CS/HB 405

1	A bill to be entitled
2	An act relating to vacation and timeshare plans; amending
3	s. 721.03, F.S.; revising the formula for funding reserve
4	accounts for conversions; authorizing a seller to offer
5	timeshare interests in a timeshare plan located outside of
6	this state without filing a public offering statement for
7	such out-of-state timeshare plan; providing criteria for
8	such offers; requiring certain notice; providing for a
9	fee; conforming cross-references and terminology; amending
10	s. 721.05, F.S.; revising the definition of the term "one-
11	to-one purchaser to accommodation ratio"; providing
12	definitions for the terms "lead dealer," "personal contact
13	information," and "resale service provider"; amending s.
14	721.07, F.S.; revising information required to be
15	contained in filed public offering statements for certain
16	timeshare plans; authorizing the Division of Florida Land
17	Sales, Condominiums, and Mobile Homes to accept alternate
18	forms of timeshare disclosure statements; conforming
19	cross-references; amending s. 721.075, F.S.; conforming
20	terminology; amending s. 721.11, F.S.; revising provisions
21	relating to advertising and oral statements to include
22	those made by resale service providers; providing that a
23	seller or resale service provider may not misrepresent or
24	falsely imply that the resale service provider is
25	affiliated with, or obtained personal contact information
26	from, a developer, managing entity, or exchange company;
27	creating s. 721.121, F.S.; providing recordkeeping
28	requirements for resale service providers and lead
29	dealers; providing that the failure to produce such
30	records in any civil or criminal action relating to the
31	wrongful possession or wrongful use of personal contact
32	information shall lead to a presumption that the personal
33	contact information was wrongfully obtained; providing
34	what constitutes wrongful use of such personal contact
35	information; providing for recovery of certain damages and
36	attorney's fees and costs; amending s. 721.13, F.S.;
37	providing that failure to obtain and maintain required
38	insurance coverage constitutes a breach of the managing
39	entity's fiduciary duty; authorizing funding of reserve
40	accounts to be waived or reduced; providing the managing
41	entity with certain rights and powers; providing language
42	to be included in public offering statements; providing
43	recordkeeping requirements; requiring the managing entity
44	to make certain records available to the division under
45	certain circumstances; conforming cross-references;
46	amending s. 721.15, F.S.; providing that amounts expended
47	for any insurance coverage required by law or by the
48	timeshare instrument to be maintained by the owners'
49	association shall be exempt from assessment of common
50	expenses; providing that any determination by a timeshare
51	association of whether assessments exceed 115 percent of
52	assessments for the prior fiscal year shall exclude
53	anticipated expenses for required insurance coverage;
54	amending s. 721.165, F.S.; revising provisions relating to
55	insurance; requiring managing entities to use due
56	diligence to obtain certain types of insurance; providing
57	factors that a managing entity must take into account in
58	determining whether the insurance obtained is adequate;
59	providing that insurance coverage may be subject to
60	certain requirements; authorizing the managing entity to
61	apply any existing reserves for certain purposes; amending
62	ss. 721.55 and 721.552, F.S.; conforming cross-references
63	and terminology; amending s. 721.97, F.S.; authorizing the
64	Governor to appoint commissioners of deeds to take
65	acknowledgments, proofs of execution, or oaths in
66	international waters; providing an effective date.
67
68	Be It Enacted by the Legislature of the State of Florida:
69
70	Section 1.  Paragraph (b) of subsection (1), paragraph (e)
71	of subsection (3), and subsection (10) of section 721.03,
72	Florida Statutes, are amended, and subsection (11) is added to
73	that section, to read:
74	721.03  Scope of chapter.--
75	(1)  This chapter applies to all timeshare plans consisting
76	of more than seven timeshare periods over a period of at least 3
77	years in which the accommodations and facilities, if any, are
78	located within this state or offered within this state; provided
79	that:
80	(b)  With respect to a timeshare plan containing
81	accommodations or facilities located in this state which is
82	offered for sale outside the jurisdictional limits of the United
83	States, such offer or sale shall be exempt from the requirements
84	of this chapter, provided that the developer shall either file
85	the timeshare plan with the division for approval pursuant to
86	this chapter, or pay an exemption registration fee of $100 and
87	file the following minimum information pertaining to the
88	timeshare plan with the division for approval:
89	1.  The name and address of the timeshare plan.
90	2.  The name and address of the developer and seller, if
91	any.
92	3.  The location and a brief description of the
93	accommodations and facilities, if any, that are located in this
94	state.
95	4.  The number of timeshare interests and timeshare periods
96	to be offered.
97	5.  The term of the timeshare plan.
98	6.  A copy of the timeshare instrument relating to the
99	management and operation of accommodations and facilities, if
100	any, that are located in this state.
101	7.  A copy of the budget required by s. 721.07(5)(t)(u) or
102	s. 721.55(4)(h)5., as applicable.
103	8.  A copy of the management agreement and any other
104	contracts regarding management or operation of the
105	accommodations and facilities, if any, that are located in this
106	state, and which have terms in excess of 1 year.
107	9.  A copy of the provision of the purchase contract to be
108	utilized in offering the timeshare plan containing the following
109	disclosure in conspicuous type immediately above the space
110	provided for the purchaser's signature:
111
112	The offering of this timeshare plan outside the jurisdictional
113	limits of the United States of America is exempt from regulation
114	under Florida law, and any such purchase is not protected by the
115	State of Florida. However, the management and operation of any
116	accommodations or facilities located in Florida is subject to
117	Florida law and may give rise to enforcement action regardless
118	of the location of any offer.
119	(3)  A timeshare plan which is subject to the provisions of
120	chapter 718 or chapter 719, if fully in compliance with the
121	provisions of this chapter, is exempt from the following:
122	(e)  Part VI of chapter 718 and part VI of chapter 719,
123	relating to conversion of existing improvements to the
124	condominium or cooperative form of ownership, respectively,
125	provided that a developer converting existing improvements to a
126	timeshare condominium or timeshare cooperative must comply with
127	ss. 718.606, 718.608, 718.61, and 718.62, or ss. 719.606,
128	719.608, 719.61, and 719.62, if applicable, and, if the existing
129	improvements received a certificate of occupancy more than 18
130	months before such conversion, one of the following:
131	1.  The accommodations and facilities shall be renovated
132	and improved to a condition such that the remaining useful life
133	in years of the roof, plumbing, air-conditioning, and any
134	component of the structure which has a useful life less than the
135	useful life of the overall structure is equal to the useful life
136	of accommodations or facilities that would exist if such
137	accommodations and facilities were newly constructed and not
138	previously occupied.
139	2.  The developer shall fund reserve accounts for capital
140	expenditures and deferred maintenance for the roof, plumbing,
141	air-conditioning, and any component of the structure the useful
142	life of which is less than the useful life of the overall
143	structure. The reserve accounts shall be funded for each
144	component in an amount equal to the product of the estimated
145	current replacement cost of such component as of the date of
146	such conversion (as disclosed and substantiated by a certificate
147	under the seal of an architect or engineer authorized to
148	practice in this state) multiplied by a fraction, the numerator
149	of which shall be the age remaining life of the component in
150	years (as disclosed and substantiated by a certificate under the
151	seal of an architect or engineer authorized to practice in this
152	state) and the denominator of which shall be the total useful
153	life of the component in years (as disclosed and substantiated
154	by a certificate under the seal of an architect or engineer
155	authorized to practice in this state). Alternatively, the
156	reserve accounts may be funded for each component in an amount
157	equal to the amount that, except for the application of this
158	subsection, would be required to be maintained pursuant to s.
159	718.618(1) or s. 719.618(1). The developer shall fund the
160	reserve accounts contemplated in this subparagraph out of the
161	proceeds of each sale of a timeshare interest, on a pro rata
162	basis, in an amount not less than a percentage of the total
163	amount to be deposited in the reserve account equal to the
164	percentage of ownership allocable to the timeshare interest
165	sold. When an owners' association makes an expenditure of
166	reserve account funds before the developer has initially sold
167	all timeshare interests, the developer shall make a deposit in
168	the reserve account if the reserve account is insufficient to
169	pay the expenditure. Such deposit shall be at least equal to
170	that portion of the expenditure which would be charged against
171	the reserve account deposit that would have been made for any
172	such timeshare interest had the timeshare interest been
173	initially sold. When a developer deposits amounts in excess of
174	the minimum reserve account funding, later deposits may be
175	reduced to the extent of the excess funding.
176	3.  The developer shall provide each purchaser with a
177	warranty of fitness and merchantability pursuant to s.
178	718.618(6) or s. 719.618(6).
179	(10)  A developer or seller may not offer any number of
180	timeshare interests that would cause the total number of
181	timeshare interests offered to exceed a one-to-one use right
182	purchaser to use night requirement accommodation ratio.
183	(11)(a)  A seller may offer timeshare interests in a real
184	property timeshare plan located outside of this state without
185	filing a public offering statement for such out-of-state real
186	property timeshare plan pursuant to s. 721.07 or s. 721.55,
187	provided all of the following criteria have been satisfied:
188	1.  The seller shall provide a disclosure statement to each
189	prospective purchaser of such out-of-state timeshare plan. The
190	disclosure statement for a single-site timeshare plan shall
191	contain information otherwise required under s. 721.07(5)(e)-
192	(cc) and the exhibits required by s. 721.07(5)(ff)1., 2., 3.,
193	4., 5., 7., 8., and 20. The disclosure statement for a multisite
194	timeshare plan shall contain information otherwise required
195	under s. 721.55(4) and (5) and the exhibits required under s.
196	721.55(7). If a developer has, in good faith, attempted to
197	comply with the requirements of this subsection and if the
198	developer has substantially complied with the disclosure
199	requirements of this subsection, nonmaterial errors or omissions
200	shall not be actionable. With respect to any offer for an out-
201	of-state timeshare plan made pursuant to this subsection, the
202	delivery by the seller to a prospective purchaser of the
203	disclosure statement required by this subparagraph shall be
204	deemed to satisfy any requirement of this chapter regarding a
205	public offering statement.
206	2.  The seller shall utilize and furnish to each purchaser
207	of an out-of-state timeshare plan offered under this subsection
208	a fully completed and executed copy of a purchase contract that
209	contains the statement set forth in s. 721.065(2)(c) in
210	conspicuous type located immediately prior to the space in the
211	contract reserved for the purchaser's signature. The purchase
212	contract shall also contain the initial purchase price and any
213	additional charges to which the purchaser may be subject in
214	connection with the purchase of the timeshare plan, such as
215	financing, or that will be collected from the purchaser on or
216	before closing, such as the current year's annual assessment for
217	common expenses.
218	3.  All purchase contracts for out-of-state timeshare plans
219	offered under this subsection must also contain the following
220	statements in conspicuous type:
221
222	This timeshare plan has not been reviewed or approved by
223	the State of Florida.
224
225	The timeshare interest you are purchasing requires certain
226	procedures to be followed in order for you to use your
227	interest. These procedures may be different from those
228	followed in other timeshare plans. You should read and
229	understand these procedures prior to purchasing.
230
231	4.a.  An out-of-state timeshare plan may only be offered
232	pursuant to this subsection by the seller on behalf of:
233	(I)  The developer of a timeshare plan that has been
234	approved by the division within the preceding 7 years pursuant
235	to s. 721.07 or s. 721.55, or concerning which an amendment by
236	the developer has been approved by the division within the
237	preceding 7 years, which timeshare plan has been neither
238	terminated nor withdrawn; or
239	(II)  A developer under common ownership or control with a
240	developer described in sub-sub-subparagraph (I), provided that
241	any common ownership shall constitute at least a 50-percent
242	ownership interest.
243	b.  An out-of-state timeshare plan may only be offered
244	pursuant to this subsection to a person who already owns a
245	timeshare interest in a timeshare plan filed by a developer
246	described in sub-subparagraph a.
247	5.  Any seller of an out-of-state timeshare plan offered
248	pursuant to this subsection shall be required to provide notice
249	of such plan to the division on a form prescribed by the
250	division, along with payment of a one-time fee not to exceed
251	$1,000 per filing.
252	(b)  Timeshare plans offered pursuant to this subsection
253	shall be exempt from the requirements of ss. 721.06, 721.065,
254	721.07, 721.27, 721.55, and 721.58 in addition to the exemptions
255	otherwise applicable to accommodations and facilities located
256	outside of the state pursuant to subparagraph (1)(c)1.
257	(c)  Any escrow account required to be established by s.
258	721.08 for any out-of-state timeshare plan offered under this
259	subsection may be maintained in the situs jurisdiction provided
260	the escrow agent submits to personal jurisdiction in this state
261	in a form satisfactory to the division.
262	Section 2.  Subsection (25) of section 721.05, Florida
263	Statutes, is amended, and subsections (42), (43), and (44) are
264	added to that section, to read:
265	721.05  Definitions.--As used in this chapter, the term:
266	(25)  "One-to-one use right purchaser to use night
267	requirement accommodation ratio" means that the sum of the
268	nights that owners are entitled to use in a given 12-month
269	period shall not exceed the number of nights available for use
270	by those owners during the same 12-month period. No individual
271	timeshare unit may be counted as providing more than 365 use
272	nights per 12-month period or more than 366 use nights per 12-
273	month period that includes February 29. The use rights of each
274	owner shall be counted without regard to whether the owner's use
275	rights have been suspended for failure to pay assessments or
276	otherwise the ratio of the number of purchasers eligible to use
277	the accommodations of a timeshare plan on a given day to the
278	number of accommodations available for use within the plan on
279	that day, such that the total number of purchasers eligible to
280	use the accommodations of the timeshare plan during a given
281	calendar year never exceeds the total number of accommodations
282	available for use in the timeshare plan during that year. For
283	purposes of calculation under this subsection, each purchaser
284	must be counted at least once, and no individual timeshare unit
285	may be counted more than 365 times per calendar year (or more
286	than 366 times per leap year). A purchaser who is delinquent in
287	the payment of timeshare plan assessments shall continue to be
288	considered eligible to use the accommodations of the timeshare
289	plan for purposes of this subsection notwithstanding any
290	application of s. 721.13(6).
291	(42)  "Lead dealer" means any person who sells or otherwise
292	provides a resale service provider or any other person with
293	personal contact information for five or more owners of
294	timeshare interests. In the event a lead dealer is not a natural
295	person, the term shall also include the natural person providing
296	personal contact information to a resale service provider or
297	other person on behalf of the lead dealer entity. The term does
298	not include developers, managing entities, or exchange companies
299	to the extent they provide others with personal contact
300	information about owners of timeshare interests in their own
301	timeshare plans or members of their own exchange programs.
302	(43)  "Personal contact information" means any information
303	that can be used to contact the owner of a specific timeshare
304	interest, including, but not limited to, the owner's name,
305	address, telephone number, and e-mail address.
306	(44)  "Resale service provider" means any person who uses
307	unsolicited telemarketing, direct mail, or e-mail in connection
308	with the offering of resale brokerage or resale advertising
309	services to owners of timeshare interests. The term does not
310	include developers, managing entities, or exchange companies to
311	the extent they offer resale brokerage or resale advertising
312	services to owners of timeshare interests in their own timeshare
313	plans or members of their own exchange programs.
314	Section 3.  Paragraphs (n) through (v) of subsection (5) of
315	section 721.07, Florida Statutes, are redesignated as paragraphs
316	(m) through (u), present paragraphs (m), (v), and (ff) of that
317	subsection are amended, and subsection (7) is added to that
318	section, to read:
319	721.07  Public offering statement.--Prior to offering any
320	timeshare plan, the developer must submit a filed public
321	offering statement to the division for approval as prescribed by
322	s. 721.03, s. 721.55, or this section. Until the division
323	approves such filing, any contract regarding the sale of that
324	timeshare plan is subject to cancellation by the purchaser
325	pursuant to s. 721.10.
326	(5)  Every filed public offering statement for a timeshare
327	plan which is not a multisite timeshare plan shall contain the
328	information required by this subsection. The division is
329	authorized to provide by rule the method by which a developer
330	must provide such information to the division.
331	(m)  A description of any financing to be offered to
332	purchasers by the developer or any person or entity in which the
333	developer has a financial interest, together with a disclosure
334	that the description of such financing may be changed by the
335	developer and that any change in the financing offered to
336	prospective purchasers will not be deemed to be a material
337	change.
338	(u)(v)  For any timeshare plan for which the purchase or
339	closing of timeshare interests is not subject to the
340	requirements of the Real Estate Settlement Procedures Act, 12
341	U.S.C. s. 2601 et seq., a schedule of estimated closing expenses
342	to be paid by a purchaser or lessee of a timeshare interest.
343	(v)  and A statement as to whether a title opinion or title
344	insurance policy is available to the purchaser and, if so, at
345	whose expense.
346	(ff)  Copies of the following documents and plans, to the
347	extent they are applicable, shall be included as exhibits to the
348	filed public offering statement provided, if the timeshare plan
349	has not been declared or created at the time of the filing, the
350	developer shall provide proposed documents:
351	1.  The declaration of condominium.
352	2.  The cooperative documents.
353	3.  The declaration of covenants and restrictions.
354	4.  The articles of incorporation creating the owners'
355	association.
356	5.  The bylaws of the owners' association.
357	6.  Any ground lease or other underlying lease of the real
358	property associated with the timeshare plan. In the case of a
359	personal property timeshare plan, any lease of the personal
360	property associated with the personal property timeshare plan.
361	7.  The management agreement and all maintenance and other
362	contracts regarding the management and operation of the
363	timeshare property which have terms in excess of 1 year.
364	8.  The estimated operating budget for the timeshare plan
365	and the required schedule of purchasers' expenses.
366	9.  The floor plan of each type of accommodation and the
367	plot plan showing the location of all accommodations and
368	facilities declared as part of the timeshare plan and filed with
369	the division.
370	10.  The lease for any facilities.
371	11.  A declaration of servitude of properties serving the
372	accommodations and facilities, but not owned by purchasers or
373	leased to them or the owners' association.
374	12.  Any documents required by s. 721.03(3)(e) as the
375	result of the inclusion of a timeshare plan in the conversion of
376	the building to condominium or cooperative ownership.
377	13.  The form of agreement for sale or lease of timeshare
378	interests.
379	14.  The executed agreement for escrow of payments made to
380	the developer prior to closing and the form of any agreement for
381	escrow of ad valorem tax escrow payments, if any, to be made
382	into an ad valorem tax escrow account pursuant to s. 192.037(6).
383	15.  The documents containing any restrictions on use of
384	the property required by paragraph (r) (s).
385	16.  A letter from the escrow agent or filing attorney
386	confirming that the escrow agent and its officers, directors, or
387	other partners are independent pursuant to the requirements of
388	this chapter.
389	17.  Any nondisturbance and notice to creditors instrument
390	required by s. 721.08.
391	18.  In the case of any personal property timeshare plan in
392	which the accommodations and facilities are located on or in a
393	documented vessel or foreign vessel as provided in s.
394	721.08(2)(c)3.e., a copy of the certificate of ownership of such
395	vessel and either a copy of the certificate of documentation or
396	certificate of registry of such vessel.
397	19.  An executed affidavit given under oath by an attorney
398	licensed to practice law in any jurisdiction in the United
399	States stating that the attorney has researched the applicable
400	laws of the jurisdiction in which governing law has been
401	established and the laws of the jurisdiction in which the vessel
402	is registered, and has found that the timeshare instrument
403	complies with the provisions of s. 721.08(2)(c)3.e.(II)(C) and
404	(III).
405	20.  Any other documents or instruments creating the
406	timeshare plan.
407	(7)  The division may accept an alternate form of timeshare
408	disclosure statement under an agreement with another state. At a
409	minimum, the alternate form of timeshare disclosure statement
410	must have provisions substantially similar to this section. The
411	division may adopt rules pursuant to ss. 120.536(1) and 120.54
412	to implement this subsection.
413	Section 4.  Paragraph (d) of subsection (1) of section
414	721.075, Florida Statutes, is amended to read:
415	721.075  Incidental benefits.--Incidental benefits shall be
416	offered only as provided in this section.
417	(1)  Accommodations, facilities, products, services,
418	discounts, or other benefits which satisfy the requirements of
419	this subsection shall be subject to the provisions of this
420	section and exempt from the other provisions of this chapter
421	which would otherwise apply to such accommodations or facilities
422	if and only if:
423	(d)  The continued availability to purchasers of timeshare
424	plan accommodations on no greater than a one-to-one use right
425	purchaser to use night requirement accommodation ratio is not
426	dependent upon continued availability of the incidental benefit.
427	Section 5.  Subsection (4) of section 721.11, Florida
428	Statutes, is amended to read:
429	721.11  Advertising materials; oral statements.--
430	(4)  No advertising or oral statement made by any seller or
431	resale service provider shall:
432	(a)  Misrepresent a fact or create a false or misleading
433	impression regarding the timeshare plan or promotion thereof.
434	(b)  Make a prediction of specific or immediate increases
435	in the price or value of timeshare interests.
436	(c)  Contain a statement concerning future price increases
437	by a seller which are nonspecific or not bona fide.
438	(d)  Contain any asterisk or other reference symbol as a
439	means of contradicting or substantially changing any previously
440	made statement or as a means of obscuring a material fact.
441	(e)  Describe any facility that is not required to be built
442	or that is uncompleted unless the improvement is conspicuously
443	labeled as "NEED NOT BE BUILT," "PROPOSED," or "UNDER
444	CONSTRUCTION." If the facility is labeled "NEED NOT BE BUILT" or
445	"PROPOSED," the seller may indicate the estimated date that such
446	facility will be made part of the timeshare plan. If the
447	facility is labeled "UNDER CONSTRUCTION," the estimated date of
448	completion must be included.
449	(f)  Misrepresent the size, nature, extent, qualities, or
450	characteristics of the offered accommodations or facilities.
451	(g)  Misrepresent the amount or period of time during which
452	the accommodations or facilities will be available to any
453	purchaser.
454	(h)  Misrepresent the nature or extent of any incidental
455	benefit.
456	(i)  Make any misleading or deceptive representation with
457	respect to the contents of the public offering statement and the
458	contract or the rights, privileges, benefits, or obligations of
459	the purchaser under the contract or this chapter.
460	(j)  Misrepresent the conditions under which a purchaser
461	may exchange the right to use accommodations or facilities in
462	one location for the right to use accommodations or facilities
463	in another location.
464	(k)  Misrepresent the availability of a resale or rental
465	program or resale or rental opportunity offered by or on behalf
466	of the developer.
467	(l)  Contain an offer or inducement to purchase which
468	purports to be limited as to quantity or restricted as to time
469	unless the numerical quantity or time limit applicable to the
470	offer or inducement is clearly stated.
471	(m)  Imply that a facility is available for the exclusive
472	use of purchasers if the facility will actually be shared by
473	others or by the general public.
474	(n)  Purport to have resulted from a referral unless the
475	name of the person making the referral can be produced upon
476	demand of the division.
477	(o)  Misrepresent the source of the advertising or
478	statement by leading a prospective purchaser to believe that the
479	advertising material is mailed by a governmental or official
480	agency, credit bureau, bank, or attorney, if that is not the
481	case.
482	(p)  Misrepresent the value of any prize, gift, or other
483	item to be awarded in connection with any prize and gift
484	promotional offer, as described in s. 721.111, or any incidental
485	benefit.
486	(q)  Misrepresent or falsely imply that the resale service
487	provider is affiliated with, or obtained personal contact
488	information from, a developer, managing entity, or exchange
489	company.
490	Section 6.  Section 721.121, Florida Statutes, is created
491	to read:
492	721.121  Recordkeeping by resale service providers and lead
493	dealers.--
494	(1)  Resale service providers and lead dealers shall
495	maintain the following records for a period of 5 years from the
496	date each piece of personal contact information is obtained:
497	(a)  The name, home address, work address, home telephone
498	number, work telephone number, and cellular telephone number of
499	the lead dealer from which the personal contact information was
500	obtained.
501	(b)  A copy of a current government-issued photographic
502	identification for the lead dealer from which the personal
503	contact information was obtained, such as a driver's license,
504	passport, or military identification card.
505	(c)  The date, time, and place of the transaction at which
506	the personal contact information was obtained, along with the
507	amount of consideration paid and a signed receipt from the lead
508	dealer or copy of a canceled check.
509	(d)  A copy of all pieces of personal contact information
510	obtained in the exact form and media in which they were
511	received.
512	(e)  If personal contact information was directly
513	researched and assembled by the resale service provider or lead
514	dealer and not obtained from another lead dealer, a complete
515	written description of the sources from which personal contact
516	information was obtained, the methodologies used for researching
517	and assembling it, the items set forth in paragraphs (a) and (b)
518	for the individuals who performed the work, and the date such
519	work was done.
520	(2)  In any civil or criminal action relating to the
521	wrongful possession or wrongful use of personal contact
522	information by a resale service provider or lead dealer, any
523	failure by a resale service provider or lead dealer to produce
524	the records required by subsection (1) shall lead to a
525	presumption that the personal contact information was wrongfully
526	obtained.
527	(3)  Any use by a resale service provider or lead dealer of
528	personal contact information that is wrongfully obtained
529	pursuant to this section shall be considered wrongful use of
530	such personal contact information by the resale service provider
531	or lead dealer, as applicable. Any party who establishes that a
532	resale service provider or lead dealer wrongfully obtained or
533	wrongfully used personal contact information with respect to
534	owners of a timeshare plan or members of an exchange program
535	shall, in addition to any other remedies that may be available
536	in law or equity, be entitled to recover from such resale
537	service provider or lead dealer an amount equal to $1,000 for
538	each owner about whom personal contact information was
539	wrongfully obtained or used. Upon prevailing, the plaintiff in
540	any such action shall also be entitled to recover reasonable
541	attorney's fees and costs.
542	Section 7.  Paragraph (c) is added to subsection (2) of
543	section 721.13, Florida Statutes, paragraph (c) of subsection
544	(3) of that section is amended, and subsection (12) is added to
545	that section, to read:
546	721.13  Management.--
547	(2)
548	(c)  Failure by a managing entity to obtain and maintain
549	insurance coverage as required under s. 721.165 during any
550	period of developer control of the managing entity shall
551	constitute a breach of the managing entity's fiduciary duty.
552	(3)  The duties of the managing entity include, but are not
553	limited to:
554	(c)1.  Providing each year to all purchasers an itemized
555	annual budget which shall include all estimated revenues and
556	expenses. The budget shall be in the form required by s.
557	721.07(5)(t)(u). The budget shall be the final budget adopted by
558	the managing entity for the current fiscal year. The final
559	adopted budget is not required to be delivered if the managing
560	entity has previously delivered a proposed annual budget for the
561	current fiscal year to purchasers in accordance with chapter 718
562	or chapter 719 and the managing entity includes a description of
563	any changes in the adopted budget with the assessment notice and
564	a disclosure regarding the purchasers' right to receive a copy
565	of the adopted budget, if desired. The budget shall contain, as
566	a footnote or otherwise, any related party transaction
567	disclosures or notes which appear in the audited financial
568	statements of the managing entity for the previous budget year
569	as required by paragraph (e). A copy of the final budget shall
570	be filed with the division for review within 30 days after the
571	beginning of each fiscal year together with a statement of the
572	number of periods of 7-day annual use availability that exist
573	within the timeshare plan, including those periods filed for
574	sale by the developer but not yet committed to the timeshare
575	plan, for which annual fees are required to be paid to the
576	division under s. 721.27.
577	2.  Notwithstanding anything contained in chapter 718 or
578	chapter 719 to the contrary, the board of administration of an
579	owners' association which serves as the managing entity may from
580	time to time reallocate reserves for deferred maintenance and
581	capital expenditures required by s. 721.07(5)(t)(u)3.a.(XI) from
582	any deferred maintenance or capital expenditure reserve account
583	to any other deferred maintenance or capital expenditure reserve
584	account or accounts in its discretion without the consent of
585	purchasers of the timeshare plan. Funds in any deferred
586	maintenance or capital expenditure reserve account may not be
587	transferred to any operating account without the consent of a
588	majority of the purchasers of the timeshare plan. The managing
589	entity may from time to time transfer excess funds in any
590	operating account to any deferred maintenance or capital
591	expenditure reserve account without the vote or approval of
592	purchasers of the timeshare plan. In the event any amount of
593	reserves for accommodations and facilities of a timeshare plan
594	containing timeshare licenses or personal property timeshare
595	interests exists at the end of the term of the timeshare plan,
596	such reserves shall be refunded to purchasers on a pro rata
597	basis.
598	3.  With respect to any timeshare plan that has a managing
599	entity that is an owners' association, reserves may be waived or
600	reduced by a majority vote of those voting interests that are
601	present, in person or by proxy, at a duly called meeting of the
602	owners' association. If a meeting of the purchasers has been
603	called to determine whether to waive or reduce the funding of
604	reserves and no such result is achieved or a quorum is not
605	attained, the reserves as included in the budget shall go into
606	effect.
607	(12)(a)  In addition to any other rights granted by the
608	rules and regulations of the timeshare plan, the managing entity
609	of a timeshare plan is authorized to manage the reservation and
610	use of accommodations using those processes, analyses,
611	procedures, and methods that are in the best interests of the
612	owners as a whole to efficiently manage the timeshare plan and
613	encourage the maximum use and enjoyment of the accommodations
614	and other benefits made available through the timeshare plan.
615	The managing entity shall have the right to forecast anticipated
616	reservation and use of the accommodations, including the right
617	to take into account current and previous reservation and use of
618	the accommodations, information about events that are scheduled
619	to occur, seasonal use patterns, and other pertinent factors
620	that affect the reservation or use of the accommodations. In
621	furtherance of the provisions of this subsection, the managing
622	entity is authorized to reserve accommodations, in the best
623	interests of the owners as a whole, for the purposes of
624	depositing such reserved use with an affiliated exchange program
625	or renting such reserved accommodations in order to facilitate
626	the use or future use of the accommodations or other benefits
627	made available through the timeshare plan.
628	(b)  A statement in conspicuous type, in substantially the
629	following form, shall appear in the public offering statement as
630	provided in s. 721.07:
631
632	The managing entity shall have the right to forecast
633	anticipated reservation and use of the accommodations of
634	the timeshare plan and is authorized to reasonably reserve,
635	deposit, or rent the accommodations for the purpose of
636	facilitating the use or future use of the accommodations or
637	other benefits made available through the timeshare plan.
638
639	(c)  The managing entity shall maintain copies of all
640	records, data, and information supporting the processes,
641	analyses, procedures, and methods utilized by the managing
642	entity in its determination to reserve accommodations of the
643	timeshare plan pursuant to this subsection for a period of 5
644	years from the date of such determination. In the event of an
645	investigation by the division for failure of a managing entity
646	to comply with this subsection, the managing entity shall make
647	all such records, data, and information available to the
648	division for inspection, provided that if the managing entity
649	complies with the provisions of s. 721.071, any such records,
650	data, and information provided to the division shall constitute
651	a trade secret pursuant to that section.
652	Section 8.  Paragraph (c) of subsection (2) of section
653	721.15, Florida Statutes, is amended, and subsection (11) is
654	added to that section, to read:
655	721.15  Assessments for common expenses.--
656	(2)
657	(c)  For the purpose of calculating the obligation of a
658	developer under a guarantee pursuant to paragraph (b), amounts
659	expended for any insurance coverage required by law or by the
660	timeshare instrument to be maintained by the owners' association
661	and depreciation expenses related to real property shall be
662	excluded from common expenses incurred during the guarantee
663	period, except that for real property that is used for the
664	production of fees, revenues, or other income, depreciation
665	expenses shall be excluded only to the extent that they exceed
666	the net income from the production of such fees, revenues, or
667	other income. Any special assessment imposed for amounts
668	excluded from the developer guarantee pursuant to this paragraph
669	shall be paid proportionately by all owners of timeshare
670	interests, including the developer with respect to the timeshare
671	interests owned by the developer, in accordance with the
672	timeshare instrument.
673	(11)  Notwithstanding any provision of chapter 718 or
674	chapter 719 to the contrary, any determination by a timeshare
675	association of whether assessments exceed 115 percent of
676	assessments for the prior fiscal year shall exclude anticipated
677	expenses for insurance coverage required by law or by the
678	timeshare instrument to be maintained by the association.
679	Section 9.  Section 721.165, Florida Statutes, is amended
680	to read:
681	721.165  Insurance.--
682	(1)  Notwithstanding any provision contained in the
683	timeshare instrument or in this chapter, chapter 718, or chapter
684	719 to the contrary, the seller, initially, and thereafter the
685	managing entity, shall use due diligence to obtain adequate
686	casualty be responsible for obtaining insurance as a common
687	expense of the timeshare plan to protect the timeshare property
688	against all reasonably foreseeable perils, in such covered
689	amounts and subject to such reasonable exclusions and reasonable
690	deductibles as are consistent with the provisions of this
691	section accommodations and facilities of the timeshare plan in
692	an amount equal to the replacement cost of such accommodations
693	and facilities. Failure to obtain and maintain the insurance
694	required by this subsection during any period of developer
695	control of the managing entity shall constitute a breach of s.
696	721.13(2)(a) by the managing entity, unless the managing entity
697	can show that, despite such failure, it exercised due diligence
698	to obtain and maintain the insurance required by this
699	subsection.
700	(2)  In making the determination as to whether the
701	insurance obtained pursuant to subsection (1) is adequate, the
702	managing entity shall take into account the following factors,
703	among others as may be applicable:
704	(a)  Available insurance coverages and related premiums in
705	the marketplace.
706	(b)  Amounts of any related deductibles, types of
707	exclusions, and coverage limitations; provided that, for
708	purposes of this paragraph, a deductible of 5 percent or less
709	shall be deemed to be reasonable per se.
710	(c)  The probable maximum loss relating to the insured
711	timeshare property during the policy term.
712	(d)  The extent to which a given peril is insurable under
713	commercially reasonable terms.
714	(e)  Amounts of any deferred maintenance or replacement
715	reserves on hand.
716	(f)  Geography and any special risks associated with the
717	location of the timeshare property.
718	(g)  The age and type of construction of the timeshare
719	property.
720	(3)  Notwithstanding any provision contained in this
721	section or in the timeshare instrument to the contrary,
722	insurance shall be procured and maintained by the managing
723	entity for the timeshare property as a common expense of the
724	timeshare plan against such perils, in such coverages, and
725	subject to such reasonable deductions or reasonable exclusions
726	as may be required by:
727	(a)  An institutional lender to a developer, for so long as
728	such lender holds a mortgage encumbering any interest in or lien
729	against a portion of the timeshare property; or
730	(b)  Any holder or pledgee of, or any institutional lender
731	having a security interest in, a pool of promissory notes
732	secured by mortgages or other security interests relating to the
733	timeshare plan, executed by purchasers in connection with such
734	purchasers' acquisition of timeshare interests in such timeshare
735	property, or any agent, underwriter, placement agent, trustee,
736	servicer, custodian, or other portfolio manager acting on behalf
737	of such holder, pledgee, or institutional lender, for so long as
738	any such notes and mortgages or other security interests remain
739	outstanding.
740	(4)  Notwithstanding any provision contained in the
741	timeshare instrument or in this chapter, chapter 718, or chapter
742	719 to the contrary, the managing entity is authorized to apply
743	any existing reserves for deferred maintenance and capital
744	expenditures toward payment of insurance deductibles or the
745	repair or replacement of the timeshare property after a casualty
746	without regard to the purposes for which such reserves were
747	originally established.
748	(5)(2)  A copy of each policy of insurance in effect shall
749	be made available for reasonable inspection by purchasers and
750	their authorized agents.
751	Section 10.  Paragraphs (f) and (h) of subsection (4) and
752	paragraph (l) of subsection (7) of section 721.55, Florida
753	Statutes, are amended to read:
754	721.55  Multisite timeshare plan public offering
755	statement.--Each filed public offering statement for a multisite
756	timeshare plan shall contain the information required by this
757	section and shall comply with the provisions of s. 721.07,
758	except as otherwise provided therein. The division is authorized
759	to provide by rule the method by which a developer must provide
760	such information to the division. Each multisite timeshare plan
761	filed public offering statement shall contain the following
762	information and disclosures:
763	(4)  A text, which shall include, where applicable, the
764	information and disclosures set forth in paragraphs (a)-(l).
765	(f)  If the provisions of s. 721.552 and the timeshare
766	instrument permit additions, substitutions, or deletions of
767	accommodations or facilities, the public offering statement must
768	include substantially the following information:
769	1.  Additions.--
770	a.  A description of the basis upon which new
771	accommodations and facilities may be added to the multisite
772	timeshare plan; by whom additions may be made; and the
773	anticipated effect of the addition of new accommodations and
774	facilities upon the reservation system, its priorities, its
775	rules and regulations, and the availability of existing
776	accommodations and facilities.
777	b.  The developer must disclose the existence of any cap on
778	annual increases in common expenses of the multisite timeshare
779	plan that would apply in the event that additional
780	accommodations and facilities are made a part of the plan.
781	c.  The developer shall also disclose any extent to which
782	the purchasers of the multisite timeshare plan will have the
783	right to consent to any proposed additions; if the purchasers do
784	not have the right to consent, the developer must include the
785	following disclosure in conspicuous type:
786
787	Accommodations and facilities may be added to this
788	multisite timeshare plan (or multisite vacation ownership plan
789	or multisite vacation plan or vacation club) without the consent
790	of the purchasers. The addition of accommodations and facilities
791	to the plan may result in the addition of new purchasers who
792	will compete with existing purchasers in making reservations for
793	the use of available accommodations and facilities within the
794	plan, and may also result in an increase in the annual
795	assessment against purchasers for common expenses.
796
797	2.  Substitutions.--
798	a.  A description of the basis upon which new
799	accommodations and facilities may be substituted for existing
800	accommodations and facilities of the multisite timeshare plan;
801	by whom substitutions may be made; the basis upon which the
802	determination may be made to cause such substitutions to occur;
803	and any limitations upon the ability to cause substitutions to
804	occur.
805	b.  The developer shall also disclose any extent to which
806	purchasers will have the right to consent to any proposed
807	substitutions; if the purchasers do not have the right to
808	consent, the developer must include the following disclosure in
809	conspicuous type:
810
811	New accommodations and facilities may be substituted for
812	existing accommodations and facilities of this multisite
813	timeshare plan (or multisite vacation ownership plan or
814	multisite vacation plan or vacation club) without the consent of
815	the purchasers. The replacement accommodations and facilities
816	may be located at a different place or may be of a different
817	type or quality than the replaced accommodations and facilities.
818	The substitution of accommodations and facilities may also
819	result in an increase in the annual assessment against
820	purchasers for common expenses.
821
822	3.  Deletions.--A description of any provision of the
823	timeshare instrument governing deletion of accommodations or
824	facilities from the multisite timeshare plan. If the timeshare
825	instrument does not provide for business interruption insurance
826	in the event of a casualty, or if it is unavailable, or if the
827	instrument permits the developer, the managing entity, or the
828	purchasers to elect not to reconstruct after casualty under
829	certain circumstances or to secure replacement accommodations or
830	facilities in lieu of reconstruction, the public offering
831	statement must contain a disclosure that during the
832	reconstruction, replacement, or acquisition period, or as a
833	result of a decision not to reconstruct, purchasers of the plan
834	may temporarily compete for available accommodations on a
835	greater than one-to-one use right purchaser to use night
836	requirement accommodation ratio.
837	(h)  A description of the purchaser's liability for common
838	expenses of the multisite timeshare plan, including the
839	following:
840	1.  A description of the common expenses of the plan,
841	including the method of allocation and assessment of such common
842	expenses, whether component site common expenses and real estate
843	taxes are included within the total common expense assessment of
844	the multisite timeshare plan, and, if not, the manner in which
845	timely payment of component site common expenses and real estate
846	taxes shall be accomplished.
847	2.  A description of any cap imposed upon the level of
848	common expenses payable by the purchaser. In no event shall the
849	total common expense assessment for the multisite timeshare plan
850	in a given calendar year exceed 125 percent of the total common
851	expense assessment for the plan in the previous calendar year.
852	3.  A description of the entity responsible for the
853	determination of the common expenses of the multisite timeshare
854	plan, as well as any entity which may increase the level of
855	common expenses assessed against the purchaser at the multisite
856	timeshare plan level.
857	4.  A description of the method used to collect common
858	expenses, including the entity responsible for such collections,
859	and the lien rights of any entity for nonpayment of common
860	expenses. If the common expenses of any component site are
861	collected by the managing entity of the multisite timeshare
862	plan, a statement to that effect together with the identity and
863	address of the escrow agent required by s. 721.56(3).
864	5.  If the purchaser will receive an interest in a
865	nonspecific multisite timeshare plan, a statement that a
866	multisite timeshare plan budget is attached to the public
867	offering statement as an exhibit pursuant to paragraph (7)(c).
868	The multisite timeshare plan budget shall comply with the
869	provisions of s. 721.07(5)(t)(u).
870	6.  If the developer intends to guarantee the level of
871	assessments for the multisite timeshare plan, such guarantee
872	must be based upon a good faith estimate of the revenues and
873	expenses of the multisite timeshare plan. The guarantee must
874	include a description of the following:
875	a.  The specific time period, measured in one or more
876	calendar or fiscal years, during which the guarantee will be in
877	effect.
878	b.  A statement that the developer will pay all common
879	expenses incurred in excess of the total revenues of the
880	multisite timeshare plan, if the developer is to be excused from
881	the payment of assessments during the guarantee period.
882	c.  The level, expressed in total dollars, at which the
883	developer guarantees the assessments. If the developer has
884	reserved the right to extend or increase the guarantee level, a
885	disclosure must be included to that effect.
886	7.  If required under applicable law, the developer shall
887	also disclose the following matters for each component site:
888	a.  Any limitation upon annual increases in common
889	expenses;
890	b.  The existence of any bad debt or working capital
891	reserve; and
892	c.  The existence of any replacement or deferred
893	maintenance reserve.
894	(7)  The following documents shall be included as exhibits
895	to the filed public offering statement, if applicable:
896	(l)1.  If the multisite timeshare plan contains any
897	component sites located in this state, the information required
898	by s. 721.07(5) pertaining to each such component site unless
899	exempt pursuant to s. 721.03.
900	2.  If the purchaser will receive a timeshare estate
901	pursuant to s. 721.57, or an interest in a specific multisite
902	timeshare plan, in a component site located outside of this
903	state but which is offered in this state, the information
904	required by s. 721.07(5) pertaining to that component site,
905	provided, however, that the provisions of s. 721.07(5)(t)(u)
906	shall only require disclosure of information related to the
907	estimated budget for the timeshare plan and purchaser's expenses
908	as required by the jurisdiction in which the component site is
909	located.
910	Section 11.  Paragraph (b) of subsection (1), paragraph (g)
911	of subsection (2), and subsection (3) of section 721.552,
912	Florida Statutes, are amended to read:
913	721.552  Additions, substitutions, or deletions of
914	component site accommodations or facilities; purchaser remedies
915	for violations.--Additions, substitutions, or deletions of
916	component site accommodations or facilities may be made only in
917	accordance with the following:
918	(1)  ADDITIONS.--
919	(b)  Any person who is authorized by the timeshare
920	instrument to make additions to the multisite timeshare plan
921	pursuant to this subsection shall act as a fiduciary in such
922	capacity in the best interests of the purchasers of the plan as
923	a whole and shall adhere to the demand balancing standard set
924	forth in s. 721.56(6) in connection with such additions.
925	Additions that are otherwise permitted may be made only so long
926	as a one-to-one use right purchaser to use night requirement
927	accommodation ratio is maintained at all times.
928	(2)  SUBSTITUTIONS.--
929	(g)  The person who is authorized by the timeshare
930	instrument to make substitutions to the multisite timeshare plan
931	pursuant to this subsection shall act as a fiduciary in such
932	capacity in the best interests of the purchasers of the plan as
933	a whole and shall adhere to the demand balancing standard set
934	forth in s. 721.56(6) in connection with such substitutions.
935	Substitutions that are otherwise permitted may be made only so
936	long as a one-to-one use right purchaser to use night
937	requirement accommodation ratio is maintained at all times.
938	(3)  DELETIONS.--
939	(a)  Deletion by casualty.--
940	1.  Pursuant to s. 721.165, the timeshare instrument
941	creating the multisite timeshare plan must provide for casualty
942	insurance for the accommodations and facilities of the multisite
943	timeshare plan in an amount equal to the replacement cost of
944	such accommodations or facilities. The timeshare instrument must
945	also provide that in the event of a casualty that results in
946	accommodations or facilities being unavailable for use by
947	purchasers, the managing entity shall notify all affected
948	purchasers of such unavailability of use within 30 days after
949	the event of casualty.
950	2.  The timeshare instrument must also provide for the
951	application of any insurance proceeds arising from a casualty to
952	either the replacement or acquisition of additional similar
953	accommodations or facilities or to the removal of purchasers
954	from the multisite timeshare plan so that purchasers will not be
955	competing for available accommodations on a greater than one-to-
956	one use right purchaser to use night requirement accommodation
957	ratio.
958	3.  If the timeshare instrument does not provide for
959	business interruption insurance, or if it is unavailable, or if
960	the instrument permits the developer, the managing entity, or
961	the purchasers to elect not to reconstruct after casualty under
962	certain circumstances or to secure replacement accommodations or
963	facilities in lieu of reconstruction, purchasers of the plan may
964	temporarily compete for available accommodations on a greater
965	than one-to-one use right purchaser to use night requirement
966	accommodation ratio. The decision whether or not to reconstruct
967	shall be made as promptly as possible under the circumstances.
968	4.  Any replacement of accommodations or facilities
969	pursuant to this paragraph shall be made upon the same basis as
970	required for substitution as set forth in subparagraph (2)(b)2.
971	(b)  Deletion by eminent domain.--
972	1.  The timeshare instrument creating the multisite
973	timeshare plan must also provide for the application of any
974	proceeds arising from a taking under eminent domain proceedings
975	to either the replacement or acquisition of additional similar
976	accommodations or facilities or to the removal of purchasers
977	from the multisite timeshare plan so that purchasers will not be
978	competing for available accommodations on a greater than one-to-
979	one use right purchaser to use night requirement accommodation
980	ratio.
981	2.  Any replacement of accommodations or facilities
982	pursuant to this paragraph shall be made upon the same basis as
983	required for substitution set forth in subparagraph (2)(b)2.
984	(c)  Automatic deletion.--The timeshare instrument may
985	provide that a component site will be automatically deleted upon
986	the expiration of its term in a timeshare plan other than a
987	nonspecific multisite timeshare plan or as otherwise provided in
988	the timeshare instrument. However, the timeshare instrument must
989	also provide that in the event a component site is deleted from
990	the plan in this manner, a sufficient number of purchasers of
991	the plan will also be deleted so as to maintain no greater than
992	a one-to-one use right purchaser to use night requirement
993	accommodation ratio.
994	Section 12.  Subsection (1) of section 721.97, Florida
995	Statutes, is amended to read:
996	721.97  Timeshare commissioner of deeds.--
997	(1)  The Governor may appoint commissioners of deeds to
998	take acknowledgments, proofs of execution, or oaths in any
999	foreign country, in international waters, or in any possession,
1000	territory, or commonwealth of the United States outside the 50
1001	states. The term of office is 4 years. Commissioners of deeds
1002	shall have authority to take acknowledgments, proofs of
1003	execution, and oaths in connection with the execution of any
1004	deed, mortgage, deed of trust, contract, power of attorney, or
1005	any other writing to be used or recorded in connection with a
1006	timeshare estate, personal property timeshare interest,
1007	timeshare license, any property subject to a timeshare plan, or
1008	the operation of a timeshare plan located within this state;
1009	provided such instrument or writing is executed outside the
1010	United States. Such acknowledgments, proofs of execution, and
1011	oaths must be taken or made in the manner directed by the laws
1012	of this state, including but not limited to s. 117.05(4),
1013	(5)(a), and (6), Florida Statutes 1997, and certified by a
1014	commissioner of deeds. The certification must be endorsed on or
1015	annexed to the instrument or writing aforesaid and has the same
1016	effect as if made or taken by a notary public licensed in this
1017	state.
1018	Section 13.  This act shall take effect July 1, 2007.

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