Senate Bill sb2358c1

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    Florida Senate - 2006                           CS for SB 2358

    By the Committee on Regulated Industries; and Senator Bennett





    580-2259-06

  1                      A bill to be entitled

  2         An act relating to community associations;

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

  4         revival of certain covenants that have lapsed;

  5         amending s. 718.106, F.S.; prohibiting local

  6         ordinances that limit the access of certain

  7         persons to beaches that adjoin condominiums;

  8         amending s. 718.110, F.S.; revising provisions

  9         relating to the amendment of declarations;

10         providing legislative findings and a finding of

11         compelling state interest; providing criteria

12         for consent to an amendment; requiring notice

13         regarding proposed amendments to mortgagees;

14         providing criteria for notification; providing

15         for voiding certain amendments; amending s.

16         718.112, F.S.; revising the implementation date

17         for retrofitting of common areas with a

18         sprinkler system; amending s. 718.114, F.S.;

19         providing that certain leaseholds, memberships,

20         or other possessory or use interests shall be

21         considered a material alteration or substantial

22         addition to certain real property; amending s.

23         718.404, F.S.; providing retroactive

24         application of provisions relating to mixed-use

25         condominiums; amending s. 719.103, F.S.;

26         providing a definition; amending s. 719.507,

27         F.S.; prohibiting laws, ordinances, or

28         regulations that apply only to improvements

29         that are or may be subjected to an equity club

30         form of ownership; amending s. 720.302, F.S.;

31         revising governing provisions relating to

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 1         corporations that operate residential

 2         homeowners' associations; amending s. 720.303,

 3         F.S.; revising application to include certain

 4         meetings; requiring the association to provide

 5         certain information to prospective purchasers

 6         or lienholders; authorizing the association to

 7         charge a reasonable fee for providing certain

 8         information; requiring the budget to provide

 9         for annual operating expenses; authorizing the

10         budget to include reserve accounts for capital

11         expenditures and deferred maintenance;

12         providing a formula for calculating the amount

13         to be reserved; authorizing the association to

14         adjust replacement reserve assessments

15         annually; authorizing the developer to vote to

16         waive the reserves or reduce the funding of

17         reserves for a certain period; revising

18         provisions relating to financial reporting;

19         revising time periods in which the association

20         must complete its reporting; repealing s.

21         720.303(2), F.S., as amended, relating to board

22         meetings, to remove conflicting versions of

23         that subsection; creating s. 720.3035, F.S.;

24         providing for architectural control covenants

25         and parcel owner improvements; authorizing the

26         review and approval of plans and

27         specifications; providing limitations;

28         providing rights and privileges for parcel

29         owners as set forth in the declaration of

30         covenants; amending s. 720.305, F.S.; providing

31         that, where a member is entitled to collect

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 1         attorney's fees against the association, the

 2         member may also recover additional amounts as

 3         determined by the court; amending s. 720.306,

 4         F.S.; providing that certain mergers or

 5         consolidations of an association shall not be

 6         considered a material or adverse alteration of

 7         the proportionate voting interest appurtenant

 8         to a parcel; amending s. 720.307, F.S.;

 9         requiring developers to deliver financial

10         records to the board in any transition of

11         association control to members; requiring

12         certain information to be included in the

13         records and for the records to be prepared in a

14         specified manner; amending s. 720.308, F.S.;

15         providing circumstances under which a guarantee

16         of common expenses shall be effective;

17         providing for approval of the guarantee by

18         association members; providing for a guarantee

19         period and extension thereof; requiring the

20         stated dollar amount of the guarantee to be an

21         exact dollar amount for each parcel identified

22         in the declaration; providing payments required

23         from the guarantor to be determined in a

24         certain manner; providing a formula to

25         determine the guarantor's total financial

26         obligation to the association; providing that

27         certain expenses incurred in the production of

28         certain revenues shall not be included in the

29         operating expenses; amending s. 720.311, F.S.;

30         revising provisions relating to dispute

31         resolution; providing that the filing of any

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 1         petition for arbitration or the serving of an

 2         offer for presuit mediation shall toll the

 3         applicable statute of limitations; providing

 4         that certain disputes between an association

 5         and a parcel owner shall be subject to presuit

 6         mediation; revising provisions to conform;

 7         providing that temporary injunctive relief may

 8         be sought in certain disputes subject to

 9         presuit mediation; authorizing the court to

10         refer the parties to mediation under certain

11         circumstances; requiring the aggrieved party to

12         serve on the responding party a written offer

13         to participate in presuit mediation; providing

14         a form for such offer; providing that service

15         of the offer is effected by the sending of such

16         an offer in a certain manner; providing that

17         the prevailing party in any subsequent

18         arbitration or litigation proceedings is

19         entitled to seek recovery of all costs and

20         attorney's fees incurred in the presuit

21         mediation process; requiring the mediator or

22         arbitrator to meet certain certification

23         requirements; removing a requirement relating

24         to development of an education program to

25         increase awareness of the operation of

26         homeowners' associations and the use of

27         alternative dispute resolution techniques;

28         providing effective dates.

29  

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

31  

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 1         Section 1.  Section 712.11, Florida Statutes, is

 2  created to read:

 3         712.11  Covenant revitalization.--A homeowners'

 4  association not otherwise subject to chapter 720 may use the

 5  procedures set forth in ss. 720.403-720.407 to revive

 6  covenants that have lapsed under the terms of this chapter.

 7         Section 2.  Subsection (5) is added to section 718.106,

 8  Florida Statutes, to read:

 9         718.106  Condominium parcels; appurtenances; possession

10  and enjoyment.--

11         (5)  A local ordinance or regulation may not establish

12  any limitation on the ability of unit owners or an association

13  to permit guests, licensees, members, or invitees to use or

14  access their units or common elements for the purpose of

15  accessing a public beach or private beach adjacent to the

16  condominium.

17         Section 3.  Effective October 1, 2006, subsection (11)

18  of section 718.110, Florida Statutes, is amended to read:

19         718.110  Amendment of declaration; correction of error

20  or omission in declaration by circuit court.--

21         (11)  The Legislature finds that the procurement of

22  mortgagee consent to amendments that do not affect the rights

23  or interests of mortgagees is an unreasonable and substantial

24  logistical and financial burden on the unit owners and that

25  there is a compelling state interest in enabling the members

26  of a condominium association to approve amendments to the

27  condominium documents through legal means. Accordingly, and

28  notwithstanding any provision to the contrary contained in

29  this section:

30         (a)  As to any mortgage recorded on or after October 1,

31  2006, any provision in the declaration, articles of

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 1  incorporation, or bylaws that requires recorded after April 1,

 2  1992, may not require the consent or joinder of some or all

 3  mortgagees of units or any other portion of the condominium

 4  property to or in amendments to the declaration, articles of

 5  incorporation, or bylaws or for any other matter shall be

 6  enforceable only as to the following matters: unless the

 7  requirement is limited to amendments materially affecting the

 8  rights or interests of the mortgagees, or as otherwise

 9  required by the Federal National Mortgage Association or the

10  Federal Home Loan Mortgage Corporation, and unless the

11  requirement provides that such consent may not be unreasonably

12  withheld. It shall be presumed that, except as to

13         1.  Those matters described in subsections (4) and

14  (8).,

15         2.  Amendments to the declaration, articles of

16  incorporation, or bylaws that adversely affect the priority of

17  the mortgagee's lien or the mortgagee's rights to foreclose

18  its lien or that otherwise materially affect the rights and

19  interests of the mortgagees.

20         (b)  As to mortgages recorded before October 1, 2006,

21  any existing provisions in the declaration, articles of

22  incorporation, or bylaws requiring mortgagee consent shall be

23  enforceable.

24         (c)  In securing consent or joinder, the association

25  shall be entitled to rely upon the public records to identify

26  the holders of outstanding mortgages. The association may use

27  the address provided in the original recorded mortgage

28  document, unless there is a different address for the holder

29  of the mortgage in a recorded assignment or modification of

30  the mortgage, which recorded assignment or modification must

31  reference the official records book and page on which the

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    Florida Senate - 2006                           CS for SB 2358
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 1  original mortgage was recorded. Once the association has

 2  identified the recorded mortgages of record, the association

 3  shall, in writing, request of each unit owner whose unit is

 4  encumbered by a mortgage of record any information the owner

 5  has in his or her possession regarding the name and address of

 6  the person to whom mortgage payments are currently being made.

 7  Notice shall be sent to such person if the address provided in

 8  the original recorded mortgage document is different from the

 9  name and address of the mortgagee or assignee of the mortgage

10  as shown by the public record. The association shall be deemed

11  to have complied with this requirement by making the written

12  request of the unit owners required under this paragraph. Any

13  notices required to be sent to the mortgagees under this

14  paragraph shall be sent to all available addresses provided to

15  the association.

16         (d)  Any notice to the mortgagees required under

17  paragraph (c) may be sent by a method that establishes proof

18  of delivery, and any mortgagee who fails to respond within 60

19  days after the date of mailing shall be deemed to have

20  consented to the amendment.

21         (e)  For those amendments requiring mortgagee consent

22  on or after October 1, 2006, do not materially affect the

23  rights or interests of mortgagees. in the event mortgagee

24  consent is provided other than by properly recorded joinder,

25  such consent shall be evidenced by affidavit of the

26  association recorded in the public records of the county where

27  the declaration is recorded. Any amendment adopted without the

28  required consent of a mortgagee shall be voidable only by a

29  mortgagee who was entitled to notice and an opportunity to

30  consent. An action to void an amendment shall be subject to

31  the statute of limitations beginning 5 years from the date of

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 1  discovery as to the amendments described in subparagraph (a)

 2  1. and 2. and 5 years from the date of recordation of the

 3  certificate of amendment for all other amendments. This

 4  provision shall apply to all mortgages, regardless of the date

 5  of recordation of the mortgage.

 6         Section 4.  Paragraph (l) of subsection (2) of section

 7  718.112, Florida Statutes, is amended to read:

 8         718.112  Bylaws.--

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

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

11  include the following:

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

13  provision that a certificate of compliance from a licensed

14  electrical contractor or electrician may be accepted by the

15  association's board as evidence of compliance of the

16  condominium units with the applicable fire and life safety

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

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

19  regulation, or any interpretation of the foregoing, an

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

21  retrofit the common elements or units of a residential

22  condominium with a fire sprinkler system or other engineered

23  lifesafety system in a building that has been certified for

24  occupancy by the applicable governmental entity, if the unit

25  owners have voted to forego such retrofitting and engineered

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

27  voting interests in the affected condominium. However, a

28  condominium association may not vote to forego the

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

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

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

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

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

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

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

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

 6  authority having jurisdiction require completion of

 7  retrofitting of common areas with a sprinkler system before

 8  the end of 2025 2014.

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

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

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

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

13  certificate attesting to such vote in the public records of

14  the county where the condominium is located. The association

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

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

17  membership meeting in which the vote to forego retrofitting of

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

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

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

21  or electronically transmitted to all unit owners. Evidence of

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

23  affidavit executed by the person providing the notice and

24  filed among the official records of the association. After

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

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

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

28  prior to signing a lease.

29         2.  As part of the information collected annually from

30  condominiums, the division shall require condominium

31  associations to report the membership vote and recording of a

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 1  certificate under this subsection and, if retrofitting has

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

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

 4  the Department of Financial Services the number of

 5  condominiums that have elected to forego retrofitting.

 6         Section 5.  Section 718.114, Florida Statutes, is

 7  amended to read:

 8         718.114  Association powers.--An association has the

 9  power to enter into agreements, to acquire leaseholds,

10  memberships, and other possessory or use interests in lands or

11  facilities such as country clubs, golf courses, marinas, and

12  other recreational facilities. It has this power whether or

13  not the lands or facilities are contiguous to the lands of the

14  condominium, if they are intended to provide enjoyment,

15  recreation, or other use or benefit to the unit owners. All of

16  these leaseholds, memberships, and other possessory or use

17  interests existing or created at the time of recording the

18  declaration must be stated and fully described in the

19  declaration. Subsequent to the recording of the declaration,

20  agreements acquiring these leaseholds, memberships, or other

21  possessory or use interests not entered into within 12 months

22  following the recording of the declaration shall be considered

23  a material alteration or substantial addition to the real

24  property that is association property, and the association may

25  not acquire or enter into agreements acquiring these

26  leaseholds, memberships, or other possessory or use interests

27  except as authorized by the declaration as provided in s.

28  718.113. The declaration may provide that the rental,

29  membership fees, operations, replacements, and other expenses

30  are common expenses and may impose covenants and restrictions

31  concerning their use and may contain other provisions not

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 1  inconsistent with this chapter. A condominium association may

 2  conduct bingo games as provided in s. 849.0931.

 3         Section 6.  Subsections (1) and (2) of section 718.404,

 4  Florida Statutes, are amended to read:

 5         718.404  Mixed-use condominiums.--When a condominium

 6  consists of both residential and commercial units, the

 7  following provisions shall apply:

 8         (1)  The condominium documents shall not provide that

 9  the owner of any commercial unit shall have the authority to

10  veto amendments to the declaration, articles of incorporation,

11  bylaws, or rules or regulations of the association. This

12  subsection shall apply retroactively as a remedial measure.

13         (2)  Subject to s. 718.301, where the number of

14  residential units in the condominium equals or exceeds 50

15  percent of the total units operated by the association, owners

16  of the residential units shall be entitled to vote for a

17  majority of the seats on the board of administration. This

18  subsection shall apply retroactively as a remedial measure.

19         Section 7.  Subsections (18) through (27) of section

20  719.103, Florida Statutes, are renumbered as subsections (19)

21  through (28), respectively, and a new subsection (18) is added

22  to that section to read:

23         719.103  Definitions.--As used in this chapter:

24         (18)  "Equity facilities club" means a club comprised

25  of recreational facilities in which proprietary membership

26  interests are sold to individuals, which membership interests

27  entitle the individuals to use certain physical facilities

28  owned by the equity club. Such physical facilities do not

29  include a residential unit or accommodation. For purposes of

30  this definition, the term "accommodation" shall include, but

31  is not limited to, any apartment, residential cooperative

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 1  unit, residential condominium unit, cabin, lodge, hotel or

 2  motel room, or any other accommodation designed for overnight

 3  occupancy for one or more individuals.

 4         Section 8.  Section 719.507, Florida Statutes, is

 5  amended to read:

 6         719.507  Zoning and building laws, ordinances, and

 7  regulations.--All laws, ordinances, and regulations concerning

 8  buildings or zoning shall be construed and applied with

 9  reference to the nature and use of such property, without

10  regard to the form of ownership. No law, ordinance, or

11  regulation shall establish any requirement concerning the use,

12  location, placement, or construction of buildings or other

13  improvements which are, or may thereafter be, subjected to the

14  cooperative or equity facilities club form of ownership,

15  unless such requirement shall be equally applicable to all

16  buildings and improvements of the same kind not then, or

17  thereafter to be, subjected to the cooperative or equity

18  facilities club form of ownership. This section does not apply

19  if the owner in fee of any land enters into and records a

20  covenant that existing improvements or improvements to be

21  constructed shall not be converted to the cooperative form of

22  residential ownership prior to 5 years after the later of the

23  date of the covenant or completion date of the improvements.

24  Such covenant shall be entered into with the governing body of

25  the municipality in which the land is located or, if the land

26  is not located in a municipality, with the governing body of

27  the county in which the land is located.

28         Section 9.  Subsections (4) and (5) of section 720.302,

29  Florida Statutes, are amended to read:

30         720.302  Purposes, scope, and application.--

31  

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 1         (4)  This chapter does not apply to any association

 2  that is subject to regulation under chapter 718, chapter 719,

 3  or chapter 721; or to any nonmandatory association formed

 4  under chapter 723, except to the extent that a provision of

 5  chapter 718, chapter 719, or chapter 721 is expressly

 6  incorporated into this chapter for the purpose of regulating

 7  homeowners' associations.

 8         (5)  Unless expressly stated to the contrary,

 9  corporations not for profit that operate residential

10  homeowners' associations in this state shall be governed by

11  and subject to chapter 607, if the association was

12  incorporated under that chapter, or to chapter 617, if the

13  association was incorporated under that chapter, and this

14  chapter. This subsection is intended to clarify existing law.

15         Section 10.  Paragraph (a) of subsection (2),

16  subsection (6), and subsection (7) of section 720.303, Florida

17  Statutes, as amended by section 18 of chapter 2004-345 and

18  section 135 of chapter 2005-2, Laws of Florida, are amended,

19  and paragraph (d) is added to subsection (5) of that section,

20  to read:

21         720.303  Association powers and duties; meetings of

22  board; official records; budgets; financial reporting;

23  association funds; recalls.--

24         (2)  BOARD MEETINGS.--

25         (a)  A meeting of the board of directors of an

26  association occurs whenever a quorum of the board gathers to

27  conduct association business. All meetings of the board must

28  be open to all members except for meetings between the board

29  and its attorney with respect to proposed or pending

30  litigation where the contents of the discussion would

31  otherwise be governed by the attorney-client privilege. The

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 1  provisions of this subsection shall also apply to the meetings

 2  of any committee or other similar body when a final decision

 3  will be made regarding the expenditure of association funds

 4  and to meetings of any body vested with the power to approve

 5  or disapprove architectural decisions with respect to a

 6  specific parcel of residential property owned by a member of

 7  the community.

 8         (5)  INSPECTION AND COPYING OF RECORDS.--The official

 9  records shall be maintained within the state and must be open

10  to inspection and available for photocopying by members or

11  their authorized agents at reasonable times and places within

12  10 business days after receipt of a written request for

13  access. This subsection may be complied with by having a copy

14  of the official records available for inspection or copying in

15  the community. If the association has a photocopy machine

16  available where the records are maintained, it must provide

17  parcel owners with copies on request during the inspection if

18  the entire request is limited to no more than 25 pages.

19         (d)  The association or its authorized agent is not

20  required to provide a prospective purchaser or lienholder with

21  information about the residential subdivision or the

22  association other than information or documents required by

23  this chapter to be made available or disclosed. The

24  association or its authorized agent may charge a reasonable

25  fee to the prospective purchaser or lienholder or the current

26  parcel owner or member for providing good faith responses to

27  requests for information by or on behalf of a prospective

28  purchaser or lienholder, other than that required by law, if

29  the fee does not exceed $150 plus the reasonable cost of

30  photocopying and any attorney's fees incurred by the

31  association in connection with the response.

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 1         (6)  BUDGETS.--

 2         (a)  The association shall prepare an annual budget

 3  that sets out the annual operating expenses. The budget must

 4  reflect the estimated revenues and expenses for that year and

 5  the estimated surplus or deficit as of the end of the current

 6  year. The budget must set out separately all fees or charges

 7  paid for by the association for recreational amenities,

 8  whether owned by the association, the developer, or another

 9  person. The association shall provide each member with a copy

10  of the annual budget or a written notice that a copy of the

11  budget is available upon request at no charge to the member.

12  The copy must be provided to the member within the time limits

13  set forth in subsection (5).

14         (b)  In addition to annual operating expenses, the

15  budget may include reserve accounts for capital expenditures

16  and deferred maintenance for which the association is

17  responsible to the extent that the governing documents do not

18  limit increases in assessments, including reserves. If the

19  budget of the association includes reserve accounts, such

20  reserves shall be determined, maintained, and waived in the

21  manner provided in this subsection. Once an association

22  provides for reserve accounts in the budget, the association

23  shall thereafter determine, maintain, and waive reserves in

24  compliance with the provisions of this subsection.

25         (c)  If the budget of the association does not provide

26  for reserve accounts governed by this subsection and the

27  association is responsible for the repair and maintenance of

28  capital improvements that may result in a special assessment

29  if reserves are not provided, each financial report for the

30  preceding fiscal year required by subsection (7) shall contain

31  the following statement in conspicuous type: THE BUDGET OF THE

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 1  ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL

 2  EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN

 3  SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE

 4  ACCOUNTS PURSUANT TO THE PROVISIONS OF SECTION 720.303(6),

 5  FLORIDA STATUTES, UPON THE APPROVAL OF NOT LESS THAN A

 6  MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION.

 7         (d)  An association shall be deemed to have provided

 8  for reserve accounts when reserve accounts have been initially

 9  established by the developer or when the membership of the

10  association affirmatively elects to provide for reserves. If

11  reserve accounts are not initially provided for by the

12  developer, the membership of the association may elect to do

13  so upon the affirmative approval of not less than a majority

14  of the total voting interests of the association. Such

15  approval may be attained by vote of the members at a duly

16  called meeting of the membership or upon a written consent

17  executed by not less than a majority of the total voting

18  interests in the community. The approval action of the

19  membership shall state that reserve accounts shall be provided

20  for in the budget and designate the components for which the

21  reserve accounts are to be established. Upon approval by the

22  membership, the board of directors shall provide for the

23  required reserve accounts for inclusion in the budget in the

24  next fiscal year following the approval and in each year

25  thereafter. Once established as provided in this subsection,

26  the reserve accounts shall be funded or maintained or shall

27  have their funding waived in the manner provided in paragraph

28  (f).

29         (e)  The amount to be reserved in any account

30  established shall be computed by means of a formula that is

31  based upon estimated remaining useful life and estimated

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 1  replacement cost or deferred maintenance expense of each

 2  reserve item. The association may adjust replacement reserve

 3  assessments annually to take into account any changes in

 4  estimates of cost or useful life of a reserve item.

 5         (f)  Once a reserve account or reserve accounts are

 6  established, the membership of the association, upon a

 7  majority vote at a meeting at which a quorum is present, may

 8  provide for no reserves or less reserves than required by this

 9  section. If a meeting of the unit owners has been called to

10  determine whether to waive or reduce the funding of reserves

11  and no such result is achieved or a quorum is not present, the

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

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

14  waive or reduce the funding of reserves. Any vote taken

15  pursuant to this subsection to waive or reduce reserves shall

16  be applicable only to one budget year.

17         (g)  Funding formulas for reserves authorized by this

18  section shall be based on either a separate analysis of each

19  of the required assets or a pooled analysis of two or more of

20  the required assets.

21         1.  If the association maintains separate reserve

22  accounts for each of the required assets, the amount of the

23  contribution to each reserve account shall be the sum of the

24  following two calculations:

25         a.  The total amount necessary, if any, to bring a

26  negative component balance to zero.

27         b.  The total estimated deferred maintenance expense or

28  estimated replacement cost of the reserve component less the

29  estimated balance of the reserve component as of the beginning

30  of the period for which the budget will be in effect. The

31  

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 1  remainder, if greater than zero, shall be divided by the

 2  estimated remaining useful life of the component.

 3  

 4  The formula may be adjusted each year for changes in estimates

 5  and deferred maintenance performed during the year and may

 6  include factors such as inflation and earnings on invested

 7  funds.

 8         2.  If the association maintains a pooled account of

 9  two or more of the required reserve assets, the amount of the

10  contribution to the pooled reserve account as disclosed on the

11  proposed budget shall not be less than that required to ensure

12  that the balance on hand at the beginning of the period for

13  which the budget will go into effect plus the projected annual

14  cash inflows over the remaining estimated useful life of all

15  of the assets that make up the reserve pool are equal to or

16  greater than the projected annual cash outflows over the

17  remaining estimated useful lives of all of the assets that

18  make up the reserve pool, based on the current reserve

19  analysis. The projected annual cash inflows may include

20  estimated earnings from investment of principal. The reserve

21  funding formula shall not include any type of balloon

22  payments.

23         (h)  Reserve funds and any interest accruing thereon

24  shall remain in the reserve account or accounts and shall be

25  used only for authorized reserve expenditures unless their use

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

27  at a meeting at which a quorum is present. Prior to turnover

28  of control of an association by a developer to parcel owners,

29  the developer-controlled association shall not vote to use

30  reserves for purposes other than those for which they were

31  intended without the approval of a majority of all

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 1  nondeveloper voting interests voting in person or by limited

 2  proxy at a duly called meeting of the association.

 3         (7)  FINANCIAL REPORTING.--Within 90 days after the end

 4  of the fiscal year, or annually on the date provided in the

 5  bylaws, the association shall prepare and complete, or

 6  contract with a third party for the preparation and completion

 7  of, a financial report for the preceding fiscal year. Within

 8  21 days after the final financial report is completed by the

 9  association or received from the third party, but not later

10  than 120 days after the end of the fiscal year or other date

11  as provided in the bylaws, the association shall prepare an

12  annual financial report within 60 days after the close of the

13  fiscal year. The association shall, within the time limits set

14  forth in subsection (5), provide each member with a copy of

15  the annual financial report or a written notice that a copy of

16  the financial report is available upon request at no charge to

17  the member. Financial reports shall be prepared as follows:

18         (a)  An association that meets the criteria of this

19  paragraph shall prepare or cause to be prepared a complete set

20  of financial statements in accordance with generally accepted

21  accounting principles as adopted by the Board of Accountancy.

22  The financial statements shall be based upon the association's

23  total annual revenues, as follows:

24         1.  An association with total annual revenues of

25  $100,000 or more, but less than $200,000, shall prepare

26  compiled financial statements.

27         2.  An association with total annual revenues of at

28  least $200,000, but less than $400,000, shall prepare reviewed

29  financial statements.

30         3.  An association with total annual revenues of

31  $400,000 or more shall prepare audited financial statements.

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 1         (b)1.  An association with total annual revenues of

 2  less than $100,000 shall prepare a report of cash receipts and

 3  expenditures.

 4         2.  An association in a community of fewer than 50

 5  parcels, regardless of the association's annual revenues, may

 6  prepare a report of cash receipts and expenditures in lieu of

 7  financial statements required by paragraph (a) unless the

 8  governing documents provide otherwise.

 9         3.  A report of cash receipts and disbursement must

10  disclose the amount of receipts by accounts and receipt

11  classifications and the amount of expenses by accounts and

12  expense classifications, including, but not limited to, the

13  following, as applicable: costs for security, professional,

14  and management fees and expenses; taxes; costs for recreation

15  facilities; expenses for refuse collection and utility

16  services; expenses for lawn care; costs for building

17  maintenance and repair; insurance costs; administration and

18  salary expenses; and reserves if maintained by the

19  association.

20         (c)  If 20 percent of the parcel owners petition the

21  board for a level of financial reporting higher than that

22  required by this section, the association shall duly notice

23  and hold a meeting of members within 30 days of receipt of the

24  petition for the purpose of voting on raising the level of

25  reporting for that fiscal year. Upon approval of a majority of

26  the total voting interests of the parcel owners, the

27  association shall prepare or cause to be prepared, shall amend

28  the budget or adopt a special assessment to pay for the

29  financial report regardless of any provision to the contrary

30  in the governing documents, and shall provide within 90 days

31  

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 1  of the meeting or the end of the fiscal year, whichever occurs

 2  later:

 3         1.  Compiled, reviewed, or audited financial

 4  statements, if the association is otherwise required to

 5  prepare a report of cash receipts and expenditures;

 6         2.  Reviewed or audited financial statements, if the

 7  association is otherwise required to prepare compiled

 8  financial statements; or

 9         3.  Audited financial statements if the association is

10  otherwise required to prepare reviewed financial statements.

11         (d)  If approved by a majority of the voting interests

12  present at a properly called meeting of the association, an

13  association may prepare or cause to be prepared:

14         1.  A report of cash receipts and expenditures in lieu

15  of a compiled, reviewed, or audited financial statement;

16         2.  A report of cash receipts and expenditures or a

17  compiled financial statement in lieu of a reviewed or audited

18  financial statement; or

19         3.  A report of cash receipts and expenditures, a

20  compiled financial statement, or a reviewed financial

21  statement in lieu of an audited financial statement.

22         Section 11.  Subsection (2) of section 720.303, Florida

23  Statutes, as amended by section 2 of chapter 2004-345 and

24  section 15 of chapter 2004-353, Laws of Florida, is repealed.

25         Section 12.  Section 720.3035, Florida Statutes, is

26  created to read:

27         720.3035  Architectural control covenants; parcel owner

28  improvements; rights and privileges.--

29         (1)  The authority of an association or any

30  architectural, construction improvement, or other such similar

31  committee of an association to review and approve plans and

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 1  specifications for the location, size, type, or appearance of

 2  any structure or other improvement on a parcel, or to enforce

 3  standards for the external appearance of any structure or

 4  improvement located on a parcel, shall only be permitted to

 5  the extent that the authority is specifically stated or

 6  reasonably inferred as to such location, size, type, or

 7  appearance in the declaration of covenants or other published

 8  guidelines and standards authorized by the declaration of

 9  covenants.

10         (2)  If the declaration of covenants or other published

11  guidelines and standards authorized by the declaration of

12  covenants provides options for the use of material, the size

13  of the structure or improvement, the design of the structure

14  or improvement, or the location of the structure or

15  improvement on the parcel, neither the association nor any

16  architectural, construction improvement, or other such similar

17  committee of the association shall restrict the right of a

18  parcel owner to select from the options provided in the

19  declaration of covenants or other published guidelines and

20  standards authorized by the declaration of covenants.

21         (3)  Unless otherwise specifically stated in the

22  declaration of covenants or other published guidelines and

23  standards authorized by the declaration of covenants, each

24  parcel shall be deemed to have only one front for purposes of

25  determining the required front setback even if the parcel is

26  bounded by a roadway or other easement on more than one side.

27  When the declaration of covenants or other published

28  guidelines and standards authorized by the declaration of

29  covenants do not provide for specific setback limitations, the

30  applicable county or municipal setback limitations shall

31  apply, and neither the association nor any architectural,

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 1  construction improvement, or other such similar committee of

 2  the association shall enforce or attempt to enforce any

 3  setback limitation that is inconsistent with the applicable

 4  county or municipal standard or standards.

 5         (4)  Each parcel owner shall be entitled to the rights

 6  and privileges set forth in the declaration of covenants or

 7  other published guidelines and standards authorized by the

 8  declaration of covenants concerning the use of the parcel, and

 9  the construction of permitted structures and improvements on

10  the parcel and such rights and privileges shall not be

11  unreasonably infringed upon or impaired by the association or

12  any architectural, construction improvement, or other such

13  similar committee of the association. If the association or

14  any architectural, construction improvement, or other such

15  similar committee of the association should knowingly and

16  willfully infringe upon or impair the rights and privileges

17  set forth in the declaration of covenants or other published

18  guidelines and standards authorized by the declaration of

19  covenants, the adversely affected parcel owner shall be

20  entitled to recover damages caused by such infringement or

21  impairment, including any costs and reasonable attorney's fees

22  incurred in preserving or restoring the rights and privileges

23  of the parcel owner set forth in the declaration of covenants

24  or other published guidelines and standards authorized by the

25  declaration of covenants.

26         (5)  Neither the association nor any architectural,

27  construction improvement, or other such similar committee of

28  the association shall enforce any policy or restriction that

29  is inconsistent with the rights and privileges of a parcel

30  owner set forth in the declaration of covenants or other

31  published guidelines and standards authorized by the

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 1  declaration of covenants, whether uniformly applied or not.

 2  Neither the association nor any architectural, construction

 3  improvement, or other such similar committee of the

 4  association may rely upon a policy or restriction that is

 5  inconsistent with the declaration of covenants or other

 6  published guidelines and standards authorized by the

 7  declaration of covenants, whether uniformly applied or not, in

 8  defense of any action taken in the name of or on behalf of the

 9  association against a parcel owner.

10         Section 13.  Subsection (1) of section 720.305, Florida

11  Statutes, is amended to read:

12         720.305  Obligations of members; remedies at law or in

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

14  fill sufficient number of vacancies on board of directors to

15  constitute a quorum; appointment of receiver upon petition of

16  any member.--

17         (1)  Each member and the member's tenants, guests, and

18  invitees, and each association, are governed by, and must

19  comply with, this chapter, the governing documents of the

20  community, and the rules of the association. Actions at law or

21  in equity, or both, to redress alleged failure or refusal to

22  comply with these provisions may be brought by the association

23  or by any member against:

24         (a)  The association;

25         (b)  A member;

26         (c)  Any director or officer of an association who

27  willfully and knowingly fails to comply with these provisions;

28  and

29         (d)  Any tenants, guests, or invitees occupying a

30  parcel or using the common areas.

31  

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 1  The prevailing party in any such litigation is entitled to

 2  recover reasonable attorney's fees and costs. A member

 3  prevailing in an action between the association and the member

 4  under this section, in addition to recovering his or her

 5  reasonable attorney's fees, may recover additional amounts as

 6  determined by the court to be necessary to reimburse the

 7  member for his or her share of assessments levied by the

 8  association to fund its expenses of the litigation. This

 9  relief does not exclude other remedies provided by law. This

10  section does not deprive any person of any other available

11  right or remedy.

12         Section 14.  Paragraph (c) of subsection (1) of section

13  720.306, Florida Statutes, is amended to read:

14         720.306  Meetings of members; voting and election

15  procedures; amendments.--

16         (1)  QUORUM; AMENDMENTS.--

17         (c)  Unless otherwise provided in the governing

18  documents as originally recorded or permitted by this chapter

19  or chapter 617, an amendment may not materially and adversely

20  alter the proportionate voting interest appurtenant to a

21  parcel or increase the proportion or percentage by which a

22  parcel shares in the common expenses of the association unless

23  the record parcel owner and all record owners of liens on the

24  parcels join in the execution of the amendment. For purposes

25  of this section, a change in quorum requirements is not an

26  alteration of voting interests. The merger or consolidation of

27  one or more associations under a plan of merger or

28  consolidation under chapter 607 or chapter 617 shall not be

29  considered a material or adverse alteration of the

30  proportionate voting interest appurtenant to a parcel.

31  

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 1         Section 15.  Paragraph (t) is added to subsection (3)

 2  of section 720.307, Florida Statutes, to read:

 3         720.307  Transition of association control in a

 4  community.--With respect to homeowners' associations:

 5         (3)  At the time the members are entitled to elect at

 6  least a majority of the board of directors of the homeowners'

 7  association, the developer shall, at the developer's expense,

 8  within no more than 90 days deliver the following documents to

 9  the board:

10         (t)  The financial records, including financial

11  statements of the association, and source documents from the

12  incorporation of the association through the date of turnover.

13  The records shall be audited by an independent certified

14  public accountant for the period from the incorporation of the

15  association or from the period covered by the last audit, if

16  an audit has been performed for each fiscal year since

17  incorporation. All financial statements shall be prepared in

18  accordance with generally accepted accounting principles and

19  shall be audited in accordance with generally accepted

20  auditing standards, as prescribed by the Board of Accountancy,

21  pursuant to chapter 473. The certified public accountant

22  performing the audit shall examine to the extent necessary

23  supporting documents and records, including the cash

24  disbursements and related paid invoices to determine if

25  expenditures were for association purposes and the billings,

26  cash receipts, and related records of the association to

27  determine that the developer was charged and paid the proper

28  amounts of assessments. This paragraph applies to associations

29  with a date of incorporation after December 31, 2006.

30         Section 16.  Section 720.308, Florida Statutes, is

31  amended to read:

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 1         720.308  Assessments and charges.--

 2         (1)  ASSESSMENTS.--For any community created after

 3  October 1, 1995, the governing documents must describe the

 4  manner in which expenses are shared and specify the member's

 5  proportional share thereof. Assessments levied pursuant to the

 6  annual budget or special assessment must be in the member's

 7  proportional share of expenses as described in the governing

 8  document, which share may be different among classes of

 9  parcels based upon the state of development thereof, levels of

10  services received by the applicable members, or other relevant

11  factors. While the developer is in control of the homeowners'

12  association, it may be excused from payment of its share of

13  the operating expenses and assessments related to its parcels

14  for any period of time for which the developer has, in the

15  declaration, obligated itself to pay any operating expenses

16  incurred that exceed the assessments receivable from other

17  members and other income of the association. This section does

18  not apply to an association, no matter when created, if the

19  association is created in a community that is included in an

20  effective development-of-regional-impact development order as

21  of the effective date of this act, together with any approved

22  modifications thereto.

23         (2)  GUARANTEES OF COMMON EXPENSES.--

24         (a)  Establishment of a guarantee.--If a guarantee of

25  the assessments of parcel owners is not included in the

26  purchase contracts or declaration, any agreement establishing

27  a guarantee shall only be effective upon the approval of a

28  majority of the voting interests of the members other than the

29  developer. Approval shall be expressed at a meeting of the

30  members voting in person or by limited proxy or by agreement

31  

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 1  in writing without a meeting if provided in the bylaws. Such

 2  guarantee shall meet the requirements of this section.

 3         (b)  Guarantee period.--The period of time for the

 4  guarantee shall be indicated by a specific beginning and

 5  ending date or event.

 6         1.  The ending date or event shall be the same for all

 7  of the members of an association, including members in

 8  different phases of the development.

 9         2.  The guarantee may provide for different intervals

10  of time during a guarantee period with different dollar

11  amounts for each such interval.

12         3.  The guarantee may provide that after the initial

13  stated period, the developer has an option to extend the

14  guarantee for one or more additional stated periods. The

15  extension of a guarantee is limited to extending the ending

16  date or event; therefore, the developer does not have the

17  option of changing the level of assessments guaranteed.

18         (3)  MAXIMUM LEVEL OF ASSESSMENTS.--The stated dollar

19  amount of the guarantee shall be an exact dollar amount for

20  each parcel identified in the declaration. Regardless of the

21  stated dollar amount of the guarantee, assessments charged to

22  a member shall not exceed the maximum obligation of the member

23  based on the total amount of the adopted budget and the

24  member's proportionate ownership share of the common elements.

25         (4)  CASH FUNDING REQUIREMENTS DURING GUARANTEE.--The

26  cash payments required from the guarantor during the guarantee

27  period shall be determined as follows:

28         (a)  If at any time during the guarantee period the

29  funds collected from member assessments at the guaranteed

30  level and other revenues collected by the association are not

31  sufficient to provide payment, on a timely basis, of all

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 1  assessments, including the full funding of the reserves unless

 2  properly waived, the guarantor shall advance sufficient cash

 3  to the association at the time such payments are due.

 4         (b)  Expenses incurred in the production of

 5  nonassessment revenues, not in excess of the nonassessment

 6  revenues, shall not be included in the assessments. If the

 7  expenses attributable to nonassessment revenues exceed

 8  nonassessment revenues, only the excess expenses must be

 9  funded by the guarantor. Interest earned on the investment of

10  association funds may be used to pay the income tax expense

11  incurred as a result of the investment; such expense shall not

12  be charged to the guarantor; and the net investment income

13  shall be retained by the association. Each such

14  nonassessment-revenue-generating activity shall be considered

15  separately. Any portion of the parcel assessment that is

16  budgeted for designated capital contributions of the

17  association shall not be used to pay operating expenses.

18         (5)  CALCULATION OF GUARANTOR'S FINAL OBLIGATION.--The

19  guarantor's total financial obligation to the association at

20  the end of the guarantee period shall be determined on the

21  accrual basis using the following formula: the guarantor shall

22  pay any deficits that exceed the guaranteed amount, less the

23  total regular periodic assessments earned by the association

24  from the members other than the guarantor during the guarantee

25  period regardless of whether the actual level charged was less

26  than the maximum guaranteed amount.

27         (6)  EXPENSES.--Expenses incurred in the production of

28  nonassessment revenues, not in excess of the nonassessment

29  revenues, shall not be included in the operating expenses. If

30  the expenses attributable to nonassessment revenues exceed

31  nonassessment revenues, only the excess expenses must be

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 1  funded by the guarantor. Interest earned on the investment of

 2  association funds may be used to pay the income tax expense

 3  incurred as a result of the investment; such expense shall not

 4  be charged to the guarantor; and the net investment income

 5  shall be retained by the association. Each such

 6  nonassessment-revenue-generating activity shall be considered

 7  separately. Any portion of the parcel assessment that is

 8  budgeted for designated capital contributions of the

 9  association shall not be used to pay operating expenses.

10         Section 17.  Section 720.311, Florida Statutes, is

11  amended to read:

12         720.311  Dispute resolution.--

13         (1)  The Legislature finds that alternative dispute

14  resolution has made progress in reducing court dockets and

15  trials and in offering a more efficient, cost-effective option

16  to litigation. The filing of any petition for mediation or

17  arbitration or the serving of an offer for presuit mediation

18  as provided for in this section shall toll the applicable

19  statute of limitations. Any recall dispute filed with the

20  department pursuant to s. 720.303(10) shall be conducted by

21  the department in accordance with the provisions of ss.

22  718.112(2)(j) and 718.1255 and the rules adopted by the

23  division. In addition, the department shall conduct mandatory

24  binding arbitration of election disputes between a member and

25  an association pursuant to s. 718.1255 and rules adopted by

26  the division. Neither election disputes nor recall disputes

27  are eligible for presuit mediation; these disputes shall be

28  arbitrated by the department. At the conclusion of the

29  proceeding, the department shall charge the parties a fee in

30  an amount adequate to cover all costs and expenses incurred by

31  the department in conducting the proceeding. Initially, the

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 1  petitioner shall remit a filing fee of at least $200 to the

 2  department. The fees paid to the department shall become a

 3  recoverable cost in the arbitration proceeding, and the

 4  prevailing party in an arbitration proceeding shall recover

 5  its reasonable costs and attorney's fees in an amount found

 6  reasonable by the arbitrator. The department shall adopt rules

 7  to effectuate the purposes of this section.

 8         (2)(a)  Disputes between an association and a parcel

 9  owner regarding use of or changes to the parcel or the common

10  areas and other covenant enforcement disputes, disputes

11  regarding amendments to the association documents, disputes

12  regarding meetings of the board and committees appointed by

13  the board, membership meetings not including election

14  meetings, and access to the official records of the

15  association shall be the subject of an offer filed with the

16  department for presuit mandatory mediation served by an

17  aggrieved party before the dispute is filed in court. Presuit

18  mediation proceedings must be conducted in accordance with the

19  applicable Florida Rules of Civil Procedure, and these

20  proceedings are privileged and confidential to the same extent

21  as court-ordered mediation. Disputes subject to presuit

22  mediation under this section shall not include the collection

23  of any assessment, fine, or other financial obligation,

24  including attorney's fees and costs, claimed to be due or any

25  action to enforce a prior mediation settlement agreement

26  between the parties. Also, in any dispute subject to presuit

27  mediation under this section where emergency relief is

28  required, a motion for temporary injunctive relief may be

29  filed with the court without first complying with the presuit

30  mediation requirements of this section. After any issues

31  regarding emergency or temporary relief are resolved, the

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 1  court may either refer the parties to a mediation program

 2  administered by the courts or require mediation under this

 3  section. An arbitrator or judge may not consider any

 4  information or evidence arising from the presuit mediation

 5  proceeding except in a proceeding to impose sanctions for

 6  failure to attend a presuit mediation session or with the

 7  parties' agreement in a proceeding seeking to enforce the

 8  agreement. Persons who are not parties to the dispute may not

 9  attend the presuit mediation conference without the consent of

10  all parties, except for counsel for the parties and a

11  corporate representative designated by the association. When

12  mediation is attended by a quorum of the board, such mediation

13  is not a board meeting for purposes of notice and

14  participation set forth in s. 720.303. An aggrieved party

15  shall serve on the responding party a written offer to

16  participate in presuit mediation in substantially the

17  following form:

18       STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION

19         The alleged aggrieved party,__________________,

20         hereby offers to _________________, as the

21         responding party, to enter into presuit

22         mediation in connection with the following

23         dispute, which by statute is of a type that is

24         subject to presuit mediation:

25  

26         (List specific nature of the dispute or

27         disputes to be mediated and the authority

28         supporting a finding of a violation as to each

29         dispute.)

30  

31  

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 1         Pursuant to section 720.311, Florida Statutes,

 2         this offer to resolve the dispute through

 3         presuit mediation is required before a lawsuit

 4         can be filed concerning the dispute. Pursuant

 5         to the statute, the aggrieved party is hereby

 6         offering to engage in presuit mediation with a

 7         neutral third-party mediator in order to

 8         attempt to resolve this dispute without court

 9         action, and the aggrieved party demands that

10         you likewise agree to this process. If you fail

11         to agree to presuit mediation, or if you agree

12         and later fail to follow through with your

13         agreement to mediate, suit may be brought

14         against you without further warning.

15  

16         The process of mediation involves a supervised

17         negotiation process in which a trained, neutral

18         third-party mediator meets with both parties

19         and assists them in exploring possible

20         opportunities for resolving part or all of the

21         dispute. The mediation process is a voluntary

22         one. By agreeing to participate in presuit

23         mediation, you are not bound in any way to

24         change your position or to enter into any type

25         of agreement. Furthermore, the mediator has no

26         authority to make any decisions in this matter

27         or to determine who is right or wrong and

28         merely acts as a facilitator to ensure that

29         each party understands the position of the

30         other party and that all reasonable settlement

31         options are fully explored. All mediation

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 1         communications are confidential under the

 2         Mediation Confidentiality and Privilege Act

 3         pursuant to sections 44.401-44.406, Florida

 4         Statutes, and a mediation participant may not

 5         disclose a mediation communication to a person

 6         other than a mediation participant or a

 7         participant's counsel.

 8  

 9         If an agreement is reached, it shall be reduced

10         to writing and becomes a binding and

11         enforceable commitment of the parties. A

12         resolution of one or more disputes in this

13         fashion avoids the need to litigate these

14         issues in court. The failure to reach an

15         agreement, or the failure of a party to

16         participate in the process, results in the

17         mediator's declaring an impasse in the

18         mediation, after which the aggrieved party may

19         proceed to court on all outstanding, unsettled

20         disputes.

21  

22         The aggrieved party has selected and hereby

23         lists three certified mediators who we believe

24         to be neutral and qualified to mediate the

25         dispute. You have the right to select any one

26         of these mediators. The fact that one party may

27         be familiar with one or more of the listed

28         mediators does not mean that the mediator

29         cannot act as a neutral and impartial

30         facilitator. Any mediator who cannot act in

31         this capacity ethically must decline to accept

                                  34

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 1         engagement. The mediators that we suggest, and

 2         their current hourly rates, are as follows:

 3  

 4         (List the names, addresses, telephone numbers,

 5         and hourly rates of the mediators. Other

 6         pertinent information about the background of

 7         the mediators may be included as an

 8         attachment.)

 9  

10         You may contact the offices of these mediators

11         to confirm that the listed mediators will be

12         neutral and will not show any favoritism toward

13         either party. The names of certified mediators

14         may be found through the office of the clerk of

15         the circuit court for this circuit.

16  

17         If you agree to participate in the presuit

18         mediation process, the statute requires that

19         each party is to pay one-half of the costs and

20         fees involved in the presuit mediation process

21         unless otherwise agreed by all parties. An

22         average mediation may require 3 to 4 hours of

23         the mediator's time, including some preparation

24         time, and each party would need to pay one-half

25         of the mediator's fees as well as his or her

26         own attorney's fees if he or she chooses to

27         employ an attorney in connection with the

28         mediation. However, use of an attorney is not

29         required and is at the option of each party.

30         The mediator may require the advance payment of

31         some or all of the anticipated fees. The

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 1         aggrieved party hereby agrees to pay or prepay

 2         one-half of the mediator's estimated fees and

 3         to forward this amount or such other reasonable

 4         advance deposits as the mediator may require

 5         for this purpose. Any funds deposited will be

 6         returned to you if these are in excess of your

 7         share of the fees incurred.

 8  

 9         If you agree to participate in presuit

10         mediation in order to attempt to resolve the

11         dispute and thereby avoid further legal action,

12         please sign below and clearly indicate which

13         mediator is acceptable to you. We will then ask

14         the mediator to schedule a mutually convenient

15         time and place for the mediation conference to

16         be held. The mediation conference must be held

17         within 90 days after the date of this letter

18         unless extended by mutual written agreement. In

19         the event that you fail to respond within 20

20         days after the date of this letter, or if you

21         fail to agree to at least one of the mediators

22         that we have suggested and to pay or prepay to

23         the mediator one-half of the costs involved,

24         the aggrieved party will be authorized to

25         proceed with the filing of a lawsuit against

26         you without further notice and may seek an

27         award of attorney's fees or costs incurred in

28         attempting to obtain mediation.

29  

30  

31  

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 1         Should you wish, you may also elect to waive

 2         presuit mediation so that this matter may

 3         proceed directly to court.

 4  

 5         Therefore, please give this matter your

 6         immediate attention. By law, your response must

 7         be mailed by certified mail, return receipt

 8         requested, with an additional copy being sent

 9         by regular first-class mail to the address

10         shown on this offer.

11  

12         _____________________

13         _____________________

14  

15         RESPONDING PARTY: CHOOSE ONLY ONE OF THE TWO

16         OPTIONS BELOW. YOUR SIGNATURE INDICATES YOUR

17         AGREEMENT TO THAT CHOICE.

18  

19         AGREEMENT TO MEDIATE

20  

21         The undersigned hereby agrees to participate in

22         presuit mediation and agrees to the following

23         mediator or mediators as acceptable to mediate

24         this dispute:

25  

26         (List acceptable mediator or mediators.)

27  

28         I/we further agree to pay or prepay one-half of

29         the mediator's fees and to forward such advance

30         deposits as the mediator may require for this

31         purpose.

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 1  

 2         _______________________

 3         Signature of responding party #1

 4  

 5         _______________________

 6         Signature of responding party #2 (if

 7         applicable)(if property is owned by more than

 8         one person, all owners must sign)

 9  

10         WAIVER OF MEDIATION

11  

12         The undersigned hereby waives the right to

13         participate in presuit mediation of the dispute

14         listed above and agrees to allow the aggrieved

15         party to proceed in court on such matters.

16  

17         __________________________

18         Signature of responding party #1

19  

20         ___________________________

21         Signature of responding party #2 (if

22         applicable)(if property is owned by more than

23         one person, all owners must sign)

24  

25         (b)  Service of the statutory offer to participate in

26  presuit mediation shall be effected by sending a letter in

27  substantial conformity with the above form by certified mail,

28  return receipt requested, with an additional copy being sent

29  by regular first-class mail, to the address of the responding

30  party as it last appears on the books and records of the

31  association. The responding party shall have 20 days from the

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 1  date of the mailing of the statutory offer to serve a response

 2  to the aggrieved party in writing. The response shall be

 3  served by certified mail, return receipt requested, with an

 4  additional copy being sent by regular first-class mail, to the

 5  address shown on the statutory offer. In the alternative, the

 6  responding party may waive mediation in writing.

 7  Notwithstanding the foregoing, once the parties have agreed on

 8  a mediator, the mediator may reschedule the mediation for a

 9  date and time mutually convenient to the parties. The

10  department shall conduct the proceedings through the use of

11  department mediators or refer the disputes to private

12  mediators who have been duly certified by the department as

13  provided in paragraph (c). The parties shall share the costs

14  of presuit mediation equally, including the fee charged by the

15  mediator, if any, unless the parties agree otherwise, and the

16  mediator may require advance payment of its reasonable fees

17  and costs. The failure of any party to respond to a demand or

18  response, to agree upon a mediator, to make payment of fees

19  and costs within the time established by the mediator, or to

20  appear for a scheduled mediation session shall operate as an

21  impasse in the presuit mediation by such party, entitling the

22  other party to proceed in court and to seek an award of the

23  costs and fees associated with the mediation. Additionally, if

24  any presuit mediation session cannot be scheduled and

25  conducted within 90 days after the offer to participate in

26  mediation was filed, an impasse shall be deemed to have

27  occurred unless both parties agree to extend this deadline. If

28  a department mediator is used, the department may charge such

29  fee as is necessary to pay expenses of the mediation,

30  including, but not limited to, the salary and benefits of the

31  mediator and any travel expenses incurred. The petitioner

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 1  shall initially file with the department upon filing the

 2  disputes, a filing fee of $200, which shall be used to defray

 3  the costs of the mediation. At the conclusion of the

 4  mediation, the department shall charge to the parties, to be

 5  shared equally unless otherwise agreed by the parties, such

 6  further fees as are necessary to fully reimburse the

 7  department for all expenses incurred in the mediation.

 8         (c)(b)  If presuit mediation as described in paragraph

 9  (a) is not successful in resolving all issues between the

10  parties, the parties may file the unresolved dispute in a

11  court of competent jurisdiction or elect to enter into binding

12  or nonbinding arbitration pursuant to the procedures set forth

13  in s. 718.1255 and rules adopted by the division, with the

14  arbitration proceeding to be conducted by a department

15  arbitrator or by a private arbitrator certified by the

16  department. If all parties do not agree to arbitration

17  proceedings following an unsuccessful presuit mediation, any

18  party may file the dispute in court. A final order resulting

19  from nonbinding arbitration is final and enforceable in the

20  courts if a complaint for trial de novo is not filed in a

21  court of competent jurisdiction within 30 days after entry of

22  the order. As to any issue or dispute that is not resolved at

23  presuit mediation, and as to any issue that is settled at

24  presuit mediation but is thereafter subject to an action

25  seeking enforcement of the mediation settlement, the

26  prevailing party in any subsequent arbitration or litigation

27  proceeding shall be entitled to seek recovery of all costs and

28  attorney's fees incurred in the presuit mediation process.

29         (d)(c)  The department shall develop a certification

30  and training program for private mediators and private

31  arbitrators which shall emphasize experience and expertise in

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 1  the area of the operation of community associations. A

 2  mediator or arbitrator shall be certified to conduct mediation

 3  or arbitration under this section by the department only if he

 4  or she has been certified as a circuit court civil mediator or

 5  arbitrator, respectively, pursuant to the requirements

 6  established attended at least 20 hours of training in

 7  mediation or arbitration, as appropriate, and only if the

 8  applicant has mediated or arbitrated at least 10 disputes

 9  involving community associations within 5 years prior to the

10  date of the application, or has mediated or arbitrated 10

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

12  application and has completed 20 hours of training in

13  community association disputes. In order to be certified by

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

15  Florida Supreme Court. The department may conduct the training

16  and certification program within the department or may

17  contract with an outside vendor to perform the training or

18  certification. The expenses of operating the training and

19  certification and training program shall be paid by the moneys

20  and filing fees generated by the arbitration of recall and

21  election disputes and by the mediation of those disputes

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

23         (e)(d)  The presuit mediation procedures provided by

24  this subsection may be used by a Florida corporation

25  responsible for the operation of a community in which the

26  voting members are parcel owners or their representatives, in

27  which membership in the corporation is not a mandatory

28  condition of parcel ownership, or which is not authorized to

29  impose an assessment that may become a lien on the parcel.

30         (3)  The department shall develop an education program

31  to assist homeowners, associations, board members, and

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 1  managers in understanding and increasing awareness of the

 2  operation of homeowners' associations pursuant to this chapter

 3  and in understanding the use of alternative dispute resolution

 4  techniques in resolving disputes between parcel owners and

 5  associations or between owners. Such education program may

 6  include the development of pamphlets and other written

 7  instructional guides, the holding of classes and meetings by

 8  department employees or outside vendors, as the department

 9  determines, and the creation and maintenance of a website

10  containing instructional materials. The expenses of operating

11  the education program shall be initially paid by the moneys

12  and filing fees generated by the arbitration of recall and

13  election disputes and by the mediation of those disputes

14  referred to in this subsection.

15         Section 18.  Except as otherwise expressly provided in

16  this act, this act shall take effect July 1, 2006.

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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 1          STATEMENT OF SUBSTANTIAL CHANGES CONTAINED IN
                       COMMITTEE SUBSTITUTE FOR
 2                         Senate Bill 2358

 3                                 

 4  The CS creates s. 712.11, F.S., to provide for revival of
    declaration of covenants that have lapsed.
 5  
    The CS amends s 718.106, F.S., to provide for beach access for
 6  condominiums.

 7  The bill amends s. 718.110, F.S., to limit the enforcement of
    any provision in the governing documents of a condominium
 8  association recorded on or after October 1, 2006 that require
    the consent or joinder of some or all mortgages, of units or
 9  any other portion of the condominium property for those
    mortgages, with certain exceptions.
10  
    The CS amends s. 718.112(2)(1), F.S., to extend from 2014 to
11  the end of the year 2025 the date before  which local
    authorities cannot require that condominium associations in
12  high-rise buildings must retrofit their common areas with a
    fire sprinkler system.
13  
    The CS amends s. 718.114, F.S., to restrict leaseholds,
14  memberships, or other possessory or use interest acquired
    within 12 months after a declaration in acquired.
15  
    The CS amends s. 718.404(1) and (2), F.S., to provide that
16  these subsections apply retroactively as a remedial measure.

17  The CS creates s. 719.013, F.S., to define the term "equity
    facilities club."  It also amends s. 719.507, F.S., to
18  prohibit certain laws, ordinances, or regulations that are not
    equally applicable to other forms of ownership.
19  
    The CS amends s. 720.302(4), F.S., to provide that ch. 720,
20  F.S., does not apply to any association regulated under chs.
    718, 719, 721, or 723, F.S., except to the extent that those
21  chapters expressly incorporate ch. 720, F.S, for the purpose
    of regulating homeowners' associations.
22  
    The CS amends s. 720.302(5), F.S., to require that
23  corporations operating residential homeowners' associations in
    Florida are to be governed by and subject to ch. 607, F.S., or
24  to ch. 617, F.S.

25  The CS amends s. 720.303(2)(a), F.S., as amended by section 18
    of ch. 2004-345, L.O.F., and section 135 of ch. 2005-2,
26  L.O.F., relating to open meeting requirements for homeowner's
    association boards.  It also repeals section 18 of ch.
27  2004-345, L.O.F., and section 135 of ch. 2005-2, L.O.F.

28  The CS amends s. 720.303(5), F.S., to provide for an
    association's duty to provide a prospective purchaser or
29  lienholder with information about the residential subdivision
    or the association, and to authorize the association to charge
30  a reasonable fee, including any attorney's fees incurred by
    the association in connection with the response.
31  
    The CS also repeals s. 720.303(2), F.S., as amended by section
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 1  2 of chapter 2004-345, L.O.F., and section 15 of chapter
    2004-353.
 2  
    The CS amends s. 720.303(6), F.S., to clarify that the fees
 3  and charges paid for by the association for recreational
    amenities must be separately set out.
 4  
    The CS provides that the annual budget may include reserve
 5  accounts for capital expenditures and deferred maintenance for
    which the association is responsible to the extent that the
 6  association's governing documents do not limit increases in
    assessments.  It deletes the requirement that the budget must
 7  include such a reserve account.  It deletes the requirement
    that these accounts must provide for items such as roof
 8  replacement, building painting, and pavement resurfacing and
    for any other item for which the expense or cost is more than
 9  $10,000.

10  The CS requires that, if the budget of the association
    includes reserve accounts, the reserves must be determined,
11  maintained and waived in the manner provided in s. 720.303(6),
    F.S.  It requires that, if an association provides for reserve
12  accounts in its budget, it must from then on continue to
    comply with the procedures in that subsection.
13  
    The CS creates s. 720.303(6)(c), F.S., to provide a notice
14  requirement for associations that do not provide reserve
    accounts.  It creates s. 720.303(6)(d), F.S., to provide
15  circumstances for when an association is deemed to provide for
    reserve accounts and to provide procedures for an association
16  to elect to provide for reserve accounts.  It provides that
    any vote taken to waive reserves is applicable for only one
17  budget year.  The CS deletes the provision that permits the
    developer to waive reserves for the first two fiscal years of
18  the association's operation after the initial declaration is
    recorded.
19  
    The CS creates s. 720.303(6)(g), F.S., to provide the funding
20  formula for reserves.  It creates s. 720.303(6)(h), F.S., to
    provide that the reserves may only be used for the authorized
21  reserve expenditure, unless another use of the expenditure is
    approved by a majority of the members.
22  
    The CS creates s. 720.3035, F.S., to limit the association's
23  authority to review and approve building plans and
    specifications, including options for the use of material, and
24  the size or design, only to the extent that it is specifically
    stated or reasonably inferred in the declaration of covenants,
25  or other published guidelines and standards authorized by the
    declaration of covenants.  It provides for the determination
26  of setbacks.  It also provides for recovery of damages by a
    parcel owner that is adversely affected by the infringement or
27  impairment of the rights set forth in the declaration of
    covenants, or other published guidelines and standards
28  authorized by the declaration of covenants.

29  The CS amends s. 720.305, F.S., to provide for the
    reimbursement of assessments levied to fund the association's
30  expenses of the litigation with a member who prevails in the
    litigation.
31  
    The CS amends s. 720.307(3)(t), F.S., to limit the application
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 1  of this paragraph to associations with a date of incorporation
    after December 31, 2006.
 2  
    The CS amends s. 720.306(1)(c), F.S., to provide that the
 3  merger or consolidation of one or more associations is not
    considered a material or adverse alteration of the
 4  proportionate voting interest appurtenant to a parcel.

 5  The CS amends s. 720.308, F.S., to refer to guarantees of
    assessments of parcel owners instead of common assessments.
 6  It provides for the use of interest earned on the investment
    of the association and to require retention of net investment
 7  income by the association.  It deletes an example regarding
    the funding of excess expenses by the guarantor.  It also adds
 8  headings to each subsection.

 9  The CS amends the homeowner's association dispute resolution
    procedures in s. 720.311, F.S.
10  

11  

12  

13  

14  

15  

16  

17  

18  

19  

20  

21  

22  

23  

24  

25  

26  

27  

28  

29  

30  

31  

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