Florida Senate - 2008 SB 2084

By Senator Villalobos

38-00614A-08 20082084__

A bill to be entitled

An act relating to condominiums; amending s. 718.111,

F.S.; requiring official records of the association to be

maintained for at least 5 years and to be made available

at certain locations; providing civil and criminal

sanctions, including personally against any officer,

director, or manager who knowingly or intentionally

defaces, destroys, or fails to create or maintain

accounting records; prohibiting accessibility to certain

personal identifying information of unit owners by fellow

unit owners; restricting a condominium association from

waiving a financial report for more than 2 years; amending

s. 718.112, F.S.; prohibiting votes allocated to units

owned by the association from being cast by proxy, ballot,

or otherwise, for any purpose; requiring the board to

address certain agenda items proposed by a petition of a

specified percent of the unit owners; providing

requirements for the location of annual unit owner

meetings; revising notice procedures; providing for the

securing of ballots; revising procedures relating to the

filling of a vacancy on the board; authorizing persons

acting under a specific power of attorney to vote on

behalf of a unit owner; removing a provision allowing an

association to provide for different voting and election

procedures in its bylaws; requiring the association to

prepare an annual budget of estimated revenues and

expenses; requiring certain ballot statements to contain

certain statements; requiring a vote to provide for no

reserves or a percentage of reserves to be made at annual

meetings; authorizing the association to use reserve funds

for nonscheduled purposes under certain conditions;

amending s. 718.113, F.S.; requiring the board to have the

condominium buildings periodically inspected for

structural and electrical soundness by a professional

engineer or professional architect registered in the

state; requiring the inspector to provide a report to the

association and unit owners; prohibiting the board from

adopting rules or regulations impairing certain rights or

prohibiting reasonable accommodation for religious

practices; creating s. 718.1224, F.S.; prohibiting certain

lawsuits arising from unit owners' appearances and

presentations before a governmental entity; providing a

definition; providing for award of damages and attorney

fees; prohibiting associations from expending association

funds in prosecuting such a suit against a unit owner;

providing an effective date.

Be It Enacted by the Legislature of the State of Florida:

Section 1. Paragraphs (a), (b), and (c) of subsection (12)

and subsection (13) of section 718.111, Florida Statutes, are

amended to read:

718.111 The association.--

(12) OFFICIAL RECORDS.--

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

shall maintain each of the following items, when applicable,

which shall constitute the official records of the association:

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

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

2. A photocopy of the recorded declaration of condominium

of each condominium operated by the association and of each

amendment to each declaration.

3. A photocopy of the recorded bylaws of the association

and of each amendment to the bylaws.

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

association, or other documents creating the association, and of

each amendment thereto.

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

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

meetings of the association, of the board of administration

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

for a period of not less than 7 years.

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

addresses, unit identifications, voting certifications, and, if

known, telephone numbers. The association shall also maintain the

electronic mailing addresses and the numbers designated by unit

owners for receiving notice sent by electronic transmission of

those unit owners consenting to receive notice by electronic

transmission. The electronic mailing addresses and numbers

provided by unit owners to receive notice by electronic

transmission shall be removed from association records when

consent to receive notice by electronic transmission is revoked.

However, the association is not liable for an erroneous

disclosure of the electronic mail address or the number for

receiving electronic transmission of notices.

8. All current insurance policies of the association and

condominiums operated by the association.

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

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

the association or the unit owners have an obligation or

responsibility.

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

association.

11. Accounting records for the association and separate

accounting records for each condominium which the association

operates. All accounting records shall be maintained for a period

of not less than 7 years. Any officer, director, or manager who

knowingly or intentionally defaces, destroys, or fails to create

or maintain accounting records is personally subject to a civil

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penalty pursuant to s. 718.501(1)(d) and appropriate criminal

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sanctions. The accounting records shall include, but are not

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limited to:

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

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and expenditures.

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

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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

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be performed shall also be considered official records and shall

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be maintained for a period of 1 year.

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

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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.

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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

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described by s. 718.504.

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15. All other records of the association not specifically

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included in the foregoing which are related to the operation of

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the association.

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(b) The official records of the association shall be

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maintained within the state for at least 5 years. The records of

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the association shall be made available to a unit owner, at a

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location within the county in which the condominium property is

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located, within 5 working days after receipt of written request

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by the board or its designee. This paragraph may be complied with

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by having a copy of the official records of the association

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available for inspection or copying on the condominium property

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or association property.

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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

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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

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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

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request shall create a rebuttable presumption that the

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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

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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

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written request. The failure to permit inspection of the

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association records as provided herein entitles any person

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prevailing in an enforcement action to recover reasonable

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

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directly or indirectly, knowingly denied access to the records

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for inspection. Any officer, director, or manager who knowingly

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or intentionally defaces, destroys, or fails to create or

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maintain accounting records is personally subject to a civil

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penalty pursuant to s. 718.501(1)(d) and appropriate criminal

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sanctions. The association shall maintain an adequate number of

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

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

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

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year-end financial information required in this section on the

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condominium property to ensure their availability to unit owners

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and prospective purchasers, and may charge its actual costs for

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preparing and furnishing these documents to those requesting the

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same. Notwithstanding the provisions of this paragraph, the

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following records shall not be accessible to unit owners:

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

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

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product privilege, including any record prepared by an

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association attorney or prepared at the attorney's express

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direction; which reflects a mental impression, conclusion,

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litigation strategy, or legal theory of the attorney or the

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association, and which was prepared exclusively for civil or

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criminal litigation or for adversarial administrative

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proceedings, or which was prepared in anticipation of imminent

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civil or criminal litigation or imminent adversarial

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administrative proceedings until the conclusion of the litigation

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or adversarial administrative proceedings.

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2. Information obtained by an association in connection

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

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unit.

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3. Medical records of unit owners.

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

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credit card numbers, and other personal identifying information

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of unit owners, occupants, or tenants.

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(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,

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the association shall prepare and complete, or contract for the

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preparation and completion of, a financial report for the

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preceding fiscal year. Within 21 days after the final financial

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report is completed by the association or received from the third

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

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

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

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

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

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

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

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unit owner. The division shall adopt rules setting forth uniform

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accounting principles and standards to be used by all

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associations and shall adopt rules addressing financial reporting

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requirements for multicondominium associations. In adopting such

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rules, the division shall consider the number of members and

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annual revenues of an association. Financial reports shall be

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prepared as follows:

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(a) An association that meets the criteria of this

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

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financial statements in accordance with generally accepted

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accounting principles. The financial statements shall be based

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

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

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

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statements.

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2. An association with total annual revenues of at least

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

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financial statements.

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

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more shall prepare audited financial statements.

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

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

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expenditures.

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2. An association which operates less than 50 units,

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

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report of cash receipts and expenditures in lieu of financial

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statements required by paragraph (a).

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3. A report of cash receipts and disbursements must

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disclose the amount of receipts by accounts and receipt

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classifications and the amount of expenses by accounts and

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expense classifications, including, but not limited to, the

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following, as applicable: costs for security, professional and

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management fees and expenses, taxes, costs for recreation

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facilities, expenses for refuse collection and utility services,

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expenses for lawn care, costs for building maintenance and

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repair, insurance costs, administration and salary expenses, and

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reserves accumulated and expended for capital expenditures,

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deferred maintenance, and any other category for which the

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association maintains reserves.

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without a meeting of or approval by the unit owners:

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

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the association is required to prepare a report of cash receipts

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and expenditures;

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2. Reviewed or audited financial statements, if the

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association is required to prepare compiled financial statements;

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3. Audited financial statements if the association is

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required to prepare reviewed financial statements.

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

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present at a properly called meeting of the association, an

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association may prepare or cause to be prepared:

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

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compiled, reviewed, or audited financial statement;

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

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financial statement in lieu of a reviewed or audited financial

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statement; or

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

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financial statement, or a reviewed financial statement in lieu of

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an audited financial statement.

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

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

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

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developer has not turned over control of the association, all

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

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to the preparation of financial reports for the first 2 fiscal

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

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

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owners except the developer may vote on such issues until control

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is turned over to the association by the developer. An

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association or board of administration may not waive the

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financial reporting requirements of this section for more than 2

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consecutive years.

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

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Statutes, is amended to read:

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718.112 Bylaws.--

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(2) REQUIRED PROVISIONS.--The bylaws of the association

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shall provide for the following and, if they do not do so, shall

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be deemed to include the following:

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(a) Administration.--

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1. The form of administration of the association shall be

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described indicating the title of the officers and board of

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administration and specifying the powers, duties, manner of

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

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

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administration shall be composed of five members, except in the

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

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

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

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

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

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duties of such officers customarily performed by officers of

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corporations. Unless prohibited in the bylaws, the board of

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administration may appoint other officers and grant them the

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duties it deems appropriate. Unless otherwise provided in the

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bylaws, the officers shall serve without compensation and at the

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pleasure of the board of administration. Unless otherwise

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

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without compensation.

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

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

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

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

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response to the inquirer, notify the inquirer that a legal

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opinion has been requested, or notify the inquirer that advice

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has been requested from the division. If the board requests

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

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receipt of the advice, provide in writing a substantive response

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

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

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

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provide a substantive response to the inquiry as provided herein

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

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any subsequent litigation, administrative proceeding, or

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arbitration arising out of the inquiry. The association may

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through its board of administration adopt reasonable rules and

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regulations regarding the frequency and manner of responding to

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

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

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

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

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or periods, as applicable.

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

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

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percentage of voting interests required to constitute a quorum at

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

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interests. Unless otherwise provided in this chapter or in the

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

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

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

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which a quorum is present.

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2. Except as specifically otherwise provided herein, after

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

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may vote by limited proxies substantially conforming to a limited

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proxy form adopted by the division. Votes allocated to units

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owned by the association may not be cast by proxy, ballot, or

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otherwise for any purpose. Limited proxies and general proxies

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

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for votes taken to waive or reduce reserves in accordance with

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

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

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

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amend the articles of incorporation or bylaws pursuant to this

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

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

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

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

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proxies may be used for other matters for which limited proxies

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

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nonsubstantive changes to items for which a limited proxy is

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required and given. Notwithstanding the provisions of this

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subparagraph, unit owners may vote in person at unit owner

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meetings. Nothing contained herein shall limit the use of general

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

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or election at any meeting of a timeshare condominium

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association.

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

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meeting for which originally given and any lawfully adjourned

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

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

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

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the pleasure of the unit owner executing it.

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

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may submit in writing his or her agreement or disagreement with

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

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

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

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creating a quorum.

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

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telephone conference, those board or committee members attending

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by telephone conference may be counted toward obtaining a quorum

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

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that the conversation of those board or committee members

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attending by telephone may be heard by the board or committee

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

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at a meeting.

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board of administration at which a quorum of the members is

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

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record or videotape meetings of the board of administration. The

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

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meetings with reference to all designated agenda items. The

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division shall adopt reasonable rules governing the tape

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recording and videotaping of the meeting. The association may

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adopt written reasonable rules governing the frequency, duration,

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and manner of unit owner statements. Adequate notice of all

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meetings, which notice shall specifically incorporate an

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identification of agenda items, shall be posted conspicuously on

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the condominium property at least 48 continuous hours preceding

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the meeting except in an emergency. Any item not included on the

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notice may be taken up on an emergency basis by at least a

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majority plus one of the members of the board or by a petition of

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20 percent of the unit owners. Such emergency action shall be

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noticed and ratified at the next regular meeting of the board.

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However, written notice of any meeting at which nonemergency

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special assessments, or at which amendment to rules regarding

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unit use, will be considered shall be mailed, delivered, or

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electronically transmitted to the unit owners and posted

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conspicuously on the condominium property not less than 14 days

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prior to the meeting. Evidence of compliance with this 14-day

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notice shall be made by an affidavit executed by the person

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providing the notice and filed among the official records of the

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association. Upon notice to the unit owners, the board shall by

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duly adopted rule designate a specific location on the

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condominium property or association property upon which all

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

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condominium property or association property upon which notices

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

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delivered, or electronically transmitted at least 14 days before

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

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

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administration on the condominium property, the association may,

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by reasonable rule, adopt a procedure for conspicuously posting

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and repeatedly broadcasting the notice and the agenda on a

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closed-circuit cable television system serving the condominium

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

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notice posted physically on the condominium property, the notice

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and agenda must be broadcast at least four times every broadcast

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

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

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agenda must be broadcast in a manner and for a sufficient

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

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observe the notice and read and comprehend the entire content of

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

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or special assessments against unit owners are to be considered

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for any reason shall specifically state contain a statement that

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assessments will be considered and the nature, cost, and

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breakdown of any such assessments. Meetings of a committee to

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take final action on behalf of the board or make recommendations

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to the board regarding the association budget are subject to the

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provisions of this paragraph. Meetings of a committee that does

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not take final action on behalf of the board or make

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recommendations to the board regarding the association budget are

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subject to the provisions of this section, unless those meetings

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are exempted from this section by the bylaws of the association.

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Notwithstanding any other law, the requirement that board

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meetings and committee meetings be open to the unit owners is

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inapplicable to meetings between the board or a committee and the

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association's attorney, with respect to proposed or pending

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

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or rendering legal advice.

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(d) Unit owner meetings.--

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

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

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

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in the state within 30 miles of the condominium property. Unless

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the bylaws provide otherwise, a vacancy on the board caused by

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the expiration of a director's term shall be filled by electing a

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new board member, and the election shall be by secret ballot;

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however, if the number of vacancies equals or exceeds the number

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of candidates, no election is required. If there is no provision

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in the bylaws for terms of the members of the board, the terms of

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all members of the board shall expire upon the election of their

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successors at the annual meeting. Any unit owner desiring to be a

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candidate for board membership shall comply with subparagraph 3.

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A person is not eligible for board membership if that person who

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has been convicted of any felony by any court of record in the

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United States and who has not had his or her right to vote

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restored pursuant to law in the jurisdiction of his or her

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residence is not eligible for board membership. The validity of

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an action by the board is not affected if it is later determined

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that a member of the board is ineligible for board membership due

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to having been convicted of a felony.

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2. The bylaws shall provide the method of calling meetings

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

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

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or electronically transmitted to each unit owner at least 14 days

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

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place on the condominium property at least 14 continuous days

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

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board shall by duly adopted rule designate a specific location on

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the condominium property or association property upon which all

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

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is no condominium property or association property upon which

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

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

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meeting of the unit owners on the condominium property, the

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association may, by reasonable rule, adopt a procedure for

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conspicuously posting and repeatedly broadcasting the notice and

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the agenda on a closed-circuit cable television system serving

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the condominium association. However, if broadcast notice is used

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in lieu of a notice posted physically on the condominium

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

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

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otherwise required under this section. When broadcast notice is

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

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

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average reader to observe the notice and read and comprehend the

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

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waives in writing the right to receive notice of the annual

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

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electronically transmitted to each unit owner. Notice for

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meetings and notice for all other purposes shall be mailed to

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each unit owner at the address last furnished to the association

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

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

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

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address which the developer initially identifies for that purpose

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

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

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

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

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or other person providing notice of the association meeting,

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shall provide an affidavit or United States Postal Service

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

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the association affirming that the notice was mailed or hand

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delivered, in accordance with this provision.

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

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

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electing the board, either in general elections or elections to

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fill vacancies caused by recall, resignation, or otherwise,

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

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before a scheduled election, the association or its

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representative shall mail, deliver, or electronically transmit,

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whether by separate association mailing or included in another

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association mailing, delivery, or transmission, including

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regularly published newsletters, to each unit owner entitled to a

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vote, a first notice of the date of the election. Any unit owner

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or other eligible person desiring to be a candidate for the board

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must give written notice to the association or its representative

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not less than 40 days before a scheduled election. Together with

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

524

the association or its representative shall mail, deliver, or

525

electronically transmit a second notice of the election to all

526

unit owners entitled to vote therein, together with a ballot

527

which shall list all candidates. Upon request of a candidate, the

528

association or its representative shall include an information

529

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

530

furnished by the candidate not less than 35 days before the

531

election, to be included with the mailing, delivery, or

532

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

533

or electronic transmission and copying to be borne by the

534

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

535

other person providing the first and second notices, shall

536

provide an affidavit or United States Postal Service certificate

537

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

538

association, affirming that the notices were mailed or hand

539

delivered in accordance with this subparagraph. The association

540

or its representative is not liable for the contents of the

541

information sheets prepared by the candidates. In order to reduce

542

costs, the association may print or duplicate the information

543

sheets on both sides of the paper. The division shall by rule

544

establish voting procedures consistent with the provisions

545

contained herein, including rules establishing procedures for

546

giving notice by electronic transmission and rules providing for

547

the secrecy of ballots. All ballot envelopes must be placed in a

548

locked or sealed ballot drop box immediately upon receipt, and

549

the box shall not be opened in advance of the election meeting.

550

Elections shall be decided by a plurality of those ballots cast.

551

There shall be no quorum requirement; however, at least 20

552

percent of the eligible voters must cast a ballot in order to

553

have a valid election of members of the board. No unit owner

554

shall permit any other person to vote his or her ballot, except

555

for a person acting under a specific power of attorney, and any

556

such ballots improperly cast shall be deemed invalid, provided

557

any unit owner who violates this provision may be fined by the

558

association in accordance with s. 718.303. A unit owner who needs

559

assistance in casting the ballot for the reasons stated in s.

560

101.051 may obtain assistance in casting the ballot. The regular

561

election shall occur on the date of the annual meeting. The

562

provisions of this subparagraph shall not apply to timeshare

563

condominium associations. Notwithstanding the provisions of this

564

subparagraph, an election is not required unless more candidates

565

file notices of intent to run or are nominated than board

566

vacancies exist.

567

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

568

or the applicable declaration or bylaws, including, but not

569

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

570

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

571

subject to all requirements of this chapter or the applicable

572

condominium documents relating to unit owner decisionmaking,

573

except that unit owners may take action by written agreement,

574

without meetings, on matters for which action by written

575

agreement without meetings is expressly allowed by the applicable

576

bylaws or declaration or any statute that provides for such

577

action.

578

5. Unit owners may waive notice of specific meetings if

579

allowed by the applicable bylaws or declaration or any statute.

580

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

581

administration, unit owner meetings, except unit owner meetings

582

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

583

meetings may be given by electronic transmission to unit owners

584

who consent to receive notice by electronic transmission.

585

6. Unit owners shall have the right to participate in

586

meetings of unit owners with reference to all designated agenda

587

items. However, the association may adopt reasonable rules

588

governing the frequency, duration, and manner of unit owner

589

participation.

590

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

591

the unit owners subject to reasonable rules adopted by the

592

division.

593

8. Unless otherwise provided in the bylaws, any vacancy

594

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

595

filled by the affirmative vote of the majority of the remaining

596

directors, even if the remaining directors constitute less than a

597

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

598

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

599

election procedures must conform to the requirements of

600

subparagraph 3. unless the association has opted out of the

601

statutory election process, in which case the bylaws of the

602

association control. Unless otherwise provided in the bylaws, a

603

board member appointed or elected under this section shall fill

604

the vacancy for the unexpired term of the seat being filled.

605

Filling vacancies created by recall is governed by paragraph (j)

606

and rules adopted by the division.

607

608

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

609

may, by the affirmative vote of a majority of the total voting

610

interests, provide for different voting and election procedures

611

in its bylaws, which vote may be by a proxy specifically

612

delineating the different voting and election procedures. The

613

different voting and election procedures may provide for

614

elections to be conducted by limited or general proxy.

615

(e) Budget meeting.--

616

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

617

association will be considered by the board or unit owners shall

618

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

619

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

620

each unit owner at the address last furnished to the association

621

by the unit owner, or electronically transmit to the location

622

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

623

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

624

manager of the association, or other person providing notice of

625

such meeting, shall execute an affidavit evidencing compliance

626

with such notice requirement, and such affidavit shall be filed

627

among the official records of the association.

628

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

629

which requires assessments against unit owners which exceed 115

630

percent of assessments for the preceding fiscal year, the board

631

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

632

substitute budget if the board receives, within 21 days after

633

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

634

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

635

special meeting shall be conducted within 60 days after adoption

636

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

637

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

638

to each unit owner at the address last furnished to the

639

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

640

the association, or other person providing notice of such meeting

641

shall execute an affidavit evidencing compliance with this notice

642

requirement, and such affidavit shall be filed among the official

643

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

644

substitute budget at the special meeting. A substitute budget is

645

adopted if approved by a majority of all voting interests unless

646

the bylaws require adoption by a greater percentage of voting

647

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

648

substitute budget is not adopted, the annual budget previously

649

adopted by the board shall take effect as scheduled.

650

b. Any determination of whether assessments exceed 115

651

percent of assessments for the prior fiscal year shall exclude

652

any authorized provision for reasonable reserves for repair or

653

replacement of the condominium property, anticipated expenses of

654

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

655

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

656

condominium property.

657

c. If the developer controls the board, assessments shall

658

not exceed 115 percent of assessments for the prior fiscal year

659

unless approved by a majority of all voting interests.

660

(f) Annual budget.--

661

1. The association shall prepare an annual budget of

662

estimated revenues and expenses. The adopted budget of the prior

663

fiscal year shall remain in effect until the association has

664

adopted a new budget for the current fiscal year. The proposed

665

annual budget of estimated revenues and common expenses shall be

666

detailed and shall show the amounts budgeted by accounts and

667

expense classifications, including, if applicable, but not

668

limited to, those expenses listed in s. 718.504(21). A

669

multicondominium association shall adopt a separate budget of

670

common expenses for each condominium the association operates and

671

shall adopt a separate budget of common expenses for the

672

association. In addition, if the association maintains limited

673

common elements with the cost to be shared only by those entitled

674

to use the limited common elements as provided for in s.

675

718.113(1), the budget or a schedule attached thereto shall show

676

amounts budgeted therefor. If, after turnover of control of the

677

association to the unit owners, any of the expenses listed in s.

678

718.504(21) are not applicable, they need not be listed.

679

2. In addition to annual operating expenses, the budget

680

shall include reserve accounts for capital expenditures and

681

deferred maintenance. These accounts shall include, but are not

682

limited to, roof replacement, building painting, and pavement

683

resurfacing, regardless of the amount of deferred maintenance

684

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

685

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

686

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

687

which is based upon estimated remaining useful life and estimated

688

replacement cost or deferred maintenance expense of each reserve

689

item. The association may adjust replacement reserve assessments

690

annually to take into account any changes in estimates or

691

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

692

maintenance. This subsection does not apply to an adopted budget

693

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

694

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

695

provide no reserves or less reserves than required by this

696

subsection. However, prior to turnover of control of an

697

association by a developer to unit owners other than a developer

698

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

699

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

700

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

701

year in which the initial declaration is recorded, after which

702

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

703

majority of all nondeveloper voting interests voting in person or

704

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

705

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

706

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

707

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

708

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

709

developer may vote its voting interest to waive or reduce the

710

funding of reserves.

711

3. Reserve funds and any interest accruing thereon shall

712

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

713

for authorized reserve expenditures unless their use for other

714

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

715

called meeting of the association. Prior to turnover of control

716

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

717

developer pursuant to s. 718.301, the developer-controlled

718

association shall not vote to use reserves for purposes other

719

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

720

majority of all nondeveloper voting interests, voting in person

721

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

722

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

723

questions that involve waiving or reducing the funding of

724

reserves, or using existing reserve funds for purposes other than

725

purposes for which the reserves were intended, are the voting

726

interests of the units subject to assessment to fund the reserves

727

in question. The face of all ballots that involve questions

728

relating to waiving or reducing the funding of reserves or using

729

existing reserve funds for purposes other than purposes for which

730

the reserves were intended shall contain the following statement

731

in capitalized, bold letters in a font size larger than any other

732

used on the face of the ballot: WAIVING OF RESERVES, IN WHOLE OR

733

IN PART, OR ALLOWING ALTERNATE USES OF EXISTING RESERVES MAY

734

RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED

735

SPECIAL ASSESSMENTS REGARDING THOSE RESERVE ITEMS.

736

5. A vote to provide for no reserves or a percentage of

737

reserves shall be made at the annual meeting of the unit owners

738

called under paragraph (d). The division shall adopt the form for

739

the ballot for no reserves and a percentage of reserves.

740

6. Notwithstanding subparagraph 3., the association after

741

turnover of control of the association may, in case of a

742

catastrophic event, use reserve funds for nonscheduled purposes

743

to mitigate further damage to units or common elements or to make

744

the condominium accessible for repairs.

745

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

746

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

747

bylaws. Assessments shall be made against units not less

748

frequently than quarterly in an amount which is not less than

749

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

750

the anticipated current operating expenses and for all of the

751

unpaid operating expenses previously incurred. Nothing in this

752

paragraph shall preclude the right of an association to

753

accelerate assessments of an owner delinquent in payment of

754

common expenses. Accelerated assessments shall be due and payable

755

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

756

assessments shall include the amounts due for the remainder of

757

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

758

(h) Amendment of bylaws.--

759

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

760

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

761

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

762

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

763

than two-thirds of the voting interests.

764

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

765

title or number only. Proposals to amend existing bylaws shall

766

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

767

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

768

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

769

change is so extensive that this procedure would hinder, rather

770

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

771

not necessary to use underlining and hyphens as indicators of

772

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

773

immediately preceding the proposed amendment in substantially the

774

following language: "Substantial rewording of bylaw. See bylaw

775

_____ for present text."

776

3. Nonmaterial errors or omissions in the bylaw process

777

will not invalidate an otherwise properly promulgated amendment.

778

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

779

association or any body thereof in connection with the sale,

780

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

781

association is required to approve such transfer and a fee for

782

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

783

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

784

exceed $100 per applicant other than husband/wife or

785

parent/dependent child, which are considered one applicant.

786

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

787

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

788

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

789

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

790

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

791

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

792

account maintained by the association. The security deposit shall

793

protect against damages to the common elements or association

794

property. Payment of interest, claims against the deposit,

795

refunds, and disputes under this paragraph shall be handled in

796

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

797

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

798

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

799

recalled and removed from office with or without cause by the

800

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

801

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

802

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

803

10 percent of the voting interests giving notice of the meeting

804

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

805

state the purpose of the meeting. Electronic transmission may not

806

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

807

or in part for this purpose.

808

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

809

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

810

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

811

meeting within 5 full business days of the adjournment of the

812

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

813

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

814

such member or members shall be recalled effective immediately

815

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

816

and all records and property of the association in their

817

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

818

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

819

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

820

copy thereof shall be served on the association by certified mail

821

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

822

the Florida Rules of Civil Procedure. The board of administration

823

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

824

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

825

meeting, the board shall either certify the written agreement to

826

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

827

member or members shall be recalled effective immediately and

828

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

829

all records and property of the association in their possession,

830

or proceed as described in subparagraph 3.

831

3. If the board determines not to certify the written

832

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

833

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

834

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

835

division a petition for arbitration pursuant to the procedures in

836

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

837

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

838

shall constitute one party under the petition for arbitration. If

839

the arbitrator certifies the recall as to any member or members

840

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

841

final order of arbitration to the association. If the association

842

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

843

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

844

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

845

association in their possession within 5 full business days of

846

the effective date of the recall.

847

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

848

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

849

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

850

unit owner recall meeting, the recall shall be deemed effective

851

and the board members so recalled shall immediately turn over to

852

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

853

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

854

and less than a majority of the board members are removed, the

855

vacancy may be filled by the affirmative vote of a majority of

856

the remaining directors, notwithstanding any provision to the

857

contrary contained in this subsection. If vacancies occur on the

858

board as a result of a recall and a majority or more of the board

859

members are removed, the vacancies shall be filled in accordance

860

with procedural rules to be adopted by the division, which rules

861

need not be consistent with this subsection. The rules must

862

provide procedures governing the conduct of the recall election

863

as well as the operation of the association during the period

864

after a recall but prior to the recall election.

865

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

866

nonbinding arbitration as provided for in s. 718.1255.

867

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

868

that a certificate of compliance from a licensed electrical

869

contractor or electrician may be accepted by the association's

870

board as evidence of compliance of the condominium units with the

871

applicable fire and life safety code. Notwithstanding the

872

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

873

ordinance, administrative rule, or regulation, or any

874

interpretation of the foregoing, an association, condominium, or

875

unit owner is not obligated to retrofit the common elements or

876

units of a residential condominium with a fire sprinkler system

877

or other engineered lifesafety system in a building that has been

878

certified for occupancy by the applicable governmental entity, if

879

the unit owners have voted to forego such retrofitting and

880

engineered lifesafety system by the affirmative vote of two-

881

thirds of all voting interests in the affected condominium.

882

However, a condominium association may not vote to forego the

883

retrofitting with a fire sprinkler system of common areas in a

884

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

885

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

886

feet in height where the building height is measured from the

887

lowest level of fire department access to the floor of the

888

highest occupiable story. For purposes of this subsection, the

889

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

890

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

891

having jurisdiction require completion of retrofitting of common

892

areas with a sprinkler system before the end of 2014.

893

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

894

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

895

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

896

shall be effective upon the recording of a certificate attesting

897

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

898

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

899

or electronically transmit to each unit owner written notice at

900

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

901

to forego retrofitting of the required fire sprinkler system is

902

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

903

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

904

hand delivered, or electronically transmitted to all unit owners.

905

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

906

an affidavit executed by the person providing the notice and

907

filed among the official records of the association. After such

908

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

909

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

910

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

911

lease.

912

2. As part of the information collected annually from

913

condominiums, the division shall require condominium associations

914

to report the membership vote and recording of a certificate

915

under this subsection and, if retrofitting has been undertaken,

916

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

917

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

918

Financial Services the number of condominiums that have elected

919

to forego retrofitting.

920

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

921

1. With respect to condominiums created on or after October

922

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

923

association a limited power to convey a portion of the common

924

elements to a condemning authority for the purpose of providing

925

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

926

purposes, whether negotiated or as a result of eminent domain

927

proceedings.

928

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

929

association's power to convey common elements as described in

930

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

931

provision described in subparagraph 1.

932

Section 3. Subsections (6) and (7) are added to section

933

718.113, Florida Statutes, to read:

934

718.113 Maintenance; limitation upon improvement; display

935

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

936

(6) Every 5 years, each board of administration shall have

937

the condominium buildings inspected by a professional engineer or

938

professional architect registered in the state for the purposes

939

of determining whether the buildings are structurally and

940

electrically safe and determining any immediate maintenance

941

required as well as any long-term maintenance necessary in the

942

form of a long-term maintenance plan. The long-term maintenance

943

plan shall include an executive summary that shall be distributed

944

to all unit owners. The engineer or architect shall provide a

945

report indicating the manner and type of inspection forming the

946

basis for the report and description of any matters identified as

947

requiring remedial action. The report shall become an official

948

record of the association and be provided to the members upon

949

request pursuant to s. 718.111(12).

950

(7) The board of administration may not adopt any rule or

951

regulation impairing any rights guaranteed by the First Amendment

952

to the Constitution of the United States or s. 3, Art. I of the

953

Florida Constitution, including, but not limited to, the free

954

exercise of religion, nor may any rules or regulations conflict

955

with the provisions of this chapter or the condominium

956

instruments. A rule or regulation may not prohibit any reasonable

957

accommodation for religious practices, including the attachment

958

of religiously mandated objects to the front-door area of a

959

condominium unit.

960

Section 4. Section 718.1224, Florida Statutes, is created

961

to read:

962

718.1224 Prohibition against SLAPP suits.--

963

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

964

right of condominium unit owners to exercise their rights to

965

instruct their representatives and petition for redress of

966

grievances before the various governmental entities of this state

967

as protected by the First Amendment to the United States

968

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

969

Legislature recognizes that strategic lawsuits against public

970

participation, or "SLAPP suits" as they are typically referred

971

to, have occurred when association members are sued by

972

individuals, business entities, or governmental entities arising

973

out of a condominium unit owner's appearance and presentation

974

before a governmental entity on matters related to the

975

condominium association. However, it is the public policy of this

976

state that governmental entities, business organizations, and

977

individuals not engage in SLAPP suits, because such actions are

978

inconsistent with the right of condominium unit owners to

979

participate in the state's institutions of government. Therefore,

980

the Legislature finds and declares that prohibiting such lawsuits

981

by governmental entities, business entities, and individuals

982

against condominium unit owners who address matters concerning

983

their condominium association will preserve this fundamental

984

state policy, preserve the constitutional rights of condominium

985

unit owners, and ensure the continuation of representative

986

government in this state. It is the intent of the Legislature

987

that such lawsuits be expeditiously disposed of by the courts. As

988

used in this subsection, the term "governmental entity" means the

989

state, including the executive, legislative, and judicial

990

branches of government; the independent establishments of the

991

state, counties, municipalities, districts, authorities, boards,

992

or commissions; or any agencies of these branches which are

993

subject to chapter 286.

994

(2) A governmental entity, business organization, or

995

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

996

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

997

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

998

owner without merit and solely because such condominium unit

999

owner has exercised the right to instruct his or her

1000

representatives or the right to petition for redress of

1001

grievances before the various governmental entities of this

1002

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

1003

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

1004

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

1005

business organization, or individual in violation of this section

1006

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

1007

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

1008

petition the court for an order dismissing the action or granting

1009

final judgment in favor of that condominium unit owner. The

1010

petitioner may file a motion for summary judgment, together with

1011

supplemental affidavits, seeking a determination that the

1012

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

1013

lawsuit has been brought in violation of this section. The

1014

governmental entity, business organization, or individual shall

1015

thereafter file its response and any supplemental affidavits. As

1016

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

1017

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

1018

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

1019

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

1020

condominium unit owner sued by the governmental entity, business

1021

organization, or individual actual damages arising from the

1022

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

1023

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

1024

to a prevailing condominium unit owner and shall state the basis

1025

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

1026

award the prevailing party reasonable attorney fees and costs

1027

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

1028

violation of this section.

1029

(4) Condominium associations may not expend association

1030

funds in prosecuting a SLAPP suit against a condominium unit

1031

owner.

1032

Section 5. This act shall take effect July 1, 2008.

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