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House Bill 1299c2

Florida House of Representatives - 1997 CS/CS/HB 1299 By the Committees on Community Affairs, Real Property & Probate and Representatives Crow, Kelly, Spratt, Safley, Culp, Fasano, Sindler, Brown and Byrd 1 A bill to be entitled 2 An act relating to the Florida Mobile Home Act; 3 amending s. 723.006, F.S.; revising language 4 with respect to the powers and duties of the 5 Division of Florida Land Sales, Condominiums, 6 and Mobile Homes; directing the division not to 7 require refunds under certain circumstances; 8 providing a fine for minor violations; 9 providing for certain rules; authorizing the 10 division to enter into certain consent orders; 11 amending s. 723.021, F.S.; providing for 12 reasonable costs and attorney's fees when the 13 obligation of good faith and fair dealing is 14 breeched; amending s. 723.037, F.S.; revising 15 language with respect to lot rental increases; 16 amending s. 723.0381, F.S.; revising 17 arbitration procedures; amending s. 723.063, 18 F.S.; authorizing mobile home owners' 19 associations to defend actions for rent or 20 possession; amending s. 723.071, F.S.; revising 21 language with respect to the sale of mobile 22 home parks; providing an effective date. 23 24 Be It Enacted by the Legislature of the State of Florida: 25 26 Section 1. Subsection (5) of section 723.006, Florida 27 Statutes, 1996 Supplement, is amended, present subsections 28 (6), (7), and (8) are renumbered as subsections (8), (9), and 29 (10), respectively, and new subsections (6) and (7) are added 30 to said section, to read: 31 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 723.006 Powers and duties of division.--In performing 2 its duties, the division has the following powers and duties: 3 (5) Notwithstanding any remedies available to mobile 4 home owners, mobile home park owners, and homeowners' 5 associations, if the division has reasonable cause to believe 6 that a violation of any provision of this chapter or any rule 7 promulgated pursuant hereto has occurred, the division may 8 institute enforcement proceedings in its own name against a 9 developer, mobile home park owner, or homeowners' association, 10 or its assignee or agent, as follows: 11 (a) The division may permit a person whose conduct or 12 actions may be under investigation to waive formal proceedings 13 and enter into a consent proceeding whereby orders, rules, or 14 letters of censure or warning, whether formal or informal, may 15 be entered against the person. 16 (b) The division may issue an order requiring the 17 mobile home park owner, or its assignee or agent, to cease and 18 desist from an unlawful practice and take such affirmative 19 action as in the judgment of the division will carry out the 20 purposes of this chapter. The affirmative action may include 21 the following: 22 1. Refunds of rent increases, improper fees, charges 23 and assessments, including pass-throughs and pass-ons 24 collected in violation of the terms of this chapter. 25 2. Filing and utilization of documents which correct a 26 statutory or rule violation. 27 3. Reasonable action necessary to correct a statutory 28 or rule violation. 29 (c) The division shall not require a refund of rent 30 increases, improper fees, charges and assessments, including 31 pass-throughs and pass-ons, unless there is evidence of a 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 major violation. Minor violations of the chapter shall be 2 limited to a fine of $250. 3 (d)(c) In determining the amount of civil penalty or 4 affirmative action to be imposed under this section, if any, 5 the division must consider the following factors: 6 1. The gravity of the violation. 7 2. Whether the person has substantially complied with 8 the provisions of this chapter. 9 3. Any action taken by the person to correct or 10 mitigate the violation of this chapter. 11 (e)(d) The division may bring an action in circuit 12 court on behalf of a class of mobile home owners, mobile home 13 park owners, lessees, or purchasers for declaratory relief, 14 injunctive relief, or restitution. 15 (f)(e)1. The division may impose a civil penalty 16 against a mobile home park owner or homeowners' association, 17 or its assignee or agent, for any violation of this chapter, a 18 properly promulgated park rule or regulation, or a rule or 19 regulation promulgated pursuant hereto. A penalty may be 20 imposed on the basis of each separate violation and, if the 21 violation is a continuing one, for each day of continuing 22 violation, but in no event may the penalty for each separate 23 violation or for each day of continuing violation exceed 24 $5,000. All amounts collected shall be deposited with the 25 Treasurer to the credit of the Division of Florida Land Sales, 26 Condominiums, and Mobile Homes Trust Fund. 27 2. If a violator fails to pay the civil penalty, the 28 division shall thereupon issue an order directing that such 29 violator cease and desist from further violation until such 30 time as the civil penalty is paid or may pursue enforcement of 31 the penalty in a court of competent jurisdiction. If a 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 homeowners' association fails to pay the civil penalty, the 2 division shall thereupon pursue enforcement in a court of 3 competent jurisdiction, and the order imposing the civil 4 penalty or the cease and desist order shall not become 5 effective until 20 days after the date of such order. Any 6 action commenced by the division shall be brought in the 7 county in which the division has its executive offices or in 8 which the violation occurred. 9 (6) The division shall adopt rules for the 10 implementation of all civil penalties or administrative 11 actions, including, but not limited to, establishing major and 12 minor violations. A major violation means a violation of this 13 chapter which endangers the public health, safety, and welfare 14 or causes substantial economic harm to the mobile home park 15 residents. 16 (7) The division is authorized to enter into consent 17 orders in which the violator does not admit nor deny the 18 factual matters or the conclusions of law reached by the 19 division, solely for the purpose of entering into the consent 20 order, which consent order shall not be admitted into a court 21 of law for the purpose of proving any fact or violation of law 22 set forth therein. 23 Section 2. Section 723.021, Florida Statutes, is 24 amended to read: 25 723.021 Obligation of good faith and fair 26 dealings.--Every rental agreement or duty within this chapter 27 imposes an obligation of good faith and fair dealings in its 28 performance or enforcement. Either party to a dispute under 29 this chapter may seek an order finding the other party has not 30 complied with the obligations of good faith and fair dealings. 31 Upon such a finding, the court shall award reasonable costs 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 and attorney's fees to the prevailing party for proving the 2 noncompliance. 3 Section 3. Subsection (4) of section 723.037, Florida 4 Statutes, is amended to read: 5 723.037 Lot rental increases; reduction in services or 6 utilities; change in rules and regulations; mediation.-- 7 (4)(a) A committee, not to exceed five in number, 8 designated by a majority of the affected mobile home owners or 9 by the board of directors of the homeowners' association, if 10 applicable, and the park owner shall meet, at a mutually 11 convenient time and place within 30 days after receipt by the 12 homeowners of the notice of change, to discuss the reasons for 13 the increase in lot rental amount, reduction in services or 14 utilities, or change in rules and regulations. 15 (b) At the meeting, the park owner or subdivision 16 developer shall in good faith disclose and explain all 17 material factors resulting in the decision to increase the lot 18 rental amount, reduce services or utilities, or change rules 19 and regulations, including how those factors justify the 20 specific change proposed. The park owner or subdivision 21 developer may not limit the discussion of the reasons for the 22 change to generalities only, such as, but not limited to, 23 increases in operational costs, changes in economic 24 conditions, or rents charged by comparable mobile home parks. 25 For example, if the reason for an increase in lot rental 26 amount is an increase in operational costs, the park owner 27 must disclose the item or items which have increased, the 28 amount of the increase, any similar item or items which have 29 decreased, and the amount of the decrease. If an increase is 30 based upon the lot rental amount charged by comparable mobile 31 home parks, the park owner shall disclose the name, address, 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 lot rental amount, and any other relevant factors concerning 2 the mobile home parks relied upon by the park owner. The park 3 owner shall prepare a written summary of the material factors 4 and retain a copy for 3 years. Upon request, the park owner 5 shall provide the committee a copy of the summary. 6 Section 4. Subsection (2) of section 723.0381, Florida 7 Statutes, is amended to read: 8 723.0381 Civil actions; arbitration.-- 9 (2) The court may shall refer the action to a panel of 10 three arbitrators for court-annexed nonbinding arbitration 11 pursuant to s. 44.103 and the Florida Rules of Civil 12 Procedure, except that compensation for the arbitrators shall 13 be in accordance with the authorized rate for circuit court 14 mediators in that judicial circuit. The court shall order the 15 hearing to be held informally with presentation of testimony 16 kept to a minimum and matters presented to the arbitrators 17 primarily through the statements and arguments of counsel. The 18 court shall assess the parties equally to pay the compensation 19 awarded to the arbitrators if neither party requests a trial 20 de novo. If a party has filed for a trial de novo, the party 21 shall be assessed the arbitration costs, court costs, and 22 other reasonable costs of the opposing party, including 23 attorney's fees, investigation expenses, and expenses for 24 expert or other testimony or evidence incurred after the 25 arbitration hearing if the judgment upon the trial de novo is 26 not more favorable than the arbitration decision. If 27 subsequent to arbitration a party files for a trial de novo, 28 the arbitration decision may be made known to the judge only 29 after he has entered his order on the merits. 30 Section 5. Section 723.063, Florida Statutes, is 31 amended to read: 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 723.063 Defenses to action for rent or possession; 2 procedure.-- 3 (1) In any action based upon nonpayment of rent or 4 seeking to recover unpaid rent, or a portion thereof, or a 5 rent increase, the mobile home owner or mobile home owners' 6 association pursuant to Rule 1.220, Florida Rules of Civil 7 Procedure, may defend upon the ground of a material 8 noncompliance with any portion of this chapter or may raise 9 any other defense, whether legal or equitable, which he may 10 have. The defense of material noncompliance may be raised by 11 the mobile home owner or mobile home owners' association only 12 if 7 days have elapsed after he has notified the park owner in 13 writing of his intention not to pay rent, or a portion 14 thereof, based upon the park owner's noncompliance with 15 portions of this chapter, specifying in reasonable detail the 16 provisions in default. A material noncompliance with this 17 chapter by the park owner is a complete defense to an action 18 for possession based upon nonpayment of rent, or a portion 19 thereof, and, upon hearing, the court or the jury, as the case 20 may be, shall determine the amount, if any, by which the rent 21 is to be reduced to reflect the diminution in value of the lot 22 during the period of noncompliance with any portion of this 23 chapter. After consideration of all other relevant issues, 24 the court shall enter appropriate judgment. 25 (2) In any action by the park owner or a mobile home 26 owner or mobile home owners' association brought under 27 subsection (1), the mobile home owner or mobile home owners' 28 association shall pay into the registry of the court that 29 portion of the accrued rent, if any, relating to the claim of 30 material noncompliance as alleged in the complaint, or as 31 determined by the court. The court shall notify the mobile 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 home owner or mobile home owners' association of such 2 requirement. The failure of the mobile home owner or mobile 3 home owners' association to pay the rent, or portion thereof, 4 into the registry of the court as required herein constitutes 5 an absolute waiver of the mobile home owner's or mobile home 6 owners' association's defenses other than payment, and the 7 park owner is entitled to an immediate default. 8 (3) When the mobile home owner or mobile home owners' 9 association has deposited funds into the registry of the court 10 in accordance with the provisions of this section and the park 11 owner is in actual danger of loss of the premises or other 12 personal hardship resulting from the loss of rental income 13 from the premises, the park owner may apply to the court for 14 disbursement of all or part of the funds or for prompt final 15 hearing, whereupon the court shall advance the cause on the 16 calendar. The court, after preliminary hearing, may award all 17 or any portion of the funds on deposit to the park owner or 18 may proceed immediately to a final resolution of the cause. 19 Section 6. Subsection (2) of section 723.071, Florida 20 Statutes, is amended to read: 21 723.071 Sale of mobile home parks.-- 22 (2) If a mobile home park owner receives a bona fide 23 offer to purchase the park that he intends to consider or make 24 a counteroffer to, his only obligation shall be to notify the 25 officers of the homeowners' association that he has received 26 an offer and disclose the price and material terms and 27 conditions upon which he would consider selling the park and 28 consider any offer made by the homeowners, provided the 29 homeowners have complied with ss. 723.075-723.079. The park 30 owner shall be under no obligation to sell to the homeowners 31 or to interrupt or delay other negotiations, and he shall be 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1997 CS/CS/HB 1299 171-577-97 1 free at any time to execute a contract for the sale of the 2 park to a party or parties other than the homeowners or the 3 association, if it is clear from the face of the bona fide 4 offer that the homeowners or homeowners' association could not 5 match the terms and conditions contained in the bona fide 6 offer by making an offer containing the same terms and 7 conditions. If, however, the bona fide offer contains terms 8 and conditions that the homeowners could match, the mobile 9 home park owner shall negotiate in good faith with the 10 homeowners or the association for the sale of the park. The 11 same terms and conditions means that the consideration is the 12 same and that the seller of the property or properties will be 13 eligible for deferral of all federal and state income taxes to 14 the same extent as if the unsolicited offer were accepted, and 15 that the seller's business and personal estate planning 16 objectives can be met by a sale to the homeowners or the 17 homeowners' association. 18 Section 7. This act shall take effect October 1, 1997. 19 20 21 22 23 24 25 26 27 28 29 30 31 9