Florida Senate - 2008 CS for CS for SB 2084

By the Committees on Community Affairs; Regulated Industries; and Senator Villalobos

578-07305-08 20082084c2

A bill to be entitled

An act relating to community associations; amending s.

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

management firm"; redefining the term "community

association manager" to apply only to natural persons;

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

for members of the Regulatory Council of Community

Association Managers; requiring the board to establish a

public education program; providing for board members to

serve without compensation but be entitled to receive per

diem and travel expenses; providing responsibilities of

the board; amending s. 468.432, F.S.; providing for the

licensure of community association management firms;

providing application, licensure, and fee requirements;

providing for the cancellation of the license of a

community association management firm under certain

circumstances; providing that such firm or similar

organization agrees that, by being licensed, it shall

employ only licensed persons providing certain services;

amending s. 468.433, F.S.; providing for the refusal of an

applicant certification under certain circumstances;

amending s. 468.436, F.S.; requiring the Department of

Business and Professional Regulation to investigate

certain complaints and allegations; providing complaint

and investigation procedures; providing grounds for which

disciplinary action may be taken; amending s. 718.111,

F.S.; providing duties of officers, directors, and agents

of a condominium association and liability for monetary

damages under certain circumstances; providing that a

person who knowingly or intentionally fails to create or

maintain, or who defaces or destroys certain records, is

subject to civil penalties as prescribed by state law;

requiring that a copy of the inspection report be

maintained as an official record of the association;

requiring official records of the association to be

maintained for a specified minimum period and be made

available at certain locations and in specified formats;

providing that any person who knowingly or intentionally

defaces, destroys, or fails to create or maintain

accounting records is subject to civil and criminal

sanctions; prohibiting accessibility to certain personal

identifying information of unit owners by fellow unit

owners; requiring that the Division of Florida Land Sales,

Condominiums, and Mobile Homes of the Department of

Business and Professional Regulation adopt certain rules;

requiring certain audits and reports to be paid for by the

developer if done before control of the association is

turned over; restricting a condominium association from

waiving a financial report for more than a specified

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

interest or a consent right allocated to a unit owner from

being exercised under certain circumstances; requiring the

board to address certain agenda items proposed by a

petition of a specified percentage of the unit owners;

providing requirements for the location of annual unit

owner meetings; revising terms of service for board

members; prohibiting certain persons from serving on the

board; requiring the association to provide a

certification form to unit owners for specified purposes;

authorizing an association consisting of a specified

maximum number of units to provide for different voting

and election procedures in its bylaws by affirmative vote

of a majority of the association's voting interests;

revising requirements related to the annual budget;

requiring proxy questions relating to reserves to contain

a specified statement; providing for the removal of board

members under certain circumstances; requiring that

directors who are delinquent in certain payments owed in

excess of certain periods of time be suspended from office

or deemed to have abandoned their offices; requiring that

directors charged with certain offenses involving an

association's funds or property be suspended from office

pending resolution of the charge; providing for the

reinstatement of such officers or directors under certain

circumstances; amending s. 718.1124, F.S.; providing that

any unit owner may give notice of his or her intent to

apply to the circuit court for the appointment of a

receiver to manage the affairs of the association under

certain circumstances; providing a form for such notice;

providing for the delivery of such notice; providing

procedures for resolving a petition submitted pursuant to

such notice; requiring that all unit owners be provided

written notice of the appointment of a receiver; amending

s. 718.113, F.S.; providing a statement of clarification;

authorizing the board to install certain hurricane

protection; prohibiting the board from installing

hurricane shutters under certain circumstances; requiring

that the board inspect certain condominium buildings and a

issue a report thereupon; prohibiting the board from

refusing a request for reasonable accommodation for the

attachment to a unit of religious objects meeting certain

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

that all unit owners be provided written notice of the

appointment of a receiver; providing for the delivery of

such notice; amending s. 718.121, F.S.; providing

requirements and restrictions for liens filed by the

association against a condominium unit; providing for

notice and delivery thereof; creating s. 718.1224, F.S.;

prohibiting strategic lawsuits against public

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participation; providing legislative findings and intent;

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prohibiting a governmental entity, business organization,

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or individual from filing certain lawsuits made upon

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specified bases against a unit owner; providing rights of

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a unit owner who has been served with such a lawsuit;

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providing procedures for the resolution of claims that

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such suit violates certain provisions of state law;

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providing for the award of damages and attorney's fees;

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prohibiting associations from expending association funds

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in prosecuting such a suit against a unit owner; amending

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

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alternative dispute resolution; creating s. 718.1265,

112

F.S.; authorizing an association to exercise certain

113

powers in instances involving damage caused by an event

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for which a state of emergency has been declared; limiting

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the applicability of such powers; creating s. 718.127,

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F.S.; requiring that all unit owners be provided written

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notice of the appointment of a receiver; providing for the

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delivery of such notice; amending s. 718.301, F.S.;

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providing circumstances under which unit owners other than

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a developer may elect not fewer than a majority of the

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members of the board of administration of an association;

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requiring that a developer deliver certain property of the

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unit owners and the association within a specified period

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after such election and upon relinquishing control of the

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association; requiring a turnover inspection report;

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requiring that the report contain certain information;

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amending s. 718.3025, F.S.; requiring that maintenance and

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management services contracts disclose certain

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information; amending s. 718.3026, F.S.; removing a

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provision authorizing certain associations to opt out of

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provisions relating to contracts for products and

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services; removing provisions relating to competitive bid

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requirements for contracts executed before a specified

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date; providing requirements for any contract or

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transaction between an association and one or more of its

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directors or any other entity in which one or more of its

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directors are directors or officers or have a financial

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interest; amending s. 718.303, F.S.; providing that

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hearings regarding noncompliance with a declaration be

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held before certain persons; amending s. 718.501, F.S.;

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providing authority and responsibilities of the division;

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providing for enforcement actions brought by the division

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in its own name; providing for the imposition of penalties

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by the division; requiring that the division issue a

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subpoena requiring production of certain requested records

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under certain circumstances; providing for the issuance of

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notice of a declaratory statement with respect to

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documents governing a condominium community; requiring

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that the division provide training and education for

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condominium association board members and unit owners;

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authorizing the division to include certain training

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components and review or approve training programs offered

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by providers; requiring that certain individuals cooperate

154

with the division in any investigation conducted by the

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division; amending s. 718.50151, F.S.; redesignating the

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Advisory Council on Condominiums as the "Community

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Association Living Study Council"; providing for the

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creation of the council; providing functions of the

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council; amending s. 718.503, F.S.; providing for

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disclosure of certain information upon the sale of a unit

161

by a nondeveloper; requiring the provisions of a

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governance form by the seller to the prospective buyer;

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requiring that such form contain certain information and a

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specified statement; providing an effective date.

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

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

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read:

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468.431 Definitions.--As used in this part:

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

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association in which membership is a condition of ownership of a

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

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

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or other residential unit which is part of a residential

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development scheme and which is authorized to impose a fee which

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may become a lien on the parcel.

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

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following practices requiring substantial specialized knowledge,

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judgment, and managerial skill when done for remuneration and

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when the association or associations served contain more than 10

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

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

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association, preparing budgets or other financial documents for a

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community association, assisting in the noticing or conduct of

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community association meetings, and coordinating maintenance for

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the residential development and other day-to-day services

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involved with the operation of a community association. A person

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who performs clerical or ministerial functions under the direct

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supervision and control of a licensed manager or who is charged

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only with performing the maintenance of a community association

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and who does not assist in any of the management services

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described in this subsection is not required to be licensed under

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this part.

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(3) "Community association management firm" means a

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corporation, limited liability company, partnership, trust,

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association, sole proprietorship, or other similar organization

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engaging in the business of community association management for

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the purpose of providing any of the services described in

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subsection (2).

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

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person who is licensed pursuant to this part to perform community

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association management services.

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

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Association Managers.

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

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Professional Regulation.

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Section 2. Section 468.4315, Florida Statutes, is amended

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to read:

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468.4315 Regulatory Council of Community Association

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Managers.--

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(1) The Regulatory Council of Community Association

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Managers is created within the department and shall consist of

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seven members appointed by the Governor and confirmed by the

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Senate.

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

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association managers, one of whom may shall be a community

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association manager employed by a timeshare managing entity as

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

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

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

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been connected with the business of community association

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management, and may not be prohibited from serving because the

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

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association.

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

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years. Such members shall serve until their successors are

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appointed. Members' service on the council shall begin upon

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appointment and shall continue until their successors are

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appointed.

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

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examination, continuing education requirements, continuing

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education providers, fees, and professional practice standards to

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assist the department in carrying out the duties and authorities

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conferred upon the department by this part.

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

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functions otherwise exercised by a board pursuant to chapter 455,

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the provisions of chapter 455 and s. 20.165 relating to

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

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provisions relating to board rules and the accountability and

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liability of board members. All proceedings and actions of the

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council are subject to the provisions of chapter 120. In

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

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to the department in carrying out the duties and authorities

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conferred upon the department by this part.

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(4) The council may establish a public education program

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relating to professional community association management.

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(5) Members of the council shall serve without

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compensation, but are entitled to receive per diem and travel

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expenses pursuant to s. 112.061 while carrying out business

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approved by the council.

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

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not limited to:

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(a) Receiving input regarding issues of concern with

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respect to community association management and recommendations

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for changes in applicable laws.

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(b) Reviewing, evaluating, and advising the division

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concerning revisions and adoption of rules affecting community

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association management.

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programs offered by the division.

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

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read:

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468.432 Licensure of community association managers and

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community association management firms; exceptions.--

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(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

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

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department in accordance with the provisions of this part.

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However, nothing in this part does not prohibit prohibits any

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

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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

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

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

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able to engage in the business of community association

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management in this state unless it is licensed by the department

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as a community association management firm in accordance with the

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provisions of this part.

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(a) A community association management firm or other

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similar organization desiring to be licensed as a community

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association management firm shall apply to the department on a

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form approved by the department and submit the application

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together with licensure fees required by s. 468.435(1)(a) and

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(c). Each community association management firm applying for

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licensure under this subsection must be actively registered and

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authorized 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

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inquires from and investigations by the department or division.

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shall notify the department within 30 days following any change

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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

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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

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community association manager member is not in force, the license

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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).

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(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

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without being licensed if it employs licensed natural persons in

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the direct provision of community association management

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

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other organization shall also file with the department a

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statement on a form approved by the department that it submits

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

320

provisions of this part which the department deems applicable.

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

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Florida Statutes, are amended to read:

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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

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prelicensure education requirements, and who the department

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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.

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

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if:

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1. There is a substantial connection between the lack of

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good moral character of the applicant and the professional

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responsibilities of a community association manager; and

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

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character is supported by clear and convincing evidence; and

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3. The applicant is found to have provided management

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services requiring licensure without the requisite license.

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

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shall furnish the applicant a statement containing its findings,

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a complete record of the evidence upon which the determination

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

345

rehearing and appeal.

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

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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

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

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within 12 months prior to the date of the examination.

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Prelicensure education providers shall be considered continuing

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education providers for purposes of establishing provider

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

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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.

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

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read:

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468.436 Disciplinary proceedings.--

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(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

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under the Department of Business and Professional Regulation.

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After a complaint is received, the department shall conduct an

372

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

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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

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jurisdiction of the department and whether or not additional

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information is needed by the department from the complainant. The

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department shall conduct an investigation and shall, within 90

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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

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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

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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

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within the time limits established in this subsection, the

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

390

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,

403

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

404

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

411

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

415

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

422

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

423

the department specifies.

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

425

community association manager.

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

427

disciplined community association manager or firm upon

428

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

430

in the final order.

431

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

432

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

433

of that section are amended, to read:

434

718.111 The association.--

435

(1) CORPORATE ENTITY.--

436

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

437

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

438

care an ordinarily prudent person in a like position would

439

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

442

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

443

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

444

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

445

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

446

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

447

from which the officer or director derived an improper personal

448

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

449

or omission performed or omitted in bad faith, with malicious

450

purpose, or in a manner exhibiting wanton and willful disregard

451

of human rights, safety, or property.

452

(12) OFFICIAL RECORDS.--

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

454

shall maintain each of the following items, when applicable,

455

which shall constitute the official records of the association:

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

457

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

460

amendment to each declaration.

461

3. A photocopy of the recorded bylaws of the association

462

and of each amendment to the bylaws.

463

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

464

association, or other documents creating the association, and of

465

each amendment thereto.

466

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

467

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

468

meetings of the association, of the board of administration

469

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

470

for a period of not less than 7 years.

471

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

472

addresses, unit identifications, voting certifications, and, if

473

known, telephone numbers. The association shall also maintain the

474

electronic mailing addresses and the numbers designated by unit

475

owners for receiving notice sent by electronic transmission of

476

those unit owners consenting to receive notice by electronic

477

transmission. The electronic mailing addresses and numbers

478

provided by unit owners to receive notice by electronic

479

transmission shall be removed from association records when

480

consent to receive notice by electronic transmission is revoked.

481

However, the association is not liable for an erroneous

482

disclosure of the electronic mail address or the number for

483

receiving electronic transmission of notices.

484

8. All current insurance policies of the association and

485

condominiums operated by the association.

486

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

487

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

488

the association or the unit owners have an obligation or

489

responsibility.

490

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

491

association.

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11. Accounting records for the association and separate

493

accounting records for each condominium which the association

494

operates. All accounting records shall be maintained for a period

495

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

496

intentionally defaces or destroys accounting records required to

497

be maintained by this chapter, or who knowingly or intentionally

498

fails to create or maintain accounting records required to be

499

created or maintained by this chapter, is personally subject to a

500

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

501

records shall include, but are not limited to:

502

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

503

and expenditures.

504

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

505

statement of the account for each unit designating the name of

506

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

507

amount paid upon the account, and the balance due.

508

c. All audits, reviews, accounting statements, and

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financial reports of the association or condominium.

510

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

511

be performed shall also be considered official records and shall

512

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

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

514

papers relating to voting by unit owners, which shall be

515

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

516

vote, or meeting to which the document relates, notwithstanding

517

paragraph (b).

518

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

519

agent for the rental of condominium units.

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

521

described by s. 718.504.

522

15. All other records of the association not specifically

523

included in the foregoing which are related to the operation of

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the association.

525

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

526

718.301(4)(p).

527

(b) The official records of the association shall be

528

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

529

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

530

miles of the condominium property within 5 working days after

531

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

532

such distance requirement does not apply to an association

533

governing a timeshare condominium. This paragraph may be complied

534

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

535

available for inspection or copying on the condominium property

536

or association property. The association may offer the option of

537

making the records of the association available to a unit owner

538

electronically via the Internet or by allowing the records to be

539

viewed in electronic format on a computer screen and printed upon

540

request.

541

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inspection by any association member or the authorized

543

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

545

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

546

member. The association may adopt reasonable rules regarding the

547

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

548

inspections and copying. The failure of an association to provide

549

the records within 10 working days after receipt of a written

550

request shall create a rebuttable presumption that the

551

association willfully failed to comply with this paragraph. A

552

unit owner who is denied access to official records is entitled

553

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

554

willful failure to comply with this paragraph. The minimum

555

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

556

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

557

written request. The failure to permit inspection of the

558

association records as provided herein entitles any person

559

prevailing in an enforcement action to recover reasonable

560

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

561

directly or indirectly, knowingly denied access to the records

562

for inspection. Any person who knowingly or intentionally defaces

563

or destroys accounting records that are required by this chapter,

564

or knowingly or intentionally fails to create or maintain

565

accounting records that are required by this chapter, is

566

personally subject to a civil penalty pursuant to s.

567

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

568

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

569

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

570

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

571

year-end financial information required in this section on the

572

condominium property to ensure their availability to unit owners

573

and prospective purchasers, and may charge its actual costs for

574

preparing and furnishing these documents to those requesting the

575

same. Notwithstanding the provisions of this paragraph, the

576

following records shall not be accessible to unit owners:

577

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

578

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

579

product privilege, including any record prepared by an

580

association attorney or prepared at the attorney's express

581

direction; which reflects a mental impression, conclusion,

582

litigation strategy, or legal theory of the attorney or the

583

association, and which was prepared exclusively for civil or

584

criminal litigation or for adversarial administrative

585

proceedings, or which was prepared in anticipation of imminent

586

civil or criminal litigation or imminent adversarial

587

administrative proceedings until the conclusion of the litigation

588

or adversarial administrative proceedings.

589

2. Information obtained by an association in connection

590

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

591

unit.

592

3. Medical records of unit owners.

593

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

594

credit card numbers, and other personal identifying information

595

of any person.

596

(d) The association shall prepare a question and answer

597

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

598

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

599

required to provide a prospective purchaser or lienholder with

600

information about the condominium or the association other than

601

information or documents required by this chapter to be made

602

available or disclosed. The association or its authorized agent

603

may charge a reasonable fee to the prospective purchaser,

604

lienholder, or the current unit owner for providing good faith

605

responses to requests for information by or on behalf of a

606

prospective purchaser or lienholder, other than that required by

607

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

608

photocopying and any attorney's fees incurred by the association

609

in connection with the response.

610

2. An association and its authorized agent are not liable

611

for providing such information in good faith pursuant to a

612

written request if the person providing the information includes

613

a written statement in substantially the following form: "The

614

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

615

ability as to their accuracy."

616

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

617

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

618

the association shall prepare and complete, or contract for the

619

preparation and completion of, a financial report for the

620

preceding fiscal year. Within 21 days after the final financial

621

report is completed by the association or received from the third

622

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

623

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

624

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

625

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

626

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

627

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

628

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

629

unit owner. The division shall adopt rules setting forth uniform

630

accounting principles and standards to be used by all

631

associations and shall adopt rules addressing financial reporting

632

requirements for multicondominium associations. The rules shall

633

include, but need not be limited to, uniform accounting

634

principles and standards for stating the disclosure of at least a

635

summary of the reserves, including information as to whether such

636

reserves are being funded at a level sufficient to prevent the

637

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

638

assessments necessary to bring the reserves up to the level

639

necessary to avoid a special assessment. The person preparing the

640

financial reports is entitled to rely on an inspection report

641

prepared for or provided to the association to meet the fiscal

642

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

643

the division shall consider the number of members and annual

644

revenues of an association. Financial reports shall be prepared

645

as follows:

646

(a) An association that meets the criteria of this

647

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

648

financial statements in accordance with generally accepted

649

accounting principles. The financial statements shall be based

650

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

651

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

652

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

653

statements.

654

2. An association with total annual revenues of at least

655

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

656

financial statements.

657

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

658

more shall prepare audited financial statements.

659

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

660

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

661

expenditures.

662

2. An association which operates less than 50 units,

663

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

664

report of cash receipts and expenditures in lieu of financial

665

statements required by paragraph (a).

666

3. A report of cash receipts and disbursements must

667

disclose the amount of receipts by accounts and receipt

668

classifications and the amount of expenses by accounts and

669

expense classifications, including, but not limited to, the

670

following, as applicable: costs for security, professional and

671

management fees and expenses, taxes, costs for recreation

672

facilities, expenses for refuse collection and utility services,

673

expenses for lawn care, costs for building maintenance and

674

repair, insurance costs, administration and salary expenses, and

675

reserves accumulated and expended for capital expenditures,

676

deferred maintenance, and any other category for which the

677

association maintains reserves.

678

679

without a meeting of or approval by the unit owners:

680

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

681

the association is required to prepare a report of cash receipts

682

and expenditures;

683

2. Reviewed or audited financial statements, if the

684

association is required to prepare compiled financial statements;

685

686

3. Audited financial statements if the association is

687

required to prepare reviewed financial statements.

688

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

689

present at a properly called meeting of the association, an

690

association may prepare or cause to be prepared:

691

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

692

compiled, reviewed, or audited financial statement;

693

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

694

financial statement in lieu of a reviewed or audited financial

695

statement; or

696

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

697

financial statement, or a reviewed financial statement in lieu of

698

an audited financial statement.

699

700

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

701

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

702

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

703

developer has not turned over control of the association, all

704

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

705

to the preparation of financial reports for the first 2 fiscal

706

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

707

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

708

owners except the developer may vote on such issues until control

709

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

710

review prepared under this section shall be paid for by the

711

developer if done before control of the association is turned

712

over. An association may not waive the financial reporting

713

requirements of this section for more than 2 consecutive years.

714

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

715

Statutes, is amended to read:

716

718.112 Bylaws.--

717

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

718

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

719

the following:

720

(a) Administration.--

721

1. The form of administration of the association shall be

722

described indicating the title of the officers and board of

723

administration and specifying the powers, duties, manner of

724

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

725

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

726

administration shall be composed of five members, except in the

727

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

728

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

729

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

730

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

731

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

732

duties of such officers customarily performed by officers of

733

corporations. Unless prohibited in the bylaws, the board of

734

administration may appoint other officers and grant them the

735

duties it deems appropriate. Unless otherwise provided in the

736

bylaws, the officers shall serve without compensation and at the

737

pleasure of the board of administration. Unless otherwise

738

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

739

without compensation.

740

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

741

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

742

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

743

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

744

response to the inquirer, notify the inquirer that a legal

745

opinion has been requested, or notify the inquirer that advice

746

has been requested from the division. If the board requests

747

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

748

receipt of the advice, provide in writing a substantive response

749

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

750

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

751

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

752

provide a substantive response to the inquiry as provided herein

753

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

754

any subsequent litigation, administrative proceeding, or

755

arbitration arising out of the inquiry. The association may

756

through its board of administration adopt reasonable rules and

757

regulations regarding the frequency and manner of responding to

758

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

759

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

760

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

761

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

762

or periods, as applicable.

763

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

764

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

765

percentage of voting interests required to constitute a quorum at

766

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

767

interests. Unless otherwise provided in this chapter or in the

768

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

769

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

770

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

771

which a quorum is present.

772

2. Except as specifically otherwise provided herein, after

773

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

774

may vote by limited proxies substantially conforming to a limited

775

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

776

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

777

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

778

election, or otherwise. Limited proxies and general proxies may

779

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

780

votes taken to waive or reduce reserves in accordance with

781

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

782

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

783

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

784

amend the articles of incorporation or bylaws pursuant to this

785

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

786

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

787

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

788

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

789

proxies may be used for other matters for which limited proxies

790

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

791

nonsubstantive changes to items for which a limited proxy is

792

required and given. Notwithstanding the provisions of this

793

subparagraph, unit owners may vote in person at unit owner

794

meetings. Nothing contained herein shall limit the use of general

795

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

796

or election at any meeting of a timeshare condominium

797

association.

798

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

799

meeting for which originally given and any lawfully adjourned

800

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

801

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

802

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

803

the pleasure of the unit owner executing it.

804

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

805

may submit in writing his or her agreement or disagreement with

806

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

807

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

808

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

809

creating a quorum.

810

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

811

telephone conference, those board or committee members attending

812

by telephone conference may be counted toward obtaining a quorum

813

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

814

that the conversation of those board or committee members

815

attending by telephone may be heard by the board or committee

816

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

817

at a meeting.

818

819

board of administration at which a quorum of the members is

820

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

821

record or videotape meetings of the board of administration. The

822

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

823

meetings with reference to all designated agenda items. The

824

division shall adopt reasonable rules governing the tape

825

recording and videotaping of the meeting. The association may

826

adopt written reasonable rules governing the frequency, duration,

827

and manner of unit owner statements. Adequate notice of all

828

meetings, which notice shall specifically incorporate an

829

identification of agenda items, shall be posted conspicuously on

830

the condominium property at least 48 continuous hours preceding

831

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

832

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

833

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

834

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

835

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

836

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

837

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

838

emergency action shall be noticed and ratified at the next

839

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

840

meeting at which nonemergency special assessments, or at which

841

amendment to rules regarding unit use, will be considered shall

842

be mailed, delivered, or electronically transmitted to the unit

843

owners and posted conspicuously on the condominium property not

844

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

845

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

846

the person providing the notice and filed among the official

847

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

848

board shall by duly adopted rule designate a specific location on

849

the condominium property or association property upon which all

850

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

851

condominium property or association property upon which notices

852

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

853

delivered, or electronically transmitted at least 14 days before

854

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

855

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

856

administration on the condominium property, the association may,

857

by reasonable rule, adopt a procedure for conspicuously posting

858

and repeatedly broadcasting the notice and the agenda on a

859

closed-circuit cable television system serving the condominium

860

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

861

notice posted physically on the condominium property, the notice

862

and agenda must be broadcast at least four times every broadcast

863

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

864

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

865

agenda must be broadcast in a manner and for a sufficient

866

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

867

observe the notice and read and comprehend the entire content of

868

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

869

or special assessments against unit owners are to be considered

870

for any reason shall specifically state contain a statement that

871

assessments will be considered and the nature, estimated cost,

872

and description of the purposes for any such assessments.

873

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

874

board or make recommendations to the board regarding the

875

association budget are subject to the provisions of this

876

paragraph. Meetings of a committee that does not take final

877

action on behalf of the board or make recommendations to the

878

board regarding the association budget are subject to the

879

provisions of this section, unless those meetings are exempted

880

from this section by the bylaws of the association.

881

Notwithstanding any other law, the requirement that board

882

meetings and committee meetings be open to the unit owners is

883

inapplicable to meetings between the board or a committee and the

884

association's attorney, with respect to proposed or pending

885

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

886

or rendering legal advice.

887

(d) Unit owner meetings.--

888

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

889

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

890

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

891

within 45 miles of the condominium property. However, such

892

distance requirement does not apply to an association governing a

893

timeshare condominium. Unless the bylaws provide otherwise, a

894

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

895

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

896

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

897

vacancies equals or exceeds the number of candidates, no election

898

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

899

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

900

shall expire upon the election of their successors at the annual

901

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

902

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

903

for the position of a board member whose term has expired

904

according to the provisions of this subparagraph, such board

905

member shall be automatically reappointed to the board of

906

administration and need not stand for reelection. In a

907

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

908

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

909

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

910

membership shall comply with subparagraph 3. A person who has

911

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

912

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

913

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

914

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

915

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

916

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

917

another jurisdiction which would be considered a felony if

918

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

919

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

920

residence is not eligible for board membership unless such

921

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

922

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

923

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

924

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

925

ineligible for board membership due to having been convicted of a

926

felony.

927

2. The bylaws shall provide the method of calling meetings

928

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

929

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

930

or electronically transmitted to each unit owner at least 14 days

931

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

932

place on the condominium property at least 14 continuous days

933

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

934

board shall by duly adopted rule designate a specific location on

935

the condominium property or association property upon which all

936

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

937

is no condominium property or association property upon which

938

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

939

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

940

meeting of the unit owners on the condominium property, the

941

association may, by reasonable rule, adopt a procedure for

942

conspicuously posting and repeatedly broadcasting the notice and

943

the agenda on a closed-circuit cable television system serving

944

the condominium association. However, if broadcast notice is used

945

in lieu of a notice posted physically on the condominium

946

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

947

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

948

otherwise required under this section. When broadcast notice is

949

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

950

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

951

average reader to observe the notice and read and comprehend the

952

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

953

waives in writing the right to receive notice of the annual

954

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

955

electronically transmitted to each unit owner. Notice for

956

meetings and notice for all other purposes shall be mailed to

957

each unit owner at the address last furnished to the association

958

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

959

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

960

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

961

address which the developer initially identifies for that purpose

962

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

963

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

964

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

965

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

966

or other person providing notice of the association meeting,

967

shall provide an affidavit or United States Postal Service

968

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

969

the association affirming that the notice was mailed or hand

970

delivered, in accordance with this provision.

971

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

972

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

973

electing the board, either in general elections or elections to

974

fill vacancies caused by recall, resignation, or otherwise,

975

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

976

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

977

or electronically transmit, whether by separate association

978

mailing or included in another association mailing, delivery, or

979

transmission, including regularly published newsletters, to each

980

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

981

election along with a certification form provided by the division

982

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

983

his or her ability, the governing documents of the association

984

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

985

unit owner or other eligible person desiring to be a candidate

986

for the board must give written notice to the association not

987

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

988

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

989

association shall mail, deliver, or electronically transmit a

990

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

991

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

992

Upon request of a candidate, the association shall include an

993

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

994

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

995

the election, along with the signed certification form provided

996

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

997

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

998

mailing, delivery, or electronic transmission and copying to be

999

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

1000

contents of the information sheets prepared by the candidates. In

1001

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

1002

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

1003

by rule establish voting procedures consistent with the

1004

provisions contained herein, including rules establishing

1005

procedures for giving notice by electronic transmission and rules

1006

providing for the secrecy of ballots. Elections shall be decided

1007

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

1008

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

1009

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

1010

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

1011

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

1012

deemed invalid, provided any unit owner who violates this

1013

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

1014

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

1015

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

1016

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

1017

of the annual meeting. The provisions of this subparagraph shall

1018

not apply to timeshare condominium associations. Notwithstanding

1019

the provisions of this subparagraph, an election is not required

1020

unless more candidates file notices of intent to run or are

1021

nominated than board vacancies exist.

1022

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

1023

or the applicable declaration or bylaws, including, but not

1024

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

1025

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

1026

subject to all requirements of this chapter or the applicable

1027

condominium documents relating to unit owner decisionmaking,

1028

except that unit owners may take action by written agreement,

1029

without meetings, on matters for which action by written

1030

agreement without meetings is expressly allowed by the applicable

1031

bylaws or declaration or any statute that provides for such

1032

action.

1033

5. Unit owners may waive notice of specific meetings if

1034

allowed by the applicable bylaws or declaration or any statute.

1035

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

1036

administration, unit owner meetings, except unit owner meetings

1037

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

1038

meetings may be given by electronic transmission to unit owners

1039

who consent to receive notice by electronic transmission.

1040

6. Unit owners shall have the right to participate in

1041

meetings of unit owners with reference to all designated agenda

1042

items. However, the association may adopt reasonable rules

1043

governing the frequency, duration, and manner of unit owner

1044

participation.

1045

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

1046

the unit owners subject to reasonable rules adopted by the

1047

division.

1048

8. Unless otherwise provided in the bylaws, any vacancy

1049

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

1050

filled by the affirmative vote of the majority of the remaining

1051

directors, even if the remaining directors constitute less than a

1052

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

1053

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

1054

election procedures must conform to the requirements of

1055

subparagraph 3. unless the association governs 10 units or fewer

1056

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

1057

case the bylaws of the association control. Unless otherwise

1058

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

1059

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

1060

seat being filled. Filling vacancies created by recall is

1061

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

1062

1063

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

1064

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

1065

the total voting interests, provide for different voting and

1066

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

1067

specifically delineating the different voting and election

1068

procedures. The different voting and election procedures may

1069

provide for elections to be conducted by limited or general

1070

proxy.

1071

(e) Budget meeting.--

1072

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

1073

association will be considered by the board or unit owners shall

1074

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

1075

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

1076

each unit owner at the address last furnished to the association

1077

by the unit owner, or electronically transmit to the location

1078

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

1079

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

1080

manager of the association, or other person providing notice of

1081

such meeting, shall execute an affidavit evidencing compliance

1082

with such notice requirement, and such affidavit shall be filed

1083

among the official records of the association.

1084

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

1085

which requires assessments against unit owners which exceed 115

1086

percent of assessments for the preceding fiscal year, the board

1087

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

1088

substitute budget if the board receives, within 21 days after

1089

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

1090

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

1091

special meeting shall be conducted within 60 days after adoption

1092

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

1093

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

1094

to each unit owner at the address last furnished to the

1095

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

1096

the association, or other person providing notice of such meeting

1097

shall execute an affidavit evidencing compliance with this notice

1098

requirement, and such affidavit shall be filed among the official

1099

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

1100

substitute budget at the special meeting. A substitute budget is

1101

adopted if approved by a majority of all voting interests unless

1102

the bylaws require adoption by a greater percentage of voting

1103

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

1104

substitute budget is not adopted, the annual budget previously

1105

adopted by the board shall take effect as scheduled.

1106

b. Any determination of whether assessments exceed 115

1107

percent of assessments for the prior fiscal year shall exclude

1108

any authorized provision for reasonable reserves for repair or

1109

replacement of the condominium property, anticipated expenses of

1110

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

1111

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

1112

condominium property.

1113

c. If the developer controls the board, assessments shall

1114

not exceed 115 percent of assessments for the prior fiscal year

1115

unless approved by a majority of all voting interests.

1116

(f) Annual budget.--

1117

1. The proposed annual budget of estimated revenues and

1118

common expenses shall be detailed and shall show the amounts

1119

budgeted by accounts and expense classifications, including, if

1120

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

1121

718.504(21). A multicondominium association shall adopt a

1122

separate budget of common expenses for each condominium the

1123

association operates and shall adopt a separate budget of common

1124

expenses for the association. In addition, if the association

1125

maintains limited common elements with the cost to be shared only

1126

by those entitled to use the limited common elements as provided

1127

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

1128

shall show amounts budgeted therefor. If, after turnover of

1129

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

1130

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

1131

not be listed.

1132

2. In addition to annual operating expenses, the budget

1133

shall include reserve accounts for capital expenditures and

1134

deferred maintenance. These accounts shall include, but are not

1135

limited to, roof replacement, building painting, and pavement

1136

resurfacing, regardless of the amount of deferred maintenance

1137

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

1138

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

1139

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

1140

which is based upon estimated remaining useful life and estimated

1141

replacement cost or deferred maintenance expense of each reserve

1142

item. The association may adjust replacement reserve assessments

1143

annually to take into account any changes in estimates or

1144

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

1145

maintenance. This subsection does not apply to an adopted budget

1146

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

1147

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

1148

provide no reserves or less reserves than required by this

1149

subsection. However, prior to turnover of control of an

1150

association by a developer to unit owners other than a developer

1151

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

1152

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

1153

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

1154

year in which the initial declaration is recorded, after which

1155

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

1156

majority of all nondeveloper voting interests voting in person or

1157

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

1158

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

1159

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

1160

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

1161

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

1162

developer may vote its voting interest to waive or reduce the

1163

funding of reserves.

1164

3. Reserve funds and any interest accruing thereon shall

1165

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

1166

for authorized reserve expenditures unless their use for other

1167

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

1168

called meeting of the association. Prior to turnover of control

1169

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

1170

developer pursuant to s. 718.301, the developer-controlled

1171

association shall not vote to use reserves for purposes other

1172

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

1173

majority of all nondeveloper voting interests, voting in person

1174

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

1175

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

1176

questions that involve waiving or reducing the funding of

1177

reserves, or using existing reserve funds for purposes other than

1178

purposes for which the reserves were intended, are the voting

1179

interests of the units subject to assessment to fund the reserves

1180

in question. Proxy questions relating to waiving or reducing the

1181

funding of reserves or using existing reserve funds for purposes

1182

other than purposes for which the reserves were intended must

1183

contain the following statement in capitalized, bold letters in a

1184

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

1185

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

1186

ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER

1187

LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS

1188

REGARDING THOSE ITEMS.

1189

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

1190

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

1191

bylaws. Assessments shall be made against units not less

1192

frequently than quarterly in an amount which is not less than

1193

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

1194

the anticipated current operating expenses and for all of the

1195

unpaid operating expenses previously incurred. Nothing in this

1196

paragraph shall preclude the right of an association to

1197

accelerate assessments of an owner delinquent in payment of

1198

common expenses. Accelerated assessments shall be due and payable

1199

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

1200

assessments shall include the amounts due for the remainder of

1201

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

1202

(h) Amendment of bylaws.--

1203

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

1204

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

1205

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

1206

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

1207

than two-thirds of the voting interests.

1208

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

1209

title or number only. Proposals to amend existing bylaws shall

1210

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

1211

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

1212

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

1213

change is so extensive that this procedure would hinder, rather

1214

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

1215

not necessary to use underlining and hyphens as indicators of

1216

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

1217

immediately preceding the proposed amendment in substantially the

1218

following language: "Substantial rewording of bylaw. See bylaw

1219

_____ for present text."

1220

3. Nonmaterial errors or omissions in the bylaw process

1221

will not invalidate an otherwise properly promulgated amendment.

1222

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

1223

association or any body thereof in connection with the sale,

1224

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

1225

association is required to approve such transfer and a fee for

1226

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

1227

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

1228

exceed $100 per applicant other than husband/wife or

1229

parent/dependent child, which are considered one applicant.

1230

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

1231

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

1232

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

1233

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

1234

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

1235

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

1236

account maintained by the association. The security deposit shall

1237

protect against damages to the common elements or association

1238

property. Payment of interest, claims against the deposit,

1239

refunds, and disputes under this paragraph shall be handled in

1240

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

1241

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

1242

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

1243

recalled and removed from office with or without cause by the

1244

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

1245

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

1246

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

1247

10 percent of the voting interests giving notice of the meeting

1248

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

1249

state the purpose of the meeting. Electronic transmission may not

1250

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

1251

or in part for this purpose.

1252

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

1253

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

1254

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

1255

meeting within 5 full business days of the adjournment of the

1256

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

1257

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

1258

such member or members shall be recalled effective immediately

1259

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

1260

and all records and property of the association in their

1261

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

1262

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

1263

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

1264

copy thereof shall be served on the association by certified mail

1265

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

1266

the Florida Rules of Civil Procedure. The board of administration

1267

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

1268

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

1269

meeting, the board shall either certify the written agreement to

1270

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

1271

member or members shall be recalled effective immediately and

1272

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

1273

all records and property of the association in their possession,

1274

or proceed as described in subparagraph 3.

1275

3. If the board determines not to certify the written

1276

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

1277

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

1278

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

1279

division a petition for arbitration pursuant to the procedures in

1280

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

1281

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

1282

shall constitute one party under the petition for arbitration. If

1283

the arbitrator certifies the recall as to any member or members

1284

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

1285

final order of arbitration to the association. If the association

1286

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

1287

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

1288

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

1289

association in their possession within 5 full business days of

1290

the effective date of the recall.

1291

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

1292

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

1293

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

1294

unit owner recall meeting, the recall shall be deemed effective

1295

and the board members so recalled shall immediately turn over to

1296

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

1297

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

1298

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

1299

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

1300

majority of the remaining directors, notwithstanding any

1301

provision to the contrary contained in this subsection. If

1302

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

1303

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

1304

shall be filled in accordance with procedural rules to be adopted

1305

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

1306

subsection. The rules must provide procedures governing the

1307

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

1308

association during the period after a recall but prior to the

1309

recall election.

1310

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

1311

nonbinding arbitration as provided for in s. 718.1255.

1312

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

1313

that a certificate of compliance from a licensed electrical

1314

contractor or electrician may be accepted by the association's

1315

board as evidence of compliance of the condominium units with the

1316

applicable fire and life safety code. Notwithstanding the

1317

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

1318

ordinance, administrative rule, or regulation, or any

1319

interpretation of the foregoing, an association, condominium, or

1320

unit owner is not obligated to retrofit the common elements or

1321

units of a residential condominium with a fire sprinkler system

1322

or other engineered lifesafety system in a building that has been

1323

certified for occupancy by the applicable governmental entity, if

1324

the unit owners have voted to forego such retrofitting and

1325

engineered lifesafety system by the affirmative vote of two-

1326

thirds of all voting interests in the affected condominium.

1327

However, a condominium association may not vote to forego the

1328

retrofitting with a fire sprinkler system of common areas in a

1329

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

1330

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

1331

feet in height where the building height is measured from the

1332

lowest level of fire department access to the floor of the

1333

highest occupiable story. For purposes of this subsection, the

1334

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

1335

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

1336

having jurisdiction require completion of retrofitting of common

1337

areas with a sprinkler system before the end of 2014.

1338

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

1339

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

1340

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

1341

shall be effective upon the recording of a certificate attesting

1342

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

1343

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

1344

or electronically transmit to each unit owner written notice at

1345

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

1346

to forego retrofitting of the required fire sprinkler system is

1347

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

1348

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

1349

hand delivered, or electronically transmitted to all unit owners.

1350

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

1351

an affidavit executed by the person providing the notice and

1352

filed among the official records of the association. After such

1353

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

1354

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

1355

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

1356

lease.

1357

2. As part of the information collected annually from

1358

condominiums, the division shall require condominium associations

1359

to report the membership vote and recording of a certificate

1360

under this subsection and, if retrofitting has been undertaken,

1361

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

1362

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

1363

Financial Services the number of condominiums that have elected

1364

to forego retrofitting.

1365

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

1366

1. With respect to condominiums created on or after October

1367

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

1368

association a limited power to convey a portion of the common

1369

elements to a condemning authority for the purpose of providing

1370

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

1371

purposes, whether negotiated or as a result of eminent domain

1372

proceedings.

1373

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

1374

association's power to convey common elements as described in

1375

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

1376

provision described in subparagraph 1.

1377

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

1378

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

1379

regular assessments shall be deemed to have abandoned the office,

1380

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

1381

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

1382

who is charged with a felony theft or embezzlement offense

1383

involving the association's funds or property shall be removed

1384

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

1385

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

1386

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

1387

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

1388

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

1389

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

1390

Section 8. Section 718.1124, Florida Statutes, is amended

1391

to read:

1392

718.1124 Failure to fill vacancies on board of

1393

administration sufficient to constitute a quorum; appointment of

1394

receiver upon petition of unit owner.--

1395

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

1396

of administration sufficient to constitute a quorum in accordance

1397

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

1398

intent to apply to the circuit court within whose jurisdiction

1399

the condominium lies for the appointment of a receiver to manage

1400

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

1401

as follows:

1402

1403

NOTICE OF INTENT TO APPLY FOR RECEIVERSHIP

1404

1405

YOU ARE HEREBY NOTIFIED that the undersigned owner of a

1406

condominium unit in (name of condominium) intends to

1407

file a petition in the circuit court for appointment of

1408

a receiver to manage the affairs of the association on

1409

the grounds that the association has failed to fill

1410

vacancies on the board of administration sufficient to

1411

constitute a quorum. This petition will not be filed if

1412

the vacancies are filled within 30 days after the date

1413

on which this notice was sent or posted, whichever is

1414

later. If a receiver is appointed, the receiver shall

1415

have all of the powers of the board and shall be

1416

entitled to receive a salary and reimbursement of all

1417

costs and attorney's fees payable from association

1418

funds.

1419

1420

(name and address of petitioning unit owner)

1421

1422

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

1423

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

1424

unit owner shall mail to the association by certified mail or

1425

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

1426

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

1427

owner of the association by certified mail or personal delivery.

1428

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

1429

days before the filing of a petition seeking receivership. Notice

1430

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

1431

county property appraiser for notice to the unit owner describing

1432

the intended action, giving the association the opportunity to

1433

fill the vacancies.

1434

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

1435

vacancies within 30 days after the notice required by subsection

1436

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

1437

with the petition.

1438

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

1439

given written notice of such appointment as provided in s.

1440

718.127.

1441

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

1442

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

1443

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

1444

administration and shall serve until the association fills

1445

vacancies on the board sufficient to constitute a quorum and the

1446

court relieves the receiver of the appointment.

1447

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

1448

read:

1449

718.113 Maintenance; limitation upon improvement; display

1450

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

1451

(1) Maintenance of the common elements is the

1452

responsibility of the association. The declaration may provide

1453

that certain limited common elements shall be maintained by those

1454

entitled to use the limited common elements or that the

1455

association shall provide the maintenance, either as a common

1456

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

1457

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

1458

association at the expense of only those entitled to use the

1459

limited common elements, the declaration shall describe in detail

1460

the method of apportioning such costs among those entitled to use

1461

the limited common elements, and the association may use the

1462

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

1463

costs by the unit owners entitled to use the limited common

1464

elements.

1465

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

1466

shall be no material alteration or substantial additions to the

1467

common elements or to real property which is association

1468

property, except in a manner provided in the declaration as

1469

originally recorded or as amended under the procedures provided

1470

therein. If the declaration as originally recorded or as amended

1471

under the procedures provided therein does not specify the

1472

procedure for approval of material alterations or substantial

1473

additions, 75 percent of the total voting interests of the

1474

association must approve the alterations or additions. This

1475

paragraph is intended to clarify existing law and applies to

1476

associations existing on October 1, 2008.

1477

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

1478

substantial addition to, the common elements of any condominium

1479

operated by a multicondominium association unless approved in the

1480

manner provided in the declaration of the affected condominium or

1481

condominiums as originally recorded or as amended under the

1482

procedures provided therein. If a declaration as originally

1483

recorded or as amended under the procedures provided therein does

1484

not specify a procedure for approving such an alteration or

1485

addition, the approval of 75 percent of the total voting

1486

interests of each affected condominium is required. This

1487

subsection does not prohibit a provision in any declaration,

1488

articles of incorporation, or bylaws as originally recorded or as

1489

amended under the procedures provided therein requiring the

1490

approval of unit owners in any condominium operated by the same

1491

association or requiring board approval before a material

1492

alteration or substantial addition to the common elements is

1493

permitted. This paragraph is intended to clarify existing law and

1494

applies to associations existing on the effective date of this

1495

act.

1496

1497

substantial addition made to association real property operated

1498

by a multicondominium association, except as provided in the

1499

declaration, articles of incorporation, or bylaws as originally

1500

recorded or as amended under the procedures provided therein. If

1501

the declaration, articles of incorporation, or bylaws as

1502

originally recorded or as amended under the procedures provided

1503

therein do not specify the procedure for approving an alteration

1504

or addition to association real property, the approval of 75

1505

percent of the total voting interests of the association is

1506

required. This paragraph is intended to clarify existing law and

1507

applies to associations existing on the effective date of this

1508

act.

1509

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

1510

unit or on the common elements which would adversely affect the

1511

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

1512

association property or condominium property which is to be

1513

maintained by the association.

1514

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

1515

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

1516

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

1517

display in a respectful way portable, removable official flags,

1518

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

1519

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

1520

regardless of any declaration rules or requirements dealing with

1521

flags or decorations.

1522

(5) Each board of administration shall adopt hurricane

1523

shutter specifications for each building within each condominium

1524

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

1525

other factors deemed relevant by the board. All specifications

1526

adopted by the board shall comply with the applicable building

1527

code. Notwithstanding any provision to the contrary in the

1528

condominium documents, if approval is required by the documents,

1529

a board shall not refuse to approve the installation or

1530

replacement of hurricane shutters conforming to the

1531

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

1532

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

1533

voting interests of the condominium, install hurricane shutters

1534

or hurricane protection complying with or exceeding the

1535

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

1536

replace such approved hurricane shutters, whether on or within

1537

common elements, limited common elements, units, or association

1538

property. However, where hurricane protection that complies with

1539

or exceeds the applicable building code or laminated glass or

1540

window film architecturally designed to function as hurricane

1541

protection which complies with the applicable building code has

1542

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

1543

board may operate shutters installed pursuant to this subsection

1544

without permission of the unit owners only where such operation

1545

is necessary to preserve and protect the condominium property and

1546

association property. The installation, replacement, operation,

1547

repair, and maintenance of such shutters in accordance with the

1548

procedures set forth herein shall not be deemed a material

1549

alteration to the common elements or association property within

1550

the meaning of this section.

1551

(6) As to any condominium building greater than three

1552

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

1553

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

1554

have the condominium building inspected to provide a report under

1555

seal of an architect or engineer authorized to practice in this

1556

state attesting to required maintenance, useful life, and

1557

replacement costs of the elements.

1558

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

1559

owner for a reasonable accommodation for the attachment on the

1560

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

1561

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

1562

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

1563

718.117, Florida Statutes, is amended to read:

1564

718.117 Termination of condominium.--

1565

(7) NATURAL DISASTERS.--

1566

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

1567

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

1568

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

1569

they cannot be located, any interested person may petition the

1570

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

1571

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

1572

a receiver to conclude the affairs of the association after a

1573

hearing following notice to such persons as the court directs.

1574

Lienholders shall be given notice of the petition and have the

1575

right to propose persons for the consideration by the court as

1576

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

1577

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

1578

her appointment as receiver. Such notice shall be mailed or

1579

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

1580

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

1581

property appraiser for notice to the unit owner.

1582

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

1583

Florida Statutes, to read:

1584

718.121 Liens.--

1585

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

1586

may not be filed by the association against a condominium unit

1587

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

1588

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

1589

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

1590

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

1591

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

1592

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

1593

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

1594

known address by regular mail with international postage, which

1595

shall be deemed sufficient. Delivery of the notice shall be

1596

deemed completed upon mailing as required by this subsection.

1597

Alternatively, notice shall be complete if served on the unit

1598

owner in the manner authorized by chapter 48 and the Florida

1599

Rules of Civil Procedure.

1600

Section 12. Section 718.1224, Florida Statutes, is created

1601

to read:

1602

718.1224 Prohibition against SLAPP suits.--

1603

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

1604

right of condominium unit owners to exercise their rights to

1605

instruct their representatives and petition for redress of

1606

grievances before the various governmental entities of this state

1607

as protected by the First Amendment to the United States

1608

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

1609

Legislature recognizes that strategic lawsuits against public

1610

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

1611

members are sued by individuals, business entities, or

1612

governmental entities arising out of a condominium unit owner's

1613

appearance and presentation before a governmental entity on

1614

matters related to the condominium association. However, it is

1615

the public policy of this state that governmental entities,

1616

business organizations, and individuals not engage in SLAPP

1617

suits, because such actions are inconsistent with the right of

1618

condominium unit owners to participate in the state's

1619

institutions of government. Therefore, the Legislature finds and

1620

declares that prohibiting such lawsuits by governmental entities,

1621

business entities, and individuals against condominium unit

1622

owners who address matters concerning their condominium

1623

association will preserve this fundamental state policy, preserve

1624

the constitutional rights of condominium unit owners, and ensure

1625

the continuation of representative government in this state. It

1626

is the intent of the Legislature that such lawsuits be

1627

expeditiously disposed of by the courts. As used in this

1628

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

1629

including the executive, legislative, and judicial branches of

1630

government, the independent establishments of the state,

1631

counties, municipalities, districts, authorities, boards, or

1632

commissions, or any government agencies that are subject to

1633

chapter 286.

1634

(2) A governmental entity, business organization, or

1635

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

1636

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

1637

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

1638

owner without merit and solely because such condominium unit

1639

owner has exercised the right to instruct his or her

1640

representatives or the right to petition for redress of

1641

grievances before the various governmental entities of this

1642

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

1643

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

1644

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

1645

business organization, or individual in violation of this section

1646

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

1647

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

1648

petition the court for an order dismissing the action or granting

1649

final judgment in favor of that condominium unit owner. The

1650

petitioner may file a motion for summary judgment, together with

1651

supplemental affidavits, seeking a determination that the

1652

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

1653

lawsuit has been brought in violation of this section. The

1654

governmental entity, business organization, or individual shall

1655

thereafter file its response and any supplemental affidavits. As

1656

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

1657

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

1658

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

1659

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

1660

condominium unit owner sued by the governmental entity, business

1661

organization, or individual actual damages arising from the

1662

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

1663

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

1664

to a prevailing condominium unit owner and shall state the basis

1665

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

1666

award the prevailing party reasonable attorney's fees and costs

1667

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

1668

violation of this section.

1669

(4) Condominium associations may not expend association

1670

funds in prosecuting a SLAPP suit against a condominium unit

1671

owner.

1672

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

1673

718.1255, Florida Statutes, is amended to read:

1674

718.1255 Alternative dispute resolution; voluntary

1675

mediation; mandatory nonbinding arbitration; legislative

1676

findings.--

1677

(3) LEGISLATIVE FINDINGS.--

1678

(b) The Legislature finds that the courts are becoming

1679

overcrowded with condominium and other disputes, and further

1680

finds that alternative dispute resolution has been making

1681

progress in reducing court dockets and trials and in offering a

1682

more efficient, cost-effective option to court litigation.

1683

However, the Legislature also finds that alternative dispute

1684

resolution should not be used as a mechanism to encourage the

1685

filing of frivolous or nuisance suits.

1686

Section 14. Section 718.1265, Florida Statutes, is created

1687

to read:

1688

718.1265 Association emergency powers.--

1689

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

1690

prohibited by the declaration of condominium, the articles, or

1691

the bylaws of an association, and consistent with the provisions

1692

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

1693

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

1694

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

1695

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

1696

following powers:

1697

(a) Conduct board meetings and membership meetings with

1698

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

1699

practicable manner, including publication, radio, United States

1700

mail, the Internet, public service announcements, and conspicuous

1701

posting on the condominium property or any other means the board

1702

deems reasonable under the circumstances. Notice of board

1703

decisions may be communicated as provided in this paragraph.

1704

(b) Cancel and reschedule any association meeting.

1705

1706

directors, which assistant officers shall have the same authority

1707

as the executive officers to whom they are assistants during the

1708

state of emergency to accommodate the incapacity or

1709

unavailability of any officer of the association.

1710

(d) Relocate the association's principal office or

1711

designate alternative principal offices.

1712

(e) Enter into agreements with local counties and

1713

municipalities to assist counties and municipalities with debris

1714

removal.

1715

(f) Implement a disaster plan before or immediately

1716

following the event for which a state of emergency is declared

1717

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

1718

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

1719

air conditioners.

1720

(g) Declare any portion of the condominium property

1721

unavailable for entry or occupancy by unit owners, family

1722

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

1723

health, safety, or welfare of such persons.

1724

(h) Require the evacuation of the condominium property in

1725

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

1726

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

1727

of a condominium fails or refuses to evacuate the condominium

1728

property where the board has required evacuation, the association

1729

is immune from liability or injury to persons or property arising

1730

from such failure or refusal.

1731

(i) Determine whether the condominium property may be

1732

safely inhabited or occupied. However, such determination is not

1733

conclusive as to any determination of habitability pursuant to

1734

the declaration.

1735

(j) Mitigate further damage, including taking action to

1736

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

1737

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

1738

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

1739

cabinetry, or other fixtures on or within the condominium

1740

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

1741

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

1742

property from a unit.

1743

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

1744

items or services for which the owners are otherwise individually

1745

responsible for, but which are necessary to prevent further

1746

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

1747

or owners on whose behalf the board has contracted are

1748

responsible for reimbursing the association for the actual costs

1749

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

1750

authority provided by s. 718.116 to enforce collection of the

1751

charges. Without limitation, such items or services may include

1752

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

1753

the replacement of damaged air conditioners or air handlers to

1754

provide climate control in the units or other portions of the

1755

property.

1756

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

1757

such authority does not specifically appear in the declaration of

1758

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

1759

assessments without a vote of the owners.

1760

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

1761

pledge association assets as collateral to fund emergency repairs

1762

and carry out the duties of the association when operating funds

1763

are insufficient. This paragraph does not limit the general

1764

authority of the association to borrow money, subject to such

1765

restrictions that are contained in the declaration of

1766

condominium, articles, or bylaws of the association.

1767

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

1768

limited to that time reasonably necessary to protect the health,

1769

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

1770

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

1771

reasonably necessary to mitigate further damage and make

1772

emergency repairs.

1773

Section 15. Section 718.127, Florida Statutes, is created

1774

to read:

1775

718.127 Receivership notification.--Upon the appointment of

1776

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

1777

association, the court shall direct the receiver to provide to

1778

all unit owners written notice of his or her appointment as

1779

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

1780

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

1781

sent to the address used by the county property appraiser for

1782

notice to the unit owner.

1783

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

1784

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

1785

(4) of that section, to read:

1786

718.301 Transfer of association control; claims of defect

1787

by association.--

1788

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

1789

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

1790

operated ultimately by an association, the unit owners other than

1791

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

1792

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

1793

Unit owners other than the developer are entitled to elect not

1794

less than a majority of the members of the board of

1795

administration of an association:

1796

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

1797

operated ultimately by the association have been conveyed to

1798

purchasers;

1799

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

1800

operated ultimately by the association have been conveyed to

1801

purchasers;

1802

1803

the association have been completed, some of them have been

1804

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

1805

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

1806

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

1807

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

1808

by the developer in the ordinary course of business; or

1809

(e) When the developer files a petition seeking protection

1810

in bankruptcy;

1811

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

1812

circuit court; or

1813

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

1814

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

1815

ultimately operate more than one condominium, 7 years after

1816

recordation of the declaration for the first condominium it

1817

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

1818

condominium created pursuant to s. 718.403, 7 years after

1819

recordation of the declaration creating the initial phase,

1820

1821

whichever occurs first. The developer is entitled to elect at

1822

least one member of the board of administration of an association

1823

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

1824

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

1825

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

1826

of the units in a condominium operated by the association.

1827

Following the time the developer relinquishes control of the

1828

association, the developer may exercise the right to vote any

1829

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

1830

except for purposes of reacquiring control of the association or

1831

selecting the majority members of the board of administration.

1832

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

1833

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

1834

an association, the developer shall relinquish control of the

1835

association, and the unit owners shall accept control.

1836

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

1837

than 90 days thereafter, the developer shall deliver to the

1838

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

1839

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

1840

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

1841

applicable, as to each condominium operated by the association:

1842

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

1843

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

1844

attesting to required maintenance, useful life, and replacement

1845

costs of the following applicable common elements comprising a

1846

turnover inspection report:

1847

1. Roof.

1848

2. Structure.

1849

3. Fireproofing and fire-protection systems.

1850

4. Elevators.

1851

5. Heating and cooling systems.

1852

6. Plumbing.

1853

7. Electrical systems.

1854

8. Swimming pool or spa and equipment.

1855

9. Seawalls.

1856

10. Pavement and parking areas.

1857

11. Drainage systems.

1858

12. Painting.

1859

13. Irrigation systems.

1860

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

1861

section 718.3025, Florida Statutes, to read:

1862

718.3025 Agreements for operation, maintenance, or

1863

management of condominiums; specific requirements.--

1864

(1) No written contract between a party contracting to

1865

provide maintenance or management services and an association

1866

which contract provides for operation, maintenance, or management

1867

of a condominium association or property serving the unit owners

1868

of a condominium shall be valid or enforceable unless the

1869

contract:

1870

(f) Discloses any financial or ownership interest a board

1871

member or any party providing maintenance or management services

1872

to the association holds with the contracting party.

1873

Section 18. Section 718.3026, Florida Statutes, is amended

1874

to read:

1875

718.3026 Contracts for products and services; in writing;

1876

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

1877

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

1878

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

1879

accomplished by a proxy specifically setting forth the exception

1880

from this section.

1881

(1) All contracts as further described herein or any

1882

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

1883

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

1884

materials or equipment to be used by the association in

1885

accomplishing its purposes under this chapter, and all contracts

1886

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

1887

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

1888

for the provision of services, requires payment by the

1889

association on behalf of any condominium operated by the

1890

association in the aggregate that exceeds 5 percent of the total

1891

annual budget of the association, including reserves, the

1892

association shall obtain competitive bids for the materials,

1893

equipment, or services. Nothing contained herein shall be

1894

construed to require the association to accept the lowest bid.

1895

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

1896

employees of the association, and contracts for attorney,

1897

accountant, architect, community association manager, timeshare

1898

management firm, engineering, and landscape architect services

1899

are not subject to the provisions of this section.

1900

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

1901

renewal thereof, is not subject to the competitive bid

1902

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

1903

competitive bid procedures of this section, any renewal of that

1904

contract is not subject to such competitive bid requirements if

1905

the contract contains a provision that allows the board to cancel

1906

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

1907

services provided to a condominium under a local government

1908

franchise agreement by a franchise holder are not subject to the

1909

competitive bid requirements of this section. A contract with a

1910

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

1911

years. A condominium whose declaration or bylaws provides for

1912

competitive bidding for services may operate under the provisions

1913

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

1914

provisions are not less stringent than the requirements of this

1915

section.

1916

(b) Nothing contained herein is intended to limit the

1917

ability of an association to obtain needed products and services

1918

in an emergency.

1919

1920

with which the association desires to enter into a contract is

1921

the only source of supply within the county serving the

1922

association.

1923

(d) Nothing contained herein shall excuse a party

1924

contracting to provide maintenance or management services from

1925

compliance with s. 718.3025.

1926

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

1927

association and one or more of its directors or any other

1928

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

1929

its directors are directors or officers or are financially

1930

interested:

1931

(a) The association shall comply with the requirements of

1932

s. 617.0832.

1933

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

1934

entered into the written minutes of the meeting.

1935

1936

require an affirmative vote of two-thirds of the directors

1937

present.

1938

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

1939

the existence of the contract or other transaction must be

1940

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

1941

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

1942

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

1943

members cancel the contract, the association is liable only for

1944

the reasonable value of goods and services provided up to the

1945

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

1946

liquidated damages, or other form of penalty for such

1947

cancellation.

1948

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

1949

Statutes, is amended to read:

1950

718.303 Obligations of owners; waiver; levy of fine against

1951

unit by association.--

1952

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

1953

association may levy reasonable fines against a unit for the

1954

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

1955

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

1956

association bylaws, or reasonable rules of the association. No

1957

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

1958

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

1959

day of a continuing violation, with a single notice and

1960

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

1961

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

1962

giving reasonable notice and opportunity for a hearing to the

1963

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

1964

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

1965

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

1966

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

1967

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

1968

apply to unoccupied units.

1969

Section 20. Section 718.501, Florida Statutes, is amended

1970

to read:

1971

718.501 Authority, responsibility, Powers and duties of

1972

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

1973

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

1974

Mobile Homes of the Department of Business and Professional

1975

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

1976

addition to other powers and duties prescribed by chapter 498,

1977

has the power to enforce and ensure compliance with the

1978

provisions of this chapter and rules promulgated pursuant hereto

1979

relating to the development, construction, sale, lease,

1980

ownership, operation, and management of residential condominium

1981

units. In performing its duties, the division has complete

1982

jurisdiction to investigate complaints and enforce compliance

1983

with the provisions of this chapter with respect to associations

1984

that are still under developer control and complaints against

1985

developers involving improper turnover or failure to turn over

1986

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

1987

division shall have jurisdiction to investigate only complaints

1988

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

1989

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

1990

powers and duties:

1991

(a) The division may make necessary public or private

1992

investigations within or outside this state to determine whether

1993

any person has violated this chapter or any rule or order

1994

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

1995

in the adoption of rules or forms hereunder.

1996

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

1997

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

1998

determines, as to the facts and circumstances concerning a matter

1999

to be investigated.

2000

2001

chapter, the division director or any officer or employee

2002

designated by the division director may administer oaths or

2003

affirmations, subpoena witnesses and compel their attendance,

2004

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

2005

relevant to the investigation, including the existence,

2006

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

2007

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

2008

location of persons having knowledge of relevant facts or any

2009

other matter reasonably calculated to lead to the discovery of

2010

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

2011

subpoena or to answer questions propounded by the investigating

2012

officer and upon reasonable notice to all persons affected

2013

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

2014

compelling compliance.

2015

(d) Notwithstanding any remedies available to unit owners

2016

and associations, if the division has reasonable cause to believe

2017

that a violation of any provision of this chapter or rule

2018

promulgated pursuant hereto has occurred, the division may

2019

institute enforcement proceedings in its own name against any

2020

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

2021

administration, or its assignees or agents, as follows:

2022

1. The division may permit a person whose conduct or

2023

actions may be under investigation to waive formal proceedings

2024

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

2025

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

2026

entered against the person.

2027

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

2028

association, developer-designated officer, or developer-

2029

designated member of the board of administration, or developer-

2030

designated its assignees or agents, community association

2031

manager, or community association management firm to cease and

2032

desist from the unlawful practice and take such affirmative

2033

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

2034

purposes of this chapter. Such affirmative action may include,

2035

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

2036

moneys determined to be owed to a condominium association.

2037

3. If a developer fails to pay any restitution determined

2038

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

2039

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

2040

any appellate time period of a final order requiring payment of

2041

restitution or the conclusion of any appeal thereof, whichever is

2042

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

2043

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

2044

lessees, or purchasers for restitution, declaratory relief,

2045

injunctive relief, or any other available remedy. The division

2046

may also temporarily revoke its acceptance of the filing for the

2047

developer to which the restitution relates until payment of

2048

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

2049

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

2050

for declaratory relief, injunctive relief, or restitution.

2051

4. The division may impose a civil penalty against a

2052

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

2053

violation of this chapter or a rule promulgated pursuant hereto.

2054

The division may impose a civil penalty individually against any

2055

officer or board member who willfully and knowingly violates a

2056

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

2057

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

2058

individual as an officer or from the board of administration or

2059

as an officer of the association; and may prohibit such

2060

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

2061

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

2062

and knowingly" means that the division informed the officer or

2063

board member that his or her action or intended action violates

2064

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

2065

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

2066

comply with the requirements of this chapter, a rule adopted

2067

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

2068

division, prior to initiating formal agency action under chapter

2069

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

2070

voluntarily comply with this chapter, a rule adopted under this

2071

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

2072

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

2073

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

2074

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

2075

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

2076

adopt, by rule, penalty guidelines applicable to possible

2077

violations or to categories of violations of this chapter or

2078

rules adopted by the division. The guidelines must specify a

2079

meaningful range of civil penalties for each such violation of

2080

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

2081

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

2082

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

2083

division may consider whether the violations were committed by a

2084

developer or owner-controlled association, the size of the

2085

association, and other factors. The guidelines must designate the

2086

possible mitigating or aggravating circumstances that justify a

2087

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

2088

is the legislative intent that minor violations be distinguished

2089

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

2090

condominium residents or other persons and that such guidelines

2091

provide reasonable and meaningful notice to the public of likely

2092

penalties that may be imposed for proscribed conduct. This

2093

subsection does not limit the ability of the division to

2094

informally dispose of administrative actions or complaints by

2095

stipulation, agreed settlement, or consent order. All amounts

2096

collected shall be deposited with the Chief Financial Officer to

2097

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

2098

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

2099

civil penalty and the amount deemed to be owed to the

2100

association, the division shall thereupon issue an order

2101

directing that such developer cease and desist from further

2102

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

2103

pursue enforcement of the penalty in a court of competent

2104

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

2105

the division shall thereupon pursue enforcement in a court of

2106

competent jurisdiction, and the order imposing the civil penalty

2107

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

2108

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

2109

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

2110

its executive offices or in the county where the violation

2111

occurred.

2112

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

2113

the unit owner has requested access to official records in

2114

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

2115

again made the same request for access to official records in

2116

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

2117

since the second request and the association has still failed or

2118

refused to provide access to official records as required by this

2119

chapter, the division shall issue a subpoena requiring production

2120

of the requested records where the records are kept pursuant to

2121

s. 718.112.

2122

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

2123

prospectus and other information to assist prospective owners,

2124

purchasers, lessees, and developers of residential condominiums

2125

in assessing the rights, privileges, and duties pertaining

2126

thereto.

2127

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

2128

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

2129

of this chapter.

2130

(g) The division shall establish procedures for providing

2131

notice to an association and the developer during the period

2132

where the developer controls the association when the division is

2133

considering the issuance of a declaratory statement with respect

2134

to the declaration of condominium or any related document

2135

governing in such condominium community.

2136

(h) The division shall furnish each association which pays

2137

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

2138

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

2139

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

2140

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

2141

pursuant thereto on an annual basis.

2142

(i) The division shall annually provide each association

2143

with a summary of declaratory statements and formal legal

2144

opinions relating to the operations of condominiums which were

2145

rendered by the division during the previous year.

2146

(j) The division shall provide training and educational

2147

programs for condominium association board members and unit

2148

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

2149

based, and live training and seminars in various locations

2150

throughout the state. The division may review and approve

2151

education and training programs for board members and unit owners

2152

offered by providers and shall maintain a current list of

2153

approved programs and providers and make such list available to

2154

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

2155

manner.

2156

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

2157

number accessible to condominium unit owners.

2158

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

2159

volunteer and paid mediators to provide mediation of condominium

2160

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

2161

such mediators to any association, unit owner, or other

2162

participant in arbitration proceedings under s. 718.1255

2163

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

2164

list of volunteer mediators only the names of persons who have

2165

received at least 20 hours of training in mediation techniques or

2166

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

2167

initially certified by the division, paid mediators must be

2168

certified by the Supreme Court to mediate court cases in either

2169

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

2170

rule, additional factors for the certification of paid mediators,

2171

which factors must be related to experience, education, or

2172

background. Any person initially certified as a paid mediator by

2173

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

2174

with the factors or requirements imposed by rules adopted by the

2175

division.

2176

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

2177

its inquiry with due regard to the interests of the affected

2178

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

2179

division shall acknowledge the complaint in writing and notify

2180

the complainant whether the complaint is within the jurisdiction

2181

of the division and whether additional information is needed by

2182

the division from the complainant. The division shall conduct its

2183

investigation and shall, within 90 days after receipt of the

2184

original complaint or of timely requested additional information,

2185

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

2186

the investigation within 90 days does not prevent the division

2187

from continuing the investigation, accepting or considering

2188

evidence obtained or received after 90 days, or taking

2189

administrative action if reasonable cause exists to believe that

2190

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

2191

occurred. If an investigation is not completed within the time

2192

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

2193

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

2194

the investigation. When reporting its action to the complainant,

2195

the division shall inform the complainant of any right to a

2196

hearing pursuant to ss. 120.569 and 120.57.

2197

(n) Condominium association directors, officers, and

2198

employees, condominium developers, community association

2199

managers, and community association management firms must at all

2200

times reasonably cooperate with the division in any investigation

2201

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

2202

enforcement authorities any person whom the division believes has

2203

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

2204

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

2205

the purpose to impair its verity or availability in the

2206

department's investigation.

2207

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

2208

association which operates more than two units shall pay to the

2209

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

2210

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

2211

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

2212

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

2213

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

2214

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

2215

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

2216

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

2217

by law.

2218

Section 21. Section 718.50151, Florida Statutes, is amended

2219

to read:

2220

718.50151 Community Association Living Study Advisory

2221

Council; membership functions.--

2222

(1) There is created the Community Association Living Study

2223

Advisory Council on Condominiums. The council shall consist of

2224

seven appointed members. Two members shall be appointed by the

2225

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

2226

Speaker of the House of Representatives, and three members shall

2227

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

2228

appointed by the Governor may shall represent timeshare

2229

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

2230

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

2231

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

2232

the persons initially appointed by the Governor, by the President

2233

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

2234

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

2235

shall appoint serve as an ex officio nonvoting member. The

2236

Legislature intends that the persons appointed represent a cross-

2237

section of persons interested in condominium issues. The council

2238

shall be located within the division for administrative purposes.

2239

Members of the council shall serve without compensation but are

2240

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

2241

112.061 while on official business.

2242

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

2243

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

2244

concern with respect to community association living, including

2245

living in condominiums, cooperatives, and homeowners'

2246

associations. The council shall make and recommendations for

2247

changes in the condominium law related to community association

2248

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

2249

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

2250

owners in relation to the rights and responsibilities of the

2251

association.

2252

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

2253

revisions and adoption of rules affecting condominiums and

2254

cooperatives.

2255

2256

programs offered by the division.

2257

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

2258

revisions and improvements to the laws relating to condominiums,

2259

cooperatives, and homeowners' associations.

2260

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

2261

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

2262

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

2263

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

2264

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

2265

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

2266

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

2267

there is a quorum.

2268

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

2269

718.503, Florida Statutes, is amended to read:

2270

718.503 Developer disclosure prior to sale; nondeveloper

2271

unit owner disclosure prior to sale; voidability.--

2272

(2) NONDEVELOPER DISCLOSURE.--

2273

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

2274

this chapter shall comply with the provisions of this subsection

2275

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

2276

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

2277

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

2278

the declaration of condominium, articles of incorporation of the

2279

association, bylaws and rules of the association, financial

2280

information required by s. 718.111, and the document entitled

2281

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

2282

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

2283

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

2284

form shall be provided by the division summarizing governance of

2285

condominium associations. In addition to such other information

2286

as the division considers helpful to a prospective purchaser in

2287

understanding association governance, the governance form shall

2288

address the following subjects:

2289

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

2290

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

2291

interests of, the owners.

2292

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

2293

board and membership meetings.

2294

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

2295

membership meetings.

2296

4. The responsibility of the board and of owners with

2297

respect to maintenance of the condominium property.

2298

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

2299

the condominium documents, this chapter, rules adopted by the

2300

division, and reasonable rules adopted by the board.

2301

6. Owners' rights to inspect and copy association records

2302

and the limitations on such rights.

2303

7. Remedies available to owners with respect to actions by

2304

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

2305

authority.

2306

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

2307

firm, subject to its own primary responsibility for such

2308

management.

2309

9. The responsibility of owners with regard to payment of

2310

regular or special assessments necessary for the operation of the

2311

property and the potential consequences of failure to pay such

2312

assessments.

2313

10. The voting rights of owners.

2314

11. Rights and obligations of the board in enforcement of

2315

rules in the condominium documents and rules adopted by the

2316

board.

2317

2318

The governance form shall also include the following statement in

2319

conspicuous type: "This publication is intended as an informal

2320

educational overview of condominium governance. In the event of a

2321

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

2322

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

2323

Mobile Homes of the Department of Business and Professional

2324

Regulation, the provisions of the condominium documents, and

2325

reasonable rules adopted by the condominium association's board

2326

of administration prevail over the contents of this publication."

2327

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

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