Senate Bill 1624c1

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    Florida Senate - 1998                           CS for SB 1624

    By the Committee on Regulated Industries and Senator Dudley





    315-1782C-98

  1                      A bill to be entitled

  2         An act relating to condominiums and

  3         cooperatives; amending s. 718.103, F.S.;

  4         defining the terms "buyer" and "division";

  5         amending s. 718.111, F.S.; providing for the

  6         operation of certain condominiums created prior

  7         to 1977 as single associations; permitting

  8         consolidated financial operation; requiring a

  9         developer-controlled association to exercise

10         due diligence to obtain and maintain insurance;

11         providing that failure to obtain and maintain

12         adequate insurance shall constitute a breach of

13         fiduciary responsibility by the

14         developer-appointed members of the board of

15         directors; providing that records may be

16         obtained in person or by mail; providing

17         specified associations must, upon written

18         request, copy and deliver requested records and

19         charge its actual costs; amending s. 718.112,

20         F.S.; providing requirements for eligibility to

21         be a candidate for the board; amending s.

22         718.116, F.S.; providing for unit owners and

23         the developer to be assessed in accordance with

24         their ownership interest in losses resulting

25         from a natural disaster or an act of God;

26         amending s. 719.103, F.S.; defining the terms

27         "buyer" and "division"; amending s. 719.1035,

28         F.S.; requiring filing of information; amending

29         s. 719.104, F.S.; requiring notification;

30         amending s. 719.106, F.S.; providing

31         requirements relating to association meetings;

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  1         amending s. 719.301, F.S.; providing rulemaking

  2         authority; amending s. 719.403, F.S.; requiring

  3         filing of information; amending s. 719.502,

  4         F.S.; providing conditions precedent to closing

  5         on a contract for sale or specified contracts

  6         for lease; providing rulemaking authority;

  7         amending s. 719.503, F.S.; providing conditions

  8         for closing within the 15-day voidability

  9         period; creating s. 719.621, F.S.; providing

10         rulemaking authority; amending s. 721.05, F.S.;

11         conforming a cross-reference; providing an

12         effective date.

13

14  Be It Enacted by the Legislature of the State of Florida:

15

16         Section 1.  Section 718.103, Florida Statutes, is

17  amended to read:

18         718.103  Definitions.--As used in this chapter, the

19  term:

20         (1)  "Assessment" means a share of the funds which are

21  required for the payment of common expenses, which from time

22  to time is assessed against the unit owner.

23         (2)  "Association" means, in addition to those entities

24  responsible for the operation of common elements owned in

25  undivided shares by unit owners, any entity which operates or

26  maintains other real property in which condominium unit owners

27  have use rights, where unit owner membership in the entity is

28  composed exclusively of condominium unit owners or their

29  elected or appointed representatives, and where membership in

30  the entity is a required condition of unit ownership.

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  1         (3)  "Association property" means that property, real

  2  and personal, which is owned or leased by, or is dedicated by

  3  a recorded plat to, the association for the use and benefit of

  4  its members.

  5         (4)  "Board of administration" means the board of

  6  directors or other representative body which is responsible

  7  for administration of the association.

  8         (5)  "Buyer" means a person who purchases a

  9  condominium. The term "purchaser" may be used interchangeably

10  with the term "buyer."

11         (6)(5)  "Bylaws" means the bylaws of the association as

12  they exist from time to time.

13         (7)(6)  "Committee" means a group of board members,

14  unit owners, or board members and unit owners appointed by the

15  board or a member of the board to make recommendations to the

16  board regarding the association budget or take action on

17  behalf of the board.

18         (8)(7)  "Common elements" means the portions of the

19  condominium property which are not included in the units.

20         (9)(8)  "Common expenses" means all expenses and

21  assessments which are properly incurred by the association for

22  the condominium.

23         (10)(9)  "Common surplus" means the excess of all

24  receipts of the association collected on behalf of a

25  condominium (including, but not limited to, assessments,

26  rents, profits, and revenues on account of the common

27  elements) over the common expenses.

28         (11)(10)  "Condominium" means that form of ownership of

29  real property which is created pursuant to the provisions of

30  this chapter, which is comprised of units that may be owned by

31

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  1  one or more persons, and in which there is, appurtenant to

  2  each unit, an undivided share in common elements.

  3         (12)(11)  "Condominium parcel" means a unit, together

  4  with the undivided share in the common elements which is

  5  appurtenant to the unit.

  6         (13)(12)  "Condominium property" means the lands,

  7  leaseholds, and personal property that are subjected to

  8  condominium ownership, whether or not contiguous, and all

  9  improvements thereon and all easements and rights appurtenant

10  thereto intended for use in connection with the condominium.

11         (14)(13)  "Conspicuous type" means type in capital

12  letters no smaller than the largest type, exclusive of

13  headings, on the page on which it appears and, in all cases,

14  at least 10-point type.  Where conspicuous type is required,

15  it must be separated on all sides from other type and print.

16  Conspicuous type may be used in contracts for purchase or

17  public offering statements only where required by law.

18         (15)(14)  "Declaration" or "declaration of condominium"

19  means the instrument or instruments by which a condominium is

20  created, as they are from time to time amended.

21         (16)(15)  "Developer" means a person who creates a

22  condominium or offers condominium parcels for sale or lease in

23  the ordinary course of business, but does not include an owner

24  or lessee of a condominium or cooperative unit who has

25  acquired the unit for his or her own occupancy, nor does it

26  include a cooperative association which creates a condominium

27  by conversion of an existing residential cooperative after

28  control of the association has been transferred to the unit

29  owners if, following the conversion, the unit owners will be

30  the same persons who were unit owners of the cooperative and

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  1  no units are offered for sale or lease to the public as part

  2  of the plan of conversion.

  3         (17)  "Division" means the Division of Florida Land

  4  Sales, Condominiums, and Mobile Homes of the Department of

  5  Business and Professional Regulation.

  6         (18)(16)  "Land" means, unless otherwise defined in the

  7  declaration as hereinafter provided, the surface of a legally

  8  described parcel of real property and includes, unless

  9  otherwise specified in the declaration and whether separate

10  from or including such surface, airspace lying above and

11  subterranean space lying below such surface.  However, if so

12  defined in the declaration, the term "land" may mean all or

13  any portion of the airspace or subterranean space between two

14  legally identifiable elevations and may exclude the surface of

15  a parcel of real property and may mean any combination of the

16  foregoing, whether or not contiguous.

17         (19)(17)  "Limited common elements" means those common

18  elements which are reserved for the use of a certain

19  condominium unit or units to the exclusion of other units, as

20  specified in the declaration of condominium.

21         (20)(18)  "Operation" or "operation of the condominium"

22  includes the administration and management of the condominium

23  property.

24         (21)(19)  "Rental agreement" means any written

25  agreement, or oral agreement if for less duration than 1 year,

26  providing for use and occupancy of premises.

27         (22)(20)  "Residential condominium" means a condominium

28  consisting of condominium units, any of which are intended for

29  use as a private temporary or permanent residence, except that

30  a condominium is not a residential condominium if the use for

31  which the units are intended is primarily commercial or

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  1  industrial and not more than three units are intended to be

  2  used for private residence, and are intended to be used as

  3  housing for maintenance, managerial, janitorial, or other

  4  operational staff of the condominium. With respect to a

  5  condominium that is not a timeshare condominium, a residential

  6  unit includes a unit intended as a private temporary or

  7  permanent residence as well as a unit not intended for

  8  commercial or industrial use. With respect to a timeshare

  9  condominium, the timeshare instrument as defined in s.

10  721.05(28) shall govern the intended use of each unit in the

11  condominium. If a condominium is a residential condominium but

12  contains units intended to be used for commercial or

13  industrial purposes, then, with respect to those units which

14  are not intended for or used as private residences, the

15  condominium is not a residential condominium.  A condominium

16  which contains both commercial and residential units is a

17  mixed-use condominium subject to the requirements of s.

18  718.404.

19         (23)(21)  "Special assessment" means any assessment

20  levied against unit owners other than the assessment required

21  by a budget adopted annually.

22         (24)(22)  "Timeshare estate" means any interest in a

23  unit under which the exclusive right of use, possession, or

24  occupancy of the unit circulates among the various purchasers

25  of a timeshare plan pursuant to chapter 721 on a recurring

26  basis for a period of time.

27         (25)(23)  "Timeshare unit" means a unit in which

28  timeshare estates have been created.

29         (26)(24)  "Unit" means a part of the condominium

30  property which is subject to exclusive ownership.  A unit may

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  1  be in improvements, land, or land and improvements together,

  2  as specified in the declaration.

  3         (27)(25)  "Unit owner" or "owner of a unit" means a

  4  record owner of legal title to a condominium parcel.

  5         (28)(26)  "Voting certificate" means a document which

  6  designates one of the record title owners, or the corporate,

  7  partnership, or entity representative, who is authorized to

  8  vote on behalf of a condominium unit that is owned by more

  9  than one owner or by any entity.

10         (29)(27)  "Voting interest" means the voting rights

11  distributed to the association members pursuant to s.

12  718.104(4)(i).

13         Section 2.  Subsection (6), paragraph (a) of subsection

14  (11), and paragraph (c) of subsection (12) of section 718.111,

15  Florida Statutes, are amended to read:

16         718.111  The association.--

17         (6)  OPERATION OF PHASE CONDOMINIUMS CREATED PRIOR TO

18  1977.--Notwithstanding any provision of this chapter, an

19  association may operate two or more residential condominiums

20  in which the initial condominium declaration was recorded

21  prior to January 1, 1977, a phase project initially created

22  pursuant to former s. 711.64 and may continue to so operate

23  such condominiums project as though it were a single

24  condominium for purposes of financial matters, including

25  budgets, assessments, accounting, recordkeeping, and similar

26  matters, if provision is made for such consolidated operation

27  in the applicable declarations of each such condominium as

28  initially recorded or in the bylaws as initially adopted. An

29  association for such condominiums may also provide for

30  consolidated financial operation as described in this section

31  either by amending its declaration pursuant to s.

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  1  718.110(1)(a) or by amending its bylaws and having the

  2  amendment approved by not less than two-thirds of the total

  3  voting interests. Notwithstanding any provision in this

  4  chapter, common expenses for residential condominiums in such

  5  a project being operated by a single association may be

  6  assessed against all unit owners in such project pursuant to

  7  the proportions or percentages established therefor in the

  8  declarations as initially recorded or in the bylaws as

  9  initially adopted, subject, however, to the limitations of ss.

10  718.116 and 718.302.

11         (11)  INSURANCE.--

12         (a)  A unit-owner controlled The association shall use

13  its best efforts to obtain and maintain adequate insurance to

14  protect the association, the association property, the common

15  elements, and the condominium property required to be insured

16  by the association pursuant to paragraph (b). If the

17  association is developer-controlled, the association shall

18  exercise due diligence to obtain and maintain such insurance.

19  Failure to obtain and maintain adequate insurance during any

20  period of developer control shall constitute a breach of

21  fiduciary responsibility by the developer appointed members of

22  the board of directors of the association, unless said members

23  can show that despite such failure, they have exercised due

24  diligence. An The association may also obtain and maintain

25  liability insurance for directors and officers, insurance for

26  the benefit of association employees, and flood insurance for

27  common elements, association property, and units.  An

28  association or group of associations may self-insure against

29  claims against the association, the association property, and

30  the condominium property required to be insured by an

31  association, upon compliance with ss. 624.460-624.488.  A copy

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  1  of each policy of insurance in effect shall be made available

  2  for inspection by unit owners at reasonable times.

  3         (12)  OFFICIAL RECORDS.--

  4         (c)  The official records of the association are open

  5  to inspection by any association member or the authorized

  6  representative of such member at all reasonable times.  The

  7  right to inspect the records includes the right to make or

  8  obtain copies, either in person or by mail, at the reasonable

  9  expense, if any, of the association member.  The association

10  may adopt reasonable rules regarding the frequency, time,

11  location, notice, and manner of record inspections, and

12  copying and delivery. However, an association consisting of

13  more than 50 units must, upon written request, copy and

14  deliver the requested official record copies and may charge

15  its actual costs to comply with the request. For purposes of

16  this section, a postmark, when applicable, establishes the

17  date of delivery.  The failure of an association to provide

18  the records within 10 working days after receipt of a written

19  request shall create a rebuttable presumption that the

20  association willfully failed to comply with this paragraph.  A

21  unit owner who is denied access to official records is

22  entitled to the actual damages or minimum damages for the

23  association's willful failure to comply with this paragraph.

24  The minimum damages shall be $50 per calendar day up to 10

25  days, the calculation to begin on the 11th working day after

26  receipt of the written request.  The failure to permit

27  inspection of the association records as provided herein

28  entitles any person prevailing in an enforcement action to

29  recover reasonable attorney's fees from the person in control

30  of the records who, directly or indirectly, knowingly denied

31  access to the records for inspection.  The association shall

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  1  maintain an adequate number of copies of the declaration,

  2  articles of incorporation, bylaws, and rules, and all

  3  amendments to each of the foregoing, as well as the question

  4  and answer sheet provided for in s. 718.504 on the condominium

  5  property to ensure their availability to unit owners and

  6  prospective purchasers, and may charge its actual costs of

  7  mailing for preparing and furnishing these documents to those

  8  requesting the same.  Notwithstanding the provisions of this

  9  paragraph, the following records shall not be accessible to

10  unit owners:

11         1.  A record which was prepared by an association

12  attorney or prepared at the attorney's express direction,

13  which reflects a mental impression, conclusion, litigation

14  strategy, or legal theory of the attorney or the association,

15  and which was prepared exclusively for civil or criminal

16  litigation or for adversarial administrative proceedings, or

17  which was prepared in anticipation of imminent civil or

18  criminal litigation or imminent adversarial administrative

19  proceedings until the conclusion of the litigation or

20  adversarial administrative proceedings.

21         2.  Information obtained by an association in

22  connection with the approval of the lease, sale, or other

23  transfer of a unit.

24         3.  Medical records of unit owners.

25         Section 3.  Paragraph (d) of subsection (2) of section

26  718.112, Florida Statutes, is amended to read:

27         718.112  Bylaws.--

28         (2)  REQUIRED PROVISIONS.--The bylaws shall provide for

29  the following and, if they do not do so, shall be deemed to

30  include the following:

31         (d)  Unit owner meetings.--

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  1         1.  There shall be an annual meeting of the unit

  2  owners. Unless the bylaws provide otherwise, a vacancy on the

  3  board of administration caused by the expiration of a

  4  director's term shall be filled by electing a new board

  5  member, and the election shall be by closed ballot; however,

  6  if there is only one candidate for election to fill the

  7  vacancy, no election is required. If there is no provision in

  8  the bylaws for terms of the members of the board of

  9  administration, the terms of all members of the board of

10  administration shall expire upon the election of their

11  successors at the annual meeting. Any unit owner desiring to

12  be a candidate for board membership shall comply with

13  subparagraph 3. In order to be eligible for board membership a

14  person must meet the requirements set forth in the

15  declaration. A person who has been convicted of any felony by

16  any court of record and who has not had his or her right to

17  vote restored pursuant to law in the jurisdiction of his or

18  her residence is not eligible for board membership.

19         2.  The bylaws shall provide the method of calling

20  meetings of unit owners, including annual meetings. Written

21  notice, which notice must include an agenda, shall be mailed

22  or delivered to each unit owner at least 14 days prior to the

23  annual meeting and shall be posted in a conspicuous place on

24  the condominium property at least 14 continuous days preceding

25  the annual meeting. Upon notice to the unit owners, the board

26  shall by duly adopted rule designate a specific location on

27  the condominium property or association property upon which

28  all notices of unit owner meetings shall be posted; however,

29  if there is no condominium property or association property

30  upon which notices can be posted, this requirement does not

31  apply. Unless a unit owner waives in writing the right to

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  1  receive notice of the annual meeting by mail, the notice of

  2  the annual meeting shall be sent by mail to each unit owner.

  3  Where a unit is owned by more than one person, the association

  4  shall provide notice, for meetings and all other purposes, to

  5  that one address which the developer initially identifies for

  6  that purpose and thereafter as one or more of the owners of

  7  the unit shall so advise the association in writing, or if no

  8  address is given or the owners of the unit do not agree, to

  9  the address provided on the deed of record. An officer of the

10  association, or the manager or other person providing notice

11  of the association meeting, shall provide an affidavit or

12  United States Postal Service certificate of mailing, to be

13  included in the official records of the association affirming

14  that the notice was mailed or hand delivered, in accordance

15  with this provision, to each unit owner at the address last

16  furnished to the association.

17         3.  After January 1, 1992, the members of the board of

18  administration shall be elected by written ballot or voting

19  machine. Proxies shall in no event be used in electing the

20  board of administration, either in general elections or

21  elections to fill vacancies caused by recall, resignation, or

22  otherwise, unless otherwise provided in this chapter. Not less

23  than 60 days before a scheduled election, the association

24  shall mail or deliver, whether by separate association mailing

25  or included in another association mailing or delivery

26  including regularly published newsletters, to each unit owner

27  entitled to a vote, a first notice of the date of the

28  election. Any eligible unit owner or other eligible person

29  desiring to be a candidate for the board of administration

30  must give written notice to the association not less than 40

31  days before a scheduled election.  Together with the written

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  1  notice and agenda as set forth in subparagraph 2., the

  2  association shall mail or deliver a second notice of the

  3  election to all unit owners entitled to vote therein, together

  4  with a ballot which shall list all candidates. Upon request of

  5  a candidate, the association shall include an information

  6  sheet, no larger than 8 1/2  inches by 11 inches, which must

  7  be furnished by the candidate not less than 35 days before the

  8  election, to be included with the mailing of the ballot, with

  9  the costs of mailing or delivery and copying to be borne by

10  the association. However, the association has no liability for

11  the contents of the information sheets prepared by the

12  candidates.  In order to reduce costs, the association may

13  print or duplicate the information sheets on both sides of the

14  paper. The division shall by rule establish voting procedures

15  consistent with the provisions contained herein, including

16  rules providing for the secrecy of ballots.  Elections shall

17  be decided by a plurality of those ballots cast. There shall

18  be no quorum requirement; however, at least 20 percent of the

19  eligible voters must cast a ballot in order to have a valid

20  election of members of the board of administration. No unit

21  owner shall permit any other person to vote his or her ballot,

22  and any such ballots improperly cast shall be deemed invalid.

23  A unit owner who needs assistance in casting the ballot for

24  the reasons stated in s. 101.051 may obtain assistance in

25  casting the ballot. Any unit owner violating this provision

26  may be fined by the association in accordance with s. 718.303.

27  The regular election shall occur on the date of the annual

28  meeting. The provisions of this subparagraph shall not apply

29  to timeshare condominium associations. Notwithstanding the

30  provisions of this subparagraph, an election and balloting are

31

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  1  not required unless more candidates file notices of intent to

  2  run or are nominated than vacancies exist on the board.

  3         4.  Any approval by unit owners called for by this

  4  chapter or the applicable declaration or bylaws, including,

  5  but not limited to, the approval requirement in s. 718.111(8),

  6  shall be made at a duly noticed meeting of unit owners and

  7  shall be subject to all requirements of this chapter or the

  8  applicable condominium documents relating to unit owner

  9  decisionmaking, except that unit owners may take action by

10  written agreement, without meetings, on matters for which

11  action by written agreement without meetings is expressly

12  allowed by the applicable bylaws or declaration or any statute

13  which provides for such action.

14         5.  Unit owners may waive notice of specific meetings

15  if allowed by the applicable bylaws or declaration or any

16  statute.

17         6.  Unit owners shall have the right to participate in

18  meetings of unit owners with reference to all designated

19  agenda items. However, the association may adopt reasonable

20  rules governing the frequency, duration, and manner of unit

21  owner participation.

22         7.  Any unit owner may tape record or videotape a

23  meeting of the unit owners subject to reasonable rules adopted

24  by the division.

25

26  Notwithstanding subparagraphs (b)2. and (d)3., an association

27  may, by the affirmative vote of a majority of the total voting

28  interests, provide for different voting and election

29  procedures in its bylaws, which vote may be by a proxy

30  specifically delineating the different voting and election

31  procedures. The different voting and election procedures may

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  1  provide for elections to be conducted by limited or general

  2  proxy.

  3         Section 4.  Paragraph (a) of subsection (9) of section

  4  718.116, Florida Statutes, is amended to read:

  5         718.116  Assessments; liability; lien and priority;

  6  interest; collection.--

  7         (9)(a)  No unit owner may be excused from the payment

  8  of his or her share of the common expense of a condominium

  9  unless all unit owners are likewise proportionately excused

10  from payment, except as provided in subsection (1) and in the

11  following cases:

12         1.  If the declaration so provides, a developer or

13  other person who owns condominium units offered for sale may

14  be excused from the payment of the share of the common

15  expenses and assessments related to those units for a stated

16  period of time subsequent to the recording of the declaration

17  of condominium.  The period must terminate no later than the

18  first day of the fourth calendar month following the month in

19  which the closing of the purchase and sale of the first

20  condominium unit occurs.  However, the developer must pay

21  those the portion of common expenses incurred during that

22  period which exceed the amount assessed against other unit

23  owners. Notwithstanding this limitation, if a

24  developer-controlled association has maintained all insurance

25  coverages required by s. 718.111(11)(a), the common expenses

26  incurred during the foregoing period resulting from a natural

27  disaster or an act of God, which are not covered by insurance

28  proceeds from the insurance maintained by the association, may

29  be assigned against all unit owners owning units on the date

30  of such natural disaster or act of God, and their successors

31  and assigns, including the developer with respect to units

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  1  owned by the developer.  In the event of such an assessment,

  2  all units shall be assessed in accordance with their ownership

  3  interest in the common elements as required by s. 718.115(2).

  4         2.  A developer or other person who owns condominium

  5  units or who has an obligation to pay condominium expenses may

  6  be excused from the payment of his or her share of the common

  7  expense which would have been assessed against those units

  8  during the period of time that he or she has guaranteed to

  9  each purchaser in the purchase contract, declaration, or

10  prospectus, or by agreement between the developer and a

11  majority of the unit owners other than the developer, that the

12  assessment for common expenses of the condominium imposed upon

13  the unit owners would not increase over a stated dollar amount

14  and has obligated himself or herself to pay any amount of

15  common expenses incurred during that period and not produced

16  by the assessments at the guaranteed level receivable from

17  other unit owners. Notwithstanding this limitation, if a

18  developer-controlled association has maintained all insurance

19  coverages required by s. 718.111(11)(a), the common expenses

20  incurred during the guarantee period resulting from a natural

21  disaster or an act of God, which are not covered by insurance

22  proceeds from the insurance maintained by the association, may

23  be assessed against all unit owners owning units on the date

24  of such natural disaster or act of God, and their successors

25  and assigns, including the developer with respect to units

26  owned by the developer. In the event of such an assessment,

27  all units shall be assessed in accordance with their ownership

28  interest in the common elements as required by s. 718.115(2).

29  The guarantee may provide that after an initial stated period,

30  the developer has an option or options to extend the guarantee

31  for one or more additional stated periods.

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  1         Section 5.  Section 719.103, Florida Statutes, is

  2  amended to read:

  3         719.103  Definitions.--As used in this chapter:

  4         (1)  "Assessment" means a share of the funds required

  5  for the payment of common expenses, which from time to time is

  6  assessed against the unit owner.

  7         (2)  "Association" means the corporation for profit or

  8  not for profit that owns the record interest in the

  9  cooperative property or a leasehold of the property of a

10  cooperative and that is responsible for the operation of the

11  cooperative.

12         (3)  "Board of administration" means the board of

13  directors or other representative body responsible for

14  administration of the association.

15         (4)  "Buyer" means a person who purchases a

16  cooperative. The term "purchaser" may be used interchangeably

17  with the term "buyer."

18         (5)(4)  "Bylaws" means the bylaws of the association

19  existing from time to time.

20         (6)(5)  "Committee" means a group of board members,

21  unit owners, or board members and unit owners appointed by the

22  board or a member of the board to make recommendations to the

23  board regarding the association budget or take action on

24  behalf of the board.

25         (7)(6)  "Common areas" means the portions of the

26  cooperative property not included in the units.

27         (8)  "Common areas" includes within its meaning the

28  following:

29         (a)  The cooperative property which is not included

30  within the units.

31

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  1         (b)  Easements through units for conduits, ducts,

  2  plumbing, wiring, and other facilities for the furnishing of

  3  utility services to units and the common areas.

  4         (c)  An easement of support in every portion of a unit

  5  which contributes to the support of a building.

  6         (d)  The property and installations required for the

  7  furnishing of utilities and other services to more than one

  8  unit or to the common areas.

  9         (e)  Any other part of the cooperative property

10  designated in the cooperative documents as common areas.

11         (9)(7)  "Common expenses" means all expenses and

12  assessments properly incurred by the association for the

13  cooperative.

14         (10)(8)  "Common surplus" means the excess of all

15  receipts of the association--including, but not limited to,

16  assessments, rents, profits, and revenues on account of the

17  common areas--over the amount of common expenses.

18         (11)  "Conspicuous type" means type in capital letters

19  no smaller than the largest type on the page on which it

20  appears.

21         (12)(9)  "Cooperative" means that form of ownership of

22  real property wherein legal title is vested in a corporation

23  or other entity and the beneficial use is evidenced by an

24  ownership interest in the association and a lease or other

25  muniment of title or possession granted by the association as

26  the owner of all the cooperative property.

27         (13)(10)  "Cooperative documents" means:

28         (a)  The documents that create a cooperative,

29  including, but not limited to, articles of incorporation of

30  the association, bylaws, and the ground lease or other

31  underlying lease, if any.

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  1         (b)  The document evidencing a unit owner's membership

  2  or share in the association.

  3         (c)  The document recognizing a unit owner's title or

  4  right of possession to his or her unit.

  5         (14)(11)  "Cooperative parcel" means the shares or

  6  other evidence of ownership in a cooperative representing an

  7  undivided share in the assets of the association, together

  8  with the lease or other muniment of title or possession.

  9         (15)(12)  "Cooperative property" means the lands,

10  leaseholds, and personal property owned by a cooperative

11  association.

12         (16)(13)  "Developer" means a person who creates a

13  cooperative or who offers cooperative parcels for sale or

14  lease in the ordinary course of business, but does not include

15  the owner or lessee of a unit who has acquired or leased the

16  unit for his or her own occupancy, nor does it include a

17  condominium association which creates a cooperative by

18  conversion of an existing residential condominium after

19  control of the association has been transferred to the unit

20  owners if, following the conversion, the unit owners will be

21  the same persons.

22         (17)  "Division" means the Division of Florida Land

23  Sales, Condominiums and Mobile Homes of the Department of

24  Business and Professional Regulation.

25         (18)  "Limited common areas" means those common areas

26  which are reserved for the use of a certain cooperative unit

27  or units to the exclusion of other units, as specified in the

28  cooperative documents.

29         (19)(14)  "Operation" or "operation of the cooperative"

30  includes the administration and management of the cooperative

31  property.

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  1         (20)  "Rental agreement" means any written agreement,

  2  or oral agreement if for less duration than 1 year, providing

  3  for use and occupancy of premises.

  4         (21)  "Residential cooperative" means a cooperative

  5  consisting of cooperative units, any of which are intended for

  6  use as a private residence. A cooperative is not a residential

  7  cooperative if the use of the units is intended as primarily

  8  commercial or industrial and not more than three units are

  9  intended to be used for private residence, domicile, or

10  homestead, or if the units are intended to be used as housing

11  for maintenance, managerial, janitorial, or other operational

12  staff of the cooperative. If a cooperative is a residential

13  cooperative under this definition, but has units intended to

14  be commercial or industrial, then the cooperative is a

15  residential cooperative with respect to those units intended

16  for use as a private residence, domicile, or homestead, but

17  not a residential cooperative with respect to those units

18  intended for use commercially or industrially.

19         (22)(15)  "Unit" means a part of the cooperative

20  property which is subject to exclusive use and possession.  A

21  unit may be improvements, land, or land and improvements

22  together, as specified in the cooperative documents.

23         (23)(16)  "Unit owner" or "owner of a unit" means the

24  person holding a share in the cooperative association and a

25  lease or other muniment of title or possession of a unit that

26  is granted by the association as the owner of the cooperative

27  property.

28         (17)  "Residential cooperative" means a cooperative

29  consisting of cooperative units, any of which are intended for

30  use as a private residence.  A cooperative is not a

31  residential cooperative if the use of the units is intended as

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  1  primarily commercial or industrial and not more than three

  2  units are intended to be used for private residence, domicile,

  3  or homestead, or if the units are intended to be used as

  4  housing for maintenance, managerial, janitorial, or other

  5  operational staff of the cooperative.  If a cooperative is a

  6  residential cooperative under this definition, but has units

  7  intended to be commercial or industrial, then the cooperative

  8  is a residential cooperative with respect to those units

  9  intended for use as a private residence, domicile, or

10  homestead, but not a residential cooperative with respect to

11  those units intended for use commercially or industrially.

12         (18)  "Rental agreement" means any written agreement,

13  or oral agreement if for less duration than 1 year, providing

14  for use and occupancy of premises.

15         (19)  "Conspicuous type" means type in capital letters

16  no smaller than the largest type on the page on which it

17  appears.

18         (20)  "Limited common areas" means those common areas

19  which are reserved for the use of a certain cooperative unit

20  or units to the exclusion of other units, as specified in the

21  cooperative documents.

22         (21)  "Common areas" includes within its meaning the

23  following:

24         (a)  The cooperative property which is not included

25  within the units.

26         (b)  Easements through units for conduits, ducts,

27  plumbing, wiring, and other facilities for the furnishing of

28  utility services to units and the common areas.

29         (c)  An easement of support in every portion of a unit

30  which contributes to the support of a building.

31

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  1         (d)  The property and installations required for the

  2  furnishing of utilities and other services to more than one

  3  unit or to the common areas.

  4         (e)  Any other part of the cooperative property

  5  designated in the cooperative documents as common areas.

  6         Section 6.  Section 719.1035, Florida Statutes, is

  7  amended to read:

  8         719.1035  Creation of cooperatives.--The date when

  9  cooperative existence shall commence is upon commencement of

10  corporate existence of the cooperative association as provided

11  in s. 607.0203.  The cooperative documents must be recorded in

12  the county in which the cooperative is located before property

13  may be conveyed or transferred to the cooperative.  All

14  persons who have any record interest in any mortgage

15  encumbering the interest in the land being submitted to

16  cooperative ownership must either join in the execution of the

17  cooperative documents or execute, with the requirements for

18  deed, and record, a consent to the cooperative documents or an

19  agreement subordinating their mortgage interest to the

20  cooperative documents. Upon creation of a cooperative, the

21  developer or association shall file the recording information

22  with the division within 30 working days on a form prescribed

23  by the division.

24         Section 7.  Subsection (10) is added to section

25  719.104, Florida Statutes, to read:

26         719.104  Cooperatives; access to units; records;

27  financial reports; assessments; purchase of leases.--

28         (10)  NOTIFICATION OF DIVISION.--When the board of

29  directors intends to dissolve or merge the cooperative

30  association, the board shall so notify the division before

31

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  1  taking any action to dissolve or merge the cooperative

  2  association.

  3         Section 8.  Paragraphs (b) and (c) of subsection (1) of

  4  section 719.106, Florida Statutes, are amended to read:

  5         719.106  Bylaws; cooperative ownership.--

  6         (1)  MANDATORY PROVISIONS.--The bylaws or other

  7  cooperative documents shall provide for the following, and if

  8  they do not, they shall be deemed to include the following:

  9         (b)  Quorum; voting requirements; proxies.--

10         1.  Unless otherwise provided in the bylaws, the

11  percentage of voting interests required to constitute a quorum

12  at a meeting of the members shall be a majority of voting

13  interests, and decisions shall be made by owners of a majority

14  of the voting interests. Unless otherwise provided in this

15  chapter, or in the articles of incorporation, bylaws, or other

16  cooperative documents, and except as provided in subparagraph

17  (d)1., decisions shall be made by owners of a majority of the

18  voting interests represented at a meeting at which a quorum is

19  present.

20         2.  Except as specifically otherwise provided herein,

21  after January 1, 1992, unit owners may not vote by general

22  proxy, but may vote by limited proxies substantially

23  conforming to a limited proxy form adopted by the division.

24  Limited proxies and general proxies may be used to establish a

25  quorum.  Limited proxies shall be used for votes taken to

26  waive or reduce reserves in accordance with subparagraph

27  (j)2., for votes taken to amend the articles of incorporation

28  or bylaws pursuant to this section, and for any other matter

29  for which this chapter requires or permits a vote of the unit

30  owners.  Except as provided in paragraph (d), after January 1,

31  1992, no proxy, limited or general, shall be used in the

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  1  election of board members. General proxies may be used for

  2  other matters for which limited proxies are not required, and

  3  may also be used in voting for nonsubstantive changes to items

  4  for which a limited proxy is required and given.

  5  Notwithstanding the provisions of this section, unit owners

  6  may vote in person at unit owner meetings. Nothing contained

  7  herein shall limit the use of general proxies or require the

  8  use of limited proxies or require the use of limited proxies

  9  for any agenda item or election at any meeting of a timeshare

10  cooperative.

11         3.  Any proxy given shall be effective only for the

12  specific meeting for which originally given and any lawfully

13  adjourned meetings thereof.  In no event shall any proxy be

14  valid for a period longer than 90 days after the date of the

15  first meeting for which it was given.  Every proxy shall be

16  revocable at any time at the pleasure of the unit owner

17  executing it.

18         4.  A member of the board of administration or a

19  committee may submit in writing his or her agreement or

20  disagreement with any action taken at a meeting that the

21  member did not attend. This agreement or disagreement may not

22  be used as a vote for or against the action taken and may not

23  be used for the purposes of creating a quorum.

24         5.  When some or all of the board or committee members

25  meet by telephone conference, those board or committee members

26  attending by telephone conference may be counted toward

27  obtaining a quorum and may vote by telephone.  A telephone

28  speaker shall be utilized so that the conversation of those

29  board or committee members attending by telephone may be heard

30  by the board or committee members attending in person, as well

31  as by unit owners present at a meeting.

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  1         (c)  Board of administration meetings.--Meetings of the

  2  board of administration at which a quorum of the members is

  3  present shall be open to all unit owners.  Any unit owner may

  4  tape record or videotape meetings of the board of

  5  administration.  The right to attend such meetings includes

  6  the right to speak at such meetings with reference to all

  7  designated agenda items.  The division shall adopt reasonable

  8  rules governing the tape recording and videotaping of the

  9  meeting.  The association may adopt reasonable written rules

10  governing the frequency, duration, and manner of unit owner

11  statements. Adequate notice of all meetings shall be posted in

12  a conspicuous place upon the cooperative property at least 48

13  continuous hours preceding the meeting, except in an

14  emergency.  Any item not included on the notice may be taken

15  up on an emergency basis by at least a majority plus one of

16  the members of the board. Such emergency action shall be

17  noticed and ratified at the next regular meeting of the board.

18  However, written notice of any meeting at which nonemergency

19  special assessments, or at which amendment to rules regarding

20  unit use, will be considered shall be mailed or delivered to

21  the unit owners and posted conspicuously on the cooperative

22  property not less than 14 days prior to the meeting. Evidence

23  of compliance with this 14-day notice shall be made by an

24  affidavit executed by the person providing the notice and

25  filed among the official records of the association.  Upon

26  notice to the unit owners, the board shall by duly adopted

27  rule designate a specific location on the cooperative property

28  upon which all notices of board meetings shall be posted.

29  Notice of any meeting in which regular assessments against

30  unit owners are to be considered for any reason shall

31  specifically contain a statement that assessments will be

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  1  considered and the nature of any such assessments. Meetings of

  2  a committee to take final action on behalf of the board or to

  3  make recommendations to the board regarding the association

  4  budget are subject to the provisions of this paragraph.

  5  Meetings of a committee that does not take final action on

  6  behalf of the board or make recommendations to the board

  7  regarding the association budget are subject to the provisions

  8  of this section, unless those meetings are exempted from this

  9  section by the bylaws of the association. Notwithstanding any

10  other law to the contrary, the requirement that board meetings

11  and committee meetings be open to the unit owners is

12  inapplicable to meetings between the board or a committee and

13  the association's attorney, with respect to proposed or

14  pending litigation, when the meeting is held for the purpose

15  of seeking or rendering legal advice.

16         Section 9.  Subsection (6) is added to section 719.301,

17  Florida Statutes, to read:

18         719.301  Transfer of association control.--

19         (6)  The division may adopt rules administering the

20  provisions of this section.

21         Section 10.  Subsection (7) is added to section

22  719.403, Florida Statutes, to read:

23         719.403  Phase cooperatives.--

24         (7)  Upon recording the cooperative documents or

25  amendments adding phases pursuant to this section, the

26  developer or association shall file the recording information

27  with the division within 30 working days on a form prescribed

28  by the division.

29         Section 11.  Subsection (1) of section 719.502, Florida

30  Statutes, is amended to read:

31         719.502  Filing prior to sale or lease.--

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  1         (1)(a)  A developer of a residential cooperative shall

  2  file with the division one copy of each of the documents and

  3  items required to be furnished to a buyer or lessee by ss.

  4  719.503 and 719.504, if applicable.  Until the developer has

  5  so filed, a contract for sale or lease of a unit for more than

  6  5 years shall be voidable by the purchaser or lessee prior to

  7  the closing of his or her purchase or lease of a unit. A

  8  developer shall not close on any contract for sale or contract

  9  for a lease period of more than 5 years until the developer

10  prepares and files with the division documents complying with

11  the requirements of this chapter and the rules promulgated by

12  the division and until the division notifies the developer

13  that the filing is proper. A developer shall not close on any

14  contract for sale or contract for a lease period of more than

15  5 years, as further provided in s. 719.503(1)(b), until the

16  developer prepares and delivers all documents required by s.

17  719.503(1)(b) to the prospective buyer.

18         (b)  The division may by rule develop filing, review,

19  and examination requirements and the relevant timetables

20  necessary to ensure compliance with the notice and disclosure

21  requirements of this section.

22         Section 12.  Paragraph (b) of subsection (1) of section

23  719.503, Florida Statutes, is amended to read:

24         719.503  Disclosure prior to sale.--

25         (1)  DEVELOPER DISCLOSURE.--

26         (b)  Copies of documents to be furnished to prospective

27  buyer or lessee.--Until such time as the developer has

28  furnished the documents listed below to a person who has

29  entered into a contract to purchase a unit or lease it for

30  more than 5 years, the contract may be voided by that person,

31  entitling the person to a refund of any deposit together with

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  1  interest thereon as provided in s. 719.202.  The contract may

  2  be terminated by written notice from the proposed buyer or

  3  lessee delivered to the developer within 15 days after the

  4  buyer or lessee receives all of the documents required by this

  5  section. The developer shall not close for 15 days following

  6  the execution of the agreement and delivery of the documents

  7  to the buyer as evidenced by a receipt for documents signed by

  8  the buyer unless the buyer is informed in the 15-day

  9  voidability period and agrees to close prior to the expiration

10  of the 15 days. The developer shall retain in his or her

11  records a separate signed agreement as proof of the buyer's

12  agreement to close prior to the expiration of said voidability

13  period. Said proof shall be retained for a period of 5 years

14  after the date of the closing transaction. The documents to be

15  delivered to the prospective buyer are the prospectus or

16  disclosure statement with all exhibits, if the development is

17  subject to the provisions of s. 719.504, or, if not, then

18  copies of the following which are applicable:

19         1.  The question and answer sheet described in s.

20  719.504, and cooperative documents, or the proposed

21  cooperative documents if the documents have not been recorded,

22  which shall include the certificate of a surveyor

23  approximately representing the locations required by s.

24  719.104.

25         2.  The documents creating the association.

26         3.  The bylaws.

27         4.  The ground lease or other underlying lease of the

28  cooperative.

29         5.  The management contract, maintenance contract, and

30  other contracts for management of the association and

31  operation of the cooperative and facilities used by the unit

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  1  owners having a service term in excess of 1 year, and any

  2  management contracts that are renewable.

  3         6.  The estimated operating budget for the cooperative

  4  and a schedule of expenses for each type of unit, including

  5  fees assessed to a shareholder who has exclusive use of

  6  limited common areas, where such costs are shared only by

  7  those entitled to use such limited common areas.

  8         7.  The lease of recreational and other facilities that

  9  will be used only by unit owners of the subject cooperative.

10         8.  The lease of recreational and other common areas

11  that will be used by unit owners in common with unit owners of

12  other cooperatives.

13         9.  The form of unit lease if the offer is of a

14  leasehold.

15         10.  Any declaration of servitude of properties serving

16  the cooperative but not owned by unit owners or leased to them

17  or the association.

18         11.  If the development is to be built in phases or if

19  the association is to manage more than one cooperative, a

20  description of the plan of phase development or the

21  arrangements for the association to manage two or more

22  cooperatives.

23         12.  If the cooperative is a conversion of existing

24  improvements, the statements and disclosure required by s.

25  719.616.

26         13.  The form of agreement for sale or lease of units.

27         14.  A copy of the floor plan of the unit and the plot

28  plan showing the location of the residential buildings and the

29  recreation and other common areas.

30

31

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  1         15.  A copy of all covenants and restrictions which

  2  will affect the use of the property and which are not

  3  contained in the foregoing.

  4         16.  If the developer is required by state or local

  5  authorities to obtain acceptance or approval of any dock or

  6  marina facilities intended to serve the cooperative, a copy of

  7  any such acceptance or approval acquired by the time of filing

  8  with the division pursuant to s. 719.502(1) or a statement

  9  that such acceptance or approval has not been acquired or

10  received.

11         17.  Evidence demonstrating that the developer has an

12  ownership, leasehold, or contractual interest in the land upon

13  which the cooperative is to be developed.

14         Section 13.  Section 719.621, Florida Statutes, is

15  created to read:

16         719.621  Rulemaking authority.--The division may adopt

17  rules to administer and ensure compliance with a developer's

18  obligations with respect to cooperative conversions concerning

19  the filing and noticing of intended conversions, rental

20  agreement extensions, rights of first refusal, and disclosures

21  and post-purchase protections.

22         Section 14.  Subsection (28) of section 721.05, Florida

23  Statutes, is amended to read:

24         721.05  Definitions.--As used in this chapter, the

25  term:

26         (28)  "Timeshare estate" means a right to occupy a

27  timeshare unit, coupled with a freehold estate or an estate

28  for years with a future interest in a timeshare property or a

29  specified portion thereof.  The term shall also mean an

30  interest in a condominium unit pursuant to s. 718.103 s.

31  718.103(22).

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  1         Section 15.  This act shall take effect upon becoming a

  2  law.

  3

  4          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
  5                             SB 1624

  6

  7  Provides a procedure for amending the declarations or bylaws
    of condominiums recorded prior to January 1, 1977, to
  8  consolidate financial operations of two or more residential
    condominiums under a single association.
  9
    Requires an association with more than 50 units to deliver
10  copies of the official records upon written request and
    provides for the association to recover its actual costs of
11  copying and delivering the documents. Defines the terms
    "buyer" and "division" in the Condominium Act and the
12  Cooperative Act.

13  Provides that a person convicted of a felony is not eligible
    for board membership in a condominium association unless that
14  person's right to vote is restored. Provides for procedures
    and requirements related to cooperative committee meetings.
15  Requires a signed agreement by the buyer of a cooperative
    waiving the buyer's right to void a sale within 15 days of the
16  purchase.

17  Provides that the board of directors of a cooperative
    association must notify the division prior to taking any
18  action to dissolve or merge the association. Provides that
    upon creation of a cooperative or upon recording the
19  cooperative documents or amendments adding phases to a
    cooperative, the developer or the association shall, within 30
20  days, file with the division such recording information.

21  Authorizes the division to adopt rules to administer
    provisions regarding transfer of cooperative association
22  control from the developer to the unit owners. Provides
    specific authority for the division to adopt rules regarding
23  filing, review, and examination requirements and relevant
    timetables relating to ensuring compliance with notice and
24  disclosure requirements. Authorizes the division to adopt
    rules to administer and ensure compliance of the developers'
25  obligations with respect to cooperative conversions.

26

27

28

29

30

31

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