Senate Bill sb1556

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    Florida Senate - 2006                                  SB 1556

    By Senator Geller





    31-274A-06                                          See HB 543

  1                      A bill to be entitled

  2         An act relating to condominiums; amending s.

  3         718.117, F.S.; substantially revising

  4         provisions relating to the termination of the

  5         condominium form of ownership of a property;

  6         providing legislative findings; providing

  7         grounds; providing powers and duties of the

  8         board of administration of the association;

  9         waiving certain notice requirements following

10         natural disasters; providing requirements for a

11         plan of termination; providing for the

12         allocation of proceeds from the sale of

13         condominium property; providing powers and

14         duties of a termination trustee; providing

15         notice requirements; providing a procedure for

16         contesting a plan of termination; providing

17         rules for the distribution of property and sale

18         proceeds; providing for the association's

19         status following termination; allowing the

20         creation of another condominium by the trustee;

21         specifying an exclusion; providing an effective

22         date.

23  

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

25  

26         Section 1.  Section 718.117, Florida Statutes, is

27  amended to read:

28         (Substantial rewording of section. See

29         s. 718.117, F.S., for present text.)

30         718.117  Termination of condominium.--

31  

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1         (1)  LEGISLATIVE FINDINGS.--The Legislature finds that

 2  it is contrary to the public policy of this state to require

 3  the continued operation of a condominium when to do so would

 4  constitute economic waste or when the ability to do so is made

 5  impossible by law or regulation. The provisions of this

 6  section shall apply to all condominiums in this state in

 7  existence on or after the effective date of this act.

 8         (2)  TERMINATION BECAUSE OF ECONOMIC WASTE OR

 9  IMPOSSIBILITY.--

10         (a)  Notwithstanding any provision to the contrary in

11  the declaration, the condominium form of ownership of a

12  property may be terminated by a plan of termination approved

13  by the lesser of a majority of the total voting interests or

14  as otherwise provided in the declaration for approval of

15  termination, in the following circumstances:

16         1.  When the total estimated cost of repairs necessary

17  to restore the improvements to their former condition or bring

18  them into compliance with applicable laws or regulations

19  exceeds the combined fair market value of all units in the

20  condominium after completion of the repairs; or

21         2.  When it becomes impossible to operate or

22  reconstruct a condominium in its prior physical configuration

23  because of land-use laws or regulations.

24         (b)  Notwithstanding paragraph (a), a condominium in

25  which 75 percent or more of the units are timeshare units may

26  only be terminated pursuant to a plan of termination approved

27  by 80 percent of the total voting interests of the association

28  and the holders of 80 percent of the original principal amount

29  of outstanding recorded mortgage liens of timeshare estates in

30  the condominium, unless the declaration provides for a lower

31  voting percentage.

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1         (3)  OPTIONAL TERMINATION.--Except as provided in

 2  subsections (2) and (4) or unless the declaration provides for

 3  a lower percentage, the condominium form of ownership of the

 4  property may be terminated pursuant to a plan of termination

 5  approved by at least 80 percent of the total voting interests

 6  of the condominium. This subsection does not apply to

 7  condominiums in which 75 percent or more of the units are

 8  timeshare units.

 9         (4)  JURISDICTION.--

10         (a)  If 80 percent of the total voting interests fail

11  to approve the plan of termination but fewer than 20 percent

12  of the total voting interests vote to disapprove of the plan,

13  the circuit court shall have jurisdiction to entertain a

14  petition by the association or by one or more unit owners and

15  approve the plan of termination, and the action may be a class

16  action.

17         (b)  All unit owners and the association must be

18  parties to the action. The action may be brought against the

19  nonconsenting unit owners as a class action. Service of

20  process on unit owners may be by publication, but the

21  plaintiff must furnish each unit owner not personally served

22  with process a copy of the petition and plan of termination,

23  and after entry of judgment, a copy of the final decree of the

24  court, by mail at the owner's last known address.

25         (c)  After the consideration of whether the rights and

26  interests of unit owners are equitably set forth in the plan

27  of termination as required by this section, the plan of

28  termination may be approved or rejected by the court.

29  Consistent with the provisions of this section, the court may

30  also modify the plan of termination to provide for an

31  

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  equitable distribution of the interests of unit owners prior

 2  to approving the plan of termination.

 3         (d)  This subsection does not apply to condominiums in

 4  which 75 percent or more of the units are timeshare units.

 5         (5)  EXEMPTION.--A plan of termination is not an

 6  amendment subject to s. 718.110(4).

 7         (6)  MORTGAGE LIENHOLDERS.--Notwithstanding any

 8  provision to the contrary in the declaration or this chapter,

 9  approval of a plan of termination by the holder of a recorded

10  mortgage lien affecting a condominium parcel in which fewer

11  than 75 percent of the units are timeshare units is not

12  required unless the plan of termination will result in less

13  than the full satisfaction of the mortgage lien affecting the

14  parcel.

15         (7)  POWERS IN CONNECTION WITH TERMINATION.--The

16  association shall continue in existence following approval of

17  the plan of termination, with all powers it had before

18  approval of the plan. Notwithstanding any contrary provision

19  in the declaration or bylaws, after approval of the plan, the

20  board has the power and duty:

21         (a)  To employ directors, agents, attorneys, and other

22  professionals to liquidate or conclude its affairs.

23         (b)  To conduct the affairs of the association as

24  necessary for the liquidation or termination.

25         (c)  To carry out contracts and collect, pay, and

26  settle debts and claims for and against the association.

27         (d)  To defend suits brought against the association.

28         (e)  To sue in the name of the association for all sums

29  due or owed to the association or to recover any of its

30  property.

31  

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1         (f)  To perform any act necessary to maintain, repair,

 2  or demolish unsafe or uninhabitable improvements or other

 3  condominium property in compliance with applicable codes.

 4         (g)  To sell at public or private sale or to exchange,

 5  convey, or otherwise dispose of assets of the association for

 6  an amount deemed to be in the best interests of the

 7  association, and to execute bills of sale and deeds of

 8  conveyance in the name of the association.

 9         (h)  To collect and receive rents, profits, accounts

10  receivable, income, maintenance fees, special assessments, or

11  insurance proceeds for the association.

12         (i)  To contract and do anything in the name of the

13  association which is proper or convenient to terminate the

14  affairs of the association.

15         (8)  NATURAL DISASTERS.--

16         (a)  If, after a natural disaster, the identity of the

17  directors or their right to hold office is in doubt, if they

18  are deceased or unable to act, if they fail or refuse to act,

19  or if they cannot be located, any interested person may

20  petition the circuit court to determine the identity of the

21  directors or, if found to be in the best interests of the unit

22  owners, to appoint a receiver to conclude the affairs of the

23  association after a hearing following notice to such persons

24  as the court directs.

25         (b)  The receiver shall have all powers given to the

26  board pursuant to the declaration, bylaws, and subsection (7),

27  and any other powers that are necessary to conclude the

28  affairs of the association and are set forth in the order of

29  appointment. The appointment of the receiver is subject to the

30  bonding requirements of such order. The order shall also

31  provide for the payment of a reasonable fee to the receiver

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  from the sources identified in the order, which may include

 2  rents, profits, incomes, maintenance fees, or special

 3  assessments collected from the condominium property.

 4         (9)  PLAN OF TERMINATION.--The plan of termination must

 5  be a written document executed in the same manner as a deed by

 6  unit owners having the requisite percentage of voting

 7  interests to approve the plan and by the termination trustee.

 8  A copy of the proposed plan of termination shall be given to

 9  all unit owners, in the same manner as for notice of an annual

10  meeting, at least 14 days prior to the meeting at which the

11  plan of termination is to be voted upon or prior to or

12  simultaneously with the distribution of the solicitation

13  seeking execution of the plan of termination or written

14  consent to or joinder in the plan. A unit owner may document

15  assent to the plan of termination by executing the plan or by

16  consent to or joinder in the plan in the manner of a deed. A

17  plan of termination and the consents or joinders of unit

18  owners and, if required, consents or joinders of mortgagees

19  must be recorded in the public records of each county in which

20  any portion of the condominium is located. The plan of

21  termination is effective only upon recordation or at a later

22  date specified in the plan.

23         (10)  PLAN OF TERMINATION; REQUIRED PROVISIONS.--The

24  plan of termination must specify:

25         (a)  The name, address, and powers of the termination

26  trustee.

27         (b)  A date after which the plan of termination is void

28  if it has not been recorded.

29         (c)  The interests of the respective unit owners in the

30  association property, common surplus, and other assets of the

31  association, which shall be the same as the respective

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  interests of the unit owners in the common elements

 2  immediately before the termination, unless otherwise provided

 3  in the declaration.

 4         (d)  The interests of the respective unit owners in any

 5  proceeds from any sale of the condominium property. The plan

 6  of termination may apportion those proceeds pursuant to any of

 7  the methods prescribed in subsection (12). If, pursuant to the

 8  plan of termination, condominium property or real property

 9  owned by the association is to be sold following termination,

10  the plan must provide for the sale and may establish any

11  minimum sale terms.

12         (e)  Any interests of the respective unit owners in any

13  insurance proceeds or condemnation proceeds that are not used

14  for repair or reconstruction. Unless the declaration expressly

15  addresses the distribution of insurance proceeds or

16  condemnation proceeds, the plan of termination may apportion

17  those proceeds pursuant to any of the methods prescribed in

18  subsection (12).

19         (11)  PLAN OF TERMINATION; OPTIONAL PROVISIONS;

20  CONDITIONAL TERMINATION.--

21         (a)  The plan of termination may provide that each unit

22  owner retains the exclusive right of possession to the portion

23  of the real estate that formerly constituted the unit, in

24  which case the plan must specify the conditions of possession.

25         (b)  In the case of a conditional termination, the plan

26  must specify the conditions for termination. A conditional

27  plan will not vest title in the termination trustee until the

28  plan and a certificate executed by the association with the

29  formalities of a deed, confirming that the conditions in the

30  conditional plan have been satisfied or waived by the

31  

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  requisite percentage of the voting interests, have been

 2  recorded.

 3         (12)  ALLOCATION OF PROCEEDS OF SALE OF CONDOMINIUM

 4  PROPERTY.--

 5         (a)  Unless the declaration expressly provides for the

 6  allocation of the proceeds of sale of condominium property,

 7  the plan of termination must first apportion the proceeds

 8  between the aggregate value of all units and the value of the

 9  common elements, based on their respective fair-market values

10  immediately before the termination, as determined by one or

11  more independent appraisers selected by the association or

12  termination trustee.

13         (b)  The portion of proceeds allocated to the units

14  shall be further apportioned among the individual units. The

15  apportionment is deemed fair and reasonable if it is

16  determined by any of the following methods:

17         1.  The respective values of the units based on the

18  fair-market values of the units immediately before the

19  termination, as determined by one or more independent

20  appraisers selected by the association or termination trustee;

21         2.  The respective values of the units based on the

22  most recent market value of the units before the termination,

23  as provided in the county property appraiser's records; or

24         3.  The respective interests of the units in the common

25  elements specified in the declaration immediately before the

26  termination.

27         (c)  The methods of apportionment in paragraph (b) do

28  not prohibit any other method of apportioning the proceeds of

29  sale allocated to the units agreed upon in the plan of

30  termination. The portion of the proceeds allocated to the

31  common elements shall be apportioned among the units based

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  upon their respective interests in the common elements as

 2  provided in the declaration.

 3         (d)  Liens that encumber a unit shall be transferred to

 4  the proceeds of sale of the condominium property and the

 5  proceeds of sale or other distribution of association

 6  property, common surplus, or other association assets

 7  attributable to such unit in their same priority. The proceeds

 8  of any sale of condominium property pursuant to a plan of

 9  termination may not be deemed to be common surplus or

10  association property.

11         (13)  TERMINATION TRUSTEE.--The association shall serve

12  as termination trustee unless another person is appointed in

13  the plan of termination. If the association is unable,

14  unwilling, or fails to act as trustee, any unit owner may

15  petition the court to appoint a trustee. Upon recording or at

16  a later date specified in the plan, title to the condominium

17  property vests in the trustee. Unless prohibited by the plan,

18  the termination trustee shall be vested with the powers given

19  to the board pursuant to the declaration, bylaws, and

20  subsection (7). If the association is not the termination

21  trustee, the trustee's powers shall be coextensive with those

22  of the association to the extent not prohibited in the plan of

23  termination or the order of appointment. If the association is

24  not the termination trustee, the association shall transfer

25  any association property to the trustee. If the association is

26  dissolved, the trustee shall also have such other powers

27  necessary to conclude the affairs of the association.

28         (14)  TITLE VESTED IN TERMINATION TRUSTEE.--If

29  termination is pursuant to a plan of termination under

30  subsection (2) or subsection (3), the unit owners' rights and

31  title as tenants in common in undivided interests in the

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  condominium property vest in the termination trustee when the

 2  plan is recorded or at a later date specified in the plan. The

 3  unit owners thereafter become the beneficiaries of the

 4  proceeds realized from the plan of termination. The

 5  termination trustee may deal with the condominium property or

 6  any interest therein if the plan confers on the trustee the

 7  authority to protect, conserve, manage, sell, or dispose of

 8  the condominium property. The trustee, on behalf of the unit

 9  owners, may contract for the sale of real property, but the

10  contract is not binding on the unit owners until the plan is

11  approved pursuant to subsection (2) or subsection (3).

12         (15)  NOTICE.--

13         (a)  Within 30 days after a plan of termination has

14  been recorded, the termination trustee shall deliver by

15  certified mail, return receipt requested, notice to all unit

16  owners, lienors of the condominium property, and lienors of

17  all units at their last known addresses that a plan of

18  termination has been recorded. The notice shall include the

19  book and page number of the public records in which the plan

20  was recorded, notice that a copy of the plan shall be

21  furnished upon written request, and notice that the unit owner

22  or lienor has the right to contest the fairness of the plan.

23         (b)  The trustee, within 90 days after the effective

24  date of the plan, shall provide to the division a certified

25  copy of the recorded plan, the date the plan was recorded, and

26  the county, book, and page number of the public records in

27  which the plan was recorded.

28         (16)  RIGHT TO CONTEST.--A unit owner or lienor may

29  contest a plan of termination by initiating a summary

30  procedure pursuant to s. 51.011 within 90 days after the date

31  the plan is recorded. A unit owner or lienor who does not

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  contest the plan within such 90-day period is barred from

 2  asserting or prosecuting a claim against the association, the

 3  termination trustee, any unit owner, or any successor in

 4  interest to the condominium property. In an action contesting

 5  a plan of termination, the person contesting the plan has the

 6  burden of pleading and proving that the apportionment of the

 7  proceeds from the sale among the unit owners was not fair and

 8  reasonable. The apportionment of sale proceeds is presumed

 9  fair and reasonable if it was determined pursuant to the

10  methods prescribed in subsection (12). The court shall adjudge

11  the rights and interests of the parties and order the plan of

12  termination to be implemented if it is fair and reasonable.

13  The court shall void a plan that is determined not to be fair

14  and reasonable. In such action, the prevailing party may

15  recover reasonable attorney's fees and costs.

16         (17)  DISTRIBUTION.--

17         (a)  Following termination of the condominium, the

18  condominium property, association property, common surplus,

19  and other assets of the association shall be held by the

20  termination trustee, as trustee for unit owners and holders of

21  liens on the units, in their order of priority.

22         (b)  Not less than 30 days prior to the first

23  distribution, the termination trustee shall deliver by

24  certified mail, return receipt requested, a notice of the

25  estimated distribution to all unit owners, lienors of the

26  condominium property, and lienors of each unit at their last

27  known addresses stating a good-faith estimate of the amount of

28  the distributions to each class and the procedures and

29  deadline for notifying the termination trustee of any

30  objections to the amount. The deadline must be at least 15

31  days after the date the notice was mailed. The notice may be

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  sent with or after the notice required by subsection (15). If

 2  a unit owner or lienor files a timely objection with the

 3  termination trustee, the trustee does not have to distribute

 4  the funds and property allocated to the respective unit owner

 5  or lienor until the trustee has had a reasonable time to

 6  determine the validity of the adverse claim. In the

 7  alternative, the trustee may interplead the unit owner,

 8  lienor, and any other person claiming an interest in the unit

 9  and deposit the funds allocated to the unit in the court

10  registry, at which time the condominium property, association

11  property, common surplus, and other assets of the association

12  are free of all claims and liens of the parties to the suit.

13  In an interpleader action, the trustee and prevailing party

14  may recover reasonable attorney's fees and costs and court

15  costs.

16         (c)  The proceeds of any sale of condominium property

17  or association property and any remaining condominium property

18  or association property, common surplus, and other assets

19  shall be distributed in the following priority:

20         1.  To pay the costs of implementing the plan of

21  termination, including demolition, removal, and disposal fees,

22  termination trustee's fees and costs, accounting fees and

23  costs, and attorney's fees and costs.

24         2.  To lienholders of liens recorded prior to the

25  recording of the declaration.

26         3.  To lienholders of liens of the association which

27  have been consented to under s. 718.121(1).

28         4.  To creditors of the association, as their interests

29  appear.

30         5.  To unit owners, the proceeds of any sale of

31  condominium property subject to satisfaction of liens on each

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  unit in their order of priority, in shares specified in the

 2  plan of termination, unless objected to by a unit owner or

 3  lienor.

 4         6.  To unit owners, the remaining condominium property,

 5  subject to satisfaction of liens on each unit in their order

 6  of priority, in shares specified in the plan of termination,

 7  unless objected to by a unit owner or a lienor as provided in

 8  paragraph (b).

 9         7.  To unit owners, the proceeds of any sale of

10  association property, the remaining association property,

11  common surplus, and other assets of the association, subject

12  to satisfaction of liens on each unit in their order of

13  priority, in shares specified in the plan of termination,

14  unless objected to by a unit owner or a lienor as provided in

15  paragraph (b).

16         (d)  After determining that all known debts and

17  liabilities of an association in the process of termination

18  have been paid or adequately provided for, the termination

19  trustee shall distribute the remaining assets pursuant to the

20  plan of termination. If the termination is by court proceeding

21  or subject to court supervision, the distribution may not be

22  made until any period for the presentation of claims ordered

23  by the court has elapsed.

24         (e)  Assets held by an association upon a valid

25  condition requiring return, transfer, or conveyance, which

26  condition has occurred or will occur, shall be returned,

27  transferred, or conveyed in accordance with the condition. The

28  remaining association assets shall be distributed pursuant to

29  paragraph (c).

30         (f)  Distribution may be made in money, property, or

31  securities and in installments or as a lump sum, if it can be

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    Florida Senate - 2006                                  SB 1556
    31-274A-06                                          See HB 543




 1  done fairly and ratably and in conformity with the plan of

 2  termination. Distribution shall be made as soon as is

 3  reasonably consistent with the beneficial liquidation of the

 4  assets.

 5         (18)  ASSOCIATION STATUS.--The termination of a

 6  condominium does not change the corporate status of the

 7  association that operated the condominium property. The

 8  association continues to exist to conclude its affairs,

 9  prosecute and defend actions by or against it, collect and

10  discharge obligations, dispose of and convey its property, and

11  collect and divide its assets, but not to act except as

12  necessary to conclude its affairs.

13         (19)  CREATION OF ANOTHER CONDOMINIUM.--The termination

14  of a condominium does not bar the creation, by the termination

15  trustee, of another condominium affecting any portion of the

16  same property.

17         (20)  EXCLUSION.--This section does not apply to the

18  termination of a condominium incident to a merger of that

19  condominium with one or more other condominiums under s.

20  718.110(7).

21         Section 2.  This act shall take effect July 1, 2006.

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