Florida Senate - 2008 CS for SB 2504

By the Committee on Regulated Industries; and Senators Posey and Fasano

580-07576A-08 20082504c1

A bill to be entitled

An act relating to residential properties; amending s.

514.011, F.S.; defining the term "homeowners'

association"; amending s. 514.0115, F.S.; providing for

the regulation and exemption from regulation for

homeowners' association swimming pools; amending s.

515.25, F.S.; conforming a cross-reference; amending s.

720.303, F.S.; revising provisions relating to homeowners'

association board meetings, inspection and copying of

records, and reserve accounts of budgets; prohibiting a

salary or compensation for certain association personnel;

providing exceptions; amending s. 720.305, F.S.;

authorizing fines assessed against members which exceed a

certain amount to become a lien against a parcel; amending

s. 720.306, F.S.; providing requirements for secret

ballots; requiring newly elected members of a board of

directors to make certain certifications in writing to the

association; providing for disqualification for failure to

make such certifications; requiring an association to

retain certifications for a specified time; amending s.

720.401, F.S.; requiring that the disclosure summary to

prospective parcel owners include additional provisions;

amending s. 34.01, F.S.; correcting a cross-reference to

conform; amending s. 720.302, F.S.; correcting a cross-

reference to conform; establishing legislative intent;

repealing s. 720.311, F.S., relating to a procedure for

dispute resolution in homeowners' associations; providing

that dispute resolution cases pending on the date of

repeal will continue under the repealed provisions;

creating part IV of ch. 720, F.S.; creating s. 720.501,

F.S.; providing a short title; creating s. 720.502, F.S.;

creating legislative findings; creating s. 720.503, F.S.;

setting applicability of provisions for mediation and

arbitration applicable to disputes in homeowners'

associations; creating exceptions; proving applicability;

tolling applicable statutes of limitations; creating s.

720.504, F.S; requiring that the notice of dispute be

delivered before referral to mediation; creating s.

720.505, F.S.; creating a statutory notice form for

referral to mediation; requiring delivery by certified

mail or personal delivery; setting deadlines; requiring

parties to share costs; requiring the selection of a

mediator and times to meet; providing penalties for

failure to mediate; creating s. 720.506, F.S.; creating an

opt-out provision; creating s. 720.507, F.S.; creating a

statutory notice form for referral to arbitration;

requiring delivery by certified mail or personal delivery;

setting deadlines; requiring parties to share costs;

requiring the selection of an arbitrator and times to

meet; providing penalties for failure to arbitrate;

creating s. 720.508, F.S.; providing for rules of

procedure; providing for confidentiality; creating s.

720.509, F.S.; setting qualifications for mediators and

arbitrators; creating s. 720.510, F.S.; providing for

enforcement of mediation agreements and arbitration

awards; providing an effective date.

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

Section 1. Section 514.011, Florida Statutes, is amended to

read:

514.011 Definitions.--As used in this chapter, the term:

(1) "Department" means the Department of Health.

(2) "Homeowners' association" has the same meaning as in s.

720.301.

(3)(5) "Portable pool" means a pool or spa, and related

equipment systems of any kind, which is designed or intended to

be movable from location to location.

(4)(3) "Private pool" means a facility used only by an

individual, family, or living unit members and their guests which

does not serve any type of cooperative housing or joint tenancy

of five or more living units.

(5)(4) "Public bathing place" means a body of water,

natural or modified by humans, for swimming, diving, and

recreational bathing, together with adjacent shoreline or land

area, buildings, equipment, and appurtenances pertaining thereto,

used by consent of the owner or owners and held out to the public

by any person or public body, irrespective of whether a fee is

charged for the use thereof. The bathing water areas of public

bathing places include, but are not limited to, lakes, ponds,

rivers, streams, artificial impoundments, and waters along the

coastal and intracoastal beaches and shores of the state.

(6)(2) "Public swimming pool" or "public pool" means a

watertight structure of concrete, masonry, or other approved

materials, which is located either indoors or outdoors, used for

bathing or swimming by humans, and filled with a filtered and

disinfected water supply, together with buildings, appurtenances,

and equipment used in connection therewith. A public swimming

pool or public pool shall mean a conventional pool, spa-type

pool, wading pool, special purpose pool, or water recreation

attraction, to which admission may be gained with or without

payment of a fee and includes, but is not limited to, pools

operated by or serving camps, churches, cities, counties, day

care centers, group home facilities for eight or more clients,

health spas, institutions, parks, state agencies, schools,

subdivisions, or the cooperative living-type projects of five or

more living units, such as apartments, boardinghouses, hotels,

mobile home parks, motels, recreational vehicle parks, and

townhouses.

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Section 2. Subsection (2) of section 514.0115, Florida

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Statutes, is amended to read:

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514.0115 Exemptions from supervision or regulation;

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variances.--

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(2)(a) Pools serving no more than 32 condominium or

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cooperative units or 32 parcels governed by a homeowners'

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association which are not operated as a public lodging

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establishment are shall be exempt from supervision under this

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chapter, except for water quality.

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(b) Pools serving condominium or cooperative associations

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of more than 32 units or a homeowners' association of more than

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32 parcels and whose recorded documents prohibit the rental or

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sublease of the units for periods of less than 60 days are exempt

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from supervision under this chapter, except that the condominium

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or cooperative owner or association or homeowners' association

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must file an application applications with the department and

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obtain construction plan plans approval and receive an initial

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operating permit. The department shall inspect the swimming pools

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at such places annually, at the fee set forth in s. 514.033(3),

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or upon request by a unit owner, to determine compliance with

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department rules relating to water quality and lifesaving

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equipment. The department may not require compliance with rules

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relating to swimming pool lifeguard standards.

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Section 3. Subsection (9) of section 515.25, Florida

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Statutes, is amended to read:

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515.25 Definitions.--As used in this chapter, the term:

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(9) "Public swimming pool" means a swimming pool, as

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defined in s. 515.011 514.011(2), which is operated, with or

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without charge, for the use of the general public; however, the

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term does not include a swimming pool located on the grounds of a

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private residence.

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Section 4. Paragraph (b) of subsection (2), paragraphs (a)

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and (c) of subsection (5), paragraphs (b), (c), (d), (f), and (g)

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of subsection (6) of section 720.303, Florida Statutes, are

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amended, and subsection (12) is added to that section, to read:

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720.303 Association powers and duties; meetings of board;

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official records; budgets; financial reporting; association

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funds; recalls.--

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(2) BOARD MEETINGS.--

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(b) Members have the right to attend all meetings of the

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board and to speak on any matter placed on the agenda by petition

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of the voting interests for at least 3 minutes. The association

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may adopt written reasonable rules expanding the right of members

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to speak and governing the frequency, duration, and other manner

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of member statements, which rules must be consistent with this

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paragraph and may include a sign-up sheet for members wishing to

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speak. Notwithstanding any other law, the requirement that board

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meetings and committee meetings be open to the members is

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inapplicable to meetings between the board or a committee to

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discuss proposed or pending litigation with and the association's

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attorney, or with respect to meetings of the board held for the

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purpose of discussing personnel matters are not required to be

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open to the members.

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(5) INSPECTION AND COPYING OF RECORDS.--The official

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records shall be maintained within the state and must be open to

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inspection and available for photocopying by members or their

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authorized agents at reasonable times and places within 10

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business days after receipt of a written request for access. This

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subsection may be complied with by having a copy of the official

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records available for inspection or copying in the community. If

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the association has a photocopy machine available where the

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records are maintained, it must provide parcel owners with copies

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on request during the inspection if the entire request is limited

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to no more than 25 pages.

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(a) The failure of an association to provide access to the

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records within 10 business days after receipt of a written

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request submitted by certified mail, return receipt requested,

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creates a rebuttable presumption that the association willfully

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failed to comply with this subsection.

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governing the frequency, time, location, notice, records to be

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inspected, and manner of inspections, but may not require impose

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a requirement that a parcel owner to demonstrate any proper

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purpose for the inspection, state any reason for the inspection,

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or limit a parcel owner's right to inspect records to less than

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one 8-hour business day per month. The association may impose

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fees to cover the costs of providing copies of the official

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records, including, without limitation, the costs of copying. The

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association may charge up to 50 cents per page for copies made on

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the association's photocopier. If the association does not have a

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photocopy machine available where the records are kept, or if the

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records requested to be copied exceed 25 pages in length, the

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association may have copies made by an outside vendor or

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association management company personnel and may charge the

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actual cost of copying, including any reasonable costs involving

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personnel fees and charges at an hourly rate for employee time to

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cover administrative costs to the association. The association

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shall maintain an adequate number of copies of the recorded

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governing documents, to ensure their availability to members and

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prospective members. Notwithstanding the provisions of this

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paragraph, the following records are shall not be accessible to

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members or parcel owners:

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

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

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product privilege, including, but not limited to, any record

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prepared by an association attorney or prepared at the attorney's

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express direction which reflects a mental impression, conclusion,

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litigation strategy, or legal theory of the attorney or the

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association and which was prepared exclusively for civil or

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criminal litigation or for adversarial administrative proceedings

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or which was prepared in anticipation of imminent civil or

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criminal litigation or imminent adversarial administrative

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proceedings until the conclusion of the litigation or adversarial

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administrative proceedings.

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2. Information obtained by an association in connection

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

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parcel.

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3. Disciplinary, health, insurance, and personnel records

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of the association's employees.

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4. Medical records of parcel owners or community residents.

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(6) BUDGETS.--

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(b) In addition to annual operating expenses, the budget

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may include reserve accounts for capital expenditures and

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deferred maintenance for which the association is responsible. If

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reserve accounts are not established pursuant to paragraph (d),

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funding of such reserves shall be limited to the extent that the

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governing documents do not limit increases in assessments,

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including reserves. If the budget of the association includes

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reserve accounts established pursuant to paragraph (d), such

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reserves shall be determined, maintained, and waived in the

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manner provided in this subsection. Once an association provides

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for reserve accounts pursuant to paragraph (d) in the budget, the

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association shall thereafter determine, maintain, and waive

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reserves in compliance with this subsection. The provisions of

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this section do not preclude the termination of a reserve account

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established pursuant to this paragraph upon approval of a

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majority of the voting interests of the association. Upon such

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approval, the terminating reserve account shall be removed from

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the budget.

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reserve accounts pursuant to paragraph (d) governed by this

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subsection and the association is responsible for the repair and

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maintenance of capital improvements that may result in a special

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assessment if reserves are not provided, each financial report

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for the preceding fiscal year required by subsection (7) shall

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contain the following statement in conspicuous type: THE BUDGET

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OF THE ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR

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CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN

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SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE

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ACCOUNTS PURSUANT TO THE PROVISIONS OF SECTION 720.303(6),

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FLORIDA STATUTES, UPON OBTAINING THE APPROVAL OF NOT LESS THAN A

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MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION BY VOTE

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OF THE MEMBERS AT A MEETING OR BY WRITTEN CONSENT.

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2. If the budget of the association does provide for

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funding accounts for deferred expenditures, including, but not

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limited to, funds for capital expenditures and deferred

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maintenance, but such accounts are not created or established

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pursuant to paragraph (d), each financial report for the

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preceding fiscal year required under subsection (7) must also

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contain the following statement in conspicuous type: THE BUDGET

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OF THE ASSOCIATION DOES PROVIDE FOR LIMITED VOLUNTARY DEFERRED

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EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND DEFERRED

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MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN OUR

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GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO

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PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO SECTION 720.303(6),

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FLORIDA STATUTES, THESE FUNDS ARE NOT SUBJECT TO THE RESTRICTIONS

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ON USE OF SUCH FUNDS SET FORTH IN THAT STATUTE, NOR ARE RESERVES

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CALCULATED IN ACCORDANCE WITH THAT STATUTE.

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(d) An association shall be deemed to have provided for

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reserve accounts if when reserve accounts have been initially

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established by the developer or if when the membership of the

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association affirmatively elects to provide for reserves. If

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reserve accounts are not initially provided for by the developer,

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the membership of the association may elect to do so upon the

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affirmative approval of not less than a majority of the total

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voting interests of the association. Such approval may be

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obtained attained by vote of the members at a duly called meeting

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of the membership or by the upon a written consent of executed by

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not less than a majority of the total voting interests in the

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community. The approval action of the membership shall state that

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reserve accounts shall be provided for in the budget and shall

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designate the components for which the reserve accounts are to be

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established. Upon approval by the membership, the board of

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directors shall include provide for the required reserve accounts

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for inclusion in the budget in the next fiscal year following the

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approval and in each year thereafter. Once established as

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provided in this subsection, the reserve accounts shall be funded

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or maintained or shall have their funding waived in the manner

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provided in paragraph (f).

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(f) After one or more Once a reserve account or reserve

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accounts are established, the membership of the association, upon

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a majority vote at a meeting at which a quorum is present, may

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provide for no reserves or less reserves than required by this

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section. If a meeting of the unit owners has been called to

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determine whether to waive or reduce the funding of reserves and

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no such result is achieved or a quorum is not present, the

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reserves as included in the budget shall go into effect. After

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the turnover, the developer may vote its voting interest to waive

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or reduce the funding of reserves. Any vote taken pursuant to

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this subsection to waive or reduce reserves is shall be

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applicable only to one budget year.

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(g) Funding formulas for reserves authorized by this

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section shall be based on either a separate analysis of each of

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the required assets or a pooled analysis of two or more of the

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required assets.

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1. If the association maintains separate reserve accounts

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for each of the required assets, the amount of the contribution

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to each reserve account is shall be the sum of the following two

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calculations:

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a. The total amount necessary, if any, to bring a negative

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component balance to zero.

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b. The total estimated deferred maintenance expense or

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estimated replacement cost of the reserve component less the

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estimated balance of the reserve component as of the beginning of

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the period for which the budget will be in effect. The remainder,

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if greater than zero, shall be divided by the estimated remaining

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useful life of the component.

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The formula may be adjusted each year for changes in estimates

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and deferred maintenance performed during the year and may

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include factors such as inflation and earnings on invested funds.

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2. If the association maintains a pooled account of two or

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more of the required reserve assets, the amount of the

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contribution to the pooled reserve account as disclosed on the

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proposed budget may shall not be less than that required to

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ensure that the balance on hand at the beginning of the period

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for which the budget will go into effect plus the projected

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annual cash inflows over the remaining estimated useful life of

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all of the assets that make up the reserve pool are equal to or

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greater than the projected annual cash outflows over the

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remaining estimated useful lives of all of the assets that make

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up the reserve pool, based on the current reserve analysis. The

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projected annual cash inflows may include estimated earnings from

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investment of principal and accounts receivable minus the

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allowance for doubtful accounts. The reserve funding formula may

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shall not include any type of balloon payments.

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(12) COMPENSATION PROHIBITED.--A director, officer, or

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committee member of the association may not receive directly or

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indirectly any salary or compensation from the association for

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the performance of duties as a director, officer, or committee

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member and may not in any other way benefit financially from

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service to the association. This subsection does not preclude:

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(a) Participation by such person in a financial benefit

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accruing to all or a significant number of members as a result of

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actions lawfully taken by the board or a committee of which he or

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she is a member, including, but not limited to, routine

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maintenance, repair, or replacement of community assets.

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(b) Reimbursement for out-of-pocket expenses incurred by

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such person on behalf of the association, subject to approval in

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accordance with procedures established by the association's

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governing documents or, in the absence of such procedures, in

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accordance with an approval process established by the board.

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policy of insurance maintained by the association for the benefit

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of its members.

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(d) Any fee or compensation authorized in the governing

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documents.

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(e) Any fee or compensation authorized in advance by a vote

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of a majority of the voting interests voting in person or by

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proxy at a meeting of the members.

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Section 5. Subsection (2) of section 720.305, Florida

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Statutes, are amended to read:

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720.305 Obligations of members; remedies at law or in

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equity; levy of fines and suspension of use rights; failure to

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fill sufficient number of vacancies on board of directors to

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constitute a quorum; appointment of receiver upon petition of any

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member.--

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(2) If the governing documents so provide, an association

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may suspend, for a reasonable period of time, the rights of a

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member or a member's tenants, guests, or invitees, or both, to

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use common areas and facilities and may levy reasonable fines of

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up to, not to exceed $100 per violation, against any member or

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any tenant, guest, or invitee. A fine may be levied on the basis

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of each day of a continuing violation, with a single notice and

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opportunity for hearing, except that no such fine may shall

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exceed $1,000 in the aggregate unless otherwise provided in the

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governing documents. A fine of less than $1,000 may shall not

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become a lien against a parcel. In any action to recover a fine,

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the prevailing party is entitled to collect its reasonable

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attorney's fees and costs from the nonprevailing party as

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determined by the court.

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(a) A fine or suspension may not be imposed without notice

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of at least 14 days notice to the person sought to be fined or

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suspended and an opportunity for a hearing before a committee of

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at least three members appointed by the board who are not

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officers, directors, or employees of the association, or the

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spouse, parent, child, brother, or sister of an officer,

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director, or employee. If the committee, by majority vote, does

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not approve a proposed fine or suspension, it may not be imposed.

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(b) The requirements of this subsection do not apply to the

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imposition of suspensions or fines upon any member because of the

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failure of the member to pay assessments or other charges when

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due if such action is authorized by the governing documents.

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impair the right of an owner or tenant of a parcel to have

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vehicular and pedestrian ingress to and egress from the parcel,

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including, but not limited to, the right to park.

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Section 6. Subsections (8) and (9) of section 720.306,

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Florida Statutes, are amended to read:

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720.306 Meetings of members; voting and election

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procedures; amendments.--

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(8) PROXY VOTING.--The members have the right, unless

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otherwise provided in this subsection or in the governing

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documents, to vote in person or by proxy.

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(a) To be valid, a proxy must be dated, must state the

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date, time, and place of the meeting for which it was given, and

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must be signed by the authorized person who executed the proxy. A

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proxy is effective only for the specific meeting for which it was

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originally given, as the meeting may lawfully be adjourned and

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reconvened from time to time, and automatically expires 90 days

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after the date of the meeting for which it was originally given.

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A proxy is revocable at any time at the pleasure of the person

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who executes it. If the proxy form expressly so provides, any

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proxy holder may appoint, in writing, a substitute to act in his

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or her place.

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(b) If the governing documents permit voting by secret

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ballot by members who are not in attendance at a meeting of the

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members for the election of directors, such ballots shall be

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placed in an inner envelope with no identifying markings and

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mailed or delivered to the association in an outer envelope

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bearing identifying information reflecting the name of the

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member, the lot or parcel for which the vote is being cast, and

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the signature of the lot or parcel owner casting that ballot.

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After the eligibility of the member to vote and confirmation that

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no other ballot has been submitted for that lot or parcel, the

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inner envelope shall be removed from the outer envelope bearing

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the identification information, placed with the ballots which

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were personally cast, and opened when the ballots are counted. If

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more than one ballot is submitted for a lot or parcel, the

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ballots for that lot or parcel shall be disqualified. Any vote by

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ballot received after the closing of the balloting may not be

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considered.

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(9) ELECTIONS; BOARD MEMBER CERTIFICATION.--

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(a) Elections of directors must be conducted in accordance

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with the procedures set forth in the governing documents of the

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association. All members of the association are shall be eligible

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to serve on the board of directors, and a member may nominate

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himself or herself as a candidate for the board at a meeting

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where the election is to be held or, if the election process

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allows voting by absentee ballot, in advance of the balloting.

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Except as otherwise provided in the governing documents, boards

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of directors must be elected by a plurality of the votes cast by

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eligible voters. Any election dispute between a member and an

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association must be submitted to mandatory binding arbitration

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with the division. Such proceedings shall be conducted in the

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manner provided by s. 718.1255 and the procedural rules adopted

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by the division.

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(b) Within 30 days after being elected to the board of

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directors, a new director shall certify in writing to the

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secretary of the association that he or she has read the

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association's declarations of covenants and restrictions,

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articles of incorporation, bylaws, and current written policies

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and that he or she will work to uphold each to the best of his or

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her ability and will faithfully discharge his or her fiduciary

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responsibility to the association's members. Failure to timely

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file such statement shall automatically disqualify the director

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from service on the association's board of directors. The

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secretary shall cause the association to retain a director's

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certification for inspection by the members for 5 years after a

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director's election. Failure to have such certification on file

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does not affect the validity of any appropriate action.

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Section 7. Paragraph (a) of subsection (1) of section

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720.401, Florida Statutes, is amended to read:

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720.401 Prospective purchasers subject to association

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membership requirement; disclosure required; covenants;

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assessments; contract cancellation.--

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(1)(a) A prospective parcel owner in a community must be

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presented a disclosure summary before executing the contract for

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sale. The disclosure summary must be in a form substantially

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similar to the following form:

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DISCLOSURE SUMMARY

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FOR

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(NAME OF COMMUNITY)

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1. AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL

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BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION.

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2. THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE

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COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS

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COMMUNITY.

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3. YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE

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ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC CHANGE. IF

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APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. YOU WILL ALSO

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BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE

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ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE.

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IF APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.

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4. YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE

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RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL

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ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.

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5. YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS

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LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION MAY COULD RESULT IN

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A LIEN ON YOUR PROPERTY.

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6. THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES

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FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN

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OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS' ASSOCIATION. IF

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APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.

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7. IF THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE

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DEVELOPER, THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE

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RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE ASSOCIATION

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MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS.

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8. THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE

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ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU

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SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING

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DOCUMENTS BEFORE PURCHASING PROPERTY.

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9. THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND

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CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE

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PROPERTY IS LOCATED, OR, IF ARE NOT RECORDED, AND CAN BE OBTAINED

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FROM THE DEVELOPER.

498

10. THERE MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES OR

499

FEES) TO A RESIDENTIAL COMMUNITY DEVELOPMENT DISTRICT FOR THE

500

PURPOSE OF RETIRING BOND OBLIGATIONS USED TO CONSTRUCT

501

INFRASTRUCTURE OR OTHER IMPROVEMENTS.

502

11. YOU ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS

503

OWNER OF YOUR PROPERTY FOR ALL UNPAID ASSESSMENTS THAT CAME DUE

504

UP TO THE TIME OF TRANSFER OF TITLE.

505

506

DATE: PURCHASER:

507

PURCHASER:

508

The disclosure must be supplied by the developer, or by the

509

parcel owner if the sale is by an owner that is not the

510

developer. Any contract or agreement for sale shall refer to and

511

incorporate the disclosure summary and shall include, in

512

prominent language, a statement that the potential buyer should

513

not execute the contract or agreement until he or she has they

514

have received and read the disclosure summary required by this

515

section.

516

Section 8. Paragraph (d) of subsection (1) of section

517

34.01, Florida Statutes, is amended to read:

518

34.01 Jurisdiction of county court.--

519

(1) County courts shall have original jurisdiction:

520

(d) Of disputes occurring in the homeowners' associations

521

as described in part IV of chapter 720 s. 720.311(2)(a), which

522

shall be concurrent with jurisdiction of the circuit courts.

523

Section 9. Subsection (2) of section 720.302, Florida

524

Statutes, is amended to read:

525

720.302 Purposes, scope, and application.--

526

(2) The Legislature recognizes that it is not in the best

527

interest of homeowners' associations or the individual

528

association members thereof to create or impose a bureau or other

529

agency of state government to regulate the affairs of homeowners'

530

associations. However, in accordance with part IV of chapter 720

531

s. 720.311, the Legislature finds that homeowners' associations

532

and their individual members will benefit from an expedited

533

alternative process for resolution of election and recall

534

disputes and presuit mediation of other disputes involving

535

covenant enforcement in homeowner's associations and deed

536

restricted communities using the procedures provided in part IV

537

of and authorizes the department to hear, administer, and

538

determine these disputes as more fully set forth in this chapter.

539

Further, the Legislature recognizes that certain contract rights

540

have been created for the benefit of homeowners' associations and

541

members thereof as well as deed-restricted communities before the

542

effective date of this act and that part IV of chapter 720 is ss.

543

720.301-720.407 are not intended to impair such contract rights,

544

including, but not limited to, the rights of the developer to

545

complete the community as initially contemplated.

546

Section 10. Section 720.311, Florida Statutes, is repealed.

547

Section 11. Part IV of chapter 720, Florida Statutes, to be

548

entitled "Dispute Resolution" consisting of sections 720.501,

549

720.502, 720.503, 720.504, 720.505, 720.506, 720.507, 720.508,

550

720.509, and 720.510, is created to read:

551

720.501 Short title.--This part may be cited as the "Home

552

Court Advantage Dispute Resolution Act."

553

720.502 Legislative findings.--The Legislature finds that

554

alternative dispute resolution has made progress in reducing

555

court dockets and trials and in offering a more efficient, cost-

556

effective option to litigation.

557

720.503 Applicability of this part.--

558

(1) Unless otherwise provided in this part, before a

559

dispute described herein between a homeowners' association and

560

a parcel owner or owners, or a dispute between parcel owners

561

within the same homeowners' association, may be filed in court

562

the dispute is subject to presuit mediation pursuant to s.

563

720.505 or presuit arbitration pursuant to s. 720.507, at the

564

option of the aggrieved party who initiates the first formal

565

action of alternative dispute resolution under this part. The

566

parties may mutually agree to participate in both presuit

567

mediation and presuit arbitration prior to suit being filed by

568

either party.

569

(2) Unless otherwise provided in this part, the mediation

570

and arbitration provisions of this part are limited to disputes

571

between an association and a parcel owner or owners or between

572

parcel owners regarding the use of or changes to the parcel or

573

the common areas under the governing documents and other disputes

574

involving violations of the recorded declaration of covenants or

575

other governing documents, disputes arising concerning

576

enforcement of the governing documents or any amendments thereto,

577

and disputes involving access to the official records of the

578

association. A dispute concerning title to any parcel or common

579

area, interpretation or enforcement of any warranty, the levy of

580

a fee or assessment, the collection of an assessment levied

581

against a party, the eviction or other removal of a tenant from a

582

parcel, alleged breaches of fiduciary duty by one or more

583

directors, or any action to collect mortgage indebtedness or to

584

foreclosure a mortgage shall not be subject to the provisions of

585

this part.

586

(3) All disputes arising after the effective date of this

587

part involving the election of the board of directors for an

588

association or the recall of any member of the board or officer

589

of the association shall not be eligible for presuit mediation

590

under s. 720.505, but shall be subject to the provisions

591

concerning presuit arbitration under s. 720.507.

592

(4) In any dispute subject to presuit mediation or presuit

593

arbitration under this part for which emergency relief is

594

required, a motion for temporary injunctive relief may be filed

595

with the court without first complying with the presuit mediation

596

or presuit arbitration requirements of this part. After any

597

issues regarding emergency or temporary relief are resolved, the

598

court may refer the parties to a mediation program administered

599

by the courts or require mediation or arbitration under this

600

part.

601

(5) The mailing of a statutory notice of presuit mediation

602

or presuit arbitration as provided in this part shall toll the

603

applicable statute of limitations during the pendency of the

604

mediation or arbitration and for a period of 30 days following

605

the conclusion of either proceeding. The 30-day period shall

606

start upon the filing of the mediator's notice of impasse or the

607

arbitrator's written arbitration award. If the parties mutually

608

agree to participate in both presuit mediation and presuit

609

arbitration under this part, the tolling of the applicable

610

statute of limitations for each such alternative dispute

611

resolution proceeding shall be consecutive.

612

720.504 Notice of dispute.--Prior to giving the statutory

613

notice to proceed under presuit medication or presuit arbitration

614

under this part, the aggrieved association or parcel owner shall

615

first provide written notice of the dispute to the responding

616

party in the manner provided by this section.

617

(1) The notice of dispute shall be delivered to the

618

responding party by certified mail, return receipt requested, or

619

the notice of dispute may be hand delivered and the person making

620

delivery shall file with their notice of mediation either the

621

proof of receipt of mailing or an affidavit stating the date and

622

time of the delivery of the notice of dispute. If the notice is

623

delivered by certified mail, return receipt requested, and the

624

responding party fails or refuses to accept delivery, notice

625

shall be considered properly delivered for purposes of this

626

section on the date of the first attempted delivery.

627

(2) The notice of dispute shall state with specificity the

628

nature of the dispute, including the date, time, and location of

629

each event that is the subject of the dispute and the action

630

requested to resolve the dispute. The notice shall also include

631

the text of any provision in the governing documents, including

632

the rules and regulations, of the association which form the

633

basis of the dispute.

634

(3) Unless the parties otherwise agree in writing to a

635

longer time period, the party receiving the notice of dispute

636

shall have 10 days following the date of receipt of notice to

637

resolve the dispute. If the alleged dispute has not been resolved

638

within the 10-day period, the aggrieved party may proceed under

639

this part at any time thereafter within the applicable statute of

640

limitations.

641

(4) A copy of the notice and the text of the provision in

642

the governing documents or the rules and regulations of the

643

association which are the basis of the dispute, along with proof

644

of service of the notice of dispute and a copy of any written

645

responses received from the responding party, shall be included

646

as an exhibit to any demand for mediation or arbitration under

647

this part.

648

720.505 Presuit mediation.--

649

(1) Disputes between an association and a parcel owner or

650

owners and between parcel owners must be submitted to presuit

651

mediation before the dispute may be filed in court or, at the

652

election of the party initiating the presuit procedures, such

653

dispute may be submitted to presuit arbitration pursuant to s.

654

720.507 before the dispute may be filed in court. An aggrieved

655

party who elects to use the presuit mediation procedure under

656

this section shall serve on the responding party a written notice

657

of presuit mediation in substantially the following form:

658

659

STATUTORY NOTICE OF PRESUIT MEDIATION

660

THE ALLEGED AGGRIEVED PARTY, ____________________,

661

HEREBY DEMANDS THAT ____________________, AS THE

662

RESPONDING PARTY, ENGAGE IN MANDATORY PRESUIT MEDIATION

663

IN CONNECTION WITH A DISPUTE(S) WITH YOU, WHICH BY

664

STATUTE ARE OF A TYPE THAT ARE SUBJECT TO PRESUIT

665

MEDIATION:

666

667

ATTACHED IS A COPY OF THE PRIOR NOTICE OF VIOLATION

668

WHICH DETAILS THE SPECIFIC NATURE OF THE DISPUTE(S)TO

669

BE MEDIATED AND THE AUTHORITY SUPPORTING A FINDING OF A

670

VIOLATION AS TO EACH DISPUTE, INCLUDING, BUT NOT

671

LIMITED TO, THE APPLICABLE PROVISIONS OF THE GOVERNING

672

DOCUMENTS OF THE ASSOCIATION BELIEVED TO APPLY TO THE

673

DISPUTE BETWEEN THE PARTIES, AND A COPY OF THE NOTICE

674

YOU RECEIVED OR REFUSED AND COPIES OF ANY WRITTEN

675

RESPONSE(S) RECEIVED FROM YOU ABOUT THIS DISPUTE.

676

677

PURSUANT TO PART IV OF CHAPTER 720, FLORIDA STATUTES,

678

THIS DEMAND TO RESOLVE THE DISPUTE THROUGH PRESUIT

679

MEDIATION IS REQUIRED BEFORE A LAWSUIT CAN BE FILED

680

CONCERNING THE DISPUTE. PURSUANT TO FLORIDA STATUTES,

681

THE PARTIES ARE REQUIRED TO ENGAGE IN PRESUIT MEDIATION

682

WITH A NEUTRAL THIRD-PARTY MEDIATOR IN ORDER TO ATTEMPT

683

TO RESOLVE THIS DISPUTE WITHOUT COURT ACTION, AND THE

684

AGGRIEVED PARTY DEMANDS THAT YOU PARTICIPATE IN THIS

685

PROCESS. UNLESS YOU RESPOND TO THIS NOTICE BY FILING

686

WITH THE AGGRIEVED PARTY A NOTICE OF OPTING OUT AND

687

DEMAND FOR ARBITRATION UNDER S. 720.506, FLORIDA

688

STATUTES, YOUR FAILURE TO PARTICIPATE IN THE MEDIATION

689

PROCESS MAY RESULT IN A LAWSUIT BEING FILED IN COURT

690

AGAINST YOU WITHOUT FURTHER NOTICE.

691

692

THE PROCESS OF MEDIATION INVOLVES A SUPERVISED

693

NEGOTIATION PROCESS IN WHICH A TRAINED, NEUTRAL THIRD-

694

PARTY MEDIATOR MEETS WITH BOTH PARTIES AND ASSISTS THEM

695

IN EXPLORING POSSIBLE OPPORTUNITIES FOR RESOLVING PART

696

OR ALL OF THE DISPUTE. BY AGREEING TO PARTICIPATE IN

697

PRESUIT MEDIATION, YOU ARE NOT BOUND IN ANY WAY TO

698

CHANGE YOUR POSITION. FURTHERMORE, THE MEDIATOR HAS NO

699

AUTHORITY TO MAKE ANY DECISIONS IN THIS MATTER OR TO

700

DETERMINE WHO IS RIGHT OR WRONG AND MERELY ACTS AS A

701

FACILITATOR TO ENSURE THAT EACH PARTY UNDERSTANDS THE

702

POSITION OF THE OTHER PARTY AND THAT ALL OPTIONS FOR

703

REASONABLE SETTLEMENT ARE FULLY EXPLORED.

704

705

IF AN AGREEMENT IS REACHED, IT SHALL BE REDUCED TO

706

WRITING AND BECOME A BINDING AND ENFORCEABLE CONTRACT

707

BETWEEN THE PARTIES. A RESOLUTION OF ONE OR MORE

708

DISPUTES IN THIS FASHION AVOIDS THE NEED TO LITIGATE

709

THESE ISSUES IN COURT. THE FAILURE TO REACH AN

710

AGREEMENT, OR THE FAILURE OF A PARTY TO PARTICIPATE IN

711

THE PROCESS, RESULTS IN THE MEDIATOR DECLARING AN

712

IMPASSE IN THE MEDIATION, AFTER WHICH THE AGGRIEVED

713

PARTY MAY PROCEED TO FILE A LAW SUIT ON ALL

714

OUTSTANDING, UNSETTLED DISPUTES. IF YOU HAVE FAILED OR

715

REFUSED TO PARTICIPATE IN THE ENTIRE MEDIATION PROCESS,

716

YOU WILL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES IF

717

YOU PREVAIL IN A SUBSEQUENT COURT PROCEEDING INVOLVING

718

THE SAME DISPUTE.

719

720

THE AGGRIEVED PARTY HAS SELECTED FROM A LIST OF

721

ELIGIBLE QUALIFIED MEDIATORS AT LEAST FIVE CERTIFIED

722

MEDIATORS WHO THE AGGRIEVED PARTY BELIEVES TO BE

723

NEUTRAL AND QUALIFIED TO MEDIATE THE DISPUTE. YOU HAVE

724

THE RIGHT TO SELECT ANY ONE OF THESE MEDIATORS. THE

725

FACT THAT ONE PARTY MAY BE FAMILIAR WITH ONE OR MORE OF

726

THE LISTED MEDIATORS DOES NOT MEAN THAT THE MEDIATOR

727

CANNOT ACT AS A NEUTRAL AND IMPARTIAL FACILITATOR. THE

728

NAMES OF THE MEDIATORS THAT THE AGGRIEVED PARTY HEREBY

729

SUBMITS TO YOU FROM WHOM YOU MAY CHOOSE ONE, AND THEIR

730

CURRENT ADDRESSES, TELEPHONE NUMBERS, AND HOURLY RATES

731

ARE AS FOLLOWS:

732

733

(LIST THE NAMES, ADDRESSES, TELEPHONE NUMBERS, AND

734

HOURLY RATES OF THE MEDIATORS. OTHER PERTINENT

735

INFORMATION ABOUT THE BACKGROUND OF THE MEDIATORS MAY

736

BE INCLUDED AS AN ATTACHMENT.)

737

738

YOU MAY CONTACT THE OFFICES OF THESE MEDIATORS TO

739

CONFIRM THAT EACH OF THE ABOVE LISTED MEDIATORS WILL BE

740

NEUTRAL AND WILL NOT SHOW ANY FAVORITISM TOWARD EITHER

741

PARTY. UNLESS OTHERWISE AGREED TO BY THE PARTIES, PART

742

IV OF CHAPTER 720, FLORIDA STATUTES, REQUIRES THAT THE

743

PARTIES SHARE THE COSTS OF PRESUIT MEDIATION EQUALLY,

744

INCLUDING THE FEE CHARGED BY THE MEDIATOR. AN AVERAGE

745

MEDIATION MAY REQUIRE 3 TO 4 HOURS OF THE MEDIATOR'S

746

TIME, INCLUDING SOME PREPARATION TIME, AND THE PARTIES

747

WOULD NEED TO EQUALLY SHARE THE MEDIATOR'S FEES AS WELL

748

AS BE RESPONSIBLE FOR ALL OF THEIR OWN ATTORNEY'S FEES

749

IF THEY CHOOSE TO EMPLOY AN ATTORNEY IN CONNECTION WITH

750

THE MEDIATION. HOWEVER, USE OF AN ATTORNEY IS NOT

751

REQUIRED AND IS AT THE OPTION OF EACH PARTY. THE

752

MEDIATORS MAY REQUIRE THE ADVANCE PAYMENT OF SOME OR

753

ALL OF THE ANTICIPATED FEES. THE AGGRIEVED PARTY HEREBY

754

AGREES TO PAY OR PREPAY ONE-HALF OF THE SELECTED

755

MEDIATOR'S ESTIMATED FEES AND TO FORWARD THIS AMOUNT OR

756

SUCH OTHER REASONABLE ADVANCE DEPOSITS AS THE MEDIATOR

757

REQUIRES FOR THIS PURPOSE UPON THE SELECTION OF THE

758

MEDIATOR. ANY FUNDS DEPOSITED WILL BE RETURNED TO YOU

759

IF THESE FUNDS ARE IN EXCESS OF YOUR SHARE OF THE

760

MEDIATOR FEES INCURRED.

761

762

TO BEGIN YOUR PARTICIPATION IN PRESUIT MEDIATION TO TRY

763

TO RESOLVE THE DISPUTE WITH YOU AND AVOID FURTHER LEGAL

764

ACTION, PLEASE SIGN BELOW AND CLEARLY INDICATE WHICH

765

MEDIATOR IS ACCEPTABLE TO YOU FROM THE FIVE MEDIATORS

766

LISTED BY THE AGGRIEVED PARTY ABOVE.

767

768

YOU MUST RESPOND IN WRITING TO THIS STATUTORY NOTICE OF

769

PRESUIT MEDIATION WITHIN 20 DAYS. IN YOUR RESPONSE YOU

770

MUST PROVIDE A LISTING OF AT LEAST THREE DATES AND

771

TIMES IN WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE

772

MEDIATION THAT ARE WITHIN 90 DAYS AFTER THE POSTMARKED

773

DATE OF THE MAILING OF THIS NOTICE OF PRESUIT MEDIATION

774

OR WITHIN 90 DAYS AFTER THE DATE YOU WERE SERVED WITH A

775

COPY OF THIS NOTICE. THE AGGRIEVED PARTY WILL THEN ASK

776

THE MEDIATOR TO SCHEDULE A MUTUALLY CONVENIENT TIME AND

777

PLACE FOR THE MEDIATION CONFERENCE TO BE HELD. IF YOU

778

DO NOT PROVIDE A LIST OF AVAILABLE DATES AND TIMES, THE

779

MEDIATOR IS AUTHORIZED TO SCHEDULE A MEDIATION

780

CONFERENCE WITHOUT TAKING YOUR SCHEDULE AND CONVENIENCE

781

INTO CONSIDERATION. IN NO EVENT SHALL THE MEDIATION

782

CONFERENCE BE LATER THAN 90 DAYS AFTER THE NOTICE OF

783

PRESUIT MEDIATION WAS FIRST SERVED UNLESS ALL PARTIES

784

MUTUALLY AGREE OTHERWISE. IN THE EVENT THAT YOU FAIL TO

785

RESPOND WITHIN 20 DAYS AFTER THE DATE OF THIS NOTICE,

786

FAIL TO PROVIDE THE MEDIATOR WITH DATES AND TIMES IN

787

WHICH YOU ARE AVAILABLE FOR THE MEDIATION CONFERENCE,

788

FAIL TO AGREE TO AT LEAST ONE OF THE MEDIATORS THAT THE

789

AGGRIEVED PARTY HAS LISTED, FAIL TO PAY OR PREPAY TO

790

THE MEDIATOR ONE-HALF OF THE COSTS INVOLVED, OR FAIL TO

791

APPEAR AND PARTICIPATE AT THE SCHEDULED MEDIATION, THE

792

AGGRIEVED PARTY WILL BE AUTHORIZED TO PROCEED WITH THE

793

FILING OF A LAWSUIT AGAINST YOU WITHOUT FURTHER NOTICE.

794

IN ANY SUBSEQUENT COURT ACTION, THE AGGRIEVED PARTY MAY

795

SEEK AN AWARD OF REASONABLE ATTORNEY'S FEES AND COSTS

796

INCURRED IN ATTEMPTING TO OBTAIN MEDIATION.

797

798

PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION. BY

799

LAW, YOUR RESPONSE MUST BE MAILED BY CERTIFIED, FIRST-

800

CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE AGGRIEVED

801

PARTY LISTED ABOVE AT THE ADDRESS SHOWN ON THIS NOTICE

802

AND POSTMARKED NO MORE THAN 20 DAYS AFTER THE DATE OF

803

THE POSTMARKED DATE FOR THIS NOTICE OR WITHIN 20 DAYS

804

AFTER THE DATE UPON WHICH YOU WERE SERVED WITH A COPY

805

OF THIS NOTICE.

806

807

________________________

808

SIGNATURE OF AGGRIEVED PARTY

809

810

______________________

811

PRINTED NAME OF AGGRIEVED PARTY

812

813

RESPONDING PARTY: YOUR SIGNATURE BELOW INDICATES YOUR

814

ACCEPTANCE OF THE AGREEMENT TO MEDIATE.

815

816

AGREEMENT TO MEDIATE

817

818

THE UNDERSIGNED HEREBY AGREES TO PARTICIPATE IN PRESUIT

819

MEDIATION AND AGREES TO ATTEND A MEDIATION CONDUCTED BY

820

THE FOLLOWING MEDIATOR(S) LISTED BELOW AS ACCEPTABLE

821

TO MEDIATE THIS DISPUTE:

822

823

(LIST ONE ACCEPTABLE MEDIATOR FROM THOSE LISTED BY THE

824

AGGRIEVED PARTY.)

825

826

THE UNDERSIGNED HEREBY REPRESENTS THAT HE OR SHE CAN

827

ATTEND AND PARTICIPATE IN THE PRESUIT MEDIATION AT THE

828

FOLLOWING DATES AND TIMES:

829

830

(LIST AT LEAST THREE AVAILABLE DATES AND TIMES WITHIN

831

THE 90-DAY TIME LIMIT DESCRIBED ABOVE.)

832

833

I/WE FURTHER AGREE TO PAY OR PREPAY ONE-HALF OF THE

834

MEDIATOR'S FEES AND TO FORWARD SUCH ADVANCE DEPOSITS AS

835

THE MEDIATOR MAY REQUIRE FOR THIS PURPOSE.

836

837

______________________________

838

SIGNATURE OF RESPONDING PARTY #1

839

______________________________

840

TELEPHONE CONTACT INFORMATION

841

______________________________

842

SIGNATURE AND TELEPHONE CONTACT INFORMATION OF

843

RESPONDING PARTY #2, IF APPLICABLE. IF THE PROPERTY IS

844

OWNED BY MORE THAN ONE PERSON, ALL PARCEL OWNERS OR

845

UNIT OWNERS WHO ARE SUBJECT OF THE DISPUTE MUST SIGN OR

846

HAVE A PERSON ACTING UNDER AUTHORITY OF A POWER OF

847

ATTORNEY SIGN.

848

849

(2)(a) Service of the notice of presuit mediation shall be

850

effected either by personal service, as provided in chapter 48,

851

or by certified mail, return receipt requested, in a letter in

852

substantial conformity with the form provided in subsection (1),

853

with an additional copy being sent by regular first-class mail,

854

to the address of the responding party as it last appears on the

855

books and records of the association or if not available, then as

856

it last appears in the official records of the county property

857

appraiser where the parcel in dispute is located. The responding

858

party has either 20 days after the postmarked date of the mailing

859

of the statutory notice or 20 days after the date the responding

860

party is served with a copy of the notice to serve a written

861

response to the aggrieved party. The response shall be served by

862

certified mail, return receipt requested, with an additional copy

863

being sent by regular first-class mail, to the address shown on

864

the statutory notice. The date of the postmark on the envelope

865

for the response shall constitute the date that the response is

866

served. Once the parties have agreed on a mediator, the mediator

867

may schedule or reschedule the mediation for a date and time

868

mutually convenient to the parties within 90 days after the date

869

of service of the statutory notice. After such 90-day period, the

870

mediator may reschedule the mediation only upon the mutual

871

written agreement of all the parties.

872

(b) The parties shall share the costs of presuit mediation

873

equally, including the fee charged by the mediator, if any,

874

unless the parties agree otherwise, and the mediator may require

875

advance payment of his or her reasonable fees and costs. Each

876

party shall be responsible for their own attorney's fees if a

877

party chooses to be represented by an attorney at the mediation.

878

879

provide a notice of opting out under s. 720.506, and demand

880

arbitration, or the responding party shall sign the agreement to

881

mediate included in the notice of presuit mediation and clearly

882

indicate the name of the mediator who is acceptable from the five

883

names provided by the aggrieved party, and the responding party

884

must provide in their response a list of dates and times in which

885

the responding party is available to participate in the mediation

886

within 90 days after the date the responding party was served,

887

either by process server or by certified mail, with the statutory

888

notice of presuit mediation.

889

(d) The mediator who has been selected and agreed to

890

mediate must schedule the mediation conference at a mutually

891

convenient time and place within that 90-day period, but if the

892

responding party does not provide a list of available dates and

893

times, the mediator is authorized to schedule a mediation

894

conference without taking the responding party's schedule and

895

convenience into consideration. Within 10 days after the

896

designation of the mediator, the mediator shall coordinate with

897

the parties and notify the parties in writing of the date, time,

898

and place of the mediation conference.

899

(e) The mediation conference must be held on the scheduled

900

date and may be rescheduled if a rescheduled date is approved by

901

the mediator. However, in no event shall the mediation be held

902

later than 90 days after the notice of presuit mediation was

903

first served, unless all parties mutually agree in writing

904

otherwise. If the presuit mediation is not completed within the

905

required time limits, the mediator shall declare an impasse

906

unless the mediation date is extended by mutual written agreement

907

by all parties and approved by the mediator.

908

(f) If the responding party fails to respond within 30 days

909

after the date of service of the statutory notice of presuit

910

mediation, fails to agree to at least one of the mediators listed

911

by the aggrieved party in the notice, fails to pay or prepay to

912

the mediator one-half of the costs of the mediator, or fails to

913

appear and participate at the scheduled mediation, the aggrieved

914

party shall be authorized to proceed with the filing of a lawsuit

915

without further notice.

916

(g)1. The failure of any party to respond to the statutory

917

notice of presuit mediation within 20 days, the failure to agree

918

upon a mediator, the failure to provide a listing of dates and

919

times in which the responding party is available to participate

920

in the mediation within 90 days after the date the responding

921

party was served with the statutory notice of presuit mediation,

922

the failure to make payment of fees and costs within the time

923

established by the mediator, or the failure to appear for a

924

scheduled mediation session without the approval of the mediator,

925

shall in each instance constitute a failure or refusal to

926

participate in the mediation process and shall operate as an

927

impasse in the presuit mediation by such party, entitling the

928

other party to file a lawsuit in court and to seek an award of

929

the costs and attorney's fees associated with the mediation.

930

2. Persons who fail or refuse to participate in the entire

931

mediation process may not recover attorney's fees and costs in

932

subsequent litigation relating to the same dispute between the

933

same parties. If any presuit mediation session cannot be

934

scheduled and conducted within 90 days after the offer to

935

participate in mediation was filed, through no fault of either

936

party, then an impasse shall be deemed to have occurred unless

937

the parties mutually agree in writing to extend this deadline. In

938

the event of such impasse, each party will be responsible for its

939

own costs and attorney's fees and one-half of any mediator fees

940

and filing fees, and either party may file a lawsuit in court

941

regarding the dispute.

942

720.506 Opt-out of presuit mediation.--A party served with

943

a notice of presuit mediation under s. 720.505, may opt out of

944

presuit mediation and demand that the dispute proceed under

945

nonbinding arbitration in the following manner provided in this

946

section:

947

(1) In lieu of a response to the notice of presuit

948

mediation as required under s. 720.505, the responding party may

949

serve upon the aggrieved party in the same manner as the response

950

to a notice for presuit mediation under s. 720.505, a notice of

951

opting out of mediation and demand that the dispute instead

952

proceed to presuit arbitration under s. 720.507.

953

(2) The aggrieved party shall be relieved from having to

954

satisfy the requirements of s. 720.504 as a condition precedent

955

to filing the demand for presuit arbitration.

956

(3) Except as otherwise provided in this part, the choice

957

of which presuit alternative dispute resolution procedure is used

958

shall be at the election of the aggrieved party who first

959

initiated such proceeding after complying with the provisions of

960

s. 720.504.

961

720.507 Presuit arbitration.--

962

(1) Disputes between an association and a parcel owner or

963

owners and disputes between parcel owners are subject to a demand

964

for presuit arbitration pursuant to s. 720.507, before the

965

dispute may be filed in court. A party who elects to use the

966

presuit arbitration procedure under this part shall serve on the

967

responding party a written notice of presuit arbitration in

968

substantially the following form:

969

970

STATUTORY NOTICE OF PRESUIT ARBITRATION

971

972

THE ALLEGED AGGRIEVED PARTY, ____________________,

973

HEREBY DEMANDS THAT ____________________, AS THE

974

RESPONDING PARTY, ENGAGE IN MANDATORY PRESUIT

975

ARBITRATION IN CONNECTION WITH THE FOLLOWING DISPUTE(S)

976

WITH YOU, WHICH BY STATUTE ARE OF A TYPE THAT ARE

977

SUBJECT TO PRESUIT ARBITRATION:

978

979

(LIST SPECIFIC NATURE OF THE DISPUTE OR DISPUTES TO BE

980

ARBITRATED AND THE AUTHORITY SUPPORTING A FINDING OF A

981

VIOLATION AS TO EACH DISPUTE, INCLUDING, BUT NOT

982

LIMITED TO, ALL APPLICABLE PROVISIONS OF THE GOVERNING

983

DOCUMENTS BELIEVED TO APPLY TO THE DISPUTE BETWEEN THE

984

PARTIES.)

985

986

PURSUANT TO PART IV OF CHAPTER 720, FLORIDA STATUTES,

987

THIS DEMAND TO RESOLVE THE DISPUTE THROUGH PRESUIT

988

ARBITRATION IS REQUIRED BEFORE A LAWSUIT CAN BE FILED

989

CONCERNING THE DISPUTE. PURSUANT TO FLORIDA STATUTES,

990

THE PARTIES ARE REQUIRED TO ENGAGE IN PRESUIT

991

ARBITRATION WITH A NEUTRAL THIRD-PARTY ARBITRATOR IN

992

ORDER TO ATTEMPT TO RESOLVE THIS DISPUTE WITHOUT COURT

993

ACTION, AND THE AGGRIEVED PARTY DEMANDS THAT YOU

994

PARTICIPATE IN THIS PROCESS. IF YOU FAIL TO PARTICIPATE

995

IN THE ARBITRATION PROCESS, A LAWSUIT MAY BE BROUGHT

996

AGAINST YOU IN COURT WITHOUT FURTHER WARNING.

997

998

THE PROCESS OF ARBITRATION INVOLVES A NEUTRAL THIRD

999

PERSON WHO CONSIDERS THE LAW AND FACTS PRESENTED BY THE

1000

PARTIES AND RENDERS A WRITTEN DECISION CALLED AN

1001

"ARBITRATION AWARD." PURSUANT TO S. 720.507, FLORIDA

1002

STATUTES, THE ARBITRATION AWARD SHALL BE FINAL UNLESS A

1003

LAWSUIT IS FILED IN A COURT OF COMPETENT JURISDICTION

1004

FOR THE JUDICIAL CIRCUIT IN WHICH THE PARCEL(S)

1005

GOVERNED BY THE HOMEOWNERS' ASSOCIATION IS/ARE LOCATED

1006

WITHIN 30 DAYS AFTER THE DATE THAT THE ARBITRATION

1007

AWARD.

1008

1009

IF A SETTLEMENT AGREEMENT IS REACHED BEFORE THE

1010

ARBITRATION AWARD, IT SHALL BE REDUCED TO WRITING AND

1011

BECOME A BINDING AND ENFORCEABLE CONTRACT OF THE

1012

PARTIES. A RESOLUTION OF ONE OR MORE DISPUTES IN THIS

1013

FASHION AVOIDS THE NEED TO ARBITRATE THESE ISSUES OR TO

1014

LITIGATE THESE ISSUES IN COURT AND SHALL BE THE SAME AS

1015

A SETTLEMENT AGREEMENT REACHED BETWEEN THE PARTIES

1016

UNDER S. 720.505, FLORIDA STATUTES. THE FAILURE OF A

1017

PARTY TO PARTICIPATE IN THE ARBITRATION PROCESS MAY

1018

RESULT IN THE ARBITRATOR ISSUING AN ARBITRATION AWARD

1019

BY DEFAULT IN THE ARBITRATION. IF YOU HAVE FAILED OR

1020

REFUSED TO PARTICIPATE IN THE ENTIRE ARBITRATION

1021

PROCESS, YOU WILL NOT BE ENTITLED TO RECOVER ATTORNEY'S

1022

FEES, EVEN IF YOU PREVAIL IN A SUBSEQUENT COURT

1023

PROCEEDING INVOLVING THE SAME DISPUTE BETWEEN THE SAME

1024

PARTIES.

1025

1026

THE AGGRIEVED PARTY HAS SELECTED AT LEAST FIVE

1027

ARBITRATORS WHO THE AGGRIEVED PARTY BELIEVES TO BE

1028

NEUTRAL AND QUALIFIED TO ARBITRATE THE DISPUTE. YOU

1029

HAVE THE RIGHT TO SELECT ANY ONE OF THE ARBITRATORS.

1030

THE FACT THAT ONE PARTY MAY BE FAMILIAR WITH ONE OR

1031

MORE OF THE LISTED ARBITRATORS DOES NOT MEAN THAT THE

1032

ARBITRATOR CANNOT ACT AS A NEUTRAL AND IMPARTIAL

1033

ARBITRATOR. ANY ARBITRATOR WHO CANNOT ACT IN THIS

1034

CAPACITY IS REQUIRED ETHICALLY TO DECLINE TO ACCEPT

1035

ENGAGEMENT. THE NAMES OF THE FIVE ARBITRATORS THAT THE

1036

AGGRIEVED PARTY HAS CHOSEN FROM WHICH YOU MAY SELECT

1037

ONE, AND THEIR CURRENT ADDRESSES, TELEPHONE NUMBERS,

1038

AND HOURLY RATES, ARE AS FOLLOWS:

1039

1040

(LIST THE NAMES, ADDRESSES, TELEPHONE NUMBERS, AND

1041

HOURLY RATES OF AT LEAST FIVE ARBITRATORS.

1042

1043

YOU MAY CONTACT THE OFFICES OF THESE ARBITRATORS TO

1044

CONFIRM THAT THE LISTED ARBITRATORS WILL BE NEUTRAL AND

1045

WILL NOT SHOW ANY FAVORITISM TOWARD EITHER PARTY.

1046

1047

UNLESS OTHERWISE AGREED TO BY THE PARTIES, PART IV OF

1048

CHAPTER 720, FLORIDA STATUTES, REQUIRES THAT THE

1049

PARTIES SHARE THE COSTS OF PRESUIT ARBITRATION EQUALLY,

1050

INCLUDING THE FEE CHARGED BY THE ARBITRATOR. THE

1051

PARTIES SHALL BE RESPONSIBLE FOR THEIR OWN ATTORNEY'S

1052

FEES IF THEY CHOOSE TO EMPLOY AN ATTORNEY IN CONNECTION

1053

WITH THE ARBITRATION. HOWEVER, USE OF AN ATTORNEY TO

1054

REPRESENT YOU FOR THE ARBITRATION IS NOT REQUIRED. THE

1055

ARBITRATOR SELECTED MAY REQUIRE THE ADVANCE PAYMENT OF

1056

SOME OR ALL OF THE ANTICIPATED FEES. THE AGGRIEVED

1057

PARTY HEREBY AGREES TO PAY OR PREPAY ONE-HALF OF THE

1058

SELECTED ARBITRATOR'S ESTIMATED FEES AND TO FORWARD

1059

THIS AMOUNT OR SUCH OTHER REASONABLE ADVANCE DEPOSITS

1060

AS THE ARBITRATOR WHO IS SELECTED REQUIRES FOR THIS

1061

PURPOSE. ANY FUNDS DEPOSITED WILL BE RETURNED TO YOU IF

1062

THESE FUNDS ARE IN EXCESS OF YOUR SHARE OF THE FEES

1063

INCURRED.

1064

1065

PLEASE SIGN THE AGREEMENT TO ARBITRATE BELOW AND

1066

CLEARLY INDICATE THE NAME OF THE ARBITRATOR WHO IS

1067

ACCEPTABLE TO YOU FROM THE NAMES LISTED BY THE

1068

AGGRIEVED PARTY.

1069

1070

YOU MUST RESPOND IN WRITING TO THIS STATUTORY NOTICE

1071

WITHIN 20 DAYS AFTER THE DATE THAT THE NOTICE OF

1072

PRESUIT ARBITRATION WAS EITHER PERSONALLY SERVED ON YOU

1073

OR 20 DAYS AFTER THE POSTMARKED DATE THAT THIS NOTICE

1074

OF PRESUIT ARBITRATION WAS SENT TO YOU BY CERTIFIED

1075

MAIL. YOU MUST ALSO PROVIDE A LIST OF AT LEAST THREE

1076

DATES AND TIMES IN WHICH YOU ARE AVAILABLE TO

1077

PARTICIPATE IN THE ARBITRATION THAT ARE WITHIN 90 DAYS

1078

AFTER EITHER THE DATE YOU WERE PERSONALLY SERVED OR 90

1079

DAYS AFTER THE POSTMARKED DATE OF THE CERTIFIED MAILING

1080

OF THIS STATUTORY NOTICE OF PRESUIT ARBITRATION. A COPY

1081

OF THIS NOTICE AND YOUR RESPONSE WILL BE PROVIDED BY

1082

THE AGGRIEVED PARTY TO THE ARBITRATOR SELECTED AND THE

1083

ARBITRATOR WILL SCHEDULE A MUTUALLY CONVENIENT TIME AND

1084

PLACE FOR THE ARBITRATION CONFERENCE TO BE HELD. IF YOU

1085

DO NOT PROVIDE A LIST OF AVAILABLE DATES AND TIMES, THE

1086

ARBITRATOR IS AUTHORIZED TO SCHEDULE AN ARBITRATION

1087

CONFERENCE WITHOUT TAKING YOUR SCHEDULE AND CONVENIENCE

1088

INTO CONSIDERATION. THE ARBITRATION CONFERENCE MUST BE

1089

HELD ON THE SCHEDULED DATE, OR ANY RESCHEUDLED DATE

1090

APPROVED BY THE ARBITRATOR. IN NO EVENT SHALL THE

1091

ARBITRATION CONFERENCE BE LATER THAN 90 DAYS AFTER

1092

NOTICE OF THE PRESUIT ARBITRATION WAS FIRST SERVED,

1093

UNLESS ALL PARTIES MUTUALLY AGREE IN WRITING OTHERWISE.

1094

IF THE ARBITRATION IS NOT COMPLETED WITHIN THE REQUIRED

1095

TIME LIMITS, THE ARBITRATOR SHALL ISSUE AN ARBITRATION

1096

AWARD, UNLESS THE HEARING IS EXTENDED BY MUTUAL WRITTEN

1097

AGREEMENT OF THE PARTIES AND APPROVED BY THE

1098

ARBITRATOR. IN THE EVENT THAT YOU FAIL TO RESPOND

1099

WITHIN 20 DAYS AFTER THE DATE YOU WERE SERVED WITH A

1100

COPY OF THIS NOTICE, FAIL TO PROVIDE THE ARBITRATOR

1101

WITH DATES AND TIMES IN WHICH YOU ARE AVAILABLE FOR THE

1102

ARBITRATION CONFERENCE, FAIL TO AGREE EITHER TO ONE OF

1103

THE ARBITRATORS THAT THE AGGRIEVED PARTY HAS NAMED,

1104

FAIL TO PAY OR PREPAY TO THE ARBITRATOR ONE-HALF OF THE

1105

COSTS INVOLVED AS REQUIRED, OR FAIL TO APPEAR AND

1106

PARTICIPATE AT THE SCHEDULED ARBITRATION CONFERENCE,

1107

THE AGGRIEVED PARTY MAY REQUEST THE ARBITRATOR TO ISSUE

1108

AN ARBITRATION AWARD. IN THE SUBSEQUENT COURT ACTION,

1109

THE AGGRIEVED PARTY SHALL BE ENTITLED TO RECOVER AN

1110

AWARD OF REASONABLE ATTORNEY'S FEES AND COSTS,

1111

INCLUDING ANY FEES PAID TO THE ARBITRATOR, INCURRED IN

1112

OBTAINING AN ARBITRATION AWARD PURSUANT TO S. 720.507,

1113

FLORIDA STATUTES.

1114

1115

PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION. BY

1116

LAW, YOUR RESPONSE MUST BE POSTMARKED AND MAILED BY

1117

CERTIFIED, FIRST-CLASS MAIL, RETURN RECEIPT REQUESTED,

1118

TO THE ADDRESS SHOWN ON THIS NOTICE OF PRESUIT

1119

ARBITRATION.

1120

1121

_________________________

1122

Signature of aggrieved party

1123

1124

______________________

1125

PRINTED NAME OF AGGRIEVED PARTY

1126

1127

RESPONDING PARTY: YOUR SIGNATURE BELOW INDICATES YOUR

1128

ACCEPTANCE OF THE AGREEMENT TO ARTITRATE.

1129

1130

AGREEMENT TO ARBITRATE

1131

1132

THE UNDERSIGNED HEREBY AGREES TO PARTICIPATE IN PRESUIT

1133

ARBITRATION AND AGREES TO ATTEND AN ARBITRATION

1134

CONDUCTED BY THE FOLLOWING ARBITRATOR LISTED BELOW AS

1135

SOMEONE WHO WOULD BE ACCEPTABLE TO ARBITRATE THIS

1136

DISPUTE:

1137

1138

(IN YOUR RESPONSE EITHER SELECT THE NAME OF ONE

1139

ARBITRATOR THAT IS ACCEPTABLE TO YOU FROM THOSE

1140

ARBITRATORS LISTED BY THE AGGRIEVED PARTY.)

1141

1142

THE UNDERSIGNED HEREBY REPRESENTS THAT HE OR SHE IS

1143

AVAILABLE AND ABLE TO ATTEND AND PARTICIPATE IN THE

1144

PRESUIT ARBITRATION CONFERENCE AT THE FOLLOWING DATES

1145

AND TIMES:

1146

1147

(LIST ALL AVAILABLE DATES AND TIMES, OF WHICH THERE

1148

MUST BE AT LEAST THREE, WITHIN 90 DAYS AFTER THE DATE

1149

ON WHICH YOU WERE SERVED, EITHER BY PROCESS SERVER OR

1150

BY CERTIFIED MAIL, WITH THE NOTICE OF PRESUIT

1151

ARBITRATION.)

1152

1153

I/WE FURTHER AGREE TO PAY OR PREPAY ONE-HALF OF THE

1154

ARBITRATOR'S FEES AND TO FORWARD SUCH ADVANCE DEPOSITS

1155

AS THE ARBITRATOR MAY REQUIRE FOR THIS PURPOSE.

1156

1157

______________________________

1158

SIGNATURE OF RESPONDING PARTY #1

1159

______________________________

1160

TELEPHONE CONTACT INFORMATION

1161

______________________________

1162

SIGNATURE AND TELEPHONE CONTACT INFORMATION OF

1163

RESPONDING PARTY #2, IF APPLICABLE. IF THE PROPERTY IS

1164

OWNED BY MORE THAN ONE PERSON, ALL OWNERS MUST SIGN, OR

1165

A PERSON MAY SIGN WHO IS ACTING UNDER AUTHORITY OF A

1166

VALID POWER OF ATTORNEY GRANTED BY AN OWNER.

1167

1168

(2)(a) Service of the statutory notice of presuit

1169

arbitration shall be effected either by personal service, as

1170

provided in chapter 48, or by certified mail, return receipt

1171

requested, in a letter in substantial conformity with the form

1172

provided in subsection (1), with an additional copy being sent by

1173

regular first-class mail, to the address of the responding party

1174

as it last appears on the books and records of the association,

1175

or if not available, the last address as it appears on the

1176

official records of the county property appraiser for the county

1177

in which the property is situated that is subject to the

1178

association documents. The responding party has 20 days after the

1179

postmarked date of the certified mailing of the statutory notice

1180

of presuit arbitration or 20 days after the date the responding

1181

party is personally served with the statutory notice of presuit

1182

arbitration by to serve a written response to the aggrieved

1183

party. The response shall be served by certified mail, return

1184

receipt requested, with an additional copy being sent by regular

1185

first-class mail, to the address shown on the statutory notice of

1186

presuit arbitration. The postmarked date on the envelope of the

1187

response shall constitute the date the response was served.

1188

(b) The parties shall share the costs of presuit

1189

arbitration equally, including the fee charged by the arbitrator,

1190

if any, unless the parties agree otherwise, and the arbitrator

1191

may require advance payment of his or her reasonable fees and

1192

costs. Each party shall be responsible for all of their own

1193

attorney's fees if a party chooses to be represented by an

1194

attorney for the arbitration proceedings.

1195

1196

the agreement to arbitrate included in the notice of presuit

1197

arbitration and clearly indicate the name of the arbitrator who

1198

is acceptable of those arbitrators listed by the aggrieved party.

1199

The responding party must provide a list of at least three dates

1200

and times in which the responding party is available to

1201

participate in the arbitration conference within 90 days after

1202

the date the responding party was served with the statutory

1203

notice of presuit arbitration.

1204

2. The arbitrator must schedule the arbitration conference

1205

at a mutually convenient time and place, but if the responding

1206

party does not provide a list of available dates and times, the

1207

arbitrator is authorized to schedule an arbitration conference

1208

without taking the responding party's schedule and convenience

1209

into consideration. Within 10 days after the designation of the

1210

arbitrator, the arbitrator shall notify the parties in writing of

1211

the date, time, and place of the arbitration conference.

1212

3. The arbitration conference must be held on the scheduled

1213

date and may be rescheduled if approved by the arbitrator.

1214

However, in no event shall the arbitration hearing be later than

1215

90 days after the notice of presuit arbitration was first served,

1216

unless all parties mutually agree in writing otherwise. If the

1217

arbitration hearing is not completed within the required time

1218

limits, the arbitrator may issue an arbitration award unless the

1219

time for the hearing is extended as provided herein. If the

1220

responding party fails to respond within 20 days after the date

1221

of statutory notice of presuit arbitration, fails to agree to at

1222

least one of the arbitrators that have been listed by the

1223

aggrieved party in the presuit notice of arbitration, fails to

1224

pay or prepay to the arbitrator one-half of the costs involved,

1225

or fails to appear and participate at the scheduled arbitration,

1226

the aggrieved party is authorized to proceed with a request that

1227

the arbitrator issue an arbitration award.

1228

(d)1. The failure of any party to respond to the statutory

1229

notice of presuit arbitration within 20 days, the failure to

1230

either select one of the five arbitrators listed by the aggrieved

1231

party, the failure to provide a listing of dates and times in

1232

which the responding party is available to participate in the

1233

arbitration conference within 90 days after the date of the

1234

responding party being served with the statutory notice of

1235

presuit arbitration, the failure to make payment of fees and

1236

costs as required within the time established by the arbitrator,

1237

or the failure to appear for an arbitration conference without

1238

the approval of the arbitrator, shall entitle the other party to

1239

request the arbitrator to enter an arbitration award including an

1240

award of the reasonable costs and attorney's fees associated with

1241

the arbitration.

1242

2. Persons who fail or refuse to participate in the entire

1243

arbitration process may not recover attorney's fees and costs in

1244

any subsequent litigation proceeding relating to the same dispute

1245

involving the same parties.

1246

(3)(a) In an arbitration proceeding, the arbitrator may not

1247

consider any unsuccessful mediation of the dispute.

1248

(b) An arbitrator in a proceeding initiated pursuant to the

1249

provisions of this part may shorten the time for discovery or

1250

otherwise limit discovery in a manner consistent with the policy

1251

goals of this part to reduce the time and expense of litigating

1252

homeowners' association disputes initiated pursuant to this

1253

chapter and promoting an expeditious alternative dispute

1254

resolution procedure for parties to such actions.

1255

(4) At the request of any party to the arbitration, the

1256

arbitrator may issue subpoenas for the attendance of witnesses

1257

and the production of books, records, documents, and other

1258

evidence, and any party on whose behalf a subpoena is issued may

1259

apply to the court for orders compelling such attendance and

1260

production. Subpoenas shall be served and are enforceable in the

1261

manner provided by the Florida Rules of Civil Procedure.

1262

Discovery may, at the discretion of the arbitrator, be permitted

1263

in the manner provided by the Florida Rules of Civil Procedure.

1264

(5) The final arbitration award shall be sent to the

1265

parties in writing no later than 30 days after the date of the

1266

arbitration hearing, absent extraordinary circumstances

1267

necessitating a later filing the reasons for which shall be

1268

stated in the final award if filed more than 30 days after the

1269

date of the final session of the arbitration conference. An

1270

agreed arbitration award is final in those disputes in which the

1271

parties have mutually agreed to be bound. An arbitration award

1272

decided by the arbitrator is final unless a lawsuit seeking a

1273

trial de novo is filed in a court of competent jurisdiction

1274

within 30 days after the date of the arbitration award. The right

1275

to file for a trial de novo entitles the parties to file a

1276

complaint in the appropriate trial court for a judicial

1277

resolution of the dispute. The prevailing party in an arbitration

1278

proceeding shall be awarded the costs of the arbitration and

1279

reasonable attorney's fees in an amount determined by the

1280

arbitrator.

1281

(6) The party filing a motion for a trial de novo shall be

1282

assessed the other party's arbitration costs, court costs, and

1283

other reasonable costs, including attorney's fees, investigation

1284

expenses, and expenses for expert or other testimony or evidence

1285

incurred after the arbitration hearing if the judgment upon the

1286

trial de novo is not more favorable than the final arbitration

1287

award.

1288

720.508 Rules of procedure.--

1289

(1) Presuit mediation and presuit arbitration proceedings

1290

under this part must be conducted in accordance with the

1291

applicable Florida Rules of Civil Procedure and rules governing

1292

mediations and arbitrations under chapter 44, except this part

1293

shall be controlling to the extent of any conflict with other

1294

applicable rules or statutes. The arbitrator can shorten any

1295

applicable time period and otherwise limit the scope of discovery

1296

on request of the parties or within the discretion of the

1297

arbitrator exercised consistent with the purpose and objective of

1298

reducing the expense and expeditiously concluding proceedings

1299

under this part.

1300

(2) Presuit mediation proceedings under s. 720.505 are

1301

privileged and confidential to the same extent as court-ordered

1302

mediation under chapter 44. An arbitrator or judge may not

1303

consider any information or evidence arising from the presuit

1304

mediation proceeding except in a proceeding to impose sanctions

1305

for failure to attend a presuit mediation session or to enforce a

1306

mediated settlement agreement.

1307

(3) Persons who are not parties to the dispute may not

1308

attend the presuit mediation conference without consent of all

1309

parties, with the exception of counsel for the parties and a

1310

corporate representative designated by the association. Presuit

1311

mediations under this part are not a board meeting for purposes

1312

of notice and participation set forth in this chapter.

1313

(4) Attendance at a mediation conference by the board of

1314

directors shall not require notice or participation by nonboard

1315

members as otherwise required by this chapter for meetings of the

1316

board.

1317

(5) Settlement agreements resulting from a mediation or

1318

arbitration proceeding do not have precedential value in

1319

proceedings involving parties other than those participating in

1320

the mediation or arbitration.

1321

(6) Arbitration awards by an arbitrator shall have

1322

precedential value in other proceedings involving the same

1323

association or with respect to the same parcel owner.

1324

720.509 Mediators and arbitrators; qualifications and

1325

registration.--A person is authorized to conduct mediation or

1326

arbitration under this part if he or she has been certified as a

1327

circuit court civil mediator pursuant to the requirements adopted

1328

pursuant to s. 44.106, is a member in good standing with The

1329

Florida Bar, and otherwise meets all other requirements imposed

1330

by chapter 44.

1331

720.510 Enforcement of mediation agreement or arbitration

1332

award.--

1333

(1) A mediation settlement may be enforced through the

1334

county or circuit court, as applicable, and any costs and

1335

attorney's fees incurred in the enforcement of a settlement

1336

agreement reached at mediation shall be awarded to the prevailing

1337

party in any enforcement action.

1338

(2) Any party to an arbitration proceeding may enforce an

1339

arbitration award by filing a petition in a court of competent

1340

jurisdiction in which the homeowners' association is located. The

1341

prevailing party in such proceeding shall be awarded reasonable

1342

attorney's fees and costs incurred in such proceeding.

1343

(3) If a complaint is filed seeking a trial de novo, the

1344

arbitration award shall be stayed and a petition to enforce the

1345

award may not be granted. Such award, however, shall be

1346

admissible in the court proceeding seeking a trial de novo.

1347

Section 12. This act shall take effect July 1, 2008.

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