HB 1185

1
A bill to be entitled
2An act relating to homeowners' associations; amending ss.
334.01 and 720.302, F.S.; conforming cross-references to
4changes made by the act; repealing s. 720.311, F.S., which
5provides for alternative dispute resolution of disputes
6between parcel owners and homeowners' associations;
7creating part IV within ch. 720, F.S.; providing for
8dispute resolution regarding disputes between parcel
9owners and homeowners' associations; providing legislative
10findings; requiring that a dispute between a homeowners'
11association and a parcel owner be subject to presuit
12mediation before it may be filed in court; providing that
13any such dispute not resolved by mediation is subject to
14arbitration before it may be filed in court; providing
15exceptions; identifying and limiting the scope of
16mediation and arbitration to specified categories of
17disputes; prohibiting such disputes from including the
18collection of any assessment, fine, or other financial
19obligation, or any action to enforce a prior mediation
20settlement agreement between the parties or a final order
21of an arbitrator or court; authorizing the filing of a
22motion for temporary injunctive relief without first
23complying with the requirement of mediation or arbitration
24for any dispute for which emergency relief is required;
25providing that election disputes and recall disputes are
26not eligible for presuit mediation; providing procedures
27for recall and election disputes; requiring that a
28petitioner remit a filing fee; providing for the recovery
29of fees, including attorney's fees, by the prevailing
30party at an arbitration proceeding; authorizing the
31Division of Florida Land Sales, Condominiums, and Mobile
32Homes in the Department of Business and Professional
33Regulation to adopt rules to administer mediation and
34arbitration provisions; providing that the service of a
35notice of presuit mediation or arbitration tolls the
36applicable statute of limitations; providing that such
37mediation and arbitration proceedings be conducted
38according to the Florida Rules of Civil Procedure;
39providing that such proceedings have the same level of
40privilege and confidentiality as court-ordered mediation;
41providing that an arbitrator or judge may not consider any
42information or evidence arising from the presuit mediation
43proceeding except in a proceeding to impose sanctions for
44failure to attend a presuit mediation session or to
45enforce a mediated settlement agreement; providing that
46counsel for the parties or a corporate representative
47designated by the association are the only nonparties to a
48dispute who may attend mediation or arbitration; providing
49that a mediation attended by a quorum of the board of an
50association is not a board meeting for purposes of notice
51and participation as prescribed by state law; requiring
52that a mediator be certified as a circuit court civil
53mediator pursuant to the requirements established by the
54Florida Supreme Court; requiring that an arbitrator meet
55the qualifications and training requirements provided by
56state law; providing that settlement agreements resulting
57from a presuit mediation or arbitration proceeding do not
58have precedential value in proceedings involving parties
59other than those participating in the mediation or
60arbitration; authorizing certain corporations to use the
61mediation procedures prescribed in the act; providing that
62presuit mediation and arbitration procedures do not apply
63to a dispute that has been previously arbitrated between
64the same parties; authorizing parties to a dispute to
65recover any costs and attorney's fees incurred in
66connection with such arbitration or mediation proceedings;
67providing procedures for the enforcement of an arbitration
68or mediation award; requiring that the division maintain a
69list of certified mediators and county and circuit court
70arbitrators in each county who are willing to mediate or
71arbitrate homeowners' association disputes; requiring that
72an aggrieved party serve a written notice of presuit
73mediation upon the respondent; providing a template for
74such written notice; requiring that such written notice
75substantially follow the template in form and content;
76specifying a procedure for service of such notice;
77requiring that the parties share the costs of mediation
78equally; authorizing a mediator to require advance payment
79of his or her fees; requiring a respondent to sign the
80notice and clearly indicate his or her availability for
81mediation, as well as which of the available mediators is
82acceptable; specifying procedures regarding the scheduling
83of mediation; requiring that the mediator notify the
84parties of the date, time, and place of mediation within a
85specified period; authorizing the petitioner to file a
86lawsuit against the respondent under certain
87circumstances; providing that certain actions or omissions
88by either party constitute failure or refusal to
89participate in mediation, entitling the other party to
90proceed to arbitration or to file suit in court;
91prohibiting a party that fails or refuses to participate
92in mediation from recovering attorney's fees and costs in
93subsequent litigation; providing that an impasse occurs if
94a mediation session cannot be scheduled within a specified
95period; providing an exception; providing procedures for
96presuit arbitration; requiring that an aggrieved party
97serve a written notice of presuit arbitration upon the
98respondent; providing a template for such written notice;
99requiring that such written notice substantially follow
100the template in form and content; specifying a procedure
101for service of such notice; requiring that the parties
102share the costs of arbitration equally; authorizing an
103arbitrator to require advance payment of his or her fees;
104requiring a respondent to sign the notice and clearly
105indicate his or her availability for arbitration, as well
106as which of the available arbitrators is acceptable;
107specifying procedures regarding the scheduling of
108arbitration; requiring that the arbitrator notify the
109parties of the date, time, and place of arbitration within
110a specified period; prohibiting an arbitrator from
111considering any unsuccessful mediation except to impose
112sanctions for failure to appear at a mediation conference;
113requiring an arbitrator to enter an order of dismissal if
114the parties do not agree to continue arbitration;
115authorizing the petitioner to file a lawsuit against the
116respondent under certain circumstances; authorizing an
117arbitrator to subpoena witnesses or the production of
118records at the request of any party; providing for the
119service of such subpoenas; requiring that an arbitrator
120issue a decision in writing; providing that such decision
121is final with respect to those disputes for which the
122parties have agreed to be bound; authorizing a party to
123file a motion for a trial de novo in a court of competent
124jurisdiction within a specified period; requiring that a
125prevailing party in an arbitration proceeding be awarded
126the costs of arbitration and reasonable attorney's fees in
127an amount determined by the arbitrator; requiring that the
128party filing a motion for a trial de novo be assessed the
129other party's arbitration costs, court costs, and other
130reasonable costs if the judgment upon a trial de novo is
131not more favorable than the arbitration decision;
132requiring that the party filing a complaint for a trial de
133novo be awarded reasonable court costs and attorney's fees
134if the judgment is more favorable upon a trial de novo;
135providing an effective date.
136
137Be It Enacted by the Legislature of the State of Florida:
138
139     Section 1.  Paragraph (d) of subsection (1) of section
14034.01, Florida Statutes, is amended to read:
141     34.01  Jurisdiction of county court.--
142     (1)  County courts shall have original jurisdiction:
143     (d)  Of disputes occurring in the homeowners' associations
144as described in part IV of chapter 720 s. 720.311(2)(a), which
145shall be concurrent with jurisdiction of the circuit courts.
146     Section 2.  Subsection (2) of section 720.302, Florida
147Statutes, is amended to read:
148     720.302  Purposes, scope, and application.--
149     (2)  The Legislature recognizes that it is not in the best
150interest of homeowners' associations or the individual
151association members thereof to create or impose a bureau or
152other agency of state government to regulate the affairs of
153homeowners' associations. However, in accordance with part IV of
154chapter 720 s. 720.311, the Legislature finds that homeowners'
155associations and their individual members will benefit from an
156expedited alternative process for resolution of election and
157recall disputes and presuit mediation of other disputes
158involving covenant enforcement and authorizes the department to
159hear, administer, and determine these disputes as more fully set
160forth in this chapter. Further, the Legislature recognizes that
161certain contract rights have been created for the benefit of
162homeowners' associations and members thereof before the
163effective date of this act and that ss. 720.301-720.407 are not
164intended to impair such contract rights, including, but not
165limited to, the rights of the developer to complete the
166community as initially contemplated.
167     Section 3.  Section 720.311, Florida Statutes, is repealed.
168     Section 4.  Part IV of chapter 720, Florida Statutes,
169consisting of sections 720.501, 720.502, 720.503, and 720.504,
170is created to read:
171     720.501  Legislative findings.--The Legislature finds that
172alternative dispute resolution has made progress in reducing
173court dockets and trials and in offering a more efficient, cost-
174effective option to litigation.
175     720.502  Applicability.--
176     (1)  Before a dispute between a homeowners' association and
177a parcel owner may be filed in court, the dispute is subject to
178presuit mediation pursuant to s. 720.503. Any dispute that is
179not resolved by the presuit mediation is subject to presuit
180arbitration pursuant to this part, unless a party fails to
181participate in presuit mediation as provided in s. 720.504 or
182all of the parties agree to waive presuit arbitration at any
183time before the arbitrator's final written decision.
184     (2)  Unless otherwise provided in this part, the mandatory
185mediation and arbitration provisions of this part are limited to
186disputes between a homeowners' association and a parcel owner
187regarding the use of or changes to the parcel or the common
188areas and other covenant enforcement disputes, disputes
189regarding amendments to the association documents, disputes
190regarding meetings of the board and committees appointed by the
191board, membership meetings not including election meetings, and
192access to the official records of the association.
193     (3)  Disputes involving the collection of any assessment,
194fine, or other financial obligation, including attorney's fees
195and costs, or any action to enforce a prior mediation settlement
196agreement between the parties or a final order of an arbitrator
197or court are not subject to presuit mediation or arbitration
198under this part.
199     (4)  In any dispute subject to presuit mediation or
200arbitration under this part for which emergency relief is
201required, a motion for temporary injunctive relief may be filed
202with the court without first complying with the presuit
203mediation and arbitration requirements of this part. After any
204issues regarding emergency or temporary relief are resolved, the
205court may refer the parties to a mediation program administered
206by the courts or require mediation or arbitration under this
207part.
208     (5)  Any recall dispute filed with the department pursuant
209to s. 720.303(10) shall be conducted by the department in
210accordance with the provisions of ss. 718.112(2)(j) and
211718.1255, and the rules adopted by the division. In addition,
212the department shall conduct mandatory arbitration of election
213disputes between a member and an association pursuant to s.
214718.1255 and rules adopted by the division. Election disputes
215and recall disputes are not eligible for presuit mediation;
216these disputes shall be arbitrated by the department. At the
217conclusion of the proceeding, the department shall charge the
218parties a fee in an amount adequate to cover all costs and
219expenses incurred by the department in conducting the
220proceeding. The petitioner shall remit an initial filing fee of
221at least $200 to the department. The fees paid to the department
222are a recoverable cost in the arbitration proceeding, and the
223prevailing party in an arbitration proceeding shall recover its
224reasonable costs and attorney's fees in an amount found
225reasonable by the arbitrator. The division may adopt rules under
226ss. 120.536(1) and 120.54 to administer this section.
227     (6)  The service of a notice of presuit mediation or
228arbitration tolls the applicable statute of limitations.
229     (7)  Presuit mediation and arbitration proceedings shall be
230conducted in accordance with the applicable Florida Rules of
231Civil Procedure. Such proceedings have the same level of
232privilege and confidentiality as court-ordered mediation. An
233arbitrator or judge may not consider any information or evidence
234arising from the presuit mediation proceeding except in a
235proceeding to impose sanctions for failure to attend a presuit
236mediation session or to enforce a mediated settlement agreement.
237Persons who are not parties to the dispute may not attend the
238presuit mediation conference without the consent of all parties,
239with the exceptions of counsel for the parties and a corporate
240representative designated by the association. When mediation is
241attended by a quorum of the board, such mediation is not a board
242meeting for purposes of notice and participation set forth in
243this chapter. A mediator is authorized to conduct mediation or
244arbitration under this section only if he or she has been
245certified as a circuit court civil mediator pursuant to the
246requirements established by the Florida Supreme Court. An
247arbitrator must meet the qualifications and training
248requirements adopted pursuant to s. 44.106. Settlement
249agreements resulting from a mediation or arbitration proceeding
250do not have precedential value in proceedings involving parties
251other than those participating in the mediation or arbitration.
252     (8)  The presuit mediation procedures provided in this part
253may be used by a Florida corporation responsible for the
254operation of a community in which the voting members are parcel
255owners or their representatives, in which membership in the
256corporation is not a mandatory condition of parcel ownership, or
257which is not authorized to impose an assessment that may become
258a lien on the parcel.
259     (9)  The presuit mediation and arbitration procedures
260provided in this part do not apply to a dispute that has been
261previously arbitrated between the same parties.
262     (10)  The parties may seek to recover any costs and
263attorney's fees incurred in connection with arbitration and
264mediation proceedings under this part as part of the costs and
265fees that may be recovered by the prevailing party in any
266subsequent litigation.
267     (11)  Any party to an arbitration proceeding may enforce an
268arbitration award by filing a petition in a court of competent
269jurisdiction in which the homeowners' association is located. A
270petition may not be granted unless the time for appeal by the
271filing of a motion for a trial de novo has expired. If a motion
272for a trial de novo has been filed, a petition may not be
273granted with respect to an arbitration award that has been
274stayed. If the petition for enforcement is granted, the
275petitioner shall be awarded reasonable attorney's fees and costs
276incurred in enforcing the arbitration award. A mediation
277settlement may also be enforced through the county or circuit
278court, as applicable, and any costs and fees incurred in the
279enforcement of a settlement agreement reached at mediation must
280be awarded to the prevailing party in any enforcement action.
281     (12)  To facilitate the mediation and arbitration of
282homeowners' association disputes, the division shall maintain a
283list of certified mediators and county and circuit court
284arbitrators in each county who are willing to mediate or
285arbitrate homeowners' association disputes.
286     720.503  Mandatory presuit mediation.--
287     (1)  Disputes between an association and a parcel owner
288must be the subject of a demand for presuit mediation before the
289dispute may be filed in court or submitted to arbitration
290pursuant to s. 720.504. An aggrieved party shall serve on the
291responding party a written notice of presuit mediation in
292substantially the following form:
293
294
STATUTORY NOTICE OF PRESUIT MEDIATION
295The alleged aggrieved party, ____________________, hereby
296demands that ____________________, as the responding party,
297engage in mandatory presuit mediation in connection with
298the following disputes, which by statute are of a type that
299are subject to presuit mediation:
300
301(List specific nature of the dispute or disputes to be
302mediated and the authority supporting a finding of a
303violation as to each dispute.)
304
305Pursuant to part IV of chapter 720, Florida Statutes, this
306demand to resolve the dispute through presuit mediation is
307required before a lawsuit can be filed concerning the
308dispute. Pursuant to the statute, the parties are required
309to engage in presuit mediation with a neutral third-party
310mediator in order to attempt to resolve this dispute
311without court action, and the aggrieved party demands that
312you likewise agree to this process. If you fail to
313participate in the mediation process, suit may be brought
314against you without further warning.
315
316The process of mediation involves a supervised negotiation
317process in which a trained, neutral third-party mediator
318meets with both parties and assists them in exploring
319possible opportunities for resolving part or all of the
320dispute. By agreeing to participate in presuit mediation,
321you are not bound in any way to change your position.
322Furthermore, the mediator has no authority to make any
323decisions in this matter or to determine who is right or
324wrong and merely acts as a facilitator to ensure that each
325party understands the position of the other party and that
326all options for reasonable settlement are fully explored.
327
328If an agreement is reached, it shall be reduced to writing
329and becomes a binding and enforceable commitment of the
330parties. A resolution of one or more disputes in this
331fashion avoids the need to litigate these issues in court.
332The failure to reach an agreement, or the failure of a
333party to participate in the process, results in the
334mediator declaring an impasse in the mediation, after which
335the aggrieved party may proceed to court on all outstanding
336unsettled disputes. If you have failed or refused to
337participate in the entire mediation process, you will not
338be entitled to recover attorney's fees, even if you
339prevail.
340
341The aggrieved party has selected and hereby lists three
342certified mediators who we believe to be neutral and
343qualified to mediate the dispute. You have the right to
344select any one of these mediators. You have the right to
345respond with a selection of one or more alternative
346mediators of your choice if the aggrieved party's selected
347mediators are not acceptable to you. The fact that one
348party may be familiar with one or more of the listed
349mediators does not mean that the mediator cannot act as a
350neutral and impartial facilitator. Any mediator who cannot
351act in this capacity is required ethically to decline to
352accept engagement. The mediators that we suggest, and their
353current hourly rates, are as follows:
354
355(List the names, addresses, telephone numbers, and hourly
356rates of the mediators. Other pertinent information about
357the background of the mediators may be included as an
358attachment.)
359
360You may contact the offices of these mediators to confirm
361that the listed mediators will be neutral and will not show
362any favoritism toward either party. The Florida Supreme
363Court can provide you a list of certified mediators.
364
365Unless otherwise agreed by the parties, part IV of chapter
366720, Florida Statutes, requires that the parties share the
367costs of presuit mediation equally, including the fee
368charged by the mediator. An average mediation may require 3
369to 4 hours of the mediator's time, including some
370preparation time, and the parties would need to share
371equally the mediator's fees as well as their own attorney's
372fees if they choose to employ an attorney in connection
373with the mediation. However, use of an attorney is not
374required and is at the option of each party. The mediators
375may require the advance payment of some or all of the
376anticipated fees. The aggrieved party hereby agrees to pay
377or prepay one-half of the mediator's estimated fees and to
378forward this amount or such other reasonable advance
379deposits as the mediator requires for this purpose. Any
380funds deposited will be returned to you if these are in
381excess of your share of the fees incurred.
382
383To begin your participation in presuit mediation to try to
384resolve the dispute and avoid further legal action, please
385sign below and clearly indicate which mediator is
386acceptable to you.
387
388YOU MUST RESPOND TO THIS STATUTORY NOTICE OF PRESUIT
389MEDIATION WITHIN 30 DAYS.
390
391YOU MUST ALSO PROVIDE A LISTING OF AT LEAST THREE DATES AND
392TIMES AT WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE
393MEDIATION AND THAT ARE WITHIN 90 DAYS AFTER THE DATE OF THE
394MAILING OF THIS STATUTORY NOTICE OF PRESUIT MEDIATION. WE
395WILL THEN ASK THE MEDIATOR TO SCHEDULE A MUTUALLY
396CONVENIENT TIME AND PLACE FOR THE MEDIATION CONFERENCE TO
397BE HELD. IF YOU DO NOT PROVIDE A LIST OF AVAILABLE DATES
398AND TIMES, THE MEDIATOR IS AUTHORIZED TO SCHEDULE A
399MEDIATION CONFERENCE WITHOUT TAKING YOUR SCHEDULE AND
400CONVENIENCE INTO CONSIDERATION. THE MEDIATION CONFERENCE
401MUST BE HELD WITHIN 60 DAYS AFTER THE SCHEDULED DATE,
402UNLESS EXTENDED BY MUTUAL WRITTEN AGREEMENT. IF YOU FAIL TO
403RESPOND WITHIN 20 DAYS FOLLOWING THE DATE OF THIS NOTICE,
404IF YOU FAIL TO PROVIDE THE MEDIATOR WITH DATES AND TIMES AT
405WHICH YOU ARE AVAILABLE FOR THE MEDIATION CONFERENCE, OR IF
406YOU FAIL TO AGREE TO AT LEAST ONE OF THE MEDIATORS THAT WE
407HAVE SUGGESTED, FAIL TO SUGGEST ALTERNATIVE MEDIATORS, OR
408FAIL TO PAY OR PREPAY TO THE MEDIATOR ONE-HALF OF THE COSTS
409INVOLVED, OR IF YOU FAIL TO APPEAR AND PARTICIPATE AT THE
410SCHEDULED MEDIATION, THE AGGRIEVED PARTY WILL BE AUTHORIZED
411TO PROCEED WITH THE FILING OF A LAWSUIT AGAINST YOU WITHOUT
412FURTHER NOTICE. IN THE SUBSEQUENT COURT ACTION, THE
413AGGRIEVED PARTY MAY SEEK AN AWARD OF ATTORNEY'S FEES OR
414COSTS INCURRED IN ATTEMPTING TO OBTAIN MEDIATION.
415
416THEREFORE, PLEASE GIVE THIS MATTER YOUR IMMEDIATE
417ATTENTION. BY LAW, YOUR RESPONSE MUST BE MAILED BY
418CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND BY FIRST-
419CLASS MAIL TO THE ADDRESS SHOWN ON THIS DEMAND.
420______________________________
421______________________________
422RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT
423TO THE ABOVE-LISTED PARAMETERS OF MEDIATION.
424
AGREEMENT TO MEDIATE
425The undersigned hereby agrees to participate in presuit
426mediation and agrees to attend a mediation conducted by the
427following mediator or mediators who is/are listed above as
428someone who would be acceptable to mediate this dispute:
429(List acceptable mediator or mediators.)
430
431The undersigned hereby represents that he or she is
432available to attend and participate in the presuit
433mediation at the following dates and times:
434(List available dates and times.)
435
436I/we further agree to pay or prepay one-half of the
437mediator's fees and to forward such advance deposits as the
438mediator may require for this purpose.
439______________________________
440Signature of responding party #1
441______________________________
442Telephone contact information
443______________________________
444Signature and telephone contact information of responding
445party #2 (if applicable)(if property is owned by more than
446one person, all owners must sign)
447
448     (2)(a)  The statutory notice of presuit mediation shall be
449served by sending a letter in substantial conformity with the
450above form by certified mail, return receipt requested, with an
451additional copy being sent by regular first-class mail, to the
452address of the responding party as it last appears on the books
453and records of the association. The responding party has 20 days
454following the date of the mailing of the statutory notice to
455serve a response to the aggrieved party in writing. The response
456shall be served by certified mail, return receipt requested,
457with an additional copy being sent by regular first-class mail,
458to the address shown on the statutory notice. Notwithstanding
459the foregoing, once the parties have agreed on a mediator, the
460mediator may reschedule the mediation for a date and time
461mutually convenient to the parties.
462     (b)  The parties shall share the costs of presuit mediation
463equally, including the fee charged by the mediator, if any,
464unless the parties agree otherwise, and the mediator may require
465advance payment of his or her reasonable fees and costs.
466     (c)  The party responding to the responding party must sign
467and clearly indicate which mediator is acceptable, and must
468provide a listing of dates and times within 90 days after the
469date of the mailing of the statutory notice of presuit mediation
470in which the responding party is available to participate in the
471mediation. The mediator must schedule the mediation conference
472at a mutually convenient time and place, but if the responding
473party does not provide a list of available dates and times, the
474mediator is authorized to schedule a mediation conference
475without taking the responding party's schedule and convenience
476into consideration. Within 21 days after the designation of the
477mediator, the mediator shall notify the parties in writing of
478the date, time, and place of the mediation conference. The
479mediation conference must be held within 60 days after the
480scheduled date, unless extended by mutual written agreement. If
481the responding party fails to respond within 20 days following
482the date of the statutory notice of presuit mediation, fails to
483agree to at least one of the mediators that have been suggested
484by the aggrieved party, fails to suggest alternative mediators,
485fails to pay or prepay to the mediator one-half of the costs
486involved, or fails to appear and participate at the scheduled
487mediation, the aggrieved party may proceed with the filing of a
488lawsuit against the respondent without further notice. In the
489subsequent court action, the aggrieved party may seek an award
490of attorney's fees or costs incurred in attempting to obtain
491mediation.
492     (d)  The failure of any party to respond to the statutory
493notice of presuit mediation within 30 days, to agree upon a
494mediator, to provide a listing of dates and times within 90 days
495after the date of the mailing of the statutory notice of presuit
496mediation in which the responding party is available to
497participate in the mediation, to make payment of fees and costs
498within the time established by the mediator, or to appear for a
499scheduled mediation session without the approval of the mediator
500constitutes failure or refusal to participate in the mediation
501process and operates as an impasse in the presuit mediation by
502such party, entitling the other party to proceed to arbitration
503under s. 720.504 or to file the dispute in court and to seek an
504award of the costs and fees associated with the mediation.
505Additionally, notwithstanding the provisions of any other law or
506document, persons who fail or refuse to participate in the
507entire mediation process may not recover attorney's fees and
508costs in subsequent arbitration or litigation relating to the
509dispute. If any presuit mediation session cannot be scheduled
510and conducted within 90 days after the offer to participate in
511mediation was filed, an impasse shall be deemed to have occurred
512unless both parties agree to extend the deadline.
513     720.504  Mandatory presuit arbitration.--
514     (1)  Disputes between an association and a parcel owner
515must be the subject of a presuit arbitration before the dispute
516can be filed in court. An aggrieved party shall serve on the
517responding party a written notice of presuit arbitration in
518substantially the following form:
519
520
STATUTORY NOTICE OF PRESUIT ARBITRATION
521The alleged aggrieved party, ____________________, hereby
522demands that ____________________, as the responding party,
523engage in mandatory presuit arbitration in connection with
524the following disputes, which by statute are of a type that
525are subject to presuit arbitration:
526
527(List specific nature of the dispute or disputes to be
528arbitrated and the authority supporting a finding of a
529violation as to each dispute.)
530
531Pursuant to part IV of chapter 720, Florida Statutes, this
532demand to resolve the dispute through presuit arbitration
533is required before a lawsuit can be filed concerning the
534dispute, and the parties are required to engage in presuit
535arbitration with a neutral third-party arbitrator in order
536to attempt to resolve this dispute without court action.
537The aggrieved party demands that you participate in this
538process. If you fail to participate in the arbitration
539process, suit may be brought against you without further
540warning.
541
542The process of arbitration involves a neutral third person,
543called an arbitrator, who considers the facts and arguments
544presented by the parties and renders a decision. PURSUANT
545TO SECTION 720.504, Florida Statutes, THE DECISION OF THE
546ARBITRATOR SHALL BE FINAL IF A COMPLAINT IS NOT FILED IN A
547COURT OF COMPETENT JURISDICTION IN WHICH THE HOMEOWNERS'
548ASSOCIATION IS LOCATED WITHIN 30 DAYS AFTER THE DATE THAT
549THE DECISION IS RENDERED.
550
551If a settlement agreement is reached before the arbitration
552decision, it shall be reduced to writing and become a
553binding and enforceable commitment of the parties. A
554resolution of one or more disputes in this fashion avoids
555the need to arbitrate these issues or to litigate these
556issues in court. The failure of a party to participate in
557the process results in the arbitrator declaring an impasse
558in the arbitration, after which the aggrieved party may
559proceed to court on all outstanding, unsettled disputes. If
560a party has failed or refused to participate in the entire
561arbitration process, that party will not be entitled to
562recover attorney's fees, even if the party prevails.
563
564The aggrieved party has selected and hereby lists three
565arbitrators who we believe to be neutral and qualified to
566arbitrate the dispute. You have the right to select any one
567of these arbitrators. You have the right to respond with a
568selection of one or more alternative arbitrators of your
569choice if the aggrieved party's selected arbitrators are
570not acceptable to you. The fact that one party may be
571familiar with one or more of the listed arbitrators does
572not mean that the arbitrator cannot act as a neutral and
573impartial arbitrator. Any arbitrator who cannot act in this
574capacity is required ethically to decline to accept
575engagement. The arbitrators that we suggest, and their
576current hourly rates, are as follows:
577
578(List the names, addresses, telephone numbers, and hourly
579rates of the mediators. Other pertinent information about
580the background of the mediators may be included as an
581attachment.)
582
583You may contact the offices of these arbitrators to confirm
584that the listed arbitrators will be neutral and will not
585show any favoritism toward either party.
586
587Unless otherwise agreed by the parties, part IV of chapter
588720, Florida Statutes, requires that the parties share the
589costs of presuit arbitration equally, including the fee
590charged by the arbitrator. An average arbitration may
591require 3 to 4 hours of the arbitrator's time, including
592some preparation time, and the parties would need to share
593equally the arbitrator's fees as well as their own
594attorney's fees if they choose to employ an attorney in
595connection with the arbitration. However, use of an
596attorney is not required and is at the option of each
597party. The arbitrators may require the advance payment of
598some or all of the anticipated fees. The aggrieved party
599hereby agrees to pay or prepay one-half of the arbitrator's
600estimated fees and to forward this amount or such other
601reasonable advance deposits as the mediator requires for
602this purpose. Any funds deposited will be returned to you
603if they exceed your share of the fees incurred.
604
605To begin your participation in presuit arbitration to try
606to resolve the dispute and avoid further legal action,
607please sign below and clearly indicate which arbitrator is
608acceptable to you.
609
610YOU MUST RESPOND TO THIS STATUTORY NOTICE OF PRESUIT
611ARBITRATION WITHIN 30 DAYS.
612
613YOU MUST ALSO PROVIDE A LISTING OF AT LEAST THREE DATES AND
614TIMES AT WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE
615ARBITRATION AND THAT ARE WITHIN 90 DAYS AFTER THE DATE OF
616THE MAILING OF THIS STATUTORY NOTICE OF PRESUIT
617ARBITRATION. WE WILL THEN ASK THE ARBITRATOR TO SCHEDULE A
618MUTUALLY CONVENIENT TIME AND PLACE FOR THE ARBITRATION
619CONFERENCE TO BE HELD. IF YOU DO NOT PROVIDE A LIST OF
620AVAILABLE DATES AND TIMES, THE ARBITRATOR IS AUTHORIZED TO
621SCHEDULE AN ARBITRATION CONFERENCE WITHOUT TAKING YOUR
622SCHEDULE AND CONVENIENCE INTO CONSIDERATION. THE
623ARBITRATION CONFERENCE MUST BE HELD WITHIN 60 DAYS AFTER
624THE SCHEDULED DATE, UNLESS EXTENDED BY MUTUAL WRITTEN
625AGREEMENT. IF YOU FAIL TO RESPOND WITHIN 20 DAYS FOLLOWING
626THE DATE OF THIS NOTICE, IF YOU FAIL TO PROVIDE THE
627ARBITRATOR WITH DATES AND TIMES AT WHICH YOU ARE AVAILABLE
628FOR THE ARBITRATION CONFERENCE, OR IF YOU FAIL TO AGREE TO
629AT LEAST ONE OF THE ARBITRATORS THAT WE HAVE SUGGESTED,
630FAIL TO SUGGEST ALTERNATIVE ARBITRATORS, OR FAIL TO PAY OR
631PREPAY TO THE ARBITRATOR ONE-HALF OF THE COSTS INVOLVED, OR
632IF YOU FAIL TO APPEAR AND PARTICIPATE AT THE SCHEDULED
633ARBITRATION, THE AGGRIEVED PARTY WILL BE AUTHORIZED TO
634PROCEED WITH THE FILING OF A LAWSUIT AGAINST YOU WITHOUT
635FURTHER NOTICE. IN THE SUBSEQUENT COURT ACTION, THE
636AGGRIEVED PARTY MAY SEEK AN AWARD OF ATTORNEY'S FEES OR
637COSTS INCURRED IN ATTEMPTING TO OBTAIN ARBITRATION.
638
639THEREFORE, PLEASE GIVE THIS MATTER YOUR IMMEDIATE
640ATTENTION. BY LAW, YOUR RESPONSE MUST BE MAILED BY
641CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AND BY FIRST-
642CLASS MAIL TO THE ADDRESS SHOWN ON THIS DEMAND.
643______________________________
644______________________________
645RESPONDING PARTY: YOUR SIGNATURE INDICATES YOUR AGREEMENT
646TO THE ABOVE-LISTED PARAMETERS OF ARBITRATION.
647
AGREEMENT TO ARBITRATE
648The undersigned hereby agrees to participate in presuit
649arbitration and agrees to attend an arbitration conducted
650by the following arbitrator or arbitrators who are listed
651above as someone who would be acceptable to arbitrate this
652dispute:
653
654(List acceptable arbitrator or arbitrators.)
655
656The undersigned hereby represents that he or she is
657available to attend and participate in the presuit
658arbitration at the following dates and times:
659
660(List available dates and times.)
661
662I/we further agree to pay or prepay one-half of the
663arbitrator's fees and to forward such advance deposits as
664the arbitrator may require for this purpose.
665______________________________
666Signature of responding party #1
667______________________________
668Telephone contact information
669______________________________
670Signature and telephone contact information of responding
671party #2 (if applicable)(if property is owned by more than
672one person, all owners must sign)
673
674     (2)(a)  The statutory notice of presuit arbitration shall
675be served by sending a letter in substantial conformity with the
676above form by certified mail, return receipt requested, with an
677additional copy being sent by regular first-class mail, to the
678address of the responding party as it last appears on the books
679and records of the association. The responding party has 20 days
680following the date of the mailing of the statutory notice to
681serve a response to the aggrieved party in writing. The response
682shall be served by certified mail, return receipt requested,
683with an additional copy being sent by regular first-class mail,
684to the address shown on the statutory notice. Notwithstanding
685the foregoing, once the parties have agreed on an arbitrator,
686the arbitrator may reschedule the arbitration for a date and
687time mutually convenient to the parties.
688     (b)  The parties shall share the costs of presuit
689arbitration equally, including the fee charged by the
690arbitrator, if any, unless the parties agree otherwise, and the
691arbitrator may require advance payment of his or her reasonable
692fees and costs.
693     (c)  The party responding to the responding party must sign
694and clearly indicate which arbitrator is acceptable, and must
695provide a listing of dates and times within 90 days after the
696date of the mailing of the statutory notice of presuit
697arbitration at which the responding party is available to
698participate in the arbitration. The arbitrator must schedule the
699arbitration conference at a mutually convenient time and place,
700but if the responding party does not provide a list of available
701dates and times, the arbitrator is authorized to schedule an
702arbitration conference without taking the responding party's
703schedule and convenience into consideration. Within 21 days
704after the designation of the arbitrator, the arbitrator shall
705notify the parties in writing of the date, time, and place of
706the arbitration conference. The arbitration conference must be
707held within 60 days after the scheduled date, unless extended by
708mutual written agreement. If the responding party fails to
709respond within 20 days following the date of statutory notice of
710presuit arbitration, fails to agree to at least one of the
711arbitrators that have been suggested by the aggrieved party,
712fails to suggest alternative arbitrators, fails to pay or prepay
713to the arbitrator one-half of the costs involved, or fails to
714appear and participate at the scheduled mediation, the aggrieved
715party may proceed with the filing of a lawsuit against the
716respondent without further notice. In the subsequent court
717action, the aggrieved party may seek an award of attorney's fees
718or costs incurred in attempting to obtain arbitration.
719     (d)  The failure of any party to respond to the statutory
720notice of presuit arbitration within 30 days, to agree upon an
721arbitrator, to provide a listing of dates and times that are
722within 90 days after the date of the mailing of the statutory
723notice of presuit arbitration at which the responding party is
724available to participate in the arbitration, to make payment of
725fees and costs within the time established by the arbitrator, or
726to appear for a arbitration session without the approval of the
727arbitrator constitutes failure or refusal to participate in the
728arbitration process and operates as an impasse in the presuit
729arbitration by such party, entitling the other party to proceed
730to file the dispute in court and to seek an award of the costs
731and fees associated with the arbitration. Additionally,
732notwithstanding the provisions of any other law or document,
733persons who fail or refuse to participate in the entire
734arbitration process may not recover attorney's fees and costs in
735subsequent litigation relating to the dispute. If any presuit
736arbitration session cannot be scheduled and conducted within 90
737days after the offer to participate in arbitration was filed, an
738impasse shall be deemed to have occurred unless both parties
739agree to extend this deadline.
740     (3)  In an arbitration proceeding, the arbitrator may not
741consider any unsuccessful mediation of the dispute except in a
742proceeding to impose sanctions for failure to appear at a
743mediation conference. If the parties do not agree to continue
744arbitration, the arbitrator shall enter an order of dismissal,
745and either party may institute a suit in a court of competent
746jurisdiction. Arbitration shall be conducted according to the
747Florida Rules of Civil Procedure.
748     (4)  At the request of any party to the arbitration, the
749arbitrator shall issue subpoenas for the attendance of witnesses
750and the production of books, records, documents, and other
751evidence, and any party on whose behalf a subpoena is issued may
752apply to the court for orders compelling such attendance and
753production. Subpoenas shall be served and are enforceable in the
754manner provided by the Florida Rules of Civil Procedure.
755Discovery may, at the discretion of the arbitrator, be permitted
756in the manner provided by the Florida Rules of Civil Procedure.
757     (5)  The arbitration decision shall be presented to the
758parties in writing. An arbitration decision is final in those
759disputes for which the parties have agreed to be bound. The
760arbitration decision is final if a motion for a trial de novo is
761not filed in a court of competent jurisdiction within 30 days
762after the date that the arbitrator's decision is rendered. The
763right to file for a trial de novo entitles the parties to file a
764motion in the appropriate trial court for a judicial resolution
765of the dispute. The prevailing party in an arbitration
766proceeding shall be awarded the costs of the arbitration and
767reasonable attorney's fees in an amount determined by the
768arbitrator. Such an award shall include the costs and reasonable
769attorney's fees incurred over the course of the arbitration
770proceeding as well as the costs and reasonable attorney's fees
771incurred in preparing for and attending any scheduled mediation.
772     (6)  The party filing a motion for a trial de novo shall be
773assessed the other party's arbitration costs, court costs, and
774other reasonable costs, including attorney's fees, investigation
775expenses, and expenses for expert or other testimony or evidence
776incurred after the arbitration hearing if the judgment upon the
777trial de novo is not more favorable than the arbitration
778decision. If the judgment is more favorable, the party filing a
779complaint for a trial de novo shall be awarded reasonable court
780costs and attorney's fees.
781     Section 5.  This act shall take effect July 1, 2008.


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