HB 433

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	718.114, F.S.; providing that certain leaseholds,
15	memberships, or other possessory or use interests shall be
16	considered a material alteration or substantial addition
17	to certain real property; amending s. 718.404, F.S.;
18	providing retroactive application of provisions relating
19	to mixed-use condominiums; amending s. 719.103, F.S.;
20	providing a definition; amending s. 719.507, F.S.;
21	prohibiting laws, ordinances, or regulations that apply
22	only to improvements that are or may be subjected to an
23	equity club form of ownership; amending s. 720.302, F.S.;
24	revising governing provisions relating to corporations
25	that operate residential homeowners' associations;
26	amending s. 720.303, F.S.; revising application to include
27	certain meetings; requiring the association to provide
28	certain information to prospective purchasers or
29	lienholders; authorizing the association to charge a
30	reasonable fee for providing certain information;
31	requiring the budget to provide for annual operating
32	expenses; authorizing the budget to include reserve
33	accounts for capital expenditures and deferred
34	maintenance; providing a formula for calculating the
35	amount to be reserved; authorizing the association to
36	adjust replacement reserve assessments annually;
37	authorizing the developer to vote to waive the reserves or
38	reduce the funding of reserves for a certain period;
39	revising provisions relating to financial reporting;
40	revising time periods in which the association must
41	complete its reporting; repealing s. 720.303(2), F.S., as
42	amended, relating to board meetings, to remove conflicting
43	versions of that subsection; creating s. 720.3035, F.S.;
44	providing for architectural control covenants and parcel
45	owner improvements; authorizing the review and approval of
46	plans and specifications; providing limitations; providing
47	rights and privileges for parcel owners as set forth in
48	the declaration of covenants; amending s. 720.305, F.S.;
49	providing that, where a member is entitled to collect
50	attorney's fees against the association, the member may
51	also recover additional amounts as determined by the
52	court; amending s. 720.306, F.S.; providing that certain
53	mergers or consolidations of an association shall not be
54	considered a material or adverse alteration of the
55	proportionate voting interest appurtenant to a parcel;
56	amending s. 720.307, F.S.; requiring developers to deliver
57	financial records to the board in any transition of
58	association control to members; requiring certain
59	information to be included in the records and for the
60	records to be prepared in a specified manner; amending s.
61	720.308, F.S.; providing circumstances under which a
62	guarantee of common expenses shall be effective; providing
63	for approval of the guarantee by association members;
64	providing for a guarantee period and extension thereof;
65	requiring the stated dollar amount of the guarantee to be
66	an exact dollar amount for each parcel identified in the
67	declaration; providing payments required from the
68	guarantor to be determined in a certain manner; providing
69	a formula to determine the guarantor's total financial
70	obligation to the association; providing that certain
71	expenses incurred in the production of certain revenues
72	shall not be included in the operating expenses; amending
73	s. 720.311, F.S.; revising provisions relating to dispute
74	resolution; providing that the filing of any petition for
75	arbitration or the serving of an offer for presuit
76	mediation shall toll the applicable statute of
77	limitations; providing that certain disputes between an
78	association and a parcel owner shall be subject to presuit
79	mediation; revising provisions to conform; providing that
80	temporary injunctive relief may be sought in certain
81	disputes subject to presuit mediation; authorizing the
82	court to refer the parties to mediation under certain
83	circumstances; requiring the aggrieved party to serve on
84	the responding party a written offer to participate in
85	presuit mediation; providing a form for such offer;
86	providing that service of the offer is effected by the
87	sending of such an offer in a certain manner; providing
88	that the prevailing party in any subsequent arbitration or
89	litigation proceedings is entitled to seek recovery of all
90	costs and attorney's fees incurred in the presuit
91	mediation process; requiring the mediator or arbitrator to
92	meet certain certification requirements; removing a
93	requirement relating to development of an education
94	program to increase awareness of the operation of
95	homeowners' associations and the use of alternative
96	dispute resolution techniques; providing effective dates.
97
98	Be It Enacted by the Legislature of the State of Florida:
99
100	Section 1.  Section 712.11, Florida Statutes, is created to
101	read:
102	712.11  Covenant revitalization.--A homeowners' association
103	not otherwise subject to chapter 720 may use the procedures set
104	forth in ss. 720.403-720.407 to revive covenants that have
105	lapsed under the terms of this chapter.
106	Section 2.  Subsection (5) is added to section 718.106,
107	Florida Statutes, to read:
108	718.106  Condominium parcels; appurtenances; possession and
109	enjoyment.--
110	(5)  A local government may not prohibit condominium unit
111	owners or an association from permitting guests, licensees, or
112	invitees access to a public beach adjacent to or adjoining the
113	condominium property.
114	Section 3.  Effective October 1, 2007, subsection (11) of
115	section 718.110, Florida Statutes, is amended to read:
116	718.110  Amendment of declaration; correction of error or
117	omission in declaration by circuit court.--
118	(11)  The Legislature finds that the procurement of
119	mortgagee consent to amendments that do not affect the rights or
120	interests of mortgagees is an unreasonable and substantial
121	logistical and financial burden on the unit owners and that
122	there is a compelling state interest in enabling the members of
123	a condominium association to approve amendments to the
124	condominium documents through legal means. Accordingly, and
125	notwithstanding any provision to the contrary contained in this
126	section:
127	(a)  As to any mortgage recorded on or after October 1,
128	2007, any provision in the declaration, articles of
129	incorporation, or bylaws that requires recorded after April 1,
130	1992, may not require the consent or joinder of some or all
131	mortgagees of units or any other portion of the condominium
132	property to or in amendments to the declaration, articles of
133	incorporation, or bylaws or for any other matter shall be
134	enforceable only as to the following matters: unless the
135	requirement is limited to amendments materially affecting the
136	rights or interests of the mortgagees, or as otherwise required
137	by the Federal National Mortgage Association or the Federal Home
138	Loan Mortgage Corporation, and unless the requirement provides
139	that such consent may not be unreasonably withheld. It shall be
140	presumed that, except as to
141	1.  Those matters described in subsections (4) and (8).,
142	2.  Amendments to the declaration, articles of
143	incorporation, or bylaws that adversely affect the priority of
144	the mortgagee's lien or the mortgagee's rights to foreclose its
145	lien or that otherwise materially affect the rights and
146	interests of the mortgagees.
147	(b)  As to mortgages recorded before October 1, 2007, any
148	existing provisions in the declaration, articles of
149	incorporation, or bylaws requiring mortgagee consent shall be
150	enforceable.
151	(c)  In securing consent or joinder, the association shall
152	be entitled to rely upon the public records to identify the
153	holders of outstanding mortgages. The association may use the
154	address provided in the original recorded mortgage document,
155	unless there is a different address for the holder of the
156	mortgage in a recorded assignment or modification of the
157	mortgage, which recorded assignment or modification must
158	reference the official records book and page on which the
159	original mortgage was recorded. Once the association has
160	identified the recorded mortgages of record, the association
161	shall, in writing, request of each unit owner whose unit is
162	encumbered by a mortgage of record any information the owner has
163	in his or her possession regarding the name and address of the
164	person to whom mortgage payments are currently being made.
165	Notice shall be sent to such person if the address provided in
166	the original recorded mortgage document is different from the
167	name and address of the mortgagee or assignee of the mortgage as
168	shown by the public record. The association shall be deemed to
169	have complied with this requirement by making the written
170	request of the unit owners required under this paragraph. Any
171	notices required to be sent to the mortgagees under this
172	paragraph shall be sent to all available addresses provided to
173	the association.
174	(d)  Any notice to the mortgagees required under paragraph
175	(c) may be sent by a method that establishes proof of delivery,
176	and any mortgagee who fails to respond within 60 days after the
177	date of mailing shall be deemed to have consented to the
178	amendment.
179	(e)  For those amendments requiring mortgagee consent on or
180	after October 1, 2007, do not materially affect the rights or
181	interests of mortgagees. in the event mortgagee consent is
182	provided other than by properly recorded joinder, such consent
183	shall be evidenced by affidavit of the association recorded in
184	the public records of the county where the declaration is
185	recorded. Any amendment adopted without the required consent of
186	a mortgagee shall be voidable only by a mortgagee who was
187	entitled to notice and an opportunity to consent. An action to
188	void an amendment shall be subject to the statute of limitations
189	beginning 5 years from the date of discovery as to the
190	amendments described in subparagraphs (a)1. and 2. and 5 years
191	from the date of recordation of the certificate of amendment for
192	all other amendments. This provision shall apply to all
193	mortgages, regardless of the date of recordation of the
194	mortgage.
195	Section 4.  Section 718.114, Florida Statutes, is amended
196	to read:
197	718.114  Association powers.--An association has the power
198	to enter into agreements, to acquire leaseholds, memberships,
199	and other possessory or use interests in lands or facilities
200	such as country clubs, golf courses, marinas, and other
201	recreational facilities. It has this power whether or not the
202	lands or facilities are contiguous to the lands of the
203	condominium, if they are intended to provide enjoyment,
204	recreation, or other use or benefit to the unit owners. All of
205	these leaseholds, memberships, and other possessory or use
206	interests existing or created at the time of recording the
207	declaration must be stated and fully described in the
208	declaration. Subsequent to the recording of the declaration,
209	agreements acquiring these leaseholds, memberships, or other
210	possessory or use interests not entered into within 12 months
211	following the recording of the declaration shall be considered a
212	material alteration or substantial addition to the real property
213	that is association property, and the association may not
214	acquire or enter into agreements acquiring these leaseholds,
215	memberships, or other possessory or use interests except as
216	authorized by the declaration as provided in s. 718.113. The
217	declaration may provide that the rental, membership fees,
218	operations, replacements, and other expenses are common expenses
219	and may impose covenants and restrictions concerning their use
220	and may contain other provisions not inconsistent with this
221	chapter. A condominium association may conduct bingo games as
222	provided in s. 849.0931.
223	Section 5.  Subsections (1) and (2) of section 718.404,
224	Florida Statutes, are amended to read:
225	718.404  Mixed-use condominiums.--When a condominium
226	consists of both residential and commercial units, the following
227	provisions shall apply:
228	(1)  The condominium documents shall not provide that the
229	owner of any commercial unit shall have the authority to veto
230	amendments to the declaration, articles of incorporation,
231	bylaws, or rules or regulations of the association. This
232	subsection shall apply retroactively as a remedial measure.
233	(2)  Subject to s. 718.301, where the number of residential
234	units in the condominium equals or exceeds 50 percent of the
235	total units operated by the association, owners of the
236	residential units shall be entitled to vote for a majority of
237	the seats on the board of administration. This subsection shall
238	apply retroactively as a remedial measure.
239	Section 6.  Subsections (18) through (27) of section
240	719.103, Florida Statutes, are renumbered as subsections (19)
241	through (28), respectively, and a new subsection (18) is added
242	to that section to read:
243	719.103  Definitions.--As used in this chapter:
244	(18)  "Equity facilities club" means a club comprised of
245	recreational facilities in which proprietary membership
246	interests are sold to individuals, which membership interests
247	entitle the individuals to use certain physical facilities owned
248	by the equity club. Such physical facilities do not include a
249	residential unit or accommodation. For purposes of this
250	definition, the term "accommodation" shall include, but is not
251	limited to, any apartment, residential cooperative unit,
252	residential condominium unit, cabin, lodge, hotel or motel room,
253	or any other accommodation designed for overnight occupancy for
254	one or more individuals.
255	Section 7.  Section 719.507, Florida Statutes, is amended
256	to read:
257	719.507  Zoning and building laws, ordinances, and
258	regulations.--All laws, ordinances, and regulations concerning
259	buildings or zoning shall be construed and applied with
260	reference to the nature and use of such property, without regard
261	to the form of ownership. No law, ordinance, or regulation shall
262	establish any requirement concerning the use, location,
263	placement, or construction of buildings or other improvements
264	which are, or may thereafter be, subjected to the cooperative or
265	equity facilities club form of ownership, unless such
266	requirement shall be equally applicable to all buildings and
267	improvements of the same kind not then, or thereafter to be,
268	subjected to the cooperative or equity facilities club form of
269	ownership. This section does not apply if the owner in fee of
270	any land enters into and records a covenant that existing
271	improvements or improvements to be constructed shall not be
272	converted to the cooperative form of residential ownership prior
273	to 5 years after the later of the date of the covenant or
274	completion date of the improvements. Such covenant shall be
275	entered into with the governing body of the municipality in
276	which the land is located or, if the land is not located in a
277	municipality, with the governing body of the county in which the
278	land is located.
279	Section 8.  Subsections (4) and (5) of section 720.302,
280	Florida Statutes, are amended to read:
281	720.302  Purposes, scope, and application.--
282	(4)  This chapter does not apply to any association that is
283	subject to regulation under chapter 718, chapter 719, or chapter
284	721; or to any nonmandatory association formed under chapter
285	723, except to the extent that a provision of chapter 718,
286	chapter 719, or chapter 721 is expressly incorporated into this
287	chapter for the purpose of regulating homeowners' associations.
288	(5)  Unless expressly stated to the contrary, corporations
289	not for profit that operate residential homeowners' associations
290	in this state shall be governed by and subject to chapter 607,
291	if the association was incorporated under that chapter, or to
292	chapter 617, if the association was incorporated under that
293	chapter, and this chapter. This subsection is intended to
294	clarify existing law.
295	Section 9.  Paragraph (a) of subsection (2), subsection
296	(6), and subsection (7) of section 720.303, Florida Statutes, as
297	amended by section 18 of chapter 2004-345 and section 135 of
298	chapter 2005-2, Laws of Florida, are amended, and paragraph (d)
299	is added to subsection (5) of that section, to read:
300	720.303  Association powers and duties; meetings of board;
301	official records; budgets; financial reporting; association
302	funds; recalls.--
303	(2)  BOARD MEETINGS.--
304	(a)  A meeting of the board of directors of an association
305	occurs whenever a quorum of the board gathers to conduct
306	association business. All meetings of the board must be open to
307	all members except for meetings between the board and its
308	attorney with respect to proposed or pending litigation where
309	the contents of the discussion would otherwise be governed by
310	the attorney-client privilege. The provisions of this subsection
311	shall also apply to the meetings of any committee or other
312	similar body when a final decision will be made regarding the
313	expenditure of association funds and to meetings of any body
314	vested with the power to approve or disapprove architectural
315	decisions with respect to a specific parcel of residential
316	property owned by a member of the community.
317	(5)  INSPECTION AND COPYING OF RECORDS.--The official
318	records shall be maintained within the state and must be open to
319	inspection and available for photocopying by members or their
320	authorized agents at reasonable times and places within 10
321	business days after receipt of a written request for access.
322	This subsection may be complied with by having a copy of the
323	official records available for inspection or copying in the
324	community. If the association has a photocopy machine available
325	where the records are maintained, it must provide parcel owners
326	with copies on request during the inspection if the entire
327	request is limited to no more than 25 pages.
328	(d)  The association or its authorized agent is not
329	required to provide a prospective purchaser or lienholder with
330	information about the residential subdivision or the association
331	other than information or documents required by this chapter to
332	be made available or disclosed. The association or its
333	authorized agent may charge a reasonable fee to the prospective
334	purchaser or lienholder or the current parcel owner or member
335	for providing good faith responses to requests for information
336	by or on behalf of a prospective purchaser or lienholder, other
337	than that required by law, if the fee does not exceed $150 plus
338	the reasonable cost of photocopying and any attorney's fees
339	incurred by the association in connection with the response.
340	(6)  BUDGETS.--
341	(a)  The association shall prepare an annual budget that
342	sets out the annual operating expenses. The budget must reflect
343	the estimated revenues and expenses for that year and the
344	estimated surplus or deficit as of the end of the current year.
345	The budget must set out separately all fees or charges paid for
346	by the association for recreational amenities, whether owned by
347	the association, the developer, or another person. The
348	association shall provide each member with a copy of the annual
349	budget or a written notice that a copy of the budget is
350	available upon request at no charge to the member. The copy must
351	be provided to the member within the time limits set forth in
352	subsection (5).
353	(b)  In addition to annual operating expenses, the budget
354	may include reserve accounts for capital expenditures and
355	deferred maintenance for which the association is responsible to
356	the extent that the governing documents do not limit increases
357	in assessments, including reserves. If the budget of the
358	association includes reserve accounts, such reserves shall be
359	determined, maintained, and waived in the manner provided in
360	this subsection. Once an association provides for reserve
361	accounts in the budget, the association shall thereafter
362	determine, maintain, and waive reserves in compliance with the
363	provisions of this subsection.
364	(c)  If the budget of the association does not provide for
365	reserve accounts governed by this subsection and the association
366	is responsible for the repair and maintenance of capital
367	improvements that may result in a special assessment if reserves
368	are not provided, each financial report for the preceding fiscal
369	year required by subsection (7) shall contain the following
370	statement in conspicuous type: THE BUDGET OF THE ASSOCIATION
371	DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES
372	AND DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS.
373	OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE
374	PROVISIONS OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE
375	APPROVAL OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING
376	INTERESTS OF THE ASSOCIATION.
377	(d)  An association shall be deemed to have provided for
378	reserve accounts when reserve accounts have been initially
379	established by the developer or when the membership of the
380	association affirmatively elects to provide for reserves. If
381	reserve accounts are not initially provided for by the
382	developer, the membership of the association may elect to do so
383	upon the affirmative approval of not less than a majority of the
384	total voting interests of the association. Such approval may be
385	attained by vote of the members at a duly called meeting of the
386	membership or upon a written consent executed by not less than a
387	majority of the total voting interests in the community. The
388	approval action of the membership shall state that reserve
389	accounts shall be provided for in the budget and designate the
390	components for which the reserve accounts are to be established.
391	Upon approval by the membership, the board of directors shall
392	provide for the required reserve accounts for inclusion in the
393	budget in the next fiscal year following the approval and in
394	each year thereafter. Once established as provided in this
395	subsection, the reserve accounts shall be funded or maintained
396	or shall have their funding waived in the manner provided in
397	paragraph (f).
398	(e)  The amount to be reserved in any account established
399	shall be computed by means of a formula that is based upon
400	estimated remaining useful life and estimated replacement cost
401	or deferred maintenance expense of each reserve item. The
402	association may adjust replacement reserve assessments annually
403	to take into account any changes in estimates of cost or useful
404	life of a reserve item.
405	(f)  Once a reserve account or reserve accounts are
406	established, the membership of the association, upon a majority
407	vote at a meeting at which a quorum is present, may provide for
408	no reserves or less reserves than required by this section. If a
409	meeting of the unit owners has been called to determine whether
410	to waive or reduce the funding of reserves and no such result is
411	achieved or a quorum is not present, the reserves as included in
412	the budget shall go into effect. After the turnover, the
413	developer may vote its voting interest to waive or reduce the
414	funding of reserves. Any vote taken pursuant to this subsection
415	to waive or reduce reserves shall be applicable only to one
416	budget year.
417	(g)  Funding formulas for reserves authorized by this
418	section shall be based on either a separate analysis of each of
419	the required assets or a pooled analysis of two or more of the
420	required assets.
421	1.  If the association maintains separate reserve accounts
422	for each of the required assets, the amount of the contribution
423	to each reserve account shall be the sum of the following two
424	calculations:
425	a.  The total amount necessary, if any, to bring a negative
426	component balance to zero.
427	b.  The total estimated deferred maintenance expense or
428	estimated replacement cost of the reserve component less the
429	estimated balance of the reserve component as of the beginning
430	of the period for which the budget will be in effect. The
431	remainder, if greater than zero, shall be divided by the
432	estimated remaining useful life of the component.
433
434	The formula may be adjusted each year for changes in estimates
435	and deferred maintenance performed during the year and may
436	include factors such as inflation and earnings on invested
437	funds.
438	2.  If the association maintains a pooled account of two or
439	more of the required reserve assets, the amount of the
440	contribution to the pooled reserve account as disclosed on the
441	proposed budget shall not be less than that required to ensure
442	that the balance on hand at the beginning of the period for
443	which the budget will go into effect plus the projected annual
444	cash inflows over the remaining estimated useful life of all of
445	the assets that make up the reserve pool are equal to or greater
446	than the projected annual cash outflows over the remaining
447	estimated useful lives of all of the assets that make up the
448	reserve pool, based on the current reserve analysis. The
449	projected annual cash inflows may include estimated earnings
450	from investment of principal. The reserve funding formula shall
451	not include any type of balloon payments.
452	(h)  Reserve funds and any interest accruing thereon shall
453	remain in the reserve account or accounts and shall be used only
454	for authorized reserve expenditures unless their use for other
455	purposes is approved in advance by a majority vote at a meeting
456	at which a quorum is present. Prior to turnover of control of an
457	association by a developer to parcel owners, the developer-
458	controlled association shall not vote to use reserves for
459	purposes other than those for which they were intended without
460	the approval of a majority of all nondeveloper voting interests
461	voting in person or by limited proxy at a duly called meeting of
462	the association.
463	(7)  FINANCIAL REPORTING.--Within 90 days after the end of
464	the fiscal year, or annually on the date provided in the bylaws,
465	the association shall prepare and complete, or contract with a
466	third party for the preparation and completion of, a financial
467	report for the preceding fiscal year. Within 21 days after the
468	final financial report is completed by the association or
469	received from the third party, but not later than 120 days after
470	the end of the fiscal year or other date as provided in the
471	bylaws, the association shall prepare an annual financial report
472	within 60 days after the close of the fiscal year. The
473	association shall, within the time limits set forth in
474	subsection (5), provide each member with a copy of the annual
475	financial report or a written notice that a copy of the
476	financial report is available upon request at no charge to the
477	member. Financial reports shall be prepared as follows:
478	(a)  An association that meets the criteria of this
479	paragraph shall prepare or cause to be prepared a complete set
480	of financial statements in accordance with generally accepted
481	accounting principles as adopted by the Board of Accountancy.
482	The financial statements shall be based upon the association's
483	total annual revenues, as follows:
484	1.  An association with total annual revenues of $100,000
485	or more, but less than $200,000, shall prepare compiled
486	financial statements.
487	2.  An association with total annual revenues of at least
488	$200,000, but less than $400,000, shall prepare reviewed
489	financial statements.
490	3.  An association with total annual revenues of $400,000
491	or more shall prepare audited financial statements.
492	(b)1.  An association with total annual revenues of less
493	than $100,000 shall prepare a report of cash receipts and
494	expenditures.
495	2.  An association in a community of fewer than 50 parcels,
496	regardless of the association's annual revenues, may prepare a
497	report of cash receipts and expenditures in lieu of financial
498	statements required by paragraph (a) unless the governing
499	documents provide otherwise.
500	3.  A report of cash receipts and disbursement must
501	disclose the amount of receipts by accounts and receipt
502	classifications and the amount of expenses by accounts and
503	expense classifications, including, but not limited to, the
504	following, as applicable: costs for security, professional, and
505	management fees and expenses; taxes; costs for recreation
506	facilities; expenses for refuse collection and utility services;
507	expenses for lawn care; costs for building maintenance and
508	repair; insurance costs; administration and salary expenses; and
509	reserves if maintained by the association.
510	(c)  If 20 percent of the parcel owners petition the board
511	for a level of financial reporting higher than that required by
512	this section, the association shall duly notice and hold a
513	meeting of members within 30 days of receipt of the petition for
514	the purpose of voting on raising the level of reporting for that
515	fiscal year. Upon approval of a majority of the total voting
516	interests of the parcel owners, the association shall prepare or
517	cause to be prepared, shall amend the budget or adopt a special
518	assessment to pay for the financial report regardless of any
519	provision to the contrary in the governing documents, and shall
520	provide within 90 days of the meeting or the end of the fiscal
521	year, whichever occurs later:
522	1.  Compiled, reviewed, or audited financial statements, if
523	the association is otherwise required to prepare a report of
524	cash receipts and expenditures;
525	2.  Reviewed or audited financial statements, if the
526	association is otherwise required to prepare compiled financial
527	statements; or
528	3.  Audited financial statements if the association is
529	otherwise required to prepare reviewed financial statements.
530	(d)  If approved by a majority of the voting interests
531	present at a properly called meeting of the association, an
532	association may prepare or cause to be prepared:
533	1.  A report of cash receipts and expenditures in lieu of a
534	compiled, reviewed, or audited financial statement;
535	2.  A report of cash receipts and expenditures or a
536	compiled financial statement in lieu of a reviewed or audited
537	financial statement; or
538	3.  A report of cash receipts and expenditures, a compiled
539	financial statement, or a reviewed financial statement in lieu
540	of an audited financial statement.
541	Section 10.  Subsection (2) of section 720.303, Florida
542	Statutes, as amended by section 2 of chapter 2004-345 and
543	section 15 of chapter 2004-353, Laws of Florida, is repealed.
544	Section 11.  Section 720.3035, Florida Statutes, is created
545	to read:
546	720.3035  Architectural control covenants; parcel owner
547	improvements; rights and privileges.--
548	(1)  The authority of an association or any architectural,
549	construction improvement, or other such similar committee of an
550	association to review and approve plans and specifications for
551	the location, size, type, or appearance of any structure or
552	other improvement on a parcel, or to enforce standards for the
553	external appearance of any structure or improvement located on a
554	parcel, shall only be permitted to the extent that the authority
555	is specifically stated or reasonably inferred as to such
556	location, size, type, or appearance in the declaration of
557	covenants or other published guidelines and standards authorized
558	by the declaration of covenants.
559	(2)  If the declaration of covenants or other published
560	guidelines and standards authorized by the declaration of
561	covenants provides options for the use of material, the size of
562	the structure or improvement, the design of the structure or
563	improvement, or the location of the structure or improvement on
564	the parcel, neither the association nor any architectural,
565	construction improvement, or other such similar committee of the
566	association shall restrict the right of a parcel owner to select
567	from the options provided in the declaration of covenants or
568	other published guidelines and standards authorized by the
569	declaration of covenants.
570	(3)  Unless otherwise specifically stated in the
571	declaration of covenants or other published guidelines and
572	standards authorized by the declaration of covenants, each
573	parcel shall be deemed to have only one front for purposes of
574	determining the required front setback even if the parcel is
575	bounded by a roadway or other easement on more than one side.
576	When the declaration of covenants or other published guidelines
577	and standards authorized by the declaration of covenants do not
578	provide for specific setback limitations, the applicable county
579	or municipal setback limitations shall apply, and neither the
580	association nor any architectural, construction improvement, or
581	other such similar committee of the association shall enforce or
582	attempt to enforce any setback limitation that is inconsistent
583	with the applicable county or municipal standard or standards.
584	(4)  Each parcel owner shall be entitled to the rights and
585	privileges set forth in the declaration of covenants or other
586	published guidelines and standards authorized by the declaration
587	of covenants concerning the architectural use of the parcel, and
588	the construction of permitted structures and improvements on the
589	parcel and such rights and privileges shall not be unreasonably
590	infringed upon or impaired by the association or any
591	architectural, construction improvement, or other such similar
592	committee of the association. If the association or any
593	architectural, construction improvement, or other such similar
594	committee of the association should unreasonably, knowingly, and
595	willfully infringe upon or impair the rights and privileges set
596	forth in the declaration of covenants or other published
597	guidelines and standards authorized by the declaration of
598	covenants, the adversely affected parcel owner shall be entitled
599	to recover damages caused by such infringement or impairment,
600	including any costs and reasonable attorney's fees incurred in
601	preserving or restoring the rights and privileges of the parcel
602	owner set forth in the declaration of covenants or other
603	published guidelines and standards authorized by the declaration
604	of covenants.
605	(5)  Neither the association nor any architectural,
606	construction improvement, or other such similar committee of the
607	association shall enforce any policy or restriction that is
608	inconsistent with the rights and privileges of a parcel owner
609	set forth in the declaration of covenants or other published
610	guidelines and standards authorized by the declaration of
611	covenants, whether uniformly applied or not. Neither the
612	association nor any architectural, construction improvement, or
613	other such similar committee of the association may rely upon a
614	policy or restriction that is inconsistent with the declaration
615	of covenants or other published guidelines and standards
616	authorized by the declaration of covenants, whether uniformly
617	applied or not, in defense of any action taken in the name of or
618	on behalf of the association against a parcel owner.
619	Section 12.  Subsection (1) of section 720.305, Florida
620	Statutes, is amended to read:
621	720.305  Obligations of members; remedies at law or in
622	equity; levy of fines and suspension of use rights; failure to
623	fill sufficient number of vacancies on board of directors to
624	constitute a quorum; appointment of receiver upon petition of
625	any member.--
626	(1)  Each member and the member's tenants, guests, and
627	invitees, and each association, are governed by, and must comply
628	with, this chapter, the governing documents of the community,
629	and the rules of the association. Actions at law or in equity,
630	or both, to redress alleged failure or refusal to comply with
631	these provisions may be brought by the association or by any
632	member against:
633	(a)  The association;
634	(b)  A member;
635	(c)  Any director or officer of an association who
636	willfully and knowingly fails to comply with these provisions;
637	and
638	(d)  Any tenants, guests, or invitees occupying a parcel or
639	using the common areas.
640
641	The prevailing party in any such litigation is entitled to
642	recover reasonable attorney's fees and costs. A member
643	prevailing in an action between the association and the member
644	under this section, in addition to recovering his or her
645	reasonable attorney's fees, may recover additional amounts as
646	determined by the court to be necessary to reimburse the member
647	for his or her share of assessments levied by the association to
648	fund its expenses of the litigation. This relief does not
649	exclude other remedies provided by law. This section does not
650	deprive any person of any other available right or remedy.
651	Section 13.  Paragraph (c) of subsection (1) of section
652	720.306, Florida Statutes, is amended to read:
653	720.306  Meetings of members; voting and election
654	procedures; amendments.--
655	(1)  QUORUM; AMENDMENTS.--
656	(c)  Unless otherwise provided in the governing documents
657	as originally recorded or permitted by this chapter or chapter
658	617, an amendment may not materially and adversely alter the
659	proportionate voting interest appurtenant to a parcel or
660	increase the proportion or percentage by which a parcel shares
661	in the common expenses of the association unless the record
662	parcel owner and all record owners of liens on the parcels join
663	in the execution of the amendment. For purposes of this section,
664	a change in quorum requirements is not an alteration of voting
665	interests. The merger or consolidation of one or more
666	associations under a plan of merger or consolidation under
667	chapter 607 or chapter 617 shall not be considered a material or
668	adverse alteration of the proportionate voting interest
669	appurtenant to a parcel.
670	Section 14.  Paragraph (t) is added to subsection (3) of
671	section 720.307, Florida Statutes, to read:
672	720.307  Transition of association control in a
673	community.--With respect to homeowners' associations:
674	(3)  At the time the members are entitled to elect at least
675	a majority of the board of directors of the homeowners'
676	association, the developer shall, at the developer's expense,
677	within no more than 90 days deliver the following documents to
678	the board:
679	(t)  The financial records, including financial statements
680	of the association, and source documents from the incorporation
681	of the association through the date of turnover. The records
682	shall be audited by an independent certified public accountant
683	for the period from the incorporation of the association or from
684	the period covered by the last audit, if an audit has been
685	performed for each fiscal year since incorporation. All
686	financial statements shall be prepared in accordance with
687	generally accepted accounting principles and shall be audited in
688	accordance with generally accepted auditing standards, as
689	prescribed by the Board of Accountancy, pursuant to chapter 473.
690	The certified public accountant performing the audit shall
691	examine to the extent necessary supporting documents and
692	records, including the cash disbursements and related paid
693	invoices to determine if expenditures were for association
694	purposes and the billings, cash receipts, and related records of
695	the association to determine that the developer was charged and
696	paid the proper amounts of assessments. This paragraph applies
697	to associations with a date of incorporation after December 31,
698	2007.
699	Section 15.  Section 720.308, Florida Statutes, is amended
700	to read:
701	720.308  Assessments and charges.--
702	(1)  ASSESSMENTS.--For any community created after October
703	1, 1995, the governing documents must describe the manner in
704	which expenses are shared and specify the member's proportional
705	share thereof. Assessments levied pursuant to the annual budget
706	or special assessment must be in the member's proportional share
707	of expenses as described in the governing document, which share
708	may be different among classes of parcels based upon the state
709	of development thereof, levels of services received by the
710	applicable members, or other relevant factors. While the
711	developer is in control of the homeowners' association, it may
712	be excused from payment of its share of the operating expenses
713	and assessments related to its parcels for any period of time
714	for which the developer has, in the declaration, obligated
715	itself to pay any operating expenses incurred that exceed the
716	assessments receivable from other members and other income of
717	the association. This section does not apply to an association,
718	no matter when created, if the association is created in a
719	community that is included in an effective development-of-
720	regional-impact development order as of the effective date of
721	this act, together with any approved modifications thereto.
722	(2)  GUARANTEES OF COMMON EXPENSES.--
723	(a)  Establishment of a guarantee.--If a guarantee of the
724	assessments of parcel owners is not included in the purchase
725	contracts or declaration, any agreement establishing a guarantee
726	shall only be effective upon the approval of a majority of the
727	voting interests of the members other than the developer.
728	Approval shall be expressed at a meeting of the members voting
729	in person or by limited proxy or by agreement in writing without
730	a meeting if provided in the bylaws. Such guarantee shall meet
731	the requirements of this section.
732	(b)  Guarantee period.--The period of time for the
733	guarantee shall be indicated by a specific beginning and ending
734	date or event.
735	1.  The ending date or event shall be the same for all of
736	the members of an association, including members in different
737	phases of the development.
738	2.  The guarantee may provide for different intervals of
739	time during a guarantee period with different dollar amounts for
740	each such interval.
741	3.  The guarantee may provide that after the initial stated
742	period, the developer has an option to extend the guarantee for
743	one or more additional stated periods. The extension of a
744	guarantee is limited to extending the ending date or event;
745	therefore, the developer does not have the option of changing
746	the level of assessments guaranteed.
747	(3)  MAXIMUM LEVEL OF ASSESSMENTS.--The stated dollar
748	amount of the guarantee shall be an exact dollar amount for each
749	parcel identified in the declaration. Regardless of the stated
750	dollar amount of the guarantee, assessments charged to a member
751	shall not exceed the maximum obligation of the member based on
752	the total amount of the adopted budget and the member's
753	proportionate ownership share of the common elements.
754	(4)  CASH FUNDING REQUIREMENTS DURING GUARANTEE.--The cash
755	payments required from the guarantor during the guarantee period
756	shall be determined as follows:
757	(a)  If at any time during the guarantee period the funds
758	collected from member assessments at the guaranteed level and
759	other revenues collected by the association are not sufficient
760	to provide payment, on a timely basis, of all assessments,
761	including the full funding of the reserves unless properly
762	waived, the guarantor shall advance sufficient cash to the
763	association at the time such payments are due.
764	(b)  Expenses incurred in the production of nonassessment
765	revenues, not in excess of the nonassessment revenues, shall not
766	be included in the assessments. If the expenses attributable to
767	nonassessment revenues exceed nonassessment revenues, only the
768	excess expenses must be funded by the guarantor. Interest earned
769	on the investment of association funds may be used to pay the
770	income tax expense incurred as a result of the investment; such
771	expense shall not be charged to the guarantor; and the net
772	investment income shall be retained by the association. Each
773	such nonassessment-revenue-generating activity shall be
774	considered separately. Any portion of the parcel assessment that
775	is budgeted for designated capital contributions of the
776	association shall not be used to pay operating expenses.
777	(5)  CALCULATION OF GUARANTOR'S FINAL OBLIGATION.--The
778	guarantor's total financial obligation to the association at the
779	end of the guarantee period shall be determined on the accrual
780	basis using the following formula: the guarantor shall pay any
781	deficits that exceed the guaranteed amount, less the total
782	regular periodic assessments earned by the association from the
783	members other than the guarantor during the guarantee period
784	regardless of whether the actual level charged was less than the
785	maximum guaranteed amount.
786	(6)  EXPENSES.--Expenses incurred in the production of
787	nonassessment revenues, not in excess of the nonassessment
788	revenues, shall not be included in the operating expenses. If
789	the expenses attributable to nonassessment revenues exceed
790	nonassessment revenues, only the excess expenses must be funded
791	by the guarantor. Interest earned on the investment of
792	association funds may be used to pay the income tax expense
793	incurred as a result of the investment; such expense shall not
794	be charged to the guarantor; and the net investment income shall
795	be retained by the association. Each such nonassessment-revenue-
796	generating activity shall be considered separately. Any portion
797	of the parcel assessment that is budgeted for designated capital
798	contributions of the association shall not be used to pay
799	operating expenses.
800	Section 16.  Section 720.311, Florida Statutes, is amended
801	to read:
802	720.311  Dispute resolution.--
803	(1)  The Legislature finds that alternative dispute
804	resolution has made progress in reducing court dockets and
805	trials and in offering a more efficient, cost-effective option
806	to litigation. The filing of any petition for mediation or
807	arbitration or the serving of an offer for presuit mediation as
808	provided for in this section shall toll the applicable statute
809	of limitations. Any recall dispute filed with the department
810	pursuant to s. 720.303(10) shall be conducted by the department
811	in accordance with the provisions of ss. 718.112(2)(j) and
812	718.1255 and the rules adopted by the division. In addition, the
813	department shall conduct mandatory binding arbitration of
814	election disputes between a member and an association pursuant
815	to s. 718.1255 and rules adopted by the division. Neither
816	election disputes nor recall disputes are eligible for presuit
817	mediation; these disputes shall be arbitrated by the department.
818	At the conclusion of the proceeding, the department shall charge
819	the parties a fee in an amount adequate to cover all costs and
820	expenses incurred by the department in conducting the
821	proceeding. Initially, the petitioner shall remit a filing fee
822	of at least $200 to the department. The fees paid to the
823	department shall become a recoverable cost in the arbitration
824	proceeding, and the prevailing party in an arbitration
825	proceeding shall recover its reasonable costs and attorney's
826	fees in an amount found reasonable by the arbitrator. The
827	department shall adopt rules to effectuate the purposes of this
828	section.
829	(2)(a)  Disputes between an association and a parcel owner
830	regarding use of or changes to the parcel or the common areas
831	and other covenant enforcement disputes, disputes regarding
832	amendments to the association documents, disputes regarding
833	meetings of the board and committees appointed by the board,
834	membership meetings not including election meetings, and access
835	to the official records of the association shall be the subject
836	of an offer filed with the department for presuit mandatory
837	mediation served by an aggrieved party before the dispute is
838	filed in court. Presuit mediation proceedings must be conducted
839	in accordance with the applicable Florida Rules of Civil
840	Procedure, and these proceedings are privileged and confidential
841	to the same extent as court-ordered mediation. Disputes subject
842	to presuit mediation under this section shall not include the
843	collection of any assessment, fine, or other financial
844	obligation, including attorney's fees and costs, claimed to be
845	due or any action to enforce a prior mediation settlement
846	agreement between the parties. Also, in any dispute subject to
847	presuit mediation under this section where emergency relief is
848	required, a motion for temporary injunctive relief may be filed
849	with the court without first complying with the presuit
850	mediation requirements of this section. After any issues
851	regarding emergency or temporary relief are resolved, the court
852	may either refer the parties to a mediation program administered
853	by the courts or require mediation under this section. An
854	arbitrator or judge may not consider any information or evidence
855	arising from the presuit mediation proceeding except in a
856	proceeding to impose sanctions for failure to attend a presuit
857	mediation session or with the parties' agreement in a proceeding
858	seeking to enforce the agreement. Persons who are not parties to
859	the dispute may not attend the presuit mediation conference
860	without the consent of all parties, except for counsel for the
861	parties and a corporate representative designated by the
862	association. When mediation is attended by a quorum of the
863	board, such mediation is not a board meeting for purposes of
864	notice and participation set forth in s. 720.303. An aggrieved
865	party shall serve on the responding party a written offer to
866	participate in presuit mediation in substantially the following
867	form:
868
869	STATUTORY OFFER TO PARTICIPATE IN PRESUIT MEDIATION
870
871	The alleged aggrieved party,__________________, hereby
872	offers to _________________, as the responding party,
873	to enter into presuit mediation in connection with the
874	following dispute, which by statute is of a type that
875	is subject to presuit mediation:
876
877	(List specific nature of the dispute or disputes to be
878	mediated and the authority supporting a finding of a
879	violation as to each dispute.)
880
881	Pursuant to section 720.311, Florida Statutes, this
882	offer to resolve the dispute through presuit mediation
883	is required before a lawsuit can be filed concerning
884	the dispute. Pursuant to the statute, the aggrieved
885	party is hereby offering to engage in presuit
886	mediation with a neutral third-party mediator in order
887	to attempt to resolve this dispute without court
888	action, and the aggrieved party demands that you
889	likewise agree to this process. If you fail to agree
890	to presuit mediation, or if you agree and later fail
891	to follow through with your agreement to mediate, suit
892	may be brought against you without further warning.
893
894	The process of mediation involves a supervised
895	negotiation process in which a trained, neutral third-
896	party mediator meets with both parties and assists
897	them in exploring possible opportunities for resolving
898	part or all of the dispute. The mediation process is a
899	voluntary one. By agreeing to participate in presuit
900	mediation, you are not bound in any way to change your
901	position or to enter into any type of agreement.
902	Furthermore, the mediator has no authority to make any
903	decisions in this matter or to determine who is right
904	or wrong and merely acts as a facilitator to ensure
905	that each party understands the position of the other
906	party and that all reasonable settlement options are
907	fully explored. All mediation communications are
908	confidential under the Mediation Confidentiality and
909	Privilege Act pursuant to sections 44.401-44.406,
910	Florida Statutes, and a mediation participant may not
911	disclose a mediation communication to a person other
912	than a mediation participant or a participant's
913	counsel.
914
915	If an agreement is reached, it shall be reduced to
916	writing and becomes a binding and enforceable
917	commitment of the parties. A resolution of one or more
918	disputes in this fashion avoids the need to litigate
919	these issues in court. The failure to reach an
920	agreement, or the failure of a party to participate in
921	the process, results in the mediator's declaring an
922	impasse in the mediation, after which the aggrieved
923	party may proceed to court on all outstanding,
924	unsettled disputes.
925
926	The aggrieved party has selected and hereby lists
927	three certified mediators who we believe to be neutral
928	and qualified to mediate the dispute. You have the
929	right to select any one of these mediators. The fact
930	that one party may be familiar with one or more of the
931	listed mediators does not mean that the mediator
932	cannot act as a neutral and impartial facilitator. Any
933	mediator who cannot act in this capacity ethically
934	must decline to accept engagement. The mediators that
935	we suggest, and their current hourly rates, are as
936	follows:
937
938	(List the names, addresses, telephone numbers, and
939	hourly rates of the mediators. Other pertinent
940	information about the background of the mediators may
941	be included as an attachment.)
942
943	You may contact the offices of these mediators to
944	confirm that the listed mediators will be neutral and
945	will not show any favoritism toward either party. The
946	names of certified mediators may be found through the
947	office of the clerk of the circuit court for this
948	circuit.
949
950	If you agree to participate in the presuit mediation
951	process, the statute requires that each party is to
952	pay one-half of the costs and fees involved in the
953	presuit mediation process unless otherwise agreed by
954	all parties. An average mediation may require 3 to 4
955	hours of the mediator's time, including some
956	preparation time, and each party would need to pay
957	one-half of the mediator's fees as well as his or her
958	own attorney's fees if he or she chooses to employ an
959	attorney in connection with the mediation. However,
960	use of an attorney is not required and is at the
961	option of each party. The mediator may require the
962	advance payment of some or all of the anticipated
963	fees. The aggrieved party hereby agrees to pay or
964	prepay one-half of the mediator's estimated fees and
965	to forward this amount or such other reasonable
966	advance deposits as the mediator may require for this
967	purpose. Any funds deposited will be returned to you
968	if these are in excess of your share of the fees
969	incurred.
970
971	If you agree to participate in presuit mediation in
972	order to attempt to resolve the dispute and thereby
973	avoid further legal action, please sign below and
974	clearly indicate which mediator is acceptable to you.
975	We will then ask the mediator to schedule a mutually
976	convenient time and place for the mediation conference
977	to be held. The mediation conference must be held
978	within 90 days after the date of this letter unless
979	extended by mutual written agreement. In the event
980	that you fail to respond within 20 days after the date
981	of this letter, or if you fail to agree to at least
982	one of the mediators that we have suggested and to pay
983	or prepay to the mediator one-half of the costs
984	involved, the aggrieved party will be authorized to
985	proceed with the filing of a lawsuit against you
986	without further notice and may seek an award of
987	attorney's fees or costs incurred in attempting to
988	obtain mediation.
989
990	Should you wish, you may also elect to waive presuit
991	mediation so that this matter may proceed directly to
992	court.
993
994	Therefore, please give this matter your immediate
995	attention. By law, your response must be mailed by
996	certified mail, return receipt requested, with an
997	additional copy being sent by regular first-class mail
998	to the address shown on this offer.
999
1000	_____________________
1001	_____________________
1002
1003	RESPONDING PARTY: CHOOSE ONLY ONE OF THE TWO OPTIONS
1004	BELOW. YOUR SIGNATURE INDICATES YOUR AGREEMENT TO THAT
1005	CHOICE.
1006
1007	AGREEMENT TO MEDIATE
1008
1009	The undersigned hereby agrees to participate in
1010	presuit mediation and agrees to the following mediator
1011	or mediators as acceptable to mediate this dispute:
1012
1013	(List acceptable mediator or mediators.)
1014
1015	I/we further agree to pay or prepay one-half of the
1016	mediator's fees and to forward such advance deposits
1017	as the mediator may require for this purpose.
1018
1019	_______________________
1020	Signature of responding party #1
1021
1022	_______________________
1023	Signature of responding party #2 (if applicable)(if
1024	property is owned by more than one person, all owners
1025	must sign)
1026
1027	WAIVER OF MEDIATION
1028
1029	The undersigned hereby waives the right to participate
1030	in presuit mediation of the dispute listed above and
1031	agrees to allow the aggrieved party to proceed in
1032	court on such matters.
1033
1034	__________________________
1035	Signature of responding party #1
1036
1037	___________________________
1038	Signature of responding party #2 (if applicable)(if
1039	property is owned by more than one person, all owners
1040	must sign)
1041
1042	(b)  Service of the statutory offer to participate in
1043	presuit mediation shall be effected by sending a letter in
1044	substantial conformity with the above form by certified mail,
1045	return receipt requested, with an additional copy being sent by
1046	regular first-class mail, to the address of the responding party
1047	as it last appears on the books and records of the association.
1048	The responding party shall have 20 days from the date of the
1049	mailing of the statutory offer to serve a response to the
1050	aggrieved party in writing. The response shall be served by
1051	certified mail, return receipt requested, with an additional
1052	copy being sent by regular first-class mail, to the address
1053	shown on the statutory offer. In the alternative, the responding
1054	party may waive mediation in writing. Notwithstanding the
1055	foregoing, once the parties have agreed on a mediator, the
1056	mediator may reschedule the mediation for a date and time
1057	mutually convenient to the parties. The department shall conduct
1058	the proceedings through the use of department mediators or refer
1059	the disputes to private mediators who have been duly certified
1060	by the department as provided in paragraph (c). The parties
1061	shall share the costs of presuit mediation equally, including
1062	the fee charged by the mediator, if any, unless the parties
1063	agree otherwise, and the mediator may require advance payment of
1064	its reasonable fees and costs. The failure of any party to
1065	respond to a demand or response, to agree upon a mediator, to
1066	make payment of fees and costs within the time established by
1067	the mediator, or to appear for a scheduled mediation session
1068	shall operate as an impasse in the presuit mediation by such
1069	party, entitling the other party to proceed in court and to seek
1070	an award of the costs and fees associated with the mediation.
1071	Additionally, if any presuit mediation session cannot be
1072	scheduled and conducted within 90 days after the offer to
1073	participate in mediation was filed, an impasse shall be deemed
1074	to have occurred unless both parties agree to extend this
1075	deadline. If a department mediator is used, the department may
1076	charge such fee as is necessary to pay expenses of the
1077	mediation, including, but not limited to, the salary and
1078	benefits of the mediator and any travel expenses incurred. The
1079	petitioner shall initially file with the department upon filing
1080	the disputes, a filing fee of $200, which shall be used to
1081	defray the costs of the mediation. At the conclusion of the
1082	mediation, the department shall charge to the parties, to be
1083	shared equally unless otherwise agreed by the parties, such
1084	further fees as are necessary to fully reimburse the department
1085	for all expenses incurred in the mediation.
1086	(c)(b)  If presuit mediation as described in paragraph (a)
1087	is not successful in resolving all issues between the parties,
1088	the parties may file the unresolved dispute in a court of
1089	competent jurisdiction or elect to enter into binding or
1090	nonbinding arbitration pursuant to the procedures set forth in
1091	s. 718.1255 and rules adopted by the division, with the
1092	arbitration proceeding to be conducted by a department
1093	arbitrator or by a private arbitrator certified by the
1094	department. If all parties do not agree to arbitration
1095	proceedings following an unsuccessful presuit mediation, any
1096	party may file the dispute in court. A final order resulting
1097	from nonbinding arbitration is final and enforceable in the
1098	courts if a complaint for trial de novo is not filed in a court
1099	of competent jurisdiction within 30 days after entry of the
1100	order. As to any issue or dispute that is not resolved at
1101	presuit mediation, and as to any issue that is settled at
1102	presuit mediation but is thereafter subject to an action seeking
1103	enforcement of the mediation settlement, the prevailing party in
1104	any subsequent arbitration or litigation proceeding shall be
1105	entitled to seek recovery of all costs and attorney's fees
1106	incurred in the presuit mediation process.
1107	(d)(c)  The department shall develop a certification and
1108	training program for private mediators and private arbitrators
1109	which shall emphasize experience and expertise in the area of
1110	the operation of community associations. A mediator or
1111	arbitrator shall be certified to conduct mediation or
1112	arbitration under this section by the department only if he or
1113	she has been certified as a circuit court civil mediator or
1114	arbitrator, respectively, pursuant to the requirements
1115	established attended at least 20 hours of training in mediation
1116	or arbitration, as appropriate, and only if the applicant has
1117	mediated or arbitrated at least 10 disputes involving community
1118	associations within 5 years prior to the date of the
1119	application, or has mediated or arbitrated 10 disputes in any
1120	area within 5 years prior to the date of application and has
1121	completed 20 hours of training in community association
1122	disputes. In order to be certified by the department, any
1123	mediator must also be certified by the Florida Supreme Court.
1124	The department may conduct the training and certification
1125	program within the department or may contract with an outside
1126	vendor to perform the training or certification. The expenses of
1127	operating the training and certification and training program
1128	shall be paid by the moneys and filing fees generated by the
1129	arbitration of recall and election disputes and by the mediation
1130	of those disputes referred to in this subsection and by the
1131	training fees.
1132	(e)(d)  The presuit mediation procedures provided by this
1133	subsection may be used by a Florida corporation responsible for
1134	the operation of a community in which the voting members are
1135	parcel owners or their representatives, in which membership in
1136	the corporation is not a mandatory condition of parcel
1137	ownership, or which is not authorized to impose an assessment
1138	that may become a lien on the parcel.
1139	(3)  The department shall develop an education program to
1140	assist homeowners, associations, board members, and managers in
1141	understanding and increasing awareness of the operation of
1142	homeowners' associations pursuant to this chapter and in
1143	understanding the use of alternative dispute resolution
1144	techniques in resolving disputes between parcel owners and
1145	associations or between owners. Such education program may
1146	include the development of pamphlets and other written
1147	instructional guides, the holding of classes and meetings by
1148	department employees or outside vendors, as the department
1149	determines, and the creation and maintenance of a website
1150	containing instructional materials. The expenses of operating
1151	the education program shall be initially paid by the moneys and
1152	filing fees generated by the arbitration of recall and election
1153	disputes and by the mediation of those disputes referred to in
1154	this subsection.
1155	Section 17.  Except as otherwise expressly provided in this
1156	act, this act shall take effect July 1, 2007.

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