner of legal title to
  318  a parcel.
  319         (2) The parcel owners of a community not subject to ch. 720
  320  may use the procedures set forth in ss. 720.403-720.407 to
  321  revive covenants or restrictions that have lapsed under the
  322  terms of this chapter, except:
  323         (a) A reference to a homeowners’ association or articles of
  324  incorporation or bylaws of a homeowners’ association under ss.
  325  720.403-720.407 is not required to revive the covenants or
  326  restrictions.
  327         (b) The approval required under s. 720.405(6) must be in
  328  writing, and not at a meeting.
  329         (c) The requirements under s. 720.407(2) may be satisfied
  330  by having the organizing committee execute the revived covenants
  331  or restrictions in the name of the community.
  332         (d) The indexing requirements under s. 720.407(3) may be
  333  satisfied by indexing the community name in the covenants or
  334  restrictions as the grantee and the parcel owners as the
  335  grantors.
  336         (3) With respect to any parcel that has ceased to be
  337  governed by covenants or restrictions as of October 1, 2017, the
  338  parcel owner may commence an action by October 1, 2018, for a
  339  judicial determination that the covenants or restrictions did
  340  not govern that parcel as of October 1, 2017, and that any
  341  revitalization of such covenants or restrictions as to that
  342  parcel would unconstitutionally deprive the parcel owner of
  343  rights or property.
  344         (4) Revived covenants or restrictions that are implemented
  345  pursuant to this section do not apply to or affect the rights of
  346  the parcel owner which are recognized by any court order or
  347  judgment in any action commenced by October 1, 2018, and any
  348  such rights so recognized may not be subsequently altered by
  349  revived covenants or restrictions implemented under this section
  350  without the consent of the affected parcel owner.
  351         Section 11. Paragraph (e) is added to subsection (2) of
  352  section 720.303, Florida Statutes, to read:
  353         720.303 Association powers and duties; meetings of board;
  354  official records; budgets; financial reporting; association
  355  funds; recalls.—
  356         (2) BOARD MEETINGS.—
  357         (e) At the first board meeting, excluding the
  358  organizational meeting, which follows the annual meeting of the
  359  members, the board shall consider the desirability of filing
  360  notices to preserve the covenants or restrictions affecting the
  361  community or association from extinguishment under the
  362  Marketable Record Title Act, chapter 712, and to authorize and
  363  direct the appropriate officer to file notice in accordance with
  364  s. 720.3032.
  365         Section 12. Section 720.3032, Florida Statutes, is created
  366  to read:
  367         720.3032 Notice of association information; preservation
  368  from Marketable Record Title Act.—
  369         (1)Not less than once every 5 years, each association
  370  shall record in the official records of each county in which the
  371  community is located a notice specifying:
  372         (a)The legal name of the association.
  373         (b)The mailing and physical addresses of the association.
  374         (c)The names of the affected subdivision plats and
  375  condominiums or, if not applicable, the common name of the
  376  community.
  377         (d)The name, address, and telephone number for the current
  378  community association management company or community
  379  association manager, if any.
  380         (e)Indication as to whether the association desires to
  381  preserve the covenants or restrictions affecting the community
  382  or association from extinguishment under the Marketable Record
  383  Title Act, chapter 712.
  384         (f)A listing by name and recording information of those
  385  covenants or restrictions affecting the community which the
  386  association desires to be preserved from extinguishment.
  387         (g)The legal description of the community affected by the
  388  covenants or restrictions, which may be satisfied by a reference
  389  to a recorded plat.
  390         (h)The signature of a duly authorized officer of the
  391  association, acknowledged in the same manner as deeds are
  392  acknowledged for record.
  393         (2)Recording a document in substantially the following
  394  form satisfies the notice obligation and constitutes a summary
  395  notice as specified in s. 712.05(2)(b) sufficient to preserve
  396  and protect the referenced covenants and restrictions from
  397  extinguishment under the Marketable Record Title Act, chapter
  398  712.
  399  
  400  Notice of ...(name of association)... under s. 720.3032, Florida 
  401     Statutes, and notice to preserve and protect covenants and    
  402    restrictions from extinguishment under the Marketable Record   
  403              Title Act, chapter 712, Florida Statutes.            
  404  
  405         Instructions to recorder: Please index both the legal name
  406  of the association and the names shown in item 3.
  407         1. Legal name of association: ....
  408         2. Mailing and physical addresses of association: .... ....
  409         3.Names of the subdivision plats, or, if none, common name
  410  of community: ....
  411         4. Name, address, and telephone number for management
  412  company, if any: ................
  413         5. This notice does .... does not .... constitute a notice
  414  to preserve and protect covenants or restrictions from
  415  extinguishment under the Marketable Record Title Act.
  416         6. The following covenants or restrictions affecting the
  417  community which the association desires to be preserved from
  418  extinguishment:
  419  ...(Name of instrument)...
  420  ...(Official Records Book where recorded & page)...
  421  ...(List of instruments)...
  422  ...(List of recording information)...
  423         7. The legal description of the community affected by the
  424  listed covenants or restrictions is: ...(Legal description,
  425  which may be satisfied by reference to a recorded plat)...
  426         This notice is filed on behalf of ...(Name of
  427  association)... as of ...(Date)....
  428  ...(Name of association)...
  429  
  430  By: ....
  431  ...(Name of individual officer)...
  432  ...(Title of officer)...
  433  ...(Notary acknowledgment)...
  434  
  435         (3) The failure to file one or more notices does not affect
  436  the validity or enforceability of any covenant or restriction
  437  nor in any way alter the remaining time before extinguishment by
  438  the Marketable Record Title Act, chapter 712.
  439         (4)A copy of the notice, as filed, must be included as
  440  part of the next notice of meeting or other mailing sent to all
  441  members.
  442         (5)The original signed notice must be recorded in the
  443  official records of the clerk of the circuit court or other
  444  recorder for the county.
  445         Section 13. Section 702.09, Florida Statutes, is amended to
  446  read:
  447         702.09 Definitions.—For the purposes of ss. 702.07 and
  448  702.08, the words “decree of foreclosure” shall include a
  449  judgment or order rendered or passed in the foreclosure
  450  proceedings in which the decree of foreclosure shall be
  451  rescinded, vacated, and set aside; the word “mortgage” shall
  452  mean any written instrument securing the payment of money or
  453  advances and includes liens to secure payment of assessments
  454  arising under chapters 718 and 719 and liens created pursuant to
  455  the recorded covenants of a property owners’ homeowners’
  456  association as defined in s. 712.01; the word “debt” shall
  457  include promissory notes, bonds, and all other written
  458  obligations given for the payment of money; the words
  459  “foreclosure proceedings” shall embrace every action in the
  460  circuit or county courts of this state wherein it is sought to
  461  foreclose a mortgage and sell the property covered by the same;
  462  and the word “property” shall mean and include both real and
  463  personal property.
  464         Section 14. Subsection (1) of section 702.10, Florida
  465  Statutes, is amended to read:
  466         702.10 Order to show cause; entry of final judgment of
  467  foreclosure; payment during foreclosure.—
  468         (1) A lienholder may request an order to show cause for the
  469  entry of final judgment in a foreclosure action. For purposes of
  470  this section, the term “lienholder” includes the plaintiff and a
  471  defendant to the action who holds a lien encumbering the
  472  property or a defendant who, by virtue of its status as a
  473  condominium association, cooperative association, or property
  474  owners’ homeowners’ association, may file a lien against the
  475  real property subject to foreclosure. Upon filing, the court
  476  shall immediately review the request and the court file in
  477  chambers and without a hearing. If, upon examination of the
  478  court file, the court finds that the complaint is verified,
  479  complies with s. 702.015, and alleges a cause of action to
  480  foreclose on real property, the court shall promptly issue an
  481  order directed to the other parties named in the action to show
  482  cause why a final judgment of foreclosure should not be entered.
  483         (a) The order shall:
  484         1. Set the date and time for a hearing to show cause. The
  485  date for the hearing may not occur sooner than the later of 20
  486  days after service of the order to show cause or 45 days after
  487  service of the initial complaint. When service is obtained by
  488  publication, the date for the hearing may not be set sooner than
  489  30 days after the first publication.
  490         2. Direct the time within which service of the order to
  491  show cause and the complaint must be made upon the defendant.
  492         3. State that the filing of defenses by a motion, a
  493  responsive pleading, an affidavit, or other papers before the
  494  hearing to show cause that raise a genuine issue of material
  495  fact which would preclude the entry of summary judgment or
  496  otherwise constitute a legal defense to foreclosure shall
  497  constitute cause for the court not to enter final judgment.
  498         4. State that a defendant has the right to file affidavits
  499  or other papers before the time of the hearing to show cause and
  500  may appear personally or by way of an attorney at the hearing.
  501         5. State that, if a defendant files defenses by a motion, a
  502  verified or sworn answer, affidavits, or other papers or appears
  503  personally or by way of an attorney at the time of the hearing,
  504  the hearing time will be used to hear and consider whether the
  505  defendant’s motion, answer, affidavits, other papers, and other
  506  evidence and argument as may be presented by the defendant or
  507  the defendant’s attorney raise a genuine issue of material fact
  508  which would preclude the entry of summary judgment or otherwise
  509  constitute a legal defense to foreclosure. The order shall also
  510  state that the court may enter an order of final judgment of
  511  foreclosure at the hearing and order the clerk of the court to
  512  conduct a foreclosure sale.
  513         6. State that, if a defendant fails to appear at the
  514  hearing to show cause or fails to file defenses by a motion or
  515  by a verified or sworn answer or files an answer not contesting
  516  the foreclosure, such defendant may be considered to have waived
  517  the right to a hearing, and in such case, the court may enter a
  518  default against such defendant and, if appropriate, a final
  519  judgment of foreclosure ordering the clerk of the court to
  520  conduct a foreclosure sale.
  521         7. State that if the mortgage provides for reasonable
  522  attorney fees and the requested attorney fees do not exceed 3
  523  percent of the principal amount owed at the time of filing the
  524  complaint, it is unnecessary for the court to hold a hearing or
  525  adjudge the requested attorney fees to be reasonable.
  526         8. Attach the form of the proposed final judgment of
  527  foreclosure which the movant requests the court to enter at the
  528  hearing on the order to show cause.
  529         9. Require the party seeking final judgment to serve a copy
  530  of the order to show cause on the other parties in the following
  531  manner:
  532         a. If a party has been served pursuant to chapter 48 with
  533  the complaint and original process, or the other party is the
  534  plaintiff in the action, service of the order to show cause on
  535  that party may be made in the manner provided in the Florida
  536  Rules of Civil Procedure.
  537         b. If a defendant has not been served pursuant to chapter
  538  48 with the complaint and original process, the order to show
  539  cause, together with the summons and a copy of the complaint,
  540  shall be served on the party in the same manner as provided by
  541  law for original process.
  542  
  543  Any final judgment of foreclosure entered under this subsection
  544  is for in rem relief only. This subsection does not preclude the
  545  entry of a deficiency judgment where otherwise allowed by law.
  546  The Legislature intends that this alternative procedure may run
  547  simultaneously with other court procedures.
  548         (b) The right to be heard at the hearing to show cause is
  549  waived if a defendant, after being served as provided by law
  550  with an order to show cause, engages in conduct that clearly
  551  shows that the defendant has relinquished the right to be heard
  552  on that order. The defendant’s failure to file defenses by a
  553  motion or by a sworn or verified answer, affidavits, or other
  554  papers or to appear personally or by way of an attorney at the
  555  hearing duly scheduled on the order to show cause presumptively
  556  constitutes conduct that clearly shows that the defendant has
  557  relinquished the right to be heard. If a defendant files
  558  defenses by a motion, a verified answer, affidavits, or other
  559  papers or presents evidence at or before the hearing which raise
  560  a genuine issue of material fact which would preclude entry of
  561  summary judgment or otherwise constitute a legal defense to
  562  foreclosure, such action constitutes cause and precludes the
  563  entry of a final judgment at the hearing to show cause.
  564         (c) In a mortgage foreclosure proceeding, when a final
  565  judgment of foreclosure has been entered against the mortgagor
  566  and the note or mortgage provides for the award of reasonable
  567  attorney fees, it is unnecessary for the court to hold a hearing
  568  or adjudge the requested attorney fees to be reasonable if the
  569  fees do not exceed 3 percent of the principal amount owed on the
  570  note or mortgage at the time of filing, even if the note or
  571  mortgage does not specify the percentage of the original amount
  572  that would be paid as liquidated damages.
  573         (d) If the court finds that all defendants have waived the
  574  right to be heard as provided in paragraph (b), the court shall
  575  promptly enter a final judgment of foreclosure without the need
  576  for further hearing if the plaintiff has shown entitlement to a
  577  final judgment and upon the filing with the court of the
  578  original note, satisfaction of the conditions for establishment
  579  of a lost note, or upon a showing to the court that the
  580  obligation to be foreclosed is not evidenced by a promissory
  581  note or other negotiable instrument. If the court finds that a
  582  defendant has not waived the right to be heard on the order to
  583  show cause, the court shall determine whether there is cause not
  584  to enter a final judgment of foreclosure. If the court finds
  585  that the defendant has not shown cause, the court shall promptly
  586  enter a judgment of foreclosure. If the time allotted for the
  587  hearing is insufficient, the court may announce at the hearing a
  588  date and time for the continued hearing. Only the parties who
  589  appear, individually or through an attorney, at the initial
  590  hearing must be notified of the date and time of the continued
  591  hearing.
  592         Section 15. Section 712.095, Florida Statutes, is amended
  593  to read:
  594         712.095 Notice required by July 1, 1983.—Any person whose
  595  interest in land is derived from an instrument or court
  596  proceeding recorded subsequent to the root of title, which
  597  instrument or proceeding did not contain a description of the
  598  land as specified by s. 712.01(7) s. 712.01(3), and whose
  599  interest had not been extinguished prior to July 1, 1981, shall
  600  have until July 1, 1983, to file a notice in accordance with s.
  601  712.06 to preserve the interest.
  602         Section 16. Section 720.403, Florida Statutes, is amended
  603  to read:
  604         720.403 Preservation of residential communities; revival of
  605  declaration of covenants.—
  606         (1) Consistent with required and optional elements of local
  607  comprehensive plans and other applicable provisions of the
  608  Community Planning Act, property owners homeowners are
  609  encouraged to preserve existing residential and other
  610  communities, promote available and affordable housing, protect
  611  structural and aesthetic elements of their residential
  612  community, and, as applicable, maintain roads and streets,
  613  easements, water and sewer systems, utilities, drainage
  614  improvements, conservation and open areas, recreational
  615  amenities, and other infrastructure and common areas that serve
  616  and support the residential community by the revival of a
  617  previous declaration of covenants and other governing documents
  618  that may have ceased to govern some or all parcels in the
  619  community.
  620         (2) In order to preserve a residential community and the
  621  associated infrastructure and common areas for the purposes
  622  described in this section, the parcel owners in a community that
  623  was previously subject to a declaration of covenants that has
  624  ceased to govern one or more parcels in the community may revive
  625  the declaration and the homeowners’ association for the
  626  community upon approval by the parcel owners to be governed
  627  thereby as provided in this act, and upon approval of the
  628  declaration and the other governing documents for the
  629  association by the Department of Economic Opportunity in a
  630  manner consistent with this act.
  631         (3) Part III of this chapter is intended to provide
  632  mechanisms for the revitalization of covenants or restrictions
  633  for all types of communities and property associations and is
  634  not limited to residential communities.
  635         Section 17. Section 720.404, Florida Statutes, is amended
  636  to read:
  637         720.404 Eligible residential communities; requirements for
  638  revival of declaration.—Parcel owners in a community are
  639  eligible to seek approval from the Department of Economic
  640  Opportunity to revive a declaration of covenants under this act
  641  if all of the following requirements are met:
  642         (1) All parcels to be governed by the revived declaration
  643  must have been once governed by a previous declaration that has
  644  ceased to govern some or all of the parcels in the community;
  645         (2) The revived declaration must be approved in the manner
  646  provided in s. 720.405(6); and
  647         (3) The revived declaration may not contain covenants that
  648  are more restrictive on the parcel owners than the covenants
  649  contained in the previous declaration, except that the
  650  declaration may:
  651         (a) Have an effective term of longer duration than the term
  652  of the previous declaration;
  653         (b) Omit restrictions contained in the previous
  654  declaration;
  655         (c) Govern fewer than all of the parcels governed by the
  656  previous declaration;
  657         (d) Provide for amendments to the declaration and other
  658  governing documents; and
  659         (e) Contain provisions required by this chapter for new
  660  declarations that were not contained in the previous
  661  declaration.
  662         Section 18. Subsections (1), (3), (5), and (6) of section
  663  720.405, Florida Statutes, are amended to read:
  664         720.405 Organizing committee; parcel owner approval.—
  665         (1) The proposal to revive a declaration of covenants and
  666  an a homeowners’ association for a community under the terms of
  667  this act shall be initiated by an organizing committee
  668  consisting of not less than three parcel owners located in the
  669  community that is proposed to be governed by the revived
  670  declaration. The name, address, and telephone number of each
  671  member of the organizing committee must be included in any
  672  notice or other document provided by the committee to parcel
  673  owners to be affected by the proposed revived declaration.
  674         (3) The organizing committee shall prepare the full text of
  675  the proposed articles of incorporation and bylaws of the revived
  676  homeowners’ association to be submitted to the parcel owners for
  677  approval, unless the association is then an existing
  678  corporation, in which case the organizing committee shall
  679  prepare the existing articles of incorporation and bylaws to be
  680  submitted to the parcel owners.
  681         (5) A copy of the complete text of the proposed revised
  682  declaration of covenants, the proposed new or existing articles
  683  of incorporation and bylaws of the homeowners’ association, and
  684  a graphic depiction of the property to be governed by the
  685  revived declaration shall be presented to all of the affected
  686  parcel owners by mail or hand delivery not less than 14 days
  687  before the time that the consent of the affected parcel owners
  688  to the proposed governing documents is sought by the organizing
  689  committee.
  690         (6) A majority of the affected parcel owners must agree in
  691  writing to the revived declaration of covenants and governing
  692  documents of the homeowners’ association or approve the revived
  693  declaration and governing documents by a vote at a meeting of
  694  the affected parcel owners noticed and conducted in the manner
  695  prescribed by s. 720.306. Proof of notice of the meeting to all
  696  affected owners of the meeting and the minutes of the meeting
  697  recording the votes of the property owners shall be certified by
  698  a court reporter or an attorney licensed to practice in the
  699  state.
  700         Section 19. Subsection (3) of section 720.407, Florida
  701  Statutes, is amended to read:
  702         720.407 Recording; notice of recording; applicability and
  703  effective date.—
  704         (3) The recorded documents shall include the full text of
  705  the approved declaration of covenants, the articles of
  706  incorporation and bylaws of the homeowners’ association, the
  707  letter of approval by the department, and the legal description
  708  of each affected parcel of property. For purposes of chapter
  709  712, the association is deemed to be and shall be indexed as the
  710  grantee in a title transaction and the parcel owners named in
  711  the revived declaration are deemed to be and shall be indexed as
  712  the grantors in the title transaction.
  713         Section 20. Notwithstanding this act, any person claiming
  714  an interest or other right in land which would be extinguished
  715  as a result of this act, including any interests or other rights
  716  where the 30-year period immediately following the effective
  717  date of the root of title has already passed, may preserve such
  718  interest from extinguishment pursuant to this act by filing for
  719  record a written notice in accordance with s. 712.06, Florida
  720  Statutes, within 1 year after the effective date of this act.
  721         Section 21. This act shall take effect October 1, 2017.
  722  
  723  ================= T I T L E  A M E N D M E N T ================
  724  And the title is amended as follows:
  725         Delete everything before the enacting clause
  726  and insert:
  727                        A bill to be entitled                      
  728         An act relating to real property; creating s. 702.12,
  729         F.S.; authorizing lienholders to use certain documents
  730         as an admission in an action to foreclose a mortgage;
  731         providing that submission of certain documents in a
  732         foreclosure action creates a rebuttable presumption
  733         that the defendant has waived any defenses to the
  734         foreclosure; requiring a court to take judicial notice
  735         of final orders entered in bankruptcy cases; providing
  736         construction; providing applicability; amending ss.
  737         125.022 and 166.033, F.S.; prohibiting a county or
  738         municipality from delegating its police power to a
  739         third party by restriction, covenant, or otherwise;
  740         providing that the imposition by a county or
  741         municipality of a recorded or unrecorded restriction
  742         or covenant as a condition of a county’s or
  743         municipality’s approval or issuance of a development
  744         permit does not preclude the county or municipality
  745         from exercising its police power to later amend,
  746         release, or terminate the restriction or covenant;
  747         providing that any such amendment, release, or
  748         termination of the restriction or covenant must follow
  749         specified procedural requirements; amending s. 712.04,
  750         F.S.; providing that a marketable record title is free
  751         and clear of all covenants or restrictions, the
  752         existence of which depends upon any zoning
  753         requirement, building or development permit; providing
  754         that all such covenants or restrictions are declared
  755         to be null and void; providing construction; creating
  756         s. 712.001, F.S.; providing a short title; amending s.
  757         712.01, F.S.; defining and redefining terms; amending
  758         s. 712.05, F.S.; revising the notice filing
  759         requirements for a person claiming an interest in land
  760         and other rights; authorizing a property owners’
  761         association to preserve and protect certain covenants
  762         or restrictions from extinguishment, subject to
  763         specified requirements; providing that a failure in
  764         indexing does not affect the validity of the notice;
  765         extending the length of time certain covenants or
  766         restrictions are preserved; deleting a provision
  767         requiring a two-thirds vote by members of an
  768         incorporated homeowners’ association to file certain
  769         notices; conforming provisions to changes made by the
  770         act; amending s. 712.06, F.S.; exempting a specified
  771         summary notice from certain notice content
  772         requirements; revising the contents required to be
  773         specified by certain notices; conforming provisions to
  774         changes made by the act; amending s. 712.11, F.S.;
  775         conforming provisions to changes made by the act;
  776         creating s. 712.12, F.S.; defining terms; authorizing
  777         the parcel owners of a community not subject to ch.
  778         720, F.S., to use specified procedures to revive
  779         certain covenants or restrictions, subject to certain
  780         exceptions and requirements; authorizing a parcel
  781         owner to commence an action by a specified date under
  782         certain circumstances for a judicial determination
  783         that the covenants or restrictions did not govern that
  784         parcel as of a specified date and that any
  785         revitalization of such covenants or restrictions as to
  786         that parcel would unconstitutionally deprive the
  787         parcel owner of rights or property; providing
  788         applicability; amending s. 720.303, F.S.; requiring a
  789         board to take up certain provisions relating to notice
  790         filings at the first board meeting; creating s.
  791         720.3032, F.S.; providing recording requirements for
  792         an association; providing a document form for
  793         recording by an association to preserve certain
  794         covenants or restrictions; providing that failure to
  795         file one or more notices does not affect the validity
  796         or enforceability of a covenant or restriction or
  797         alter the time before extinguishment under certain
  798         circumstances; requiring a copy of the filed notice to
  799         be sent to all members; requiring the original signed
  800         notice to be recorded with the clerk of the circuit
  801         court or other recorder; amending ss. 702.09 and
  802         702.10, F.S.; conforming provisions to changes made by
  803         the act; amending s. 712.095, F.S.; conforming a
  804         cross-reference; amending ss. 720.403, 720.404,
  805         720.405, and 720.407, F.S.; conforming provisions to
  806         changes made by the act; authorizing persons to
  807         preserve certain interest or rights in property by
  808         filing a specified notice; providing an effective
  809         date.