Florida Senate - 2008 COMMITTEE AMENDMENT

Bill No. CS for SB 2084

918032

CHAMBER ACTION

Senate

Comm: RCS

4/9/2008

House

The Committee on Community Affairs (Villalobos) recommended the

following amendment:

Senate Amendment (with title amendment)

Delete everything after the enacting clause

and insert:

Section 1. Section 468.431, Florida Statutes, is amended to

read:

468.431 Definitions.--As used in this part:

(1) "Community association" means a residential homeowners'

association in which membership is a condition of ownership of a

unit in a planned unit development, or of a lot for a home or a

mobile home, or of a townhouse, villa, condominium, cooperative,

or other residential unit which is part of a residential

development scheme and which is authorized to impose a fee which

may become a lien on the parcel.

(2) "Community association management" means any of the

following practices requiring substantial specialized knowledge,

judgment, and managerial skill when done for remuneration and

when the association or associations served contain more than 10

50 units or have an annual budget or budgets in excess of

$100,000: controlling or disbursing funds of a community

association, preparing budgets or other financial documents for a

community association, assisting in the noticing or conduct of

community association meetings, and coordinating maintenance for

the residential development and other day-to-day services

involved with the operation of a community association. A person

who performs clerical or ministerial functions under the direct

supervision and control of a licensed manager or who is charged

only with performing the maintenance of a community association

and who does not assist in any of the management services

described in this subsection is not required to be licensed under

this part.

(3) "Community association management firm" means a

corporation, limited liability company, partnership, trust,

association, sole proprietorship, or other similar organization

engaging in the business of community association management for

the purpose of providing any of the services described in

subsection (2).

(4)(3) "Community association manager" means a natural

person who is licensed pursuant to this part to perform community

association management services.

(5)(4) "Council" means the Regulatory Council of Community

Association Managers.

(6)(5) "Department" means the Department of Business and

Professional Regulation.

Section 2. Section 468.4315, Florida Statutes, is amended

to read:

468.4315 Regulatory Council of Community Association

Managers.--

(1) The Regulatory Council of Community Association

Managers is created within the department and shall consist of

seven members appointed by the Governor and confirmed by the

Senate.

(a) Five members of the council shall be licensed community

association managers, one of whom may shall be a community

association manager employed by a timeshare managing entity as

described in ss. 468.438 and 721.13, who have held an active

license for at least 5 years. The remaining two council members

shall be residents of this state, and must not be or ever have

been connected with the business of community association

management, and may not be prohibited from serving because the

member is or has been a resident or board member of a community

association.

(b) The Governor shall appoint members for terms of 4

years. Such members shall serve until their successors are

appointed. Members' service on the council shall begin upon

appointment and shall continue until their successors are

appointed.

(2) The council may adopt rules relating to the licensure

examination, continuing education requirements, continuing

education providers, fees, and professional practice standards to

assist the department in carrying out the duties and authorities

conferred upon the department by this part.

(3) To the extent the council is authorized to exercise

functions otherwise exercised by a board pursuant to chapter 455,

the provisions of chapter 455 and s. 20.165 relating to

regulatory boards shall apply, including, but not limited to,

provisions relating to board rules and the accountability and

liability of board members. All proceedings and actions of the

council are subject to the provisions of chapter 120. In

addition, the provisions of chapter 455 and s. 20.165 shall apply

to the department in carrying out the duties and authorities

conferred upon the department by this part.

(4) The council may establish a public education program

relating to professional community association management.

(5) Members of the council shall serve without

compensation, but are entitled to receive per diem and travel

expenses pursuant to s. 112.061 while carrying out business

approved by the council.

(6) The responsibilities of the council include, but are

not limited to:

(a) Receiving input regarding issues of concern with

respect to community association management and recommendations

for changes in applicable laws.

(b) Reviewing, evaluating, and advising the division

concerning revisions and adoption of rules affecting community

association management.

100

programs offered by the division.

101

Section 3. Section 468.432, Florida Statutes, is amended to

102

read:

103

468.432 Licensure of community association managers and

104

community association management firms; exceptions.--

105

(1) A person may shall not manage or hold herself or

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himself out to the public as being able to manage a community

107

association in this state unless she or he is licensed by the

108

department in accordance with the provisions of this part.

109

However, nothing in this part does not prohibit prohibits any

110

person licensed in this state under any other law or court rule

111

from engaging in the profession for which she or he is licensed.

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(2) As of January 1, 2009, a community association

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management firm or other similar organization responsible for the

114

management of more than 10 units or a budget of $100,000 or

115

greater may not engage or hold itself out to the public as being

116

able to engage in the business of community association

117

management in this state unless it is licensed by the department

118

as a community association management firm in accordance with the

119

provisions of this part.

120

(a) A community association management firm or other

121

similar organization desiring to be licensed as a community

122

association management firm shall apply to the department on a

123

form approved by the department together with the application and

124

licensure fees required by s. 468.435(1)(a) and (c). Each

125

community association management firm applying for licensure

126

under this subsection must be actively registered and authorized

127

to do business in this state.

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(b) Each applicant shall designate on its application a

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licensed community association manager who shall respond to all

130

inquires from and investigations by the department or division.

131

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shall notify the department within 30 days following any change

133

of information contained in the application upon which licensure

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is based.

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(d) Community association management firm licenses shall

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expire on September 30 of odd-numbered years and must be renewed

137

every 2 years. An application for renewal must be accompanied by

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the renewal fee as required by s. 468.435(1)(d).

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(e) The department shall license each applicant whom the

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department certifies as meeting the requirements of this

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subsection.

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(f) If the license of at least one individual active

143

community association manager member is not in force, the license

144

of the community association management firm or other similar

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organization is canceled automatically during that time.

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(g) Any community association management firm or other

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similar organization agrees by being licensed that it will employ

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only licensed persons in the direct provision of community

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association management services as described in s. 468.431(3).

150

(2) Nothing in this part prohibits a corporation,

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partnership, trust, association, or other like organization from

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engaging in the business of community association management

153

without being licensed if it employs licensed natural persons in

154

the direct provision of community association management

155

services. Such corporation, partnership, trust, association, or

156

other organization shall also file with the department a

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statement on a form approved by the department that it submits

158

itself to the rules of the council and the department and the

159

provisions of this part which the department deems applicable.

160

Section 4. Subsections (2) and (4) of section 468.433,

161

Florida Statutes, are amended to read:

162

468.433 Licensure by examination.--

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(2) The department shall examine each applicant who is at

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least 18 years of age, who has successfully completed all

165

prelicensure education requirements, and who the department

166

certifies is of good moral character.

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(a) Good moral character means a personal history of

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honesty, fairness, and respect for the rights of others and for

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the laws of this state and nation.

170

(b) The department may refuse to certify an applicant only

171

if:

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1. There is a substantial connection between the lack of

173

good moral character of the applicant and the professional

174

responsibilities of a community association manager; and

175

2. The finding by the department of lack of good moral

176

character is supported by clear and convincing evidence; and

177

3. The applicant is found to have provided management

178

services requiring licensure without the requisite license.

179

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license because of a lack of good moral character, the department

181

shall furnish the applicant a statement containing its findings,

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a complete record of the evidence upon which the determination

183

was based, and a notice of the rights of the applicant to a

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rehearing and appeal.

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(d) The council shall establish by rule the required amount

186

of prelicensure education, which shall consist of not more than

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24 hours of in-person instruction by a department-approved

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provider and which shall cover all areas of the examination

189

specified in subsection (3). Such instruction shall be completed

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within 12 months prior to the date of the examination.

191

Prelicensure education providers shall be considered continuing

192

education providers for purposes of establishing provider

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approval fees. A licensee shall not be required to comply with

194

the continuing education requirements of s. 468.4337 prior to the

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first license renewal. The department shall, by rule, set

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standards for exceptions to the requirement of in-person

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instruction in cases of hardship or disability.

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(4) The department shall issue a license to practice in

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this state as a community association manager to any qualified

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applicant who successfully completes the examination in

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accordance with this section and pays the appropriate fee.

202

Section 5. Section 468.436, Florida Statutes, is amended to

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read:

204

468.436 Disciplinary proceedings.--

205

(1) The department shall investigate complaints and

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allegations of a violation of this part or chapter 455, or any

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rule adopted thereunder, which is filed against a community

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association manager or firm or forwarded from other divisions

209

under the Department of Business and Professional Regulation.

210

After a complaint is received, the department shall conduct an

211

inquiry with due regard to the interests of the affected parties.

212

Within 30 days after the date on which a complaint is received,

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the department shall acknowledge the complaint in writing and

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notify the complainant whether or not the complaint is within the

215

jurisdiction of the department and whether or not additional

216

information is needed by the department from the complainant. The

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department shall conduct an investigation and shall, within 90

218

days after the date on which the original complaint is received

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or within 90 days after a timely request for additional

220

information, take action upon the complaint. However, the failure

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to complete the investigation within 90 days does not prevent the

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department from continuing the investigation, accepting or

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considering evidence obtained or received after 90 days, or

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taking administrative action if reasonable cause exists to

225

believe that a violation of this part, chapter 455, or a rule of

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the department has occurred. If an investigation is not completed

227

within the time limits established in this subsection, the

228

department shall, on a monthly basis, notify the complainant in

229

writing of the status of the investigation. When reporting its

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action to the complainant, the department shall inform the

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complainant of any right to a hearing pursuant to ss. 120.569 and

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120.57.

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(2)(1) The following acts constitute grounds for which the

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disciplinary actions in subsection (4) (3) may be taken:

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(a) Violation of any provision of s. 455.227(1).

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(b)1. Violation of any provision of this part.

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2. Violation of any lawful order or rule rendered or

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adopted by the department or the council.

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3. Being convicted of or pleading nolo contendere to a

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felony in any court in the United States.

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4. Obtaining a license or certification or any other order,

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ruling, or authorization by means of fraud, misrepresentation, or

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concealment of material facts.

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5. Committing acts of gross misconduct or gross negligence

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in connection with the profession.

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6. Contracting, on behalf of an association, with any

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entity in which the licensee has a financial interest that is not

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disclosed.

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(3)(2) The council shall specify by rule the acts or

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omissions that constitute a violation of subsection (2) (1).

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(4)(3) When the department finds any community association

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manager or firm guilty of any of the grounds set forth in

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subsection (2) (1), it may enter an order imposing one or more of

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the following penalties:

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(a) Denial of an application for licensure.

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(b) Revocation or suspension of a license.

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$5,000 for each count or separate offense.

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(d) Issuance of a reprimand.

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(e) Placement of the community association manager on

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probation for a period of time and subject to such conditions as

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the department specifies.

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(f) Restriction of the authorized scope of practice by the

264

community association manager.

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(5)(4) The department may shall reissue the license of a

266

disciplined community association manager or firm upon

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certification by the department that the disciplined person or

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firm has complied with all of the terms and conditions set forth

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in the final order.

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Section 6. Paragraph (d) is added to subsection (1) of

271

section 718.111, Florida Statutes, and subsections (12) and (13)

272

of that section are amended, to read:

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718.111 The association.--

274

(1) CORPORATE ENTITY.--

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(d) As required by s. 617.0830, an officer, director, or

276

agent shall discharge his or her duties in good faith, with the

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care an ordinarily prudent person in a like position would

278

exercise under similar circumstances, and in a manner he or she

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reasonably believes to be in the interests of the association.

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Regardless of any indemnification provision in the documents or

281

contract, an officer, director, or agent is liable for monetary

282

damages as provided in s. 617.0834 if such officer, director, or

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agent breached or failed to perform his or her duties and the

284

breach of, or failure to perform, his or her duties constitutes a

285

violation of state law as provided in s. 617.0834, a transaction

286

from which the officer or director derived an improper personal

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benefit, either directly or indirectly, or recklessness or an act

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or omission performed or omitted in bad faith, with malicious

289

purpose, or in a manner exhibiting wanton and willful disregard

290

of human rights, safety, or property.

291

(12) OFFICIAL RECORDS.--

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(a) From the inception of the association, the association

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shall maintain each of the following items, when applicable,

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which shall constitute the official records of the association:

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1. A copy of the plans, permits, warranties, and other

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items provided by the developer pursuant to s. 718.301(4).

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2. A photocopy of the recorded declaration of condominium

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of each condominium operated by the association and of each

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amendment to each declaration.

300

3. A photocopy of the recorded bylaws of the association

301

and of each amendment to the bylaws.

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4. A certified copy of the articles of incorporation of the

303

association, or other documents creating the association, and of

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each amendment thereto.

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5. A copy of the current rules of the association.

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6. A book or books which contain the minutes of all

307

meetings of the association, of the board of administration

308

directors, and of unit owners, which minutes shall be retained

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for a period of not less than 7 years.

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7. A current roster of all unit owners and their mailing

311

addresses, unit identifications, voting certifications, and, if

312

known, telephone numbers. The association shall also maintain the

313

electronic mailing addresses and the numbers designated by unit

314

owners for receiving notice sent by electronic transmission of

315

those unit owners consenting to receive notice by electronic

316

transmission. The electronic mailing addresses and numbers

317

provided by unit owners to receive notice by electronic

318

transmission shall be removed from association records when

319

consent to receive notice by electronic transmission is revoked.

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However, the association is not liable for an erroneous

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disclosure of the electronic mail address or the number for

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receiving electronic transmission of notices.

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8. All current insurance policies of the association and

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condominiums operated by the association.

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9. A current copy of any management agreement, lease, or

326

other contract to which the association is a party or under which

327

the association or the unit owners have an obligation or

328

responsibility.

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10. Bills of sale or transfer for all property owned by the

330

association.

331

11. Accounting records for the association and separate

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accounting records for each condominium which the association

333

operates. All accounting records shall be maintained for a period

334

of not less than 7 years. Any person who knowingly or

335

intentionally defaces or destroys accounting records required to

336

be maintained by this chapter, or who knowingly or intentionally

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fails to create or maintain accounting records required to be

338

maintained by this chapter, is personally subject to a civil

339

penalty pursuant to s. 718.501(1)(d). The accounting records

340

shall include, but are not limited to:

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a. Accurate, itemized, and detailed records of all receipts

342

and expenditures.

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b. A current account and a monthly, bimonthly, or quarterly

344

statement of the account for each unit designating the name of

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the unit owner, the due date and amount of each assessment, the

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amount paid upon the account, and the balance due.

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c. All audits, reviews, accounting statements, and

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financial reports of the association or condominium.

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d. All contracts for work to be performed. Bids for work to

350

be performed shall also be considered official records and shall

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be maintained by the association for a period of 1 year.

352

12. Ballots, sign-in sheets, voting proxies, and all other

353

papers relating to voting by unit owners, which shall be

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maintained for a period of 1 year from the date of the election,

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vote, or meeting to which the document relates, notwithstanding

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paragraph (b).

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13. All rental records, when the association is acting as

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agent for the rental of condominium units.

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14. A copy of the current question and answer sheet as

360

described by s. 718.504.

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15. All other records of the association not specifically

362

included in the foregoing which are related to the operation of

363

the association.

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16. A copy of the inspection report as described in s.

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718.301(4)(p).

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(b) The official records of the association shall be

367

maintained within the state for at least 7 years. The records of

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the association shall be made available to a unit owner within 45

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miles of the condominium property within 5 working days after

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receipt of written request by the board or its designee. However,

371

such distance requirement does not apply to an association

372

governing a timeshare condominium. This paragraph may be complied

373

with by having a copy of the official records of the association

374

available for inspection or copying on the condominium property

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or association property. The association may offer the option of

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making the records of the association available to a unit owner

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electronically via the Internet or by allowing the records to be

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viewed in electronic format on a computer screen and printed upon

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request.

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inspection by any association member or the authorized

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representative of such member at all reasonable times. The right

383

to inspect the records includes the right to make or obtain

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copies, at the reasonable expense, if any, of the association

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member. The association may adopt reasonable rules regarding the

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frequency, time, location, notice, and manner of record

387

inspections and copying. The failure of an association to provide

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the records within 10 working days after receipt of a written

389

request shall create a rebuttable presumption that the

390

association willfully failed to comply with this paragraph. A

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unit owner who is denied access to official records is entitled

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to the actual damages or minimum damages for the association's

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willful failure to comply with this paragraph. The minimum

394

damages shall be $50 per calendar day up to 10 days, the

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calculation to begin on the 11th working day after receipt of the

396

written request. The failure to permit inspection of the

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association records as provided herein entitles any person

398

prevailing in an enforcement action to recover reasonable

399

attorney's fees from the person in control of the records who,

400

directly or indirectly, knowingly denied access to the records

401

for inspection. Any person who knowingly or intentionally defaces

402

or destroys accounting records that are required by this chapter,

403

or knowingly or intentionally fails to create or maintain

404

accounting records that are required by this chapter, is

405

personally subject to a civil penalty pursuant to s.

406

718.501(1)(d). The association shall maintain an adequate number

407

of copies of the declaration, articles of incorporation, bylaws,

408

and rules, and all amendments to each of the foregoing, as well

409

as the question and answer sheet provided for in s. 718.504 and

410

year-end financial information required in this section on the

411

condominium property to ensure their availability to unit owners

412

and prospective purchasers, and may charge its actual costs for

413

preparing and furnishing these documents to those requesting the

414

same. Notwithstanding the provisions of this paragraph, the

415

following records shall not be accessible to unit owners:

416

1. Any record protected by the lawyer-client privilege as

417

described in s. 90.502; and any record protected by the work-

418

product privilege, including any record prepared by an

419

association attorney or prepared at the attorney's express

420

direction; which reflects a mental impression, conclusion,

421

litigation strategy, or legal theory of the attorney or the

422

association, and which was prepared exclusively for civil or

423

criminal litigation or for adversarial administrative

424

proceedings, or which was prepared in anticipation of imminent

425

civil or criminal litigation or imminent adversarial

426

administrative proceedings until the conclusion of the litigation

427

or adversarial administrative proceedings.

428

2. Information obtained by an association in connection

429

with the approval of the lease, sale, or other transfer of a

430

unit.

431

3. Medical records of unit owners.

432

4. Social security numbers, driver's license numbers,

433

credit card numbers, and other personal identifying information

434

of any person.

435

(d) The association shall prepare a question and answer

436

sheet as described in s. 718.504, and shall update it annually.

437

(e)1. The association or its authorized agent is not

438

required to provide a prospective purchaser or lienholder with

439

information about the condominium or the association other than

440

information or documents required by this chapter to be made

441

available or disclosed. The association or its authorized agent

442

may charge a reasonable fee to the prospective purchaser,

443

lienholder, or the current unit owner for providing good faith

444

responses to requests for information by or on behalf of a

445

prospective purchaser or lienholder, other than that required by

446

law, if the fee does not exceed $150 plus the reasonable cost of

447

photocopying and any attorney's fees incurred by the association

448

in connection with the response.

449

2. An association and its authorized agent are not liable

450

for providing such information in good faith pursuant to a

451

written request if the person providing the information includes

452

a written statement in substantially the following form: "The

453

responses herein are made in good faith and to the best of my

454

ability as to their accuracy."

455

(13) FINANCIAL REPORTING.--Within 90 days after the end of

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the fiscal year, or annually on a date provided in the bylaws,

457

the association shall prepare and complete, or contract for the

458

preparation and completion of, a financial report for the

459

preceding fiscal year. Within 21 days after the final financial

460

report is completed by the association or received from the third

461

party, but not later than 120 days after the end of the fiscal

462

year or other date as provided in the bylaws, the association

463

shall mail to each unit owner at the address last furnished to

464

the association by the unit owner, or hand deliver to each unit

465

owner, a copy of the financial report or a notice that a copy of

466

the financial report will be mailed or hand delivered to the unit

467

owner, without charge, upon receipt of a written request from the

468

unit owner. The division shall adopt rules setting forth uniform

469

accounting principles and standards to be used by all

470

associations and shall adopt rules addressing financial reporting

471

requirements for multicondominium associations. The rules shall

472

include, but need not be limited to, uniform accounting

473

principles and standards for stating the disclosure of at least a

474

summary of the reserves, including information as to whether such

475

reserves are being funded at a level sufficient to prevent the

476

need for a special assessment and, if not, the amount of

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assessments necessary to bring the reserves up to the level

478

necessary to avoid a special assessment. The person preparing the

479

financial reports is entitled to rely on an inspection report

480

prepared for or provided to the association to meet the fiscal

481

and fiduciary standards of this chapter. In adopting such rules,

482

the division shall consider the number of members and annual

483

revenues of an association. Financial reports shall be prepared

484

as follows:

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(a) An association that meets the criteria of this

486

paragraph shall prepare or cause to be prepared a complete set of

487

financial statements in accordance with generally accepted

488

accounting principles. The financial statements shall be based

489

upon the association's total annual revenues, as follows:

490

1. An association with total annual revenues of $100,000 or

491

more, but less than $200,000, shall prepare compiled financial

492

statements.

493

2. An association with total annual revenues of at least

494

$200,000, but less than $400,000, shall prepare reviewed

495

financial statements.

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3. An association with total annual revenues of $400,000 or

497

more shall prepare audited financial statements.

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(b)1. An association with total annual revenues of less

499

than $100,000 shall prepare a report of cash receipts and

500

expenditures.

501

2. An association which operates less than 50 units,

502

regardless of the association's annual revenues, shall prepare a

503

report of cash receipts and expenditures in lieu of financial

504

statements required by paragraph (a).

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3. A report of cash receipts and disbursements must

506

disclose the amount of receipts by accounts and receipt

507

classifications and the amount of expenses by accounts and

508

expense classifications, including, but not limited to, the

509

following, as applicable: costs for security, professional and

510

management fees and expenses, taxes, costs for recreation

511

facilities, expenses for refuse collection and utility services,

512

expenses for lawn care, costs for building maintenance and

513

repair, insurance costs, administration and salary expenses, and

514

reserves accumulated and expended for capital expenditures,

515

deferred maintenance, and any other category for which the

516

association maintains reserves.

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518

without a meeting of or approval by the unit owners:

519

1. Compiled, reviewed, or audited financial statements, if

520

the association is required to prepare a report of cash receipts

521

and expenditures;

522

2. Reviewed or audited financial statements, if the

523

association is required to prepare compiled financial statements;

524

525

3. Audited financial statements if the association is

526

required to prepare reviewed financial statements.

527

(d) If approved by a majority of the voting interests

528

present at a properly called meeting of the association, an

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association may prepare or cause to be prepared:

530

1. A report of cash receipts and expenditures in lieu of a

531

compiled, reviewed, or audited financial statement;

532

2. A report of cash receipts and expenditures or a compiled

533

financial statement in lieu of a reviewed or audited financial

534

statement; or

535

3. A report of cash receipts and expenditures, a compiled

536

financial statement, or a reviewed financial statement in lieu of

537

an audited financial statement.

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539

Such meeting and approval must occur prior to the end of the

540

fiscal year and is effective only for the fiscal year in which

541

the vote is taken. With respect to an association to which the

542

developer has not turned over control of the association, all

543

unit owners, including the developer, may vote on issues related

544

to the preparation of financial reports for the first 2 fiscal

545

years of the association's operation, beginning with the fiscal

546

year in which the declaration is recorded. Thereafter, all unit

547

owners except the developer may vote on such issues until control

548

is turned over to the association by the developer. Any audit or

549

review prepared under this section shall be paid for by the

550

developer if done before control of the association is turned

551

over. An association may not waive the financial reporting

552

requirements of this section for more than 2 consecutive years.

553

Section 7. Subsection (2) of section 718.112, Florida

554

Statutes, is amended to read:

555

718.112 Bylaws.--

556

(2) REQUIRED PROVISIONS.--The bylaws shall provide for the

557

following and, if they do not do so, shall be deemed to include

558

the following:

559

(a) Administration.--

560

1. The form of administration of the association shall be

561

described indicating the title of the officers and board of

562

administration and specifying the powers, duties, manner of

563

selection and removal, and compensation, if any, of officers and

564

boards. In the absence of such a provision, the board of

565

administration shall be composed of five members, except in the

566

case of a condominium which has five or fewer units, in which

567

case in a not-for-profit corporation the board shall consist of

568

not fewer than three members. In the absence of provisions to the

569

contrary in the bylaws, the board of administration shall have a

570

president, a secretary, and a treasurer, who shall perform the

571

duties of such officers customarily performed by officers of

572

corporations. Unless prohibited in the bylaws, the board of

573

administration may appoint other officers and grant them the

574

duties it deems appropriate. Unless otherwise provided in the

575

bylaws, the officers shall serve without compensation and at the

576

pleasure of the board of administration. Unless otherwise

577

provided in the bylaws, the members of the board shall serve

578

without compensation.

579

2. When a unit owner files a written inquiry by certified

580

mail with the board of administration, the board shall respond in

581

writing to the unit owner within 30 days of receipt of the

582

inquiry. The board's response shall either give a substantive

583

response to the inquirer, notify the inquirer that a legal

584

opinion has been requested, or notify the inquirer that advice

585

has been requested from the division. If the board requests

586

advice from the division, the board shall, within 10 days of its

587

receipt of the advice, provide in writing a substantive response

588

to the inquirer. If a legal opinion is requested, the board

589

shall, within 60 days after the receipt of the inquiry, provide

590

in writing a substantive response to the inquiry. The failure to

591

provide a substantive response to the inquiry as provided herein

592

precludes the board from recovering attorney's fees and costs in

593

any subsequent litigation, administrative proceeding, or

594

arbitration arising out of the inquiry. The association may

595

through its board of administration adopt reasonable rules and

596

regulations regarding the frequency and manner of responding to

597

unit owner inquiries, one of which may be that the association is

598

only obligated to respond to one written inquiry per unit in any

599

given 30-day period. In such a case, any additional inquiry or

600

inquiries must be responded to in the subsequent 30-day period,

601

or periods, as applicable.

602

(b) Quorum; voting requirements; proxies.--

603

1. Unless a lower number is provided in the bylaws, the

604

percentage of voting interests required to constitute a quorum at

605

a meeting of the members shall be a majority of the voting

606

interests. Unless otherwise provided in this chapter or in the

607

declaration, articles of incorporation, or bylaws, and except as

608

provided in subparagraph (d)3., decisions shall be made by owners

609

of a majority of the voting interests represented at a meeting at

610

which a quorum is present.

611

2. Except as specifically otherwise provided herein, after

612

January 1, 1992, unit owners may not vote by general proxy, but

613

may vote by limited proxies substantially conforming to a limited

614

proxy form adopted by the division. A voting interest or consent

615

right allocated to a unit owned by the association may not be

616

exercised or considered for any purpose, whether for a quorum, an

617

election, or otherwise. Limited proxies and general proxies may

618

be used to establish a quorum. Limited proxies shall be used for

619

votes taken to waive or reduce reserves in accordance with

620

subparagraph (f)2.; for votes taken to waive the financial

621

reporting requirements of s. 718.111(13); for votes taken to

622

amend the declaration pursuant to s. 718.110; for votes taken to

623

amend the articles of incorporation or bylaws pursuant to this

624

section; and for any other matter for which this chapter requires

625

or permits a vote of the unit owners. Except as provided in

626

paragraph (d), after January 1, 1992, no proxy, limited or

627

general, shall be used in the election of board members. General

628

proxies may be used for other matters for which limited proxies

629

are not required, and may also be used in voting for

630

nonsubstantive changes to items for which a limited proxy is

631

required and given. Notwithstanding the provisions of this

632

subparagraph, unit owners may vote in person at unit owner

633

meetings. Nothing contained herein shall limit the use of general

634

proxies or require the use of limited proxies for any agenda item

635

or election at any meeting of a timeshare condominium

636

association.

637

3. Any proxy given shall be effective only for the specific

638

meeting for which originally given and any lawfully adjourned

639

meetings thereof. In no event shall any proxy be valid for a

640

period longer than 90 days after the date of the first meeting

641

for which it was given. Every proxy is revocable at any time at

642

the pleasure of the unit owner executing it.

643

4. A member of the board of administration or a committee

644

may submit in writing his or her agreement or disagreement with

645

any action taken at a meeting that the member did not attend.

646

This agreement or disagreement may not be used as a vote for or

647

against the action taken and may not be used for the purposes of

648

creating a quorum.

649

5. When any of the board or committee members meet by

650

telephone conference, those board or committee members attending

651

by telephone conference may be counted toward obtaining a quorum

652

and may vote by telephone. A telephone speaker must be used so

653

that the conversation of those board or committee members

654

attending by telephone may be heard by the board or committee

655

members attending in person as well as by any unit owners present

656

at a meeting.

657

658

board of administration at which a quorum of the members is

659

present shall be open to all unit owners. Any unit owner may tape

660

record or videotape meetings of the board of administration. The

661

right to attend such meetings includes the right to speak at such

662

meetings with reference to all designated agenda items. The

663

division shall adopt reasonable rules governing the tape

664

recording and videotaping of the meeting. The association may

665

adopt written reasonable rules governing the frequency, duration,

666

and manner of unit owner statements. Adequate notice of all

667

meetings, which notice shall specifically incorporate an

668

identification of agenda items, shall be posted conspicuously on

669

the condominium property at least 48 continuous hours preceding

670

the meeting except in an emergency. If 20 percent of the voting

671

interests petition the board to address an item of business, the

672

board shall at its next regular board meeting or at a special

673

meeting of the board, but not later than 60 days after the

674

receipt of the petition, place the item on the agenda. Any item

675

not included on the notice may be taken up on an emergency basis

676

by at least a majority plus one of the members of the board. Such

677

emergency action shall be noticed and ratified at the next

678

regular meeting of the board. However, written notice of any

679

meeting at which nonemergency special assessments, or at which

680

amendment to rules regarding unit use, will be considered shall

681

be mailed, delivered, or electronically transmitted to the unit

682

owners and posted conspicuously on the condominium property not

683

less than 14 days prior to the meeting. Evidence of compliance

684

with this 14-day notice shall be made by an affidavit executed by

685

the person providing the notice and filed among the official

686

records of the association. Upon notice to the unit owners, the

687

board shall by duly adopted rule designate a specific location on

688

the condominium property or association property upon which all

689

notices of board meetings shall be posted. If there is no

690

condominium property or association property upon which notices

691

can be posted, notices of board meetings shall be mailed,

692

delivered, or electronically transmitted at least 14 days before

693

the meeting to the owner of each unit. In lieu of or in addition

694

to the physical posting of notice of any meeting of the board of

695

administration on the condominium property, the association may,

696

by reasonable rule, adopt a procedure for conspicuously posting

697

and repeatedly broadcasting the notice and the agenda on a

698

closed-circuit cable television system serving the condominium

699

association. However, if broadcast notice is used in lieu of a

700

notice posted physically on the condominium property, the notice

701

and agenda must be broadcast at least four times every broadcast

702

hour of each day that a posted notice is otherwise required under

703

this section. When broadcast notice is provided, the notice and

704

agenda must be broadcast in a manner and for a sufficient

705

continuous length of time so as to allow an average reader to

706

observe the notice and read and comprehend the entire content of

707

the notice and the agenda. Notice of any meeting in which regular

708

or special assessments against unit owners are to be considered

709

for any reason shall specifically state contain a statement that

710

assessments will be considered and the nature, estimated cost,

711

and description of the purposes for any such assessments.

712

Meetings of a committee to take final action on behalf of the

713

board or make recommendations to the board regarding the

714

association budget are subject to the provisions of this

715

paragraph. Meetings of a committee that does not take final

716

action on behalf of the board or make recommendations to the

717

board regarding the association budget are subject to the

718

provisions of this section, unless those meetings are exempted

719

from this section by the bylaws of the association.

720

Notwithstanding any other law, the requirement that board

721

meetings and committee meetings be open to the unit owners is

722

inapplicable to meetings between the board or a committee and the

723

association's attorney, with respect to proposed or pending

724

litigation, when the meeting is held for the purpose of seeking

725

or rendering legal advice.

726

(d) Unit owner meetings.--

727

1. There shall be an annual meeting of the unit owners held

728

at the location provided in the association bylaws and, if the

729

bylaws are silent as to the location, the meeting shall be held

730

within 45 miles of the condominium property. However, such

731

distance requirement does not apply to an association governing a

732

timeshare condominium. Unless the bylaws provide otherwise, a

733

vacancy on the board caused by the expiration of a director's

734

term shall be filled by electing a new board member, and the

735

election shall be by secret ballot; however, if the number of

736

vacancies equals or exceeds the number of candidates, no election

737

is required. If there is no provision in the bylaws for terms of

738

the members of the board, The terms of all members of the board

739

shall expire upon the election of their successors at the annual

740

meeting and such board members may stand for reelection. However,

741

if no person is interested in or demonstrates an intention to run

742

for the position of a board member whose term has expired

743

according to the provisions of this subparagraph, such board

744

member shall be automatically reappointed to the board of

745

administration and need not stand for reelection. In a

746

condominium association of more than 10 units, coowners of a unit

747

may not serve as members of the board of directors at the same

748

time. Any unit owner desiring to be a candidate for board

749

membership shall comply with subparagraph 3. A person who has

750

been suspended or removed by the division under this chapter, or

751

who is delinquent in the payment of any fee or assessment as

752

provided in paragraph (n), is not eligible for membership on the

753

board. A person who has been convicted of any felony in this

754

state or by any court of record in the a United States District

755

or Territorial Court, or who has been convicted of any offense in

756

another jurisdiction which would be considered a felony if

757

committed in this state, and who has not had his or her right to

758

vote restored pursuant to law in the jurisdiction of his or her

759

residence is not eligible for board membership unless such

760

felon's civil rights have been restored for a period of not less

761

than 5 years as of the date on which such person seeks election

762

to the board. The validity of an action by the board is not

763

affected if it is later determined that a member of the board is

764

ineligible for board membership due to having been convicted of a

765

felony.

766

2. The bylaws shall provide the method of calling meetings

767

of unit owners, including annual meetings. Written notice, which

768

notice must include an agenda, shall be mailed, hand delivered,

769

or electronically transmitted to each unit owner at least 14 days

770

prior to the annual meeting and shall be posted in a conspicuous

771

place on the condominium property at least 14 continuous days

772

preceding the annual meeting. Upon notice to the unit owners, the

773

board shall by duly adopted rule designate a specific location on

774

the condominium property or association property upon which all

775

notices of unit owner meetings shall be posted; however, if there

776

is no condominium property or association property upon which

777

notices can be posted, this requirement does not apply. In lieu

778

of or in addition to the physical posting of notice of any

779

meeting of the unit owners on the condominium property, the

780

association may, by reasonable rule, adopt a procedure for

781

conspicuously posting and repeatedly broadcasting the notice and

782

the agenda on a closed-circuit cable television system serving

783

the condominium association. However, if broadcast notice is used

784

in lieu of a notice posted physically on the condominium

785

property, the notice and agenda must be broadcast at least four

786

times every broadcast hour of each day that a posted notice is

787

otherwise required under this section. When broadcast notice is

788

provided, the notice and agenda must be broadcast in a manner and

789

for a sufficient continuous length of time so as to allow an

790

average reader to observe the notice and read and comprehend the

791

entire content of the notice and the agenda. Unless a unit owner

792

waives in writing the right to receive notice of the annual

793

meeting, such notice shall be hand delivered, mailed, or

794

electronically transmitted to each unit owner. Notice for

795

meetings and notice for all other purposes shall be mailed to

796

each unit owner at the address last furnished to the association

797

by the unit owner, or hand delivered to each unit owner. However,

798

if a unit is owned by more than one person, the association shall

799

provide notice, for meetings and all other purposes, to that one

800

address which the developer initially identifies for that purpose

801

and thereafter as one or more of the owners of the unit shall so

802

advise the association in writing, or if no address is given or

803

the owners of the unit do not agree, to the address provided on

804

the deed of record. An officer of the association, or the manager

805

or other person providing notice of the association meeting,

806

shall provide an affidavit or United States Postal Service

807

certificate of mailing, to be included in the official records of

808

the association affirming that the notice was mailed or hand

809

delivered, in accordance with this provision.

810

3. The members of the board shall be elected by written

811

ballot or voting machine. Proxies shall in no event be used in

812

electing the board, either in general elections or elections to

813

fill vacancies caused by recall, resignation, or otherwise,

814

unless otherwise provided in this chapter. Not less than 60 days

815

before a scheduled election, the association shall mail, deliver,

816

or electronically transmit, whether by separate association

817

mailing or included in another association mailing, delivery, or

818

transmission, including regularly published newsletters, to each

819

unit owner entitled to a vote, a first notice of the date of the

820

election along with a certification form provided by the division

821

attesting that he or she has read and understands, to the best of

822

his or her ability, the governing documents of the association

823

and the provisions of this chapter and any applicable rules. Any

824

unit owner or other eligible person desiring to be a candidate

825

for the board must give written notice to the association not

826

less than 40 days before a scheduled election. Together with the

827

written notice and agenda as set forth in subparagraph 2., the

828

association shall mail, deliver, or electronically transmit a

829

second notice of the election to all unit owners entitled to vote

830

therein, together with a ballot which shall list all candidates.

831

Upon request of a candidate, the association shall include an

832

information sheet, no larger than 81/2 inches by 11 inches, which

833

must be furnished by the candidate not less than 35 days before

834

the election, along with the signed certification form provided

835

for in this subparagraph, to be included with the mailing,

836

delivery, or transmission of the ballot, with the costs of

837

mailing, delivery, or electronic transmission and copying to be

838

borne by the association. The association is not liable for the

839

contents of the information sheets prepared by the candidates. In

840

order to reduce costs, the association may print or duplicate the

841

information sheets on both sides of the paper. The division shall

842

by rule establish voting procedures consistent with the

843

provisions contained herein, including rules establishing

844

procedures for giving notice by electronic transmission and rules

845

providing for the secrecy of ballots. Elections shall be decided

846

by a plurality of those ballots cast. There shall be no quorum

847

requirement; however, at least 20 percent of the eligible voters

848

must cast a ballot in order to have a valid election of members

849

of the board. No unit owner shall permit any other person to vote

850

his or her ballot, and any such ballots improperly cast shall be

851

deemed invalid, provided any unit owner who violates this

852

provision may be fined by the association in accordance with s.

853

718.303. A unit owner who needs assistance in casting the ballot

854

for the reasons stated in s. 101.051 may obtain assistance in

855

casting the ballot. The regular election shall occur on the date

856

of the annual meeting. The provisions of this subparagraph shall

857

not apply to timeshare condominium associations. Notwithstanding

858

the provisions of this subparagraph, an election is not required

859

unless more candidates file notices of intent to run or are

860

nominated than board vacancies exist.

861

4. Any approval by unit owners called for by this chapter

862

or the applicable declaration or bylaws, including, but not

863

limited to, the approval requirement in s. 718.111(8), shall be

864

made at a duly noticed meeting of unit owners and shall be

865

subject to all requirements of this chapter or the applicable

866

condominium documents relating to unit owner decisionmaking,

867

except that unit owners may take action by written agreement,

868

without meetings, on matters for which action by written

869

agreement without meetings is expressly allowed by the applicable

870

bylaws or declaration or any statute that provides for such

871

action.

872

5. Unit owners may waive notice of specific meetings if

873

allowed by the applicable bylaws or declaration or any statute.

874

If authorized by the bylaws, notice of meetings of the board of

875

administration, unit owner meetings, except unit owner meetings

876

called to recall board members under paragraph (j), and committee

877

meetings may be given by electronic transmission to unit owners

878

who consent to receive notice by electronic transmission.

879

6. Unit owners shall have the right to participate in

880

meetings of unit owners with reference to all designated agenda

881

items. However, the association may adopt reasonable rules

882

governing the frequency, duration, and manner of unit owner

883

participation.

884

7. Any unit owner may tape record or videotape a meeting of

885

the unit owners subject to reasonable rules adopted by the

886

division.

887

8. Unless otherwise provided in the bylaws, any vacancy

888

occurring on the board before the expiration of a term may be

889

filled by the affirmative vote of the majority of the remaining

890

directors, even if the remaining directors constitute less than a

891

quorum, or by the sole remaining director. In the alternative, a

892

board may hold an election to fill the vacancy, in which case the

893

election procedures must conform to the requirements of

894

subparagraph 3. unless the association governs 10 units or fewer

895

and has opted out of the statutory election process, in which

896

case the bylaws of the association control. Unless otherwise

897

provided in the bylaws, a board member appointed or elected under

898

this section shall fill the vacancy for the unexpired term of the

899

seat being filled. Filling vacancies created by recall is

900

governed by paragraph (j) and rules adopted by the division.

901

902

Notwithstanding subparagraphs (b)2. and (d)3., an association of

903

10 or fewer units may, by the affirmative vote of a majority of

904

the total voting interests, provide for different voting and

905

election procedures in its bylaws, which vote may be by a proxy

906

specifically delineating the different voting and election

907

procedures. The different voting and election procedures may

908

provide for elections to be conducted by limited or general

909

proxy.

910

(e) Budget meeting.--

911

1. Any meeting at which a proposed annual budget of an

912

association will be considered by the board or unit owners shall

913

be open to all unit owners. At least 14 days prior to such a

914

meeting, the board shall hand deliver to each unit owner, mail to

915

each unit owner at the address last furnished to the association

916

by the unit owner, or electronically transmit to the location

917

furnished by the unit owner for that purpose a notice of such

918

meeting and a copy of the proposed annual budget. An officer or

919

manager of the association, or other person providing notice of

920

such meeting, shall execute an affidavit evidencing compliance

921

with such notice requirement, and such affidavit shall be filed

922

among the official records of the association.

923

2.a. If a board adopts in any fiscal year an annual budget

924

which requires assessments against unit owners which exceed 115

925

percent of assessments for the preceding fiscal year, the board

926

shall conduct a special meeting of the unit owners to consider a

927

substitute budget if the board receives, within 21 days after

928

adoption of the annual budget, a written request for a special

929

meeting from at least 10 percent of all voting interests. The

930

special meeting shall be conducted within 60 days after adoption

931

of the annual budget. At least 14 days prior to such special

932

meeting, the board shall hand deliver to each unit owner, or mail

933

to each unit owner at the address last furnished to the

934

association, a notice of the meeting. An officer or manager of

935

the association, or other person providing notice of such meeting

936

shall execute an affidavit evidencing compliance with this notice

937

requirement, and such affidavit shall be filed among the official

938

records of the association. Unit owners may consider and adopt a

939

substitute budget at the special meeting. A substitute budget is

940

adopted if approved by a majority of all voting interests unless

941

the bylaws require adoption by a greater percentage of voting

942

interests. If there is not a quorum at the special meeting or a

943

substitute budget is not adopted, the annual budget previously

944

adopted by the board shall take effect as scheduled.

945

b. Any determination of whether assessments exceed 115

946

percent of assessments for the prior fiscal year shall exclude

947

any authorized provision for reasonable reserves for repair or

948

replacement of the condominium property, anticipated expenses of

949

the association which the board does not expect to be incurred on

950

a regular or annual basis, or assessments for betterments to the

951

condominium property.

952

c. If the developer controls the board, assessments shall

953

not exceed 115 percent of assessments for the prior fiscal year

954

unless approved by a majority of all voting interests.

955

(f) Annual budget.--

956

1. The proposed annual budget of estimated revenues and

957

common expenses shall be detailed and shall show the amounts

958

budgeted by accounts and expense classifications, including, if

959

applicable, but not limited to, those expenses listed in s.

960

718.504(21). A multicondominium association shall adopt a

961

separate budget of common expenses for each condominium the

962

association operates and shall adopt a separate budget of common

963

expenses for the association. In addition, if the association

964

maintains limited common elements with the cost to be shared only

965

by those entitled to use the limited common elements as provided

966

for in s. 718.113(1), the budget or a schedule attached thereto

967

shall show amounts budgeted therefor. If, after turnover of

968

control of the association to the unit owners, any of the

969

expenses listed in s. 718.504(21) are not applicable, they need

970

not be listed.

971

2. In addition to annual operating expenses, the budget

972

shall include reserve accounts for capital expenditures and

973

deferred maintenance. These accounts shall include, but are not

974

limited to, roof replacement, building painting, and pavement

975

resurfacing, regardless of the amount of deferred maintenance

976

expense or replacement cost, and for any other item for which the

977

deferred maintenance expense or replacement cost exceeds $10,000.

978

The amount to be reserved shall be computed by means of a formula

979

which is based upon estimated remaining useful life and estimated

980

replacement cost or deferred maintenance expense of each reserve

981

item. The association may adjust replacement reserve assessments

982

annually to take into account any changes in estimates or

983

extension of the useful life of a reserve item caused by deferred

984

maintenance. This subsection does not apply to an adopted budget

985

in which the members of an association have determined, by a

986

majority vote at a duly called meeting of the association, to

987

provide no reserves or less reserves than required by this

988

subsection. However, prior to turnover of control of an

989

association by a developer to unit owners other than a developer

990

pursuant to s. 718.301, the developer may vote to waive the

991

reserves or reduce the funding of reserves for the first 2 fiscal

992

years of the association's operation, beginning with the fiscal

993

year in which the initial declaration is recorded, after which

994

time reserves may be waived or reduced only upon the vote of a

995

majority of all nondeveloper voting interests voting in person or

996

by limited proxy at a duly called meeting of the association. If

997

a meeting of the unit owners has been called to determine whether

998

to waive or reduce the funding of reserves, and no such result is

999

achieved or a quorum is not attained, the reserves as included in

1000

the budget shall go into effect. After the turnover, the

1001

developer may vote its voting interest to waive or reduce the

1002

funding of reserves.

1003

3. Reserve funds and any interest accruing thereon shall

1004

remain in the reserve account or accounts, and shall be used only

1005

for authorized reserve expenditures unless their use for other

1006

purposes is approved in advance by a majority vote at a duly

1007

called meeting of the association. Prior to turnover of control

1008

of an association by a developer to unit owners other than the

1009

developer pursuant to s. 718.301, the developer-controlled

1010

association shall not vote to use reserves for purposes other

1011

than that for which they were intended without the approval of a

1012

majority of all nondeveloper voting interests, voting in person

1013

or by limited proxy at a duly called meeting of the association.

1014

4. The only voting interests which are eligible to vote on

1015

questions that involve waiving or reducing the funding of

1016

reserves, or using existing reserve funds for purposes other than

1017

purposes for which the reserves were intended, are the voting

1018

interests of the units subject to assessment to fund the reserves

1019

in question. Proxy questions relating to waiving or reducing the

1020

funding of reserves or using existing reserve funds for purposes

1021

other than purposes for which the reserves were intended must

1022

contain the following statement in capitalized, bold letters in a

1023

font size larger than any other used on the face of the proxy

1024

ballot: WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING

1025

ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER

1026

LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS

1027

REGARDING THOSE ITEMS.

1028

(g) Assessments.--The manner of collecting from the unit

1029

owners their shares of the common expenses shall be stated in the

1030

bylaws. Assessments shall be made against units not less

1031

frequently than quarterly in an amount which is not less than

1032

that required to provide funds in advance for payment of all of

1033

the anticipated current operating expenses and for all of the

1034

unpaid operating expenses previously incurred. Nothing in this

1035

paragraph shall preclude the right of an association to

1036

accelerate assessments of an owner delinquent in payment of

1037

common expenses. Accelerated assessments shall be due and payable

1038

on the date the claim of lien is filed. Such accelerated

1039

assessments shall include the amounts due for the remainder of

1040

the budget year in which the claim of lien was filed.

1041

(h) Amendment of bylaws.--

1042

1. The method by which the bylaws may be amended consistent

1043

with the provisions of this chapter shall be stated. If the

1044

bylaws fail to provide a method of amendment, the bylaws may be

1045

amended if the amendment is approved by the owners of not less

1046

than two-thirds of the voting interests.

1047

2. No bylaw shall be revised or amended by reference to its

1048

title or number only. Proposals to amend existing bylaws shall

1049

contain the full text of the bylaws to be amended; new words

1050

shall be inserted in the text underlined, and words to be deleted

1051

shall be lined through with hyphens. However, if the proposed

1052

change is so extensive that this procedure would hinder, rather

1053

than assist, the understanding of the proposed amendment, it is

1054

not necessary to use underlining and hyphens as indicators of

1055

words added or deleted, but, instead, a notation must be inserted

1056

immediately preceding the proposed amendment in substantially the

1057

following language: "Substantial rewording of bylaw. See bylaw

1058

_____ for present text."

1059

3. Nonmaterial errors or omissions in the bylaw process

1060

will not invalidate an otherwise properly promulgated amendment.

1061

(i) Transfer fees.--No charge shall be made by the

1062

association or any body thereof in connection with the sale,

1063

mortgage, lease, sublease, or other transfer of a unit unless the

1064

association is required to approve such transfer and a fee for

1065

such approval is provided for in the declaration, articles, or

1066

bylaws. Any such fee may be preset, but in no event may such fee

1067

exceed $100 per applicant other than husband/wife or

1068

parent/dependent child, which are considered one applicant.

1069

However, if the lease or sublease is a renewal of a lease or

1070

sublease with the same lessee or sublessee, no charge shall be

1071

made. The foregoing notwithstanding, an association may, if the

1072

authority to do so appears in the declaration or bylaws, require

1073

that a prospective lessee place a security deposit, in an amount

1074

not to exceed the equivalent of 1 month's rent, into an escrow

1075

account maintained by the association. The security deposit shall

1076

protect against damages to the common elements or association

1077

property. Payment of interest, claims against the deposit,

1078

refunds, and disputes under this paragraph shall be handled in

1079

the same fashion as provided in part II of chapter 83.

1080

(j) Recall of board members.--Subject to the provisions of

1081

s. 718.301, any member of the board of administration may be

1082

recalled and removed from office with or without cause by the

1083

vote or agreement in writing by a majority of all the voting

1084

interests. A special meeting of the unit owners to recall a

1085

member or members of the board of administration may be called by

1086

10 percent of the voting interests giving notice of the meeting

1087

as required for a meeting of unit owners, and the notice shall

1088

state the purpose of the meeting. Electronic transmission may not

1089

be used as a method of giving notice of a meeting called in whole

1090

or in part for this purpose.

1091

1. If the recall is approved by a majority of all voting

1092

interests by a vote at a meeting, the recall will be effective as

1093

provided herein. The board shall duly notice and hold a board

1094

meeting within 5 full business days of the adjournment of the

1095

unit owner meeting to recall one or more board members. At the

1096

meeting, the board shall either certify the recall, in which case

1097

such member or members shall be recalled effective immediately

1098

and shall turn over to the board within 5 full business days any

1099

and all records and property of the association in their

1100

possession, or shall proceed as set forth in subparagraph 3.

1101

2. If the proposed recall is by an agreement in writing by

1102

a majority of all voting interests, the agreement in writing or a

1103

copy thereof shall be served on the association by certified mail

1104

or by personal service in the manner authorized by chapter 48 and

1105

the Florida Rules of Civil Procedure. The board of administration

1106

shall duly notice and hold a meeting of the board within 5 full

1107

business days after receipt of the agreement in writing. At the

1108

meeting, the board shall either certify the written agreement to

1109

recall a member or members of the board, in which case such

1110

member or members shall be recalled effective immediately and

1111

shall turn over to the board within 5 full business days any and

1112

all records and property of the association in their possession,

1113

or proceed as described in subparagraph 3.

1114

3. If the board determines not to certify the written

1115

agreement to recall a member or members of the board, or does not

1116

certify the recall by a vote at a meeting, the board shall,

1117

within 5 full business days after the meeting, file with the

1118

division a petition for arbitration pursuant to the procedures in

1119

s. 718.1255. For the purposes of this section, the unit owners

1120

who voted at the meeting or who executed the agreement in writing

1121

shall constitute one party under the petition for arbitration. If

1122

the arbitrator certifies the recall as to any member or members

1123

of the board, the recall will be effective upon mailing of the

1124

final order of arbitration to the association. If the association

1125

fails to comply with the order of the arbitrator, the division

1126

may take action pursuant to s. 718.501. Any member or members so

1127

recalled shall deliver to the board any and all records of the

1128

association in their possession within 5 full business days of

1129

the effective date of the recall.

1130

4. If the board fails to duly notice and hold a board

1131

meeting within 5 full business days of service of an agreement in

1132

writing or within 5 full business days of the adjournment of the

1133

unit owner recall meeting, the recall shall be deemed effective

1134

and the board members so recalled shall immediately turn over to

1135

the board any and all records and property of the association.

1136

5. If a vacancy occurs on the board as a result of a recall

1137

or removal and less than a majority of the board members are

1138

removed, the vacancy may be filled by the affirmative vote of a

1139

majority of the remaining directors, notwithstanding any

1140

provision to the contrary contained in this subsection. If

1141

vacancies occur on the board as a result of a recall and a

1142

majority or more of the board members are removed, the vacancies

1143

shall be filled in accordance with procedural rules to be adopted

1144

by the division, which rules need not be consistent with this

1145

subsection. The rules must provide procedures governing the

1146

conduct of the recall election as well as the operation of the

1147

association during the period after a recall but prior to the

1148

recall election.

1149

(k) Arbitration.--There shall be a provision for mandatory

1150

nonbinding arbitration as provided for in s. 718.1255.

1151

(l) Certificate of compliance.--There shall be a provision

1152

that a certificate of compliance from a licensed electrical

1153

contractor or electrician may be accepted by the association's

1154

board as evidence of compliance of the condominium units with the

1155

applicable fire and life safety code. Notwithstanding the

1156

provisions of chapter 633 or of any other code, statute,

1157

ordinance, administrative rule, or regulation, or any

1158

interpretation of the foregoing, an association, condominium, or

1159

unit owner is not obligated to retrofit the common elements or

1160

units of a residential condominium with a fire sprinkler system

1161

or other engineered lifesafety system in a building that has been

1162

certified for occupancy by the applicable governmental entity, if

1163

the unit owners have voted to forego such retrofitting and

1164

engineered lifesafety system by the affirmative vote of two-

1165

thirds of all voting interests in the affected condominium.

1166

However, a condominium association may not vote to forego the

1167

retrofitting with a fire sprinkler system of common areas in a

1168

high-rise building. For purposes of this subsection, the term

1169

"high-rise building" means a building that is greater than 75

1170

feet in height where the building height is measured from the

1171

lowest level of fire department access to the floor of the

1172

highest occupiable story. For purposes of this subsection, the

1173

term "common areas" means any enclosed hallway, corridor, lobby,

1174

stairwell, or entryway. In no event shall the local authority

1175

having jurisdiction require completion of retrofitting of common

1176

areas with a sprinkler system before the end of 2014.

1177

1. A vote to forego retrofitting may be obtained by limited

1178

proxy or by a ballot personally cast at a duly called membership

1179

meeting, or by execution of a written consent by the member, and

1180

shall be effective upon the recording of a certificate attesting

1181

to such vote in the public records of the county where the

1182

condominium is located. The association shall mail, hand deliver,

1183

or electronically transmit to each unit owner written notice at

1184

least 14 days prior to such membership meeting in which the vote

1185

to forego retrofitting of the required fire sprinkler system is

1186

to take place. Within 30 days after the association's opt-out

1187

vote, notice of the results of the opt-out vote shall be mailed,

1188

hand delivered, or electronically transmitted to all unit owners.

1189

Evidence of compliance with this 30-day notice shall be made by

1190

an affidavit executed by the person providing the notice and

1191

filed among the official records of the association. After such

1192

notice is provided to each owner, a copy of such notice shall be

1193

provided by the current owner to a new owner prior to closing and

1194

shall be provided by a unit owner to a renter prior to signing a

1195

lease.

1196

2. As part of the information collected annually from

1197

condominiums, the division shall require condominium associations

1198

to report the membership vote and recording of a certificate

1199

under this subsection and, if retrofitting has been undertaken,

1200

the per-unit cost of such work. The division shall annually

1201

report to the Division of State Fire Marshal of the Department of

1202

Financial Services the number of condominiums that have elected

1203

to forego retrofitting.

1204

(m) Common elements; limited power to convey.--

1205

1. With respect to condominiums created on or after October

1206

1, 1994, the bylaws shall include a provision granting the

1207

association a limited power to convey a portion of the common

1208

elements to a condemning authority for the purpose of providing

1209

utility easements, right-of-way expansion, or other public

1210

purposes, whether negotiated or as a result of eminent domain

1211

proceedings.

1212

2. In any case where the bylaws are silent as to the

1213

association's power to convey common elements as described in

1214

subparagraph 1., the bylaws shall be deemed to include the

1215

provision described in subparagraph 1.

1216

(n) Director or officer delinquencies.--A director or

1217

officer who is more than 90 days delinquent in the payment of

1218

regular assessments shall be deemed to have abandoned the office,

1219

creating a vacancy in the office to be filled according to law.

1220

(o) Director and officer offenses.--A director or officer

1221

who is charged with a felony theft or embezzlement offense

1222

involving the association's funds or property shall be removed

1223

from office, creating a vacancy in the office to be filled

1224

according to applicable law. While a criminal charge is pending,

1225

a person may not be appointed or elected to a position as a

1226

director or officer. However, if the charges are resolved without

1227

a finding of guilt, the director of officer shall be reinstated

1228

for the remainder of his or her term of office, if any.

1229

Section 8. Section 718.1124, Florida Statutes, is amended

1230

to read:

1231

718.1124 Failure to fill vacancies on board of

1232

administration sufficient to constitute a quorum; appointment of

1233

receiver upon petition of unit owner.--

1234

(1) If an association fails to fill vacancies on the board

1235

of administration sufficient to constitute a quorum in accordance

1236

with the bylaws, any unit owner may give notice of his or her

1237

intent to apply to the circuit court within whose jurisdiction

1238

the condominium lies for the appointment of a receiver to manage

1239

the affairs of the association. The form of the notice shall be

1240

as follows:

1241

1242

NOTICE OF INTENT TO APPLY FOR RECEIVERSHIP

1243

1244

YOU ARE HEREBY NOTIFIED that the undersigned owner of a

1245

condominium unit in (name of condominium) intends to

1246

file a petition in the circuit court for appointment of

1247

a receiver to manage the affairs of the association on

1248

the grounds that the association has failed to fill

1249

vacancies on the board of administration sufficient to

1250

constitute a quorum. This petition will not be filed if

1251

the vacancies are filled within 30 days after the date

1252

on which this notice was sent or posted, whichever is

1253

later. If a receiver is appointed, the receiver shall

1254

have all of the powers of the board and shall be

1255

entitled to receive a salary and reimbursement of all

1256

costs and attorney's fees payable from association

1257

funds.

1258

1259

(name and address of petitioning unit owner)

1260

1261

(2) The notice required by subsection (1) must be provided

1262

by At least 30 days prior to applying to the circuit court, the

1263

unit owner shall mail to the association by certified mail or

1264

personal delivery, must be posted and post in a conspicuous place

1265

on the condominium property, and must be provided to every unit

1266

owner of the association by certified mail or personal delivery.

1267

The a notice must be posted and mailed or delivered at least 30

1268

days before the filing of a petition seeking receivership. Notice

1269

by mail to a unit owner shall be sent to the address used by the

1270

county property appraiser for notice to the unit owner describing

1271

the intended action, giving the association the opportunity to

1272

fill the vacancies.

1273

(3) If during such time the association fails to fill the

1274

vacancies within 30 days after the notice required by subsection

1275

(1) is posted and mailed or delivered, the unit owner may proceed

1276

with the petition.

1277

(4) If a receiver is appointed, all unit owners shall be

1278

given written notice of such appointment as provided in s.

1279

718.127.

1280

(5) The association shall be responsible for the salary of

1281

the receiver, court costs, and attorney's fees. The receiver

1282

shall have all powers and duties of a duly constituted board of

1283

administration and shall serve until the association fills

1284

vacancies on the board sufficient to constitute a quorum and the

1285

court relieves the receiver of the appointment.

1286

Section 9. Section 718.113, Florida Statutes, is amended to

1287

read:

1288

718.113 Maintenance; limitation upon improvement; display

1289

of flag; hurricane shutters; display of religious decorations.--

1290

(1) Maintenance of the common elements is the

1291

responsibility of the association. The declaration may provide

1292

that certain limited common elements shall be maintained by those

1293

entitled to use the limited common elements or that the

1294

association shall provide the maintenance, either as a common

1295

expense or with the cost shared only by those entitled to use the

1296

limited common elements. If the maintenance is to be by the

1297

association at the expense of only those entitled to use the

1298

limited common elements, the declaration shall describe in detail

1299

the method of apportioning such costs among those entitled to use

1300

the limited common elements, and the association may use the

1301

provisions of s. 718.116 to enforce payment of the shares of such

1302

costs by the unit owners entitled to use the limited common

1303

elements.

1304

(2)(a) Except as otherwise provided in this section, there

1305

shall be no material alteration or substantial additions to the

1306

common elements or to real property which is association

1307

property, except in a manner provided in the declaration as

1308

originally recorded or as amended under the procedures provided

1309

therein. If the declaration as originally recorded or as amended

1310

under the procedures provided therein does not specify the

1311

procedure for approval of material alterations or substantial

1312

additions, 75 percent of the total voting interests of the

1313

association must approve the alterations or additions. This

1314

paragraph is intended to clarify existing law and applies to

1315

associations existing on October 1, 2008.

1316

(b) There shall not be any material alteration of, or

1317

substantial addition to, the common elements of any condominium

1318

operated by a multicondominium association unless approved in the

1319

manner provided in the declaration of the affected condominium or

1320

condominiums as originally recorded or as amended under the

1321

procedures provided therein. If a declaration as originally

1322

recorded or as amended under the procedures provided therein does

1323

not specify a procedure for approving such an alteration or

1324

addition, the approval of 75 percent of the total voting

1325

interests of each affected condominium is required. This

1326

subsection does not prohibit a provision in any declaration,

1327

articles of incorporation, or bylaws as originally recorded or as

1328

amended under the procedures provided therein requiring the

1329

approval of unit owners in any condominium operated by the same

1330

association or requiring board approval before a material

1331

alteration or substantial addition to the common elements is

1332

permitted. This paragraph is intended to clarify existing law and

1333

applies to associations existing on the effective date of this

1334

act.

1335

1336

substantial addition made to association real property operated

1337

by a multicondominium association, except as provided in the

1338

declaration, articles of incorporation, or bylaws as originally

1339

recorded or as amended under the procedures provided therein. If

1340

the declaration, articles of incorporation, or bylaws as

1341

originally recorded or as amended under the procedures provided

1342

therein do not specify the procedure for approving an alteration

1343

or addition to association real property, the approval of 75

1344

percent of the total voting interests of the association is

1345

required. This paragraph is intended to clarify existing law and

1346

applies to associations existing on the effective date of this

1347

act.

1348

(3) A unit owner shall not do anything within his or her

1349

unit or on the common elements which would adversely affect the

1350

safety or soundness of the common elements or any portion of the

1351

association property or condominium property which is to be

1352

maintained by the association.

1353

(4) Any unit owner may display one portable, removable

1354

United States flag in a respectful way and, on Armed Forces Day,

1355

Memorial Day, Flag Day, Independence Day, and Veterans Day, may

1356

display in a respectful way portable, removable official flags,

1357

not larger than 4 1/2 feet by 6 feet, that represent the United

1358

States Army, Navy, Air Force, Marine Corps, or Coast Guard,

1359

regardless of any declaration rules or requirements dealing with

1360

flags or decorations.

1361

(5) Each board of administration shall adopt hurricane

1362

shutter specifications for each building within each condominium

1363

operated by the association which shall include color, style, and

1364

other factors deemed relevant by the board. All specifications

1365

adopted by the board shall comply with the applicable building

1366

code. Notwithstanding any provision to the contrary in the

1367

condominium documents, if approval is required by the documents,

1368

a board shall not refuse to approve the installation or

1369

replacement of hurricane shutters conforming to the

1370

specifications adopted by the board. The board may, subject to

1371

the provisions of s. 718.3026, and the approval of a majority of

1372

voting interests of the condominium, install hurricane shutters

1373

or hurricane protection complying with or exceeding the

1374

applicable building code, or both, and may maintain, repair, or

1375

replace such approved hurricane shutters, whether on or within

1376

common elements, limited common elements, units, or association

1377

property. However, where hurricane protection that complies with

1378

or exceeds the applicable building code or laminated glass or

1379

window film architecturally designed to function as hurricane

1380

protection which complies with the applicable building code has

1381

been installed, the board may not install hurricane shutters. The

1382

board may operate shutters installed pursuant to this subsection

1383

without permission of the unit owners only where such operation

1384

is necessary to preserve and protect the condominium property and

1385

association property. The installation, replacement, operation,

1386

repair, and maintenance of such shutters in accordance with the

1387

procedures set forth herein shall not be deemed a material

1388

alteration to the common elements or association property within

1389

the meaning of this section.

1390

(6) As to any condominium building greater than three

1391

stories in height, at least every 5 years, and within 5 years if

1392

not available for inspection on October 1, 2008, the board shall

1393

have the condominium building inspected to provide a report under

1394

seal of an architect or engineer authorized to practice in this

1395

state attesting to required maintenance, useful life, and

1396

replacement costs of the elements.

1397

(7) An association may not refuse the request of a unit

1398

owner for a reasonable accommodation for the attachment on the

1399

mantle or frame of the door of the unit owner a religious object

1400

not to exceed 3 inches wide, 6 inches high, and 1.5 inches deep.

1401

Section 10. Paragraph (a) of subsection (7) of section

1402

718.117, Florida Statutes, is amended to read:

1403

718.117 Termination of condominium.--

1404

(7) NATURAL DISASTERS.--

1405

(a) If, after a natural disaster, the identity of the

1406

directors or their right to hold office is in doubt, if they are

1407

deceased or unable to act, if they fail or refuse to act, or if

1408

they cannot be located, any interested person may petition the

1409

circuit court to determine the identity of the directors or, if

1410

found to be in the best interests of the unit owners, to appoint

1411

a receiver to conclude the affairs of the association after a

1412

hearing following notice to such persons as the court directs.

1413

Lienholders shall be given notice of the petition and have the

1414

right to propose persons for the consideration by the court as

1415

receiver. If a receiver is appointed, the court shall direct the

1416

receiver to provide to all unit owners written notice of his or

1417

her appointment as receiver. Such notice shall be mailed or

1418

delivered within 10 days after the appointment. Notice by mail to

1419

a unit owner shall be sent to the address used by the county

1420

property appraiser for notice to the unit owner.

1421

Section 11. Subsection (4) is added to section 718.121,

1422

Florida Statutes, to read:

1423

718.121 Liens.--

1424

(4) Except as otherwise provided in this chapter, a lien

1425

may not be filed by the association against a condominium unit

1426

until 30 days after the date on which a notice of intent to file

1427

a lien has been delivered to the owner by certified mail, return

1428

receipt requested, and by first-class United States mail to the

1429

owner at his or her last known address as reflected in the

1430

records of the association. However, if the address reflected in

1431

the records is outside the United States, the notice must be sent

1432

by first-class United States mail to the unit and to the last

1433

known address by regular mail with international postage, which

1434

shall be deemed sufficient. Delivery of the notice shall be

1435

deemed completed upon mailing as required by this subsection.

1436

Alternatively, notice shall be complete if served on the unit

1437

owner in the manner authorized by chapter 48 and the Florida

1438

Rules of Civil Procedure.

1439

Section 12. Section 718.1224, Florida Statutes, is created

1440

to read:

1441

718.1224 Prohibition against SLAPP suits.--

1442

(1) It is the intent of the Legislature to protect the

1443

right of condominium unit owners to exercise their rights to

1444

instruct their representatives and petition for redress of

1445

grievances before the various governmental entities of this state

1446

as protected by the First Amendment to the United States

1447

Constitution and s. 5, Art. I of the State Constitution. The

1448

Legislature recognizes that strategic lawsuits against public

1449

participation, or "SLAPP suits," have occurred when association

1450

members are sued by individuals, business entities, or

1451

governmental entities arising out of a condominium unit owner's

1452

appearance and presentation before a governmental entity on

1453

matters related to the condominium association. However, it is

1454

the public policy of this state that governmental entities,

1455

business organizations, and individuals not engage in SLAPP

1456

suits, because such actions are inconsistent with the right of

1457

condominium unit owners to participate in the state's

1458

institutions of government. Therefore, the Legislature finds and

1459

declares that prohibiting such lawsuits by governmental entities,

1460

business entities, and individuals against condominium unit

1461

owners who address matters concerning their condominium

1462

association will preserve this fundamental state policy, preserve

1463

the constitutional rights of condominium unit owners, and ensure

1464

the continuation of representative government in this state. It

1465

is the intent of the Legislature that such lawsuits be

1466

expeditiously disposed of by the courts. As used in this

1467

subsection, the term "governmental entity" means the state,

1468

including the executive, legislative, and judicial branches of

1469

government, the independent establishments of the state,

1470

counties, municipalities, districts, authorities, boards, or

1471

commissions, or any government agencies that are subject to

1472

chapter 286.

1473

(2) A governmental entity, business organization, or

1474

individual in this state may not file or cause to be filed

1475

through its employees or agents any lawsuit, cause of action,

1476

claim, cross-claim, or counterclaim against a condominium unit

1477

owner without merit and solely because such condominium unit

1478

owner has exercised the right to instruct his or her

1479

representatives or the right to petition for redress of

1480

grievances before the various governmental entities of this

1481

state, as protected by the First Amendment to the United States

1482

Constitution and s. 5, Art. I of the State Constitution.

1483

(3) A condominium unit owner sued by a governmental entity,

1484

business organization, or individual in violation of this section

1485

has a right to an expeditious resolution of a claim that the suit

1486

is in violation of this section. A condominium unit owner may

1487

petition the court for an order dismissing the action or granting

1488

final judgment in favor of that condominium unit owner. The

1489

petitioner may file a motion for summary judgment, together with

1490

supplemental affidavits, seeking a determination that the

1491

governmental entity's, business organization's, or individual's

1492

lawsuit has been brought in violation of this section. The

1493

governmental entity, business organization, or individual shall

1494

thereafter file its response and any supplemental affidavits. As

1495

soon as practicable, the court shall set a hearing on the

1496

petitioner's motion, which shall be held at the earliest possible

1497

time after the filing of the governmental entity's, business

1498

organization's, or individual's response. The court may award the

1499

condominium unit owner sued by the governmental entity, business

1500

organization, or individual actual damages arising from the

1501

governmental entity's, individual's, or business organization's

1502

violation of this section. A court may treble the damages awarded

1503

to a prevailing condominium unit owner and shall state the basis

1504

for the trebled damages award in its judgment. The court shall

1505

award the prevailing party reasonable attorney's fees and costs

1506

incurred in connection with a claim that an action was filed in

1507

violation of this section.

1508

(4) Condominium associations may not expend association

1509

funds in prosecuting a SLAPP suit against a condominium unit

1510

owner.

1511

Section 13. Paragraph (b) of subsection (3) of section

1512

718.1255, Florida Statutes, is amended to read:

1513

718.1255 Alternative dispute resolution; voluntary

1514

mediation; mandatory nonbinding arbitration; legislative

1515

findings.--

1516

(3) LEGISLATIVE FINDINGS.--

1517

(b) The Legislature finds that the courts are becoming

1518

overcrowded with condominium and other disputes, and further

1519

finds that alternative dispute resolution has been making

1520

progress in reducing court dockets and trials and in offering a

1521

more efficient, cost-effective option to court litigation.

1522

However, the Legislature also finds that alternative dispute

1523

resolution should not be used as a mechanism to encourage the

1524

filing of frivolous or nuisance suits.

1525

Section 14. Section 718.1265, Florida Statutes, is created

1526

to read:

1527

718.1265 Association emergency powers.--

1528

(1) To the extent allowed by law and unless specifically

1529

prohibited by the declaration of condominium, the articles, or

1530

the bylaws of an association, and consistent with the provisions

1531

of s. 617.0830, the board of administration, in response to

1532

damage caused by an event for which a state of emergency is

1533

declared pursuant to s. 252.36 in the locale in which the

1534

condominium is located, may, but is not required to, exercise the

1535

following powers:

1536

(a) Conduct board meetings and membership meetings with

1537

notice given as is practicable. Such notice may be given in any

1538

practicable manner, including publication, radio, United States

1539

mail, the Internet, public service announcements, and conspicuous

1540

posting on the condominium property or any other means the board

1541

deems reasonable under the circumstances. Notice of board

1542

decisions may be communicated as provided in this paragraph.

1543

(b) Cancel and reschedule any association meeting.

1544

1545

directors, which assistant officers shall have the same authority

1546

as the executive officers to whom they are assistants during the

1547

state of emergency to accommodate the incapacity or

1548

unavailability of any officer of the association.

1549

(d) Relocate the association's principal office or

1550

designate alternative principal offices.

1551

(e) Enter into agreements with local counties and

1552

municipalities to assist counties and municipalities with debris

1553

removal.

1554

(f) Implement a disaster plan before or immediately

1555

following the event for which a state of emergency is declared

1556

which may include, but need not be limited to, shutting down or

1557

off elevators, electricity, water, sewer, or security systems, or

1558

air conditioners.

1559

(g) Declare any portion of the condominium property

1560

unavailable for entry or occupancy by unit owners, family

1561

members, tenants, guests, agents, or invitees to protect the

1562

health, safety, or welfare of such persons.

1563

(h) Require the evacuation of the condominium property in

1564

the event of a mandatory evacuation order in the locale in which

1565

the condominium is located. If any unit owner or other occupant

1566

of a condominium fails or refuses to evacuate the condominium

1567

property where the board has required evacuation, the association

1568

is immune from liability or injury to persons or property arising

1569

from such failure or refusal.

1570

(i) Determine whether the condominium property may be

1571

safely inhabited or occupied. However, such determination is not

1572

conclusive as to any determination of habitability pursuant to

1573

the declaration.

1574

(j) Mitigate further damage, including taking action to

1575

contract for the removal of debris, and prevent or mitigate the

1576

spread of fungus, including, but not limited to, mold or mildew,

1577

by removing and disposing of wet drywall, insulation, carpet,

1578

cabinetry, or other fixtures on or within the condominium

1579

property, even if the unit owner is obligated by the declaration

1580

or law to insure or replace those fixtures and to remove personal

1581

property from a unit.

1582

(k) Contract, on behalf of any unit owner or owners, for

1583

items or services for which the owners are otherwise individually

1584

responsible for, but which are necessary to prevent further

1585

damage to the condominium property. In such event, the unit owner

1586

or owners on whose behalf the board has contracted are

1587

responsible for reimbursing the association for the actual costs

1588

of the items or services, and the association may use its lien

1589

authority provided by s. 718.116 to enforce collection of the

1590

charges. Without limitation, such items or services may include

1591

the drying of units, the boarding of broken windows or doors, and

1592

the replacement of damaged air conditioners or air handlers to

1593

provide climate control in the units or other portions of the

1594

property.

1595

(l) Regardless of any provision to the contrary and even if

1596

such authority does not specifically appear in the declaration of

1597

condominium, articles, or bylaws of the association, levy special

1598

assessments without a vote of the owners.

1599

(m) Without approval of unit owners, borrow money and

1600

pledge association assets as collateral to fund emergency repairs

1601

and carry out the duties of the association when operating funds

1602

are insufficient. This paragraph does not limit the general

1603

authority of the association to borrow money, subject to such

1604

restrictions that are contained in the declaration of

1605

condominium, articles, or bylaws of the association.

1606

(2) The special powers authorized under subsection (1) are

1607

limited to that time reasonably necessary to protect the health,

1608

safety, and welfare of the association, the unit owners, their

1609

family members, tenants, guests, agents, or invitees and as

1610

reasonably necessary to mitigate further damage and make

1611

emergency repairs.

1612

Section 15. Section 718.127, Florida Statutes, is created

1613

to read:

1614

718.127 Receivership notification.--Upon the appointment of

1615

a receiver by a court for any reason relating to a condominium

1616

association, the court shall direct the receiver to provide to

1617

all unit owners written notice of his or her appointment as

1618

receiver. Such notice shall be mailed or delivered within 10 days

1619

after the appointment. Notice by mail to a unit owner shall be

1620

sent to the address used by the county property appraiser for

1621

notice to the unit owner.

1622

Section 16. Subsection (1) of section 718.301, Florida

1623

Statutes, is amended, and paragraph (p) is added to subsection

1624

(4) of that section, to read:

1625

718.301 Transfer of association control; claims of defect

1626

by association.--

1627

(1) When unit owners other than the developer own 15

1628

percent or more of the units in a condominium that will be

1629

operated ultimately by an association, the unit owners other than

1630

the developer shall be entitled to elect no less than one-third

1631

of the members of the board of administration of the association.

1632

Unit owners other than the developer are entitled to elect not

1633

less than a majority of the members of the board of

1634

administration of an association:

1635

(a) Three years after 50 percent of the units that will be

1636

operated ultimately by the association have been conveyed to

1637

purchasers;

1638

(b) Three months after 90 percent of the units that will be

1639

operated ultimately by the association have been conveyed to

1640

purchasers;

1641

1642

the association have been completed, some of them have been

1643

conveyed to purchasers, and none of the others are being offered

1644

for sale by the developer in the ordinary course of business;

1645

(d) When some of the units have been conveyed to purchasers

1646

and none of the others are being constructed or offered for sale

1647

by the developer in the ordinary course of business; or

1648

(e) When the developer files a petition seeking protection

1649

in bankruptcy;

1650

(f) When a receiver for the developer is appointed by a

1651

circuit court; or

1652

(g)(e) Seven years after recordation of the declaration of

1653

condominium; or, in the case of an association which may

1654

ultimately operate more than one condominium, 7 years after

1655

recordation of the declaration for the first condominium it

1656

operates; or, in the case of an association operating a phase

1657

condominium created pursuant to s. 718.403, 7 years after

1658

recordation of the declaration creating the initial phase,

1659

1660

whichever occurs first. The developer is entitled to elect at

1661

least one member of the board of administration of an association

1662

as long as the developer holds for sale in the ordinary course of

1663

business at least 5 percent, in condominiums with fewer than 500

1664

units, and 2 percent, in condominiums with more than 500 units,

1665

of the units in a condominium operated by the association.

1666

Following the time the developer relinquishes control of the

1667

association, the developer may exercise the right to vote any

1668

developer-owned units in the same manner as any other unit owner

1669

except for purposes of reacquiring control of the association or

1670

selecting the majority members of the board of administration.

1671

(4) At the time that unit owners other than the developer

1672

elect a majority of the members of the board of administration of

1673

an association, the developer shall relinquish control of the

1674

association, and the unit owners shall accept control.

1675

Simultaneously, or for the purposes of paragraph (c) not more

1676

than 90 days thereafter, the developer shall deliver to the

1677

association, at the developer's expense, all property of the unit

1678

owners and of the association which is held or controlled by the

1679

developer, including, but not limited to, the following items, if

1680

applicable, as to each condominium operated by the association:

1681

(p) A report included in the official records, under seal

1682

of an architect or engineer authorized to practice in this state,

1683

attesting to required maintenance, useful life, and replacement

1684

costs of the following applicable common elements comprising a

1685

turnover inspection report:

1686

1. Roof.

1687

2. Structure.

1688

3. Fireproofing and fire-protection systems.

1689

4. Elevators.

1690

5. Heating and cooling systems.

1691

6. Plumbing.

1692

7. Electrical systems.

1693

8. Swimming pool or spa and equipment.

1694

9. Seawalls.

1695

10. Pavement and parking areas.

1696

11. Drainage systems.

1697

12. Painting.

1698

13. Irrigation systems.

1699

Section 17. Paragraph (f) is added to subsection (1) of

1700

section 718.3025, Florida Statutes, to read:

1701

718.3025 Agreements for operation, maintenance, or

1702

management of condominiums; specific requirements.--

1703

(1) No written contract between a party contracting to

1704

provide maintenance or management services and an association

1705

which contract provides for operation, maintenance, or management

1706

of a condominium association or property serving the unit owners

1707

of a condominium shall be valid or enforceable unless the

1708

contract:

1709

(f) Discloses any financial or ownership interest a board

1710

member or any party providing maintenance or management services

1711

to the association holds with the contracting party.

1712

Section 18. Section 718.3026, Florida Statutes, is amended

1713

to read:

1714

718.3026 Contracts for products and services; in writing;

1715

bids; exceptions.-- Associations having 10 or fewer with less

1716

than 100 units may opt out of the provisions of this section if

1717

two-thirds of the unit owners vote to do so, which opt-out may be

1718

accomplished by a proxy specifically setting forth the exception

1719

from this section.

1720

(1) All contracts as further described herein or any

1721

contract that is not to be fully performed within 1 year after

1722

the making thereof, for the purchase, lease, or renting of

1723

materials or equipment to be used by the association in

1724

accomplishing its purposes under this chapter, and all contracts

1725

for the provision of services, shall be in writing. If a contract

1726

for the purchase, lease, or renting of materials or equipment, or

1727

for the provision of services, requires payment by the

1728

association on behalf of any condominium operated by the

1729

association in the aggregate that exceeds 5 percent of the total

1730

annual budget of the association, including reserves, the

1731

association shall obtain competitive bids for the materials,

1732

equipment, or services. Nothing contained herein shall be

1733

construed to require the association to accept the lowest bid.

1734

(2)(a)1. Notwithstanding the foregoing, contracts with

1735

employees of the association, and contracts for attorney,

1736

accountant, architect, community association manager, timeshare

1737

management firm, engineering, and landscape architect services

1738

are not subject to the provisions of this section.

1739

2. A contract executed before January 1, 1992, and any

1740

renewal thereof, is not subject to the competitive bid

1741

requirements of this section. If a contract was awarded under the

1742

competitive bid procedures of this section, any renewal of that

1743

contract is not subject to such competitive bid requirements if

1744

the contract contains a provision that allows the board to cancel

1745

the contract on 30 days' notice. Materials, equipment, or

1746

services provided to a condominium under a local government

1747

franchise agreement by a franchise holder are not subject to the

1748

competitive bid requirements of this section. A contract with a

1749

manager, if made by a competitive bid, may be made for up to 3

1750

years. A condominium whose declaration or bylaws provides for

1751

competitive bidding for services may operate under the provisions

1752

of that declaration or bylaws in lieu of this section if those

1753

provisions are not less stringent than the requirements of this

1754

section.

1755

(b) Nothing contained herein is intended to limit the

1756

ability of an association to obtain needed products and services

1757

in an emergency.

1758

1759

with which the association desires to enter into a contract is

1760

the only source of supply within the county serving the

1761

association.

1762

(d) Nothing contained herein shall excuse a party

1763

contracting to provide maintenance or management services from

1764

compliance with s. 718.3025.

1765

(3) As to any contract or other transaction between an

1766

association and one or more of its directors or any other

1767

corporation, firm, association, or entity in which one or more of

1768

its directors are directors or officers or are financially

1769

interested:

1770

(a) The association shall comply with the requirements of

1771

s. 617.0832.

1772

(b) The disclosures required by s. 617.0832 shall be

1773

entered into the written minutes of the meeting.

1774

1775

require an affirmative vote of two-thirds of the directors

1776

present.

1777

(d) At the next regular or special meeting of the members,

1778

the existence of the contract or other transaction must be

1779

disclosed to the members. Upon the motion of any member, the

1780

contract or transaction shall be brought up for a vote and may be

1781

cancelled by a majority vote of the members present. If the

1782

members cancel the contract, the association is liable only for

1783

the reasonable value of goods and services provided up to the

1784

time of cancellation and is not liable for any termination fee,

1785

liquidated damages, or other form of penalty for such

1786

cancellation.

1787

Section 19. Subsection (3) of section 718.303, Florida

1788

Statutes, is amended to read:

1789

(3) If the declaration or bylaws so provide, the

1790

association may levy reasonable fines against a unit for the

1791

failure of the owner of the unit, or its occupant, licensee, or

1792

invitee, to comply with any provision of the declaration, the

1793

association bylaws, or reasonable rules of the association. No

1794

fine will become a lien against a unit. No fine may exceed $100

1795

per violation. However, a fine may be levied on the basis of each

1796

day of a continuing violation, with a single notice and

1797

opportunity for hearing, provided that no such fine shall in the

1798

aggregate exceed $1,000. No fine may be levied except after

1799

giving reasonable notice and opportunity for a hearing to the

1800

unit owner and, if applicable, its licensee or invitee. The

1801

hearing must be held before a committee of other unit owners who

1802

are not board members or persons who reside in a board member's

1803

household. If the committee does not agree with the fine, the

1804

fine may not be levied. The provisions of this subsection do not

1805

apply to unoccupied units.

1806

Section 20. Section 718.501, Florida Statutes, is amended

1807

to read:

1808

718.501 Authority, responsibility, Powers and duties of

1809

Division of Florida Land Sales, Condominiums, and Mobile Homes.--

1810

(1) The Division of Florida Land Sales, Condominiums, and

1811

Mobile Homes of the Department of Business and Professional

1812

Regulation, referred to as the "division" in this part, in

1813

addition to other powers and duties prescribed by chapter 498,

1814

has the power to enforce and ensure compliance with the

1815

provisions of this chapter and rules promulgated pursuant hereto

1816

relating to the development, construction, sale, lease,

1817

ownership, operation, and management of residential condominium

1818

units. In performing its duties, the division has complete

1819

jurisdiction to investigate complaints and enforce compliance

1820

with the provisions of this chapter with respect to associations

1821

that are still under developer control and complaints against

1822

developers involving improper turnover or failure to turn over

1823

pursuant to s. 718.301. However, after turnover has occurred, the

1824

division shall have jurisdiction to investigate only complaints

1825

related to financial issues, elections, and unit owner access to

1826

association records pursuant to s. 718.111(12). the following

1827

powers and duties:

1828

(a) The division may make necessary public or private

1829

investigations within or outside this state to determine whether

1830

any person has violated this chapter or any rule or order

1831

hereunder, to aid in the enforcement of this chapter, or to aid

1832

in the adoption of rules or forms hereunder.

1833

(b) The division may require or permit any person to file a

1834

statement in writing, under oath or otherwise, as the division

1835

determines, as to the facts and circumstances concerning a matter

1836

to be investigated.

1837

1838

chapter, the division director or any officer or employee

1839

designated by the division director may administer oaths or

1840

affirmations, subpoena witnesses and compel their attendance,

1841

take evidence, and require the production of any matter which is

1842

relevant to the investigation, including the existence,

1843

description, nature, custody, condition, and location of any

1844

books, documents, or other tangible things and the identity and

1845

location of persons having knowledge of relevant facts or any

1846

other matter reasonably calculated to lead to the discovery of

1847

material evidence. Upon the failure by a person to obey a

1848

subpoena or to answer questions propounded by the investigating

1849

officer and upon reasonable notice to all persons affected

1850

thereby, the division may apply to the circuit court for an order

1851

compelling compliance.

1852

(d) Notwithstanding any remedies available to unit owners

1853

and associations, if the division has reasonable cause to believe

1854

that a violation of any provision of this chapter or rule

1855

promulgated pursuant hereto has occurred, the division may

1856

institute enforcement proceedings in its own name against any

1857

developer, association, officer, or member of the board of

1858

administration, or its assignees or agents, as follows:

1859

1. The division may permit a person whose conduct or

1860

actions may be under investigation to waive formal proceedings

1861

and enter into a consent proceeding whereby orders, rules, or

1862

letters of censure or warning, whether formal or informal, may be

1863

entered against the person.

1864

2. The division may issue an order requiring the developer,

1865

association, developer-designated officer, or developer-

1866

designated member of the board of administration, or developer-

1867

designated its assignees or agents, community association

1868

manager, or community association management firm to cease and

1869

desist from the unlawful practice and take such affirmative

1870

action as in the judgment of the division will carry out the

1871

purposes of this chapter. Such affirmative action may include,

1872

but is not limited to, an order requiring a developer to pay

1873

moneys determined to be owed to a condominium association.

1874

3. If a developer fails to pay any restitution determined

1875

by the division to be owed, plus any accrued interest at the

1876

highest rate permitted by law, within 30 days after expiration of

1877

any appellate time period of a final order requiring payment of

1878

restitution or the conclusion of any appeal thereof, whichever is

1879

later, the division shall bring an action in circuit or county

1880

court on behalf of any association, class of unit owners,

1881

lessees, or purchasers for restitution, declaratory relief,

1882

injunctive relief, or any other available remedy. The division

1883

may also temporarily revoke its acceptance of the filing for the

1884

developer to which the restitution relates until payment of

1885

restitution is made. The division may bring an action in circuit

1886

court on behalf of a class of unit owners, lessees, or purchasers

1887

for declaratory relief, injunctive relief, or restitution.

1888

4. The division may impose a civil penalty against a

1889

developer or association, or its assignee or agent, for any

1890

violation of this chapter or a rule promulgated pursuant hereto.

1891

The division may impose a civil penalty individually against any

1892

officer or board member who willfully and knowingly violates a

1893

provision of this chapter, a rule adopted pursuant hereto, or a

1894

final order of the division; may order the removal of such

1895

individual as an officer or from the board of administration or

1896

as an officer of the association; and may prohibit such

1897

individual from serving as an officer or on the board of a

1898

community association for a period of time. The term "willfully

1899

and knowingly" means that the division informed the officer or

1900

board member that his or her action or intended action violates

1901

this chapter, a rule adopted under this chapter, or a final order

1902

of the division and that the officer or board member refused to

1903

comply with the requirements of this chapter, a rule adopted

1904

under this chapter, or a final order of the division. The

1905

division, prior to initiating formal agency action under chapter

1906

120, shall afford the officer or board member an opportunity to

1907

voluntarily comply with this chapter, a rule adopted under this

1908

chapter, or a final order of the division. An officer or board

1909

member who complies within 10 days is not subject to a civil

1910

penalty. A penalty may be imposed on the basis of each day of

1911

continuing violation, but in no event shall the penalty for any

1912

offense exceed $5,000. By January 1, 1998, the division shall

1913

adopt, by rule, penalty guidelines applicable to possible

1914

violations or to categories of violations of this chapter or

1915

rules adopted by the division. The guidelines must specify a

1916

meaningful range of civil penalties for each such violation of

1917

the statute and rules and must be based upon the harm caused by

1918

the violation, the repetition of the violation, and upon such

1919

other factors deemed relevant by the division. For example, the

1920

division may consider whether the violations were committed by a

1921

developer or owner-controlled association, the size of the

1922

association, and other factors. The guidelines must designate the

1923

possible mitigating or aggravating circumstances that justify a

1924

departure from the range of penalties provided by the rules. It

1925

is the legislative intent that minor violations be distinguished

1926

from those which endanger the health, safety, or welfare of the

1927

condominium residents or other persons and that such guidelines

1928

provide reasonable and meaningful notice to the public of likely

1929

penalties that may be imposed for proscribed conduct. This

1930

subsection does not limit the ability of the division to

1931

informally dispose of administrative actions or complaints by

1932

stipulation, agreed settlement, or consent order. All amounts

1933

collected shall be deposited with the Chief Financial Officer to

1934

the credit of the Division of Florida Land Sales, Condominiums,

1935

and Mobile Homes Trust Fund. If a developer fails to pay the

1936

civil penalty and the amount deemed to be owed to the

1937

association, the division shall thereupon issue an order

1938

directing that such developer cease and desist from further

1939

operation until such time as the civil penalty is paid or may

1940

pursue enforcement of the penalty in a court of competent

1941

jurisdiction. If an association fails to pay the civil penalty,

1942

the division shall thereupon pursue enforcement in a court of

1943

competent jurisdiction, and the order imposing the civil penalty

1944

or the cease and desist order will not become effective until 20

1945

days after the date of such order. Any action commenced by the

1946

division shall be brought in the county in which the division has

1947

its executive offices or in the county where the violation

1948

occurred.

1949

5. If a unit owner presents the division with proof that

1950

the unit owner has requested access to official records in

1951

writing by certified mail, that after 10 days the unit owner

1952

again made the same request for access to official records in

1953

writing by certified mail, and that more than 10 days has elapsed

1954

since the second request and the association has still failed or

1955

refused to provide access to official records as required by this

1956

chapter, the division shall issue a subpoena requiring production

1957

of the requested records where the records are kept pursuant to

1958

s. 718.112.

1959

(e) The division is authorized to prepare and disseminate a

1960

prospectus and other information to assist prospective owners,

1961

purchasers, lessees, and developers of residential condominiums

1962

in assessing the rights, privileges, and duties pertaining

1963

thereto.

1964

(f) The division has authority to adopt rules pursuant to

1965

ss. 120.536(1) and 120.54 to implement and enforce the provisions

1966

of this chapter.

1967

(g) The division shall establish procedures for providing

1968

notice to an association and the developer during the period

1969

where the developer controls the association when the division is

1970

considering the issuance of a declaratory statement with respect

1971

to the declaration of condominium or any related document

1972

governing in such condominium community.

1973

(h) The division shall furnish each association which pays

1974

the fees required by paragraph (2)(a) a copy of this act,

1975

subsequent changes to this act on an annual basis, an amended

1976

version of this act as it becomes available from the Secretary of

1977

State's office on a biennial basis, and the rules promulgated

1978

pursuant thereto on an annual basis.

1979

(i) The division shall annually provide each association

1980

with a summary of declaratory statements and formal legal

1981

opinions relating to the operations of condominiums which were

1982

rendered by the division during the previous year.

1983

(j) The division shall provide training and educational

1984

programs for condominium association board members and unit

1985

owners. The training may include web-based, electronic-media-

1986

based, and live training and seminars in various locations

1987

throughout the state. The division may review and approve

1988

education and training programs for board members and unit owners

1989

offered by providers and shall maintain a current list of

1990

approved programs and providers and make such list available to

1991

board members and unit owners in a reasonable and cost-effective

1992

manner.

1993

(k) The division shall maintain a toll-free telephone

1994

number accessible to condominium unit owners.

1995

(l) The division shall develop a program to certify both

1996

volunteer and paid mediators to provide mediation of condominium

1997

disputes. The division shall provide, upon request, a list of

1998

such mediators to any association, unit owner, or other

1999

participant in arbitration proceedings under s. 718.1255

2000

requesting a copy of the list. The division shall include on the

2001

list of volunteer mediators only the names of persons who have

2002

received at least 20 hours of training in mediation techniques or

2003

who have mediated at least 20 disputes. In order to become

2004

initially certified by the division, paid mediators must be

2005

certified by the Supreme Court to mediate court cases in either

2006

county or circuit courts. However, the division may adopt, by

2007

rule, additional factors for the certification of paid mediators,

2008

which factors must be related to experience, education, or

2009

background. Any person initially certified as a paid mediator by

2010

the division must, in order to continue to be certified, comply

2011

with the factors or requirements imposed by rules adopted by the

2012

division.

2013

(m) When a complaint is made, the division shall conduct

2014

its inquiry with due regard to the interests of the affected

2015

parties. Within 30 days after receipt of a complaint, the

2016

division shall acknowledge the complaint in writing and notify

2017

the complainant whether the complaint is within the jurisdiction

2018

of the division and whether additional information is needed by

2019

the division from the complainant. The division shall conduct its

2020

investigation and shall, within 90 days after receipt of the

2021

original complaint or of timely requested additional information,

2022

take action upon the complaint. However, the failure to complete

2023

the investigation within 90 days does not prevent the division

2024

from continuing the investigation, accepting or considering

2025

evidence obtained or received after 90 days, or taking

2026

administrative action if reasonable cause exists to believe that

2027

a violation of this chapter or a rule of the division has

2028

occurred. If an investigation is not completed within the time

2029

limits established in this paragraph, the division shall, on a

2030

monthly basis, notify the complainant in writing of the status of

2031

the investigation. When reporting its action to the complainant,

2032

the division shall inform the complainant of any right to a

2033

hearing pursuant to ss. 120.569 and 120.57.

2034

(n) Condominium association directors, officers, and

2035

employees, condominium developers, community association

2036

managers, and community association management firms must at all

2037

times reasonably cooperate with the division in any investigation

2038

pursuant to this section. The division shall refer to local law

2039

enforcement authorities any person whom the division believes has

2040

altered, destroyed, concealed, or removed any record, document,

2041

or thing required to be kept or maintained by this chapter with

2042

the purpose to impair its verity or availability in the

2043

department's investigation.

2044

(2)(a) Effective January 1, 1992, Each condominium

2045

association which operates more than two units shall pay to the

2046

division an annual fee in the amount of $4 for each residential

2047

unit in condominiums operated by the association. If the fee is

2048

not paid by March 1, then the association shall be assessed a

2049

penalty of 10 percent of the amount due, and the association will

2050

not have standing to maintain or defend any action in the courts

2051

of this state until the amount due, plus any penalty, is paid.

2052

(b) All fees shall be deposited in the Division of Florida

2053

Land Sales, Condominiums, and Mobile Homes Trust Fund as provided

2054

by law.

2055

Section 21. Section 718.50151, Florida Statutes, is amended

2056

to read:

2057

718.50151 Community Association Living Study Advisory

2058

Council; membership functions.--

2059

(1) There is created the Community Association Living Study

2060

Advisory Council on Condominiums. The council shall consist of

2061

seven appointed members. Two members shall be appointed by the

2062

President of the Senate, two members shall be appointed by the

2063

Speaker of the House of Representatives, and three members shall

2064

be appointed by the Governor. At least One member that is

2065

appointed by the Governor may shall represent timeshare

2066

condominiums. The council shall be created as of July 1 every 5

2067

years, commencing July 1, 2008, and shall exist for a 6-month

2068

term. Members shall be appointed to 2-year terms; however, one of

2069

the persons initially appointed by the Governor, by the President

2070

of the Senate, and by the Speaker of the House of Representatives

2071

shall be appointed to a 1-year term. The director of the division

2072

shall appoint serve as an ex officio nonvoting member. The

2073

Legislature intends that the persons appointed represent a cross-

2074

section of persons interested in condominium issues. The council

2075

shall be located within the division for administrative purposes.

2076

Members of the council shall serve without compensation but are

2077

entitled to receive per diem and travel expenses pursuant to s.

2078

112.061 while on official business.

2079

(2) The functions of the advisory council shall be to:

2080

(a) Receive, from the public, input regarding issues of

2081

concern with respect to community association living, including

2082

living in condominiums, cooperatives, and homeowners'

2083

associations. The council shall make and recommendations for

2084

changes in the condominium law related to community association

2085

living. The issues that the council shall consider include, but

2086

are not limited to, the rights and responsibilities of the unit

2087

owners in relation to the rights and responsibilities of the

2088

association.

2089

(b) Review, evaluate, and advise the division concerning

2090

revisions and adoption of rules affecting condominiums and

2091

cooperatives.

2092

2093

programs offered by the division.

2094

(d) Review, evaluate, and advise the Legislature concerning

2095

revisions and improvements to the laws relating to condominiums,

2096

cooperatives, and homeowners' associations.

2097

(3) The council may elect a chair and vice chair and such

2098

other officers as it may deem advisable. The council shall meet

2099

at the call of its chair, at the request of a majority of its

2100

membership, at the request of the division, or at such times as

2101

it may prescribe. A majority of the members of the council shall

2102

constitute a quorum. Council action may be taken by vote of a

2103

majority of the voting members who are present at a meeting where

2104

there is a quorum.

2105

Section 22. Paragraph (a) of subsection (2) of section

2106

718.503, Florida Statutes, is amended to read:

2107

718.503 Developer disclosure prior to sale; nondeveloper

2108

unit owner disclosure prior to sale; voidability.--

2109

(2) NONDEVELOPER DISCLOSURE.--

2110

(a) Each unit owner who is not a developer as defined by

2111

this chapter shall comply with the provisions of this subsection

2112

prior to the sale of his or her unit. Each prospective purchaser

2113

who has entered into a contract for the purchase of a condominium

2114

unit is entitled, at the seller's expense, to a current copy of

2115

the declaration of condominium, articles of incorporation of the

2116

association, bylaws and rules of the association, financial

2117

information required by s. 718.111, and the document entitled

2118

"Frequently Asked Questions and Answers" required by s. 718.504.

2119

On and after January 1, 2009, the prospective purchaser shall

2120

also receive from the seller a copy of a governance form. Such

2121

form shall be provided by the division summarizing governance of

2122

condominium associations. In addition to such other information

2123

as the division considers helpful to a prospective purchaser in

2124

understanding association governance, the governance form shall

2125

address the following subjects:

2126

1. The role of the board in conducting the day-to-day

2127

affairs of the association on behalf of, and in the best

2128

interests of, the owners.

2129

2. The board's responsibility to provide advance notice of

2130

board and membership meetings.

2131

3. The rights of owners to attend and speak at board and

2132

membership meetings.

2133

4. The responsibility of the board and of owners with

2134

respect to maintenance of the condominium property.

2135

5. The responsibility of the board and owners to abide by

2136

the condominium documents, this chapter, rules adopted by the

2137

division, and reasonable rules adopted by the board.

2138

6. Owners' rights to inspect and copy association records

2139

and the limitations on such rights.

2140

7. Remedies available to owners with respect to actions by

2141

the board which may be abusive or beyond the board's power and

2142

authority.

2143

8. The right of the board to hire a property management

2144

firm, subject to its own primary responsibility for such

2145

management.

2146

9. The responsibility of owners with regard to payment of

2147

regular or special assessments necessary for the operation of the

2148

property and the potential consequences of failure to pay such

2149

assessments.

2150

10. The voting rights of owners.

2151

11. Rights and obligations of the board in enforcement of

2152

rules in the condominium documents and rules adopted by the

2153

board.

2154

2155

The governance form shall also include the following statement in

2156

conspicuous type: "This publication is intended as an informal

2157

educational overview of condominium governance. In the event of a

2158

conflict, the provisions of chapter 718, Florida Statutes, rules

2159

adopted by the Division of Florida Land Sales, Condominiums, and

2160

Mobile Homes of the Department of Business and Professional

2161

Regulation, the provisions of the condominium documents, and

2162

reasonable rules adopted by the condominium association's board

2163

of administration prevail over the contents of this publication."

2164

Section 23. This act shall take effect October 1, 2008.

2165

2166

================ T I T L E A M E N D M E N T ================

2167

And the title is amended as follows:

2168

Delete everything before the enacting clause

2169

and insert:

2170

A bill to be entitled

2171

An act relating to community associations; amending s.

2172

468.431, F.S.; defining the term "community association

2173

management firm"; redefining the term "community

2174

association manager" to apply only to natural persons;

2175

amending s. 468.4315, F.S.; revising membership

2176

criteria for members of the Regulatory Council of

2177

Community Association Managers; requiring the board to

2178

establish a public education program; providing for

2179

board members to serve without compensation but be

2180

entitled to receive per diem and travel expenses;

2181

providing responsibilities of the board; amending s.

2182

468.432, F.S.; providing for the licensure of community

2183

association management firms; providing application,

2184

licensure, and fee requirements; providing for the

2185

cancellation of the license of a community association

2186

management firm under certain circumstances; providing

2187

that such firm or similar organization agrees that, by

2188

being licensed, it shall employ only licensed persons

2189

providing certain services; amending s. 468.433, F.S.;

2190

providing for the refusal of an applicant certification

2191

under certain circumstances; amending s. 468.436, F.S.;

2192

requiring the Department of Business and Professional

2193

Regulation to investigate certain complaints and

2194

allegations; providing complaint and investigation

2195

procedures; providing grounds for which disciplinary

2196

action may be taken; amending s. 718.111, F.S.;

2197

providing duties of officers, directors, and agents of

2198

a condominium association and liability for monetary

2199

damages under certain circumstances; providing that a

2200

person who knowingly or intentionally fails to create

2201

or maintain, or who defaces or destroys certain

2202

records, is subject to civil penalties as prescribed by

2203

state law; requiring that a copy of the inspection

2204

report be maintained as an official record of the

2205

association; requiring official records of the

2206

association to be maintained for a specified minimum

2207

period and be made available at certain locations and

2208

in specified formats; providing that any person who

2209

knowingly or intentionally defaces, destroys, or fails

2210

to create or maintain accounting records is subject to

2211

civil and criminal sanctions; prohibiting accessibility

2212

to certain personal identifying information of unit

2213

owners by fellow unit owners; requiring that the

2214

Division of Florida Land Sales, Condominiums, and

2215

Mobile Homes of the Department of Business and

2216

Professional Regulation adopt certain rules; requiring

2217

certain audits and reports to be paid for by the

2218

developer if done before control of the association is

2219

turned over; restricting a condominium association from

2220

waiving a financial report for more than a specified

2221

period; amending s. 718.112, F.S.; prohibiting a voting

2222

interest or a consent right allocated to a unit owner

2223

from being exercised under certain circumstances;

2224

requiring the board to address certain agenda items

2225

proposed by a petition of a specified percentage of the

2226

unit owners; providing requirements for the location of

2227

annual unit owner meetings; revising terms of service

2228

for board members; prohibiting certain persons from

2229

serving on the board; requiring the association to

2230

provide a certification form to unit owners for

2231

specified purposes; authorizing an association

2232

consisting of a specified maximum number of units to

2233

provide for different voting and election procedures in

2234

its bylaws by affirmative vote of a majority of the

2235

association's voting interests; revising requirements

2236

related to the annual budget; requiring proxy questions

2237

relating to reserves to contain a specified statement;

2238

providing for the removal of board members under

2239

certain circumstances; requiring that directors who are

2240

delinquent in certain payments owed in excess of

2241

certain periods of time be suspended from office or

2242

deemed to have abandoned their offices; requiring that

2243

directors charged with certain offenses involving an

2244

association's funds or property be suspended from

2245

office pending resolution of the charge; providing for

2246

the reinstatement of such officers or directors under

2247

certain circumstances; amending s. 718.1124, F.S.;

2248

providing that any unit owner may give notice of his or

2249

her intent to apply to the circuit court for the

2250

appointment of a receiver to manage the affairs of the

2251

association under certain circumstances; providing a

2252

form for such notice; providing for the delivery of

2253

such notice; providing procedures for resolving a

2254

petition submitted pursuant to such notice; requiring

2255

that all unit owners be provided written notice of the

2256

appointment of a receiver; amending s. 718.113, F.S.;

2257

providing a statement of clarification; authorizing the

2258

board to install certain hurricane protection;

2259

prohibiting the board from installing hurricane

2260

shutters under certain circumstances; requiring that

2261

the board inspect certain condominium buildings and a

2262

issue a report thereupon; prohibiting the board from

2263

refusing a request for reasonable accommodation for the

2264

attachment to a unit of religious objects meeting

2265

certain size specifications; amending s. 718.117, F.S.;

2266

requiring that all unit owners be provided written

2267

notice of the appointment of a receiver; providing for

2268

the delivery of such notice; amending s. 718.121, F.S.;

2269

providing requirements and restrictions for liens filed

2270

by the association against a condominium unit;

2271

providing for notice and delivery thereof; creating s.

2272

718.1224, F.S.; prohibiting strategic lawsuits against

2273

public participation; providing legislative findings

2274

and intent; prohibiting a governmental entity, business

2275

organization, or individual from filing certain

2276

lawsuits made upon specified bases against a unit

2277

owner; providing rights of a unit owner who has been

2278

served with such a lawsuit; providing procedures for

2279

the resolution of claims that such suit violates

2280

certain provisions of state law; providing for the

2281

award of damages and attorney's fees; prohibiting

2282

associations from expending association funds in

2283

prosecuting such a suit against a unit owner; amending

2284

s. 718.1255, F.S.; revising legislative intent

2285

concerning alternative dispute resolution; creating s.

2286

718.1265, F.S.; authorizing an association to exercise

2287

certain powers in instances involving damage caused by

2288

an event for which a state of emergency has been

2289

declared; limiting the applicability of such powers;

2290

creating s. 718.127, F.S.; requiring that all unit

2291

owners be provided written notice of the appointment of

2292

a receiver; providing for the delivery of such notice;

2293

amending s. 718.301, F.S.; providing circumstances

2294

under which unit owners other than a developer may

2295

elect not fewer than a majority of the members of the

2296

board of administration of an association; requiring

2297

that a developer deliver certain property of the unit

2298

owners and the association within a specified period

2299

after such election and upon relinquishing control of

2300

the association; requiring a turnover inspection

2301

report; requiring that the report contain certain

2302

information; amending s. 718.3025, F.S.; requiring that

2303

maintenance and management services contracts disclose

2304

certain information; amending s. 718.3026, F.S.;

2305

removing a provision authorizing certain associations

2306

to opt out of provisions relating to contracts for

2307

products and services; removing provisions relating to

2308

competitive bid requirements for contracts executed

2309

before a specified date; providing requirements for any

2310

contract or transaction between an association and one

2311

or more of its directors or any other entity in which

2312

one or more of its directors are directors or officers

2313

or have a financial interest; amending s. 718.303,

2314

F.S.; providing that hearings regarding noncompliance

2315

with a declaration be held before certain persons;

2316

amending s. 718.501, F.S.; providing authority and

2317

responsibilities of the division; providing for

2318

enforcement actions brought by the division in its own

2319

name; providing for the imposition of penalties by the

2320

division; requiring that the division issue a subpoena

2321

requiring production of certain requested records under

2322

certain circumstances; providing for the issuance of

2323

notice of a declaratory statement with respect to

2324

documents governing a condominium community; requiring

2325

that the division provide training and education for

2326

condominium association board members and unit owners;

2327

authorizing the division to include certain training

2328

components and review or approve training programs

2329

offered by providers; requiring that certain

2330

individuals cooperate with the division in any

2331

investigation conducted by the division; amending s.

2332

718.50151, F.S.; redesignating the Advisory Council on

2333

Condominiums as the "Community Association Living Study

2334

Council"; providing for the creation of the council;

2335

providing functions of the council; amending s.

2336

718.503, F.S.; providing for disclosure of certain

2337

information upon the sale of a unit by a nondeveloper;

2338

requiring the provisions of a governance form by the

2339

seller to the prospective buyer; requiring that such

2340

form contain certain information and a specified

2341

statement; providing an effective date.

4/7/2008 1:32:00 PM 38-06668-08

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