Senate Bill sb2498c2

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    Florida Senate - 2004                    CS for CS for SB 2498

    By the Committees on Governmental Oversight and Productivity;
    Regulated Industries; and Senator Garcia




    302-2650-04

  1                      A bill to be entitled

  2         An act relating to condominium associations;

  3         amending s. 718.110, F.S.; providing for

  4         grandfathering and modification of certain

  5         rights of a unit owner; requiring certain

  6         voting and approval criteria for amendments

  7         depriving owners of certain rights; creating s.

  8         718.5011, F.S.; creating the Office of the

  9         Condominium Ombudsman within the Division of

10         Florida Land Sales, Condominiums, and Mobile

11         Homes; providing that the ombudsman is the

12         agency head for all purposes; providing that

13         the office is independent and may be funded by

14         the Division of Florida Land Sales,

15         Condominiums, and Mobile Homes Trust Fund;

16         providing for submittal of proposed budget to

17         the Governor; providing for administrative

18         support by the Department of Business and

19         Professional Regulation; authorizing

20         appointment of ombudsman by the Governor;

21         prohibiting ombudsman or staff from engaging in

22         certain acts; creating s. 718.5012. F.S.;

23         granting certain powers and duties to the

24         ombudsman; authorizing the Office of the

25         Governor to approve a personnel classification

26         and pay plan for the office of the ombudsman

27         and entry of contracts by that office;

28         providing for the division to remove a member

29         of a condominium board under certain

30         conditions; authorizing the division to adopt

31         rules with respect to such removal; providing

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 1         that the ombudsman is not required to provide

 2         assistance at public expense; creating s.

 3         718.5014, F.S.; providing for location of the

 4         office of the ombudsman; creating s. 718.5015,

 5         F.S.; creating the Advisory Council on

 6         Condominiums; providing for appointments by the

 7         President of the Senate, the Speaker of the

 8         House, and the Governor; providing limited

 9         compensation and other terms of service;

10         specifying functions; amending s. 718.504,

11         F.S.; providing certain prospective unit buyers

12         with a separate document, rather than a

13         separate page, of frequently asked questions

14         and answers; requiring additional disclosure to

15         prospective buyers concerning court cases that

16         involve potential liabilities of the

17         association; providing an effective date.

18  

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

20  

21         Section 1.  Section 718.110, Florida Statutes, is

22  amended to read:

23         718.110  Amendment of declaration; correction of error

24  or omission in declaration by circuit court; grandfathering

25  and modification of certain rights.--

26         (1)(a)  If the declaration fails to provide a method of

27  amendment, the declaration may be amended as to all matters

28  except those described in subsection (4) or subsection (8) if

29  the amendment is approved by the owners of not less than

30  two-thirds of the units.  Except as to those matters described

31  in subsection (4) or subsection (8), no declaration recorded

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 1  after April 1, 1992, shall require that amendments be approved

 2  by more than four-fifths of the voting interests.

 3         (b)  No provision of the declaration shall be revised

 4  or amended by reference to its title or number only.

 5  Proposals to amend existing provisions of the declaration

 6  shall contain the full text of the provision to be amended;

 7  new words shall be inserted in the text and underlined; and

 8  words to be deleted shall be lined through with hyphens.

 9  However, if the proposed change is so extensive that this

10  procedure would hinder, rather than assist, the understanding

11  of the proposed amendment, it is not necessary to use

12  underlining and hyphens as indicators of words added or

13  deleted, but, instead, a notation must be inserted immediately

14  preceding the proposed amendment in substantially the

15  following language: "Substantial rewording of declaration.

16  See provision .... for present text."

17         (c)  Nonmaterial errors or omissions in the amendment

18  process will not invalidate an otherwise properly promulgated

19  amendment.

20         (2)  An amendment, other than amendments made by the

21  developer pursuant to ss. 718.104, 718.403, and 718.504(6),

22  (7), and (9) without a vote of the unit owners and any rights

23  the developer may have in the declaration to amend without

24  consent of the unit owners which shall be limited to matters

25  other than those under subsections (4) and (8), shall be

26  evidenced by a certificate of the association which shall

27  include the recording data identifying the declaration and

28  shall be executed in the form required for the execution of a

29  deed.  An amendment by the developer must be evidenced in

30  writing, but a certificate of the association is not required.

31  The developer of a timeshare condominium may reserve specific

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 1  rights in the declaration to amend the declaration without the

 2  consent of the unit owners.

 3         (3)  An amendment of a declaration is effective when

 4  properly recorded in the public records of the county where

 5  the declaration is recorded.

 6         (4)  Unless otherwise provided in the declaration as

 7  originally recorded, no amendment may change the configuration

 8  or size of any unit in any material fashion, materially alter

 9  or modify the appurtenances to the unit, or change the

10  proportion or percentage by which the unit owner shares the

11  common expenses of the condominium and owns the common surplus

12  of the condominium unless the record owner of the unit and all

13  record owners of liens on the unit join in the execution of

14  the amendment and unless all the record owners of all other

15  units in the same condominium approve the amendment.  The

16  acquisition of property by the association and material

17  alterations or substantial additions to such property or the

18  common elements by the association in accordance with s.

19  718.111(7) or s. 718.113, and amendments providing for the

20  transfer of use rights in limited common elements pursuant to

21  s. 718.106(2)(b) shall not be deemed to constitute a material

22  alteration or modification of the appurtenances to the units.

23  A declaration recorded after April 1, 1992, may not require

24  the approval of less than a majority of total voting interests

25  of the condominium for amendments under this subsection,

26  unless otherwise required by a governmental entity.

27         (5)  If it appears that through a scrivener's error a

28  unit has not been designated as owning an appropriate

29  undivided share of the common elements or does not bear an

30  appropriate share of the common expenses or that all the

31  common expenses or interest in the common surplus or all of

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 1  the common elements in the condominium have not been

 2  distributed in the declaration, so that the sum total of the

 3  shares of common elements which have been distributed or the

 4  sum total of the shares of the common expenses or ownership of

 5  common surplus fails to equal 100 percent, or if it appears

 6  that more than 100 percent of common elements or common

 7  expenses or ownership of the common surplus have been

 8  distributed, the error may be corrected by filing an amendment

 9  to the declaration approved by the board of administration or

10  a majority of the unit owners.

11         (6)  The common elements designated by the declaration

12  may be enlarged by an amendment to the declaration.  The

13  amendment must describe the interest in the property and must

14  submit the property to the terms of the declaration.  The

15  amendment must be approved and executed as provided in this

16  section.  The amendment divests the association of title to

17  the land and vests title in the unit owners as part of the

18  common elements, without naming them and without further

19  conveyance, in the same proportion as the undivided shares in

20  the common elements that are appurtenant to the unit owned by

21  them.

22         (7)  The declarations, bylaws, and common elements of

23  two or more independent condominiums of a single complex may

24  be merged to form a single condominium, upon the approval of

25  such voting interest of each condominium as is required by the

26  declaration for modifying the appurtenances to the units or

27  changing the proportion or percentages by which the owners of

28  the parcel share the common expenses and own the common

29  surplus; upon the approval of all record owners of liens; and

30  upon the recording of new or amended articles of

31  incorporation, declarations, and bylaws.

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 1         (8)  Unless otherwise provided in the declaration as

 2  originally recorded, no amendment to the declaration may

 3  permit timeshare estates to be created in any unit of the

 4  condominium, unless the record owner of each unit of the

 5  condominium and the record owners of liens on each unit of the

 6  condominium join in the execution of the amendment.

 7         (9)  If there is an omission or error in a declaration,

 8  or in any other document required by law to establish the

 9  condominium, the association may correct the error or omission

10  by an amendment to the declaration or to the other document

11  required to create a condominium in the manner provided in the

12  declaration to amend the declaration or, if none is provided,

13  by vote of a majority of the voting interests of the

14  condominium.  The amendment is effective when passed and

15  approved and a certificate of amendment is executed and

16  recorded as provided in subsections (2) and (3).  This

17  procedure for amendment cannot be used if such an amendment

18  would materially or adversely affect property rights of unit

19  owners, unless the affected unit owners consent in writing.

20  This subsection does not restrict the powers of the

21  association to otherwise amend the declaration, or other

22  documentation, but authorizes a simple process of amendment

23  requiring a lesser vote for the purpose of curing defects,

24  errors, or omissions when the property rights of unit owners

25  are not materially or adversely affected.

26         (10)  If there is an omission or error in a declaration

27  of condominium, or any other document required to establish

28  the condominium, which omission or error would affect the

29  valid existence of the condominium, the circuit court has

30  jurisdiction to entertain a petition of one or more of the

31  unit owners in the condominium, or of the association, to

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 1  correct the error or omission, and the action may be a class

 2  action.  The court may require that one or more methods of

 3  correcting the error or omission be submitted to the unit

 4  owners to determine the most acceptable correction.  All unit

 5  owners, the association, and the mortgagees of a first

 6  mortgage of record must be joined as parties to the action.

 7  Service of process on unit owners may be by publication, but

 8  the plaintiff must furnish every unit owner not personally

 9  served with process with a copy of the petition and final

10  decree of the court by certified mail, return receipt

11  requested, at the unit owner's last known residence address.

12  If an action to determine whether the declaration or another

13  condominium document complies with the mandatory requirements

14  for the formation of a condominium is not brought within 3

15  years of the recording of the declaration, the declaration and

16  other documents shall be effective under this chapter to

17  create a condominium, as of the date the declaration was

18  recorded, whether or not the documents substantially comply

19  with the mandatory requirements of law.  However, both before

20  and after the expiration of this 3-year period, the circuit

21  court has jurisdiction to entertain a petition permitted under

22  this subsection for the correction of the documentation, and

23  other methods of amendment may be utilized to correct the

24  errors or omissions at any time.

25         (11)  Notwithstanding any provision to the contrary

26  contained in this section, any declaration recorded after

27  April 1, 1992, may not require the consent or joinder of some

28  or all mortgagees of units to or in amendments to the

29  declaration, unless the requirement is limited to amendments

30  materially affecting the rights or interests of the

31  mortgagees, or as otherwise required by the Federal National

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 1  Mortgage Association or the Federal Home Loan Mortgage

 2  Corporation, and unless the requirement provides that such

 3  consent may not be unreasonably withheld.  It shall be

 4  presumed that, except as to those matters described in

 5  subsections (4) and (8), amendments to the declaration do not

 6  materially affect the rights or interests of mortgagees.  In

 7  the event mortgagee consent is provided other than by properly

 8  recorded joinder, such consent shall be evidenced by affidavit

 9  of the association recorded in the public records of the

10  county where the declaration is recorded.

11         (12)(a)  With respect to an existing multicondominium

12  association, any amendment to change the fractional or

13  percentage share of liability for the common expenses of the

14  association and ownership of the common surplus of the

15  association must be approved by at least a majority of the

16  total voting interests of each condominium operated by the

17  association unless the declarations of all condominiums

18  operated by the association uniformly require approval by a

19  greater percentage of the voting interests of each

20  condominium.

21         (b)  Unless approval by a greater percentage of the

22  voting interests of an existing multicondominium association

23  is expressly required in the declaration of an existing

24  condominium, the declaration may be amended upon approval of

25  at least a majority of the total voting interests of each

26  condominium operated by the multicondominium association for

27  the purpose of:

28         1.  Setting forth in the declaration the formula

29  currently utilized, but not previously stated in the

30  declaration, for determining the percentage or fractional

31  shares of liability for the common expenses of the

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 1  multicondominium association and ownership of the common

 2  surplus of the multicondominium association.

 3         2.  Providing for the creation or enlargement of a

 4  multicondominium association by the merger or consolidation of

 5  two or more associations and changing the name of the

 6  association, as appropriate.

 7         (13)(a)  Unless expressly stated in the amendment, any

 8  amendment restricting unit owners' rights relating to the

 9  rental of units or keeping of pets shall apply only to unit

10  owners who purchase their unit after the effective date of

11  that amendment.

12         (b)  Notwithstanding any other provision of law, or of

13  the declaration or bylaws, an amendment that expressly

14  deprives current unit owners of any part of their rights

15  specified in paragraph (a) must be approved by at least a

16  majority of the voting interests. A declaration or an

17  amendment to a declaration may require approval by a greater

18  than super majority vote.

19         Section 2.  Section 718.5011, Florida Statutes, is

20  created to read:

21         718.5011  Ombudsman; appointment; oath; restrictions on

22  ombudsman and his or her employees.--

23         (1)  There is created an Office of the Condominium

24  Ombudsman. The office is, for administrative purposes, within

25  the Division of Florida Land Sales, Condominiums, and Mobile

26  Homes but shall remain independent of the division. The office

27  shall be a separate budget entity, funded by the Division of

28  Florida Land Sales, Condominiums, and Mobile Homes Trust Fund,

29  and the ombudsman shall be the agency head for all purposes.

30  The Department of Business and Professional Regulation shall

31  provide administrative support and service to the ombudsman,

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 1  but the ombudsman shall not be subject to the control,

 2  supervision, or direction of the department. The ombudsman

 3  shall develop a budget pursuant to chapter 216 which the

 4  department shall submit, without change, to the Governor along

 5  with the budget of the department.

 6         (2)  The Governor shall appoint the ombudsman. The

 7  ombudsman must be an attorney admitted to practice before the

 8  Florida Supreme Court and shall serve at the pleasure of the

 9  Governor. Vacancies in the office shall be filled in the same

10  manner as the original appointment. The ombudsman and

11  attorneys serving as staff shall take and subscribe to the

12  oath of office required of state officers by the State

13  Constitution. An officer or full-time employee of the

14  ombudsman's office may not actively engage in any other

15  business or profession; serve as the representative of any

16  political party or on the executive committee or other

17  governing body of any political party; serve as an executive,

18  officer, or employee of any political party, committee,

19  organization, or association; receive remuneration for

20  activities on behalf of any candidate for public office; or

21  engage in the solicitation of votes or other activities on

22  behalf of any candidate for public office. The ombudsman or

23  any employee of his or her office may not become a candidate

24  for election to public office unless he or she first resigns

25  from his or her office or employment.

26         Section 3.  Section 718.5012, Florida Statutes, is

27  created to read:

28         718.5012  Ombudsman; powers and duties.--The ombudsman

29  shall have such powers as are necessary to carry out the

30  duties of his or her office, including, but not limited to,

31  the following specific powers:

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 1         (1)  To have access to and use of all files and records

 2  of the division and of all condominium associations, by

 3  subpoena if necessary.

 4         (2)  To employ professional and clerical staff as

 5  necessary for the efficient operation of the Office of the

 6  Condominium Ombudsman, including experts and other technical

 7  personnel for participation in contested proceedings before

 8  the division when the best interests of the public will be

 9  served, and with the approval of the Office of the Governor,

10  to adopt and administer a uniform personnel job classification

11  and pay plan for such employees, and to enter into contracts.

12         (3)  To prepare and issue reports, recommendations, and

13  proposed orders to the division, the Governor, the Advisory

14  Council on Condominiums, the President of the Senate, the

15  Speaker of the House of Representatives, and the minority

16  leaders of the Senate and the House of Representatives on any

17  matter or subject within the jurisdiction of the division, and

18  to make such recommendations as he or she deems appropriate

19  for legislation relative to division procedures, rules,

20  jurisdiction, personnel, and functions.

21         (4)  To act as liaison between the division and unit

22  owners, and to assist any unit owner by providing information

23  and explaining how to file a complaint to be investigated by

24  the division. The ombudsman shall establish procedures for the

25  submittal and processing of complaints, including target dates

26  for concluding any investigation by the ombudsman.  The

27  ombudsman shall identify complaints that properly fall within

28  the jurisdiction of the division and require remedial action

29  and shall assist residents with promptly filing complaints

30  with the division. The ombudsman may recommend that the

31  division initiate enforcement proceedings. The department and

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 1  the ombudsman may submit findings of a criminal nature to the

 2  state attorney's office and work with that office to bring

 3  charges against the parties allegedly involved.

 4         (5)  To monitor, investigate, and review condominium

 5  elections and meetings, which includes, but is not limited to:

 6         (a)  Providing information and evidence to the division

 7  if a member of a condominium board attempts, engages in,

 8  conspires to engage in, or willfully and knowingly benefits

 9  from electoral fraud. If the information and evidence provided

10  is clear and convincing, the division shall order the member

11  removed from the board. The order of removal shall also

12  prohibit the person who is removed from running for election

13  to any office of a condominium board in the state for 4 years.

14  Any person who is so removed from office twice shall be barred

15  from serving on a condominium board in the state. Factual

16  findings forming the basis for an order of removal shall be

17  subject to judicial review only for abuse of discretion.

18         (b)  Working with the division to adopt rules governing

19  proceedings to remove a board member for electoral fraud.  The

20  division shall adopt rules governing such removal which shall,

21  at minimum, provide the accused board member with adequate

22  notice, opportunity to be heard, the right to confront and

23  cross-examine witnesses, the right to submit rebuttal

24  evidence, and the right to counsel.  Before the division

25  develops a rule proposal on removal, the division and the

26  office shall meet and confer regarding issues to be addressed

27  in the rule.  After the division develops a rule proposal on

28  removal, and before the proposal is finalized for publication

29  or other presentation to the public, the division shall

30  provide the office with a reasonable opportunity to review and

31  

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 1  provide written comments on the proposal and consider any

 2  comments the ombudsman provides.

 3  

 4  Neither this subsection nor rules adopted to implement it

 5  shall be construed to require the ombudsman to provide counsel

 6  or witnesses, or other assistance, at public expense.

 7         (6)  To make recommendations to the division for

 8  changes in rules and procedures for the filing, investigation,

 9  and resolution of complaints filed by unit owners,

10  associations and managers.

11         Section 4.  Section 718.5014, Florida Statutes, is

12  created to read:

13         718.5014  Ombudsman; location.--The ombudsman shall

14  maintain his or her principal office in Leon County on the

15  premises of the division or, if suitable space cannot be

16  provided there, at such other place convenient to the offices

17  of the division as will enable the ombudsman to expeditiously

18  carry out the duties and functions of his or her office.

19         Section 5.  Section 718.5015, Florida Statutes, is

20  created to read:

21         718.5015  Advisory council; membership functions.--

22         (1)  There is created the Advisory Council on

23  Condominiums. The council shall consist of seven appointed

24  members. Two members shall be appointed by the President of

25  the Senate, two members shall be appointed by the Speaker of

26  the House of Representatives, and three members shall be

27  appointed by the Governor. At least one member that is

28  appointed by the Governor shall represent timeshare

29  condominiums. Members shall be appointed to 2-year terms;

30  however, one of the persons initially appointed by the

31  Governor, by the President of the Senate, and by the Speaker

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 1  of the House of Representatives, shall be appointed to a

 2  1-year term. The director of the division shall serve as an ex

 3  officio nonvoting member. The Legislature intends that the

 4  persons appointed represent a cross-section of persons

 5  interested in condominium issues. The council shall be located

 6  within the division for administrative purposes. Members of

 7  the council shall serve without compensation, but are entitled

 8  to receive per diem and travel expenses pursuant to s. 112.061

 9  while on official business.

10         (2)  The functions of the advisory council shall be to:

11         (a)  Receive, from the public, input regarding issues

12  of concern with respect to condominiums and recommendations

13  for changes in the condominium law. The issues that the

14  council shall consider include, but are not limited to, the

15  rights and responsibilities of the unit owners in relation to

16  the rights and responsibilities of the association.

17         (b)  Review, evaluate, and advise the division

18  concerning revisions and adoption of rules affecting

19  condominiums.

20         (c)  Recommend improvements, if needed, in the

21  education programs offered by the division.

22         (3)  The council may elect a chair and vice chair and

23  such other officers as it may deem advisable. The council

24  shall meet at the call of its chair, at the request of a

25  majority of its membership, at the request of the division, or

26  at such times as it may prescribe. A majority of the members

27  of the council shall constitute a quorum. Council action may

28  be taken by vote of a majority of the voting members who are

29  present at a meeting where there is a quorum.

30         Section 6.  Section 718.504, Florida Statutes, is

31  amended to read:

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 1         718.504  Prospectus or offering circular; "Frequently

 2  Asked Questions and Answers."--Every developer of a

 3  residential condominium which contains more than 20

 4  residential units, or which is part of a group of residential

 5  condominiums which will be served by property to be used in

 6  common by unit owners of more than 20 residential units, shall

 7  prepare a prospectus or offering circular and file it with the

 8  Division of Florida Land Sales, Condominiums, and Mobile Homes

 9  prior to entering into an enforceable contract of purchase and

10  sale of any unit or lease of a unit for more than 5 years and

11  shall furnish a copy of the prospectus or offering circular to

12  each buyer.  In addition to the prospectus or offering

13  circular, any prospective each buyer from the developer or

14  current owner shall be furnished a separate document page

15  entitled "Frequently Asked Questions and Answers," which shall

16  be in accordance with a format approved by the division and a

17  copy of the financial information required by s. 718.111.

18  This document page shall, in readable language, inform

19  prospective purchasers regarding their voting rights and unit

20  use restrictions, including restrictions on the leasing of a

21  unit; shall indicate whether and in what amount the unit

22  owners or the association is obligated to pay rent or land use

23  fees for recreational or other commonly used facilities; shall

24  contain a statement identifying that amount of assessment

25  which, pursuant to the budget, would be levied upon each unit

26  type, exclusive of any special assessments, and which shall

27  further identify the basis upon which assessments are levied,

28  whether monthly, quarterly, or otherwise; shall state and

29  identify any court cases in which the association is currently

30  a party of record in which the association may face liability

31  of $25,000 or more in excess of $100,000; and which shall

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 1  further state whether membership in a recreational facilities

 2  association is mandatory, and if so, shall identify the fees

 3  currently charged per unit type.  The division shall by rule

 4  require such other disclosure as in its judgment will assist

 5  prospective purchasers. The prospectus or offering circular

 6  may include more than one condominium, although not all such

 7  units are being offered for sale as of the date of the

 8  prospectus or offering circular.  The prospectus or offering

 9  circular must contain the following information:

10         (1)  The front cover or the first page must contain

11  only:

12         (a)  The name of the condominium.

13         (b)  The following statements in conspicuous type:

14         1.  THIS PROSPECTUS (OFFERING CIRCULAR) CONTAINS

15  IMPORTANT MATTERS TO BE CONSIDERED IN ACQUIRING A CONDOMINIUM

16  UNIT.

17         2.  THE STATEMENTS CONTAINED HEREIN ARE ONLY SUMMARY IN

18  NATURE.  A PROSPECTIVE PURCHASER SHOULD REFER TO ALL

19  REFERENCES, ALL EXHIBITS HERETO, THE CONTRACT DOCUMENTS, AND

20  SALES MATERIALS.

21         3.  ORAL REPRESENTATIONS CANNOT BE RELIED UPON AS

22  CORRECTLY STATING THE REPRESENTATIONS OF THE DEVELOPER. REFER

23  TO THIS PROSPECTUS (OFFERING CIRCULAR) AND ITS EXHIBITS FOR

24  CORRECT REPRESENTATIONS.

25         (2)  Summary:  The next page must contain all

26  statements required to be in conspicuous type in the

27  prospectus or offering circular.

28         (3)  A separate index of the contents and exhibits of

29  the prospectus.

30         (4)  Beginning on the first page of the text (not

31  including the summary and index), a description of the

                                  16

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 1  condominium, including, but not limited to, the following

 2  information:

 3         (a)  Its name and location.

 4         (b)  A description of the condominium property,

 5  including, without limitation:

 6         1.  The number of buildings, the number of units in

 7  each building, the number of bathrooms and bedrooms in each

 8  unit, and the total number of units, if the condominium is not

 9  a phase condominium, or the maximum number of buildings that

10  may be contained within the condominium, the minimum and

11  maximum numbers of units in each building, the minimum and

12  maximum numbers of bathrooms and bedrooms that may be

13  contained in each unit, and the maximum number of units that

14  may be contained within the condominium, if the condominium is

15  a phase condominium.

16         2.  The page in the condominium documents where a copy

17  of the plot plan and survey of the condominium is located.

18         3.  The estimated latest date of completion of

19  constructing, finishing, and equipping.  In lieu of a date,

20  the description shall include a statement that the estimated

21  date of completion of the condominium is in the purchase

22  agreement and a reference to the article or paragraph

23  containing that information.

24         (c)  The maximum number of units that will use

25  facilities in common with the condominium.  If the maximum

26  number of units will vary, a description of the basis for

27  variation and the minimum amount of dollars per unit to be

28  spent for additional recreational facilities or enlargement of

29  such facilities.  If the addition or enlargement of facilities

30  will result in a material increase of a unit owner's

31  

                                  17

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 1  maintenance expense or rental expense, if any, the maximum

 2  increase and limitations thereon shall be stated.

 3         (5)(a)  A statement in conspicuous type describing

 4  whether the condominium is created and being sold as fee

 5  simple interests or as leasehold interests. If the condominium

 6  is created or being sold on a leasehold, the location of the

 7  lease in the disclosure materials shall be stated.

 8         (b)  If timeshare estates are or may be created with

 9  respect to any unit in the condominium, a statement in

10  conspicuous type stating that timeshare estates are created

11  and being sold in units in the condominium.

12         (6)  A description of the recreational and other

13  commonly used facilities that will be used only by unit owners

14  of the condominium, including, but not limited to, the

15  following:

16         (a)  Each room and its intended purposes, location,

17  approximate floor area, and capacity in numbers of people.

18         (b)  Each swimming pool, as to its general location,

19  approximate size and depths, approximate deck size and

20  capacity, and whether heated.

21         (c)  Additional facilities, as to the number of each

22  facility, its approximate location, approximate size, and

23  approximate capacity.

24         (d)  A general description of the items of personal

25  property and the approximate number of each item of personal

26  property that the developer is committing to furnish for each

27  room or other facility or, in the alternative, a

28  representation as to the minimum amount of expenditure that

29  will be made to purchase the personal property for the

30  facility.

31  

                                  18

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 1         (e)  The estimated date when each room or other

 2  facility will be available for use by the unit owners.

 3         (f)1.  An identification of each room or other facility

 4  to be used by unit owners that will not be owned by the unit

 5  owners or the association;

 6         2.  A reference to the location in the disclosure

 7  materials of the lease or other agreements providing for the

 8  use of those facilities; and

 9         3.  A description of the terms of the lease or other

10  agreements, including the length of the term; the rent

11  payable, directly or indirectly, by each unit owner, and the

12  total rent payable to the lessor, stated in monthly and annual

13  amounts for the entire term of the lease; and a description of

14  any option to purchase the property leased under any such

15  lease, including the time the option may be exercised, the

16  purchase price or how it is to be determined, the manner of

17  payment, and whether the option may be exercised for a unit

18  owner's share or only as to the entire leased property.

19         (g)  A statement as to whether the developer may

20  provide additional facilities not described above; their

21  general locations and types; improvements or changes that may

22  be made; the approximate dollar amount to be expended; and the

23  maximum additional common expense or cost to the individual

24  unit owners that may be charged during the first annual period

25  of operation of the modified or added facilities.

26  

27  Descriptions as to locations, areas, capacities, numbers,

28  volumes, or sizes may be stated as approximations or minimums.

29         (7)  A description of the recreational and other

30  facilities that will be used in common with other

31  condominiums, community associations, or planned developments

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 1  which require the payment of the maintenance and expenses of

 2  such facilities, either directly or indirectly, by the unit

 3  owners.  The description shall include, but not be limited to,

 4  the following:

 5         (a)  Each building and facility committed to be built.

 6         (b)  Facilities not committed to be built except under

 7  certain conditions, and a statement of those conditions or

 8  contingencies.

 9         (c)  As to each facility committed to be built, or

10  which will be committed to be built upon the happening of one

11  of the conditions in paragraph (b), a statement of whether it

12  will be owned by the unit owners having the use thereof or by

13  an association or other entity which will be controlled by

14  them, or others, and the location in the exhibits of the lease

15  or other document providing for use of those facilities.

16         (d)  The year in which each facility will be available

17  for use by the unit owners or, in the alternative, the maximum

18  number of unit owners in the project at the time each of all

19  of the facilities is committed to be completed.

20         (e)  A general description of the items of personal

21  property, and the approximate number of each item of personal

22  property, that the developer is committing to furnish for each

23  room or other facility or, in the alternative, a

24  representation as to the minimum amount of expenditure that

25  will be made to purchase the personal property for the

26  facility.

27         (f)  If there are leases, a description thereof,

28  including the length of the term, the rent payable, and a

29  description of any option to purchase.

30  

31  

                                  20

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 1  Descriptions shall include location, areas, capacities,

 2  numbers, volumes, or sizes and may be stated as approximations

 3  or minimums.

 4         (8)  Recreation lease or associated club membership:

 5         (a)  If any recreational facilities or other facilities

 6  offered by the developer and available to, or to be used by,

 7  unit owners are to be leased or have club membership

 8  associated, the following statement in conspicuous type shall

 9  be included:  THERE IS A RECREATIONAL FACILITIES LEASE

10  ASSOCIATED WITH THIS CONDOMINIUM; or, THERE IS A CLUB

11  MEMBERSHIP ASSOCIATED WITH THIS CONDOMINIUM.  There shall be a

12  reference to the location in the disclosure materials where

13  the recreation lease or club membership is described in

14  detail.

15         (b)  If it is mandatory that unit owners pay a fee,

16  rent, dues, or other charges under a recreational facilities

17  lease or club membership for the use of facilities, there

18  shall be in conspicuous type the applicable statement:

19         1.  MEMBERSHIP IN THE RECREATIONAL FACILITIES CLUB IS

20  MANDATORY FOR UNIT OWNERS; or

21         2.  UNIT OWNERS ARE REQUIRED, AS A CONDITION OF

22  OWNERSHIP, TO BE LESSEES UNDER THE RECREATIONAL FACILITIES

23  LEASE; or

24         3.  UNIT OWNERS ARE REQUIRED TO PAY THEIR SHARE OF THE

25  COSTS AND EXPENSES OF MAINTENANCE, MANAGEMENT, UPKEEP,

26  REPLACEMENT, RENT, AND FEES UNDER THE RECREATIONAL FACILITIES

27  LEASE (OR THE OTHER INSTRUMENTS PROVIDING THE FACILITIES); or

28         4.  A similar statement of the nature of the

29  organization or the manner in which the use rights are

30  created, and that unit owners are required to pay.

31  

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 1  Immediately following the applicable statement, the location

 2  in the disclosure materials where the development is described

 3  in detail shall be stated.

 4         (c)  If the developer, or any other person other than

 5  the unit owners and other persons having use rights in the

 6  facilities, reserves, or is entitled to receive, any rent,

 7  fee, or other payment for the use of the facilities, then

 8  there shall be the following statement in conspicuous type:

 9  THE UNIT OWNERS OR THE ASSOCIATION(S) MUST PAY RENT OR LAND

10  USE FEES FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES.

11  Immediately following this statement, the location in the

12  disclosure materials where the rent or land use fees are

13  described in detail shall be stated.

14         (d)  If, in any recreation format, whether leasehold,

15  club, or other, any person other than the association has the

16  right to a lien on the units to secure the payment of

17  assessments, rent, or other exactions, there shall appear a

18  statement in conspicuous type in substantially the following

19  form:

20         1.  THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

21  SECURE THE PAYMENT OF RENT AND OTHER EXACTIONS UNDER THE

22  RECREATION LEASE.  THE UNIT OWNER'S FAILURE TO MAKE THESE

23  PAYMENTS MAY RESULT IN FORECLOSURE OF THE LIEN; or

24         2.  THERE IS A LIEN OR LIEN RIGHT AGAINST EACH UNIT TO

25  SECURE THE PAYMENT OF ASSESSMENTS OR OTHER EXACTIONS COMING

26  DUE FOR THE USE, MAINTENANCE, UPKEEP, OR REPAIR OF THE

27  RECREATIONAL OR COMMONLY USED FACILITIES.  THE UNIT OWNER'S

28  FAILURE TO MAKE THESE PAYMENTS MAY RESULT IN FORECLOSURE OF

29  THE LIEN.

30  

31  

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 1  Immediately following the applicable statement, the location

 2  in the disclosure materials where the lien or lien right is

 3  described in detail shall be stated.

 4         (9)  If the developer or any other person has the right

 5  to increase or add to the recreational facilities at any time

 6  after the establishment of the condominium whose unit owners

 7  have use rights therein, without the consent of the unit

 8  owners or associations being required, there shall appear a

 9  statement in conspicuous type in substantially the following

10  form:  RECREATIONAL FACILITIES MAY BE EXPANDED OR ADDED

11  WITHOUT CONSENT OF UNIT OWNERS OR THE ASSOCIATION(S).

12  Immediately following this statement, the location in the

13  disclosure materials where such reserved rights are described

14  shall be stated.

15         (10)  A statement of whether the developer's plan

16  includes a program of leasing units rather than selling them,

17  or leasing units and selling them subject to such leases.  If

18  so, there shall be a description of the plan, including the

19  number and identification of the units and the provisions and

20  term of the proposed leases, and a statement in boldfaced type

21  that:  THE UNITS MAY BE TRANSFERRED SUBJECT TO A LEASE.

22         (11)  The arrangements for management of the

23  association and maintenance and operation of the condominium

24  property and of other property that will serve the unit owners

25  of the condominium property, and a description of the

26  management contract and all other contracts for these purposes

27  having a term in excess of 1 year, including the following:

28         (a)  The names of contracting parties.

29         (b)  The term of the contract.

30         (c)  The nature of the services included.

31  

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 1         (d)  The compensation, stated on a monthly and annual

 2  basis, and provisions for increases in the compensation.

 3         (e)  A reference to the volumes and pages of the

 4  condominium documents and of the exhibits containing copies of

 5  such contracts.

 6  

 7  Copies of all described contracts shall be attached as

 8  exhibits.  If there is a contract for the management of the

 9  condominium property, then a statement in conspicuous type in

10  substantially the following form shall appear, identifying the

11  proposed or existing contract manager:  THERE IS (IS TO BE) A

12  CONTRACT FOR THE MANAGEMENT OF THE CONDOMINIUM PROPERTY WITH

13  (NAME OF THE CONTRACT MANAGER).  Immediately following this

14  statement, the location in the disclosure materials of the

15  contract for management of the condominium property shall be

16  stated.

17         (12)  If the developer or any other person or persons

18  other than the unit owners has the right to retain control of

19  the board of administration of the association for a period of

20  time which can exceed 1 year after the closing of the sale of

21  a majority of the units in that condominium to persons other

22  than successors or alternate developers, then a statement in

23  conspicuous type in substantially the following form shall be

24  included:  THE DEVELOPER (OR OTHER PERSON) HAS THE RIGHT TO

25  RETAIN CONTROL OF THE ASSOCIATION AFTER A MAJORITY OF THE

26  UNITS HAVE BEEN SOLD. Immediately following this statement,

27  the location in the disclosure materials where this right to

28  control is described in detail shall be stated.

29         (13)  If there are any restrictions upon the sale,

30  transfer, conveyance, or leasing of a unit, then a statement

31  in conspicuous type in substantially the following form shall

                                  24

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 1  be included:  THE SALE, LEASE, OR TRANSFER OF UNITS IS

 2  RESTRICTED OR CONTROLLED.  Immediately following this

 3  statement, the location in the disclosure materials where the

 4  restriction, limitation, or control on the sale, lease, or

 5  transfer of units is described in detail shall be stated.

 6         (14)  If the condominium is part of a phase project,

 7  the following information shall be stated:

 8         (a)  A statement in conspicuous type in substantially

 9  the following form:  THIS IS A PHASE CONDOMINIUM.  ADDITIONAL

10  LAND AND UNITS MAY BE ADDED TO THIS CONDOMINIUM.  Immediately

11  following this statement, the location in the disclosure

12  materials where the phasing is described shall be stated.

13         (b)  A summary of the provisions of the declaration

14  which provide for the phasing.

15         (c)  A statement as to whether or not residential

16  buildings and units which are added to the condominium may be

17  substantially different from the residential buildings and

18  units originally in the condominium.  If the added residential

19  buildings and units may be substantially different, there

20  shall be a general description of the extent to which such

21  added residential buildings and units may differ, and a

22  statement in conspicuous type in substantially the following

23  form shall be included: BUILDINGS AND UNITS WHICH ARE ADDED TO

24  THE CONDOMINIUM MAY BE SUBSTANTIALLY DIFFERENT FROM THE OTHER

25  BUILDINGS AND UNITS IN THE CONDOMINIUM.  Immediately following

26  this statement, the location in the disclosure materials where

27  the extent to which added residential buildings and units may

28  substantially differ is described shall be stated.

29         (d)  A statement of the maximum number of buildings

30  containing units, the maximum and minimum numbers of units in

31  each building, the maximum number of units, and the minimum

                                  25

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 1  and maximum square footage of the units that may be contained

 2  within each parcel of land which may be added to the

 3  condominium.

 4         (15)  If a condominium created on or after July 1,

 5  2000, is or may become part of a multicondominium, the

 6  following information must be provided:

 7         (a)  A statement in conspicuous type in substantially

 8  the following form:  THIS CONDOMINIUM IS (MAY BE) PART OF A

 9  MULTICONDOMINIUM DEVELOPMENT IN WHICH OTHER CONDOMINIUMS WILL

10  (MAY) BE OPERATED BY THE SAME ASSOCIATION. Immediately

11  following this statement, the location in the prospectus or

12  offering circular and its exhibits where the multicondominium

13  aspects of the offering are described must be stated.

14         (b)  A summary of the provisions in the declaration,

15  articles of incorporation, and bylaws which establish and

16  provide for the operation of the multicondominium, including a

17  statement as to whether unit owners in the condominium will

18  have the right to use recreational or other facilities located

19  or planned to be located in other condominiums operated by the

20  same association, and the manner of sharing the common

21  expenses related to such facilities.

22         (c)  A statement of the minimum and maximum number of

23  condominiums, and the minimum and maximum number of units in

24  each of those condominiums, which will or may be operated by

25  the association, and the latest date by which the exact number

26  will be finally determined.

27         (d)  A statement as to whether any of the condominiums

28  in the multicondominium may include units intended to be used

29  for nonresidential purposes and the purpose or purposes

30  permitted for such use.

31  

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 1         (e)  A general description of the location and

 2  approximate acreage of any land on which any additional

 3  condominiums to be operated by the association may be located.

 4         (16)  If the condominium is created by conversion of

 5  existing improvements, the following information shall be

 6  stated:

 7         (a)  The information required by s. 718.616.

 8         (b)  A caveat that there are no express warranties

 9  unless they are stated in writing by the developer.

10         (17)  A summary of the restrictions, if any, to be

11  imposed on units concerning the use of any of the condominium

12  property, including statements as to whether there are

13  restrictions upon children and pets, and reference to the

14  volumes and pages of the condominium documents where such

15  restrictions are found, or if such restrictions are contained

16  elsewhere, then a copy of the documents containing the

17  restrictions shall be attached as an exhibit.

18         (18)  If there is any land that is offered by the

19  developer for use by the unit owners and that is neither owned

20  by them nor leased to them, the association, or any entity

21  controlled by unit owners and other persons having the use

22  rights to such land, a statement shall be made as to how such

23  land will serve the condominium.  If any part of such land

24  will serve the condominium, the statement shall describe the

25  land and the nature and term of service, and the declaration

26  or other instrument creating such servitude shall be included

27  as an exhibit.

28         (19)  The manner in which utility and other services,

29  including, but not limited to, sewage and waste disposal,

30  water supply, and storm drainage, will be provided and the

31  person or entity furnishing them.

                                  27

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 1         (20)  An explanation of the manner in which the

 2  apportionment of common expenses and ownership of the common

 3  elements has been determined.

 4         (21)  An estimated operating budget for the condominium

 5  and the association, and a schedule of the unit owner's

 6  expenses shall be attached as an exhibit and shall contain the

 7  following information:

 8         (a)  The estimated monthly and annual expenses of the

 9  condominium and the association that are collected from unit

10  owners by assessments.

11         (b)  The estimated monthly and annual expenses of each

12  unit owner for a unit, other than common expenses paid by all

13  unit owners, payable by the unit owner to persons or entities

14  other than the association, as well as to the association,

15  including fees assessed pursuant to s. 718.113(1) for

16  maintenance of limited common elements where such costs are

17  shared only by those entitled to use the limited common

18  element, and the total estimated monthly and annual expense.

19  There may be excluded from this estimate expenses which are

20  not provided for or contemplated by the condominium documents,

21  including, but not limited to, the costs of private telephone;

22  maintenance of the interior of condominium units, which is not

23  the obligation of the association; maid or janitorial services

24  privately contracted for by the unit owners; utility bills

25  billed directly to each unit owner for utility services to his

26  or her unit; insurance premiums other than those incurred for

27  policies obtained by the condominium; and similar personal

28  expenses of the unit owner. A unit owner's estimated payments

29  for assessments shall also be stated in the estimated amounts

30  for the times when they will be due.

31  

                                  28

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 1         (c)  The estimated items of expenses of the condominium

 2  and the association, except as excluded under paragraph (b),

 3  including, but not limited to, the following items, which

 4  shall be stated either as an association expense collectible

 5  by assessments or as unit owners' expenses payable to persons

 6  other than the association:

 7         1.  Expenses for the association and condominium:

 8         a.  Administration of the association.

 9         b.  Management fees.

10         c.  Maintenance.

11         d.  Rent for recreational and other commonly used

12  facilities.

13         e.  Taxes upon association property.

14         f.  Taxes upon leased areas.

15         g.  Insurance.

16         h.  Security provisions.

17         i.  Other expenses.

18         j.  Operating capital.

19         k.  Reserves.

20         l.  Fees payable to the division.

21         2.  Expenses for a unit owner:

22         a.  Rent for the unit, if subject to a lease.

23         b.  Rent payable by the unit owner directly to the

24  lessor or agent under any recreational lease or lease for the

25  use of commonly used facilities, which use and payment is a

26  mandatory condition of ownership and is not included in the

27  common expense or assessments for common maintenance paid by

28  the unit owners to the association.

29         (d)  The estimated amounts shall be stated for a period

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

31  prior to the time unit owners other than the developer elect a

                                  29

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 1  majority of the board of administration and the period after

 2  that date.

 3         (22)  A schedule of estimated closing expenses to be

 4  paid by a buyer or lessee of a unit and a statement of whether

 5  title opinion or title insurance policy is available to the

 6  buyer and, if so, at whose expense.

 7         (23)  The identity of the developer and the chief

 8  operating officer or principal directing the creation and sale

 9  of the condominium and a statement of its and his or her

10  experience in this field.

11         (24)  Copies of the following, to the extent they are

12  applicable, shall be included as exhibits:

13         (a)  The declaration of condominium, or the proposed

14  declaration if the declaration has not been recorded.

15         (b)  The articles of incorporation creating the

16  association.

17         (c)  The bylaws of the association.

18         (d)  The ground lease or other underlying lease of the

19  condominium.

20         (e)  The management agreement and all maintenance and

21  other contracts for management of the association and

22  operation of the condominium and facilities used by the unit

23  owners having a service term in excess of 1 year.

24         (f)  The estimated operating budget for the condominium

25  and the required schedule of unit owners' expenses.

26         (g)  A copy of the floor plan of the unit and the plot

27  plan showing the location of the residential buildings and the

28  recreation and other common areas.

29         (h)  The lease of recreational and other facilities

30  that will be used only by unit owners of the subject

31  condominium.

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 1         (i)  The lease of facilities used by owners and others.

 2         (j)  The form of unit lease, if the offer is of a

 3  leasehold.

 4         (k)  A declaration of servitude of properties serving

 5  the condominium but not owned by unit owners or leased to them

 6  or the association.

 7         (l)  The statement of condition of the existing

 8  building or buildings, if the offering is of units in an

 9  operation being converted to condominium ownership.

10         (m)  The statement of inspection for termite damage and

11  treatment of the existing improvements, if the condominium is

12  a conversion.

13         (n)  The form of agreement for sale or lease of units.

14         (o)  A copy of the agreement for escrow of payments

15  made to the developer prior to closing.

16         (p)  A copy of the documents containing any

17  restrictions on use of the property required by subsection

18  (17).

19         (25)  Any prospectus or offering circular complying,

20  prior to the effective date of this act, with the provisions

21  of former ss. 711.69 and 711.802 may continue to be used

22  without amendment or may be amended to comply with the

23  provisions of this chapter.

24         (26)  A brief narrative description of the location and

25  effect of all existing and intended easements located or to be

26  located on the condominium property other than those described

27  in the declaration.

28         (27)  If the developer is required by state or local

29  authorities to obtain acceptance or approval of any dock or

30  marina facilities intended to serve the condominium, a copy of

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

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 1  with the division under s. 718.502(1) or a statement that such

 2  acceptance or approval has not been acquired or received.

 3         (28)  Evidence demonstrating that the developer has an

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

 5  which the condominium is to be developed.

 6         Section 7.  The Department of Business and Professional

 7  Regulation may continue to prosecute any existing judicial or

 8  administrative legal proceedings that are in existence on the

 9  effective date of this act.

10         Section 8.  This act shall take effect upon becoming a

11  law.

12  

13          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
14                            CS/SB 2498

15                                 

16  Removes assignment of parking places from the list of actions
    that apply to unit owners who purchase after effective date of
17  amendment.

18  Clarifies that the ombudsman provides information and explains
    the complaint filing process.
19  

20  

21  

22  

23  

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CODING: Words stricken are deletions; words underlined are additions.