Senate Bill sb0948c1

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    Florida Senate - 2005                            CS for SB 948

    By the Committee on Regulated Industries; and Senator Jones





    580-2270-05

  1                      A bill to be entitled

  2         An act relating to community associations;

  3         directing the Advisory Council on Condominiums

  4         to hold public hearings and prepare and present

  5         a report to the Legislature regarding certain

  6         issues relating to the powers of condominium

  7         associations during catastrophic windstorm

  8         events and the recovery and rebuilding

  9         following such events; amending s. 720.305,

10         F.S.; providing that a fine levied by a

11         homeowners' association against a homeowner

12         shall not become a lien against a parcel unless

13         it is imposed for violations of use

14         restrictions on the land; amending s. 720.311,

15         F.S.; providing that the failure of a party to

16         make payment of fees and costs or appear for a

17         mediation session or arbitration proceeding

18         acts as an impasse in the proceeding and

19         entitles the other party to proceed in court

20         and to receive and enforce an award of costs

21         and fees associated with the mediation or

22         arbitration; deleting the training hours

23         required for certification of mediators and

24         arbitrators; providing that qualifications for

25         certification as a mediator or arbitrator will

26         be established by the Florida Supreme Court;

27         deleting a provision requiring the initial

28         costs of educating homeowners and other parties

29         about homeowners' associations and the use of

30         alternative dispute resolution techniques to be

31         paid from moneys and filing fees generated by

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    Florida Senate - 2005                            CS for SB 948
    580-2270-05




 1         the arbitration of recall and election disputes

 2         and by the mediation of those disputes;

 3         creating s. 712.11, F.S.; providing for the

 4         revival of certain declarations that have been

 5         extinguished; providing an effective date.

 6  

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

 8  

 9         Section 1.  The Advisory Council on Condominiums is

10  directed to hold public hearings, study available options and

11  proposals, and prepare a report to the Legislature, including

12  recommended legislation, dealing with the protection and

13  preservation of condominium property at the time of

14  anticipated catastrophic windstorm events and the recovery and

15  rebuilding following such events. Recommendations should

16  consider the communication options with condominium owners in

17  times of anticipated and declared emergencies, financial

18  planning for protecting and rebuilding condominium property

19  following such events, and the powers and responsibilities of

20  unit owners and the board of directors of the condominium

21  association before, during, and after such occurrences.

22         Section 2.  Subsection (2) of section 720.305, Florida

23  Statutes, is amended to read:

24         720.305  Obligations of members; remedies at law or in

25  equity; levy of fines and suspension of use rights; failure to

26  fill sufficient number of vacancies on board of directors to

27  constitute a quorum; appointment of receiver upon petition of

28  any member.--

29         (2)  If the governing documents so provide, an

30  association may suspend, for a reasonable period of time, the

31  rights of a member or a member's tenants, guests, or invitees,

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    Florida Senate - 2005                            CS for SB 948
    580-2270-05




 1  or both, to use common areas and facilities and may levy

 2  reasonable fines, not to exceed $100 per violation, against

 3  any member or any tenant, guest, or invitee. A fine may be

 4  levied on the basis of each day of a continuing violation,

 5  with a single notice and opportunity for hearing, except that

 6  no such fine shall exceed $1,000 in the aggregate unless

 7  otherwise provided in the governing documents. A fine shall

 8  not become a lien against a parcel unless it is imposed for

 9  violations of use restrictions on the land. In any action to

10  recover a fine, the prevailing party is entitled to collect

11  its reasonable attorney's fees and costs from the

12  nonprevailing party as determined by the court.

13         (a)  A fine or suspension may not be imposed without

14  notice of at least 14 days to the person sought to be fined or

15  suspended and an opportunity for a hearing before a committee

16  of at least three members appointed by the board who are not

17  officers, directors, or employees of the association, or the

18  spouse, parent, child, brother, or sister of an officer,

19  director, or employee. If the committee, by majority vote,

20  does not approve a proposed fine or suspension, it may not be

21  imposed.

22         (b)  The requirements of this subsection do not apply

23  to the imposition of suspensions or fines upon any member

24  because of the failure of the member to pay assessments or

25  other charges when due if such action is authorized by the

26  governing documents.

27         (c)  Suspension of common-area-use rights shall not

28  impair the right of an owner or tenant of a parcel to have

29  vehicular and pedestrian ingress to and egress from the

30  parcel, including, but not limited to, the right to park.

31  

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    Florida Senate - 2005                            CS for SB 948
    580-2270-05




 1         Section 3.  Paragraphs (b) and (c) of subsection (2)

 2  and subsection (3) of section 720.311, Florida Statutes, are

 3  amended to read:

 4         720.311  Dispute resolution.--

 5         (2)

 6         (b)  If mediation as described in paragraph (a) is not

 7  successful in resolving all issues between the parties, the

 8  parties may file the unresolved dispute in a court of

 9  competent jurisdiction or elect to enter into binding or

10  nonbinding arbitration pursuant to the procedures set forth in

11  s. 718.1255 and rules adopted by the division, with the

12  arbitration proceeding to be conducted by a department

13  arbitrator or by a private arbitrator certified by the

14  department. If all parties do not agree to arbitration

15  proceedings following an unsuccessful mediation, any party may

16  file the dispute in court. A final order resulting from

17  nonbinding arbitration is final and enforceable in the courts

18  if a complaint for trial de novo is not filed in a court of

19  competent jurisdiction within 30 days after entry of the

20  order. The failure of any party to make payment of fees and

21  costs within the time established by department rule or to

22  appear for a scheduled mediation session or arbitration

23  proceeding shall operate as an impasse in the proceeding

24  between the parties, entitling the other party to proceed in

25  court and to receive and enforce an award of costs and fees

26  associated with the mediation or arbitration.

27         (c)  The department shall develop a certification and

28  training program for private mediators and private arbitrators

29  which shall emphasize experience and expertise in the area of

30  the operation of community associations. A mediator or

31  arbitrator shall be certified by the department only if he or

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    Florida Senate - 2005                            CS for SB 948
    580-2270-05




 1  she has met the qualifications for a mediator established for

 2  circuit court mediators has attended at least 20 hours of

 3  training in mediation or arbitration, as appropriate, and only

 4  if the applicant has mediated or arbitrated at least 10

 5  disputes involving community associations within 5 years prior

 6  to the date of the application, or has mediated or arbitrated

 7  10 disputes in any area within 5 years prior to the date of

 8  application and has completed 20 hours of training in

 9  community association disputes. In order to be certified by

10  the department, any mediator must also be certified by the

11  Florida Supreme Court. The department may conduct the training

12  and certification program within the department or may

13  contract with an outside vendor to perform the training or

14  certification. The expenses of operating the training and

15  certification and training program shall be paid by the moneys

16  and filing fees generated by the arbitration of recall and

17  election disputes and by the mediation of those disputes

18  referred to in this subsection and by the training fees.

19         (3)  The department shall develop an education program

20  to assist homeowners, associations, board members, and

21  managers in understanding and increasing awareness of the

22  operation of homeowners' associations pursuant to this chapter

23  and in understanding the use of alternative dispute resolution

24  techniques in resolving disputes between parcel owners and

25  associations or between owners. Such education program may

26  include the development of pamphlets and other written

27  instructional guides, the holding of classes and meetings by

28  department employees or outside vendors, as the department

29  determines, and the creation and maintenance of a website

30  containing instructional materials. The expenses of operating

31  the education program shall be initially paid by the moneys

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    Florida Senate - 2005                            CS for SB 948
    580-2270-05




 1  and filing fees generated by the arbitration of recall and

 2  election disputes and by the mediation of those disputes

 3  referred to in this subsection.

 4         Section 4.  Section 712.11, Florida Statutes, is

 5  created to read:

 6         712.11  Covenants and restrictions.--A homeowners'

 7  association that is not otherwise subject to chapter 720 may

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

 9  declaration of covenants and restrictions that has been

10  extinguished by this chapter entitled Marketable Record Titles

11  to Real Property.

12         Section 5.  This act shall take effect upon becoming a

13  law.

14  

15          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
16                         Senate Bill 948

17                                 

18  The Committee Substitute (CS) directs the Advisory Council on
    Condominiums to hold public hearings, study available options
19  and proposals and prepare a report to the Legislature that
    includes recommended legislation dealing with protection and
20  preservation of condominium property during anticipated
    catastrophic windstorm events and the recovery and rebuilding
21  following such events.

22  It provides that a fine by a homeowner's association against a
    member may not become a lien on a homeowner's parcel unless it
23  is imposed for violations of use restrictions on the land.

24  It amends mediation provisions relating to proceedings between
    a homeowner and homeowners' associations.
25  
    It deletes a provision that funded education programs to
26  assist homeowners, associations, board members, and managers
    in understanding homeowners' associations and the use of
27  alternative dispute resolution.

28  It creates a section to permit voluntary homeowners'
    associations to revive extinguished declarations of covenants
29  and restrictions.

30  

31  

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