Senate Bill sb2530

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    Florida Senate - 2006                                  SB 2530

    By Senator Posey





    24-1191A-06                                      See CS/HB 391

  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 declarations that have been

  5         extinguished; amending s. 718.110, F.S.;

  6         revising provisions relating to the amendment

  7         of declarations; providing legislative findings

  8         and a finding of compelling state interest;

  9         requiring a holder of a recorded mortgage on a

10         condominium unit that requires the consent or

11         joinder of a mortgagee to an amendment to

12         provide certain information to a condominium

13         association; providing definitions; providing

14         criteria for consent to an amendment; requiring

15         notice regarding proposed amendments to

16         mortgagees; providing criteria for

17         notification; requiring the association to

18         conduct a diligent search to identify

19         mortgagees; requiring the association's

20         representative to execute an affidavit

21         confirming that a diligent search was

22         conducted; prohibiting the declaration of

23         condominium, articles of incorporation, or

24         bylaws from requiring the consent or joinder of

25         more than a specified percent of the eligible

26         mortgagees in connection with proposed

27         amendments under certain conditions; providing

28         criteria for enforcement; requiring mortgagees

29         seeking to disapprove a proposed amendment to

30         provide certain information to the association;

31         providing for the recovery of certain costs and

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         attorney's fees; amending s. 718.404, F.S.;

 2         providing retroactive application of provisions

 3         relating to mixed-use condominiums; amending s.

 4         720.302, F.S.; revising governing provisions

 5         relating to corporations that operate

 6         residential homeowners' associations; amending

 7         s. 720.303, F.S.; providing that special

 8         assessments may not be levied at a board

 9         meeting except under certain circumstances;

10         revising provisions relating to the

11         closed-circuit cable broadcast notice

12         requirement; authorizing the association to

13         charge a reasonable fee for providing good

14         faith responses to certain requests for

15         information by or on behalf of a prospective

16         purchaser or lienholder; providing conditions

17         for exemption from liability for providing such

18         information; revising what must be included in

19         an association's annual budget; providing for

20         reserve accounts for capital expenditures and

21         deferred maintenance; revising when the

22         association must have its financial report

23         completed and provided to members; repealing s.

24         720.303(2), F.S., as amended, relating to board

25         meetings, to remove conflicting versions of

26         that subsection; amending s. 720.305, F.S.;

27         providing that, where a member is entitled to

28         collect attorney's fees against the

29         association, the member may also recover

30         additional amounts as determined by the court;

31         prohibiting an association from filing a

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         foreclosure action against homestead property;

 2         providing exceptions; tolling applicable

 3         limitation periods; amending s. 720.306, F.S.;

 4         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; revising provisions relating to

 9         items that members and parcel owners may

10         address at membership meetings; amending s.

11         720.307, F.S.; providing additional documents

12         that the developer must deliver at the time the

13         association members elect the board of

14         directors; amending s. 720.308, F.S.; providing

15         for the establishment of guarantees of common

16         expenses shared by association members;

17         amending s. 720.311, F.S.; revising provisions

18         relating to dispute resolution; providing that

19         the filing of any petition for arbitration or

20         the serving of an offer for presuit mediation

21         shall toll the applicable statute of

22         limitations; providing that certain disputes

23         between an association and a parcel owner shall

24         be subject to presuit mediation; revising

25         provisions to conform; providing that temporary

26         injunctive relief may be sought in certain

27         disputes subject to presuit mediation;

28         authorizing the court to refer the parties to

29         mediation under certain circumstances;

30         requiring the aggrieved party to serve on the

31         responding party a written offer to participate

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         in presuit mediation; providing a form for such

 2         offer; providing that service of the offer is

 3         effected by the sending of such an offer in a

 4         certain manner; providing that the prevailing

 5         party in any subsequent arbitration or

 6         litigation proceedings is entitled to seek

 7         recovery of all costs and attorney's fees

 8         incurred in the presuit mediation process;

 9         requiring the mediator or arbitrator to meet

10         certain certification requirements; removing a

11         requirement relating to development of an

12         education program to increase awareness of the

13         operation of homeowners' associations and the

14         use of alternative dispute resolution

15         techniques; providing effective dates.

16  

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

18  

19         Section 1.  Section 712.11, Florida Statutes, is

20  created to read:

21         712.11  Covenant revitalization.--A homeowners'

22  association not otherwise subject to chapter 720 may use the

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

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

25         Section 2.  Effective October 1, 2006, subsection (11)

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

27         718.110  Amendment of declaration; correction of error

28  or omission in declaration by circuit court.--

29         (11)(a)  Notwithstanding any provision to the contrary

30  contained in this section, any provision in the declaration of

31  condominium, articles of incorporation, or bylaws that

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  requires declaration recorded after April 1, 1992, may not

 2  require the consent or joinder of some or all mortgagees of

 3  units or any other portion of the condominium property to or

 4  in amendments to the declaration of condominium, articles of

 5  incorporation, or bylaws shall be void to the extent not,

 6  unless the requirement is limited to amendments materially

 7  affecting the rights or interests of the mortgagees, or as

 8  otherwise required by the Federal National Mortgage

 9  Association or the Federal Home Loan Mortgage Corporation, and

10  any consent or joinder shall unless the requirement provides

11  that such consent may not be unreasonably withheld. It shall

12  be presumed that, except as to those matters described in

13  subsections (4) and (8) or other issues materially affecting

14  the mortgagee's security interest in the property, amendments

15  to the declaration of condominium, articles of incorporation,

16  or bylaws do not materially affect the rights or interests of

17  mortgagees. In the event mortgagee consent is provided other

18  than by properly recorded joinder, such consent shall be

19  evidenced by affidavit of the association recorded in the

20  public records of the county where the declaration of

21  condominium, articles of incorporation, or bylaws are is

22  recorded.

23         (b)  The Legislature finds that the procurement of

24  mortgagee consent or joinder to amendments that do not

25  materially affect the rights or interests of mortgagees is an

26  unreasonable and substantial logistical and financial burden

27  on the unit owners and condominium associations and that there

28  is a compelling state interest in enabling the members of a

29  condominium association to approve amendments. Accordingly,

30  any holder of a recorded mortgage on a condominium unit or any

31  other portion of a condominium, which mortgage is first

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  recorded after October 1, 2006, and for which the declaration

 2  of condominium, articles of incorporation, or bylaws require

 3  the consent or joinder of a mortgagee to an amendment, must

 4  provide written notice by certified mail to the association of

 5  the address at which the mortgagee may be contacted in regard

 6  to any proposed amendments. The association shall maintain the

 7  names and addresses of such mortgagees in a registry of

 8  mortgagees, which the association shall utilize when sending a

 9  request for such consent or joinder. A request for consent or

10  joinder must be mailed to a mortgagee by certified mail,

11  return receipt requested, to the address provided by the

12  mortgagee and retained in the registry of mortgagees. As used

13  in this subsection, "certified mail" means either certified or

14  registered mail, return receipt requested. Consent to an

15  amendment shall be deemed to have been given by any holder of

16  a mortgage that is first recorded after October 1, 2006, and

17  who fails to provide the required written notice and contact

18  information. Also, any mortgagee who fails to respond by

19  certified mail within 30 days after the date the association

20  mails a request for consent or joinder shall be deemed to have

21  consented to the proposed amendment.

22         (c)  As to mortgages in existence as of October 1,

23  2006, in those condominiums where the consent or joinder of

24  such mortgagees is required in connection with amendments to

25  the governing documents, and where such mortgagees are not

26  otherwise required by the existing declaration of condominium,

27  articles of incorporation, or bylaws to provide notice to the

28  association of their contact information in order to be

29  eligible to receive notices regarding proposed amendments,

30  those condominium associations that wish to modify provisions

31  in the declaration of condominium, articles of incorporation,

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  or bylaws that require the consent or joinder of mortgagees

 2  must notify all mortgagees who hold mortgages on units within

 3  the condominium or other portions of the condominium property

 4  of the need to provide the same contact information as

 5  required in paragraph (b). Any mortgagee who does not provide

 6  contact information as required will be deemed to have

 7  consented to all future proposed amendments. Further, once the

 8  proper address for notifying existing mortgagees has been

 9  obtained in the manner provided for in this subsection,

10  failure of any mortgagee to respond to a request for the

11  consent or joinder to a proposed amendment within 30 days

12  after the date that such request is sent to the mortgagee by

13  certified mail shall be deemed to have consented to such

14  amendment. In order to properly notify holders of existing

15  mortgages:

16         1.  The condominium association must first conduct a

17  diligent search to identify all existing mortgagees and an

18  address for the required notice to be sent to each mortgagee.

19  Service of the notice shall be on the mortgagee's registered

20  agent based upon the information available from the Secretary

21  of State. Where there is no registered agent, the notice shall

22  be sent to the address in the original recorded mortgage

23  unless there is a different address in a more recently

24  recorded assignment or modification instrument or in the

25  records maintained by the condominium association. All notices

26  must be sent by certified mail and must advise the mortgagee

27  that if he or she fails to provide the contact information

28  requested within 30 days after the date of mailing of the

29  certified letter from the association, such mortgagee shall be

30  deemed to have consented to the proposed amendment.

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         2.  An affidavit must be executed by a representative

 2  of the condominium association confirming that a diligent

 3  search has been conducted to identify all outstanding

 4  mortgages on the condominium in the manner provided for in

 5  subparagraph 1. and summarizing the steps that were taken in

 6  connection with such diligent search and the notification of

 7  all mortgagees, and such affidavit shall be placed in the

 8  association's minute book as an attachment to the minutes of

 9  the meeting in which the board of directors considers such

10  affidavit.

11         (d)  After October 1, 2006, no new declaration of

12  condominium, articles of incorporation, or bylaws may require

13  the consent or joinder of more than 51 percent of the eligible

14  mortgagees in connection with any proposed amendment unless a

15  higher percentage is required in order to comply with the

16  requirements of the Federal National Mortgage Association or

17  Federal Home Loan Mortgage Corporation. Any new declaration of

18  condominium, articles of incorporation, or bylaws must also

19  require mortgagees to provide to the condominium association

20  the address to which notices may be sent, as provided for in

21  paragraph (b), in order for such mortgagees to have the right

22  to be contacted in connection with any proposed amendment.

23         (e)  A provision requiring the consent or joinder of

24  some or all holders of mortgages on units or other portions of

25  the condominium property to any proposed amendment shall be

26  enforceable only by mortgagees of record as of the date an

27  amendment is recorded in the public records and only by those

28  mortgagees who have complied with the requirements of

29  paragraph (b) or paragraph (c). Any amendment adopted without

30  the required consent of a mortgagee shall be deemed voidable

31  by any mortgagee who was entitled to notice and the

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  opportunity to consent, and actions to void such amendments

 2  shall be subject to the statute of limitations applicable to

 3  actions founded upon written instruments, which statute shall

 4  commence to run as of the date such amendment is recorded in

 5  the public records and, for amendments recorded prior to

 6  October 1, 2006, shall commence on October 1, 2006.

 7         (f)  In order to establish that he or she is not

 8  unreasonably withholding consent, any mortgagee who seeks to

 9  disapprove of a proposed amendment by withholding his or her

10  consent or joinder must include in his or her reply to the

11  condominium association's request for consent or joinder a

12  statement of the specific reasons the proposed amendment is

13  claimed to materially and adversely affect the rights and

14  interests of such mortgagee.

15         (g)  In connection with any litigation between a

16  condominium association and a lender with regard to whether

17  consent has been improperly or unreasonably withheld, the

18  prevailing party shall be entitled to recover his or her costs

19  and reasonable attorney's fees.

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

21  Florida Statutes, are amended to read:

22         718.404  Mixed-use condominiums.--When a condominium

23  consists of both residential and commercial units, the

24  following provisions shall apply:

25         (1)  The condominium documents shall not provide that

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

27  veto amendments to the declaration, articles of incorporation,

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

29  subsection shall apply retroactively as a remedial measure.

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

31  residential units in the condominium equals or exceeds 50

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

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

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

 4  subsection shall apply retroactively as a remedial measure.

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

 6  Florida Statutes, are amended to read:

 7         720.302  Purposes, scope, and application.--

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

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

10  or chapter 721; or to any nonmandatory association formed

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

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

13  incorporated into this chapter for the purpose of regulating

14  homeowners' associations.

15         (5)  Unless expressly stated to the contrary,

16  corporations not for profit that operate residential

17  homeowners' associations in this state shall be governed by

18  and subject to chapter 607, if the association was

19  incorporated thereunder, or to chapter 617, if the association

20  was incorporated thereunder, and this chapter. This subsection

21  is intended to clarify existing law.

22         Section 5.  Subsections (2), (6), and (7) of section

23  720.303, Florida Statutes, as amended by section 18 of chapter

24  2004-345 and section 135 of chapter 2005-2, Laws of Florida,

25  are amended, and paragraphs (d) and (e) are added to

26  subsection (5) of that section, to read:

27         720.303  Association powers and duties; meetings of

28  board; official records; budgets; financial reporting;

29  association funds; recalls.--

30         (2)  BOARD MEETINGS.--

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

 2  association occurs whenever a quorum of the board gathers to

 3  conduct association business. All meetings of the board must

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

 5  and its attorney with respect to proposed or pending

 6  litigation where the contents of the discussion would

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

 8  provisions of this subsection shall also apply to the meetings

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

10  will be made regarding the expenditure of association funds

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

12  or disapprove architectural decisions with respect to a

13  specific parcel of residential property owned by a member of

14  the community.

15         (b)  Members have the right to attend all meetings of

16  the board and to speak on any matter placed on the agenda by

17  petition of the voting interests for at least 3 minutes. The

18  association may adopt written reasonable rules expanding the

19  right of members to speak and governing the frequency,

20  duration, and other manner of member statements, which rules

21  must be consistent with this paragraph and may include a

22  sign-up sheet for members wishing to speak. Notwithstanding

23  any other law, the requirement that board meetings and

24  committee meetings be open to the members is inapplicable to

25  meetings between the board or a committee and the

26  association's attorney, with respect to meetings of the board

27  held for the purpose of discussing personnel matters.

28         (c)  The bylaws shall provide for giving notice to

29  parcel owners and members of all board meetings and, if they

30  do not do so, shall be deemed to provide the following:

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         1.  Notices of all board meetings must be posted in a

 2  conspicuous place in the community at least 48 hours in

 3  advance of a meeting, except in an emergency. In the

 4  alternative, if notice is not posted in a conspicuous place in

 5  the community, notice of each board meeting must be mailed or

 6  delivered to each member at least 7 days before the meeting,

 7  except in an emergency. Notwithstanding this general notice

 8  requirement, for communities with more than 100 parcels

 9  members, the bylaws may provide for a reasonable alternative

10  to posting or mailing of notice for each board meeting,

11  including publication of notice, provision of a schedule of

12  board meetings, or the conspicuous posting and repeated

13  broadcasting of the notice on a closed-circuit cable

14  television system serving the homeowners' association.

15  However, if broadcast notice is used in lieu of a notice

16  posted physically in the community, the notice must be

17  broadcast at least four times every broadcast hour of each day

18  that a posted notice is otherwise required. When broadcast

19  notice is provided, the notice and agenda must be broadcast in

20  a manner and for a sufficient continuous length of time so as

21  to allow an average reader to observe the notice and read and

22  comprehend the entire content of the notice and the agenda.

23  The bylaws or amended bylaws may provide for giving notice by

24  electronic transmission in a manner authorized by law for

25  meetings of the board of directors, committee meetings

26  requiring notice under this section, and annual and special

27  meetings of the members; however, a member must consent in

28  writing to receiving notice by electronic transmission.

29         2.  A special An assessment may not be levied at a

30  board meeting unless the notice of the meeting includes a

31  statement that special assessments will be considered and the

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  nature of the special assessments. Written notice of any

 2  meeting at which special assessments will be considered or at

 3  which amendments to rules regarding parcel use will be

 4  considered must be mailed, delivered, or electronically

 5  transmitted to the members and parcel owners and posted

 6  conspicuously on the property or broadcast on closed-circuit

 7  cable television not less than 14 days before the meeting.

 8         3.  Directors may not vote by proxy or by secret ballot

 9  at board meetings, except that secret ballots may be used in

10  the election of officers. This subsection also applies to the

11  meetings of any committee or other similar body, when a final

12  decision will be made regarding the expenditure of association

13  funds, and to any body vested with the power to approve or

14  disapprove architectural decisions with respect to a specific

15  parcel of residential property owned by a member of the

16  community.

17         (d)  If 20 percent of the total voting interests

18  petition the board to address an item of business, the board

19  shall at its next regular board meeting or at a special

20  meeting of the board, but not later than 60 days after the

21  receipt of the petition, take the petitioned item up on an

22  agenda. The board shall give all members notice of the meeting

23  at which the petitioned item shall be addressed in accordance

24  with the 14-day notice requirement pursuant to subparagraph

25  (c)2. Each member shall have the right to speak for at least 3

26  minutes on each matter placed on the agenda by petition,

27  provided that the member signs the sign-up sheet, if one is

28  provided, or submits a written request to speak prior to the

29  meeting. Other than addressing the petitioned item at the

30  meeting, the board is not obligated to take any other action

31  requested by the petition.

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

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

 3  to inspection and available for photocopying by members or

 4  their authorized agents at reasonable times and places within

 5  10 business days after receipt of a written request for

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

 7  of the official records available for inspection or copying in

 8  the community. If the association has a photocopy machine

 9  available where the records are maintained, it must provide

10  parcel owners with copies on request during the inspection if

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

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

13  required to provide a prospective purchaser or lienholder with

14  information about the residential subdivision or the

15  association other than information or documents required by

16  this chapter to be made available or disclosed. The

17  association or its authorized agent may charge a reasonable

18  fee to the prospective purchaser or lienholder or the current

19  parcel owner or member for providing good faith responses to

20  requests for information by or on behalf of a prospective

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

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

23  photocopying and any attorney's fees incurred by the

24  association in connection with the response.

25         (e)  An association and its authorized agent are not

26  liable for providing such information in good faith pursuant

27  to a written request if the person providing the information

28  includes a written statement in substantially the following

29  form: "The responses herein are made in good faith and to the

30  best of my ability as to their accuracy."

31         (6)  BUDGETS.--

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         (a)  The association shall prepare an annual budget

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

 3  reflect the estimated revenues and expenses for that year and

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

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

 6  for recreational amenities, whether owned by the association,

 7  the developer, or another person. The association shall

 8  provide each member with a copy of the annual budget or a

 9  written notice that a copy of the budget is available upon

10  request at no charge to the member. The copy must be provided

11  to the member within the time limits set forth in subsection

12  (5).

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

14  budget shall include reserve accounts for capital expenditures

15  and deferred maintenance. These accounts shall include, but

16  are not limited to, accounts for roof replacement, building

17  painting, and pavement resurfacing, regardless of the amount

18  of deferred maintenance expense or replacement cost, and for

19  any other item for which the deferred maintenance expense or

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

21  shall be computed by means of a formula that is based upon the

22  estimated remaining useful life and estimated replacement cost

23  or deferred maintenance expense of each reserve item. The

24  association may adjust replacement reserve assessments

25  annually to take into account any changes in estimates or

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

27  deferred maintenance. This subsection does not apply to an

28  adopted budget in which the members of an association have

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

30  association, to provide no reserves or fewer reserves than

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

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  control of an association by a developer to unit owners, the

 2  developer may vote to waive the reserves or reduce the funding

 3  of reserves for the first 2 fiscal years of the association's

 4  operation, beginning with the fiscal year in which the initial

 5  declaration is recorded, after which time reserves may be

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

 7  nondeveloper voting interests voting in person or by limited

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

 9  meeting of the unit owners has been called to determine

10  whether to waive or reduce the funding of reserves and no such

11  result is achieved or a quorum is not attained, the reserves

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

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

14  or reduce the funding of reserves.

15         (c)  Funding formulas for reserves required by this

16  subsection shall be based on either a separate analysis of

17  each of the required assets or a pooled analysis of two or

18  more of the required assets.

19         1.  If the association maintains separate reserve

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

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

22  following two calculations:

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

24  negative component balance to zero.

25         b.  The total estimated deferred maintenance expense or

26  estimated replacement cost of the reserve component less the

27  estimated balance of the reserve component as of the beginning

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

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

30  estimated remaining useful life of the component.

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

 2  and deferred maintenance performed during the year and may

 3  consider factors such as inflation and earnings on invested

 4  funds.

 5         2.  If the association maintains a pooled account of

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

 7  contribution to the pooled reserve account as disclosed in the

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

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

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

11  cash inflows over the remaining estimated useful lives of all

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

13  greater than the projected annual cash outflows over the

14  remaining estimated useful lives of all of the assets that

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

16  analysis. The projected annual cash inflows may include

17  estimated earnings from investment of principal. The reserve

18  funding formula shall not include any type of balloon

19  payments.

20         (d)  Reserve funds and any interest accruing thereon

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

22  used only for authorized reserve expenditures unless their use

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

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

25  of control of an association by a developer to unit owners,

26  the developer-controlled association shall not vote to use

27  reserves for purposes other than that for which they were

28  intended without the approval of a majority of all

29  nondeveloper voting interests voting in person or by limited

30  proxy at a duly called meeting of the association.

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

 2  of the fiscal year, or annually on a date provided in the

 3  bylaws, the association shall prepare and complete, or

 4  contract for the preparation and completion of, a financial

 5  report for the preceding fiscal year. Within 21 days after the

 6  final financial report is completed by the association or

 7  received from the third party, but not later than 120 days

 8  after the end of the fiscal year or other date as provided in

 9  the bylaws, the association shall prepare an annual financial

10  report within 60 days after the close of the fiscal year. The

11  association shall, within the time limits set forth in

12  subsection (5), provide each member with a copy of the annual

13  financial report or a written notice that a copy of the

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

15  member. Financial reports shall be prepared as follows:

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

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

18  of financial statements in accordance with generally accepted

19  accounting principles as adopted by the Florida Board of

20  Accountancy. The financial statements shall be based upon the

21  association's total annual revenues, as follows:

22         1.  An association with total annual revenues of

23  $100,000 or more, but less than $200,000, shall prepare

24  compiled financial statements.

25         2.  An association with total annual revenues of at

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

27  financial statements.

28         3.  An association with total annual revenues of

29  $400,000 or more shall prepare audited financial statements.

30  

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 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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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 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 6.  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 7.  Section 720.305, Florida Statutes, is

26  amended to read:

27         720.305  Obligations of members; remedies at law or in

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

29  fill sufficient number of vacancies on board of directors to

30  constitute a quorum; appointment of receiver upon petition of

31  any member; liens against real property.--

                                  20

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

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

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

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

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

 6  comply with these provisions may be brought by the association

 7  or by any member against:

 8         (a)  The association;

 9         (b)  A member;

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

11  willfully and knowingly fails to comply with these provisions;

12  and

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

14  parcel or using the common areas.

15  

16  The prevailing party in any such litigation is entitled to

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

18  prevailing in an action between the association and the member

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

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

21  determined by the court to be necessary to reimburse the

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

23  association to fund its expenses of the litigation. This

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

25  section does not deprive any person of any other available

26  right or remedy.

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

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

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

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

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

                                  21

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

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

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

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

 5  otherwise provided in the governing documents. A fine shall

 6  not become a lien against a parcel. In any action to recover a

 7  fine, the prevailing party is entitled to collect its

 8  reasonable attorney's fees and costs from the nonprevailing

 9  party as determined by the court.

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

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

12  suspended and an opportunity for a hearing before a committee

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

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

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

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

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

18  imposed.

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

20  to the imposition of suspensions or fines upon any member

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

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

23  governing documents.

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

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

26  vehicular and pedestrian ingress to and egress from the

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

28         (3)  If the governing documents so provide, an

29  association may suspend the voting rights of a member for the

30  nonpayment of regular annual assessments that are delinquent

31  in excess of 90 days.

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         (4)  If an association fails to fill vacancies on the

 2  board of directors sufficient to constitute a quorum in

 3  accordance with the bylaws, any member may apply to the

 4  circuit court that has jurisdiction over the community served

 5  by the association for the appointment of a receiver to manage

 6  the affairs of the association.  At least 30 days before

 7  applying to the circuit court, the member shall mail to the

 8  association, by certified or registered mail, and post, in a

 9  conspicuous place on the property of the community served by

10  the association, a notice describing the intended action,

11  giving the association 30 days to fill the vacancies.  If

12  during such time the association fails to fill a sufficient

13  number of vacancies so that a quorum can be assembled, the

14  member may proceed with the petition.  If a receiver is

15  appointed, the homeowners' association shall be responsible

16  for the salary of the receiver, court costs, attorney's fees,

17  and all other expenses of the receivership.  The receiver has

18  all the powers and duties of a duly constituted board of

19  directors and shall serve until the association fills a

20  sufficient number of vacancies on the board so that a quorum

21  can be assembled.

22         (5)  No association may sue to foreclose a lien against

23  real property during any period of time that the member of the

24  association who owes the money giving rise to the lien is also

25  entitled to the homestead protection described in s. 4(a)(1),

26  Art. X of the State Constitution as to that parcel of real

27  property. This subsection does not prevent the filing of a

28  lien against the real property, nor does this subsection bar

29  the filing of an action against a subsequent purchaser of the

30  real property regardless of whether the definition of

31  homestead may be applicable to such subsequent purchaser. Any

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  applicable statute of limitations, whether applicable to an in

 2  rem foreclosure action or applicable to an in personam action

 3  against the member, shall be tolled during any period of time

 4  that the association is barred from filing or prosecuting a

 5  foreclosure action by this subsection.

 6         Section 8.  Paragraph (c) of subsection (1) and

 7  subsection (6) of section 720.306, Florida Statutes, are

 8  amended to read:

 9         720.306  Meetings of members; voting and election

10  procedures; amendments.--

11         (1)  QUORUM; AMENDMENTS.--

12         (c)  Unless otherwise provided in the governing

13  documents as originally recorded or permitted by this chapter

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

15  alter the proportionate voting interest appurtenant to a

16  parcel or increase the proportion or percentage by which a

17  parcel shares in the common expenses of the association unless

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

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

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

21  alteration of voting interests. The merger or consolidation of

22  one or more associations under a plan of merger or

23  consolidation under chapter 607 or chapter 617 shall not be

24  considered a material or adverse alteration of the

25  proportionate voting interest appurtenant to a parcel.

26         (6)  RIGHT TO SPEAK.--Members and parcel owners have

27  the right to attend all membership meetings and to speak at

28  any meeting with reference to all items opened for discussion

29  or included on the agenda. Notwithstanding any provision to

30  the contrary in the governing documents or any rules adopted

31  by the board or by the membership, a member and a parcel owner

                                  24

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  have the right to speak for at least 3 minutes on any agenda

 2  item, provided that the member or parcel owner submits a

 3  written request to speak prior to the meeting. The association

 4  may adopt written reasonable rules governing the frequency,

 5  duration, and other manner of member and parcel owner

 6  statements, which rules must be consistent with this

 7  subsection.

 8         Section 9.  Paragraph (t) is added to subsection (3) of

 9  section 720.307, Florida Statutes, to read:

10         720.307  Transition of association control in a

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

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

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

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

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

16  the board:

17         (t)  The financial records, including financial

18  statements of the association, and source documents from the

19  incorporation of the association through the date of turnover.

20  The records shall be audited by an independent certified

21  public accountant for the period from the incorporation of the

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

23  an audit has been performed for each fiscal year since

24  incorporation. All financial statements shall be prepared in

25  accordance with generally accepted accounting principles and

26  shall be audited in accordance with generally accepted

27  auditing standards, as prescribed by the Florida Board of

28  Accountancy, pursuant to chapter 473. The certified public

29  accountant performing the audit shall examine to the extent

30  necessary supporting documents and records, including the cash

31  disbursements and related paid invoices to determine if

                                  25

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  expenditures were for association purposes and the billings,

 2  cash receipts, and related records to determine that the

 3  developer was charged and paid the proper amounts of

 4  assessments.

 5         Section 10.  Section 720.308, Florida Statutes, is

 6  amended to read:

 7         720.308  Assessments and charges.--

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

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

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

11  proportional share thereof. Assessments levied pursuant to the

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

13  proportional share of expenses as described in the governing

14  document, which share may be different among classes of

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

16  services received by the applicable members, or other relevant

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

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

19  the operating expenses and assessments related to its parcels

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

21  declaration, obligated itself to pay any operating expenses

22  incurred that exceed the assessments receivable from other

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

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

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

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

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

28  modifications thereto.

29         (2)  GUARANTEES OF COMMON EXPENSES.--

30         (a)  Establishment of guarantee.--If a guarantee is not

31  included in the purchase contracts, declaration, or

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  prospectus, any agreement establishing a guarantee shall only

 2  be effective either upon the vote of a majority of all

 3  nondeveloper voting interests voting in person or by limited

 4  proxy at a duly called meeting of the association or by

 5  agreement in writing without a meeting if provided in the

 6  bylaws. Such guarantee shall meet the requirements of this

 7  section.

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

 9  guarantee shall be indicated by a specific beginning and

10  ending date or event.

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

12  of the members of a homeowners' association, including members

13  in different phases of homeowners' associations.

14         2.  The guarantee may provide for different intervals

15  of time during a guarantee period with different dollar

16  amounts for each such interval.

17         (c)  Guarantee extension.--The guarantee may provide

18  that after the initial stated period, the developer has an

19  option to extend the guarantee for one or more additional

20  stated periods. The extension of a guarantee is limited to

21  extending the ending date or event; therefore, the developer

22  does not have the option of changing the level of assessments

23  guaranteed.

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

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

26  each parcel identified in the declaration. Regardless of the

27  stated dollar amount of the guarantee, assessments charged to

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

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

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

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

 2  cash payments required from the guarantor during the guarantee

 3  period shall be determined as follows:

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

 5  funds collected from member assessments at the guaranteed

 6  level and other revenues collected by the association are not

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

 8  common expenses, including the full funding of the reserves

 9  unless properly waived, the guarantor shall advance sufficient

10  cash to the association at the time such payments are due.

11         (b)  Expenses incurred in the production of

12  nonassessment revenues, not in excess of the nonassessment

13  revenues, shall not be included in the common expenses. If the

14  expenses attributable to nonassessment revenues exceed

15  nonassessment revenues, only the excess expenses must be

16  funded by the guarantor. For example, if the association

17  operates a rental program in which rental expenses exceed

18  rental revenues, the guarantor shall fund the rental expenses

19  in excess of the rental revenues. Interest earned on the

20  investment of association funds may be used to pay the income

21  tax expense incurred as a result of the investment, such

22  expense shall not be charged to the guarantor, and the net

23  investment income shall be retained by the association. Each

24  such nonassessment revenue-generating activity shall be

25  considered separately. Capital contributions collected from

26  members are not revenues and shall not be used to pay common

27  expenses.

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

29  guarantor's total financial obligation to the association at

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

31  accrual basis using the following formula:

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         (a)  The guarantor shall fund the total common expenses

 2  incurred during the guarantee period, including the full

 3  funding of the reserves unless properly waived; less

 4         (b)  The total regular periodic assessments earned by

 5  the association from the members other than the guarantor

 6  during the guarantee period regardless of whether the actual

 7  level charged was less than the maximum guaranteed amount.

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

 9  nonassessment revenues, not in excess of the nonassessment

10  revenues, shall not be included in the common expenses. If the

11  expenses attributable to nonassessment revenues exceed

12  nonassessment revenues, only the excess expenses must be

13  funded by the guarantor. For example, if the association

14  operates a rental program in which rental expenses exceed

15  rental revenues, the guarantor shall fund the rental expenses

16  in excess of the rental revenues. Interest earned on the

17  investment of association funds may be used to pay the income

18  tax expense incurred as a result of the investment, such

19  expense shall not be charged to the guarantor, and the net

20  investment income shall be retained by the association. Each

21  such nonassessment revenue-generating activity shall be

22  considered separately. Capital contributions collected from

23  members are not revenues and shall not be used to pay common

24  expenses.

25         Section 11.  Section 720.311, Florida Statutes, is

26  amended to read:

27         720.311  Dispute resolution.--

28         (1)  The Legislature finds that alternative dispute

29  resolution has made progress in reducing court dockets and

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

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

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  arbitration or the serving of an offer for presuit mediation

 2  as provided for in this section shall toll the applicable

 3  statute of limitations. Any recall dispute filed with the

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

 5  the department in accordance with the provisions of ss.

 6  718.112(2)(j) and 718.1255 and the rules adopted by the

 7  division. In addition, the department shall conduct mandatory

 8  binding arbitration of election disputes between a member and

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

10  the division. Neither election disputes nor recall disputes

11  are eligible for presuit mediation; these disputes shall be

12  arbitrated by the department. At the conclusion of the

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

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

15  the department in conducting the proceeding. Initially, the

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

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

18  recoverable cost in the arbitration proceeding, and the

19  prevailing party in an arbitration proceeding shall recover

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

21  reasonable by the arbitrator. The department shall adopt rules

22  to effectuate the purposes of this section.

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

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

25  areas and other covenant enforcement disputes, disputes

26  regarding amendments to the association documents, disputes

27  regarding meetings of the board and committees appointed by

28  the board, membership meetings not including election

29  meetings, and access to the official records of the

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

31  department for presuit mandatory mediation served by an

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

 2  mediation proceedings must be conducted in accordance with the

 3  applicable Florida Rules of Civil Procedure, and these

 4  proceedings are privileged and confidential to the same extent

 5  as court-ordered mediation. Disputes subject to presuit

 6  mediation under this section shall not include the collection

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

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

 9  action to enforce a prior mediation settlement agreement

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

11  mediation under this section where emergency relief is

12  required, a motion for temporary injunctive relief may be

13  filed with the court without first complying with the presuit

14  mediation requirements of this section. After any issues

15  regarding emergency or temporary relief are resolved, the

16  court may either refer the parties to a mediation program

17  administered by the courts or require mediation under this

18  section. An arbitrator or judge may not consider any

19  information or evidence arising from the presuit mediation

20  proceeding except in a proceeding to impose sanctions for

21  failure to attend a presuit mediation session or with the

22  parties' agreement in a proceeding seeking to enforce the

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

24  attend the presuit mediation conference without the consent of

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

26  corporate representative designated by the association. When

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

28  is not a board meeting for purposes of notice and

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

30  shall serve on the responding party a written offer to

31  

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  participate in presuit mediation in substantially the

 2  following form:

 3  

 4       STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION

 5  

 6         The alleged aggrieved party,__________________,

 7         hereby offers to _________________, as the

 8         responding party, to enter into presuit

 9         mediation in connection with the following

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

11         subject to presuit mediation:

12  

13         (List specific nature of the dispute or

14         disputes to be mediated and the authority

15         supporting a finding of a violation as to each

16         dispute.)

17  

18         Pursuant to section 720.311, Florida Statutes,

19         this offer to resolve the dispute through

20         presuit mediation is required before a lawsuit

21         can be filed concerning the dispute. Pursuant

22         to the statute, the aggrieved party is hereby

23         offering to engage in presuit mediation with a

24         neutral third-party mediator in order to

25         attempt to resolve this dispute without court

26         action, and the aggrieved party demands that

27         you likewise agree to this process. If you fail

28         to agree to presuit mediation, or if you agree

29         and later fail to follow through with your

30         agreement to mediate, suit may be brought

31         against you without further warning.

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  

 2         The process of mediation involves a supervised

 3         negotiation process in which a trained, neutral

 4         third-party mediator meets with both parties

 5         and assists them in exploring possible

 6         opportunities for resolving part or all of the

 7         dispute. The mediation process is a voluntary

 8         one. By agreeing to participate in presuit

 9         mediation, you are not bound in any way to

10         change your position or to enter into any type

11         of agreement. Furthermore, the mediator has no

12         authority to make any decisions in this matter

13         or to determine who is right or wrong and

14         merely acts as a facilitator to ensure that

15         each party understands the position of the

16         other party and that all reasonable settlement

17         options are fully explored.

18  

19         If an agreement is reached, it shall be reduced

20         to writing and becomes a binding and

21         enforceable commitment of the parties. A

22         resolution of one or more disputes in this

23         fashion avoids the need to litigate these

24         issues in court. The failure to reach an

25         agreement, or the failure of a party to

26         participate in the process, results in the

27         mediator's declaring an impasse in the

28         mediation, after which the aggrieved party may

29         proceed to court on all outstanding, unsettled

30         disputes.

31  

                                  33

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         The aggrieved party has selected and hereby

 2         lists three certified mediators who we believe

 3         to be neutral and qualified to mediate the

 4         dispute. You have the right to select any one

 5         of these mediators. The fact that one party may

 6         be familiar with one or more of the listed

 7         mediators does not mean that the mediator

 8         cannot act as a neutral and impartial

 9         facilitator. Any mediator who cannot act in

10         this capacity ethically must decline to accept

11         engagement. The mediators that we suggest, and

12         their current hourly rates, are as follows:

13  

14         (List the names, addresses, telephone numbers,

15         and hourly rates of the mediators. Other

16         pertinent information about the background of

17         the mediators may be included as an

18         attachment.)

19  

20         You may contact the offices of these mediators

21         to confirm that the listed mediators will be

22         neutral and will not show any favoritism toward

23         either party. The names of certified mediators

24         may be found through the office of the clerk of

25         the circuit court for this circuit.

26  

27         If you agree to participate in the presuit

28         mediation process, the statute requires that

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

30         fees involved in the presuit mediation process

31         unless otherwise agreed by all parties. An

                                  34

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         average mediation may require 3 to 4 hours of

 2         the mediator's time, including some preparation

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

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

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

 6         employ an attorney in connection with the

 7         mediation. However, use of an attorney is not

 8         required and is at the option of each party.

 9         The mediator may require the advance payment of

10         some or all of the anticipated fees. The

11         aggrieved party hereby agrees to pay or prepay

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

13         to forward this amount or such other reasonable

14         advance deposits as the mediator may require

15         for this purpose. Any funds deposited will be

16         returned to you if these are in excess of your

17         share of the fees incurred.

18  

19         If you agree to participate in presuit

20         mediation in order to attempt to resolve the

21         dispute and thereby avoid further legal action,

22         please sign below and clearly indicate which

23         mediator is acceptable to you. We will then ask

24         the mediator to schedule a mutually convenient

25         time and place for the mediation conference to

26         be held. The mediation conference must be held

27         within 90 days after the date of this letter

28         unless extended by mutual written agreement. In

29         the event that you fail to respond within 20

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

31         fail to agree to at least one of the mediators

                                  35

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         that we have suggested and to pay or prepay to

 2         the mediator one-half of the costs involved,

 3         the aggrieved party will be authorized to

 4         proceed with the filing of a lawsuit against

 5         you without further notice and may seek an

 6         award of attorney's fees or costs incurred in

 7         attempting to obtain mediation.

 8  

 9         Should you wish, you may also elect to waive

10         presuit mediation so that this matter may

11         proceed directly to court.

12  

13         Therefore, please give this matter your

14         immediate attention. By law, your response must

15         be mailed by certified mail, return receipt

16         requested, with an additional copy being sent

17         by regular first-class mail to the address

18         shown on this offer.

19  

20         _____________________

21         _____________________

22  

23         RESPONDING PARTY: CHOOSE ONLY ONE OF THE TWO

24         OPTIONS BELOW. YOUR SIGNATURE INDICATES YOUR

25         AGREEMENT TO THAT CHOICE.

26  

27         AGREEMENT TO MEDIATE

28  

29         The undersigned hereby agrees to participate in

30         presuit mediation and agrees to the following

31  

                                  36

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         mediator or mediators as acceptable to mediate

 2         this dispute:

 3  

 4         (List acceptable mediator or mediators.)

 5  

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

 7         the mediator's fees and to forward such advance

 8         deposits as the mediator may require for this

 9         purpose.

10  

11         _______________________

12         Signature of responding party #1

13  

14         _______________________

15         Signature of responding party #2 (if

16         applicable)(if property is owned by more than

17         one person, all owners must sign)

18  

19         WAIVER OF MEDIATION

20  

21         The undersigned hereby waives the right to

22         participate in presuit mediation of the dispute

23         listed above and agrees to allow the aggrieved

24         party to proceed in court on such matters.

25  

26         __________________________

27         Signature of responding party #1

28  

29         ___________________________

30  

31  

                                  37

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1         Signature of responding party #2 (if

 2         applicable)(if property is owned by more than

 3         one person, all owners must sign)

 4  

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

 6  presuit mediation shall be effected by sending a letter in

 7  substantial conformity with the above form by certified mail,

 8  return receipt requested, with an additional copy being sent

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

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

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

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

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

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

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

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

17  responding party may waive mediation in writing.

18  Notwithstanding the foregoing, once the parties have agreed on

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

20  date and time mutually convenient to the parties. The

21  department shall conduct the proceedings through the use of

22  department mediators or refer the disputes to private

23  mediators who have been duly certified by the department as

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

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

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

27  mediator may require advance payment of its reasonable fees

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

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

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

31  appear for a scheduled mediation session shall operate as an

                                  38

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




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

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

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

 4  any presuit mediation session cannot be scheduled and

 5  conducted within 90 days after the offer to participate in

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

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

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

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

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

11  mediator and any travel expenses incurred. The petitioner

12  shall initially file with the department upon filing the

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

14  the costs of the mediation. At the conclusion of the

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

16  shared equally unless otherwise agreed by the parties, such

17  further fees as are necessary to fully reimburse the

18  department for all expenses incurred in the mediation.

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

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

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

22  court of competent jurisdiction or elect to enter into binding

23  or nonbinding arbitration pursuant to the procedures set forth

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

25  arbitration proceeding to be conducted by a department

26  arbitrator or by a private arbitrator certified by the

27  department. If all parties do not agree to arbitration

28  proceedings following an unsuccessful mediation, any party may

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

30  nonbinding arbitration is final and enforceable in the courts

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

                                  39

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  competent jurisdiction within 30 days after entry of the

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

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

 4  presuit mediation but is thereafter subject to an action

 5  seeking enforcement of the mediation settlement, the

 6  prevailing party in any subsequent arbitration or litigation

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

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

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

10  and training program for private mediators and private

11  arbitrators which shall emphasize experience and expertise in

12  the area of the operation of community associations. A

13  mediator or arbitrator shall be certified to conduct mediation

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

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

16  arbitrator, respectively, pursuant to the requirements

17  established attended at least 20 hours of training in

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

19  applicant has mediated or arbitrated at least 10 disputes

20  involving community associations within 5 years prior to the

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

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

23  application and has completed 20 hours of training in

24  community association disputes. In order to be certified by

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

26  Florida Supreme Court. The department may conduct the training

27  and certification program within the department or may

28  contract with an outside vendor to perform the training or

29  certification. The expenses of operating the training and

30  certification and training program shall be paid by the moneys

31  and filing fees generated by the arbitration of recall and

                                  40

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    Florida Senate - 2006                                  SB 2530
    24-1191A-06                                      See CS/HB 391




 1  election disputes and by the mediation of those disputes

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

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

 4  this subsection may be used by a Florida corporation

 5  responsible for the operation of a community in which the

 6  voting members are parcel owners or their representatives, in

 7  which membership in the corporation is not a mandatory

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

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

10         (3)  The department shall develop an education program

11  to assist homeowners, associations, board members, and

12  managers in understanding and increasing awareness of the

13  operation of homeowners' associations pursuant to this chapter

14  and in understanding the use of alternative dispute resolution

15  techniques in resolving disputes between parcel owners and

16  associations or between owners. Such education program may

17  include the development of pamphlets and other written

18  instructional guides, the holding of classes and meetings by

19  department employees or outside vendors, as the department

20  determines, and the creation and maintenance of a website

21  containing instructional materials. The expenses of operating

22  the education program shall be initially paid by the moneys

23  and filing fees generated by the arbitration of recall and

24  election disputes and by the mediation of those disputes

25  referred to in this subsection.

26         Section 12.  Except as otherwise expressly provided in

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

28  

29  

30  

31  

                                  41

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