| 1 | A bill to be entitled |
| 2 | An act relating to the Home Court Advantage Pilot Program; |
| 3 | creating part IV of chapter 720, F.S.; creating s. |
| 4 | 720.501, F.S.; providing legislative intent; creating s. |
| 5 | 720.502, F.S.; providing definitions; creating s. 720.503, |
| 6 | F.S.; requiring the adoption of certain rules and |
| 7 | procedures by the Division of Florida Land Sales, |
| 8 | Condominiums, and Mobile Homes for the establishment of a |
| 9 | pilot nonbinding arbitration program in Hillsborough |
| 10 | County and Pinellas County; requiring the division to |
| 11 | submit a report to the President of the Senate, the |
| 12 | Speaker of the House of Representatives, and the minority |
| 13 | leader of each house of the Legislature regarding the |
| 14 | pilot program; creating s. 720.504, F.S.; providing for |
| 15 | jurisdiction; authorizing the filing of a dispute; |
| 16 | authorizing a parcel owner or homeowners' association to |
| 17 | commence a proceeding; creating s 720.505, F.S.; providing |
| 18 | procedures for the filing of a complaint; requiring a |
| 19 | filing fee; creating s. 720.506, F.S.; providing |
| 20 | qualifications for arbitrators; providing duties and |
| 21 | responsibilities of arbitrators during arbitration |
| 22 | proceedings; providing compensation for arbitrators; |
| 23 | creating s. 720.507, F.S.; providing proceedings for |
| 24 | appeal; providing a code of ethics for arbitrators; |
| 25 | authorizing the award of costs and attorney's fees; |
| 26 | providing for an additional award to a prevailing member |
| 27 | representing the member's responsibility for the pro rata |
| 28 | cost of the homeowners' association's costs of the |
| 29 | arbitration; providing an effective date. |
| 30 |
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| 31 | Be It Enacted by the Legislature of the State of Florida: |
| 32 |
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| 33 | Section 1. Part IV of chapter 720, Florida Statutes, |
| 34 | consisting of sections 720.501, 720.502, 720.503, 720.504, |
| 35 | 720.505, 720.506, and 720.507, is created and entitled "Home |
| 36 | Court Advantage Pilot Program." |
| 37 | Section 2. Section 720.501, Florida statutes, is created |
| 38 | to read: |
| 39 | 720.501 Legislative intent.--It is the intent of the |
| 40 | Legislature to establish the Home Court Advantage Pilot Program |
| 41 | as a pilot program in Hillsborough and Pinellas Counties for a |
| 42 | period of 2 years, commencing with petitions filed on or after |
| 43 | January 1, 2008, and before December 31, 2009. The purpose of |
| 44 | the Home Court Advantage Pilot Program is to establish an |
| 45 | inexpensive, expedient, and simplified court procedure as an |
| 46 | independent venue in which certain community associations and |
| 47 | parcel owners can informally resolve disputes relating to |
| 48 | covenants and restrictions without having to resort to |
| 49 | potentially time-consuming and expensive court litigation. The |
| 50 | Home Court Advantage Pilot Program shall consist of a mandatory, |
| 51 | nonbinding arbitration process as described in this part, and |
| 52 | the Home Court Advantage Pilot Program shall be implemented and |
| 53 | administered by the Department of Business and Professional |
| 54 | Regulation in cooperation with the chief judge of the Thirteenth |
| 55 | Judicial Circuit in Hillsborough County and the chief judge of |
| 56 | the Sixth Judicial Circuit in Pinellas County. |
| 57 | Section 3. Section 720.502, Florida Statutes, is created |
| 58 | to read: |
| 59 | 720.502 Definitions.--As used in this part, the term: |
| 60 | (1) "Homeowners' association" or "association" means a |
| 61 | homeowners' association within the meaning of this part and |
| 62 | includes only those community associations operating residential |
| 63 | communities partially or totally situated in Pinellas County or |
| 64 | in Hillsborough County. |
| 65 | (2) "Community" means the real property that is subject to |
| 66 | a declaration of covenants that is recorded in the county where |
| 67 | the property is located. |
| 68 | (3) "Dispute" means a disagreement between a homeowners' |
| 69 | association and a parcel owner concerning the validity or |
| 70 | enforcement of restrictions contained in the governing documents |
| 71 | of the community, including any declaration of restrictions and |
| 72 | covenants, deed restrictions, the articles of incorporation, and |
| 73 | bylaws of the association, or any rules governing the community, |
| 74 | which dispute arises in the Thirteenth Judicial Circuit or the |
| 75 | Sixth Judicial Circuit. The term also includes the failure of |
| 76 | the association or parcel owner to comply with the requirements |
| 77 | of this chapter, as applicable. |
| 78 | (4) "Parcel owner" means the record owner of legal title |
| 79 | to a parcel governed by an association. |
| 80 | (5) "Petitioner" means the party filing a petition |
| 81 | pursuant to the provisions of this part. |
| 82 | (6) "Respondent" means the party responding to a petition |
| 83 | filed pursuant to the provisions of this part. |
| 84 | (7) "Developer" means the entity creating the community |
| 85 | operated by the homeowners' association or any entity that |
| 86 | offers residential parcels for sale or lease in the ordinary |
| 87 | course of its business within that community. |
| 88 | Section 4. Section 720.503, Florida Statutes, is created |
| 89 | to read: |
| 90 | 720.503 Rules of procedure; report required.-- |
| 91 | (1) The rules and procedures for the operation of the Home |
| 92 | Court Advantage Pilot Program in Hillsborough County and |
| 93 | Pinellas County shall be those rules adopted by the Division of |
| 94 | Florida Land Sales, Condominiums, and Mobile Homes pursuant to |
| 95 | s. 718.1255 and such additional rules and procedures as shall be |
| 96 | provided by this part. |
| 97 | (2) In cooperation with the chief judge of the circuit, |
| 98 | the division shall provide for the use of courtroom facilities, |
| 99 | case management, and recordkeeping facilities for the operation |
| 100 | of the pilot program. |
| 101 | (3) The division shall direct a report to the President of |
| 102 | the Senate, the Speaker of the House of Representatives, and the |
| 103 | minority leader of each house of the Legislature within 60 days |
| 104 | following the pilot program. The report shall evaluate the |
| 105 | successes and the shortcomings of the pilot program, the |
| 106 | timeframe for the average proceeding, and shall make |
| 107 | recommendations concerning the pilot program's continuation, |
| 108 | expansion, elimination, or modification. |
| 109 | Section 5. Section 720.504, Florida Statutes, is created |
| 110 | to read: |
| 111 | 720.504 Jurisdiction.-- |
| 112 | (1) Subject to subsection (2), a dispute within the |
| 113 | jurisdiction of the Home Court Advantage Pilot Program includes |
| 114 | any dispute regarding the enforceability or validity of the |
| 115 | governing documents of the community, the reasonableness of any |
| 116 | action of the board of directors of the association involving |
| 117 | the governing documents, any dispute in which an association |
| 118 | seeks enforcement of the governing documents, and any dispute |
| 119 | alleging the failure of an association or parcel owner to comply |
| 120 | with the requirements of this chapter or the governing documents |
| 121 | of the community. |
| 122 | (2) Only disputes between an association and a parcel |
| 123 | owner are within the jurisdiction of the pilot program. Officers |
| 124 | or directors of the community association may not be parties in |
| 125 | these proceedings. Disputes involving tenants or guests of |
| 126 | parcel owners are subject to the provisions of this part if the |
| 127 | tenant is alleged to have violated the governing documents of |
| 128 | the community, except that eviction proceedings are exempt from |
| 129 | the jurisdiction of the pilot program. Disagreements relating to |
| 130 | the imposition, reasonableness, or collection of fines, |
| 131 | assessments, special assessments, or other fees owed by a parcel |
| 132 | owner, lien foreclosure actions, or disagreements regarding the |
| 133 | enforcement of a judgment are not subject to arbitration under |
| 134 | the pilot program. |
| 135 | (3) If a dispute described by this section is otherwise |
| 136 | subject to mandatory mediation or mandatory binding arbitration |
| 137 | as provided by s. 720.311 relating to homeowners' associations, |
| 138 | the dispute shall be filed pursuant to the provisions of this |
| 139 | part and is not required or permitted to be filed pursuant to |
| 140 | this chapter, as applicable. |
| 141 | (4) Regardless of whether this authority exists in the |
| 142 | governing documents, a parcel owner may commence a proceeding |
| 143 | under the provisions of this part against another parcel owner |
| 144 | or against the association for any violation of the documents or |
| 145 | controlling statute, and an association may also commence a |
| 146 | proceeding against a parcel owner, or the owner and her or his |
| 147 | tenant or occupant, for violations of the governing documents or |
| 148 | statute. |
| 149 | Section 6. Section 720.505, Florida Statutes, is created |
| 150 | to read: |
| 151 | 720.505 Procedure for mandatory filing; filing fee.-- |
| 152 | (1) Before filing a petition with the Division of Florida |
| 153 | Land Sales, Condominiums, and Mobile Homes, the petitioner shall |
| 154 | provide the intended respondent with a written demand |
| 155 | identifying the nature of the dispute, demanding the relief |
| 156 | sought, stating that, if the relief is not provided, the dispute |
| 157 | will be filed in the courts of that circuit, and providing the |
| 158 | respondent with a reasonable period of time within which to |
| 159 | provide the relief sought. The failure to provide advance |
| 160 | written notice shall result in the dismissal of the petition. |
| 161 | (2) Before filing a dispute with the circuit court, a |
| 162 | dispute within the jurisdiction of the pilot program must be |
| 163 | filed with the division. At the same time the petition is filed, |
| 164 | the petitioner shall provide a copy of the petition and |
| 165 | attachments to the respondent by United States certified mail. |
| 166 | The petition must be on a form adopted by the division, or must |
| 167 | be substantially similar to the form, and must include a copy of |
| 168 | the demand letter required by subsection (1). The petition must |
| 169 | include portions of the governing documents relied upon in the |
| 170 | petition. |
| 171 | (3) The division shall direct an order to the respondent |
| 172 | by United States certified mail which shall provide the |
| 173 | respondent 14 days in which to file an answer to the petition. |
| 174 | The answer must include any defenses that the respondent has to |
| 175 | the petition. If the respondent files a motion to dismiss the |
| 176 | petition, it must be accompanied by an answer and defenses in |
| 177 | order to promote the timely resolution of the dispute. The |
| 178 | answer may not include any claim that the respondent may have |
| 179 | against the petitioner, but may address only the dispute stated |
| 180 | in the petition. |
| 181 | (4) Any petition filed must include a filing fee in the |
| 182 | amount of $150, payable to the division. This fee is |
| 183 | nonrefundable. The filing fees shall be used by the division to |
| 184 | defray the costs of administering the pilot program. |
| 185 | (5) When a party filing a petition demonstrates to the |
| 186 | arbitrator at the time of the filing of the petition or |
| 187 | thereafter that the party is in need of and entitled to |
| 188 | immediate emergency injunctive relief, the arbitrator may abate |
| 189 | the proceeding and allow the party to file for a temporary |
| 190 | injunction in court. |
| 191 | Section 7. Section 720.506, Florida Statutes, is created |
| 192 | to read: |
| 193 | 720.506 Arbitrators.-- |
| 194 | (1) The Division of Florida Land Sales, Condominiums, and |
| 195 | Mobile Homes shall maintain a list of qualified arbitrators to |
| 196 | hear the disputes described by the provisions of this part. In |
| 197 | order to be qualified, the person seeking to act as a arbitrator |
| 198 | must be a member in good standing with The Florida Bar and must |
| 199 | have practiced law in the area of association disputes for at |
| 200 | least 5 years, or must be a member in good standing of The |
| 201 | Florida Bar who has passed the examination for community |
| 202 | association manager licensure under s. 468.433. The division |
| 203 | may, by rule, adopt additional requirements for qualification. |
| 204 | (2) An arbitrator shall be compensated as provided in |
| 205 | subsection (3) and is entitled to immunity as provided by s. |
| 206 | 44.107. An arbitrator serves at the pleasure of the director of |
| 207 | the division. |
| 208 | (3) An arbitrator shall be compensated at the rate of $150 |
| 209 | per hour but shall not receive more than $600 for any single |
| 210 | case. The total fees of the arbitrator shall appear in the final |
| 211 | order and shall be divided equally between the parties to the |
| 212 | dispute. Such fees shall be paid in full within 15 days after |
| 213 | receipt of the final order and shall become delinquent |
| 214 | thereafter. The arbitrator shall be entitled to recover |
| 215 | reasonable attorney's fees and costs incurred in the collection |
| 216 | of any delinquent sums. |
| 217 | Section 8. Section 720.507, Florida Statutes, is created |
| 218 | to read: |
| 219 | 720.507 Conduct of proceedings; appeals.-- |
| 220 | (1) An arbitrator may hear and decide the disputes filed |
| 221 | pursuant to the provisions of this part, but she or he may not |
| 222 | hold a person in contempt. An arbitrator may issue subpoenas to |
| 223 | compel the attendance and production of persons and documents at |
| 224 | the request of any party to the proceedings. The arbitrator |
| 225 | shall, unless waived by both parties to the dispute, conduct a |
| 226 | final hearing, if one is required, within 60 days after the |
| 227 | filing of the petition, and shall, within 14 days after the |
| 228 | final hearing, issue a final order. The final order is binding |
| 229 | on the parties, if a complaint for a trial de novo is not filed |
| 230 | in a court of competent jurisdiction within 30 days after |
| 231 | rendition of the final order, and may be enforced in the courts |
| 232 | of this state as provided in subsection (2). The final order of |
| 233 | the arbitrator is admissible in any appeal of the final order. |
| 234 | (2) A final order of the arbitrator which has not been |
| 235 | timely appealed may be enforced by filing a petition for |
| 236 | enforcement in circuit court. The prevailing party in an |
| 237 | enforcement action is entitled to reasonable costs and |
| 238 | attorney's fees. |
| 239 | (3) If no timely appeal has been filed in a case in which |
| 240 | a party who was ordered by final order of the arbitrator to take |
| 241 | some action or to refrain from taking some action does not |
| 242 | comply with the final order of the arbitrator within 30 days |
| 243 | after rendition of the final order, the arbitrator retains |
| 244 | jurisdiction upon the petition or request of a party to modify |
| 245 | the final order to require the party failing to comply with all |
| 246 | of the cost of the proceeding, including reasonable attorney's |
| 247 | fees. |
| 248 | (4) The arbitrator shall conduct these proceedings, |
| 249 | including the final hearing, in accordance with the rules of |
| 250 | procedure adopted by the Division of Florida Land Sales, |
| 251 | Condominiums, and Mobile Homes pursuant to s. 718.1255(4) and |
| 252 | the procedures established by this part. |
| 253 | (5) An arbitrator may grant all relief necessary for the |
| 254 | disposition of the dispute, including, but not limited to, |
| 255 | making a finding that a provision contained in the governing |
| 256 | documents is invalid and unenforceable; an order enforcing the |
| 257 | provisions of the governing documents and statute; an order |
| 258 | requiring an association or parcel owner, tenant, or guest to |
| 259 | comply with the governing documents or statute; or an order |
| 260 | finding that the association has selectively enforced its |
| 261 | governing documents. However, an arbitrator may not reform the |
| 262 | governing documents governing the community. |
| 263 | (6) In deciding a dispute, an arbitrator shall follow and |
| 264 | apply the applicable statute as well as controlling case law. |
| 265 | (7) An arbitrator is subject to the standards of |
| 266 | professional conduct contained in the Florida Rules for Court- |
| 267 | Appointed Arbitrators. An arbitrator may not preside over a |
| 268 | dispute involving a party currently represented by the |
| 269 | arbitrator, but may preside over a dispute involving a former |
| 270 | client when both parties, upon disclosure of the prior |
| 271 | representation, consent in writing. |
| 272 | (8) An arbitrator may, in the exercise of her or his |
| 273 | discretion, award reasonable prevailing party costs and |
| 274 | attorney's fees when an arbitrator has determined that the |
| 275 | conduct of a party has been unreasonable. |
| 276 | (9) A member prevailing in an action against the |
| 277 | association under this section may also be awarded additional |
| 278 | amounts as determined by the arbitrator to be necessary to |
| 279 | reimburse the member for her or his share of assessments levied |
| 280 | by the association to fund its expenses of the arbitration. This |
| 281 | relief shall not exclude other remedies provided by law. |
| 282 | Section 9. This act shall take effect October 1, 2007. |