Senate Bill sb1208c1

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    Florida Senate - 2004                           CS for SB 1208

    By the Committee on Comprehensive Planning; and Senator
    Webster




    316-1958-04

  1                      A bill to be entitled

  2         An act relating to timeshare plans; amending s.

  3         721.02, F.S.; revising language with respect to

  4         legislative purpose under the Florida Vacation

  5         Plan and Timesharing Act; amending s. 721.03,

  6         F.S.; revising language with respect to the

  7         scope of the act to include reference to

  8         personal property timeshare plans; amending s.

  9         721.05, F.S.; providing definitions; amending

10         s. 721.06, F.S.; revising language with respect

11         to contracts for purchase of timeshare

12         interests to include provisions with respect to

13         personal property timeshare interests; amending

14         s. 721.065, F.S.; revising language with

15         respect to resale purchase agreements to

16         include reference to certain real property and

17         personal property timeshare plans; amending s.

18         721.07, F.S.; revising language with respect to

19         public offering statements; amending s.

20         721.075, F.S.; revising language with respect

21         to incidental benefits; requiring purchasers to

22         execute a statement indicating the source of

23         the benefit; amending s. 721.08, F.S.; revising

24         language with respect to escrow accounts;

25         amending s. 721.09, F.S.; revising language

26         with respect to reservation agreements;

27         amending s. 721.11, F.S.; revising language

28         with respect to advertising materials;

29         correcting cross-references; amending s.

30         721.12, F.S.; providing for required

31         recordkeeping by the seller of a personal

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 1         property timeshare plan; amending s. 721.13,

 2         F.S.; revising language with respect to

 3         management; correcting a cross-reference;

 4         amending s. 721.14, F.S.; providing that a

 5         section of law governing the discharge of the

 6         managing entity shall not apply with respect to

 7         personal property timeshare plans; amending s.

 8         721.15, F.S.; revising language with respect to

 9         assessments for common expenses; amending s.

10         721.16, F.S.; providing that a section of law

11         governing certain liens does not apply to

12         personal property timeshare plans; amending s.

13         721.17, F.S.; revising language with respect to

14         transfer of interest; amending s. 721.18, F.S.;

15         revising language with respect to exchange

16         programs; amending s. 721.19, F.S.; including

17         reference to personal property timeshare

18         interests; amending s. 721.20, F.S., relating

19         to licensing requirements; providing for the

20         application of certain provisions to personal

21         property timeshare plans; amending s. 721.24,

22         F.S.; exempting accommodations and facilities

23         of personal property timeshare plans from a

24         provision of law governing firesafety; amending

25         s. 721.26, F.S.; revising language with respect

26         to regulation by the division; amending s.

27         721.52, F.S.; redefining the term "multisite

28         timeshare plan" and defining the terms

29         "nonspecific multisite timeshare plan" and

30         "specific multisite timeshare plan"; amending

31         s. 721.53, F.S.; revising language with respect

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 1         to subordination instruments; amending s.

 2         721.54, F.S.; correcting a cross-reference;

 3         amending s. 721.55, F.S.; providing reference

 4         to filed rather than registered public offering

 5         statements; providing reference to multisite

 6         timeshare plans; amending s. 721.551, F.S.;

 7         providing for reference to filed rather than

 8         registered public offering statements; amending

 9         s. 721.552, F.S.; providing reference to

10         multistate timeshare plans; amending s. 721.56,

11         F.S.; providing reference to personal property

12         timeshare plans; amending s. 721.57, F.S.;

13         revising language with respect to timeshare

14         estates in multisite timeshare plans; amending

15         s. 721.84, F.S.; revising language with respect

16         to appointment of a registered agent; amending

17         ss. 721.96 and 721.97, F.S.; including

18         reference to personal property timeshare

19         interests; amending ss. 475.011 and 718.103,

20         F.S.; correcting cross-references; providing

21         for applicability; providing an effective date.

22  

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

24  

25         Section 1.  Subsections (1) and (5) of section 721.02,

26  Florida Statutes, are amended to read:

27         721.02  Purposes.--The purposes of this chapter are to:

28         (1)  Give statutory recognition to real property

29  timeshare plans timesharing and personal property timeshare

30  plans timesharing in this the state.

31  

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 1         (5)  Recognize that the tourism industry in this state

 2  is a vital part of the state's economy; that the sale,

 3  promotion, and use of timeshare plans is an emerging, dynamic

 4  segment of the tourism industry; that this segment of the

 5  tourism industry continues to grow, both in volume of sales

 6  and in complexity and variety of product structure; and that a

 7  uniform and consistent method of regulation is necessary in

 8  order to safeguard Florida's tourism industry and the state's

 9  economic well-being. In order to protect the quality of

10  Florida timeshare plans and the consumers who purchase them,

11  it is the intent of the Legislature that this chapter be

12  interpreted broadly in order to encompass all forms of

13  timeshare plans with a duration of at least 3 years that are

14  created with respect to accommodations and facilities that are

15  located in the state or that are offered for sale in the state

16  as provided herein, including, but not limited to,

17  condominiums, cooperatives, undivided interest campgrounds,

18  cruise ships, vessels, houseboats, and recreational vehicles

19  and other motor vehicles, and including vacation clubs,

20  multisite vacation plans, and multiyear vacation and lodging

21  certificates.

22         Section 2.  Paragraph (d) is added to subsection (1) of

23  section 721.03, Florida Statutes, and subsection (8) of that

24  section, is amended to read:

25         721.03  Scope of chapter.--

26         (1)  This chapter applies to all timeshare plans

27  consisting of more than seven timeshare periods over a period

28  of at least 3 years in which the accommodations and

29  facilities, if any, are located within this state or offered

30  within this state; provided that:

31  

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 1         (d)  For purposes of determining the term of the plan,

 2  the period of any automatic renewals shall be included, except

 3  as provided in s. 721.52(4)(b).

 4         (8)  With respect to any personal property

 5  accommodation or facility of a timeshare plan: which is

 6  situated upon

 7         (a)  This chapter applies only to personal property

 8  timeshare plans that are offered in this state.,

 9         (b)  The division shall have the authority to adopt

10  rules interpreting and implementing the provisions of this

11  chapter as they apply to any personal property timeshare plan

12  or any such accommodation or facility that is part of a

13  personal property timeshare plan offered in this state, or as

14  the provisions of this chapter they apply to any other laws of

15  this state, of the several states, or of the United States, or

16  of any other jurisdiction, with respect to any personal

17  property timeshare plan or any such accommodation or facility

18  that is part of a personal property timeshare plan offered in

19  this state.

20         (c)  Any developer and any managing entity of a

21  personal property timeshare plan must submit to personal

22  jurisdiction in this state in a form satisfactory to the

23  division at the time of filing a public offering statement.

24         Section 3.  Section 721.05, Florida Statutes, is

25  amended to read:

26         721.05  Definitions.--As used in this chapter, the

27  term:

28         (1)  "Accommodation" means any apartment, condominium

29  or cooperative unit, cabin, lodge, hotel or motel room,

30  campground, cruise ship cabin, houseboat or other vessel,

31  recreational or other motor vehicle, or any or other private

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 1  or commercial structure which is situated on real or personal

 2  property and designed for overnight occupancy or use by one or

 3  more individuals. The term does not include an incidental

 4  benefit as defined in this section.

 5         (2)  "Agreement for deed" means any written contract

 6  utilized in the sale of timeshare estates which provides that

 7  legal title will not be conveyed to the purchaser until the

 8  contract price has been paid in full and the terms of payment

 9  of which extend for a period in excess of 180 days after

10  either the date of execution of the contract or completion of

11  construction, whichever occurs later.

12         (3)  "Agreement for transfer" means any written

13  contract utilized in the sale of personal property timeshare

14  interests which provides that legal title will not be

15  transferred to the purchaser until the contract price has been

16  paid in full and the terms of payment of which extend for a

17  period in excess of 180 days after either the date of

18  execution of the contract or completion of construction,

19  whichever occurs later.

20         (4)(3)  "Assessment" means the share of funds required

21  for the payment of common expenses which is assessed from time

22  to time against each purchaser by the managing entity.

23         (5)(4)  "Closing" means:

24         (a)  For any plan selling timeshare estates, conveyance

25  of the legal or beneficial title to a timeshare estate as

26  evidenced by the delivery of a deed for conveyance of legal

27  title, or other instrument for conveyance of beneficial title,

28  to the purchaser or to the clerk of the court for recording or

29  conveyance of the equitable title to a timeshare estate as

30  evidenced by the irretrievable delivery of an agreement for

31  deed to the clerk of the court for recording.

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 1         (b)  For any plan selling timeshare licenses or

 2  personal property timeshare interests, the final execution and

 3  delivery by all parties of the last document necessary for

 4  vesting in the purchaser the full rights available under the

 5  plan.

 6         (6)(5)  "Common expenses" means:

 7         (a)  Those expenses, fees, or taxes properly incurred

 8  for the maintenance, operation, and repair of the

 9  accommodations or facilities, or both, constituting the

10  timeshare plan.

11         (b)  Any other expenses, fees, or taxes designated as

12  common expenses in a timeshare instrument.

13         (c)  Any past due and uncollected ad valorem taxes

14  assessed against a timeshare development pursuant to s.

15  192.037.

16         (7)(6)  "Completion of construction" means:

17         (a)1.  That a certificate of occupancy has been issued

18  for the entire building in which the timeshare unit being sold

19  is located, or for the improvement, or that the equivalent

20  authorization has been issued, by the governmental body having

21  jurisdiction; or

22         2.  In a jurisdiction in which no certificate of

23  occupancy or equivalent authorization is issued, that the

24  construction, finishing, and equipping of the building or

25  improvements according to the plans and specifications have

26  been substantially completed; or

27         3.  With respect to personal property timeshare plans,

28  that all accommodations have been manufactured or built and

29  acquired or leased by the developer, owners' association,

30  managing entity, trustee, or other person for the use of

31  purchasers as set forth in the timeshare instrument; and

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 1         (b)  That all accommodations and facilities of the

 2  timeshare plan are available for use in a manner identical in

 3  all material respects to the manner portrayed by the

 4  promotional material, advertising, and filed registered public

 5  offering statements.

 6         (8)(7)  "Conspicuous type" means:

 7         (a)  Type in upper and lower case letters two point

 8  sizes larger than the largest nonconspicuous type, exclusive

 9  of headings, on the page on which it appears but in at least

10  10-point type; or

11         (b)  Where the use of 10-point type would be

12  impractical or impossible with respect to a particular piece

13  of written advertising material, a different style of type or

14  print may be used, so long as the print remains conspicuous

15  under the circumstances.

16  

17  Where conspicuous type is required, it must be separated on

18  all sides from other type and print. Conspicuous type may be

19  utilized in contracts for purchase or public offering

20  statements only where required by law or as authorized by the

21  division.

22         (9)(8)  "Contract" means any agreement conferring the

23  rights and obligations of a timeshare plan on the purchaser.

24         (10)(9)  "Developer" includes:

25         (a)  A "creating developer," which means any person who

26  creates the timeshare plan;

27         (b)  A "successor developer," which means any person

28  who succeeds to the interest of the persons in this subsection

29  by sale, lease, assignment, mortgage, or other transfer, but

30  the term includes only those persons who offer timeshare

31  interests in the ordinary course of business; and

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 1         (c)  A "concurrent developer," which means any person

 2  acting concurrently with the persons in this subsection with

 3  the purpose of offering timeshare interests in the ordinary

 4  course of business.

 5         (d)  The term "developer" does not include:

 6         1.  An owner of a timeshare interest who has acquired

 7  the timeshare interest for his or her own use and occupancy

 8  and who later offers it for resale; provided that a rebuttable

 9  presumption shall exist that an owner who has acquired more

10  than seven timeshare interests did not acquire them for his or

11  her own use and occupancy;

12         2.  A managing entity, not otherwise a developer, that

13  offers, or engages a third party to offer on its behalf,

14  timeshare interests in a timeshare plan which it manages,

15  provided that such offer complies with the provisions of s.

16  721.065;

17         3.  A person who owns or is conveyed, assigned, or

18  transferred more than seven timeshare interests and who

19  subsequently conveys, assigns, or transfers all acquired

20  timeshare interests to a single purchaser in a single

21  transaction, which transaction may occur in stages; or

22         4.  A person who has acquired or has the right to

23  acquire more than seven timeshare interests from a developer

24  or other interestholder in connection with a loan,

25  securitization, conduit, or similar financing arrangement

26  transaction and who subsequently arranges for all or a portion

27  of the timeshare interests to be offered by one or more

28  developers in the ordinary course of business on their own

29  behalves or on behalf of such person.

30         (e)  A successor or concurrent developer shall be

31  exempt from any liability inuring to a predecessor or

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 1  concurrent developer of the same timeshare plan, except as

 2  provided in s. 721.15(7), provided that this exemption shall

 3  not apply to any of the successor or concurrent developer's

 4  responsibilities, duties, or liabilities with respect to the

 5  timeshare plan that accrue after the date the successor or

 6  concurrent developer became a successor or concurrent

 7  developer, and provided that such transfer does not constitute

 8  a fraudulent transfer. In addition to other provisions of law,

 9  a transfer by a predecessor developer to a successor or

10  concurrent developer shall be deemed fraudulent if the

11  predecessor developer made the transfer:

12         1.  With actual intent to hinder, delay, or defraud any

13  purchaser or the division; or

14         2.  To a person that would constitute an insider under

15  s. 726.102(7).

16  

17  The provisions of this paragraph shall not be construed to

18  relieve any successor or concurrent developer from the

19  obligation to comply with the provisions of any applicable

20  timeshare instrument.

21         (11)(10)  "Division" means the Division of Florida Land

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

23  Business and Professional Regulation.

24         (12)(11)  "Enrolled" means paid membership in an

25  exchange program or membership in an exchange program

26  evidenced by written acceptance or confirmation of membership.

27         (13)(12)  "Escrow account" means an account established

28  solely for the purposes set forth in this chapter with a

29  financial institution located within this state.

30         (14)(13)  "Escrow agent" includes only:

31  

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 1         (a)  A savings and loan association, bank, trust

 2  company, or other financial institution, any of which must be

 3  located in this state and any of which must have a net worth

 4  in excess of $5 million;

 5         (b)  An attorney who is a member of The Florida Bar or

 6  his or her law firm;

 7         (c)  A real estate broker who is licensed pursuant to

 8  chapter 475 or his or her brokerage firm; or

 9         (d)  A title insurance agent that is licensed pursuant

10  to s. 626.8417, a title insurance agency that is licensed

11  pursuant to s. 626.8418, or a title insurer authorized to

12  transact business in this state pursuant to s. 624.401.

13         (15)(14)  "Exchange company" means any person owning or

14  operating, or owning and operating, an exchange program.

15         (16)(15)  "Exchange program" means any method,

16  arrangement, or procedure for the voluntary exchange of the

17  right to use and occupy accommodations and facilities among

18  purchasers. The term does not include the assignment of the

19  right to use and occupy accommodations and facilities to

20  purchasers pursuant to a particular multisite timeshare plan's

21  reservation system. Any method, arrangement, or procedure that

22  otherwise meets this definition, wherein the purchaser's total

23  contractual financial obligation exceeds $3,000 per any

24  individual, recurring timeshare period, shall be regulated as

25  a multisite timeshare plan in accordance with part II.

26         (17)(16)  "Facility" means any amenity, including any

27  structure, furnishing, fixture, equipment, service,

28  improvement, or real or personal property, improved or

29  unimproved, other than an the accommodation of the timeshare

30  plan, which is made available to the purchasers of a timeshare

31  

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 1  plan. The term does not include an incidental benefit as

 2  defined in this section.

 3         (18)  "Filed public offering statement" means a public

 4  offering statement that has been filed with the division

 5  pursuant to s. 721.07(5) or s. 721.55.

 6         (19)(17)  "Incidental benefit" means an accommodation,

 7  product, service, discount, or other benefit which is offered

 8  to a prospective purchaser of a timeshare plan or to a

 9  purchaser of a timeshare plan prior to the expiration of his

10  or her initial 10-day voidability period pursuant to s.

11  721.10; which is not an exchange program as defined in

12  subsection (16) (15); and which complies with the provisions

13  of s. 721.075. The term shall not include an offer of the use

14  of the accommodations and facilities of the timeshare plan on

15  a free or discounted one-time basis.

16         (20)(18)  "Independent," for purposes of determining

17  eligibility of escrow agents and trustees pursuant to s.

18  721.03(7), means that:

19         (a)  The escrow agent or trustee is not a relative, as

20  described in s. 112.3135(1)(d), or an employee of the

21  developer, seller, or managing entity, or of any officer,

22  director, affiliate, or subsidiary thereof.

23         (b)  There is no financial relationship, other than the

24  payment of fiduciary fees or as otherwise provided in this

25  subsection, between the escrow agent or trustee and the

26  developer, seller, or managing entity, or any officer,

27  director, affiliate, or subsidiary thereof.

28         (c)  Compensation paid by the developer to an escrow

29  agent or trustee for services rendered shall not be paid from

30  funds in the escrow or trust account unless and until the

31  developer is otherwise entitled to receive the disbursement of

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 1  such funds from the escrow or trust account pursuant to this

 2  chapter.

 3         (d)  A person shall not be disqualified to serve as an

 4  escrow agent or a trustee solely because of the following:

 5         1.  A nonemployee, attorney-client relationship exists

 6  between the developer and the escrow agent or trustee;

 7         2.  The escrow agent or trustee provides brokerage

 8  services as defined by chapter 475 for the developer;

 9         3.  The escrow agent or trustee provides the developer

10  with routine banking services which do not include

11  construction or receivables financing or any other lending

12  activities; or

13         4.  The escrow agent or trustee performs closings for

14  the developer or seller or issues owner's or lender's title

15  insurance commitments or policies in connection with such

16  closings.

17         (21)(19)  "Interestholder" means a developer, an owner

18  of the underlying fee or owner of the underlying personal

19  property, a mortgagee, judgment creditor, or other lienor, or

20  any other person having an interest in or lien or encumbrance

21  against the accommodations or facilities of the timeshare

22  plan.

23         (22)(20)  "Managing entity" means the person who

24  operates or maintains the timeshare plan pursuant to s.

25  721.13(1).

26         (23)(21)  "Memorandum of agreement" means a written

27  document, in a recordable form sufficient to permit the

28  document to be recorded or otherwise filed in the appropriate

29  public records and to provide constructive notice of its

30  contents under applicable law, which includes the names of the

31  seller and the purchasers, a legal description of the

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 1  timeshare property or other sufficient description for a

 2  personal property timeshare plan, and all timeshare interests

 3  to be included in such document, and a description of the type

 4  of timeshare interest license sold by the seller.

 5         (24)(22)  "Offer to sell," "offer for sale," "offered

 6  for sale," or "offer" means the solicitation, advertisement,

 7  or inducement, or any other method or attempt, to encourage

 8  any person to acquire the opportunity to participate in a

 9  timeshare plan.

10         (25)(23)  "One-to-one purchaser to accommodation ratio"

11  means the ratio of the number of purchasers eligible to use

12  the accommodations of a timeshare plan on a given day to the

13  number of accommodations available for use within the plan on

14  that day, such that the total number of purchasers eligible to

15  use the accommodations of the timeshare plan during a given

16  calendar year never exceeds the total number of accommodations

17  available for use in the timeshare plan during that year. For

18  purposes of calculation under this subsection, each purchaser

19  must be counted at least once, and no individual timeshare

20  unit may be counted more than 365 times per calendar year (or

21  more than 366 times per leap year). A purchaser who is

22  delinquent in the payment of timeshare plan assessments shall

23  continue to be considered eligible to use the accommodations

24  of the timeshare plan for purposes of this subsection

25  notwithstanding any application of s. 721.13(6).

26         (26)(24)  "Owner of the underlying fee" or "owner of

27  the underlying personal property" means any person having an

28  interest in the real property or personal property comprising

29  or underlying the accommodations or facilities of a the

30  timeshare plan at or subsequent to the time of creation of the

31  timeshare plan.

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 1         (27)(25)  "Owners' association" means an the

 2  association made up of all owners of timeshare interests in a

 3  timeshare plan, including developers and purchasers of such a

 4  timeshare plan who have purchased timeshare estates.

 5         (28)  "Personal property timeshare interest" means a

 6  right to occupy an accommodation located on or in or comprised

 7  of personal property that is not permanently affixed to real

 8  property, whether or not coupled with a beneficial or

 9  ownership interest in the accommodations or personal property.

10         (29)(26)  "Public offering statement" means the written

11  materials describing a single-site timeshare plan or a

12  multisite timeshare plan, including a text and any exhibits

13  attached thereto as required by ss. 721.07, 721.55, and

14  721.551. The term "public offering statement" shall refer to

15  both a filed registered public offering statement and a

16  purchaser public offering statement.

17         (30)(27)  "Purchaser" means any person, other than a

18  developer, who by means of a voluntary transfer acquires a

19  legal or equitable interest in a timeshare plan other than as

20  security for an obligation.

21         (31)(28)  "Purchaser public offering statement" means

22  that portion of the filed registered public offering statement

23  which must be delivered to purchasers pursuant to s. 721.07(6)

24  or s. 721.551.

25         (29)  "Registered public offering statement" means a

26  public offering statement which has been filed with the

27  division pursuant to s. 721.07(5) or s. 721.55.

28         (32)(30)  "Regulated short-term product" means a

29  contractual right, offered by the seller, to use

30  accommodations of a timeshare plan or other accommodations,

31  provided that:

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 1         (a)  The agreement to purchase the short-term right to

 2  use is executed in this state on the same day that the

 3  prospective purchaser receives an offer to acquire an interest

 4  in a timeshare plan and does not execute a purchase contract,

 5  after attending a sales presentation; and

 6         (b)  The acquisition of the right to use includes an

 7  agreement that all or a portion of the consideration paid by

 8  the prospective purchaser for the right to use will be applied

 9  to or credited against the price of a future purchase of a

10  timeshare interest, or that the cost of a future purchase of a

11  timeshare interest will be fixed or locked in at a specified

12  price.

13         (33)(31)  "Seller" means any developer or any other

14  person, or any agent or employee thereof, who offers timeshare

15  interests in the ordinary course of business. The term

16  "seller" does not include:

17         (a)  An owner of a timeshare interest who has acquired

18  the timeshare interest for his or her own use and occupancy

19  and who later offers it for resale; provided that a rebuttable

20  presumption shall exist that an owner who has acquired more

21  than seven timeshare interests did not acquire them for his or

22  her own use and occupancy;

23         (b)  A managing entity, not otherwise a seller, that

24  offers, or engages a third party to offer on its behalf,

25  timeshare interests in a timeshare plan which it manages,

26  provided that such offer complies with the provisions of s.

27  721.065;

28         (c)  A person who owns or is conveyed, assigned, or

29  transferred more than seven timeshare interests and who

30  subsequently conveys, assigns, or transfers all acquired

31  

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 1  timeshare interests to a single purchaser in a single

 2  transaction, which transaction may occur in stages; or

 3         (d)  A person who has acquired or has the right to

 4  acquire more than seven timeshare interests from a developer

 5  or other interestholder in connection with a loan,

 6  securitization, conduit, or similar financing arrangement and

 7  who subsequently arranges for all or a portion of the

 8  timeshare interests to be offered by one or more developers in

 9  the ordinary course of business on their own behalves or on

10  behalf of such person.

11         (34)(32)  "Timeshare estate" means a right to occupy a

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

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

14  specified portion thereof. The term shall also mean an

15  interest in a condominium unit pursuant to s. 718.103, an

16  interest in a cooperative unit pursuant to s. 719.103, or an

17  interest in a trust that complies in all respects with the

18  provisions of s. 721.08(2)(c)4.3., provided that the trust

19  does not contain any personal property timeshare interests. A

20  timeshare estate is a parcel of real property under the laws

21  of this state.

22         (35)(33)  "Timeshare instrument" means one or more

23  documents, by whatever name denominated, creating or governing

24  the operation of a timeshare plan.

25         (36)(34)  "Timeshare interest" means a timeshare

26  estate, a personal property timeshare interest, or a timeshare

27  license.

28         (37)(35)  "Timeshare license" means a right to occupy a

29  timeshare unit, which right is not a personal property

30  timeshare neither coupled with a freehold interest or a

31  

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 1  timeshare, nor coupled with an estate for years with a future

 2  interest, in a timeshare property.

 3         (38)(36)  "Timeshare period" means the period or

 4  periods of time when a purchaser of a timeshare interest is

 5  afforded the opportunity to use the accommodations or

 6  facilities, or both, of a timeshare plan.

 7         (39)(37)  "Timeshare plan" means any arrangement, plan,

 8  scheme, or similar device, other than an exchange program,

 9  whether by membership, agreement, tenancy in common, sale,

10  lease, deed, rental agreement, license, or right-to-use

11  agreement or by any other means, whereby a purchaser, for

12  consideration, receives ownership rights in or a right to use

13  accommodations, and facilities, if any, for a period of time

14  less than a full year during any given year, but not

15  necessarily for consecutive years. The term "timeshare plan"

16  includes:

17         (a)  A "personal property timeshare plan," which means

18  a timeshare plan in which the accommodations are comprised of

19  personal property that is not permanently affixed to real

20  property; and

21         (b)  A "real property timeshare plan," which means a

22  timeshare plan in which the accommodations of the timeshare

23  plan are comprised of or permanently affixed to real property.

24         (40)(38)  "Timeshare property" means one or more

25  timeshare units subject to the same timeshare instrument,

26  together with any other property or rights to property

27  appurtenant to those timeshare units. Notwithstanding anything

28  to the contrary contained in chapter 718 or chapter 719, the

29  timeshare instrument for a timeshare condominium or

30  cooperative may designate personal property, contractual

31  rights, affiliation agreements of component sites of vacation

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 1  clubs, exchange companies, or reservation systems, or any

 2  other agreements or personal property, as common elements or

 3  limited common elements of the timeshare condominium or

 4  cooperative.

 5         (41)(39)  "Timeshare unit" means an accommodation of a

 6  timeshare plan which is divided into timeshare periods. Any

 7  timeshare unit in which a door or doors connecting two or more

 8  separate rooms are capable of being locked to create two or

 9  more private dwellings shall only constitute one timeshare

10  unit for purposes of this chapter, unless the timeshare

11  instrument provides that timeshare interests may be separately

12  conveyed in such locked-off portions.

13         (40)  "Vacation ownership plan" means any timeshare

14  plan consisting exclusively of timeshare estates.

15         (41)  "Vacation plan" or "vacation membership plan"

16  means any timeshare plan consisting exclusively of timeshare

17  licenses or consisting of a combination of timeshare licenses

18  and timeshare estates.

19         Section 4.  Section 721.06, Florida Statutes, is

20  amended to read:

21         721.06  Contracts for purchase of timeshare

22  interests.--

23         (1)  Each seller shall utilize and furnish each

24  purchaser a fully completed and executed copy of a contract

25  pertaining to the sale, which contract shall include the

26  following information:

27         (a)  The actual date the contract is executed by each

28  party.

29         (b)  The names and addresses of the developer and the

30  timeshare plan.

31  

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 1         (c)  The initial purchase price and any additional

 2  charges to which the purchaser may be subject in connection

 3  with the purchase of the timeshare interest, such as

 4  financing, or which will be collected from the purchaser on or

 5  before closing, such as the current year's annual assessment

 6  for common expenses.

 7         (d)1.  For real property timeshare plans, an estimate

 8  of any anticipated annual assessment stated on an Any annually

 9  recurring basis for any use charges, fees, charge and the next

10  year's estimated annual assessment for common expenses, or and

11  for ad valorem taxes or, if an estimate for next year's

12  assessment is unavailable, the current year's actual annual

13  assessment for any use charges, fees, common expenses, or and

14  for ad valorem taxes.

15         2.  For personal property timeshare plans, an estimate

16  of any anticipated annual assessment stated on an annually

17  recurring basis for any use charges, fees, common expenses, or

18  taxes or, if an estimate is unavailable, the current year's

19  actual annual assessment for any use charges, fees, common

20  expenses, or taxes.

21         (e)  The estimated date of completion of construction

22  of each accommodation or facility promised to be completed

23  which is not completed at the time the contract is executed

24  and the estimated date of closing.

25         (f)  A brief description of the nature and duration of

26  the timeshare interest being sold, including whether any

27  interest in real property or personal property is being

28  conveyed and the specific number of years constituting the

29  term of the timeshare plan.

30  

31  

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 1         (g)  Immediately prior to the space reserved in the

 2  contract for the signature of the purchaser, in conspicuous

 3  type, substantially the following statements:

 4  

 5         1.  If the purchaser will receive a personal property

 6  timeshare interest:  This personal property timeshare plan is

 7  governed only by limited sections of the timeshare management

 8  provisions of Florida law.

 9         2.  If the accommodations or facilities are located on

10  or in a documented vessel or foreign vessel as provided in s.

11  721.08(2)(c)3.e., the disclosure required by s.

12  721.08(2)(c)3.e.(IV).

13         3.  You may cancel this contract without any penalty or

14  obligation within 10 calendar days after the date you sign

15  this contract or the date on which you receive the last of all

16  documents required to be given to you pursuant to section

17  721.07(6), Florida Statutes, whichever is later. If you decide

18  to cancel this contract, you must notify the seller in writing

19  of your intent to cancel. Your notice of cancellation shall be

20  effective upon the date sent and shall be sent to ...  (Name

21  of Seller)  ... at ...  (Address of Seller)  .... Any attempt

22  to obtain a waiver of your cancellation right is void and of

23  no effect. While you may execute all closing documents in

24  advance, the closing, as evidenced by delivery of the deed or

25  other document, before expiration of your 10-day cancellation

26  period, is prohibited.

27  

28         (h)  If a timeshare estate is being conveyed, the

29  following statement in conspicuous type:

30  

31  

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 1         For the purpose of ad valorem assessment, taxation and

 2  special assessments, the managing entity will be considered

 3  the taxpayer as your agent pursuant to section 192.037,

 4  Florida Statutes.

 5  

 6         (i)  A statement that, in the event the purchaser

 7  cancels the contract during a 10-day cancellation period, the

 8  developer will refund to the purchaser the total amount of all

 9  payments made by the purchaser under the contract, reduced by

10  the proportion of any contract benefits the purchaser has

11  actually received under the contract prior to the effective

12  date of the cancellation. The statement shall further provide

13  that the refund will be made within 20 days after receipt of

14  notice of cancellation or within 5 days after receipt of funds

15  from the purchaser's cleared check, whichever is later. A

16  seller and a purchaser shall agree in writing on a specific

17  value for each contract benefit received by the purchaser for

18  purposes of this paragraph. The term "contract benefit" shall

19  not include purchaser public offering statements or other

20  documentation or materials that must be furnished to a

21  purchaser pursuant to statute or rule.

22         (j)  If the timeshare interest is being sold pursuant

23  to an agreement for deed or an agreement for transfer, a

24  statement that the signing of the agreement for deed or

25  agreement for transfer does not entitle the purchaser to

26  receive the conveyance or transfer of his or her timeshare

27  estate or personal property timeshare interest a deed until

28  all payments under the agreement have been made.

29         (k)  Unless the developer is, at the time of offering

30  the plan, the owner in fee simple absolute of the

31  accommodations and facilities of the timeshare plan, free and

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 1  clear of all liens, and encumbrances, and claims of other

 2  interestholders, a statement that the developer is not the

 3  sole owner of the underlying fee or owner of the underlying

 4  personal property or that the such accommodations or

 5  facilities are subject to without liens or encumbrances, which

 6  statement shall include:

 7         1.  The names and addresses of all other

 8  interestholders persons or entities having an ownership

 9  interest or other interest in the accommodations or

10  facilities; and

11         2.  The actual interest of the developer in the

12  accommodations or facilities. As an alternative to including

13  the statement in the purchase contract, a seller may include a

14  reference in the purchase contract to the location in the

15  purchaser public offering statement text of such information.

16         (l)  If the purchaser will receive an interest in a

17  multisite timeshare plan pursuant to part II, a statement

18  shall be provided in conspicuous type in substantially the

19  following form:

20  

21         The developer is required to provide the managing

22  entity of the multisite timeshare plan with a copy of the

23  approved public offering statement text and exhibits filed

24  with the division and any approved amendments thereto, and any

25  other component site documents as described in section 721.07

26  or section 721.55, Florida Statutes, that are not required to

27  be filed with the division, to be maintained by the managing

28  entity for inspection as part of the books and records of the

29  plan.

30  

31         (m)  The following statement in conspicuous type:

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 1  

 2         Any resale of this timeshare interest must be

 3  accompanied by certain disclosures in accordance with section

 4  721.065, Florida Statutes.

 5  

 6         (n)  A description of any rights reserved by the

 7  developer to alter or modify the offering prior to closing.

 8         (2)(a)  An agreement for deed shall be recorded by the

 9  developer within 30 days after the day it is executed by the

10  purchaser. The developer shall pay all recording costs

11  associated therewith. A form copy of such instrument must be

12  filed with the division for review pursuant to s. 721.07.

13         (b)  An agreement for transfer shall be filed with the

14  appropriate official responsible for maintaining such records

15  in the appropriate jurisdiction within 30 days after the day

16  it is executed by the purchaser. The developer shall pay all

17  filing costs associated therewith. A form copy of such

18  instrument must be filed with the division for review pursuant

19  to s. 721.07.

20         (3)  The escrow agent shall provide the developer with

21  a receipt for all purchaser funds or other property received

22  by the escrow agent from a seller.

23         Section 5.  Paragraph (b) of subsection (2) of section

24  721.065, Florida Statutes, is amended to read:

25         721.065  Resale purchase agreements.--

26         (2)  Any resale purchase agreement utilized by a person

27  described in subsection (1) must contain all of the following:

28         (b)  One of the following statements in conspicuous

29  type located immediately prior to the disclosure required by

30  paragraph (c):

31  

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 1         1.  If the resale purchase agreement pertains to a real

 2  property timeshare plan:

 3  

 4  The current year's assessment for common expenses allocable to

 5  the timeshare interest you are purchasing is $_____. This

 6  assessment, which may be increased from time to time by the

 7  managing entity of the timeshare plan, is payable in full each

 8  year on or before __________. This assessment (includes/does

 9  not include) yearly ad valorem real estate taxes, which

10  (are/are not) billed and collected separately. (If ad valorem

11  real property taxes are not included in the current year's

12  assessment for common expenses, the following statement must

13  be included: The most recent annual assessment for ad valorem

14  real estate taxes for the timeshare interest you are

15  purchasing is $_____.) (If there are any delinquent

16  assessments for common expenses or ad valorem taxes

17  outstanding with respect to the timeshare interest in

18  question, the following statement must be included: A

19  delinquency in the amount of $_____ for unpaid common expenses

20  or ad valorem taxes currently exists with respect to the

21  timeshare interest you are purchasing, together with a per

22  diem charge of $_____ for interest and late charges.) For the

23  purpose of ad valorem assessment, taxation, and special

24  assessments, the managing entity will be considered the

25  taxpayer as your agent pursuant to section 192.037, Florida

26  Statutes. Each owner is personally liable for the payment of

27  her or his assessments for common expenses, and failure to

28  timely pay these assessments may result in restriction or loss

29  of your use and/or ownership rights.

30  

31  

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 1  There are many important documents relating to the timeshare

 2  plan which you should review prior to purchasing a timeshare

 3  interest, including the declaration of condominium or

 4  covenants and restrictions; the owners' association articles

 5  and bylaws; the current year's operating and reserve budgets;

 6  and any rules and regulations affecting the use of timeshare

 7  plan accommodations and facilities.

 8  

 9         2.  If the resale purchase agreement pertains to a

10  personal property timeshare plan:

11  

12  The current year's assessment for any common expenses, use

13  charges, fees, or taxes allocable to the timeshare interest

14  you are purchasing is $_____. This assessment, which may be

15  increased from time to time by the managing entity of the

16  timeshare plan, is payable in full each year on or before

17  __________. (If there are any delinquent assessments for

18  common expenses, use charges, fees, or taxes outstanding with

19  respect to the timeshare interest in question, the following

20  statement must be included: A delinquency in the amount of

21  $_____ for unpaid common expenses, use charges, fees, or taxes

22  currently exists with respect to the timeshare interest you

23  are purchasing, together with a per diem charge of $_____ for

24  interest and late charges.) Each owner is personally liable

25  for the payment of her or his assessments for common expenses,

26  and failure to timely pay these assessments may result in

27  restriction or loss of your use and/or ownership rights.

28  

29  There are many important documents relating to the timeshare

30  plan which you should review prior to purchasing a timeshare

31  interest, including any owners' association articles and

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 1  bylaws; the current year's operating and reserve budgets; and

 2  any rules and regulations affecting the use of timeshare plan

 3  accommodations and facilities.

 4         Section 6.  Section 721.07, Florida Statutes, is

 5  amended to read:

 6         721.07  Public offering statement.--Prior to offering

 7  any timeshare plan, the developer must submit a filed

 8  registered public offering statement to the division for

 9  approval as prescribed by s. 721.03, s. 721.55, or this

10  section. Until the division approves such filing, any contract

11  regarding the sale of that timeshare plan is subject to

12  cancellation voidable by the purchaser pursuant to s. 721.10.

13         (1)  The division shall, upon receiving a filed

14  registered public offering statement from a developer, mail to

15  the developer an acknowledgment of receipt. The failure of the

16  division to send such acknowledgment will not, however,

17  relieve the developer from the duty of complying with this

18  section.

19         (2)(a)  Within 45 days after receipt of a filed

20  registered public offering statement which is subject only to

21  this part and is submitted in proper form as prescribed by

22  rule, or within 120 days after receipt of a filed registered

23  public offering statement which is subject to part II and is

24  submitted in proper form as prescribed by rule, the division

25  shall determine whether the proposed filed registered public

26  offering statement is adequate to meet the requirements of

27  this section and shall notify the developer by mail that the

28  division has either approved the statement or found specified

29  deficiencies in the statement. If the division fails to

30  approve the statement or specify deficiencies in the statement

31  

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 1  within the period specified in this paragraph, the filing will

 2  be deemed approved.

 3         (b)  If the developer fails to respond to any cited

 4  deficiencies within 20 days after receipt of the division's

 5  deficiency notice, the division may reject the filing.

 6  Subsequent to such rejection, a new filing fee pursuant to

 7  subsection (4) and a new division initial review period

 8  pursuant to paragraph (a) shall apply to any refiling or

 9  further review of the rejected filing.

10         (c)  Within 20 days after receipt of the developer's

11  timely and complete response to any deficiency notice, the

12  division shall notify the developer by mail that the division

13  has either approved the filing, found additional specified

14  deficiencies in it, or determined that any previously

15  specified deficiency has not been corrected. If the division

16  fails to approve or specify additional deficiencies within 20

17  days after receipt of the developer's timely and complete

18  response, the filing will be deemed approved.

19         (d)  A developer shall have the authority to deliver to

20  purchasers any purchaser public offering statement that is not

21  yet approved by the division, provided that the following

22  shall apply:

23         1.  At the time the developer delivers an unapproved

24  purchaser public offering statement to a purchaser pursuant to

25  this paragraph, the developer shall deliver a fully completed

26  and executed copy of the purchase contract required by s.

27  721.06 that contains the following statement in conspicuous

28  type in substantially the following form which shall replace

29  the statements required by s. 721.06(1)(g):

30  

31  

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 1  The developer is delivering to you a public offering statement

 2  that has been filed with but not yet approved by the Division

 3  of Florida Land Sales, Condominiums, and Mobile Homes. Any

 4  revisions to the unapproved public offering statement you have

 5  received must be delivered to you, but only if the revisions

 6  materially alter or modify the offering in a manner adverse to

 7  you. After the division approves the public offering

 8  statement, you will receive notice of the approval from the

 9  developer and the required revisions, if any.

10  

11  Your statutory right to cancel this transaction without any

12  penalty or obligation expires 10 calendar days after the date

13  you signed your purchase contract or the date on which you

14  receive the last of all documents required to be given to you

15  pursuant to section 721.07(6), Florida Statutes, or 10

16  calendar days after you receive revisions required to be

17  delivered to you, if any, whichever is later. If you decide to

18  cancel this contract, you must notify the seller in writing of

19  your intent to cancel. Your notice of cancellation shall be

20  effective upon the date sent and shall be sent to (Name of

21  Seller) at (Address of Seller). Any attempt to obtain a waiver

22  of your cancellation right is void and of no effect. While you

23  may execute all closing documents in advance, the closing, as

24  evidenced by delivery of the deed or other document, before

25  expiration of your 10-day cancellation period, is prohibited.

26  

27  2.  After receipt of approval from the division and prior to

28  closing, if any revisions made to the documents contained in

29  the purchaser public offering statement materially alter or

30  modify the offering in a manner adverse to a purchaser, the

31  developer shall send the purchaser such revisions together

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 1  with a notice containing a statement in conspicuous type in

 2  substantially the following form:

 3  

 4  The unapproved public offering statement previously delivered

 5  to you, together with the enclosed revisions, has been

 6  approved by the Division of Florida Land Sales, Condominiums,

 7  and Mobile Homes. Accordingly, your cancellation right expires

 8  10 calendar days after you sign your purchase contract or 10

 9  calendar days after you receive these revisions, whichever is

10  later. If you have any questions regarding your cancellation

11  rights, you may contact the division at [insert division's

12  current address].

13  

14         3.  After receipt of approval from the division and

15  prior to closing, if no revisions have been made to the

16  documents contained in the unapproved purchaser public

17  offering statement, or if such revisions do not materially

18  alter or modify the offering in a manner adverse to a

19  purchaser, the developer shall send the purchaser a notice

20  containing a statement in conspicuous type in substantially

21  the following form:

22  

23  The unapproved public offering statement previously delivered

24  to you has been approved by the Division of Florida Land

25  Sales, Condominiums, and Mobile Homes. Revisions made to the

26  unapproved public offering statement, if any, are either not

27  required to be delivered to you or are not deemed by the

28  developer, in its opinion, to materially alter or modify the

29  offering in a manner that is adverse to you. Accordingly, your

30  cancellation right expired 10 days after you signed your

31  purchase contract. A complete copy of the approved public

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 1  offering statement is available through the managing entity

 2  for inspection as part of the books and records of the plan.

 3  If you have any questions regarding your cancellation rights,

 4  you may contact the division at [insert division's current

 5  address].

 6  

 7         (3)(a)1.  Any change to an approved public offering

 8  statement filing shall be filed with the division for approval

 9  as an amendment prior to becoming effective. The division

10  shall have 20 days after receipt of a proposed amendment to

11  approve or cite deficiencies in the proposed amendment. If the

12  division fails to act within 20 days, the amendment will be

13  deemed approved. If the proposed amendment adds a new

14  component site to an approved multisite timeshare plan, the

15  division's initial period in which to approve or cite

16  deficiencies is 45 days. If the developer fails to adequately

17  respond to any deficiency notice within 30 days, the division

18  may reject the amendment. Subsequent to such rejection, a new

19  filing fee pursuant to subsection (4) and a new division

20  initial review period pursuant to this paragraph shall apply

21  to any refiling or further review of the rejected amendment.

22         2.  For filings only subject to this part, each

23  approved amendment to the approved purchaser public offering

24  statement, other than an amendment made only for the purpose

25  of the addition of a phase or phases to the timeshare plan in

26  the manner described in the timeshare instrument or any

27  amendment that does not materially alter or modify the

28  offering in a manner that is adverse to a purchaser, shall be

29  delivered to a purchaser no later than 10 days prior to

30  closing. For filings made under part II, each approved

31  amendment to the multisite timeshare plan purchaser public

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 1  offering statement, other than an amendment made only for the

 2  purpose of the addition, substitution, or deletion of a

 3  component site pursuant to part II or the addition of a phase

 4  or phases to a component site of a multisite timeshare plan in

 5  the manner described in the timeshare instrument or any

 6  amendment that does not materially alter or modify the

 7  offering in a manner that is adverse to a purchaser, shall be

 8  delivered to a purchaser no later than 10 days prior to

 9  closing.

10         3.  Amendments made to a timeshare instrument for a

11  component site located in this state are not required to be

12  delivered to purchasers who do not receive a timeshare estate

13  or an interest in a specific multisite timeshare plan license

14  in that component site. Amendments made to a timeshare

15  instrument for a component site not located in this state are

16  not required to be delivered to purchasers.

17         (b)  At the time that any amendments required to be

18  delivered to purchasers, as provided in paragraph (a), are

19  delivered to purchasers, the developer shall provide to those

20  purchasers who have not closed a written statement that the

21  purchaser or lessee will have a 10-day voidability period.

22         (4)(a)  Upon the filing of a filed registered public

23  offering statement, the developer shall pay a filing fee of $2

24  for each 7 days of annual use availability in each timeshare

25  unit that may be offered as a part of the proposed timeshare

26  plan pursuant to the filing.

27         (b)  Upon the filing of an amendment to an approved

28  filed registered public offering statement, other than an

29  amendment adding a phase to the timeshare plan, the developer

30  shall pay a filing fee of $100.

31  

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 1         (5)  Every filed registered public offering statement

 2  for a timeshare plan which is not a multisite timeshare plan

 3  shall contain the information required by this subsection. The

 4  division is authorized to provide by rule the method by which

 5  a developer must provide such information to the division.

 6         (a)  A cover page stating only:

 7         1.  The name of the timeshare plan; and

 8         2.  The following statement, in conspicuous type: This

 9  public offering statement contains important matters to be

10  considered in acquiring a timeshare interest. The statements

11  contained in this public offering statement are only summary

12  in nature. A prospective purchaser should refer to all

13  references, accompanying exhibits, contract documents, and

14  sales materials. You should not rely upon oral representations

15  as being correct. Refer to this document and accompanying

16  exhibits for correct representations. The seller is prohibited

17  from making any representations other than those contained in

18  the contract and this public offering statement.

19         (b)  A listing of all statements required to be in

20  conspicuous type in the public offering statement and in all

21  exhibits thereto.

22         (c)  A separate index of the contents and exhibits of

23  the public offering statement.

24         (d)  A text which shall include, where applicable, the

25  disclosures set forth in paragraphs (e)-(hh).

26         (e)  A description of the timeshare plan, including,

27  but not limited to:

28         1.  Its name and location.

29         2.  An explanation of the form of timeshare ownership

30  that is being offered, including a statement as to whether any

31  interest in the underlying real property will be conveyed to

                                  33

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 1  the purchaser. If the plan is being created or being sold on a

 2  leasehold, a description of the material terms of the lease

 3  shall be included. If the plan is a plan in which timeshare

 4  estates or personal property timeshare interests are sold as

 5  interests in a trust pursuant to the requirements of this

 6  chapter, a full and accurate description of the trust

 7  arrangement and the trustee's duties shall be included. If the

 8  plan is a personal property timeshare plan, a description of

 9  the material terms of the arrangement for the ownership or use

10  of the personal property shall be included.

11         3.  An explanation of the manner in which the

12  apportionment of common expenses and ownership of the common

13  elements has been determined.

14         4.  If ownership or use of the timeshare plan is based

15  on a point system, a statement indicating the circumstances by

16  which the point values may change, the extent of such changes,

17  and the person or entity responsible for the changes.

18         5.  If any of the accommodations or facilities are part

19  of a personal property timeshare plan in which the

20  accommodations or facilities are located on or in a documented

21  vessel or foreign vessel as provided in s. 721.08(2)(c)3.e.,

22  the disclosure required by s. 721.08(2)(c)3.e.(IV).

23         (f)  A description of the accommodations, including,

24  but not limited to:

25         1.  The number of timeshare units in each building, the

26  total number of timeshare periods declared as part of the

27  timeshare plan and filed with the division, and the number of

28  bathrooms and bedrooms in each type of timeshare unit.

29         2.  The latest date estimated for completion of

30  constructing, finishing, and equipping the timeshare units

31  

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 1  declared as part of the timeshare plan and filed with the

 2  division.

 3         3.  The estimated maximum number of units and timeshare

 4  periods that will use the accommodations and facilities. If

 5  the maximum number of timeshare units or timeshare periods

 6  will vary, a description of the basis for variation.

 7         4.  The duration, in years, of the timeshare plan.

 8         5.  If any of the accommodations are part of a personal

 9  property timeshare plan, the name, vehicle registration

10  number, title certificate number, or any other identifying

11  registration number assigned to the accommodation of a

12  personal property timeshare plan by a state, federal, or

13  international governmental agency.

14         6.  If any of the accommodations are part of a personal

15  property timeshare plan, the fire detection system and fire

16  safety equipment and description of method of compliance with

17  any applicable firesafety or fire detection regulations.

18         (g)  A description of any the facilities that will be

19  used by purchasers of the plan, including, but not limited to:

20         1.  The intended purpose, if not apparent from the

21  description.

22         2.  The estimated date when each facility will be

23  available for use by the purchaser.

24         3.  A statement as to whether the facilities will be

25  used exclusively by purchasers of the timeshare plan, and, if

26  not, a statement as to whether the purchasers of the timeshare

27  plan are required to pay any portion of the maintenance and

28  expenses of such facilities.

29         (h)1.  If any facilities offered by the developer for

30  use by purchasers are to be leased or have club memberships

31  associated with them, other than participation in a vacation

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 1  club, one of the following statements in conspicuous type:

 2  There is a lease associated with one or more facilities of the

 3  timeshare plan; or, There is a club membership associated with

 4  one or more facilities of the timeshare plan.

 5         2.  If it is mandatory that purchasers pay fees, rent,

 6  dues, or other charges under a facilities lease or club

 7  membership for the use of the facilities, other than

 8  participation in a vacation club, the applicable statement in

 9  conspicuous type in substantially the following form:

10         a.  Membership in a facilities club is mandatory for

11  purchasers;

12         b.  Purchasers or the owners' association(s) are

13  required, as a condition of ownership, to be lessees under the

14  facilities lease;

15         c.  Purchasers or the owners' association(s) are

16  required to pay their share of the rent or costs and expenses

17  of maintenance, management, upkeep, and replacement under the

18  facilities lease (or the other instruments providing the

19  facilities); or

20         d.  A similar statement of the nature of the

21  organization or the manner in which the use rights are

22  created, and that purchasers are required to pay.

23  

24  Immediately following the applicable statement, a description

25  of the lease or other instrument shall be stated, including a

26  description of terms of the payment of rent or costs and

27  expenses of maintenance, management, upkeep, and replacement

28  of the facilities.

29         3.  If the purchasers are required to pay a use fee, or

30  other payment for the use of the facilities, not including the

31  rent or maintenance, management, upkeep, or replacement costs

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 1  and expenses, the following statement in conspicuous type: The

 2  purchasers or the owners' association(s) must pay use fees for

 3  one or more facilities. Immediately following this statement,

 4  a description of the use fees shall be included.

 5         4.  If any person other than the owners' association

 6  has the right to a lien on the timeshare interests to secure

 7  the payment of assessments, rent, or other exactions, a

 8  statement in conspicuous type in substantially the following

 9  form:

10         a.  There is a lien or lien right against each

11  timeshare interest to secure the payment of rent and other

12  exactions under the facilities lease. A purchaser's failure to

13  make these payments may result in foreclosure of the lien; or

14         b.  There is a lien or lien right against each

15  timeshare interest to secure the payment of assessments or

16  other exactions coming due for the use, maintenance, upkeep,

17  or repair of one or more facilities. A purchaser's failure to

18  make these payments may result in foreclosure of the lien.

19  

20  Immediately following the applicable statement, a description

21  of the lien right shall be included.

22         (i)  If the developer or any other person has the right

23  to increase or add to the facilities at any time after the

24  establishment of the timeshare plan, without the consent of

25  the purchasers or owners' association being required, a

26  statement in conspicuous type in substantially the following

27  form: Facilities may be expanded or added without consent of

28  the purchasers or the owners' association(s). Immediately

29  following this statement, a description of such reserved

30  rights shall be included.

31  

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 1         (j)1.  For a real property timeshare plan, an

 2  explanation of the status of the title to the real property

 3  underlying the timeshare plan, including a statement of the

 4  existence of any lien, defect, judgment, mortgage, or other

 5  encumbrance affecting the title to the property, and how such

 6  lien, defect, judgment, mortgage, or other encumbrance will be

 7  removed or satisfied prior to closing.

 8         2.  For a personal property timeshare plan, an

 9  explanation of the status of title to the personal property

10  underlying the timeshare plan, including a statement of the

11  existence of any lien, defect, judgment, or other encumbrance

12  affecting the title to the personal property, and how such

13  lien, defect, judgment, or other encumbrance will be removed

14  or satisfied prior to closing.

15         (k)  A description of any judgment against the

16  developer, the managing entity, the owner of the underlying

17  fee, or the owner of the underlying personal property fee,

18  which judgment is material to the timeshare plan; the status

19  of any pending suit to which the developer, the managing

20  entity, the owner of the underlying fee, or the owner of the

21  underlying personal property fee is a party, which suit is

22  material to the timeshare plan; and any other suit which is

23  material to the timeshare plan of which the developer,

24  managing entity, the owner of the underlying fee, or the owner

25  of the underlying personal property fee has actual knowledge.

26  If no judgments or pending suits exist, there shall be a

27  statement of such fact.

28         (l)  A description of all unusual and material

29  circumstances, features, and characteristics of the real

30  property or personal property underlying or comprising the

31  timeshare plan.

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 1         (m)  A description of any financing to be offered to

 2  purchasers by the developer or any person or entity in which

 3  the developer has a financial interest, together with a

 4  disclosure that the description of such financing may be

 5  changed by the developer and that any change in the financing

 6  offered to prospective purchasers will not be deemed to be a

 7  material change.

 8         (n)  A detailed explanation of any financial

 9  arrangements which have been provided for completion of all

10  promised improvements.

11         (o)  The name and address of the managing entity; a

12  statement whether the seller may change the managing entity or

13  its control and, if so, the manner by which the seller may

14  change the managing entity; a statement of the arrangements

15  for management, maintenance, and operation of the

16  accommodations and facilities and of other property that will

17  serve the purchasers; and a description of the management

18  arrangement and any contracts for these purposes having a term

19  in excess of 1 year, including the names of the contracting

20  parties, the term of the contract, the nature of the services

21  included, and the compensation, stated for a month and for a

22  year, and provisions for increases in the compensation. In the

23  case of a personal property timeshare plan in which the

24  accommodations or facilities are located on or in a documented

25  vessel or foreign vessel as provided in s. 721.08(2)(c)3.e., a

26  statement shall be included that describes the trustee's or

27  owners' association's access to the certificates of

28  classification and that the certificate of classification will

29  be made available to purchasers on request.

30         (p)  If any person other than the purchasers has the

31  right to retain control of the board of administration of the

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    Florida Senate - 2004                           CS for SB 1208
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 1  owners' association, if any, for a period of time which may

 2  exceed 1 year after the closing of the sale of a majority of

 3  the timeshare interests in that timeshare plan to persons

 4  other than successors or concurrent developers and the plan is

 5  one in which all purchasers automatically become members of

 6  the owners' association, a statement in conspicuous type in

 7  substantially the following form: The developer (or other

 8  person) has the right to retain control of the owners'

 9  association after a majority of the timeshare interests have

10  been sold. Immediately following this statement, a description

11  of the applicable transfer of control provisions of the

12  timeshare plan shall be included.

13         (q)1.  If there are any restrictions upon the sale,

14  transfer, conveyance, or leasing of a timeshare interest, a

15  statement in conspicuous type in substantially the following

16  form: The sale, lease, or transfer of timeshare interests is

17  restricted or controlled. Immediately following this

18  statement, a description of the nature of the restriction,

19  limitation, or control on the sale, lease, or transfer of

20  timeshare interests shall be included.

21         2.  The following statement in conspicuous type in

22  substantially the following form: The purchase of a timeshare

23  interest should be based upon its value as a vacation

24  experience or for spending leisure time, and not considered

25  for purposes of acquiring an appreciating investment or with

26  an expectation that the timeshare interest may be resold.

27         (r)  If the timeshare plan is part of a phase project,

28  a statement to that effect and a complete description of the

29  phasing. Notwithstanding any provisions of s. 718.110 or s.

30  719.1055, a developer may develop a timeshare condominium or a

31  timeshare cooperative in phases if the original declaration of

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    Florida Senate - 2004                           CS for SB 1208
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 1  condominium or cooperative documents submitting the initial

 2  phase to condominium ownership or cooperative ownership or an

 3  amendment to the declaration of condominium or cooperative

 4  documents which has been approved by all of the unit owners

 5  and unit mortgagees provides for phasing. Notwithstanding any

 6  provisions of s. 718.403 or s. 719.403 to the contrary, the

 7  original declaration of condominium or cooperative documents,

 8  or an amendment to the declaration of condominium or

 9  cooperative documents adopted pursuant to this subsection,

10  need only generally describe the developer's phasing plan and

11  the land which may become part of the condominium or

12  cooperative, and, in conjunction therewith, the developer may

13  also reserve all rights to vary his or her phasing plan as to

14  phase boundaries, plot plans and floor plans, timeshare unit

15  types, timeshare unit sizes and timeshare unit type mixes,

16  numbers of timeshare units, and facilities with respect to

17  each subsequent phase. There shall be no time limit during

18  which a developer of a timeshare condominium or timeshare

19  cooperative must complete his or her phasing plan, and the

20  developer shall not be required to notify owners of existing

21  timeshare estates of his or her decision not to add one or

22  more proposed phases.

23         (s)  A description of the material restrictions, if

24  any, to be imposed on timeshare interests concerning the use

25  of any of the accommodations or facilities, including

26  statements as to whether there are restrictions upon children

27  and pets or a reference to a copy of the documents containing

28  the restrictions which shall be attached as an exhibit. If

29  there are no restrictions, there shall be a statement of such

30  fact.

31  

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    Florida Senate - 2004                           CS for SB 1208
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 1         (t)  If there is any land or personal property that is

 2  offered by the developer for use by the purchasers and which

 3  is neither owned by them nor leased to them, the owners'

 4  association, or any entity controlled by the purchasers, a

 5  statement describing the land or personal property, how it

 6  will serve the timeshare plan, and the nature and term of

 7  service.

 8         (u)  An estimated operating budget for the timeshare

 9  plan and a schedule of the purchaser's expenses shall be

10  attached as an exhibit and shall contain the following

11  information:

12         1.  The estimated annual expenses of the timeshare plan

13  collectible from purchasers by assessments. The estimated

14  payments by the purchaser for assessments shall also be stated

15  in the estimated amounts for the times when they will be due.

16  Expenses shall also be shown for the shortest timeshare period

17  offered for sale by the developer. If the timeshare plan

18  provides for the offer and sale of units to be used on a

19  nontimeshare basis, the estimated monthly and annual expenses

20  of such units shall be set forth in a separate schedule.

21         2.  The estimated weekly, monthly, and annual expenses

22  of the purchaser of each timeshare interest, other than

23  assessments payable to the managing entity. Expenses which are

24  personal to purchasers that are not uniformly incurred by all

25  purchasers or that are not provided for or contemplated by the

26  timeshare plan documents may be excluded from this estimate.

27         3.  The estimated items of expenses of the timeshare

28  plan and the managing entity, except as excluded under

29  subparagraph 2., including, but not limited to, if applicable,

30  the following items, which shall be stated either as

31  management expenses collectible by assessments or as expenses

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 1  of the purchaser payable to persons other than the managing

 2  entity:

 3         a.  Expenses for the managing entity:

 4         (I)  Administration of the managing entity.

 5         (II)  Management fees.

 6         (III)  Maintenance.

 7         (IV)  Rent for facilities.

 8         (V)  Taxes upon timeshare property.

 9         (VI)  Taxes upon leased areas.

10         (VII)  Insurance.

11         (VIII)  Security provisions.

12         (IX)  Other expenses.

13         (X)  Operating capital.

14         (XI)  Reserves for deferred maintenance and reserves

15  for capital expenditures, including:.

16         (A)  Reserves for deferred maintenance or capital

17  expenditures of accommodations and facilities of a real

18  property timeshare plan, if any. All reserves for any

19  accommodations and facilities of real property timeshare plans

20  located in this state shall be calculated by a formula which

21  is based upon estimated life and replacement cost of each

22  reserve item. Reserves for deferred maintenance for such

23  accommodations and facilities shall include accounts for roof

24  replacement, building painting, pavement resurfacing,

25  replacement of timeshare unit furnishings and equipment, and

26  any other component, the useful life of which is less than the

27  useful life of the overall structure. For any accommodations

28  and facilities of real property timeshare plans located

29  outside of this state, the developer shall disclose the amount

30  of reserves for deferred maintenance or capital expenditures

31  

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    Florida Senate - 2004                           CS for SB 1208
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 1  required by the law of the situs state, if applicable, and

 2  maintained for such accommodations and facilities.

 3         (B)  Reserves for deferred maintenance or capital

 4  expenditures of accommodations and facilities of a personal

 5  property timeshare plan, if any. If such reserves are

 6  maintained, the estimated operating budget shall disclose the

 7  methodology of how the reserves are calculated. If a personal

 8  property timeshare plan does not require reserves, the

 9  following statement, in conspicuous type, shall appear in both

10  the budget and the public offering statement:

11  

12  The estimated operating budget for this personal property

13  timeshare plan does not include reserves for deferred

14  maintenance or capital expenditures; each timeshare interest

15  may be subject to substantial special assessments from time to

16  time because no such reserves exist.

17  

18         (XII)  Fees payable to the division.

19         b.  Expenses for a purchaser:

20         (I)  Rent for the timeshare unit, if subject to a

21  lease.

22         (II)  Rent payable by the purchaser directly to the

23  lessor or agent under any lease for the use of facilities,

24  which use and payment is a mandatory condition of ownership

25  and is not included in the common expenses or assessments for

26  common maintenance paid by the purchasers to the managing

27  entity.

28         4.  The estimated amounts shall be stated for a period

29  of at least 12 months and may distinguish between the period

30  prior to the time that purchasers elect a majority of the

31  board of administration and the period after that date.

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 1         5.  If the developer intends to guarantee the level of

 2  assessments, such guarantee must be based upon a good faith

 3  estimate of the revenues and expenses of the timeshare plan.

 4  The guarantee must include a description of the following:

 5         a.  The specific time period measured in one or more

 6  calendar or fiscal years during which the guarantee will be in

 7  effect.

 8         b.  A statement that the developer will pay all common

 9  expenses incurred in excess of the total revenues of the

10  timeshare plan pursuant to s. 721.15(2) if the developer has

11  excused himself or herself from the payment of assessments

12  during the guarantee period.

13         c.  The level, expressed in total dollars, at which the

14  developer guarantees the budget. If the developer has reserved

15  the right to extend or increase the guarantee level pursuant

16  to s. 721.15(2), a disclosure must be included to that effect.

17         6.  If the developer intends to provide a trust fund to

18  defer or reduce the payment of annual assessments, a copy of

19  the trust instrument shall be attached as an exhibit and shall

20  include a description of such arrangement, including, but not

21  limited to:

22         a.  The specific amount of such trust funds and the

23  source of the funds.

24         b.  The name and address of the trustee.

25         c.  The investment methods permitted by the trust

26  agreement.

27         d.  A statement in conspicuous type that the funds from

28  the trust account may not cover all assessments and that there

29  is no guarantee that purchasers will not have to pay

30  assessments in the future.

31  

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 1         7.  The budget of a phase timeshare plan may contain a

 2  note identifying the number of timeshare interests covered by

 3  the budget, indicating the number of timeshare interests, if

 4  any, estimated to be declared as part of the timeshare plan

 5  during that calendar year, and projecting the common expenses

 6  for the timeshare plan based upon the number of timeshare

 7  interests estimated to be declared as part of the timeshare

 8  plan during that calendar year.

 9         (v)  A schedule of estimated closing expenses to be

10  paid by a purchaser or lessee of a timeshare interest and a

11  statement as to whether a title opinion or title insurance

12  policy is available to the purchaser and, if so, at whose

13  expense.

14         (w)  The identity of the developer and the chief

15  operating officer or principal directing the creation and sale

16  of the timeshare plan and a statement of the experience of

17  each in this field or, if no experience, a statement of that

18  fact.

19         (x)  A statement of the total financial obligation of

20  the purchaser, including the purchase price and any additional

21  charges to which the purchaser may be subject.

22         (y)  The name of any person who will or may have the

23  right to alter, amend, or add to the charges to which the

24  purchaser may be subject and the terms and conditions under

25  which such alterations, amendments, or additions may be

26  imposed.

27         (z)  A statement of the purchaser's right of

28  cancellation of the purchase contract.

29         (aa)  A description of the insurance coverage provided

30  for the timeshare plan.

31  

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 1         (bb)  A statement as to whether the timeshare plan is

 2  participating in an exchange program and, if so, the name and

 3  address of the exchange company offering the exchange program.

 4         (cc)  The existence of rules and regulations regarding

 5  any reservation features governing a purchaser's ability to

 6  make reservations for a timeshare period, including, if

 7  applicable, a conspicuous type disclaimer in substantially the

 8  following form:

 9  

10  The right to reserve a timeshare period is subject to rules

11  and regulations of the timeshare plan reservation system.

12  

13         (dd)  If a developer is filing a timeshare plan that

14  includes a timeshare instrument or component site document

15  that was in conformance with the laws and rules in existence

16  at the time the timeshare plan was created but does not

17  conform to existing laws and rules that govern the timeshare

18  plan and the developer does not have the authority or power to

19  amend or change the timeshare instrument or component site

20  document to conform to such existing laws or rules as directed

21  by the division, a brief explanation of current law and the

22  conflict with the timeshare instrument or component site

23  document, preceded by disclaimer in conspicuous type in

24  substantially the following form:

25  

26  Florida law has been amended and certain provisions in [insert

27  appropriate reference to timeshare instrument or component

28  site document] that were in conformance with Florida law as it

29  existed at the time the timeshare plan was created are not in

30  conformance with current Florida law. These documents may only

31  be amended by [insert appropriate reference to person or

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 1  entity that has the right to amend or change the timeshare

 2  instrument or component site document]. The developer does not

 3  warrant that such documents are in technical compliance with

 4  all applicable Florida laws and regulations. All questions

 5  regarding amendment of these documents should be directed to

 6  [insert appropriate reference to person or entity that has the

 7  right to amend or change the timeshare instrument or component

 8  site document].

 9  

10         (ee)  Any other information that a seller, with the

11  approval of the division, desires to include in the public

12  offering statement.

13         (ff)  Copies of the following documents and plans, to

14  the extent they are applicable, shall be included as exhibits

15  to the filed registered public offering statement provided, if

16  the timeshare plan has not been declared or created at the

17  time of the filing, the developer shall provide proposed

18  documents:

19         1.  The declaration of condominium.

20         2.  The cooperative documents.

21         3.  The declaration of covenants and restrictions.

22         4.  The articles of incorporation creating the owners'

23  association.

24         5.  The bylaws of the owners' association.

25         6.  Any The ground lease or other underlying lease of

26  the real property associated with on which the timeshare plan

27  is situated. In the case of a personal property timeshare

28  plan, any lease of the personal property associated with the

29  personal property timeshare plan.

30  

31  

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 1         7.  The management agreement and all maintenance and

 2  other contracts regarding the management and operation of the

 3  timeshare property which have terms in excess of 1 year.

 4         8.  The estimated operating budget for the timeshare

 5  plan and the required schedule of purchasers' expenses.

 6         9.  The floor plan of each type of accommodation and

 7  the plot plan showing the location of all accommodations and

 8  facilities declared as part of the timeshare plan and filed

 9  with the division.

10         10.  The lease for any facilities.

11         11.  A declaration of servitude of properties serving

12  the accommodations and facilities, but not owned by purchasers

13  or leased to them or the owners' association.

14         12.  Any documents required by s. 721.03(3)(e) as the

15  result of the inclusion of a timeshare plan in the conversion

16  of the building to condominium or cooperative ownership.

17         13.  The form of agreement for sale or lease of

18  timeshare interests.

19         14.  The executed agreement for escrow of payments made

20  to the developer prior to closing and the form of any

21  agreement for escrow of ad valorem tax escrow payments, if

22  any, to be made into an ad valorem tax escrow account pursuant

23  to s. 192.037(6).

24         15.  The documents containing any restrictions on use

25  of the property required by paragraph (s).

26         16.  A letter from the escrow agent or filing attorney

27  confirming that the escrow agent and its officers, directors,

28  or other partners are independent pursuant to the requirements

29  of this chapter.

30         17.  Any nondisturbance and notice to creditors

31  instrument required by s. 721.08.

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 1         18.  In the case of any personal property timeshare

 2  plan in which the accommodations and facilities are located on

 3  or in a documented vessel or foreign vessel as provided in s.

 4  721.08(2)(c)3.e., a copy of the certificate of ownership of

 5  such vessel and either a copy of the certificate of

 6  documentation or certificate of registry of such vessel.

 7         19.  An executed affidavit given under oath by an

 8  attorney licensed to practice law in any jurisdiction in the

 9  United States stating that the attorney has researched the

10  applicable laws of the jurisdiction in which governing law has

11  been established and the laws of the jurisdiction in which the

12  vessel is registered, and has found that the timeshare

13  instrument complies with the provisions of s.

14  721.08(2)(c)3.e.(II)(C) and (III).

15         20.16.  Any other documents or instruments creating the

16  timeshare plan.

17         (gg)  Such other information as is necessary to fairly,

18  meaningfully, and effectively disclose all aspects of the

19  timeshare plan, including, but not limited to, any disclosures

20  made necessary by the operation of s. 721.03(8). However, if a

21  developer has, in good faith, attempted to comply with the

22  requirements of this section, and if, in fact, he or she has

23  substantially complied with the disclosure requirements of

24  this chapter, nonmaterial errors or omissions shall not be

25  actionable.

26         (hh)  Notwithstanding the provisions of this

27  subsection, the filed registered public offering statement for

28  a component site of a multisite timeshare plan filed pursuant

29  to this subsection may contain cross-references to information

30  contained in the related multisite timeshare plan filed

31  

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 1  registered public offering statement filed pursuant to s.

 2  721.55 in lieu of repeating such information.

 3         (6)  The division is authorized to prescribe by rule

 4  the form of the approved purchaser public offering statement

 5  that must be furnished by the developer to each purchaser. The

 6  form of the purchaser public offering statement must provide

 7  fair, meaningful, and effective disclosure of all aspects of

 8  the timeshare plan. For timeshare plans filed pursuant to this

 9  part, the developer shall furnish each purchaser with the

10  following:

11         (a)  A copy of the purchaser public offering statement

12  text in the form approved by the division for delivery to

13  purchasers.

14         (b)  Copies of the exhibits required to be filed with

15  the division pursuant to subparagraphs (5)(ff)1., 2., 4., 5.,

16  8., and 20. 16.

17         (c)  A receipt for timeshare plan documents and a list

18  describing any exhibit to the filed registered public offering

19  statement filed with the division which is not delivered to

20  the purchaser. The division is authorized to prescribe by rule

21  the form of the receipt for timeshare plan documents and the

22  description of exhibits list that must be furnished to the

23  purchaser. The description of documents list utilized by a

24  developer shall be filed with the division for review as part

25  of the filed registered public offering statement pursuant to

26  this section. The developer shall be required to provide the

27  managing entity with a copy of the approved filed registered

28  public offering statement and any approved amendments thereto

29  to be maintained by the managing entity as part of the books

30  and records of the timeshare plan pursuant to s. 721.13(3)(d).

31  

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 1         (d)  Any other exhibit which the developer includes as

 2  part of the purchaser public offering statement, provided that

 3  the developer first files the exhibit with the division.

 4         (e)  An executed copy of any document which the

 5  purchaser signs.

 6         (f)  Each purchaser shall receive a fully executed

 7  paper copy of the purchase contract.

 8         Section 7.  Paragraph (g) of subsection (1) of section

 9  721.075, Florida Statutes, is amended and paragraph (e) is

10  added to subsection (2) of that section, to read:

11         721.075  Incidental benefits.--Incidental benefits

12  shall be offered only as provided in this section.

13         (1)  Accommodations, facilities, products, services,

14  discounts, or other benefits which satisfy the requirements of

15  this subsection shall be subject to the provisions of this

16  section and exempt from the other provisions of this chapter

17  which would otherwise apply to such accommodations or

18  facilities if and only if:

19         (g)  The incidental benefit is filed with the division

20  for review in conjunction with the filing of a timeshare plan

21  or in connection with a previously filed timeshare plan.

22         (2)  Each purchaser shall execute a separate

23  acknowledgment and disclosure statement with respect to all

24  incidental benefits, which statement shall include the

25  following information:

26         (e)  A statement indicating the source of the services,

27  points, or other products that constitute the incidental

28  benefit.

29         Section 8.  Section 721.08, Florida Statutes, is

30  amended to read:

31  

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 1         721.08  Escrow accounts; nondisturbance instruments;

 2  alternate security arrangements; transfer of legal title.--

 3         (1)  Prior to the filing of a registered public

 4  offering statement with the division, all developers shall

 5  establish an escrow account with an escrow agent for the

 6  purpose of protecting the funds or other property of

 7  purchasers required to be escrowed by this section. An escrow

 8  agent shall maintain the accounts called for in this section

 9  only in such a manner as to be under the direct supervision

10  and control of the escrow agent. The escrow agent shall have a

11  fiduciary duty to each purchaser to maintain the escrow

12  accounts in accordance with good accounting practices and to

13  release the purchaser's funds or other property from escrow

14  only in accordance with this chapter. The escrow agent shall

15  retain all affidavits received pursuant to this section for a

16  period of 5 years. Should the escrow agent receive conflicting

17  demands for funds or other property held in escrow, the escrow

18  agent shall immediately notify the division of the dispute and

19  either promptly submit the matter to arbitration or, by

20  interpleader or otherwise, seek an adjudication of the matter

21  by court.

22         (2)  One hundred percent of all funds or other property

23  which is received from or on behalf of purchasers of the

24  timeshare plan or timeshare interest prior to the occurrence

25  of events required in this subsection shall be deposited

26  pursuant to an escrow agreement approved by the division. The

27  escrow agreement shall provide that the funds or other

28  property may be released from escrow only as follows:

29         (a)  Cancellation.--In the event a purchaser gives a

30  valid notice of cancellation pursuant to s. 721.10 or is

31  otherwise entitled to cancel the sale, the funds or other

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 1  property received from or on behalf of the purchaser, or the

 2  proceeds thereof, shall be returned to the purchaser. Such

 3  refund shall be made within 20 days after of demand therefor

 4  by the purchaser or within 5 days after receipt of funds from

 5  the purchaser's cleared check, whichever is later. If the

 6  purchaser has received benefits under the contract prior to

 7  the effective date of the cancellation, the funds or other

 8  property to be returned to the purchaser may be reduced by the

 9  proportion of contract benefits actually received.

10         (b)  Purchaser's default.--Following expiration of the

11  10-day cancellation period, if the purchaser defaults in the

12  performance of her or his obligations under the terms of the

13  contract to purchase or such other agreement by which a seller

14  sells the timeshare interest, the developer shall provide an

15  affidavit to the escrow agent requesting release of the

16  escrowed funds or other property and shall provide a copy of

17  such affidavit to the purchaser who has defaulted. The

18  developer's affidavit, as required herein, shall include:

19         1.  A statement that the purchaser has defaulted and

20  that the developer has not defaulted;

21         2.  A brief explanation of the nature of the default

22  and the date of its occurrence;

23         3.  A statement that pursuant to the terms of the

24  contract the developer is entitled to the funds held by the

25  escrow agent; and

26         4.  A statement that the developer has not received

27  from the purchaser any written notice of a dispute between the

28  purchaser and developer or a claim by the purchaser to the

29  escrow.

30         (c)  Compliance with conditions.--

31  

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 1         1.  Timeshare licenses.--If the timeshare plan is one

 2  in which timeshare licenses are to be sold and no cancellation

 3  or default has occurred, the escrow agent may release the

 4  escrowed funds or other property to or on the order of the

 5  developer upon presentation of:

 6         a.  An affidavit by the developer that all of the

 7  following conditions have been met:

 8         (I)  Expiration of the cancellation period.

 9         (II)  Completion of construction.

10         (III)  Closing.

11         (IV)  Either:

12         (A)  Execution, delivery, and recordation by each

13  interestholder of the nondisturbance and notice to creditors

14  instrument, as described in this section; or, alternatively,

15         (B)  Transfer by the developer of legal title to the

16  subject accommodations and facilities, or all use rights

17  therein, into to a trust satisfying the requirements of

18  subparagraph 4. sub-subparagraph 3.b. and the execution,

19  delivery, and recordation by each other interestholder of the

20  nondisturbance and notice to creditors instrument, as

21  described in this section.

22         b.  A certified copy of each the recorded

23  nondisturbance and notice to creditors instrument that

24  complies with subsection (3).

25         c.  One of the following:

26         (I)  A copy of a memorandum of agreement, as defined in

27  s. 721.05(21), together with satisfactory evidence that the

28  original memorandum of agreement has been irretrievably

29  delivered for recording to the appropriate official

30  responsible for maintaining the public records in the county

31  in which the subject accommodations and facilities are

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 1  located. The original memorandum of agreement must be recorded

 2  within 180 days after the date on which the purchaser executed

 3  her or his purchase agreement.

 4         (II)  A notice delivered for recording to the

 5  appropriate official responsible for maintaining the public

 6  records in each county in which the subject accommodations and

 7  facilities are located notifying all persons of the identity

 8  of an independent escrow agent or trustee satisfying the

 9  requirements of subparagraph 4. sub-subparagraph 3.b. that

10  shall maintain separate books and records, in accordance with

11  good accounting practices, for the timeshare plan in which

12  timeshare licenses are to be sold. The books and records shall

13  indicate each accommodation and facility that is subject to

14  such a timeshare plan and each purchaser of a timeshare

15  license in the timeshare plan.

16         2.  Timeshare estates.--If the timeshare plan is one in

17  which timeshare estates are to be sold, other than interests

18  in a trust pursuant to subparagraph 3., and no cancellation or

19  default has occurred, the escrow agent may release the

20  escrowed funds or other property to or on the order of the

21  developer upon presentation of:

22         a.  An affidavit by the developer that all of the

23  following conditions have been met:

24         (I)  Expiration of the cancellation period.

25         (II)  Completion of construction.

26         (III)  Closing.

27         b.  If the timeshare estate is sold by agreement for

28  deed, a certified copy of the recorded nondisturbance and

29  notice to creditors instrument, as described in this section.

30         c.  Evidence that each accommodation and facility:

31  

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 1         (I)  Is free and clear of the claims of any

 2  interestholders, other than the claims of interestholders

 3  that, through a recorded instrument, are irrevocably made

 4  subject to the timeshare instrument and the use rights of

 5  purchasers made available through the timeshare instrument;

 6         (II)  Is the subject of a recorded nondisturbance and

 7  notice to creditors instrument that complies with subsection

 8  (3) and s. 721.17; or

 9         (III)  Has been transferred into a trust satisfying the

10  requirements of subparagraph 4.

11         d.  Evidence that the timeshare estate:

12         (I)  Is free and clear of the claims of any

13  interestholders, other than the claims of interestholders

14  that, through a recorded instrument, are irrevocably made

15  subject to the timeshare instrument and the use rights of

16  purchasers made available through the timeshare instrument;,

17  or

18         (II)  Is that are the subject of a recorded

19  nondisturbance and notice to creditors instrument that

20  complies with subsection (3) and s. 721.17.

21         3.  Personal property timeshare interests.-- If the

22  timeshare plan is one in which personal property timeshare

23  interests estates are to be sold as interests in a trust that

24  complies in all respects with the provisions of

25  sub-subparagraph b., and no cancellation or default has

26  occurred, the escrow agent may release the escrowed funds or

27  other property to or on the order of the developer upon

28  presentation of:

29         a.  An affidavit by the developer that all of the

30  following conditions have been met:

31         (I)  Expiration of the cancellation period.

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 1         (II)  Completion of construction.

 2         (III)  Transfer of the subject accommodations and

 3  facilities, or all use rights therein, to the trust.

 4         (IV)  Closing.

 5         b.  If the personal property timeshare interest is sold

 6  by agreement for transfer, evidence that the agreement for

 7  transfer complies fully with s. 721.06 and this section.

 8         c.  Evidence that one of the following has occurred:

 9         (I)  Transfer by the owner of the underlying personal

10  property of legal title to the subject accommodations and

11  facilities or all use rights therein into a trust satisfying

12  the requirements of subparagraph 4.; or

13         (II)  Transfer by the owner of the underlying personal

14  property of legal title to the subject accommodations and

15  facilities or all use rights therein into an owners'

16  association satisfying the requirements of subparagraph 5.

17         d.  Evidence of compliance with the provisions of

18  subparagraph 6., if required.

19         e.  If a personal property timeshare plan is created

20  with respect to accommodations and facilities that are located

21  on or in an oceangoing vessel, including a "documented vessel"

22  or a "foreign vessel," as defined and governed by 46 U.S.C.,

23  chapter 301:

24         (I)  In making the transfer required in

25  sub-subparagraph c., the developer shall use as its transfer

26  instrument a document that establishes and protects the

27  continuance of the use rights in the subject accommodations

28  and facilities in a manner that is enforceable by the trust or

29  owners' association.

30  

31  

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 1         (II)  The transfer instrument shall comply fully with

 2  the provisions of this chapter, shall be part of the timeshare

 3  instrument, and shall contain specific provisions that:

 4         (A)  Prohibit the vessel owner, the developer, any

 5  manager or operator of the vessel, the owners' association or

 6  the trustee, the managing entity, or any other person from

 7  incurring any liens against the vessel except for liens that

 8  are required for the operation and upkeep of the vessel,

 9  including liens for fuel expenditures, repairs, crews' wages,

10  and salvage, and except as provided in sub-sub-subparagraphs

11  4.b.(III) and 5.b.(III). All expenses, fees, and taxes

12  properly incurred in connection with the creation,

13  satisfaction, and discharge of any such permitted lien, or a

14  prorated portion thereof if less than all of the

15  accommodations on the vessel are subject to the timeshare

16  plan, shall be common expenses of the timeshare plan.

17         (B)  Grant a lien against the vessel in favor of the

18  owners' association or trustee to secure the full and faithful

19  performance of the vessel owner and developer of all of their

20  obligations to the purchasers.

21         (C)  Establish governing law in a jurisdiction that

22  recognizes and will enforce the timeshare instrument and the

23  laws of the jurisdiction of registry of the vessel.

24         (D)  Require that a description of the use rights of

25  purchasers be posted and displayed on the vessel in a manner

26  that will give notice of such rights to any party examining

27  the vessel. This notice must identify the owners' association

28  or trustee and include a statement disclosing the limitation

29  on incurring liens against the vessel described in

30  sub-sub-sub-subparagraph (A).

31  

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 1         (E)  Include the nondisturbance and notice to creditors

 2  instrument for the vessel owner and any other interestholders.

 3         (F)  The owners' association created under subparagraph

 4  5. or trustee created under subparagraph 4. shall have access

 5  to any certificates of classification in accordance with the

 6  timeshare instrument.

 7         (III)  If the vessel is a foreign vessel, the vessel

 8  must be registered in a jurisdiction that permits a filing

 9  evidencing the use rights of purchasers in the subject

10  accommodations and facilities, offers protection for such use

11  rights against unfiled and inferior claims, and recognizes the

12  document or instrument creating such use rights as a lien

13  against the vessel.

14         (IV)  In addition to the disclosures required by s.

15  721.07(5), the public offering statement and purchase contract

16  must contain a disclosure in conspicuous type in substantially

17  the following form:

18  

19  The laws of the State of Florida govern the offering of this

20  timeshare plan in this state. There are inherent risks in

21  purchasing a timeshare interest in this timeshare plan because

22  the accommodations and facilities of the timeshare plan are

23  located on a vessel that will sail into international waters

24  and into waters governed by many different jurisdictions.

25  Therefore, the laws of the State of Florida cannot fully

26  protect your purchase of an interest in this timeshare plan.

27  Specifically, management and operational issues may need to be

28  addressed in the jurisdiction in which the vessel is

29  registered, which is ________(insert jurisdiction in which

30  vessel is registered). Concerns of purchasers may be sent to

31  

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 1  ____________(insert name of applicable regulatory agency and

 2  address).

 3  

 4  4.  Trust.--

 5         a.  If the subject accommodations or facilities, or all

 6  use rights therein, are to be transferred into a trust in

 7  order to comply with this paragraph, such transfer shall take

 8  place pursuant to this subparagraph.

 9         b.  Prior to the transfer by each interestholder of the

10  subject accommodations and facilities, or all use rights

11  therein, to a trust, any lien or other encumbrance against

12  such accommodations and facilities, or use rights therein,

13  shall be made subject to a nondisturbance and notice to

14  creditors instrument pursuant to subsection (3) as described

15  in this section. No transfer pursuant to this subparagraph

16  sub-subparagraph shall become effective until the trustee

17  accepts such transfer and the responsibilities set forth

18  herein. A trust established pursuant to this subparagraph

19  sub-subparagraph shall comply with the following provisions:

20         (I)  The trustee shall be an individual or a business

21  entity authorized and qualified to conduct trust business in

22  this state. Any corporation authorized to do business in this

23  state may act as trustee in connection with a timeshare plan

24  pursuant to this chapter. The trustee must be independent from

25  any developer or managing entity of the timeshare plan or any

26  interestholder of any accommodation or facility of such plan.

27         (II)  The trust shall be irrevocable so long as any

28  purchaser has a right to occupy any portion of the timeshare

29  property pursuant to the timeshare plan.

30         (III)  The trustee shall not convey, hypothecate,

31  mortgage, assign, lease, or otherwise transfer or encumber in

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 1  any fashion any interest in or portion of the timeshare

 2  property with respect to which any purchaser has a right of

 3  use or occupancy unless the timeshare plan is terminated

 4  pursuant to the timeshare instrument, or such conveyance,

 5  hypothecation, mortgage, assignment, lease, transfer, or

 6  encumbrance is approved by a vote of two-thirds of all voting

 7  interests of the timeshare plan and such decision is declared

 8  by a court of competent jurisdiction to be in the best

 9  interests of the purchasers of the timeshare plan. The trustee

10  shall notify the division in writing within 10 days after of

11  receiving notice of the filing of any petition relating to

12  obtaining such a court order. The division shall have standing

13  to advise the court of the division's interpretation of the

14  statute as it relates to the petition.

15         (IV)  All purchasers of the timeshare plan or the

16  owners' association of the timeshare plan shall be the express

17  beneficiaries of the trust. The trustee shall act as a

18  fiduciary to the beneficiaries of the trust. The personal

19  liability of the trustee shall be governed by s. 737.306. The

20  agreement establishing the trust shall set forth the duties of

21  the trustee. The trustee shall be required to furnish promptly

22  to the division upon request a copy of the complete list of

23  the names and addresses of the owners in the timeshare plan

24  and a copy of any other books and records of the timeshare

25  plan required to be maintained pursuant to s. 721.13 that are

26  in the possession, custody, or control of the trustee. All

27  expenses reasonably incurred by the trustee in the performance

28  of its duties, together with any reasonable compensation of

29  the trustee, shall be common expenses of the timeshare plan.

30         (V)  The trustee shall not resign upon less than 90

31  days' prior written notice to the managing entity and the

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 1  division. No resignation shall become effective until a

 2  substitute trustee, approved by the division, is appointed by

 3  the managing entity and accepts the appointment.

 4         (VI)  The documents establishing the trust arrangement

 5  shall constitute a part of the timeshare instrument.

 6         (VII)  For trusts holding property in a timeshare plan

 7  located outside this state, the trust and trustee holding such

 8  property shall be deemed in compliance with the requirements

 9  of this subparagraph if such trust and trustee are is

10  authorized and qualified to conduct trust business under the

11  laws of such jurisdiction and the agreement or law governing

12  such trust arrangement provides substantially similar

13  protections for the purchaser as are required in this

14  subparagraph for trusts holding property in a timeshare plan

15  in this state.

16         (VIII)  The trustee shall have appointed a registered

17  agent in this state for service of process. In the event such

18  a registered agent is not appointed, service of process may be

19  served pursuant to s. 721.265.

20         5.  Owners' association.--

21         a.  If the subject accommodations or facilities, or all

22  use rights therein, are to be transferred into an owners'

23  association in order to comply with this paragraph, such

24  transfer shall take place pursuant to this subparagraph.

25         b.  Prior to the transfer by each interestholder of the

26  subject accommodations and facilities, or all use rights

27  therein, to an owners' association, any lien or other

28  encumbrance against such accommodations and facilities, or use

29  rights therein, shall be made subject to a nondisturbance and

30  notice to creditors instrument pursuant to subsection (3). No

31  transfer pursuant to this subparagraph shall become effective

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 1  until the owners' association accepts such transfer and the

 2  responsibilities set forth herein. An owners' association

 3  established pursuant to this subparagraph shall comply with

 4  the following provisions:

 5         (I)  The owners' association shall be a business entity

 6  authorized and qualified to conduct business in this state.

 7  Control of the board of directors of the owners' association

 8  must be independent from any developer or managing entity of

 9  the timeshare plan or any interestholder.

10         (II)  The bylaws of the owners' association shall

11  provide that the corporation may not be voluntarily dissolved

12  without the unanimous vote of all owners of personal property

13  timeshare interests so long as any purchaser has a right to

14  occupy any portion of the timeshare property pursuant to the

15  timeshare plan.

16         (III)  The owners' association shall not convey,

17  hypothecate, mortgage, assign, lease, or otherwise transfer or

18  encumber in any fashion any interest in or portion of the

19  timeshare property with respect to which any purchaser has a

20  right of use or occupancy, unless the timeshare plan is

21  terminated pursuant to the timeshare instrument, or unless

22  such conveyance, hypothecation, mortgage, assignment, lease,

23  transfer, or encumbrance is approved by a vote of two-thirds

24  of all voting interests of the association and such decision

25  is declared by a court of competent jurisdiction to be in the

26  best interests of the purchasers of the timeshare plan. The

27  owners' association shall notify the division in writing

28  within 10 days after receiving notice of the filing of any

29  petition relating to obtaining such a court order. The

30  division shall have standing to advise the court of the

31  

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 1  division's interpretation of the statute as it relates to the

 2  petition.

 3         (IV)  All purchasers of the timeshare plan shall be

 4  members of the owners' association and shall be entitled to

 5  vote on matters requiring a vote of the owners' association as

 6  provided in this chapter or the timeshare instrument. The

 7  owners' association shall act as a fiduciary to the purchasers

 8  of the timeshare plan. The articles of incorporation

 9  establishing the owners' association shall set forth the

10  duties of the owners' association. All expenses reasonably

11  incurred by the owners' association in the performance of its

12  duties, together with any reasonable compensation of the

13  officers or directors of the owners' association, shall be

14  common expenses of the timeshare plan.

15         (V)  The documents establishing the owners' association

16  shall constitute a part of the timeshare instrument.

17         (VI)  For owners' associations holding property in a

18  timeshare plan located outside this state, the owners'

19  association holding such property shall be deemed in

20  compliance with the requirements of this subparagraph if such

21  owners' association is authorized and qualified to conduct

22  owners' association business under the laws of such

23  jurisdiction and the agreement or law governing such

24  arrangement provides substantially similar protections for the

25  purchaser as are required in this subparagraph for owners'

26  associations holding property in a timeshare plan in this

27  state.

28         (VII)  The owners' association shall have appointed a

29  registered agent in this state for service of process. In the

30  event such a registered agent cannot be located, service of

31  process may be made pursuant to s. 721.265.

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 1         6.  Personal property subject to certificate of

 2  title.--If any personal property that is an accommodation or

 3  facility of a timeshare plan is subject to a certificate of

 4  title in this state pursuant to chapter 319 or chapter 328,

 5  the following notation must be made on such certificate of

 6  title pursuant to s. 319.27(1) or s. 328.15(1):

 7  

 8  The further transfer or encumbrance of the property subject to

 9  this certificate of title, or any lien or encumbrance thereon,

10  is subject to the requirements of section 721.17, Florida

11  Statutes, and the transferee or lienor agrees to be bound by

12  all of the obligations set forth therein.

13  

14         7.4.  If the developer has previously provided a

15  certified copy of any document required by this paragraph, she

16  or he may for all subsequent disbursements substitute a true

17  and correct copy of the certified copy, provided no changes to

18  the document have been made or are required to be made.

19         8.  In the event that use rights relating to an

20  accommodation or facility are transferred into a trust

21  pursuant to subparagraph 4. or into an owners' association

22  pursuant to subparagraph 5., all other interestholders,

23  including the owner of the underlying fee or underlying

24  personal property, must execute a nondisturbance and notice to

25  creditors instrument pursuant to subsection (3).

26         (d)  Substitution of other assurances for escrowed

27  funds or other property.--Funds or other property escrowed as

28  provided in this section may be released from escrow to or on

29  the order of the developer upon acceptance by the director of

30  the division of other assurances pursuant to subsection (5) as

31  a substitute for such escrowed funds or other property. The

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 1  amount of escrowed funds or other property that may be

 2  released pursuant to this paragraph shall be equal to or less

 3  than the face amount of the assurances accepted by the

 4  director from time to time.

 5         (3)  NONDISTURBANCE AND NOTICE TO CREDITORS

 6  INSTRUMENT.--The nondisturbance and notice to creditors

 7  instrument, when required, shall be executed by each

 8  interestholder.

 9         (a)  The instrument shall state that:

10         1.(a)  If the party seeking enforcement is not in

11  default of its obligations, the instrument may be enforced by

12  both the seller and any purchaser of the timeshare plan;

13         2.(b)  The instrument shall be effective as between the

14  timeshare purchaser and interestholder despite any rejection

15  or cancellation of the contract between the timeshare

16  purchaser and developer as a result of bankruptcy proceedings

17  of the developer; and

18         3.(c)  So long as a purchaser remains in good standing

19  with respect to her or his obligations under the timeshare

20  instrument, including making all payments to the managing

21  entity required by the timeshare instrument with respect to

22  the annual common expenses of the timeshare the interestholder

23  has any interest in the accommodations, facilities, or plan,

24  then the interestholder will fully honor all the rights of

25  such purchaser relating to the subject accommodation or

26  facility as reflected timeshare purchasers in and to the

27  timeshare instrument plan, will honor the purchasers' right to

28  cancel their contracts and receive appropriate refunds, and

29  will comply with all other requirements of this chapter and

30  rules promulgated hereunder.

31  

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 1  The instrument shall contain language sufficient to provide

 2  subsequent creditors of the developer and interestholders with

 3  notice of the existence of the timeshare plan and of the

 4  rights of purchasers and shall serve to protect the interest

 5  of the timeshare purchasers from any claims of subsequent

 6  creditors.

 7         (b)  Real property timeshare plans.--For real property

 8  timeshare plans, the instrument shall be recorded in the

 9  public records of the county in which the subject

10  accommodations or facilities are located.

11         (c)  Personal property timeshare plans.--For personal

12  property timeshare plans, the instrument shall be included

13  within or attached as an exhibit to a security agreement or

14  other agreement executed by the interestholder. Constructive

15  notice of such security agreement or other agreement shall be

16  filed in the manner prescribed by chapter 679 or other

17  applicable law.

18         (d)  A copy of the recorded or filed nondisturbance and

19  notice to creditors instrument, when required, shall be

20  provided to each timeshare purchaser at the time the purchase

21  contract is executed.

22         (4)  In lieu of any escrow provisions required by this

23  act, the director of the division shall have the discretion to

24  permit deposit of the funds or other property in an escrow

25  account as required by the jurisdiction in which the sale took

26  place.

27         (5)(a)  In lieu of any escrows required by this

28  section, the director of the division shall have the

29  discretion to accept other assurances, including, but not

30  limited to, a surety bond issued by a company authorized and

31  licensed to do business in this state as surety or an

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 1  irrevocable letter of credit in an amount equal to the escrow

 2  requirements of this section.

 3         (b)  Notwithstanding anything in chapter 718 or chapter

 4  719 to the contrary, the director of the division shall have

 5  the discretion to accept other assurances pursuant to

 6  paragraph (a) in lieu of any requirement that completion of

 7  construction of one or more accommodations or facilities of a

 8  timeshare plan be accomplished prior to closing.

 9         (c)  In lieu of a nondisturbance and notice to

10  creditors instrument, when such an instrument is otherwise

11  required by this section, the director of the division shall

12  have the discretion to accept alternate means of protecting

13  the continuing rights of purchasers in and to the subject

14  accommodations or facilities of the timeshare plan as and for

15  the term described in the timeshare instrument, and of

16  providing effective constructive notice of such continuing

17  purchaser rights to subsequent owners of the accommodations or

18  facilities and to subsequent creditors of the affected

19  interestholder.

20         (d)  In lieu of the requirements in s.

21  721.08(2)(c)3.e.(III), the director of the division shall have

22  the discretion to accept alternate means of protecting the use

23  rights of purchasers in the subject accommodations and

24  facilities of the timeshare plan against unfiled and inferior

25  claims.

26         (6)  An escrow agent holding funds escrowed pursuant to

27  this section may invest such escrowed funds in securities of

28  the United States Government, or any agency thereof, or in

29  savings or time deposits in institutions insured by an agency

30  of the United States Government. The right to receive the

31  interest generated by any such investments shall be paid to

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 1  the party to whom the escrowed funds or other property are

 2  paid unless otherwise specified by contract.

 3         (7)  Each escrow agent shall maintain separate books

 4  and records for each timeshare plan and shall maintain such

 5  books and records in accordance with good accounting

 6  practices.

 7         (8)  An escrow agent holding escrowed funds pursuant to

 8  this chapter that have not been claimed for a period of 5

 9  years after the date of deposit shall make at least one

10  reasonable attempt to deliver such unclaimed funds to the

11  purchaser who submitted such funds to escrow. In making such

12  attempt, an escrow agent is entitled to rely on a purchaser's

13  last known address as set forth in the books and records of

14  the escrow agent and is not required to conduct any further

15  search for the purchaser. If an escrow agent's attempt to

16  deliver unclaimed funds to any purchaser is unsuccessful, the

17  escrow agent may deliver such unclaimed funds to the division

18  and the division shall deposit such unclaimed funds in the

19  Division of Florida Land Sales, Condominiums, and Mobile Homes

20  Trust Fund, 30 days after giving notice in a publication of

21  general circulation in the county in which the timeshare

22  property containing the purchaser's timeshare interest is

23  located. The purchaser may claim the same at any time prior to

24  the delivery of such funds to the division. After delivery of

25  such funds to the division, the purchaser shall have no more

26  rights to the unclaimed funds. The escrow agent shall not be

27  liable for any claims from any party arising out of the escrow

28  agent's delivery of the unclaimed funds to the division

29  pursuant to this section.

30         (9)  For each transfer of the legal title to a

31  timeshare estate by a developer, the developer shall deliver

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 1  an instrument evidencing such transfer to the purchaser or to

 2  a title insurance agent or the clerk of the court for

 3  recording. For each transfer of the legal title to a personal

 4  property timeshare interest by a developer, the developer

 5  shall deliver an instrument evidencing such transfer to the

 6  purchaser subject to the provisions of this section.

 7         (10)(a)  Any developer, seller, or escrow agent who

 8  intentionally fails to comply with the provisions of this

 9  section concerning the establishment of an escrow account,

10  deposits of funds into escrow, and withdrawal therefrom is

11  guilty of a felony of the third degree, punishable as provided

12  in s. 775.082, s. 775.083, or s. 775.084, or the successor

13  thereof. The failure to establish an escrow account or to

14  place funds therein as required in this section is prima facie

15  evidence of an intentional and purposeful violation of this

16  section.

17         (b)  Any developer, interestholder, trustee, or officer

18  or director of an owners' association who intentionally fails

19  to comply with the provisions of this section concerning the

20  establishment of a trust or owners' association, conveyances

21  of property into the trust or owners' association, and

22  conveyances or encumbrances of trust or owners' association

23  property is guilty of a felony of the third degree, punishable

24  as provided in s. 775.082, s. 775.083, or s. 775.084, or the

25  successor thereof. The failure to establish a trust or owners'

26  association, or to transfer property into the trust or owners'

27  association, or the failure of a trustee or officer or

28  director of an owners' association to comply with the trust

29  agreement, articles of incorporation, or bylaws with respect

30  to conveyances or encumbrances of trust or owners' association

31  

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 1  property, as required by this section, is prima facie evidence

 2  of an intentional and purposeful violation of this section.

 3         Section 9.  Paragraphs (a) and (d) of subsection (1),

 4  paragraph (c) of subsection (2), and paragraph (c) of

 5  subsection (3) of section 721.09, Florida Statutes, are

 6  amended to read:

 7         721.09  Reservation agreements; escrows.--

 8         (1)(a)  Prior to filing the filed registered public

 9  offering statement with the division, a seller shall not offer

10  a timeshare plan for sale but may accept reservation deposits

11  and advertise the reservation deposit program upon approval by

12  the division of a fully executed escrow agreement and

13  reservation agreement properly filed with the division.

14         (d)  A seller who has filed a reservation agreement and

15  an escrow agreement under this section may advertise the

16  reservation agreement program if the advertising material

17  meets the following requirements:

18         1.  The seller complies with the provisions of s.

19  721.11 with respect to such advertising material.

20         2.  The advertising material is limited to a general

21  description of the proposed timeshare plan, including, but not

22  limited to, a general description of the type, number, and

23  size of accommodations and facilities and the name of the

24  proposed timeshare plan.

25         3.  The advertising material contains a statement that

26  the advertising material is being distributed in connection

27  with an approved reservation agreement filing only and that

28  the seller cannot offer an interest in the timeshare plan for

29  sale until a filed registered public offering statement has

30  been filed with the division under this chapter.

31  

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 1         (2)  Each executed reservation agreement shall be

 2  signed by the developer and shall contain the following:

 3         (c)  A statement of the obligation of the developer to

 4  file a filed registered public offering statement with the

 5  division prior to entering into binding contracts.

 6         (3)

 7         (c)  The escrow agent may invest the escrowed funds in

 8  securities of the United States Government, or any agency

 9  thereof, or in savings or time deposits in institutions

10  insured by an agency of the United States Government. The

11  interest generated by any such investments shall be payable to

12  the party entitled to receive the escrowed funds or other

13  property.

14         Section 10.  Paragraph (a) of subsection (1),

15  paragraphs (b) and (e) of subsection (6), and subsections (7),

16  (8), and (9) of section 721.11, Florida Statutes, are amended

17  to read:

18         721.11  Advertising materials; oral statements.--

19         (1)(a)  A developer may file All advertising material

20  must be filed with the division for review by the developer

21  prior to use. At the request of the developer, The division

22  shall review any the advertising material filed for review by

23  the developer and notify the developer of any deficiencies

24  within 10 days after the filing. If the developer corrects the

25  deficiencies or if there are no deficiencies, the division

26  shall notify the developer of its approval of the advertising

27  materials. Notwithstanding anything to the contrary contained

28  in this subsection, so long as the developer uses advertising

29  materials approved by the division, following the developer's

30  request for a review, the developer shall not be liable for

31  

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 1  any violation of this section or s. 721.111 with respect to

 2  such advertising materials.

 3         (6)  Failure to provide cancellation rights or

 4  disclosures as required by this subsection in connection with

 5  the sale of a regulated short-term product constitutes

 6  misrepresentation in accordance with paragraph (4)(a). Any

 7  agreement relating to the sale of a regulated short-term

 8  product must be regulated as advertising material and is

 9  subject to the following:

10         (b)  A purchaser of a regulated short-term product has

11  the right to cancel the agreement until midnight of the 10th

12  calendar day following the execution date of the agreement.

13  The right of cancellation may not be waived by the prospective

14  purchaser or by any other person on behalf of the prospective

15  purchaser. Notice of cancellation must be given in the same

16  manner prescribed for giving notice of cancellation under s.

17  721.10(2). If the prospective purchaser gives a valid notice

18  of cancellation or is otherwise entitled to cancel the sale,

19  the funds or other property received from or on behalf of the

20  prospective purchaser, or the proceeds thereof, must be

21  returned to the prospective purchaser. Such refund must be

22  made in the same manner prescribed for refunds under s.

23  721.10.

24         (e)  If the seller provides the purchaser with the

25  right to cancel the purchase of a regulated short-term product

26  at any time up to 7 days prior to the purchaser's reserved use

27  of the accommodations, but in no event less than 10 days, and

28  if the seller refunds the total amount of all payments made by

29  the purchaser reduced by the proportion of any benefits the

30  purchaser has actually received prior to the effective date of

31  the cancellation, the specific value of which has been agreed

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 1  to between the purchaser and the seller, the short-term

 2  product offer shall be exempt from the requirements of

 3  paragraphs (b), (c), and (d). An agreement relating to the

 4  sale of the regulated short-term product made pursuant to this

 5  paragraph must contain a statement setting forth the

 6  cancellation and refund rights of the prospective purchaser in

 7  a manner that is consistent with this section and s. 721.10,

 8  including a description of the length of the cancellation

 9  right, a statement that the purchaser's intent to cancel must

10  be in writing and sent to the seller at a specified address, a

11  statement that the notice of cancellation is effective upon

12  the date sent, and a statement that any attempt to waive the

13  cancellation right is unlawful. The right of cancellation

14  provided to the purchaser pursuant to this paragraph may not

15  be waived by the prospective purchaser or by any other person

16  on behalf of the prospective purchaser. Notice of cancellation

17  must be given in the same manner prescribed for giving notice

18  of cancellation pursuant to s. 721.10(2). If the prospective

19  purchaser gives a valid notice of cancellation, or is

20  otherwise entitled to cancel the sale, the funds or other

21  property received from or on behalf of the prospective

22  purchaser, or the proceeds thereof, shall be returned to the

23  prospective purchaser. Such refund shall be made in the manner

24  prescribed for refunds under s. 721.10.

25         (7)  Notwithstanding the provisions of s.

26  721.05(7)(6)(b), a seller may portray possible accommodations

27  or facilities to prospective purchasers in advertising

28  material, or a purchaser public offering statement, without

29  such accommodations or facilities being available for use by

30  purchasers so long as the advertising material or purchaser

31  

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 1  public offering statement complies with the provisions of

 2  subsection (4).

 3         (8)  Notwithstanding the provisions of s.

 4  721.05(7)(6)(b), a developer may portray possible

 5  accommodations or facilities to prospective purchasers by

 6  disseminating oral or written statements regarding same to

 7  broadcast or print media with no obligation on the developer's

 8  part to actually construct such accommodations or facilities

 9  or to file such accommodations or facilities with the

10  division, but only so long as such oral or written statements

11  are not considered advertising material pursuant to paragraph

12  (3)(e).

13         (9)  Notwithstanding the provisions of s.

14  721.05(7)(6)(b), a seller of a multisite timeshare plan may

15  portray a possible component site to prospective purchasers

16  with no accommodations or facilities located at such component

17  site being available for use by purchasers so long as the

18  seller satisfies the following requirements:

19         (a)  A developer of a multisite timeshare plan may

20  disseminate oral or written statements to broadcast or print

21  media describing a possible component site with no obligation

22  on the developer's part to actually add such component site to

23  the multisite timeshare plan or to amend the developer's

24  filing with the division, but only so long as such oral or

25  written statements are not considered advertising material

26  pursuant to paragraph (3)(e).

27         (b)  A seller may make representations to purchasers in

28  advertising material or in a purchaser public offering

29  statement regarding the possible accommodations and facilities

30  of a possible component site without such accommodations or

31  facilities being available for use by purchasers so long as

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 1  the advertising material or purchaser public offering

 2  statement complies with the provisions of subsection (4).

 3         (c)  In the event a seller makes any of the

 4  representations permitted by paragraph (b), the purchase

 5  agreement must contain the following conspicuous disclosure

 6  unless and until such time as the developer has committed

 7  itself in the timeshare instrument to adding the possible

 8  component site to the multisite timeshare plan, at which time

 9  the seller may portray the component site pursuant to the

10  timeshare instrument without restriction:

11  

12  [Description of possible component site] is only a possible

13  component site which may never be added to the multisite

14  timeshare plan (or multisite vacation ownership plan or

15  multisite vacation plan or vacation club). Do not purchase an

16  interest in the multisite timeshare plan (or multisite

17  vacation ownership plan or multisite vacation plan or vacation

18  club) in reliance upon the addition of this component site.

19  

20         (d)  Notwithstanding anything contained in this chapter

21  to the contrary, a developer or managing entity may

22  communicate with existing purchasers regarding possible

23  component sites without restriction, so long as all oral and

24  written statements made to existing purchasers pursuant to

25  this subsection comply with the provisions of subsection (4).

26         (e)  Any violation of this subsection by a developer,

27  seller, or managing entity shall constitute a violation of

28  this chapter. Any violation of this subsection with respect to

29  a purchaser whose purchase has not yet closed shall be deemed

30  to provide that purchaser with a new 10-day voidability

31  period.

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 1         Section 11.  Subsection (1) of section 721.12, Florida

 2  Statutes, is amended to read:

 3         721.12  Recordkeeping by seller.--Each seller of a

 4  timeshare plan shall maintain among its business records the

 5  following:

 6         (1)  A copy of each contract for the sale of a

 7  timeshare interest, which contract has not been canceled. If a

 8  timeshare estate is being sold, the seller is required to

 9  retain a copy of the contract only until a deed of conveyance,

10  agreement for deed, or lease is recorded in the office of the

11  clerk of the circuit court in the county wherein the plan is

12  located. If a personal property timeshare plan is being sold,

13  the seller is required to retain a copy of the contract only

14  until a certificate of transfer, agreement for transfer,

15  lease, or other instrument of transfer that fully complies

16  with s. 721.08 is delivered to the purchaser.

17         Section 12.  Paragraphs (a) and (b) of subsection (1),

18  paragraph (b) of subsection (2), paragraphs (c), (d), and (e)

19  of subsection (3), paragraph (g) of subsection (6), and

20  subsections (4) and (8) of section 721.13, Florida Statutes,

21  are amended, subsection (9) is renumbered as subsection (10),

22  and new subsections (9) and (11) are added to that section, to

23  read:

24         721.13  Management.--

25         (1)(a)  For each timeshare plan, the developer shall

26  provide for a managing entity, which shall be either the

27  developer, a separate manager or management firm, or an

28  owners' association. Any owners' association shall be created

29  prior to the first closing recording of the sale of a

30  timeshare interest instrument.

31  

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 1         (b)1.  With respect to a timeshare plan which is also

 2  regulated under chapter 718 or chapter 719, or which contains

 3  a mandatory owners' association, the board of administration

 4  of the owners' association shall be considered the managing

 5  entity of the timeshare plan.

 6         2.  During any period of time in which such owners'

 7  association has entered into a contract with a manager or

 8  management firm to provide some or all of the management

 9  services to the timeshare plan, both the board of

10  administration and the manager or management firm shall be

11  considered the managing entity of the timeshare plan and shall

12  be jointly and severally responsible for the faithful

13  discharge of the duties of the managing entity.

14         3.  An owners' association which is the managing entity

15  of a timeshare plan that includes condominium units or

16  cooperative units shall not be considered a condominium

17  association pursuant to the provisions of chapter 718 or a

18  cooperative association pursuant to the provisions of chapter

19  719, unless such owners' association also operates the entire

20  condominium pursuant to s. 718.111 or the entire cooperative

21  pursuant to s. 719.104.

22         (2)

23         (b)  The managing entity shall invest the operating and

24  reserve funds of the timeshare plan in accordance with s.

25  518.11(1); however, the managing entity shall give safety of

26  capital greater weight than production of income. In no event

27  shall the managing entity invest timeshare plan funds with a

28  developer or with any entity that is not independent of any

29  developer or any managing entity within the meaning of s.

30  721.05(20)(18), and in no event shall the managing entity

31  

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 1  invest timeshare plan funds in notes and mortgages related in

 2  any way to the timeshare plan.

 3         (3)  The duties of the managing entity include, but are

 4  not limited to:

 5         (c)1.  Providing each year to all purchasers an

 6  itemized annual budget which shall include all estimated

 7  revenues and expenses. The budget shall be in the form

 8  required by s. 721.07(5)(u). The budget and shall be the final

 9  budget adopted by the managing entity for the current fiscal

10  year. The final adopted budget is not required to be delivered

11  if the managing entity has previously delivered a proposed

12  annual budget for the current fiscal year to purchasers in

13  accordance with chapter 718 or chapter 719 and the managing

14  entity includes a description of any changes in the adopted

15  budget with the assessment notice and a disclosure regarding

16  the purchasers' right to receive a copy of the adopted budget,

17  if desired. The budget shall contain, as a footnote or

18  otherwise, any related party transaction disclosures or notes

19  which appear in the audited financial statements of the

20  managing entity for the previous budget year as required by

21  paragraph (e). A copy of the final budget shall be filed with

22  the division for review within 30 days after the beginning of

23  each fiscal year together with a statement of the number of

24  periods of 7-day annual use availability that exist within the

25  timeshare plan, including those periods filed for sale by the

26  developer but not yet committed to the timeshare plan, for

27  which annual fees are required to be paid to the division

28  under s. 721.27.

29         2.  Notwithstanding anything contained in chapter 718

30  or chapter 719 to the contrary, the board of administration of

31  an owners' association which serves as the managing entity may

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 1  from time to time reallocate reserves for deferred maintenance

 2  and capital expenditures required by s. 721.07(5)(u)3.a.(XI)

 3  from any deferred maintenance or capital expenditure reserve

 4  account to any other deferred maintenance or capital

 5  expenditure reserve account or accounts in its discretion

 6  without the consent of purchasers of the timeshare plan. Funds

 7  in any deferred maintenance or capital expenditure reserve

 8  account may not be transferred to any operating account

 9  without the consent of a majority of the purchasers of the

10  timeshare plan. The managing entity may from time to time

11  transfer excess funds in any operating account to any deferred

12  maintenance or capital expenditure reserve account without the

13  vote or approval of purchasers of the timeshare plan. In the

14  event any amount of reserves for accommodations and facilities

15  of a timeshare plan containing timeshare licenses or personal

16  property timeshare interests exists at the end of the term of

17  the timeshare plan, such reserves shall be refunded to

18  purchasers on a pro rata basis.

19         (d)1.  Maintenance of all books and records concerning

20  the timeshare plan so that all such books and records are

21  reasonably available for inspection by any purchaser or the

22  authorized agent of such purchaser. For purposes of this

23  subparagraph, the books and records of the timeshare plan

24  shall be considered "reasonably available" if copies of the

25  requested portions are delivered to the purchaser or the

26  purchaser's agent within 7 days after of the date the managing

27  entity receives a written request for the records signed by

28  the purchaser. The managing entity may charge the purchaser a

29  reasonable fee for copying the requested information not to

30  exceed 25 cents per page. However, any purchaser or agent of

31  such purchaser shall be permitted to personally inspect and

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 1  examine the books and records wherever located at any

 2  reasonable time, under reasonable conditions, and under the

 3  supervision of the custodian of those records. The custodian

 4  shall supply copies of the records where requested and upon

 5  payment of the copying fee. No fees other than those set forth

 6  in this section may be charged for the providing of,

 7  inspection, or examination of books and records. All books and

 8  financial records of the timeshare plan must be maintained in

 9  accordance with generally accepted accounting practices.

10         2.  If the books and records of the timeshare plan are

11  not maintained on the premises of the accommodations and

12  facilities of the timeshare plan, the managing entity shall

13  inform the division in writing of the location of the books

14  and records and the name and address of the person who acts as

15  custodian of the books and records at that location. In the

16  event that the location of the books and records changes, the

17  managing entity shall notify the division of the change in

18  location and the name and address of the new custodian within

19  30 days after of the date the books and records are moved. The

20  purchasers shall be notified of the location of the books and

21  records and the name and address of the custodian in the copy

22  of the annual budget provided to them pursuant to paragraph

23  (c).

24         3.  The division is authorized to adopt rules which

25  specify those items and matters that shall be included in the

26  books and records of the timeshare plan and which specify

27  procedures to be followed in requesting and delivering copies

28  of the books and records.

29         4.  Notwithstanding any provision of chapter 718 or

30  chapter 719 to the contrary, the managing entity may not

31  furnish the name, address, or electronic mail address of any

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 1  purchaser to any other purchaser or authorized agent thereof

 2  unless the purchaser whose name, and address, or electronic

 3  mail address is are requested first approves the disclosure in

 4  writing.

 5         (e)  Arranging for an annual audit of the financial

 6  statements of the timeshare plan by a certified public

 7  accountant licensed by the Board of Accountancy of the

 8  Department of Business and Professional Regulation, in

 9  accordance with generally accepted auditing standards as

10  defined by the rules of the Board of Accountancy of the

11  Department of Business and Professional Regulation. The

12  financial statements required by this section must be prepared

13  on an accrual basis using fund accounting, and must be

14  presented in accordance with generally accepted accounting

15  principles. A copy of the audited financial statements must be

16  filed with the division for review and forwarded to the board

17  of directors and officers of the owners' association, if one

18  exists, no later than 5 calendar months after the end of the

19  timeshare plan's fiscal year. If no owners' association

20  exists, each purchaser must be notified, no later than 5

21  months after the end of the timeshare plan's fiscal year, that

22  a copy of the audited financial statements is available upon

23  request to the managing entity. Notwithstanding any

24  requirement of s. 718.111(13) or s. 719.104(4), the audited

25  financial statements required by this section are the only

26  annual financial reporting requirements for timeshare

27  condominiums or timeshare cooperatives.

28         (4)  The managing entity shall maintain among its

29  records and provide to the division upon request a complete

30  list of the names and addresses of all purchasers and owners

31  of timeshare units in the timeshare plan. The managing entity

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 1  shall update this list no less frequently than quarterly.

 2  Pursuant to paragraph (3)(d), the managing entity may not

 3  publish this owner's list or provide a copy of it to any

 4  purchaser or to any third party other than the division.

 5  However, the managing entity shall to those persons listed on

 6  the owner's list materials provided by any purchaser, upon the

 7  written request of that purchaser, if the purpose of the

 8  mailing is to advance legitimate owners' association business,

 9  such as a proxy solicitation for any purpose, including the

10  recall of one or more board members elected by the owners or

11  the discharge of the manager or management firm. The use of

12  any proxies solicited in this manner must comply with the

13  provisions of the timeshare instrument and this chapter. A

14  mailing requested for the purpose of advancing legitimate

15  owners' association business shall occur within 30 days after

16  receipt of a request from a purchaser. The board of

17  administration of the owners' association shall be responsible

18  for determining the appropriateness of any mailing requested

19  pursuant to this subsection. The purchaser who requests the

20  mailing must reimburse the owners' association in advance for

21  the owners' association's actual costs in performing the

22  mailing. It shall be a violation of this chapter and, if

23  applicable, of part VIII of chapter 468, for the board of

24  administration or the manager or management firm to refuse to

25  mail any material requested by the purchaser to be mailed,

26  provided the sole purpose of the materials is to advance

27  legitimate owners' association business. If the purpose of the

28  mailing is a proxy solicitation to recall one or more board

29  members elected by the owners or to discharge the manager or

30  management firm and the managing entity does not mail the

31  materials within 30 days after receipt of a request from a

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 1  purchaser, the circuit court in the county where the timeshare

 2  plan is located may, upon application from the requesting

 3  purchaser, summarily order the mailing of the materials solely

 4  related to the recall of one or more board members elected by

 5  the owners or the discharge of the manager or management firm.

 6  The court shall dispose of an application on an expedited

 7  basis. In the event of such an order, the court may order the

 8  managing entity to pay the purchaser's costs, including

 9  attorney's fees reasonably incurred to enforce the purchaser's

10  rights, unless the managing entity can prove it refused the

11  mailing in good faith because of a reasonable basis for doubt

12  about the legitimacy of the mailing.

13         (6)

14         (g)  A managing entity shall have breached its

15  fiduciary duty described in subsection (2) in the event it

16  enforces the denial of use pursuant to paragraph (b) against

17  any one purchaser or group of purchasers without similarly

18  enforcing it against all purchasers, including all developers

19  and owners of the underlying fee or underlying personal

20  property; however, a managing entity shall not be required to

21  solicit rentals pursuant to paragraph (f) for every delinquent

22  purchaser. A managing entity shall also have breached its

23  fiduciary duty in the event an error in the books and records

24  of the timeshare plan results in a denial of use pursuant to

25  this subsection of any purchaser who is not, in fact,

26  delinquent. In addition to any remedies otherwise available to

27  purchasers of the timeshare plan arising from such breaches of

28  fiduciary duty, such breach shall also constitute a violation

29  of this chapter. In addition, any purchaser receiving a notice

30  of delinquency pursuant to paragraph (b), or any third party

31  claiming under such purchaser pursuant to paragraph (b), may

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 1  immediately bring an action for injunctive or declaratory

 2  relief against the managing entity seeking to have the notice

 3  invalidated on the grounds that the purchaser is not, in fact,

 4  delinquent, that the managing entity failed to follow the

 5  procedures prescribed by this section, or on any other

 6  available grounds. The prevailing party in any such action

 7  shall be entitled to recover his or her reasonable attorney's

 8  fees from the losing party.

 9         (8)  Notwithstanding anything to the contrary in s.

10  718.110, s. 718.113, s. 718.114, or s. 719.1055, the board of

11  administration of any owners' association that operates a

12  timeshare condominium pursuant to s. 718.111, or a timeshare

13  cooperative pursuant to s. 719.104, shall have the power to

14  make material alterations or substantial additions to the

15  accommodations or facilities of such timeshare condominium or

16  timeshare cooperative without the approval of the owners'

17  association. However, if the timeshare condominium or

18  timeshare cooperative contains any residential units that are

19  not subject to the timeshare plan, such action by the board of

20  administration must be approved by a majority of the owners of

21  such residential units. Unless otherwise provided in the

22  timeshare instrument as originally recorded, no such amendment

23  may change the configuration or size of any accommodation in

24  any material fashion, or change the proportion or percentage

25  by which a member of the owners' association shares the common

26  expenses, unless the record owners of the affected units or

27  timeshare interests and all record owners of liens on the

28  affected units or timeshare interests join in the execution of

29  the amendment.

30         (9)  All notices or other information sent by a board

31  of administration of an owners' association may be delivered

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 1  to a purchaser by electronic mail, provided that the purchaser

 2  first consents electronically to the use of electronic mail

 3  for notice purposes in a manner that reasonably demonstrates

 4  that the purchaser has the ability to access the notice by

 5  electronic mail. Proxies or written consents on votes of any

 6  owners' association may be received by electronic mail, shall

 7  have legal effect, and may be utilized for votes of an owners'

 8  association, provided that the electronic signature is

 9  authenticated through use of a password, cryptography

10  software, or other reasonable means and that proof of such

11  authentication is made available to the board of directors.

12         (10)(9)  Any failure of the managing entity to

13  faithfully discharge the fiduciary duty to purchasers imposed

14  by this section or to otherwise comply with the provisions of

15  this section shall be a violation of this chapter and of part

16  VIII of chapter 468.

17         (11)  Notwithstanding the other provisions of this

18  section, personal property timeshare plans are only subject to

19  the provisions of subsections (1)(a)-(d), (2)(a), (3)(a)-(h),

20  (5), (6), (9), and (10).

21         Section 13.  Subsection (4) is added to section 721.14,

22  Florida Statutes, to read:

23         721.14  Discharge of managing entity.--

24         (4)  This section shall not apply to personal property

25  timeshare plans.

26         Section 14.  Paragraph (c) of subsection (2) of section

27  721.15, Florida Statutes, is amended, and subsection (10) is

28  added to that section, to read:

29         721.15  Assessments for common expenses.--

30         (2)

31  

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 1         (c)  For the purpose of calculating the obligation of a

 2  developer under a guarantee pursuant to paragraph (b),

 3  depreciation expenses related to real property shall be

 4  excluded from common expenses incurred during the guarantee

 5  period, except that for real property that is used for the

 6  production of fees, revenues, or other income, depreciation

 7  expenses shall be excluded only to the extent that they exceed

 8  the net income from the production of such fees, revenues, or

 9  other income.

10         (10)  This section shall not apply to personal property

11  timeshare plans.

12         Section 15.  Subsection (6) is added to section 721.16,

13  Florida Statutes, to read:

14         721.16  Liens for overdue assessments; liens for labor

15  performed on, or materials furnished to, a timeshare unit.--

16         (6)  This section shall not apply to personal property

17  timeshare plans.

18         Section 16.  Section 721.17, Florida Statutes, is

19  amended to read:

20         721.17  Transfer of interest.--Except in the case of a

21  timeshare plan subject to the provisions of chapter 718 or

22  chapter 719, no developer, or owner of the underlying fee, or

23  owner of the underlying personal property shall sell, lease,

24  assign, mortgage, or otherwise transfer his or her interest in

25  the accommodations and facilities of the timeshare plan except

26  by an instrument evidencing the transfer recorded in the

27  public records of the county in which such accommodations and

28  facilities are located or, with respect to personal property

29  timeshare plans, in full compliance with s. 721.08. The

30  instrument shall be executed by both the transferor and

31  transferee and shall state:

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 1         (1)  That its provisions are intended to protect the

 2  rights of all purchasers of the plan.

 3         (2)  That its terms may be enforced by any prior or

 4  subsequent timeshare purchaser so long as that purchaser is

 5  not in default of his or her obligations.

 6         (3)  That so long as a purchaser remains in good

 7  standing with respect to her or his obligations under the

 8  timeshare instrument, including making all payments to the

 9  managing entity required by the timeshare instrument with

10  respect to the annual common expenses of the timeshare plan,

11  the transferee shall will fully honor all the rights of such

12  purchaser relating to the subject accommodation or facility as

13  reflected the purchasers to occupy and use the accommodations

14  and facilities as provided in their original contracts and the

15  timeshare instrument instruments.

16         (4)  That the transferee will fully honor all rights of

17  timeshare purchasers to cancel their contracts and receive

18  appropriate refunds.

19         (5)  That the obligations of the transferee under such

20  instrument will continue to exist despite any cancellation or

21  rejection of the contracts between the developer and purchaser

22  arising out of bankruptcy proceedings.

23  

24  Should any transfer of the interest of the developer, the or

25  owner of the underlying fee, or the owner of the underlying

26  property occur in a manner which is not in compliance with

27  this section, the terms set forth in this section shall be

28  presumed to be a part of the transfer and shall be deemed to

29  be included in the instrument of transfer. Notice shall be

30  mailed to each purchaser of record within 30 days after of the

31  transfer unless such transfer does not affect the purchaser's

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 1  rights in or use of the timeshare plan. Persons who hold

 2  mortgages or liens on the property constituting a timeshare

 3  plan before the filed registered public offering statement of

 4  such plan is approved by the division shall not be considered

 5  transferees for the purposes of this section.

 6         Section 17.  Section 721.18, Florida Statutes, is

 7  amended to read:

 8         721.18  Exchange programs; filing of information and

 9  other materials; filing fees; unlawful acts in connection with

10  an exchange program.--

11         (1)  If a purchaser is offered the opportunity to

12  subscribe to an exchange program, the seller shall deliver to

13  the purchaser, together with the purchaser public offering

14  statement, and prior to the offering or execution of any

15  contract between the purchaser and the company offering the

16  exchange program, written information regarding such exchange

17  program; or, if the exchange company is dealing directly with

18  the purchaser, the exchange company shall deliver to the

19  purchaser, prior to the initial offering or execution of any

20  contract between the purchaser and the company offering the

21  exchange program, written information regarding such exchange

22  program. In either case, the purchaser shall certify in

23  writing to the receipt of such information. Such information

24  shall include, but is not limited to, the following

25  information, the form and substance of which shall first be

26  approved by the division in accordance with subsection (2):

27         (a)  The name and address of the exchange company.

28         (b)  The names of all officers, directors, and

29  shareholders of the exchange company.

30         (c)  Whether the exchange company or any of its

31  officers or directors has any legal or beneficial interest in

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 1  any developer, seller, or managing entity for any timeshare

 2  plan participating in the exchange program and, if so, the

 3  name and location of the timeshare plan and the nature of the

 4  interest.

 5         (d)  Unless otherwise stated, a statement that the

 6  purchaser's contract with the exchange company is a contract

 7  separate and distinct from the purchaser's contract with the

 8  seller of the timeshare plan.

 9         (e)  Whether the purchaser's participation in the

10  exchange program is dependent upon the continued affiliation

11  of the timeshare plan with the exchange program.

12         (f)  A statement that Whether the purchaser's

13  participation in the exchange program is voluntary. This

14  statement is not required to be given by the seller or

15  managing entity of a multisite timeshare plan to purchasers in

16  the multisite timeshare plan.

17         (g)  A complete and accurate description of the terms

18  and conditions of the purchaser's contractual relationship

19  with the exchange program and the procedure by which changes

20  thereto may be made.

21         (h)  A complete and accurate description of the

22  procedure to qualify for and effectuate exchanges.

23         (i)  A complete and accurate description of all

24  limitations, restrictions, or priorities employed in the

25  operation of the exchange program, including, but not limited

26  to, limitations on exchanges based on seasonality, timeshare

27  unit size, or levels of occupancy, expressed in boldfaced

28  type, and, in the event that such limitations, restrictions,

29  or priorities are not uniformly applied by the exchange

30  program, a clear description of the manner in which they are

31  applied.

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 1         (j)  Whether exchanges are arranged on a

 2  space-available basis and whether any guarantees of

 3  fulfillment of specific requests for exchanges are made by the

 4  exchange program.

 5         (k)  Whether and under what circumstances a purchaser,

 6  in dealing with the exchange program, may lose the use and

 7  occupancy of her or his timeshare period in any properly

 8  applied for exchange without her or his being provided with

 9  substitute accommodations by the exchange program.

10         (l)  The fees or range of fees for membership or

11  participation by purchasers in the exchange program by

12  purchasers, including any conversion or other fees payable to

13  third parties, a statement whether any such fees may be

14  altered by the exchange company, and the circumstances under

15  which alterations may be made.

16         (m)  The name and address of the site of each

17  accommodation or facility included in the timeshare plan plans

18  participating in the exchange program.

19         (n)  The number of the timeshare units in each

20  timeshare plan which are available for occupancy and which

21  qualify for participation in the exchange program, expressed

22  within the following numerical groupings: 1-5; 6-10; 11-20;

23  21-50; and 51 and over.

24         (o)  The number of currently enrolled purchasers for

25  each timeshare plan participating in the exchange program,

26  expressed within the following numerical groupings: 1-100;

27  101-249; 250-499; 500-999; and 1,000 and over; and a statement

28  of the criteria used to determine those purchasers who are

29  currently enrolled with the exchange program.

30         (p)  The disposition made by the exchange company of

31  timeshare periods deposited with the exchange program by

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 1  purchasers enrolled in the exchange program and not used by

 2  the exchange company in effecting exchanges.

 3         (q)  The following information, which shall be

 4  independently audited by a certified public accountant or

 5  accounting firm in accordance with the standards of the

 6  Accounting Standards Board of the American Institute of

 7  Certified Public Accountants and reported annually beginning

 8  no later than July 1, 1982:

 9         1.  The number of purchasers currently enrolled in the

10  exchange program.

11         2.  The number of accommodations and facilities that

12  have current written affiliation agreements with the exchange

13  program.

14         3.  The percentage of confirmed exchanges, which is the

15  number of exchanges confirmed by the exchange program divided

16  by the number of exchanges properly applied for, together with

17  a complete and accurate statement of the criteria used to

18  determine whether an exchange request was properly applied

19  for.

20         4.  The number of timeshare periods for which the

21  exchange program has an outstanding obligation to provide an

22  exchange to a purchaser who relinquished a timeshare period

23  during the year in exchange for a timeshare period in any

24  future year.

25         5.  The number of exchanges confirmed by the exchange

26  program during the year.

27         (r)  A statement in boldfaced type to the effect that

28  the percentage described in subparagraph (q)3. is a summary of

29  the exchange requests entered with the exchange program in the

30  period reported and that the percentage does not indicate the

31  

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 1  probabilities of a purchaser's being confirmed to any specific

 2  choice or range of choices.

 3         (2)  Each exchange company offering an exchange program

 4  to purchasers in this state shall file with the division for

 5  review the information specified in subsection (1), together

 6  with any membership agreement and application between the

 7  purchaser and the exchange company, and the audit specified in

 8  subsection (1) on or before June 1 of each year. However, an

 9  exchange company shall make its initial filing at least 20

10  days prior to offering an exchange program to any purchaser in

11  this state. Each filing shall be accompanied by an annual

12  filing fee of $500. Within 20 days after of receipt of such

13  filing, the division shall determine whether the filing is

14  adequate to meet the requirements of this section and shall

15  notify the exchange company in writing that the division has

16  either approved the filing or found specified deficiencies in

17  the filing. If the division fails to respond within 20 days,

18  the filing shall be deemed approved. The exchange company may

19  correct the deficiencies; and, within 10 days after receipt of

20  corrections from the exchange company, the division shall

21  notify the exchange company in writing that the division has

22  either approved the filing or found additional specified

23  deficiencies in the filing. If the exchange company fails to

24  adequately respond to any deficiency notice within 10 days,

25  the division may reject the filing. Subsequent to such

26  rejection, a new filing fee and a new division initial review

27  period pursuant to this subsection shall apply to any refiling

28  or further review of the rejected filing.

29         (a)  Any material change to an approved exchange

30  company filing shall be filed with the division for approval

31  as an amendment prior to becoming effective. Each amendment

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 1  filing shall be accompanied by a filing fee of $100. The

 2  exchange company may correct the deficiencies; and, within 10

 3  days after receipt of corrections from the exchange company,

 4  the division shall notify the exchange company in writing that

 5  the division has either approved the filing or found

 6  additional specified deficiencies in the filing. Each approved

 7  amendment to the approved exchange company filing, other than

 8  an amendment that does not materially alter or modify the

 9  exchange program in a manner that is adverse to a purchaser,

10  as determined by the exchange company in its reasonable

11  discretion, shall be delivered to each purchaser who has not

12  closed. An approved exchange program filing is required to be

13  updated with respect to added or deleted resorts only once

14  each year, and such annual update shall not be deemed to be a

15  material change to the filing.

16         (b)  If at any time the division determines that any of

17  such information supplied by an exchange company fails to meet

18  the requirements of this section, the division may undertake

19  enforcement action against the exchange company in accordance

20  with the provision of s. 721.26.

21         (3)  No developer shall have any liability with respect

22  to any violation of this chapter arising out of the

23  publication by the developer of information provided to it by

24  an exchange company pursuant to this section. No exchange

25  company shall have any liability with respect to any violation

26  of this chapter arising out of the use by a developer of

27  information relating to an exchange program other than that

28  provided to the developer by the exchange company.

29         (4)  At the request of the exchange company, the

30  division shall review any audio, written, or visual

31  publications or materials relating to an exchange company or

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 1  an exchange program shall be filed for review by the exchange

 2  company and shall notify the exchange company of any

 3  deficiencies within 10 with the division within 3 days after

 4  the filing of their use. If the exchange company corrects the

 5  deficiencies, or if there are no deficiencies, the division

 6  shall notify the exchange company of its approval of the

 7  advertising materials. If the exchange company fails to

 8  adequately respond to any deficiency notice within 10 days,

 9  the division may reject the advertising materials. Subsequent

10  to such rejection, a new division initial review period

11  pursuant to this subsection shall apply to any refiling or

12  further review.

13         (5)  The failure of an exchange company to observe the

14  requirements of this section, or the use of any unfair or

15  deceptive act or practice in connection with the operation of

16  an exchange program, is a violation of this chapter.

17         Section 18.  Section 721.19, Florida Statutes, is

18  amended to read:

19         721.19  Provisions requiring purchase or lease of

20  timeshare property by owners' association or purchasers;

21  validity.--In any timeshare plan in which timeshare estates or

22  personal property timeshare interests are sold, no grant or

23  reservation made by a declaration, lease, or other document,

24  nor any contract made by the developer, managing entity, or

25  owners' association, which requires the owners' association or

26  purchasers to purchase or lease any portion of the timeshare

27  property shall be valid unless approved by a majority of the

28  purchasers other than the developer, after more than 50

29  percent of the timeshare periods have been sold.

30         Section 19.  Section 721.20, Florida Statutes, is

31  amended to read:

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 1         721.20  Licensing requirements; suspension or

 2  revocation of license; exceptions to applicability; collection

 3  of advance fees for listings unlawful.--

 4         (1)  Any seller of a timeshare plan must be a licensed

 5  real estate broker, broker associate, or sales associate as

 6  defined in s. 475.01, except as provided in s. 475.011.

 7         (2)  Solicitors who engage only in the solicitation of

 8  prospective purchasers and any purchaser who refers no more

 9  than 20 people to a developer per year or who otherwise

10  provides testimonials on behalf of a developer are exempt from

11  the provisions of chapter 475.

12         (3)  A solicitor who has violated the provisions of

13  chapter 468, chapter 718, chapter 719, this chapter, or the

14  rules of the division governing timesharing shall be subject

15  to the provisions of s. 721.26. Any developer or other person

16  who supervises, directs, or engages the services of a

17  solicitor shall be liable for any violation of the provisions

18  of chapter 468, chapter 718, chapter 719, this chapter, or the

19  rules of the division governing timesharing committed by such

20  solicitor.

21         (4)  County and municipal governments shall have the

22  authority to adopt codes of conduct and regulations to govern

23  solicitor activity conducted on public property, including

24  providing for the imposition of penalties prescribed by a

25  schedule of fines adopted by ordinance for violations of any

26  such code of conduct or regulation. Any violation of any such

27  adopted code of conduct or regulation shall not constitute a

28  separate violation of this chapter. This subsection is not

29  intended to restrict or invalidate any local code of conduct

30  or regulation.

31  

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 1         (5)  This section does not apply to those individuals

 2  who offer for sale only timeshare interests in timeshare

 3  property located outside this state and who do not engage in

 4  any sales activity within this state or to timeshare plans

 5  which are registered with the Securities and Exchange

 6  Commission. For the purposes of this section, both timeshare

 7  licenses and timeshare estates are considered to be interests

 8  in real property.

 9         (6)  Notwithstanding the provisions of s. 475.452, it

10  is unlawful for any real estate broker, broker associate, or

11  sales associate to collect any advance fee for the listing of

12  any timeshare estate or timeshare license.

13         (7)  It is unlawful for any broker, salesperson, or

14  broker-salesperson to collect any advance fee for the listing

15  of a personal property timeshare interest.

16         (8)  Subsections (1), (2), and (3) do not apply to

17  persons who offer personal property timeshare plans.

18         Section 20.  Subsection (6) is added to section 721.24,

19  Florida Statutes, to read:

20         721.24  Firesafety.--

21         (6)  Accommodations and facilities of personal property

22  timeshare plans shall be exempt from the requirements of this

23  section.

24         Section 21.  Paragraphs (a), (d), and (e) of subsection

25  (5) of section 721.26, Florida Statutes, are amended to read:

26         721.26  Regulation by division.--The division has the

27  power to enforce and ensure compliance with the provisions of

28  this chapter, except for parts III and IV, using the powers

29  provided in this chapter, as well as the powers prescribed in

30  chapters 498, 718, and 719. In performing its duties, the

31  division shall have the following powers and duties:

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 1         (5)  Notwithstanding any remedies available to

 2  purchasers, if the division has reasonable cause to believe

 3  that a violation of this chapter, or of any division rule or

 4  order promulgated or issued pursuant to this chapter, has

 5  occurred, the division may institute enforcement proceedings

 6  in its own name against any regulated party, as such term is

 7  defined in this subsection:

 8         (a)1.  "Regulated party," for purposes of this section,

 9  means any developer, exchange company, seller, managing

10  entity, owners' association, owners' association director,

11  owners' association officer, manager, management firm, escrow

12  agent, trustee, any respective assignees or agents, or any

13  other person having duties or obligations pursuant to this

14  chapter.

15         2.  Any person who materially participates in any offer

16  or disposition of any interest in, or the management or

17  operation of, a timeshare plan in violation of this chapter or

18  relevant rules involving fraud, deception, false pretenses,

19  misrepresentation, or false advertising or the disbursement,

20  concealment, or diversion of any funds or assets, which

21  conduct adversely affects the interests of a purchaser, and

22  which person directly or indirectly controls a regulated party

23  or is a general partner, officer, director, agent, or employee

24  of such regulated party, shall be jointly and severally liable

25  under this subsection with such regulated party, unless such

26  person did not know, and in the exercise of reasonable care

27  could not have known, of the existence of the facts giving

28  rise to the violation of this chapter. A right of contribution

29  shall exist among jointly and severally liable persons

30  pursuant to this paragraph.

31  

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 1         (d)1.  The division may bring an action in circuit

 2  court for declaratory or injunctive relief or for other

 3  appropriate relief, including restitution.

 4         2.  The division shall have broad authority and

 5  discretion to petition the circuit court to appoint a receiver

 6  with respect to any managing entity which fails to perform its

 7  duties and obligations under this chapter with respect to the

 8  operation of a timeshare plan. The circumstances giving rise

 9  to an appropriate petition for receivership under this

10  subparagraph include, but are not limited to:

11         a.  Damage to or destruction of any of the

12  accommodations or facilities of a timeshare plan, where the

13  managing entity has failed to repair or reconstruct same.

14         b.  A breach of fiduciary duty by the managing entity,

15  including, but not limited to, undisclosed self-dealing or

16  failure to timely assess, collect, or disburse the common

17  expenses of the timeshare plan.

18         c.  Failure of the managing entity to operate the

19  timeshare plan in accordance with the timeshare instrument and

20  this chapter.

21  

22  If, under the circumstances, it appears that the events giving

23  rise to the petition for receivership cannot be reasonably and

24  timely corrected in a cost-effective manner consistent with

25  the timeshare instrument, the receiver may petition the

26  circuit court to implement such amendments or revisions to the

27  timeshare instrument as may be necessary to enable the

28  managing entity to resume effective operation of the timeshare

29  plan, or to enter an order terminating the timeshare plan, or

30  to enter such further orders regarding the disposition of the

31  timeshare property as the court deems appropriate, including

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 1  the disposition and sale of the timeshare property held by the

 2  owners' association or the purchasers. In the event of a

 3  receiver's sale, all rights, title, and interest held by the

 4  owners' association or any purchaser shall be extinguished and

 5  title shall vest in the buyer. This provision applies to

 6  timeshare estates, personal property timeshare interests, and

 7  timeshare licenses. All reasonable costs and fees of the

 8  receiver relating to the receivership shall become common

 9  expenses of the timeshare plan upon order of the court.

10         3.  The division may revoke its approval of any filing

11  for any timeshare plan for which a petition for receivership

12  has been filed pursuant to this paragraph.

13         (e)1.  The division may impose a penalty against any

14  regulated party for a violation of this chapter or any rule

15  adopted thereunder. A penalty may be imposed on the basis of

16  each day of continuing violation, but in no event may the

17  penalty for any offense exceed $10,000. All accounts collected

18  shall be deposited with the Chief Financial Officer to the

19  credit of the Division of Florida Land Sales, Condominiums,

20  and Mobile Homes Trust Fund.

21         2.a.  If a regulated party fails to pay a penalty, the

22  division shall thereupon issue an order directing that such

23  regulated party cease and desist from further operation until

24  such time as the penalty is paid; or the division may pursue

25  enforcement of the penalty in a court of competent

26  jurisdiction.

27         b.  If an owners' association or managing entity fails

28  to pay a civil penalty, the division may pursue enforcement in

29  a court of competent jurisdiction.

30         Section 22.  Section 721.52, Florida Statutes, is

31  amended to read:

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 1         721.52  Definitions.--As used in this chapter, the

 2  term:

 3         (1)  "Applicable law" means the law of the jurisdiction

 4  where the accommodations and facilities referred to are

 5  located.

 6         (2)  "Component site" means a specific geographic site

 7  where a portion of the accommodations and facilities of the

 8  multisite timeshare plan are located. If permitted under

 9  applicable law, separate phases operated as a single

10  development located at a specific geographic site under common

11  management shall be deemed a single component site for

12  purposes of this part.

13         (3)  "Inventory" means the accommodations and

14  facilities located at a particular component site or sites

15  owned, leased, licensed, or otherwise acquired for use by a

16  developer and offered as part of the multisite timeshare plan.

17         (4)  "Multisite timeshare plan" means any method,

18  arrangement, or procedure with respect to which a purchaser

19  obtains, by any means, a recurring right to use and occupy

20  accommodations or facilities of more than one component site,

21  only through use of a reservation system, whether or not the

22  purchaser is able to elect to cease participating in the plan.

23  However, the term "multisite timeshare plan" shall not include

24  any method, arrangement, or procedure wherein:

25         (a)  The contractually specified maximum total

26  financial obligation on the purchaser's part is $3,000 or

27  less, during the entire term of the plan; or

28         (b)  The term is for a period of 3 years or less,

29  regardless of the purchaser's contractually specified maximum

30  total financial obligation, if any. For purposes of

31  determining the term of such use and occupancy rights, the

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 1  period of any optional renewals which a purchaser, in his or

 2  her sole discretion, may elect to exercise, whether or not for

 3  additional consideration, shall not be included. For purposes

 4  of determining the term of such use and occupancy rights, the

 5  period of any automatic renewals shall be included unless a

 6  purchaser has the right to terminate the membership at any

 7  time and receive a pro rata refund or the purchaser receives a

 8  notice no less than 30 days and no more than 60 days prior to

 9  the date of renewal informing the purchaser of the right to

10  terminate at any time prior to the date of automatic renewal.

11  

12  Multisite timeshare plan does not mean an exchange program as

13  defined in s. 721.05. Timeshare estates may only be offered in

14  a multisite timeshare plan pursuant to s. 721.57.

15         (5)  "Nonspecific multisite timeshare plan" means a

16  multisite timeshare plan containing timeshare licenses or

17  personal property timeshare interests, with respect to which a

18  purchaser receives a right to use all of the accommodations

19  and facilities, if any, of the multisite timeshare plan

20  through the reservation system, but no specific right to use

21  any particular accommodations and facilities for the remaining

22  term of the multisite timeshare plan in the event that the

23  reservation system is terminated for any reason prior to the

24  expiration of the term of the multisite timeshare plan.

25         (6)(5)  "Reservation system" means the method,

26  arrangement, or procedure by which a purchaser, in order to

27  reserve the use and occupancy of any accommodation or facility

28  of the multisite timeshare plan for one or more use periods,

29  is required to compete with other purchasers in the same

30  multisite timeshare plan regardless of whether such

31  reservation system is operated and maintained by the multisite

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 1  timeshare plan managing entity, an exchange company, or any

 2  other person. In the event that a purchaser is required to use

 3  an exchange program as the purchaser's principal means of

 4  obtaining the right to use and occupy a multisite timeshare

 5  plan's accommodations and facilities, such arrangement shall

 6  be deemed a reservation system. When an exchange company

 7  utilizes a mechanism for the exchange of use of timeshare

 8  periods among members of an exchange program, such utilization

 9  is not a reservation system of a multisite timeshare plan.

10         (7)  "Specific multisite timeshare plan" means a

11  multisite timeshare plan containing timeshare licenses or

12  personal property timeshare interests, with respect to which a

13  purchaser receives a specific right to use accommodations and

14  facilities, if any, at one component site of a multisite

15  timeshare plan, together with use rights in the other

16  accommodations and facilities of the multisite timeshare plan

17  created by or acquired through the reservation system.

18         (8)(6)  "Vacation club" means a multisite timeshare

19  plan.

20         Section 23.  Paragraph (a) of subsection (1) of section

21  721.53, Florida Statutes, is amended, and paragraph (f) is

22  added to that subsection, to read:

23         721.53  Subordination instruments; alternate security

24  arrangements.--

25         (1)  With respect to each accommodation or facility of

26  a multisite timeshare plan, the developer shall provide the

27  division with satisfactory evidence that one of the following

28  has occurred with respect to each interestholder prior to

29  offering the accommodation or facility as a part of the

30  multisite timeshare plan:

31  

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 1         (a)  The interestholder has executed and recorded a

 2  nondisturbance and notice to creditors instrument pursuant to

 3  s. 721.08(2)(c).

 4         (f)  With respect to any personal property

 5  accommodations or facilities, the developer and any other

 6  interestholder have complied fully with the applicable

 7  provisions of s. 721.08.

 8         Section 24.  Section 721.54, Florida Statutes, is

 9  amended to read:

10         721.54  Term of nonspecific multisite timeshare

11  plans.--It shall be a violation of this part to represent to a

12  purchaser of a nonspecific multisite timeshare plan as defined

13  in s. 721.52(5) 721.552(4) that the term of the plan for that

14  purchaser is longer than the shortest term of availability of

15  any of the accommodations included within the plan at the time

16  of purchase.

17         Section 25.  Section 721.55, Florida Statutes, is

18  amended to read:

19         721.55  Multisite timeshare plan public offering

20  statement.--Each filed registered public offering statement

21  for a multisite timeshare plan shall contain the information

22  required by this section and shall comply with the provisions

23  of s. 721.07, except as otherwise provided therein. The

24  division is authorized to provide by rule the method by which

25  a developer must provide such information to the division.

26  Each multisite timeshare plan filed registered public offering

27  statement shall contain the following information and

28  disclosures:

29         (1)  A cover page containing:

30         (a)  The name of the multisite timeshare plan.

31         (b)  The following statement in conspicuous type:

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 1  

 2         This public offering statement contains important

 3  matters to be considered in acquiring an interest in a

 4  multisite timeshare plan (or multisite vacation ownership plan

 5  or multisite vacation plan or vacation club). The statements

 6  contained herein are only summary in nature. A prospective

 7  purchaser should refer to all references, accompanying

 8  exhibits, contract documents, and sales materials. The

 9  prospective purchaser should not rely upon oral

10  representations as being correct and should refer to this

11  document and accompanying exhibits for correct

12  representations.

13  

14         (2)  A summary containing all statements required to be

15  in conspicuous type in the public offering statement and in

16  all exhibits thereto.

17         (3)  A separate index for the contents and exhibits of

18  the public offering statement.

19         (4)  A text, which shall include, where applicable, the

20  information and disclosures set forth in paragraphs (a)-(l).

21         (a)  A description of the multisite timeshare plan,

22  including its term, legal structure, and form of ownership.

23  For multisite timeshare plans in which the purchaser will

24  receive a timeshare estate pursuant to s. 721.57 and for or a

25  specific multisite timeshare plans license as defined in s.

26  721.552(4), the description must also include the term of each

27  component site within the multisite timeshare plan.

28         (b)  A description of the structure and ownership of

29  the reservation system together with a disclosure of the

30  entity responsible for the operation of the reservation

31  system. The description shall include the financial terms of

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 1  any lease of the reservation system, if applicable. The

 2  developer shall not be required to disclose the financial

 3  terms of any such lease if such lease is prepaid in full for

 4  the term of the multisite timeshare plan or to any extent that

 5  neither purchasers nor the managing entity will be required to

 6  make payments for the continued use of the system following

 7  default by the developer or termination of the managing

 8  entity.

 9         (c)1.  A description of the manner in which the

10  reservation system operates. The description shall include a

11  disclosure in compliance with the demand balancing standard

12  set forth in s. 721.56(6) and shall describe the developer's

13  efforts to comply with same in creating the reservation

14  system. The description shall also include a summary of the

15  rules and regulations governing access to and use of the

16  reservation system.

17         2.  In lieu of describing the rules and regulations of

18  the reservation system in the public offering statement text,

19  the developer may attach the rules and regulations as a

20  separate public offering statement exhibit, together with a

21  cross-reference in the public offering statement text to such

22  exhibit.

23         (d)  The existence of and an explanation regarding any

24  priority reservation features that affect a purchaser's

25  ability to make reservations for the use of a given

26  accommodation or facility on a first come, first served basis,

27  including, if applicable, the following statement in

28  conspicuous type:

29  

30         Component sites contained in the multisite timeshare

31  plan (or multisite vacation ownership plan or multisite

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 1  vacation plan or vacation club) are subject to priority

 2  reservation features which may affect your ability to obtain a

 3  reservation.

 4  

 5         (e)  A summary of the material rules and regulations,

 6  if any, other than the reservation system rules and

 7  regulations, affecting the purchaser's use of each

 8  accommodation and facility at each component site.

 9         (f)  If the provisions of s. 721.552 and the timeshare

10  instrument permit additions, substitutions, or deletions of

11  accommodations or facilities, the public offering statement

12  must include substantially the following information:

13         1.  Additions.--

14         a.  A description of the basis upon which new

15  accommodations and facilities may be added to the multisite

16  timeshare plan; by whom additions may be made; and the

17  anticipated effect of the addition of new accommodations and

18  facilities upon the reservation system, its priorities, its

19  rules and regulations, and the availability of existing

20  accommodations and facilities.

21         b.  The developer must disclose the existence of any

22  cap on annual increases in common expenses of the multisite

23  timeshare plan that would apply in the event that additional

24  accommodations and facilities are made a part of the plan.

25         c.  The developer shall also disclose any extent to

26  which the purchasers of the multisite timeshare plan will have

27  the right to consent to any proposed additions; if the

28  purchasers do not have the right to consent, the developer

29  must include the following disclosure in conspicuous type:

30  

31  

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 1         Accommodations and facilities may be added to this

 2  multisite timeshare plan (or multisite vacation ownership plan

 3  or multisite vacation plan or vacation club) without the

 4  consent of the purchasers. The addition of accommodations and

 5  facilities to the plan may result in the addition of new

 6  purchasers who will compete with existing purchasers in making

 7  reservations for the use of available accommodations and

 8  facilities within the plan, and may also result in an increase

 9  in the annual assessment against purchasers for common

10  expenses.

11  

12         2.  Substitutions.--

13         a.  A description of the basis upon which new

14  accommodations and facilities may be substituted for existing

15  accommodations and facilities of the multisite timeshare plan;

16  by whom substitutions may be made; the basis upon which the

17  determination may be made to cause such substitutions to

18  occur; and any limitations upon the ability to cause

19  substitutions to occur.

20         b.  The developer shall also disclose any extent to

21  which purchasers will have the right to consent to any

22  proposed substitutions; if the purchasers do not have the

23  right to consent, the developer must include the following

24  disclosure in conspicuous type:

25  

26         New accommodations and facilities may be substituted

27  for existing accommodations and facilities of this multisite

28  timeshare plan (or multisite vacation ownership plan or

29  multisite vacation plan or vacation club) without the consent

30  of the purchasers. The replacement accommodations and

31  facilities may be located at a different place or may be of a

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 1  different type or quality than the replaced accommodations and

 2  facilities. The substitution of accommodations and facilities

 3  may also result in an increase in the annual assessment

 4  against purchasers for common expenses.

 5  

 6         3.  Deletions.--A description of any provision of the

 7  timeshare instrument governing deletion of accommodations or

 8  facilities from the multisite timeshare plan. If the timeshare

 9  instrument does not provide for business interruption

10  insurance in the event of a casualty, or if it is unavailable,

11  or if the instrument permits the developer, the managing

12  entity, or the purchasers to elect not to reconstruct after

13  casualty under certain circumstances or to secure replacement

14  accommodations or facilities in lieu of reconstruction, the

15  public offering statement must contain a disclosure that

16  during the reconstruction, replacement, or acquisition period,

17  or as a result of a decision not to reconstruct, purchasers of

18  the plan may temporarily compete for available accommodations

19  on a greater than one-to-one purchaser to accommodation ratio.

20         (g)  A description of the developer and the managing

21  entity of the multisite timeshare plan, including:

22         1.  The identity of the developer; the developer's

23  business address; the number of years of experience the

24  developer has in the timeshare, hotel, motel, travel, resort,

25  or leisure industries; and a description of any pending

26  lawsuit or judgment against the developer which is material to

27  the plan. If there are no such pending lawsuits or judgments,

28  there shall be a statement to that effect.

29         2.  The identity of the managing entity of the

30  multisite timeshare plan; the managing entity's business

31  address; the number of years of experience the managing entity

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 1  has in the timeshare, hotel, motel, travel, resort, or leisure

 2  industries; and a description of any lawsuit or judgment

 3  against the managing entity which is material to the plan. If

 4  there are no pending lawsuits or judgments, there shall be a

 5  statement to that effect. The description of the managing

 6  entity shall also include a description of the relationship

 7  among the managing entity of the multisite timeshare plan and

 8  the various component site managing entities.

 9         (h)  A description of the purchaser's liability for

10  common expenses of the multisite timeshare plan, including the

11  following:

12         1.  A description of the common expenses of the plan,

13  including the method of allocation and assessment of such

14  common expenses, whether component site common expenses and

15  real estate taxes are included within the total common expense

16  assessment of the multisite timeshare plan, and, if not, the

17  manner in which timely payment of component site common

18  expenses and real estate taxes shall be accomplished.

19         2.  A description of any cap imposed upon the level of

20  common expenses payable by the purchaser. In no event shall

21  the total common expense assessment for the multisite

22  timeshare plan in a given calendar year exceed 125 percent of

23  the total common expense assessment for the plan in the

24  previous calendar year.

25         3.  A description of the entity responsible for the

26  determination of the common expenses of the multisite

27  timeshare plan, as well as any entity which may increase the

28  level of common expenses assessed against the purchaser at the

29  multisite timeshare plan level.

30         4.  A description of the method used to collect common

31  expenses, including the entity responsible for such

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 1  collections, and the lien rights of any entity for nonpayment

 2  of common expenses. If the common expenses of any component

 3  site are collected by the managing entity of the multisite

 4  timeshare plan, a statement to that effect together with the

 5  identity and address of the escrow agent required by s.

 6  721.56(3).

 7         5.  If the purchaser will receive an interest in a

 8  nonspecific multisite timeshare plan license as defined in s.

 9  721.552(4), a statement that a multisite timeshare plan budget

10  is attached to the public offering statement as an exhibit

11  pursuant to paragraph (7)(c). The multisite timeshare plan

12  budget shall comply with the provisions of s. 721.07(5)(u).

13         6.  If the developer intends to guarantee the level of

14  assessments for the multisite timeshare plan, such guarantee

15  must be based upon a good faith estimate of the revenues and

16  expenses of the multisite timeshare plan. The guarantee must

17  include a description of the following:

18         a.  The specific time period, measured in one or more

19  calendar or fiscal years, during which the guarantee will be

20  in effect.

21         b.  A statement that the developer will pay all common

22  expenses incurred in excess of the total revenues of the

23  multisite timeshare plan, if the developer is to be excused

24  from the payment of assessments during the guarantee period.

25         c.  The level, expressed in total dollars, at which the

26  developer guarantees the assessments. If the developer has

27  reserved the right to extend or increase the guarantee level,

28  a disclosure must be included to that effect.

29         7.  If required under applicable law, the developer

30  shall also disclose the following matters for each component

31  site:

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 1         a.  Any limitation upon annual increases in common

 2  expenses;

 3         b.  The existence of any bad debt or working capital

 4  reserve; and

 5         c.  The existence of any replacement or deferred

 6  maintenance reserve.

 7         (i)  If there are any restrictions upon the sale,

 8  transfer, conveyance, or leasing of an interest in a multisite

 9  timeshare plan, a description of the restrictions together

10  with a statement in conspicuous type in substantially the

11  following form:

12  

13         The sale, lease, or transfer of interests in this

14  multisite timeshare plan is restricted or controlled.

15  

16         (j)  The following statement in conspicuous type in

17  substantially the following form:

18  

19         The purchase of an interest in a multisite timeshare

20  plan (or multisite vacation ownership plan or multisite

21  vacation plan or vacation club) should be based upon its value

22  as a vacation experience or for spending leisure time, and not

23  considered for purposes of acquiring an appreciating

24  investment or with an expectation that the interest may be

25  resold.

26  

27         (k)  If the multisite timeshare plan provides

28  purchasers with the opportunity to participate in an exchange

29  program, a description of the name and address of the exchange

30  company and the method by which a purchaser accesses the

31  exchange program. In lieu of this requirement, the public

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 1  offering statement text may contain a cross-reference to other

 2  provisions in the public offering statement or in an exhibit

 3  containing this information.

 4         (l)  A description of each component site, which

 5  description may be disclosed in a written, graphic, tabular,

 6  or other form approved by the division. The description of

 7  each component site shall include the following information:

 8         1.  The name and address of each component site.

 9         2.  The number of accommodations, timeshare interests,

10  and timeshare periods, expressed in periods of 7-day use

11  availability, committed to the multisite timeshare plan and

12  available for use by purchasers.

13         3.  Each type of accommodation in terms of the number

14  of bedrooms, bathrooms, sleeping capacity, and whether or not

15  the accommodation contains a full kitchen. For purposes of

16  this description, a full kitchen shall mean a kitchen having a

17  minimum of a dishwasher, range, sink, oven, and refrigerator.

18         4.  A description of facilities available for use by

19  the purchaser at each component site, including the following:

20         a.  The intended use of the facility, if not apparent

21  from the description.

22         b.  Any user fees associated with a purchaser's use of

23  the facility.

24         5.  A cross-reference to the location in the public

25  offering statement of the description of any priority

26  reservation features which may affect a purchaser's ability to

27  obtain a reservation in the component site.

28         (5)  Such other information as the division determines

29  is necessary to fairly, meaningfully, and effectively disclose

30  all aspects of the multisite timeshare plan, including, but

31  not limited to, any disclosures made necessary by the

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 1  operation of s. 721.03(8). However, if a developer has, in

 2  good faith, attempted to comply with the requirements of this

 3  section, and if, in fact, the developer has substantially

 4  complied with the disclosure requirements of this chapter,

 5  nonmaterial errors or omissions shall not be actionable.

 6         (6)  Any other information that the developer, with the

 7  approval of the division, desires to include in the public

 8  offering statement text.

 9         (7)  The following documents shall be included as

10  exhibits to the filed registered public offering statement, if

11  applicable:

12         (a)  The timeshare instrument.

13         (b)  The reservation system rules and regulations.

14         (c)  The multisite timeshare plan budget pursuant to

15  subparagraph (4)(h)5.

16         (d)  Any document containing the material rules and

17  regulations described in paragraph (4)(e).

18         (e)  Any contract, agreement, or other document through

19  which component sites are affiliated with the multisite

20  timeshare plan.

21         (f)  Any escrow agreement required pursuant to s.

22  721.08 or s. 721.56(3).

23         (g)  The form agreement for sale or lease of an

24  interest in the multisite timeshare plan.

25         (h)  The form receipt for multisite timeshare plan

26  documents required to be given to the purchaser pursuant to s.

27  721.551(2)(b).

28         (i)  The description of documents list required to be

29  given to the purchaser by s. 721.551(2)(b).

30         (j)  The component site managing entity affidavit or

31  statement required by s. 721.56(1).

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 1         (k)  Any subordination instrument required by s.

 2  721.53.

 3         (l)1.  If the multisite timeshare plan contains any

 4  component sites located in this state, the information

 5  required by s. 721.07(5) pertaining to each such component

 6  site unless exempt pursuant to s. 721.03.

 7         2.  If the purchaser will receive a timeshare estate

 8  pursuant to s. 721.57, or an interest in a specific multisite

 9  timeshare plan, license as defined in s. 721.552(4) in a

10  component site located outside of this state but which is

11  offered in this state, the information required by s.

12  721.07(5) pertaining to that component site,; provided,

13  however, that the provisions of s. 721.07(5)(u) shall only

14  require disclosure of information related to the estimated

15  budget for the timeshare plan and purchaser's expenses as

16  required by the jurisdiction in which the component site is

17  located.

18         (8)(a)  A timeshare plan containing only one component

19  site must be filed with the division as a multisite timeshare

20  plan if the timeshare instrument reserves the right for the

21  developer to add future component sites. However, if the

22  developer fails to add at least one additional component site

23  to a timeshare plan described in this paragraph within 3 years

24  after the date the plan is initially filed with the division,

25  the multisite filing for such plan shall thereupon terminate,

26  and the developer may not thereafter offer any further

27  interests in such plan unless and until he or she refiles such

28  plan with the division pursuant to this chapter.

29         (b)  The public offering statement for any timeshare

30  plan described in paragraph (a) must include the following

31  disclosure in conspicuous type:

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 1  

 2         This timeshare plan has been filed as a multisite

 3  timeshare plan (or multisite vacation ownership plan or

 4  multisite vacation plan or vacation club); however, this plan

 5  currently contains only one component site. The developer is

 6  not required to add any additional component sites to the

 7  plan. Do not purchase an interest in this plan in reliance

 8  upon the addition of any other component sites.

 9         Section 26.  Paragraphs (b), (c), and (f) of subsection

10  (2) of section 721.551, Florida Statutes, are amended to read:

11         721.551  Delivery of multisite timeshare plan purchaser

12  public offering statement.--

13         (2)  The developer shall furnish each purchaser with

14  the following:

15         (b)  A receipt for multisite timeshare plan documents

16  and a list describing any exhibit to the filed registered

17  public offering statement which is not delivered to the

18  purchaser. The division is authorized to prescribe by rule the

19  form of the receipt for multisite timeshare plan documents and

20  the description of exhibits list that must be furnished to the

21  purchaser pursuant to this section.

22         (c)  If the purchaser will receive a timeshare estate

23  pursuant to s. 721.57, or an interest in a specific multisite

24  timeshare plan, license as defined in s. 721.552(4) in a

25  component site located in this state, the developer shall also

26  furnish the purchaser with the information required to be

27  delivered pursuant to s. 721.07(6)(a) and (b) for the

28  component site in which the purchaser will receive an estate

29  or interest in a specific multisite timeshare plan license.

30         (f)  The developer shall be required to provide the

31  managing entity of the multisite timeshare plan with a copy of

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 1  the approved filed registered public offering statement and

 2  any approved amendments thereto to be maintained by the

 3  managing entity as part of the books and records of the

 4  timeshare plan pursuant to s. 721.13(3)(d).

 5         Section 27.  Paragraph (a) of subsection (2), paragraph

 6  (c) of subsection (3), and subsections (4) and (5) of section

 7  721.552, Florida Statutes, are amended to read:

 8         721.552  Additions, substitutions, or deletions of

 9  component site accommodations or facilities; purchaser

10  remedies for violations.--Additions, substitutions, or

11  deletions of component site accommodations or facilities may

12  be made only in accordance with the following:

13         (2)  SUBSTITUTIONS.--

14         (a)  Substitutions are available only for nonspecific

15  multisite timeshare license plans as defined in subsection

16  (4). Specific multisite timeshare license plans or as defined

17  in subsection (4) and plans offering timeshare estates

18  pursuant to s. 721.57 may not contain an accommodation

19  substitution right.

20         (3)  DELETIONS.--

21         (c)  Automatic deletion.--The timeshare instrument may

22  provide that a component site will be automatically deleted

23  upon the expiration of its term in a timeshare plan other than

24  a nonspecific multisite timeshare license plan or as otherwise

25  provided in the timeshare instrument. However, the timeshare

26  instrument must also provide that in the event a component

27  site is deleted from the plan in this manner, a sufficient

28  number of purchasers of the plan will also be deleted so as to

29  maintain no greater than a one-to-one purchaser to

30  accommodation ratio.

31  

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 1         (4)  SPECIFIC AND NONSPECIFIC TIMESHARE LICENSES.--For

 2  purposes of this chapter, a specific timeshare license means

 3  one with respect to which a purchaser receives a specific

 4  right to use accommodations and facilities, if any, at one

 5  component site of a multisite timeshare plan, together with

 6  use rights in the other accommodations and facilities of the

 7  multisite timeshare plan created by or acquired through the

 8  reservation system. For purposes of this chapter, a

 9  nonspecific timeshare license means one with respect to which

10  a purchaser receives a right to use all of the accommodations

11  and facilities, if any, of a multisite timeshare plan through

12  the reservation system, but no specific right to use any

13  particular accommodations and facilities for the remaining

14  term of the multisite timeshare plan in the event that the

15  reservation system is terminated for any reason prior to the

16  expiration of the term of the multisite timeshare plan.

17         (4)(5)  VIOLATIONS; PURCHASER REMEDIES.--All purchaser

18  remedies pursuant to s. 721.21 shall be available for any

19  violation of the provisions of this section.

20         Section 28.  Subsections (4) and (5) of section 721.56,

21  Florida Statutes, are amended to read:

22         721.56  Management of multisite timeshare plans;

23  reservation systems; demand balancing.--

24         (4)  The managing entity of a multisite timeshare plan

25  shall comply fully with the requirements of s. 721.13, subject

26  to the provisions of s. 721.13(11) for personal property

27  timeshare plans; however, with respect to a given component

28  site, the managing entity of the multisite timeshare plan

29  shall not be responsible for compliance as the managing entity

30  of that component site unless the managing entity of the

31  multisite timeshare plan is also the managing entity of that

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 1  component site. Unless the timeshare instrument provides

 2  otherwise, the operator of the reservation system is the

 3  managing entity of a multisite timeshare plan.

 4         (5)(a)1.  The reservation system is a facility of any

 5  nonspecific timeshare license multisite timeshare plan as

 6  defined in s. 721.552(4). The reservation system is not a

 7  facility of any specific timeshare license multisite timeshare

 8  plan as defined in s. 721.552(4), nor is it a facility of any

 9  multisite timeshare plan in which timeshare estates are

10  offered pursuant to s. 721.57.

11         2.  The reservation system of any multisite timeshare

12  plan shall include any computer software and hardware employed

13  for the purpose of enabling or facilitating the operation of

14  the reservation system. Nothing contained in this part shall

15  preclude a manager or management firm that is serving as

16  managing entity of a multisite timeshare plan from providing

17  in its contract with the purchasers or owners' association of

18  the multisite timeshare plan or in the timeshare instrument

19  that the manager or management firm owns the reservation

20  system and that the managing entity shall continue to own the

21  reservation system in the event the purchasers discharge the

22  managing entity pursuant to s. 721.14.

23         (b)  In the event of a termination of a managing entity

24  of a nonspecific license multisite timeshare plan as defined

25  in s. 721.552(4), which managing entity owns the reservation

26  system, irrespective of whether the termination is voluntary

27  or involuntary and irrespective of the cause of such

28  termination, in addition to any other remedies available to

29  purchasers in this part, the terminated managing entity shall,

30  prior to such termination, establish a trust meeting the

31  criteria set forth in this paragraph. It is the intent of the

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 1  Legislature that this trust arrangement provide for an

 2  adequate period of continued operation of the reservation

 3  system of the multisite timeshare plan, during which period

 4  the new managing entity shall make provision for the

 5  acquisition of a substitute reservation system.

 6         1.  The trust shall be established with an independent

 7  trustee. Both the terminated managing entity and the new

 8  managing entity shall attempt to agree on an acceptable

 9  trustee. In the event they cannot agree on an acceptable

10  trustee, they shall each designate a nominee, and the two

11  nominees shall select the trustee.

12         2.  The terminated managing entity shall take all steps

13  necessary to enable the trustee or the trustee's designee to

14  operate the reservation system in the same manner as provided

15  in the timeshare instrument and the public offering statement.

16  The trustee may, but shall not be required to, contract with

17  the terminated managing entity for the continued operation of

18  the reservation system. In the event the trustee elects to

19  contract with the terminated managing entity, that managing

20  entity shall be required to operate the reservation system and

21  shall be entitled to payment for that service. The payment

22  shall in no event exceed the amount previously paid to the

23  terminated managing entity for operation of the reservation

24  system.

25         3.  The trust shall remain in effect for a period of no

26  longer than 1 year following the date of termination of the

27  managing entity.

28         4.  Nothing contained in this subsection shall abrogate

29  or otherwise interfere with any proprietary rights in the

30  reservation system that have been reserved by the discharged

31  managing entity, in its management contract or otherwise, so

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 1  long as such proprietary rights are not asserted in a manner

 2  that would prevent the continued operation of the reservation

 3  system as contemplated in this subsection.

 4         (c)  In the event of a termination of a managing entity

 5  of a timeshare estate or specific license multisite timeshare

 6  plan as defined in s. 721.552(4), which managing entity owns

 7  the reservation system, irrespective of whether the

 8  termination is voluntary or involuntary and irrespective of

 9  the cause of such termination, in addition to any other

10  remedies available to purchasers in this part, the terminated

11  managing entity shall, prior to such termination, promptly

12  transfer to each component site managing entity all relevant

13  data contained in the reservation system with respect to that

14  component site, including, but not limited to:

15         1.  The names, addresses, and reservation status of

16  component site accommodations.

17         2.  The names and addresses of all purchasers of

18  timeshare interests at that component site.

19         3.  All outstanding confirmed reservations and

20  reservation requests for that component site.

21         4.  Such other component site records and information

22  as are necessary, in the reasonable discretion of the

23  component site managing entity, to permit the uninterrupted

24  operation and administration of the component site, provided

25  that a given component site managing entity shall not be

26  entitled to any information regarding other component sites or

27  regarding the terminated multisite timeshare plan managing

28  entity.

29  

30  All reasonable costs incurred by the terminated managing

31  entity in effecting the transfer of information required by

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 1  this paragraph shall be reimbursed to the terminated managing

 2  entity on a pro rata basis by each component site, and the

 3  amount of such reimbursement shall constitute a common expense

 4  of each component site.

 5         Section 29.  Subsection (2) of section 721.57, Florida

 6  Statutes, is amended to read:

 7         721.57  Offering of timeshare estates in multisite

 8  timeshare plans; required provisions in the timeshare

 9  instrument.--

10         (2)  The timeshare instrument of a multisite timeshare

11  plan in which timeshare estates are offered, other than a

12  trust meeting the requirements of s. 721.08, must contain or

13  provide for all of the following matters:

14         (a)  The purchaser will receive a timeshare estate as

15  defined in s. 721.05 in one of the component sites of the

16  multisite timeshare plan. The use rights in the other

17  component sites of the multisite timeshare plan shall be made

18  available to the purchaser through the reservation system

19  pursuant to the timeshare instrument.

20         (b)  In the event that the reservation system is

21  terminated or otherwise becomes unavailable for any reason

22  prior to the expiration of the term of the multisite timeshare

23  plan:

24         1.  The purchaser will be able to continue to use the

25  accommodations and facilities of the component site in which

26  she or he has been conveyed a timeshare estate in the manner

27  described in the timeshare instrument for the remaining term

28  of the timeshare estate; and

29         2.  Any use rights in that component site which had

30  previously been made available through the reservation system

31  to purchasers of the multisite timeshare plan who were not

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 1  offered a timeshare estate at that component site will

 2  terminate when the reservation system is terminated or

 3  otherwise becomes unavailable for any reason.

 4         Section 30.  Subsection (6) of section 721.84, Florida

 5  Statutes, is amended to read:

 6         721.84  Appointment of a registered agent; duties.--

 7         (6)  Unless otherwise provided in this section, a

 8  registered agent in receipt of any notice or other document

 9  addressed from the lienholder to the obligor in care of the

10  registered agent at the registered office must mail, by first

11  class mail if the obligor's address is within the United

12  States, and by international air mail if the obligor's address

13  is outside the United States, with postage fees prepaid, such

14  notice or documents to the obligor at the obligor's last

15  designated address within 5 days after of receipt.

16         Section 31.  Section 721.96, Florida Statutes, is

17  amended to read:

18         721.96  Purpose.--The purpose of this part is to

19  provide for the appointment of commissioners of deeds to take

20  acknowledgments, proofs of execution, and oaths outside the

21  United States in connection with the execution of any deed,

22  mortgage, deed of trust, contract, power of attorney, or any

23  other agreement, instrument or writing concerning, relating

24  to, or to be used or recorded in connection with a timeshare

25  estate, personal property timeshare interest, timeshare

26  license, any property subject to a timeshare plan, or the

27  operation of a timeshare plan located within this state.

28         Section 32.  Subsection (1) of section 721.97, Florida

29  Statutes, is amended to read:

30         721.97  Timeshare commissioner of deeds.--

31  

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 1         (1)  The Governor may appoint commissioners of deeds to

 2  take acknowledgments, proofs of execution, or oaths in any

 3  foreign country. The term of office is 4 years. Commissioners

 4  of deeds shall have authority to take acknowledgments, proofs

 5  of execution, and oaths in connection with the execution of

 6  any deed, mortgage, deed of trust, contract, power of

 7  attorney, or any other writing to be used or recorded in

 8  connection with a timeshare estate, personal property

 9  timeshare interest, timeshare license, any property subject to

10  a timeshare plan, or the operation of a timeshare plan located

11  within this state; provided such instrument or writing is

12  executed outside the United States. Such acknowledgments,

13  proofs of execution, and oaths must be taken or made in the

14  manner directed by the laws of this state, including but not

15  limited to s. 117.05(4), (5)(a), and (6), Florida Statutes

16  1997, and certified by a commissioner of deeds. The

17  certification must be endorsed on or annexed to the instrument

18  or writing aforesaid and has the same effect as if made or

19  taken by a notary public licensed in this state.

20         Section 33.  Paragraph (b) of subsection (8) of section

21  475.011, Florida Statutes, is amended to read:

22         475.011  Exemptions.--This part does not apply to:

23         (8)

24         (b)  An exchange company, as that term is defined by s.

25  721.05(15)(14), but only to the extent that the exchange

26  company is engaged in exchange program activities as described

27  in and is in compliance with s. 721.18.

28         Section 34.  Subsection (23) of section 718.103,

29  Florida Statutes, is amended to read:

30         718.103  Definitions.--As used in this chapter, the

31  term:

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 1         (23)  "Residential condominium" means a condominium

 2  consisting of two or more units, any of which are intended for

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

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

 5  which the units are intended is primarily commercial or

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

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

 8  housing for maintenance, managerial, janitorial, or other

 9  operational staff of the condominium. With respect to a

10  condominium that is not a timeshare condominium, a residential

11  unit includes a unit intended as a private temporary or

12  permanent residence as well as a unit not intended for

13  commercial or industrial use. With respect to a timeshare

14  condominium, the timeshare instrument as defined in s.

15  721.05(35)(33) shall govern the intended use of each unit in

16  the condominium. If a condominium is a residential condominium

17  but contains units intended to be used for commercial or

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

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

20  condominium is not a residential condominium. A condominium

21  which contains both commercial and residential units is a

22  mixed-use condominium and is subject to the requirements of s.

23  718.404.

24         Section 35.  This act shall take effect upon becoming a

25  law; however, with respect to any timeshare plan or exchange

26  program filing approved by the division prior to the date this

27  act becomes a law, the amendments to section 721.06(1)(g)2.,

28  section 721.07(2)(d)1. and (5)(e)4., section 721.075(2)(e), or

29  section 721.18(1)(l) and (m), Florida Statutes, shall not

30  apply to such filing until the earlier of January 1, 2005, or

31  the date that any amendments to such filing are made

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 1  subsequent to the date this act becomes a law. With respect to

 2  any timeshare plan filing approved by the division prior to

 3  the date this act becomes a law, the amendment to section

 4  721.08(3)(a), Florida Statutes, shall not apply to the

 5  nondisturbance and notice to creditors instrument required by

 6  section 721.08, Florida Statutes, unless and only to the

 7  extent that the developer otherwise voluntarily complies with

 8  all or a portion of such provisions.

 9  

10          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
11                         Senate Bill 1208

12                                 

13  The CS differs from the bill as filed in that it corrects an
    effective date, changing it from January 1, 2004 to January 1,
14  2005.

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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