Senate Bill sb2062c1

CODING: Words stricken are deletions; words underlined are additions.
    Florida Senate - 2005                           CS for SB 2062

    By the Committee on Regulated Industries; and Senator Campbell





    580-2263-05

  1                      A bill to be entitled

  2         An act relating to community associations;

  3         creating s. 718.1265, F.S.; authorizing a

  4         condominium association board to exercise

  5         specified emergency powers during an emergency;

  6         providing limitations; amending s. 718.112,

  7         F.S.; providing for a condominium association

  8         to establish casualty reserve accounts;

  9         extending a period in which condominium common

10         areas do not have to be retrofitted with

11         sprinkler systems; creating s. 712.11, F.S.;

12         providing for the revival of certain

13         declarations that have been extinguished;

14         providing an effective date.

15  

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

17  

18         Section 1.  Section 718.1265, Florida Statutes, is

19  created to read:

20         718.1265  Association emergency powers.--

21         (1)  To the extent allowed by law and unless

22  specifically prohibited by the declaration, the articles, or

23  the bylaws of an association, the association may, in response

24  to a state of emergency declared in accordance with s.

25  252.36(2) or a mandatory evacuation order issued by civil or

26  law enforcement authorities for the locale in which the

27  condominium is located, exercise the power to:

28         (a)  Conduct board meetings and membership meetings

29  with notice given as is practicable. Such notice may be given

30  in any practicable manner, including publication, radio, U.S.

31  Mail, the Internet, public service announcements, conspicuous

                                  1

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1  posting on the condominium property, or some other means the

 2  board deems reasonable under the circumstances. Notice of

 3  board decisions also may be communicated as provided in this

 4  paragraph;

 5         (b)  Cancel and reschedule any association meeting;

 6         (c)  Name as assistant officers persons who are not

 7  directors, which assistant officers shall have the same

 8  authority as the executive officers to whom they are assistant

 9  during the state of emergency, to accommodate the incapacity

10  or unavailability of any officer of the association;

11         (d)  Relocate the association's principal office or

12  designate alternative principal offices;

13         (e)  Enter into agreements with local counties or

14  municipalities to assist with debris removal.

15         (2)  Consistent with the standards of s. 617.0830, the

16  association may:

17         (a)  Implement a disaster plan, including, but not

18  limited to, shutting down or off elevators, electricity,

19  water, sewer, security systems, or air conditioners;

20         (b)  Declare any portion of the condominium property

21  unavailable for entry or occupancy by unit owners, family

22  members, tenants, guests, agents, or invitees in order to

23  protect the health, safety, or welfare of such persons;

24         (c)  Order the evacuation of the condominium property

25  in the event of a mandatory evacuation order in the locale in

26  which the condominium is located. If any unit owner or other

27  occupant of a condominium fails or refuses to evacuate the

28  condominium property upon such an order, the association is

29  immune from liability for injury to persons or property

30  arising from such a refusal;

31  

                                  2

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1         (d)  Determine whether the condominium property can be

 2  safely inhabited or occupied. However, such determination is

 3  not conclusive as to any determination of habitability

 4  pursuant to the declaration.

 5         (3)  To the extent allowed by law and unless

 6  specifically prohibited by the declaration, the articles, or

 7  the bylaws of an association, and consistent with the

 8  provisions of s. 617.0830, the association may, in response to

 9  damage caused by an event for which a state of emergency is

10  declared in accordance with s. 252.36(2) in the locale in

11  which the condominium is located, exercise the power to:

12         (a)  Mitigate further damage, including taking action

13  to prevent or mitigate the spread of fungus, including but not

14  limited to mold, or mildew, by removing and disposing of wet

15  drywall, insulation, carpet, cabinetry, or other fixtures,

16  even if the unit owner is obligated by the declaration or law

17  to insure or replace those fixtures and to remove personal

18  property from a unit;

19         (b)  Contract, on behalf of unit owners and with unit

20  owners being responsible for reimbursing the association, for

21  items or services for which the owners are otherwise

22  responsible, but which may be necessary to prevent further

23  damage. Without limitation, such items or services may include

24  the drying of units, boarding of broken windows or doors, and

25  replacement of damaged air conditioners or air handlers to

26  provide climate control in the units or other portions of the

27  property;

28         (c)  Levy special assessments; or

29         (d)  Borrow money and pledge association assets as

30  collateral to fund emergency repairs and carry out the duties

31  of the association when operating funds are insufficient,

                                  3

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1  without unit owner approval. This paragraph does not limit the

 2  general authority of the association to borrow money, which

 3  may be exercised by the board pursuant to the declaration,

 4  articles, or bylaws.

 5         (4)  Use of the special powers of the association

 6  authorized under this section is limited to those times and

 7  circumstances in which such use is reasonably necessary to

 8  protect the health, safety, and welfare of the association,

 9  the unit owners, their family members, tenants, guests,

10  agents, or invitees and reasonably necessary to mitigate

11  further damage and make emergency repairs.

12         Section 2.  Paragraphs (f) and (l) of subsection (2) of

13  section 718.112, Florida Statutes, are amended to read:

14         718.112  Bylaws.--

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

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

17  include the following:

18         (f)  Annual budget.--

19         1.  The proposed annual budget of common expenses shall

20  be detailed and shall show the amounts budgeted by accounts

21  and expense classifications, including, if applicable, but not

22  limited to, those expenses listed in s. 718.504(21). A

23  multicondominium association shall adopt a separate budget of

24  common expenses for each condominium the association operates

25  and shall adopt a separate budget of common expenses for the

26  association. In addition, if the association maintains limited

27  common elements with the cost to be shared only by those

28  entitled to use the limited common elements as provided for in

29  s. 718.113(1), the budget or a schedule attached thereto shall

30  show amounts budgeted therefor. If, after turnover of control

31  of the association to the unit owners, any of the expenses

                                  4

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1  listed in s. 718.504(21) are not applicable, they need not be

 2  listed.

 3         2.  In addition to annual operating expenses, the

 4  budget shall include reserve accounts for capital expenditures

 5  and deferred maintenance. These accounts shall include, but

 6  are not limited to, roof replacement, building painting, and

 7  pavement resurfacing, regardless of the amount of deferred

 8  maintenance expense or replacement cost, and for any other

 9  item for which the deferred maintenance expense or replacement

10  cost exceeds $10,000. The amount to be reserved shall be

11  computed by means of a formula which is based upon estimated

12  remaining useful life and estimated replacement cost or

13  deferred maintenance expense of each reserve item.  The

14  association may adjust replacement reserve assessments

15  annually to take into account any changes in estimates or

16  extension of the useful life of a reserve item caused by

17  deferred maintenance. This subsection does not apply to an

18  adopted budget in which the members of an association have

19  determined, by a majority vote at a duly called meeting of the

20  association, to provide no reserves or less reserves than

21  required by this subsection. However, prior to turnover of

22  control of an association by a developer to unit owners other

23  than a developer pursuant to s. 718.301, the developer may

24  vote to waive the reserves or reduce the funding of reserves

25  for the first 2 fiscal years of the association's operation,

26  beginning with the fiscal year in which the initial

27  declaration is recorded, after which time reserves may be

28  waived or reduced only upon the vote of a majority of all

29  nondeveloper voting interests voting in person or by limited

30  proxy at a duly called meeting of the association. If a

31  meeting of the unit owners has been called to determine

                                  5

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1  whether to waive or reduce the funding of reserves, and no

 2  such result is achieved or a quorum is not attained, the

 3  reserves as included in the budget shall go into effect. After

 4  the turnover, the developer may vote its voting interest to

 5  waive or reduce the funding of reserves.

 6         3.  Reserve funds and any interest accruing thereon

 7  shall remain in the reserve account or accounts, and shall be

 8  used only for authorized reserve expenditures unless their use

 9  for other purposes is approved in advance by a majority vote

10  at a duly called meeting of the association. Prior to turnover

11  of control of an association by a developer to unit owners

12  other than the developer pursuant to s. 718.301, the

13  developer-controlled association shall not vote to use

14  reserves for purposes other than that for which they were

15  intended without the approval of a majority of all

16  nondeveloper voting interests, voting in person or by limited

17  proxy at a duly called meeting of the association.

18         4.  The only voting interests which are eligible to

19  vote on questions that involve waiving or reducing the funding

20  of reserves, or using existing reserve funds for purposes

21  other than purposes for which the reserves were intended, are

22  the voting interests of the units subject to assessment to

23  fund the reserves in question.

24         5.  In addition to reserves required by this paragraph,

25  the association may establish a reserve category for uninsured

26  casualty losses, based upon a formula the board considers

27  appropriate.

28         (l)  Certificate of compliance.--There shall be a

29  provision that a certificate of compliance from a licensed

30  electrical contractor or electrician may be accepted by the

31  association's board as evidence of compliance of the

                                  6

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1  condominium units with the applicable fire and life safety

 2  code. Notwithstanding the provisions of chapter 633 or of any

 3  other code, statute, ordinance, administrative rule, or

 4  regulation, or any interpretation of the foregoing, an

 5  association, condominium, or unit owner is not obligated to

 6  retrofit the common elements or units of a residential

 7  condominium with a fire sprinkler system or other engineered

 8  lifesafety system in a building that has been certified for

 9  occupancy by the applicable governmental entity, if the unit

10  owners have voted to forego such retrofitting and engineered

11  lifesafety system by the affirmative vote of two-thirds of all

12  voting interests in the affected condominium. However, a

13  condominium association may not vote to forego the

14  retrofitting with a fire sprinkler system of common areas in a

15  high-rise building. For purposes of this subsection, the term

16  "high-rise building" means a building that is greater than 75

17  feet in height where the building height is measured from the

18  lowest level of fire department access to the floor of the

19  highest occupiable story. For purposes of this subsection, the

20  term "common areas" means any enclosed hallway, corridor,

21  lobby, stairwell, or entryway. In no event shall the local

22  authority having jurisdiction require completion of

23  retrofitting of common areas with a sprinkler system before

24  the end of 2020 2014.

25         1.  A vote to forego retrofitting may be obtained by

26  limited proxy or by a ballot personally cast at a duly called

27  membership meeting, or by execution of a written consent by

28  the member, and shall be effective upon the recording of a

29  certificate attesting to such vote in the public records of

30  the county where the condominium is located. The association

31  shall mail, hand deliver, or electronically transmit to each

                                  7

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1  unit owner written notice at least 14 days prior to such

 2  membership meeting in which the vote to forego retrofitting of

 3  the required fire sprinkler system is to take place. Within 30

 4  days after the association's opt-out vote, notice of the

 5  results of the opt-out vote shall be mailed, hand delivered,

 6  or electronically transmitted to all unit owners. Evidence of

 7  compliance with this 30-day notice shall be made by an

 8  affidavit executed by the person providing the notice and

 9  filed among the official records of the association. After

10  such notice is provided to each owner, a copy of such notice

11  shall be provided by the current owner to a new owner prior to

12  closing and shall be provided by a unit owner to a renter

13  prior to signing a lease.

14         2.  As part of the information collected annually from

15  condominiums, the division shall require condominium

16  associations to report the membership vote and recording of a

17  certificate under this subsection and, if retrofitting has

18  been undertaken, the per-unit cost of such work. The division

19  shall annually report to the Division of State Fire Marshal of

20  the Department of Financial Services the number of

21  condominiums that have elected to forego retrofitting.

22         Section 3.  Section 712.11, Florida Statutes, is

23  created to read:

24         712.11  Covenant restrictions.--A homeowners'

25  association that is not otherwise subject to chapter 720 may

26  use the procedures provided in ss. 720.403-720.407 to revive a

27  declaration of covenants and restrictions which were

28  extinguished pursuant to this chapter.

29         Section 4.  This act shall take effect upon becoming a

30  law.

31  

                                  8

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






    Florida Senate - 2005                           CS for SB 2062
    580-2263-05




 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2062

 3                                 

 4  The committee substitute provides condominium associations
    with emergency powers in response to the declaration of a
 5  state of emergency in accordance with s. 252.36, F.S., or a
    mandatory evacuation order is issued by civil or law
 6  enforcement authorities.  The CS deletes the provision that
    would provide the condominium associations emergency authority
 7  in the event of a catastrophic emergency.  It does not define
    the term "catastrophic emergency."
 8  
    The CS authorizes condominium associations to enter into
 9  agreements with local governments to assist with debris
    removal.
10  
    The CS provides powers that an association may exercise
11  consistent with the standards of s. 617.0830, F.S., and powers
    that it may exercise in response to damage caused by an event
12  for which a state of emergency is declared in accordance with
    s. 252.36(2), F.S.
13  
    The CS amends s. 718.112, F.S., to authorize a condominium
14  association to establish a reserve category for uninsured
    casualty losses.
15  
    The CS does not provide condominium associations with the
16  authority to suspend or modify notice requirements for board
    or unit owner meetings.
17  
    The CS provides that the use of the special powers authorized
18  under this section is limited to those times and circumstances
    that are reasonably necessary to the health, safety, and
19  welfare of persons, and to mitigate further damage and make
    emergency repairs.
20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

                                  9

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