1 | A bill to be entitled |
2 | An act relating to homeowners' associations; amending s. |
3 | 720.303, F.S.; revising the powers and duties of |
4 | homeowners' associations; requiring certain associations |
5 | to be incorporated in this state; removing a provision |
6 | authorizing associations to operate more than one |
7 | community; prohibiting officers and directors from taking |
8 | any action that is inconsistent with the declaration of |
9 | covenants; authorizing associations to settle actions on |
10 | appeal; revising procedures relating to legal actions |
11 | commenced by the association; lowering the dollar amount |
12 | for which the association must obtain approval by the |
13 | members of the association before proceeding with the |
14 | legal action; authorizing the association to enter into |
15 | certain contracts; removing provisions authorizing an |
16 | association to have more than one class of members and to |
17 | issue membership certificates; prohibiting certain |
18 | association defenses; prohibiting associations from |
19 | restricting a member's freedom of association and from |
20 | limiting the number of guests a member may have within a |
21 | 24-hour period; providing that officers and directors of |
22 | an association may be personally liable for damages under |
23 | certain circumstances; providing compensation for certain |
24 | members under certain circumstances; providing criteria |
25 | for establishing setback limits; prohibiting the |
26 | association from denying or refusing to approve a member's |
27 | plans for building on the member's property under certain |
28 | circumstances; requiring the budget to provide for annual |
29 | operating expenses; requiring the budget to include |
30 | reserve accounts for capital expenditures and deferred |
31 | maintenance; providing the amount to be reserved; |
32 | authorizing the association to adjust replacement reserve |
33 | assessments annually; authorizing the developer to vote to |
34 | waive the reserves or reduce the funding of reserves for a |
35 | certain period; revising provisions relating to financial |
36 | reporting; revising time periods in which the association |
37 | must complete its reporting; amending s. 720.307, F.S.; |
38 | requiring developers to deliver financial records to the |
39 | board; requiring certain information to be included in the |
40 | records and for the records to be prepared in a specified |
41 | manner; amending s. 720.308, F.S.; providing that a |
42 | guarantee of common expenses shall be effective under |
43 | certain circumstances; requiring the guarantee to meet |
44 | certain requirements; authorizing the guarantee to provide |
45 | certain requirements; requiring the stated dollar amount |
46 | of the guarantee to be an exact dollar amount for each |
47 | parcel identified in the declaration; providing payments |
48 | required from the guarantor to be determined in a certain |
49 | manner; providing a formula to determine the guarantor's |
50 | total financial obligation to the association; providing |
51 | that certain expenses incurred in the production of |
52 | certain revenues shall not be included in the common |
53 | expenses; providing an effective date. |
54 |
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55 | Be It Enacted by the Legislature of the State of Florida: |
56 |
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57 | Section 1. Subsections (1), (6), and (7) of section |
58 | 720.303, Florida Statutes, are amended to read: |
59 | 720.303 Association powers and duties; meetings of board; |
60 | official records; budgets; financial reporting; association |
61 | funds; recalls.-- |
62 | (1) POWERS AND DUTIES.-- |
63 | (a) An association which operates a community as defined |
64 | in s. 720.301, must be incorporated in this state, operated by |
65 | an association that is a Florida corporation. After October 1, |
66 | 1995, the association must be incorporated and the initial |
67 | governing documents must be recorded in the official records of |
68 | the county in which the community is located. An association may |
69 | operate more than one community. |
70 | (b) The officers and directors of an association have a |
71 | fiduciary relationship to the members of who are served by the |
72 | association. |
73 | (c) The powers and duties of an association include those |
74 | set forth in this chapter and, except as expressly limited or |
75 | restricted in this chapter, those specifically set forth in the |
76 | governing documents. The officers and directors of the |
77 | association may not take any action that is inconsistent with |
78 | the declaration of covenants. |
79 | (d) After control of the association is obtained by |
80 | members from the developers other than the developer, the |
81 | association may institute, maintain, or settle on, or appeal |
82 | actions or hearings in its name on behalf of the all members |
83 | concerning matters of common interest to the members, including, |
84 | but not limited to, the common areas; roof or structural |
85 | components of a building, or other improvements for which the |
86 | association is responsible; mechanical, electrical, or plumbing |
87 | elements serving an improvement or building for which the |
88 | association is responsible; representations of the developer |
89 | pertaining to any existing or proposed commonly used facility; |
90 | and protesting ad valorem taxes on commonly used facilities. The |
91 | association may defend actions in eminent domain or bring |
92 | inverse condemnation actions. Before commencing any legal action |
93 | litigation against any party in the name of the association |
94 | involving amounts in controversy in excess of $50,000 $100,000, |
95 | the association must obtain the affirmative approval of a |
96 | majority of the members of the association voting interests at a |
97 | meeting of the association membership at which a quorum is |
98 | present has been attained. |
99 | (e) The association may enter into contracts for the |
100 | benefit of the members of the association, including, but not |
101 | limited to, contracts for maintaining, repairing, or improving |
102 | the common areas of the association. This subsection does not |
103 | limit any statutory or common-law right of any individual member |
104 | or class of members to bring any action without participation by |
105 | the association. |
106 | (f) A member does not have the authority to act for the |
107 | association by virtue of being a member of the association. An |
108 | association may have more than one class of members and may |
109 | issue membership certificates. |
110 | (g) In any action between a member and the association, it |
111 | shall not be a defense by the association that the association's |
112 | actions, although inconsistent with the declaration of |
113 | covenants, have been uniformly applied. |
114 | (h) An association may not restrict a member's freedom of |
115 | association and may not limit the number of guests a member may |
116 | have within a 24-hour period. |
117 | (i) An association of 15 or fewer parcels parcel owners |
118 | may enforce only the requirements of those deed restrictions |
119 | established prior to the purchase of each parcel upon an |
120 | affected parcel owner or owners. |
121 | (j) The officers and directors of an association may be |
122 | personally liable for damages to a member if the actions of the |
123 | officers and directors demonstrate a pattern of behavior |
124 | designed to harass a member of the association. |
125 | (k) Any action of the association by and through the |
126 | officers and directors that limits the legal use of any portion |
127 | of a member's property which is inconsistent with the |
128 | declaration of covenants shall entitle the member to |
129 | compensation for the fair market value of that portion of the |
130 | member's property the use of which is being restricted. |
131 | (l) In any association with more than 50 but fewer than 75 |
132 | parcels, for purposes of establishing setback limits, any parcel |
133 | of 1 acre or less shall be deemed to have one front for purposes |
134 | of determining the required front setback, if any. Only those |
135 | setbacks specifically set forth in the declaration of covenants |
136 | may be enforced by the association. Where the covenants are |
137 | silent, the applicable county or municipal setbacks shall apply. |
138 | (m) The association may not deny or refuse to approve a |
139 | member's plans for building on the member's property unless the |
140 | plan under consideration violates a specific provision of the |
141 | declaration of covenants. |
142 | (6) BUDGETS.-- |
143 | (a) The association shall prepare an annual budget |
144 | providing for the annual operating expenses. The budget must |
145 | reflect the estimated revenues and expenses for that year and |
146 | the estimated surplus or deficit as of the end of the current |
147 | year. The budget must set out separately all fees or charges for |
148 | recreational amenities, whether owned by the association, the |
149 | developer, or another person. The association shall provide each |
150 | member with a copy of the annual budget or a written notice that |
151 | a copy of the budget is available upon request at no charge to |
152 | the member. The copy must be provided to the member within the |
153 | time limits set forth in subsection (5). |
154 | (b) In addition to annual operating expenses, the budget |
155 | shall include reserve accounts for capital expenditures and |
156 | deferred maintenance. These accounts shall include, but are not |
157 | limited to, roof replacement, building painting, and pavement |
158 | resurfacing, regardless of the amount of deferred maintenance |
159 | expense or replacement cost, and any other item for which the |
160 | deferred maintenance expense or replacement cost exceeds |
161 | $10,000. The amount to be reserved shall be computed by means of |
162 | a formula that is based upon estimated remaining useful life and |
163 | estimated replacement cost or deferred maintenance expense of |
164 | each reserve item. The association may adjust replacement |
165 | reserve assessments annually to take into account any changes in |
166 | estimates or extension of the useful life of a reserve item |
167 | caused by deferred maintenance. This paragraph does not apply to |
168 | an adopted budget for which the members of an association have |
169 | determined, by a majority vote at a duly called meeting of the |
170 | association, to provide no reserves or fewer reserves than |
171 | required by this paragraph. However, prior to turnover of |
172 | control of an association by a developer to unit owners, the |
173 | developer may vote to waive the reserves or reduce the funding |
174 | of reserves for the first 2 fiscal years of the association's |
175 | operation, beginning with the fiscal year in which the initial |
176 | declaration is recorded, after which time reserves may be waived |
177 | or reduced only upon the vote of a majority of all nondeveloper |
178 | voting interests voting in person or by limited proxy at a duly |
179 | called meeting of the association. If a meeting of the unit |
180 | owners has been called to determine whether to waive or reduce |
181 | the funding of reserves and no such result is achieved or a |
182 | quorum is not attained, the reserves as included in the budget |
183 | shall go into effect. After the turnover, the developer may vote |
184 | its voting interest to waive or reduce the funding of reserves. |
185 | (7) FINANCIAL REPORTING.--Within 90 days after the end of |
186 | the fiscal year, or annually on the date provided in the bylaws, |
187 | the association shall prepare and complete, or contract for the |
188 | preparation and completion of, a an annual financial report for |
189 | the preceding fiscal year. Within 21 60 days after the final |
190 | financial report is completed by the association or received |
191 | from the third party, but not later than 120 days after the end |
192 | of the fiscal year or other date as provided in the bylaws, |
193 | close of the fiscal year. the association shall, within the time |
194 | limits set forth in subsection (5), provide each member with a |
195 | copy of the annual financial report or a written notice that a |
196 | copy of the financial report is available upon request at no |
197 | charge to the member. Financial reports shall be prepared as |
198 | follows: |
199 | (a) An association that meets the criteria of this |
200 | paragraph shall prepare or cause to be prepared a complete set |
201 | of financial statements in accordance with generally accepted |
202 | accounting principles as adopted by the Board of Accountancy. |
203 | The financial statements shall be based upon the association's |
204 | total annual revenues, as follows: |
205 | 1. An association with total annual revenues of $100,000 |
206 | or more, but less than $200,000, shall prepare compiled |
207 | financial statements. |
208 | 2. An association with total annual revenues of at least |
209 | $200,000, but less than $400,000, shall prepare reviewed |
210 | financial statements. |
211 | 3. An association with total annual revenues of $400,000 |
212 | or more shall prepare audited financial statements. |
213 | (b)1. An association with total annual revenues of less |
214 | than $100,000 shall prepare a report of cash receipts and |
215 | expenditures. |
216 | 2. An association in a community of fewer than 50 parcels, |
217 | regardless of the association's annual revenues, may prepare a |
218 | report of cash receipts and expenditures in lieu of financial |
219 | statements required by paragraph (a) unless the governing |
220 | documents provide otherwise. |
221 | 3. A report of cash receipts and disbursement must |
222 | disclose the amount of receipts by accounts and receipt |
223 | classifications and the amount of expenses by accounts and |
224 | expense classifications, including, but not limited to, the |
225 | following, as applicable: costs for security, professional, and |
226 | management fees and expenses; taxes; costs for recreation |
227 | facilities; expenses for refuse collection and utility services; |
228 | expenses for lawn care; costs for building maintenance and |
229 | repair; insurance costs; administration and salary expenses; and |
230 | reserves if maintained by the association. |
231 | (c) If 20 percent of the parcel owners petition the board |
232 | for a level of financial reporting higher than that required by |
233 | this section, the association shall duly notice and hold a |
234 | meeting of members within 30 days of receipt of the petition for |
235 | the purpose of voting on raising the level of reporting for that |
236 | fiscal year. Upon approval of a majority of the total voting |
237 | interests of the parcel owners, the association shall prepare or |
238 | cause to be prepared, shall amend the budget or adopt a special |
239 | assessment to pay for the financial report regardless of any |
240 | provision to the contrary in the governing documents, and shall |
241 | provide within 90 days of the meeting or the end of the fiscal |
242 | year, whichever occurs later: |
243 | 1. Compiled, reviewed, or audited financial statements, if |
244 | the association is otherwise required to prepare a report of |
245 | cash receipts and expenditures; |
246 | 2. Reviewed or audited financial statements, if the |
247 | association is otherwise required to prepare compiled financial |
248 | statements; or |
249 | 3. Audited financial statements if the association is |
250 | otherwise required to prepare reviewed financial statements. |
251 | (d) If approved by a majority of the voting interests |
252 | present at a properly called meeting of the association, an |
253 | association may prepare or cause to be prepared: |
254 | 1. A report of cash receipts and expenditures in lieu of a |
255 | compiled, reviewed, or audited financial statement; |
256 | 2. A report of cash receipts and expenditures or a |
257 | compiled financial statement in lieu of a reviewed or audited |
258 | financial statement; or |
259 | 3. A report of cash receipts and expenditures, a compiled |
260 | financial statement, or a reviewed financial statement in lieu |
261 | of an audited financial statement. |
262 | Section 2. Paragraph (t) is added to subsection (3) of |
263 | section 720.307, Florida Statutes, to read: |
264 | 720.307 Transition of association control in a |
265 | community.--With respect to homeowners' associations: |
266 | (3) At the time the members are entitled to elect at least |
267 | a majority of the board of directors of the homeowners' |
268 | association, the developer shall, at the developer's expense, |
269 | within no more than 90 days deliver the following documents to |
270 | the board: |
271 | (t) The financial records, including financial statements |
272 | of the association, and source documents from the incorporation |
273 | of the association through the date of turnover. The records |
274 | shall be audited by an independent certified public accountant |
275 | for the period from the incorporation of the association or from |
276 | the period covered by the last audit, if an audit has been |
277 | performed for each fiscal year since incorporation. All |
278 | financial statements shall be prepared in accordance with |
279 | generally accepted accounting principles and shall be audited in |
280 | accordance with generally accepted auditing standards, as |
281 | prescribed by the Board of Accountancy, pursuant to chapter 473. |
282 | The certified public accountant performing the audit shall |
283 | examine to the extent necessary supporting documents and |
284 | records, including the cash disbursements and related paid |
285 | invoices to determine whether expenditures were for association |
286 | purposes and the billings, cash receipts, and related records to |
287 | determine whether the developer was charged and paid the proper |
288 | amounts of assessments. |
289 | Section 3. Section 720.308, Florida Statutes, is amended |
290 | to read: |
291 | 720.308 Assessments and charges.-- |
292 | (1) For any community created after October 1, 1995, the |
293 | governing documents must describe the manner in which expenses |
294 | are shared and specify the member's proportional share thereof. |
295 | Assessments levied pursuant to the annual budget or special |
296 | assessment must be in the member's proportional share of |
297 | expenses as described in the governing document, which share may |
298 | be different among classes of parcels based upon the state of |
299 | development thereof, levels of services received by the |
300 | applicable members, or other relevant factors. While the |
301 | developer is in control of the homeowners' association, it may |
302 | be excused from payment of its share of the operating expenses |
303 | and assessments related to its parcels for any period of time |
304 | for which the developer has, in the declaration, obligated |
305 | itself to pay any operating expenses incurred that exceed the |
306 | assessments receivable from other members and other income of |
307 | the association. This subsection section does not apply to an |
308 | association, no matter when created, if the association is |
309 | created in a community that is included in an effective |
310 | development-of-regional-impact development order as of the |
311 | effective date of this act, together with any approved |
312 | modifications thereto. |
313 | (2) If a guarantee of common expenses is not included in |
314 | the purchase contracts, declaration, or prospectus, any |
315 | agreement establishing a guarantee shall be effective only upon |
316 | the approval of a majority of the voting interests of the |
317 | members other than the developer. Approval shall be expressed at |
318 | a meeting of the members, voting in person or by limited proxy, |
319 | or by agreement in writing without a meeting if provided in the |
320 | bylaws. Such guarantee shall meet the requirements of this |
321 | section. |
322 | (a) The period of time for the guarantee shall be |
323 | indicated by a specific beginning and ending date or event. The |
324 | ending date or event shall be the same for all of the members of |
325 | a homeowners' association, including members in different phases |
326 | of the homeowners' association. |
327 | (b) The guarantee may provide: |
328 | 1. Different intervals of time during a guarantee period |
329 | with different dollar amounts for each such interval. |
330 | 2. That after the initial stated period the developer has |
331 | an option to extend the guarantee for one or more additional |
332 | stated periods. The extension of a guarantee is limited to |
333 | extending the ending date or event; therefore, the developer |
334 | does not have the option of changing the level of assessments |
335 | guaranteed. |
336 | (3) The stated dollar amount of the guarantee shall be an |
337 | exact dollar amount for each parcel identified in the |
338 | declaration. Regardless of the stated dollar amount of the |
339 | guarantee, assessments charged to a member shall not exceed the |
340 | maximum obligation of the member based on the total amount of |
341 | the adopted budget and the member's proportionate ownership |
342 | share of the common elements. |
343 | (4) The cash payments required from the guarantor during |
344 | the guarantee period shall be determined as follows: |
345 | (a) If at any time during the guarantee period the funds |
346 | collected from member assessments at the guaranteed level and |
347 | other revenues collected by the association are not sufficient |
348 | to provide payment, on a timely basis, of all common expenses, |
349 | including the full funding of the reserves unless properly |
350 | waived, the guarantor shall advance sufficient cash to the |
351 | association at the time such payments are due. |
352 | (b) Expenses incurred in the production of non-assessment |
353 | revenues, which expenses are not in excess of the non-assessment |
354 | revenues, shall not be included in the common expenses. If the |
355 | expenses attributable to non-assessment revenues exceed non- |
356 | assessment revenues, only the excess expenses must be funded by |
357 | the guarantor. For example, if the association operates a rental |
358 | program in which rental expenses exceed rental revenues, the |
359 | guarantor shall fund the rental expenses in excess of the rental |
360 | revenues. Interest earned on the investment of association funds |
361 | may be used to pay the income tax expense incurred as a result |
362 | of the investment, such expense shall not be charged to the |
363 | guarantor, and the net investment income shall be retained by |
364 | the association. Each such non-assessment revenue-generating |
365 | activity shall be considered separately. Capital contributions |
366 | collected from members are not revenues and shall not be used to |
367 | pay common expenses. |
368 | (5) The guarantor's total financial obligation to the |
369 | association at the end of the guarantee period shall be |
370 | determined on the accrual basis using the following formula: the |
371 | guarantor shall fund the total common expenses incurred during |
372 | the guarantee period, including the full funding of the reserves |
373 | unless properly waived, less the total regular periodic |
374 | assessments earned by the association from the members other |
375 | than the guarantor during the guarantee period, regardless of |
376 | whether the actual level charged was less than the maximum |
377 | guaranteed amount. |
378 | (6) Expenses incurred in the production of non-assessment |
379 | revenues, which expenses are not in excess of the non-assessment |
380 | revenues, shall not be included in the common expenses. If the |
381 | expenses attributable to non-assessment revenues exceed non- |
382 | assessment revenues, only the excess expenses must be funded by |
383 | the guarantor. For example, if the association operates a rental |
384 | program in which rental expenses exceed rental revenues, the |
385 | guarantor shall fund the rental expenses in excess of the rental |
386 | revenues. Interest earned on the investment of association funds |
387 | may be used to pay the income tax expense incurred as a result |
388 | of the investment, such expense shall not be charged to the |
389 | guarantor, and the net investment income shall be retained by |
390 | the association. Each such non-assessment revenue-generating |
391 | activity shall be considered separately. Capital contributions |
392 | collected from members are not revenues and shall not be used to |
393 | pay common expenses. |
394 | Section 4. This act shall take effect July 1, 2006. |