HB 0589CS

CHAMBER ACTION



1The Committee on Business Regulation recommends the following:
2
3     Committee Substitute
4     Remove the entire bill and insert:
5
A bill to be entitled
6An act relating to residential communities; amending s.
7720.301, F.S.; providing applicability of certain
8definitions; amending s. 720.302, F.S., to conform;
9creating s. 720.401, F.S.; authorizing certain parcel
10owners to revive a declaration of covenants that has
11ceased to govern a community; creating s. 720.402, F.S.;
12providing eligibility requirements to revive such
13declarations; creating s. 720.403, F.S.; requiring the
14formation of an organizing committee for certain purposes;
15providing for membership; providing duties and
16responsibilities of the organizing committee; directing
17the organizing committee to prepare certain documents;
18providing for the contents of the documents; providing for
19a vote of the eligible parcel owners; creating s. 720.404,
20F.S.; directing the organizing committee to submit certain
21documents to the Department of Community Affairs within a
22specified time period; specifying the content of the
23submission; requiring the department to approve or
24disapprove the request to revive the declaration of
25covenants within a specified time period; creating s.
26720.405, F.S.; requiring the organizing committee to file
27and record certain documents within a specified time
28period; directing the organizing committee to provide all
29affected parcel owners with a copy of the documents filed
30and recorded; providing effect of revived declarations;
31providing an effective date.
32
33Be It Enacted by the Legislature of the State of Florida:
34
35     Section 1.  Section 720.301, Florida Statutes, is amended
36to read:
37     720.301  Definitions.--As used in this chapter ss. 720.301-
38720.312, the term:
39     (1)  "Assessment" or "amenity fee" means a sum or sums of
40money payable to the association, to the developer or other
41owner of common areas, or to recreational facilities and other
42properties serving the parcels by the owners of one or more
43parcels as authorized in the governing documents, which if not
44paid by the owner of a parcel, can result in a lien against the
45parcel.
46     (2)  "Common area" means all real property within a
47community which is owned or leased by an association or
48dedicated for use or maintenance by the association or its
49members, including, regardless of whether title has been
50conveyed to the association:
51     (a)  Real property the use of which is dedicated to the
52association or its members by a recorded plat; or
53     (b)  Real property committed by a declaration of covenants
54to be leased or conveyed to the association.
55     (3)  "Community" means the real property that is or will be
56subject to a declaration of covenants which is recorded in the
57county where the property is located.  The term "community"
58includes all real property, including undeveloped phases, that
59is or was the subject of a development-of-regional-impact
60development order, together with any approved modification
61thereto.
62     (4)  "Declaration of covenants," or "declaration," means a
63recorded written instrument in the nature of covenants running
64with the land which subjects the land comprising the community
65to the jurisdiction and control of an association or
66associations in which the owners of the parcels, or their
67association representatives, must be members.
68     (5)  "Developer" means a person or entity that:
69     (a)  Creates the community served by the association; or
70     (b)  Succeeds to the rights and liabilities of the person
71or entity that created the community served by the association,
72provided that such is evidenced in writing.
73     (6)  "Governing documents" means:
74     (a)  The recorded declaration of covenants for a community,
75and all duly adopted and recorded amendments, supplements, and
76recorded exhibits thereto; and
77     (b)  The articles of incorporation and bylaws of the
78homeowners' association, and any duly adopted amendments
79thereto.
80     (7)  "Homeowners' association" or "association" means a
81Florida corporation responsible for the operation of a community
82or a mobile home subdivision in which the voting membership is
83made up of parcel owners or their agents, or a combination
84thereof, and in which membership is a mandatory condition of
85parcel ownership, and which is authorized to impose assessments
86that, if unpaid, may become a lien on the parcel.  The term
87"homeowners' association" does not include a community
88development district or other similar special taxing district
89created pursuant to statute.
90     (8)  "Member" means a member of an association, and may
91include, but is not limited to, a parcel owner or an association
92representing parcel owners or a combination thereof.
93     (9)  "Parcel" means a platted or unplatted lot, tract,
94unit, or other subdivision of real property within a community,
95as described in the declaration:
96     (a)  Which is capable of separate conveyance; and
97     (b)  Of which the parcel owner, or an association in which
98the parcel owner must be a member, is obligated:
99     1.  By the governing documents to be a member of an
100association that serves the community; and
101     2.  To pay to the homeowners' association assessments that,
102if not paid, may result in a lien.
103     (10)  "Parcel owner" means the record owner of legal title
104to a parcel.
105     (11)  "Voting interest" means the voting rights distributed
106to the members of the homeowners' association, pursuant to the
107governing documents.
108     Section 2.  Subsections (1), (3), and (4) of section
109720.302, Florida Statutes, are amended to read:
110     720.302  Purposes, scope, and application.--
111     (1)  The purposes of this chapter ss. 720.301-720.312 are
112to give statutory recognition to corporations not for profit
113that operate residential communities in this state, to provide
114procedures for operating homeowners' associations, and to
115protect the rights of association members without unduly
116impairing the ability of such associations to perform their
117functions.
118     (3)  This chapter does Sections 720.301-720.312 do not
119apply to:
120     (a)  A community that is composed of property primarily
121intended for commercial, industrial, or other nonresidential
122use; or
123     (b)  The commercial or industrial parcels in a community
124that contains both residential parcels and parcels intended for
125commercial or industrial use.
126     (4)  This chapter does Sections 720.301-720.312 do not
127apply to any association that is subject to regulation under
128chapter 718, chapter 719, or chapter 721; or to any nonmandatory
129association formed under chapter 723.
130     Section 3.  Section 720.401, Florida Statutes, is created
131to read:
132     720.401  Preservation of residential communities; revival
133of declaration of covenants.--
134     (1)  Consistent with required and optional elements of
135local comprehensive plans and other applicable provisions of the
136Local Government Comprehensive Planning and Land Development
137Regulation Act, homeowners are encouraged to preserve existing
138residential communities, promote available and affordable
139housing, protect structural and aesthetic elements of their
140residential community, and, as applicable, maintain roads and
141streets, easements, water and sewer systems, utilities, drainage
142improvements, conservation and open areas, recreational
143amenities, and other infrastructure and common areas that serve
144and support the residential community by the revival of a
145previous declaration of covenants and other governing documents
146that may have ceased to govern some or all parcels in the
147community.
148     (2)  In order to preserve a residential community and the
149associated infrastructure and common areas for the purposes
150described in this section, parcel owners in a community that was
151previously subject to a declaration of covenants that has ceased
152to govern some or all parcels in the community may revive the
153declaration and the homeowners' association for the community
154upon approval by the parcel owners to be governed thereby as
155provided in this act, and upon approval of the declaration and
156the other governing documents for the association by the
157Department of Community Affairs in a manner consistent with this
158act.
159     Section 4.  Section 720.402, Florida Statutes, is created
160to read:
161     720.402  Eligible residential communities; requirements for
162revival of declaration.--Parcel owners in a community shall be
163eligible to seek approval from the Department of Community
164Affairs to revive a declaration of covenants under this act if
165all of the following requirements are met:
166     (1)  All parcels to be governed by the revived declaration
167must have been once governed by a previous declaration that has
168ceased to govern some or all of the parcels in the community.
169     (2)  The revived declaration must be approved in the manner
170provided in s. 720.403(6).
171     (3)  The revived declaration may not contain covenants that
172are more restrictive on the parcel owners than the covenants
173contained in the previous declaration, except that the
174declaration may:
175     (a)  Have an effective term of longer duration than the
176term of the previous declaration.
177     (b)  Omit restrictions contained in the previous
178declaration.
179     (c)  Govern fewer than all of the parcels governed by the
180previous declaration.
181     (d)  Provide for amendments to the declaration and other
182governing documents.
183     (e)  Contain provisions required by this chapter for new
184declarations that were not contained in the previous
185declaration.
186     Section 5.  Section 720.403, Florida Statutes, is created
187to read:
188     720.403  Organizing committee; parcel owner approval.--
189     (1)  The proposal to revive a declaration of covenants and
190a homeowners' association for a community under the terms of
191this act shall be initiated by an organizing committee
192consisting of not fewer than three parcel owners located in the
193community that is proposed to be governed by the revived
194declaration. The name, address, and telephone number of each
195member of the organizing committee must be included in any
196notice or other document provided by the committee to parcel
197owners to be affected by the proposed revived declaration.
198     (2)  The organizing committee shall prepare or cause to be
199prepared the complete text of the proposed revived declaration
200of covenants to be submitted to the parcel owners for approval.
201The proposed revived documents must identify each parcel that is
202to be subject to the governing documents by its legal
203description and by the name of the parcel owner or the person in
204whose name the parcel is assessed on the last completed tax
205assessment roll of the county at the time when the proposed
206revived declaration is submitted for approval by the parcel
207owners.
208     (3)  The organizing committee shall prepare the full text
209of the proposed articles of incorporation and bylaws of the
210revived homeowners' association to be submitted to the parcel
211owners for approval, unless the association is then an existing
212corporation, in which case the organizing committee shall
213prepare the existing articles of incorporation and bylaws to be
214submitted to the parcel owners.
215     (4)  The proposed revived declaration and other governing
216documents for the community shall:
217     (a)  Provide that the voting interest of each parcel owner
218shall be the same as the voting interest of the parcel owner
219under the previous governing documents.
220     (b)  Provide that the proportional-assessment obligations
221of each parcel owner shall be the same as proportional-
222assessment obligations of the parcel owner under the previous
223governing documents.
224     (c)  Contain the same respective amendment provisions as
225the previous governing documents or, if there were no amendment
226provisions in the previous governing document, amendment
227provisions that require approval of not less than two-thirds of
228the affected parcel owners.
229     (d)  Contain no covenants that are more restrictive on the
230affected parcel owners than the covenants contained in the
231previous governing documents, except as permitted under s.
232720.402(3).
233     (e)  Comply with the other requirements for a declaration
234of covenants and other governing documents as specified in this
235chapter.
236     (5)  A copy of the complete text of the proposed revived
237declaration of covenants, the proposed new or existing articles
238of incorporation and bylaws of the homeowners' association, and
239a graphic depiction of the property to be governed by the
240revived declaration shall be presented to all of the affected
241parcel owners by mail or hand delivery not fewer than 14 days
242before the time that the consent of the affected parcel owners
243to the proposed governing documents is sought by the organizing
244committee.
245     (6)  A majority of the affected parcel owners must agree in
246writing to the revived declaration of covenants and governing
247documents of the homeowners' association or approve the revived
248declaration and governing documents by a vote at a meeting of
249the affected parcel owners noticed and conducted in the manner
250prescribed by s. 720.306. Proof of notice of the meeting to all
251affected parcel owners and the minutes of the meeting recording
252the votes of the parcel owners shall be certified by a court
253reporter or an attorney licensed to practice in this state.
254     Section 6.  Section 720.404, Florida Statutes, is created
255to read:
256     720.404  Department of Community Affairs; submission;
257review and determination.--
258     (1)  No later than 60 days after the date the proposed
259revived declaration and other governing documents are approved
260by the affected parcel owners, the organizing committee or its
261designee must submit the proposed revived governing documents
262and supporting materials to the Department of Community Affairs
263to review and determine whether to approve or disapprove the
264proposal to preserve the residential community. The submission
265to the department must include:
266     (a)  The full text of the proposed revived declaration of
267covenants and articles of incorporation and bylaws of the
268homeowners' association.
269     (b)  A verified copy of the previous declaration of
270covenants and other previous governing documents for the
271community, including any amendments thereto.
272     (c)  The legal description of each parcel to be subject to
273the revived declaration and other governing documents and a plat
274or other graphic depiction of the affected properties in the
275community.
276     (d)  A verified copy of the written consents of the
277requisite number of the affected parcel owners approving the
278revived declaration and other governing documents or, if
279approval was obtained by a vote at a meeting of affected parcel
280owners, verified copies of the notice of the meeting,
281attendance, and voting results.
282     (e)  An affidavit by a current or former officer of the
283homeowners' association or by a member of the organizing
284committee verifying that the requirements for the revived
285declaration set forth in s. 720.402 have been satisfied.
286     (f)  Such other documentation that the organizing committee
287believes is supportive of the policy of preserving the
288residential community and operating, managing, and maintaining
289the infrastructure, aesthetic character, and common areas
290serving the residential community.
291     (2)  No later than 60 days after receiving the submission,
292the department must determine whether the proposed revived
293declaration of covenants and other governing documents comply
294with the requirements of this act.
295     (a)  If the department determines that the proposed revived
296declaration and other governing documents comply with this act
297and have been approved by the parcel owners as required by this
298act, the department shall notify the organizing committee in
299writing of its approval.
300     (b)  If the department determines that the proposed revived
301declaration and other governing documents do not comply with
302this act or have not been approved as required by this act, the
303department shall notify the organizing committee in writing that
304it does not approve the governing documents and shall state the
305reasons for the disapproval.
306     Section 7.  Section 720.405, Florida Statutes, is created
307to read:
308     720.405  Recording; notice of recording; applicability and
309effective date.--
310     (1)  No later than 30 days after receiving approval from
311the department, the organizing committee shall file the articles
312of incorporation of the  homeowners' association with the
313Division of Corporations of the Department of State if the
314articles have not been previously filed with the division.
315     (2)  No later than 30 days after receiving approval from
316the division, the president and secretary of the  homeowners'
317association shall execute the revived declaration and other
318governing documents approved by the department in the name of
319the  homeowners' association and have the documents recorded
320with the clerk of the circuit court in the county where the
321affected parcels are located.
322     (3)  The recorded documents shall include the full text of
323the approved declaration of covenants, the articles of
324incorporation and bylaws of the homeowners' association, the
325letter of approval by the department, and the legal description
326of each affected parcel.
327     (4)  Immediately after recording the documents, a complete
328copy of all of the approved recorded documents must be mailed or
329hand-delivered to the owner of each affected parcel. The revived
330declaration and other governing documents shall be effective
331upon recordation in the public records with respect to each
332affected parcel subject thereto, regardless of whether the
333particular parcel owner approved the revived declaration. Upon
334recordation, the revived declaration shall replace and supersede
335the previous declaration with respect to all affected parcels
336then governed by the previous declaration and shall have the
337same record priority as the superseded previous declaration.
338With respect to any affected parcels that had ceased to be
339governed by the previous declaration as of the recording date,
340the revived declaration may not have retroactive effect with
341respect to the parcel and shall take priority with respect to
342the parcel as of the recording date.
343     Section 8.  This act shall take effect July 1, 2004.


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