HB 391

1	A bill to be entitled
2	An act relating to community associations; creating s.
3	712.11, F.S.; providing for the revival of certain
4	covenants that have lapsed; amending s. 718.106, F.S.;
5	prohibiting local governments from limiting the access of
6	certain persons to beaches adjacent to or adjoining
7	condominium property; amending s. 718.110, F.S.; revising
8	provisions relating to the amendment of declarations;
9	providing legislative findings and a finding of compelling
10	state interest; providing criteria for consent to an
11	amendment; requiring notice regarding proposed amendments
12	to mortgagees; providing criteria for notification;
13	providing for voiding certain amendments; amending s.
14	718.112, F.S.; revising the implementation date for
15	retrofitting of common areas with a sprinkler system;
16	amending s. 718.114, F.S.; providing that certain
17	leaseholds, memberships, or other possessory or use
18	interests shall be considered a material alteration or
19	substantial addition to certain real property; amending s.
20	718.404, F.S.; providing retroactive application of
21	provisions relating to mixed-use condominiums; amending s.
22	719.103, F.S.; providing a definition; amending s.
23	719.507, F.S.; prohibiting laws, ordinances, or
24	regulations that apply only to improvements that are or
25	may be subjected to an equity club form of ownership;
26	amending s. 720.302, F.S.; revising governing provisions
27	relating to corporations that operate residential
28	homeowners' associations; amending s. 720.303, F.S.;
29	revising application to include certain meetings;
30	requiring the association to provide certain information
31	to prospective purchasers or lienholders; authorizing the
32	association to charge a reasonable fee for providing
33	certain information; requiring the budget to provide for
34	annual operating expenses; authorizing the budget to
35	include reserve accounts for capital expenditures and
36	deferred maintenance; providing a formula for calculating
37	the amount to be reserved; authorizing the association to
38	adjust replacement reserve assessments annually;
39	authorizing the developer to vote to waive the reserves or
40	reduce the funding of reserves for a certain period;
41	revising provisions relating to financial reporting;
42	revising time periods in which the association must
43	complete its reporting; repealing s. 720.303(2), F.S., as
44	amended, relating to board meetings, to remove conflicting
45	versions of that subsection; creating s. 720.3035, F.S.;
46	providing for architectural control covenants and parcel
47	owner improvements; authorizing the review and approval of
48	plans and specifications; providing limitations; providing
49	rights and privileges for parcel owners as set forth in
50	the declaration of covenants; amending s. 720.305, F.S.;
51	providing that, where a member is entitled to collect
52	attorney's fees against the association, the member may
53	also recover additional amounts as determined by the
54	court; amending s. 720.306, F.S.; providing that certain
55	mergers or consolidations of an association shall not be
56	considered a material or adverse alteration of the
57	proportionate voting interest appurtenant to a parcel;
58	amending s. 720.307, F.S.; requiring developers to deliver
59	financial records to the board in any transition of
60	association control to members; requiring certain
61	information to be included in the records and for the
62	records to be prepared in a specified manner; amending s.
63	720.308, F.S.; providing circumstances under which a
64	guarantee of common expenses shall be effective; providing
65	for approval of the guarantee by association members;
66	providing for a guarantee period and extension thereof;
67	requiring the stated dollar amount of the guarantee to be
68	an exact dollar amount for each parcel identified in the
69	declaration; providing payments required from the
70	guarantor to be determined in a certain manner; providing
71	a formula to determine the guarantor's total financial
72	obligation to the association; providing that certain
73	expenses incurred in the production of certain revenues
74	shall not be included in the operating expenses; amending
75	s. 720.311, F.S.; revising provisions relating to dispute
76	resolution; providing that the filing of any petition for
77	arbitration or the serving of an offer for presuit
78	mediation shall toll the applicable statute of
79	limitations; providing that certain disputes between an
80	association and a parcel owner shall be subject to presuit
81	mediation; revising provisions to conform; providing that
82	temporary injunctive relief may be sought in certain
83	disputes subject to presuit mediation; authorizing the
84	court to refer the parties to mediation under certain
85	circumstances; requiring the aggrieved party to serve on
86	the responding party a written offer to participate in
87	presuit mediation; providing a form for such offer;
88	providing that service of the offer is effected by the
89	sending of such an offer in a certain manner; providing
90	that the prevailing party in any subsequent arbitration or
91	litigation proceedings is entitled to seek recovery of all
92	costs and attorney's fees incurred in the presuit
93	mediation process; requiring the mediator or arbitrator to
94	meet certain certification requirements; removing a
95	requirement relating to development of an education
96	program to increase awareness of the operation of
97	homeowners' associations and the use of alternative
98	dispute resolution techniques; providing effective dates.
99
100	Be It Enacted by the Legislature of the State of Florida:
101
102	Section 1.  Section 712.11, Florida Statutes, is created to
103	read:
104	712.11  Covenant revitalization.--A homeowners' association
105	not otherwise subject to chapter 720 may use the procedures set
106	forth in ss. 720.403-720.407 to revive covenants that have
107	lapsed under the terms of this chapter.
108	Section 2.  Subsection (5) is added to section 718.106,
109	Florida Statutes, to read:
110	718.106  Condominium parcels; appurtenances; possession and
111	enjoyment.--
112	(5)  A local government may not prohibit condominium unit
113	owners or an association from permitting guests, licensees, or
114	invitees access to a public beach adjacent to or adjoining the
115	condominium property.
116	Section 3.  Effective October 1, 2006, subsection (11) of
117	section 718.110, Florida Statutes, is amended to read:
118	718.110  Amendment of declaration; correction of error or
119	omission in declaration by circuit court.--
120	(11)  The Legislature finds that the procurement of
121	mortgagee consent to amendments that do not affect the rights or
122	interests of mortgagees is an unreasonable and substantial
123	logistical and financial burden on the unit owners and that
124	there is a compelling state interest in enabling the members of
125	a condominium association to approve amendments to the
126	condominium documents through legal means. Accordingly, and
127	notwithstanding any provision to the contrary contained in this
128	section:
129	(a)  As to any mortgage recorded on or after October 1,
130	2006, any provision in the declaration, articles of
131	incorporation, or bylaws that requires recorded after April 1,
132	1992, may not require the consent or joinder of some or all
133	mortgagees of units or any other portion of the condominium
134	property to or in amendments to the declaration, articles of
135	incorporation, or bylaws or for any other matter shall be
136	enforceable only as to the following matters: unless the
137	requirement is limited to amendments materially affecting the
138	rights or interests of the mortgagees, or as otherwise required
139	by the Federal National Mortgage Association or the Federal Home
140	Loan Mortgage Corporation, and unless the requirement provides
141	that such consent may not be unreasonably withheld. It shall be
142	presumed that, except as to
143	1.  Those matters described in subsections (4) and (8).,
144	2.  Amendments to the declaration, articles of
145	incorporation, or bylaws that adversely affect the priority of
146	the mortgagee's lien or the mortgagee's rights to foreclose its
147	lien or that otherwise materially affect the rights and
148	interests of the mortgagees.
149	(b)  As to mortgages recorded before October 1, 2006, any
150	existing provisions in the declaration, articles of
151	incorporation, or bylaws requiring mortgagee consent shall be
152	enforceable.
153	(c)  In securing consent or joinder, the association shall
154	be entitled to rely upon the public records to identify the
155	holders of outstanding mortgages. The association may use the
156	address provided in the original recorded mortgage document,
157	unless there is a different address for the holder of the
158	mortgage in a recorded assignment or modification of the
159	mortgage, which recorded assignment or modification must
160	reference the official records book and page on which the
161	original mortgage was recorded. Once the association has
162	identified the recorded mortgages of record, the association
163	shall, in writing, request of each unit owner whose unit is
164	encumbered by a mortgage of record any information the owner has
165	in his or her possession regarding the name and address of the
166	person to whom mortgage payments are currently being made.
167	Notice shall be sent to such person if the address provided in
168	the original recorded mortgage document is different from the
169	name and address of the mortgagee or assignee of the mortgage as
170	shown by the public record. The association shall be deemed to
171	have complied with this requirement by making the written
172	request of the unit owners required under this paragraph. Any
173	notices required to be sent to the mortgagees under this
174	paragraph shall be sent to all available addresses provided to
175	the association.
176	(d)  Any notice to the mortgagees required under paragraph
177	(c) may be sent by a method that establishes proof of delivery,
178	and any mortgagee who fails to respond within 60 days after the
179	date of mailing shall be deemed to have consented to the
180	amendment.
181	(e)  For those amendments requiring mortgagee consent on or
182	after October 1, 2006, do not materially affect the rights or
183	interests of mortgagees. in the event mortgagee consent is
184	provided other than by properly recorded joinder, such consent
185	shall be evidenced by affidavit of the association recorded in
186	the public records of the county where the declaration is
187	recorded. Any amendment adopted without the required consent of
188	a mortgagee shall be voidable only by a mortgagee who was
189	entitled to notice and an opportunity to consent. An action to
190	void an amendment shall be subject to the statute of limitations
191	beginning 5 years from the date of discovery as to the
192	amendments described in subparagraphs (a)1. and 2. and 5 years
193	from the date of recordation of the certificate of amendment for
194	all other amendments. This provision shall apply to all
195	mortgages, regardless of the date of recordation of the
196	mortgage.
197	Section 4.  Paragraph (l) of subsection (2) of section
198	718.112, Florida Statutes, is amended to read:
199	718.112  Bylaws.--
200	(2)  REQUIRED PROVISIONS.--The bylaws shall provide for the
201	following and, if they do not do so, shall be deemed to include
202	the following:
203	(l)  Certificate of compliance.--There shall be a provision
204	that a certificate of compliance from a licensed electrical
205	contractor or electrician may be accepted by the association's
206	board as evidence of compliance of the condominium units with
207	the applicable fire and life safety code. Notwithstanding the
208	provisions of chapter 633 or of any other code, statute,
209	ordinance, administrative rule, or regulation, or any
210	interpretation of the foregoing, an association, condominium, or
211	unit owner is not obligated to retrofit the common elements or
212	units of a residential condominium with a fire sprinkler system
213	or other engineered lifesafety system in a building that has
214	been certified for occupancy by the applicable governmental
215	entity, if the unit owners have voted to forego such
216	retrofitting and engineered lifesafety system by the affirmative
217	vote of two-thirds of all voting interests in the affected
218	condominium. However, a condominium association may not vote to
219	forego the retrofitting with a fire sprinkler system of common
220	areas in a high-rise building. For purposes of this subsection,
221	the term "high-rise building" means a building that is greater
222	than 75 feet in height where the building height is measured
223	from the lowest level of fire department access to the floor of
224	the highest occupiable story. For purposes of this subsection,
225	the term "common areas" means any enclosed hallway, corridor,
226	lobby, stairwell, or entryway. In no event shall the local
227	authority having jurisdiction require completion of retrofitting
228	of common areas with a sprinkler system before the end of 2025
229	2014.
230	1.  A vote to forego retrofitting may be obtained by
231	limited proxy or by a ballot personally cast at a duly called
232	membership meeting, or by execution of a written consent by the
233	member, and shall be effective upon the recording of a
234	certificate attesting to such vote in the public records of the
235	county where the condominium is located. The association shall
236	mail, hand deliver, or electronically transmit to each unit
237	owner written notice at least 14 days prior to such membership
238	meeting in which the vote to forego retrofitting of the required
239	fire sprinkler system is to take place. Within 30 days after the
240	association's opt-out vote, notice of the results of the opt-out
241	vote shall be mailed, hand delivered, or electronically
242	transmitted to all unit owners. Evidence of compliance with this
243	30-day notice shall be made by an affidavit executed by the
244	person providing the notice and filed among the official records
245	of the association. After such notice is provided to each owner,
246	a copy of such notice shall be provided by the current owner to
247	a new owner prior to closing and shall be provided by a unit
248	owner to a renter prior to signing a lease.
249	2.  As part of the information collected annually from
250	condominiums, the division shall require condominium
251	associations to report the membership vote and recording of a
252	certificate under this subsection and, if retrofitting has been
253	undertaken, the per-unit cost of such work. The division shall
254	annually report to the Division of State Fire Marshal of the
255	Department of Financial Services the number of condominiums that
256	have elected to forego retrofitting.
257	Section 5.  Section 718.114, Florida Statutes, is amended
258	to read:
259	718.114  Association powers.--An association has the power
260	to enter into agreements, to acquire leaseholds, memberships,
261	and other possessory or use interests in lands or facilities
262	such as country clubs, golf courses, marinas, and other
263	recreational facilities. It has this power whether or not the
264	lands or facilities are contiguous to the lands of the
265	condominium, if they are intended to provide enjoyment,
266	recreation, or other use or benefit to the unit owners. All of
267	these leaseholds, memberships, and other possessory or use
268	interests existing or created at the time of recording the
269	declaration must be stated and fully described in the
270	declaration. Subsequent to the recording of the declaration,
271	agreements acquiring these leaseholds, memberships, or other
272	possessory or use interests not entered into within 12 months
273	following the recording of the declaration shall be considered a
274	material alteration or substantial addition to the real property
275	that is association property, and the association may not
276	acquire or enter into agreements acquiring these leaseholds,
277	memberships, or other possessory or use interests except as
278	authorized by the declaration as provided in s. 718.113. The
279	declaration may provide that the rental, membership fees,
280	operations, replacements, and other expenses are common expenses
281	and may impose covenants and restrictions concerning their use
282	and may contain other provisions not inconsistent with this
283	chapter. A condominium association may conduct bingo games as
284	provided in s. 849.0931.
285	Section 6.  Subsections (1) and (2) of section 718.404,
286	Florida Statutes, are amended to read:
287	718.404  Mixed-use condominiums.--When a condominium
288	consists of both residential and commercial units, the following
289	provisions shall apply:
290	(1)  The condominium documents shall not provide that the
291	owner of any commercial unit shall have the authority to veto
292	amendments to the declaration, articles of incorporation,
293	bylaws, or rules or regulations of the association. This
294	subsection shall apply retroactively as a remedial measure.
295	(2)  Subject to s. 718.301, where the number of residential
296	units in the condominium equals or exceeds 50 percent of the
297	total units operated by the association, owners of the
298	residential units shall be entitled to vote for a majority of
299	the seats on the board of administration. This subsection shall
300	apply retroactively as a remedial measure.
301	Section 7.  Subsections (18) through (27) of section
302	719.103, Florida Statutes, are renumbered as subsections (19)
303	through (28), respectively, and a new subsection (18) is added
304	to that section to read:
305	719.103  Definitions.--As used in this chapter:
306	(18)  "Equity facilities club" means a club comprised of
307	recreational facilities in which proprietary membership
308	interests are sold to individuals, which membership interests
309	entitle the individuals to use certain physical facilities owned
310	by the equity club. Such physical facilities do not include a
311	residential unit or accommodation. For purposes of this
312	definition, the term "accommodation" shall include, but is not
313	limited to, any apartment, residential cooperative unit,
314	residential condominium unit, cabin, lodge, hotel or motel room,
315	or any other accommodation designed for overnight occupancy for
316	one or more individuals.
317	Section 8.  Section 719.507, Florida Statutes, is amended
318	to read:
319	719.507  Zoning and building laws, ordinances, and
320	regulations.--All laws, ordinances, and regulations concerning
321	buildings or zoning shall be construed and applied with
322	reference to the nature and use of such property, without regard
323	to the form of ownership. No law, ordinance, or regulation shall
324	establish any requirement concerning the use, location,
325	placement, or construction of buildings or other improvements
326	which are, or may thereafter be, subjected to the cooperative or
327	equity facilities club form of ownership, unless such
328	requirement shall be equally applicable to all buildings and
329	improvements of the same kind not then, or thereafter to be,
330	subjected to the cooperative or equity facilities club form of
331	ownership. This section does not apply if the owner in fee of
332	any land enters into and records a covenant that existing
333	improvements or improvements to be constructed shall not be
334	converted to the cooperative form of residential ownership prior
335	to 5 years after the later of the date of the covenant or
336	completion date of the improvements. Such covenant shall be
337	entered into with the governing body of the municipality in
338	which the land is located or, if the land is not located in a
339	municipality, with the governing body of the county in which the
340	land is located.
341	Section 9.  Subsections (4) and (5) of section 720.302,
342	Florida Statutes, are amended to read:
343	720.302  Purposes, scope, and application.--
344	(4)  This chapter does not apply to any association that is
345	subject to regulation under chapter 718, chapter 719, or chapter
346	721; or to any nonmandatory association formed under chapter
347	723, except to the extent that a provision of chapter 718,
348	chapter 719, or chapter 721 is expressly incorporated into this
349	chapter for the purpose of regulating homeowners' associations.
350	(5)  Unless expressly stated to the contrary, corporations
351	not for profit that operate residential homeowners' associations
352	in this state shall be governed by and subject to chapter 607,
353	if the association was incorporated under that chapter, or to
354	chapter 617, if the association was incorporated under that
355	chapter, and this chapter. This subsection is intended to
356	clarify existing law.
357	Section 10.  Paragraph (a) of subsection (2), subsection
358	(6), and subsection (7) of section 720.303, Florida Statutes, as
359	amended by section 18 of chapter 2004-345 and section 135 of
360	chapter 2005-2, Laws of Florida, are amended, and paragraph (d)
361	is added to subsection (5) of that section, to read:
362	720.303  Association powers and duties; meetings of board;
363	official records; budgets; financial reporting; association
364	funds; recalls.--
365	(2)  BOARD MEETINGS.--
366	(a)  A meeting of the board of directors of an association
367	occurs whenever a quorum of the board gathers to conduct
368	association business. All meetings of the board must be open to
369	all members except for meetings between the board and its
370	attorney with respect to proposed or pending litigation where
371	the contents of the discussion would otherwise be governed by
372	the attorney-client privilege. The provisions of this subsection
373	shall also apply to the meetings of any committee or other
374	similar body when a final decision will be made regarding the
375	expenditure of association funds and to meetings of any body
376	vested with the power to approve or disapprove architectural
377	decisions with respect to a specific parcel of residential
378	property owned by a member of the community.
379	(5)  INSPECTION AND COPYING OF RECORDS.--The official
380	records shall be maintained within the state and must be open to
381	inspection and available for photocopying by members or their
382	authorized agents at reasonable times and places within 10
383	business days after receipt of a written request for access.
384	This subsection may be complied with by having a copy of the
385	official records available for inspection or copying in the
386	community. If the association has a photocopy machine available
387	where the records are maintained, it must provide parcel owners
388	with copies on request during the inspection if the entire
389	request is limited to no more than 25 pages.
390	(d)  The association or its authorized agent is not
391	required to provide a prospective purchaser or lienholder with
392	information about the residential subdivision or the association
393	other than information or documents required by this chapter to
394	be made available or disclosed. The association or its
395	authorized agent may charge a reasonable fee to the prospective
396	purchaser or lienholder or the current parcel owner or member
397	for providing good faith responses to requests for information
398	by or on behalf of a prospective purchaser or lienholder, other
399	than that required by law, if the fee does not exceed $150 plus
400	the reasonable cost of photocopying and any attorney's fees
401	incurred by the association in connection with the response.
402	(6)  BUDGETS.--
403	(a)  The association shall prepare an annual budget that
404	sets out the annual operating expenses. The budget must reflect
405	the estimated revenues and expenses for that year and the
406	estimated surplus or deficit as of the end of the current year.
407	The budget must set out separately all fees or charges paid for
408	by the association for recreational amenities, whether owned by
409	the association, the developer, or another person. The
410	association shall provide each member with a copy of the annual
411	budget or a written notice that a copy of the budget is
412	available upon request at no charge to the member. The copy must
413	be provided to the member within the time limits set forth in
414	subsection (5).
415	(b)  In addition to annual operating expenses, the budget
416	may include reserve accounts for capital expenditures and
417	deferred maintenance for which the association is responsible to
418	the extent that the governing documents do not limit increases
419	in assessments, including reserves. If the budget of the
420	association includes reserve accounts, such reserves shall be
421	determined, maintained, and waived in the manner provided in
422	this subsection. Once an association provides for reserve
423	accounts in the budget, the association shall thereafter
424	determine, maintain, and waive reserves in compliance with the
425	provisions of this subsection.
426	(c)  If the budget of the association does not provide for
427	reserve accounts governed by this subsection and the association
428	is responsible for the repair and maintenance of capital
429	improvements that may result in a special assessment if reserves
430	are not provided, each financial report for the preceding fiscal
431	year required by subsection (7) shall contain the following
432	statement in conspicuous type: THE BUDGET OF THE ASSOCIATION
433	DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES
434	AND DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS.
435	OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE
436	PROVISIONS OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE
437	APPROVAL OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING
438	INTERESTS OF THE ASSOCIATION.
439	(d)  An association shall be deemed to have provided for
440	reserve accounts when reserve accounts have been initially
441	established by the developer or when the membership of the
442	association affirmatively elects to provide for reserves. If
443	reserve accounts are not initially provided for by the
444	developer, the membership of the association may elect to do so
445	upon the affirmative approval of not less than a majority of the
446	total voting interests of the association. Such approval may be
447	attained by vote of the members at a duly called meeting of the
448	membership or upon a written consent executed by not less than a
449	majority of the total voting interests in the community. The
450	approval action of the membership shall state that reserve
451	accounts shall be provided for in the budget and designate the
452	components for which the reserve accounts are to be established.
453	Upon approval by the membership, the board of directors shall
454	provide for the required reserve accounts for inclusion in the
455	budget in the next fiscal year following the approval and in
456	each year thereafter. Once established as provided in this
457	subsection, the reserve accounts shall be funded or maintained
458	or shall have their funding waived in the manner provided in
459	paragraph (f).
460	(e)  The amount to be reserved in any account established
461	shall be computed by means of a formula that is based upon
462	estimated remaining useful life and estimated replacement cost
463	or deferred maintenance expense of each reserve item. The
464	association may adjust replacement reserve assessments annually
465	to take into account any changes in estimates of cost or useful
466	life of a reserve item.
467	(f)  Once a reserve account or reserve accounts are
468	established, the membership of the association, upon a majority
469	vote at a meeting at which a quorum is present, may provide for
470	no reserves or less reserves than required by this section. If a
471	meeting of the unit owners has been called to determine whether
472	to waive or reduce the funding of reserves and no such result is
473	achieved or a quorum is not present, the reserves as included in
474	the budget shall go into effect. After the turnover, the
475	developer may vote its voting interest to waive or reduce the
476	funding of reserves. Any vote taken pursuant to this subsection
477	to waive or reduce reserves shall be applicable only to one
478	budget year.
479	(g)  Funding formulas for reserves authorized by this
480	section shall be based on either a separate analysis of each of
481	the required assets or a pooled analysis of two or more of the
482	required assets.
483	1.  If the association maintains separate reserve accounts
484	for each of the required assets, the amount of the contribution
485	to each reserve account shall be the sum of the following two
486	calculations:
487	a.  The total amount necessary, if any, to bring a negative
488	component balance to zero.
489	b.  The total estimated deferred maintenance expense or
490	estimated replacement cost of the reserve component less the
491	estimated balance of the reserve component as of the beginning
492	of the period for which the budget will be in effect. The
493	remainder, if greater than zero, shall be divided by the
494	estimated remaining useful life of the component.
495
496	The formula may be adjusted each year for changes in estimates
497	and deferred maintenance performed during the year and may
498	include factors such as inflation and earnings on invested
499	funds.
500	2.  If the association maintains a pooled account of two or
501	more of the required reserve assets, the amount of the
502	contribution to the pooled reserve account as disclosed on the
503	proposed budget shall not be less than that required to ensure
504	that the balance on hand at the beginning of the period for
505	which the budget will go into effect plus the projected annual
506	cash inflows over the remaining estimated useful life of all of
507	the assets that make up the reserve pool are equal to or greater
508	than the projected annual cash outflows over the remaining
509	estimated useful lives of all of the assets that make up the
510	reserve pool, based on the current reserve analysis. The
511	projected annual cash inflows may include estimated earnings
512	from investment of principal. The reserve funding formula shall
513	not include any type of balloon payments.
514	(h)  Reserve funds and any interest accruing thereon shall
515	remain in the reserve account or accounts and shall be used only
516	for authorized reserve expenditures unless their use for other
517	purposes is approved in advance by a majority vote at a meeting
518	at which a quorum is present. Prior to turnover of control of an
519	association by a developer to parcel owners, the developer-
520	controlled association shall not vote to use reserves for
521	purposes other than those for which they were intended without
522	the approval of a majority of all nondeveloper voting interests
523	voting in person or by limited proxy at a duly called meeting of
524	the association.
525	(7)  FINANCIAL REPORTING.--Within 90 days after the end of
526	the fiscal year, or annually on the date provided in the bylaws,
527	the association shall prepare and complete, or contract with a
528	third party for the preparation and completion of, a financial
529	report for the preceding fiscal year. Within 21 days after the
530	final financial report is completed by the association or
531	received from the third party, but not later than 120 days after
532	the end of the fiscal year or other date as provided in the
533	bylaws, the association shall prepare an annual financial report
534	within 60 days after the close of the fiscal year. The
535	association shall, within the time limits set forth in
536	subsection (5), provide each member with a copy of the annual
537	financial report or a written notice that a copy of the
538	financial report is available upon request at no charge to the
539	member. Financial reports shall be prepared as follows:
540	(a)  An association that meets the criteria of this
541	paragraph shall prepare or cause to be prepared a complete set
542	of financial statements in accordance with generally accepted
543	accounting principles as adopted by the Board of Accountancy.
544	The financial statements shall be based upon the association's
545	total annual revenues, as follows:
546	1.  An association with total annual revenues of $100,000
547	or more, but less than $200,000, shall prepare compiled
548	financial statements.
549	2.  An association with total annual revenues of at least
550	$200,000, but less than $400,000, shall prepare reviewed
551	financial statements.
552	3.  An association with total annual revenues of $400,000
553	or more shall prepare audited financial statements.
554	(b)1.  An association with total annual revenues of less
555	than $100,000 shall prepare a report of cash receipts and
556	expenditures.
557	2.  An association in a community of fewer than 50 parcels,
558	regardless of the association's annual revenues, may prepare a
559	report of cash receipts and expenditures in lieu of financial
560	statements required by paragraph (a) unless the governing
561	documents provide otherwise.
562	3.  A report of cash receipts and disbursement must
563	disclose the amount of receipts by accounts and receipt
564	classifications and the amount of expenses by accounts and
565	expense classifications, including, but not limited to, the
566	following, as applicable: costs for security, professional, and
567	management fees and expenses; taxes; costs for recreation
568	facilities; expenses for refuse collection and utility services;
569	expenses for lawn care; costs for building maintenance and
570	repair; insurance costs; administration and salary expenses; and
571	reserves if maintained by the association.
572	(c)  If 20 percent of the parcel owners petition the board
573	for a level of financial reporting higher than that required by
574	this section, the association shall duly notice and hold a
575	meeting of members within 30 days of receipt of the petition for
576	the purpose of voting on raising the level of reporting for that
577	fiscal year. Upon approval of a majority of the total voting
578	interests of the parcel owners, the association shall prepare or
579	cause to be prepared, shall amend the budget or adopt a special
580	assessment to pay for the financial report regardless of any
581	provision to the contrary in the governing documents, and shall
582	provide within 90 days of the meeting or the end of the fiscal
583	year, whichever occurs later:
584	1.  Compiled, reviewed, or audited financial statements, if
585	the association is otherwise required to prepare a report of
586	cash receipts and expenditures;
587	2.  Reviewed or audited financial statements, if the
588	association is otherwise required to prepare compiled financial
589	statements; or
590	3.  Audited financial statements if the association is
591	otherwise required to prepare reviewed financial statements.
592	(d)  If approved by a majority of the voting interests
593	present at a properly called meeting of the association, an
594	association may prepare or cause to be prepared:
595	1.  A report of cash receipts and expenditures in lieu of a
596	compiled, reviewed, or audited financial statement;
597	2.  A report of cash receipts and expenditures or a
598	compiled financial statement in lieu of a reviewed or audited
599	financial statement; or
600	3.  A report of cash receipts and expenditures, a compiled
601	financial statement, or a reviewed financial statement in lieu
602	of an audited financial statement.
603	Section 11.  Subsection (2) of section 720.303, Florida
604	Statutes, as amended by section 2 of chapter 2004-345 and
605	section 15 of chapter 2004-353, Laws of Florida, is repealed.
606	Section 12.  Section 720.3035, Florida Statutes, is created
607	to read:
608	720.3035  Architectural control covenants; parcel owner
609	improvements; rights and privileges.--
610	(1)  The authority of an association or any architectural,
611	construction improvement, or other such similar committee of an
612	association to review and approve plans and specifications for
613	the location, size, type, or appearance of any structure or
614	other improvement on a parcel, or to enforce standards for the
615	external appearance of any structure or improvement located on a
616	parcel, shall only be permitted to the extent that the authority
617	is specifically stated or reasonably inferred as to such
618	location, size, type, or appearance in the declaration of
619	covenants or other published guidelines and standards authorized
620	by the declaration of covenants.
621	(2)  If the declaration of covenants or other published
622	guidelines and standards authorized by the declaration of
623	covenants provides options for the use of material, the size of
624	the structure or improvement, the design of the structure or
625	improvement, or the location of the structure or improvement on
626	the parcel, neither the association nor any architectural,
627	construction improvement, or other such similar committee of the
628	association shall restrict the right of a parcel owner to select
629	from the options provided in the declaration of covenants or
630	other published guidelines and standards authorized by the
631	declaration of covenants.
632	(3)  Unless otherwise specifically stated in the
633	declaration of covenants or other published guidelines and
634	standards authorized by the declaration of covenants, each
635	parcel shall be deemed to have only one front for purposes of
636	determining the required front setback even if the parcel is
637	bounded by a roadway or other easement on more than one side.
638	When the declaration of covenants or other published guidelines
639	and standards authorized by the declaration of covenants do not
640	provide for specific setback limitations, the applicable county
641	or municipal setback limitations shall apply, and neither the
642	association nor any architectural, construction improvement, or
643	other such similar committee of the association shall enforce or
644	attempt to enforce any setback limitation that is inconsistent
645	with the applicable county or municipal standard or standards.
646	(4)  Each parcel owner shall be entitled to the rights and
647	privileges set forth in the declaration of covenants or other
648	published guidelines and standards authorized by the declaration
649	of covenants concerning the architectural use of the parcel, and
650	the construction of permitted structures and improvements on the
651	parcel and such rights and privileges shall not be unreasonably
652	infringed upon or impaired by the association or any
653	architectural, construction improvement, or other such similar
654	committee of the association. If the association or any
655	architectural, construction improvement, or other such similar
656	committee of the association should unreasonably, knowingly, and
657	willfully infringe upon or impair the rights and privileges set
658	forth in the declaration of covenants or other published
659	guidelines and standards authorized by the declaration of
660	covenants, the adversely affected parcel owner shall be entitled
661	to recover damages caused by such infringement or impairment,
662	including any costs and reasonable attorney's fees incurred in
663	preserving or restoring the rights and privileges of the parcel
664	owner set forth in the declaration of covenants or other
665	published guidelines and standards authorized by the declaration
666	of covenants.
667	(5)  Neither the association nor any architectural,
668	construction improvement, or other such similar committee of the
669	association shall enforce any policy or restriction that is
670	inconsistent with the rights and privileges of a parcel owner
671	set forth in the declaration of covenants or other published
672	guidelines and standards authorized by the declaration of
673	covenants, whether uniformly applied or not. Neither the
674	association nor any architectural, construction improvement, or
675	other such similar committee of the association may rely upon a
676	policy or restriction that is inconsistent with the declaration
677	of covenants or other published guidelines and standards
678	authorized by the declaration of covenants, whether uniformly
679	applied or not, in defense of any action taken in the name of or
680	on behalf of the association against a parcel owner.
681	Section 13.  Subsection (1) of section 720.305, Florida
682	Statutes, is amended to read:
683	720.305  Obligations of members; remedies at law or in
684	equity; levy of fines and suspension of use rights; failure to
685	fill sufficient number of vacancies on board of directors to
686	constitute a quorum; appointment of receiver upon petition of
687	any member.--
688	(1)  Each member and the member's tenants, guests, and
689	invitees, and each association, are governed by, and must comply
690	with, this chapter, the governing documents of the community,
691	and the rules of the association. Actions at law or in equity,
692	or both, to redress alleged failure or refusal to comply with
693	these provisions may be brought by the association or by any
694	member against:
695	(a)  The association;
696	(b)  A member;
697	(c)  Any director or officer of an association who
698	willfully and knowingly fails to comply with these provisions;
699	and
700	(d)  Any tenants, guests, or invitees occupying a parcel or
701	using the common areas.
702
703	The prevailing party in any such litigation is entitled to
704	recover reasonable attorney's fees and costs. A member
705	prevailing in an action between the association and the member
706	under this section, in addition to recovering his or her
707	reasonable attorney's fees, may recover additional amounts as
708	determined by the court to be necessary to reimburse the member
709	for his or her share of assessments levied by the association to
710	fund its expenses of the litigation. This relief does not
711	exclude other remedies provided by law. This section does not
712	deprive any person of any other available right or remedy.
713	Section 14.  Paragraph (c) of subsection (1) of section
714	720.306, Florida Statutes, is amended to read:
715	720.306  Meetings of members; voting and election
716	procedures; amendments.--
717	(1)  QUORUM; AMENDMENTS.--
718	(c)  Unless otherwise provided in the governing documents
719	as originally recorded or permitted by this chapter or chapter
720	617, an amendment may not materially and adversely alter the
721	proportionate voting interest appurtenant to a parcel or
722	increase the proportion or percentage by which a parcel shares
723	in the common expenses of the association unless the record
724	parcel owner and all record owners of liens on the parcels join
725	in the execution of the amendment. For purposes of this section,
726	a change in quorum requirements is not an alteration of voting
727	interests. The merger or consolidation of one or more
728	associations under a plan of merger or consolidation under
729	chapter 607 or chapter 617 shall not be considered a material or
730	adverse alteration of the proportionate voting interest
731	appurtenant to a parcel.
732	Section 15.  Paragraph (t) is added to subsection (3) of
733	section 720.307, Florida Statutes, to read:
734	720.307  Transition of association control in a
735	community.--With respect to homeowners' associations:
736	(3)  At the time the members are entitled to elect at least
737	a majority of the board of directors of the homeowners'
738	association, the developer shall, at the developer's expense,
739	within no more than 90 days deliver the following documents to
740	the board:
741	(t)  The financial records, including financial statements
742	of the association, and source documents from the incorporation
743	of the association through the date of turnover. The records
744	shall be audited by an independent certified public accountant
745	for the period from the incorporation of the association or from
746	the period covered by the last audit, if an audit has been
747	performed for each fiscal year since incorporation. All
748	financial statements shall be prepared in accordance with
749	generally accepted accounting principles and shall be audited in
750	accordance with generally accepted auditing standards, as
751	prescribed by the Board of Accountancy, pursuant to chapter 473.
752	The certified public accountant performing the audit shall
753	examine to the extent necessary supporting documents and
754	records, including the cash disbursements and related paid
755	invoices to determine if expenditures were for association
756	purposes and the billings, cash receipts, and related records of
757	the association to determine that the developer was charged and
758	paid the proper amounts of assessments. This paragraph applies
759	to associations with a date of incorporation after December 31,
760	2006.
761	Section 16.  Section 720.308, Florida Statutes, is amended
762	to read:
763	720.308  Assessments and charges.--
764	(1)  ASSESSMENTS.--For any community created after October
765	1, 1995, the governing documents must describe the manner in
766	which expenses are shared and specify the member's proportional
767	share thereof. Assessments levied pursuant to the annual budget
768	or special assessment must be in the member's proportional share
769	of expenses as described in the governing document, which share
770	may be different among classes of parcels based upon the state
771	of development thereof, levels of services received by the
772	applicable members, or other relevant factors. While the
773	developer is in control of the homeowners' association, it may
774	be excused from payment of its share of the operating expenses
775	and assessments related to its parcels for any period of time
776	for which the developer has, in the declaration, obligated
777	itself to pay any operating expenses incurred that exceed the
778	assessments receivable from other members and other income of
779	the association. This section does not apply to an association,
780	no matter when created, if the association is created in a
781	community that is included in an effective development-of-
782	regional-impact development order as of the effective date of
783	this act, together with any approved modifications thereto.
784	(2)  GUARANTEES OF COMMON EXPENSES.--
785	(a)  Establishment of a guarantee.--If a guarantee of the
786	assessments of parcel owners is not included in the purchase
787	contracts or declaration, any agreement establishing a guarantee
788	shall only be effective upon the approval of a majority of the
789	voting interests of the members other than the developer.
790	Approval shall be expressed at a meeting of the members voting
791	in person or by limited proxy or by agreement in writing without
792	a meeting if provided in the bylaws. Such guarantee shall meet
793	the requirements of this section.
794	(b)  Guarantee period.--The period of time for the
795	guarantee shall be indicated by a specific beginning and ending
796	date or event.
797	1.  The ending date or event shall be the same for all of
798	the members of an association, including members in different
799	phases of the development.
800	2.  The guarantee may provide for different intervals of
801	time during a guarantee period with different dollar amounts for
802	each such interval.
803	3.  The guarantee may provide that after the initial stated
804	period, the developer has an option to extend the guarantee for
805	one or more additional stated periods. The extension of a
806	guarantee is limited to extending the ending date or event;
807	therefore, the developer does not have the option of changing
808	the level of assessments guaranteed.
809	(3)  MAXIMUM LEVEL OF ASSESSMENTS.--The stated dollar
810	amount of the guarantee shall be an exact dollar amount for each
811	parcel identified in the declaration. Regardless of the stated
812	dollar amount of the guarantee, assessments charged to a member
813	shall not exceed the maximum obligation of the member based on
814	the total amount of the adopted budget and the member's
815	proportionate ownership share of the common elements.
816	(4)  CASH FUNDING REQUIREMENTS DURING GUARANTEE.--The cash
817	payments required from the guarantor during the guarantee period
818	shall be determined as follows:
819	(a)  If at any time during the guarantee period the funds
820	collected from member assessments at the guaranteed level and
821	other revenues collected by the association are not sufficient
822	to provide payment, on a timely basis, of all assessments,
823	including the full funding of the reserves unless properly
824	waived, the guarantor shall advance sufficient cash to the
825	association at the time such payments are due.
826	(b)  Expenses incurred in the production of nonassessment
827	revenues, not in excess of the nonassessment revenues, shall not
828	be included in the assessments. If the expenses attributable to
829	nonassessment revenues exceed nonassessment revenues, only the
830	excess expenses must be funded by the guarantor. Interest earned
831	on the investment of association funds may be used to pay the
832	income tax expense incurred as a result of the investment; such
833	expense shall not be charged to the guarantor; and the net
834	investment income shall be retained by the association. Each
835	such nonassessment-revenue-generating activity shall be
836	considered separately. Any portion of the parcel assessment that
837	is budgeted for designated capital contributions of the
838	association shall not be used to pay operating expenses.
839	(5)  CALCULATION OF GUARANTOR'S FINAL OBLIGATION.--The
840	guarantor's total financial obligation to the association at the
841	end of the guarantee period shall be determined on the accrual
842	basis using the following formula: the guarantor shall pay any
843	deficits that exceed the guaranteed amount, less the total
844	regular periodic assessments earned by the association from the
845	members other than the guarantor during the guarantee period
846	regardless of whether the actual level charged was less than the
847	maximum guaranteed amount.
848	(6)  EXPENSES.--Expenses incurred in the production of
849	nonassessment revenues, not in excess of the nonassessment
850	revenues, shall not be included in the operating expenses. If
851	the expenses attributable to nonassessment revenues exceed
852	nonassessment revenues, only the excess expenses must be funded
853	by the guarantor. Interest earned on the investment of
854	association funds may be used to pay the income tax expense
855	incurred as a result of the investment; such expense shall not
856	be charged to the guarantor; and the net investment income shall
857	be retained by the association. Each such nonassessment-revenue-
858	generating activity shall be considered separately. Any portion
859	of the parcel assessment that is budgeted for designated capital
860	contributions of the association shall not be used to pay
861	operating expenses.
862	Section 17.  Section 720.311, Florida Statutes, is amended
863	to read:
864	720.311  Dispute resolution.--
865	(1)  The Legislature finds that alternative dispute
866	resolution has made progress in reducing court dockets and
867	trials and in offering a more efficient, cost-effective option
868	to litigation. The filing of any petition for mediation or
869	arbitration or the serving of an offer for presuit mediation as
870	provided for in this section shall toll the applicable statute
871	of limitations. Any recall dispute filed with the department
872	pursuant to s. 720.303(10) shall be conducted by the department
873	in accordance with the provisions of ss. 718.112(2)(j) and
874	718.1255 and the rules adopted by the division. In addition, the
875	department shall conduct mandatory binding arbitration of
876	election disputes between a member and an association pursuant
877	to s. 718.1255 and rules adopted by the division. Neither
878	election disputes nor recall disputes are eligible for presuit
879	mediation; these disputes shall be arbitrated by the department.
880	At the conclusion of the proceeding, the department shall charge
881	the parties a fee in an amount adequate to cover all costs and
882	expenses incurred by the department in conducting the
883	proceeding. Initially, the petitioner shall remit a filing fee
884	of at least $200 to the department. The fees paid to the
885	department shall become a recoverable cost in the arbitration
886	proceeding, and the prevailing party in an arbitration
887	proceeding shall recover its reasonable costs and attorney's
888	fees in an amount found reasonable by the arbitrator. The
889	department shall adopt rules to effectuate the purposes of this
890	section.
891	(2)(a)  Disputes between an association and a parcel owner
892	regarding use of or changes to the parcel or the common areas
893	and other covenant enforcement disputes, disputes regarding
894	amendments to the association documents, disputes regarding
895	meetings of the board and committees appointed by the board,
896	membership meetings not including election meetings, and access
897	to the official records of the association shall be the subject
898	of an offer filed with the department for presuit mandatory
899	mediation served by an aggrieved party before the dispute is
900	filed in court. Presuit mediation proceedings must be conducted
901	in accordance with the applicable Florida Rules of Civil
902	Procedure, and these proceedings are privileged and confidential
903	to the same extent as court-ordered mediation. Disputes subject
904	to presuit mediation under this section shall not include the
905	collection of any assessment, fine, or other financial
906	obligation, including attorney's fees and costs, claimed to be
907	due or any action to enforce a prior mediation settlement
908	agreement between the parties. Also, in any dispute subject to
909	presuit mediation under this section where emergency relief is
910	required, a motion for temporary injunctive relief may be filed
911	with the court without first complying with the presuit
912	mediation requirements of this section. After any issues
913	regarding emergency or temporary relief are resolved, the court
914	may either refer the parties to a mediation program administered
915	by the courts or require mediation under this section. An
916	arbitrator or judge may not consider any information or evidence
917	arising from the presuit mediation proceeding except in a
918	proceeding to impose sanctions for failure to attend a presuit
919	mediation session or with the parties' agreement in a proceeding
920	seeking to enforce the agreement. Persons who are not parties to
921	the dispute may not attend the presuit mediation conference
922	without the consent of all parties, except for counsel for the
923	parties and a corporate representative designated by the
924	association. When mediation is attended by a quorum of the
925	board, such mediation is not a board meeting for purposes of
926	notice and participation set forth in s. 720.303. An aggrieved
927	party shall serve on the responding party a written offer to
928	participate in presuit mediation in substantially the following
929	form:
930
931	STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION
932
933	The alleged aggrieved party,__________________, hereby
934	offers to _________________, as the responding party,
935	to enter into presuit mediation in connection with the
936	following dispute, which by statute is of a type that
937	is subject to presuit mediation:
938
939	(List specific nature of the dispute or disputes to be
940	mediated and the authority supporting a finding of a
941	violation as to each dispute.)
942
943	Pursuant to section 720.311, Florida Statutes, this
944	offer to resolve the dispute through presuit mediation
945	is required before a lawsuit can be filed concerning
946	the dispute. Pursuant to the statute, the aggrieved
947	party is hereby offering to engage in presuit
948	mediation with a neutral third-party mediator in order
949	to attempt to resolve this dispute without court
950	action, and the aggrieved party demands that you
951	likewise agree to this process. If you fail to agree
952	to presuit mediation, or if you agree and later fail
953	to follow through with your agreement to mediate, suit
954	may be brought against you without further warning.
955
956	The process of mediation involves a supervised
957	negotiation process in which a trained, neutral third-
958	party mediator meets with both parties and assists
959	them in exploring possible opportunities for resolving
960	part or all of the dispute. The mediation process is a
961	voluntary one. By agreeing to participate in presuit
962	mediation, you are not bound in any way to change your
963	position or to enter into any type of agreement.
964	Furthermore, the mediator has no authority to make any
965	decisions in this matter or to determine who is right
966	or wrong and merely acts as a facilitator to ensure
967	that each party understands the position of the other
968	party and that all reasonable settlement options are
969	fully explored. All mediation communications are
970	confidential under the Mediation Confidentiality and
971	Privilege Act pursuant to sections 44.401-44.406,
972	Florida Statutes, and a mediation participant may not
973	disclose a mediation communication to a person other
974	than a mediation participant or a participant's
975	counsel.
976
977	If an agreement is reached, it shall be reduced to
978	writing and becomes a binding and enforceable
979	commitment of the parties. A resolution of one or more
980	disputes in this fashion avoids the need to litigate
981	these issues in court. The failure to reach an
982	agreement, or the failure of a party to participate in
983	the process, results in the mediator's declaring an
984	impasse in the mediation, after which the aggrieved
985	party may proceed to court on all outstanding,
986	unsettled disputes.
987
988	The aggrieved party has selected and hereby lists
989	three certified mediators who we believe to be neutral
990	and qualified to mediate the dispute. You have the
991	right to select any one of these mediators. The fact
992	that one party may be familiar with one or more of the
993	listed mediators does not mean that the mediator
994	cannot act as a neutral and impartial facilitator. Any
995	mediator who cannot act in this capacity ethically
996	must decline to accept engagement. The mediators that
997	we suggest, and their current hourly rates, are as
998	follows:
999
1000	(List the names, addresses, telephone numbers, and
1001	hourly rates of the mediators. Other pertinent
1002	information about the background of the mediators may
1003	be included as an attachment.)
1004
1005	You may contact the offices of these mediators to
1006	confirm that the listed mediators will be neutral and
1007	will not show any favoritism toward either party. The
1008	names of certified mediators may be found through the
1009	office of the clerk of the circuit court for this
1010	circuit.
1011
1012	If you agree to participate in the presuit mediation
1013	process, the statute requires that each party is to
1014	pay one-half of the costs and fees involved in the
1015	presuit mediation process unless otherwise agreed by
1016	all parties. An average mediation may require 3 to 4
1017	hours of the mediator's time, including some
1018	preparation time, and each party would need to pay
1019	one-half of the mediator's fees as well as his or her
1020	own attorney's fees if he or she chooses to employ an
1021	attorney in connection with the mediation. However,
1022	use of an attorney is not required and is at the
1023	option of each party. The mediator may require the
1024	advance payment of some or all of the anticipated
1025	fees. The aggrieved party hereby agrees to pay or
1026	prepay one-half of the mediator's estimated fees and
1027	to forward this amount or such other reasonable
1028	advance deposits as the mediator may require for this
1029	purpose. Any funds deposited will be returned to you
1030	if these are in excess of your share of the fees
1031	incurred.
1032
1033	If you agree to participate in presuit mediation in
1034	order to attempt to resolve the dispute and thereby
1035	avoid further legal action, please sign below and
1036	clearly indicate which mediator is acceptable to you.
1037	We will then ask the mediator to schedule a mutually
1038	convenient time and place for the mediation conference
1039	to be held. The mediation conference must be held
1040	within 90 days after the date of this letter unless
1041	extended by mutual written agreement. In the event
1042	that you fail to respond within 20 days after the date
1043	of this letter, or if you fail to agree to at least
1044	one of the mediators that we have suggested and to pay
1045	or prepay to the mediator one-half of the costs
1046	involved, the aggrieved party will be authorized to
1047	proceed with the filing of a lawsuit against you
1048	without further notice and may seek an award of
1049	attorney's fees or costs incurred in attempting to
1050	obtain mediation.
1051
1052	Should you wish, you may also elect to waive presuit
1053	mediation so that this matter may proceed directly to
1054	court.
1055
1056	Therefore, please give this matter your immediate
1057	attention. By law, your response must be mailed by
1058	certified mail, return receipt requested, with an
1059	additional copy being sent by regular first-class mail
1060	to the address shown on this offer.
1061
1062	_____________________
1063	_____________________
1064
1065	RESPONDING PARTY: CHOOSE ONLY ONE OF THE TWO OPTIONS
1066	BELOW. YOUR SIGNATURE INDICATES YOUR AGREEMENT TO THAT
1067	CHOICE.
1068
1069	AGREEMENT TO MEDIATE
1070
1071	The undersigned hereby agrees to participate in
1072	presuit mediation and agrees to the following mediator
1073	or mediators as acceptable to mediate this dispute:
1074
1075	(List acceptable mediator or mediators.)
1076
1077	I/we further agree to pay or prepay one-half of the
1078	mediator's fees and to forward such advance deposits
1079	as the mediator may require for this purpose.
1080
1081	_______________________
1082	Signature of responding party #1
1083
1084	_______________________
1085	Signature of responding party #2 (if applicable)(if
1086	property is owned by more than one person, all owners
1087	must sign)
1088
1089	WAIVER OF MEDIATION
1090
1091	The undersigned hereby waives the right to participate
1092	in presuit mediation of the dispute listed above and
1093	agrees to allow the aggrieved party to proceed in
1094	court on such matters.
1095
1096	__________________________
1097	Signature of responding party #1
1098
1099	___________________________
1100	Signature of responding party #2 (if applicable)(if
1101	property is owned by more than one person, all owners
1102	must sign)
1103
1104	(b)  Service of the statutory offer to participate in
1105	presuit mediation shall be effected by sending a letter in
1106	substantial conformity with the above form by certified mail,
1107	return receipt requested, with an additional copy being sent by
1108	regular first-class mail, to the address of the responding party
1109	as it last appears on the books and records of the association.
1110	The responding party shall have 20 days from the date of the
1111	mailing of the statutory offer to serve a response to the
1112	aggrieved party in writing. The response shall be served by
1113	certified mail, return receipt requested, with an additional
1114	copy being sent by regular first-class mail, to the address
1115	shown on the statutory offer. In the alternative, the responding
1116	party may waive mediation in writing. Notwithstanding the
1117	foregoing, once the parties have agreed on a mediator, the
1118	mediator may reschedule the mediation for a date and time
1119	mutually convenient to the parties. The department shall conduct
1120	the proceedings through the use of department mediators or refer
1121	the disputes to private mediators who have been duly certified
1122	by the department as provided in paragraph (c). The parties
1123	shall share the costs of presuit mediation equally, including
1124	the fee charged by the mediator, if any, unless the parties
1125	agree otherwise, and the mediator may require advance payment of
1126	its reasonable fees and costs. The failure of any party to
1127	respond to a demand or response, to agree upon a mediator, to
1128	make payment of fees and costs within the time established by
1129	the mediator, or to appear for a scheduled mediation session
1130	shall operate as an impasse in the presuit mediation by such
1131	party, entitling the other party to proceed in court and to seek
1132	an award of the costs and fees associated with the mediation.
1133	Additionally, if any presuit mediation session cannot be
1134	scheduled and conducted within 90 days after the offer to
1135	participate in mediation was filed, an impasse shall be deemed
1136	to have occurred unless both parties agree to extend this
1137	deadline. If a department mediator is used, the department may
1138	charge such fee as is necessary to pay expenses of the
1139	mediation, including, but not limited to, the salary and
1140	benefits of the mediator and any travel expenses incurred. The
1141	petitioner shall initially file with the department upon filing
1142	the disputes, a filing fee of $200, which shall be used to
1143	defray the costs of the mediation. At the conclusion of the
1144	mediation, the department shall charge to the parties, to be
1145	shared equally unless otherwise agreed by the parties, such
1146	further fees as are necessary to fully reimburse the department
1147	for all expenses incurred in the mediation.
1148	(c)(b)  If presuit mediation as described in paragraph (a)
1149	is not successful in resolving all issues between the parties,
1150	the parties may file the unresolved dispute in a court of
1151	competent jurisdiction or elect to enter into binding or
1152	nonbinding arbitration pursuant to the procedures set forth in
1153	s. 718.1255 and rules adopted by the division, with the
1154	arbitration proceeding to be conducted by a department
1155	arbitrator or by a private arbitrator certified by the
1156	department. If all parties do not agree to arbitration
1157	proceedings following an unsuccessful presuit mediation, any
1158	party may file the dispute in court. A final order resulting
1159	from nonbinding arbitration is final and enforceable in the
1160	courts if a complaint for trial de novo is not filed in a court
1161	of competent jurisdiction within 30 days after entry of the
1162	order. As to any issue or dispute that is not resolved at
1163	presuit mediation, and as to any issue that is settled at
1164	presuit mediation but is thereafter subject to an action seeking
1165	enforcement of the mediation settlement, the prevailing party in
1166	any subsequent arbitration or litigation proceeding shall be
1167	entitled to seek recovery of all costs and attorney's fees
1168	incurred in the presuit mediation process.
1169	(d)(c)  The department shall develop a certification and
1170	training program for private mediators and private arbitrators
1171	which shall emphasize experience and expertise in the area of
1172	the operation of community associations. A mediator or
1173	arbitrator shall be certified to conduct mediation or
1174	arbitration under this section by the department only if he or
1175	she has been certified as a circuit court civil mediator or
1176	arbitrator, respectively, pursuant to the requirements
1177	established attended at least 20 hours of training in mediation
1178	or arbitration, as appropriate, and only if the applicant has
1179	mediated or arbitrated at least 10 disputes involving community
1180	associations within 5 years prior to the date of the
1181	application, or has mediated or arbitrated 10 disputes in any
1182	area within 5 years prior to the date of application and has
1183	completed 20 hours of training in community association
1184	disputes. In order to be certified by the department, any
1185	mediator must also be certified by the Florida Supreme Court.
1186	The department may conduct the training and certification
1187	program within the department or may contract with an outside
1188	vendor to perform the training or certification. The expenses of
1189	operating the training and certification and training program
1190	shall be paid by the moneys and filing fees generated by the
1191	arbitration of recall and election disputes and by the mediation
1192	of those disputes referred to in this subsection and by the
1193	training fees.
1194	(e)(d)  The presuit mediation procedures provided by this
1195	subsection may be used by a Florida corporation responsible for
1196	the operation of a community in which the voting members are
1197	parcel owners or their representatives, in which membership in
1198	the corporation is not a mandatory condition of parcel
1199	ownership, or which is not authorized to impose an assessment
1200	that may become a lien on the parcel.
1201	(3)  The department shall develop an education program to
1202	assist homeowners, associations, board members, and managers in
1203	understanding and increasing awareness of the operation of
1204	homeowners' associations pursuant to this chapter and in
1205	understanding the use of alternative dispute resolution
1206	techniques in resolving disputes between parcel owners and
1207	associations or between owners. Such education program may
1208	include the development of pamphlets and other written
1209	instructional guides, the holding of classes and meetings by
1210	department employees or outside vendors, as the department
1211	determines, and the creation and maintenance of a website
1212	containing instructional materials. The expenses of operating
1213	the education program shall be initially paid by the moneys and
1214	filing fees generated by the arbitration of recall and election
1215	disputes and by the mediation of those disputes referred to in
1216	this subsection.
1217	Section 18.  Except as otherwise expressly provided in this
1218	act, this act shall take effect July 1, 2006.

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