1 | A bill to be entitled |
2 | An act relating to community associations; amending s. |
3 | 514.011, F.S.; providing a definition; amending s. |
4 | 514.0115, F.S.; providing specified supervision and |
5 | regulation exemptions for homeowners' association swimming |
6 | pools; amending s. 515.25, F.S.; conforming a cross- |
7 | reference; amending s. 718.111, F.S.; specifying that |
8 | requirements relating to acquisition and maintenance of |
9 | adequate insurance apply to all residential condominiums; |
10 | revising and providing provisions relating to condominium |
11 | and condominium owner insurance coverage; authorizing an |
12 | association or group of associations to provide adequate |
13 | hazard insurance through a self-insurance fund; requiring |
14 | associations to exercise best efforts to obtain and |
15 | maintain certain kinds of insurance; providing coverage |
16 | requirements for policies entered into after a specified |
17 | date; requiring owners to provide evidence of a currently |
18 | effective policy of hazard and liability insurance upon |
19 | request by the association; specifying responsibility for |
20 | reconstruction work under specified circumstances; |
21 | specifying common expense responsibilities of the |
22 | association and owners; providing for unit owner access to |
23 | association records; prohibiting unit owners from |
24 | accessing certain personal identifying information of |
25 | other unit owners and persons residing in units; amending |
26 | s. 718.112, F.S.; requiring meetings of the board of |
27 | administration to be conducted using generally accepted |
28 | parliamentary procedures; requiring the board to hold |
29 | special meetings upon a petition of a specified amount of |
30 | the total voting interests or to take up the petitioned |
31 | items at the next regular meeting; providing members with |
32 | the right to speak at such meetings under certain |
33 | circumstances; providing location requirements for all |
34 | unit owner meetings; revising budget requirements; |
35 | amending s. 718.115, F.S.; providing certain expenses to |
36 | be included as common expenses; amending s. 718.116, F.S.; |
37 | providing requirements for claims of lien filed on or |
38 | after a specified date; providing notice requirements; |
39 | requiring certain advance notice to pay estimated |
40 | nonemergency special assessments; creating s. 718.1265, |
41 | F.S.; authorizing a condominium association board to |
42 | exercise specified emergency powers when a state of |
43 | emergency is declared; providing limitations; amending s. |
44 | 718.3025, F.S.; deleting a requirement specifying a |
45 | minimum number of personnel to be employed by a party |
46 | contracting to provide maintenance or management services; |
47 | providing requirements for certain contracts between a |
48 | party contracting to provide maintenance or management |
49 | services and an association; amending s. 718.3026, F.S.; |
50 | providing an expiration threshold for certain associations |
51 | opting out of requirements relating to contracts for |
52 | products and services following a vote by the unit owners; |
53 | amending s. 718.303, F.S.; requiring hearings to levy |
54 | fines to be held before a committee of unit owners who are |
55 | not members of the board or persons residing in a board |
56 | member's household; amending s. 718.5012, F.S.; removing a |
57 | requirement for the ombudsman to develop certain policies |
58 | and procedures; requiring direct assistance; amending s. |
59 | 718.503, F.S.; providing that prospective purchasers are |
60 | entitled to a governance form provided by the seller and |
61 | prepared by the division; requiring the governance form to |
62 | include specified information; amending s. 720.303, F.S.; |
63 | revising provisions relating to homeowners' association |
64 | board meetings, inspection and copying of records, reserve |
65 | accounts of budgets, and financial reporting requirements; |
66 | prohibiting salary or compensation of certain association |
67 | personnel; providing exceptions; amending s. 720.305, |
68 | F.S.; providing for an association to recover certain |
69 | costs and expenses in certain actions; revising a lien |
70 | restriction; amending s. 720.306, F.S.; revising certain |
71 | meeting notice requirements; providing absentee ballot |
72 | voting requirements; requiring newly elected members of a |
73 | board of directors to make certain certifications in |
74 | writing to the association; providing for disqualification |
75 | for failure to make such certifications; requiring an |
76 | association to retain such certifications for a certain |
77 | time; specifying repercussions for certain unexcused |
78 | absences; amending s. 720.307, F.S.; authorizing the board |
79 | of directors of an association to levy assessments on |
80 | unimproved parcels under certain circumstances; amending |
81 | s. 720.3075, F.S.; specifying an additional prohibited |
82 | clause in association documents; amending s. 720.308, |
83 | F.S.; revising certain cash funding requirements; amending |
84 | s. 720.3085, F.S.; revising mailing requirements for a |
85 | written notice or demand for past due assessments; |
86 | providing requirements for certain foreclosure actions; |
87 | amending s. 720.401, F.S.; revising certain prospective |
88 | parcel owner disclosure summary requirements; providing an |
89 | effective date. |
90 |
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91 | Be It Enacted by the Legislature of the State of Florida: |
92 |
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93 | Section 1. Section 514.011, Florida Statutes, is amended |
94 | to read: |
95 | 514.011 Definitions.--As used in this chapter: |
96 | (1) "Department" means the Department of Health. |
97 | (2) "Homeowners' association" means a homeowners' |
98 | association as defined in s. 720.301. |
99 | (3)(5) "Portable pool" means a pool or spa, and related |
100 | equipment systems of any kind, which is designed or intended to |
101 | be movable from location to location. |
102 | (4)(3) "Private pool" means a facility used only by an |
103 | individual, family, or living unit members and their guests |
104 | which does not serve any type of cooperative housing or joint |
105 | tenancy of five or more living units. |
106 | (5)(4) "Public bathing place" means a body of water, |
107 | natural or modified by humans, for swimming, diving, and |
108 | recreational bathing, together with adjacent shoreline or land |
109 | area, buildings, equipment, and appurtenances pertaining |
110 | thereto, used by consent of the owner or owners and held out to |
111 | the public by any person or public body, irrespective of whether |
112 | a fee is charged for the use thereof. The bathing water areas of |
113 | public bathing places include, but are not limited to, lakes, |
114 | ponds, rivers, streams, artificial impoundments, and waters |
115 | along the coastal and intracoastal beaches and shores of the |
116 | state. |
117 | (6)(2) "Public swimming pool" or "public pool" means a |
118 | watertight structure of concrete, masonry, or other approved |
119 | materials which is located either indoors or outdoors, used for |
120 | bathing or swimming by humans, and filled with a filtered and |
121 | disinfected water supply, together with buildings, |
122 | appurtenances, and equipment used in connection therewith. A |
123 | public swimming pool or public pool shall mean a conventional |
124 | pool, spa-type pool, wading pool, special purpose pool, or water |
125 | recreation attraction, to which admission may be gained with or |
126 | without payment of a fee and includes, but is not limited to, |
127 | pools operated by or serving camps, churches, cities, counties, |
128 | day care centers, group home facilities for eight or more |
129 | clients, health spas, institutions, parks, state agencies, |
130 | schools, subdivisions, or the cooperative living-type projects |
131 | of five or more living units, such as apartments, |
132 | boardinghouses, hotels, mobile home parks, motels, recreational |
133 | vehicle parks, and townhouses. |
134 | Section 2. Subsection (2) of section 514.0115, Florida |
135 | Statutes, is amended to read: |
136 | 514.0115 Exemptions from supervision or regulation; |
137 | variances.-- |
138 | (2)(a) Pools serving no more than 32 homeowners' |
139 | association, condominium, or cooperative units which are not |
140 | operated as a public lodging establishment shall be exempt from |
141 | supervision under this chapter, except for water quality. |
142 | (b) Pools serving homeowners', condominium, or cooperative |
143 | associations of more than 32 units and whose recorded documents |
144 | prohibit the rental or sublease of the units for periods of less |
145 | than 60 days are exempt from supervision under this chapter, |
146 | except that the homeowners' association or condominium or |
147 | cooperative owner or association must file applications with the |
148 | department and obtain construction plans approval and receive an |
149 | initial operating permit. The department shall inspect the |
150 | swimming pools at such places annually, at the fee set forth in |
151 | s. 514.033(3), or upon request by a unit owner, to determine |
152 | compliance with department rules relating to water quality and |
153 | lifesaving equipment. The department may not require compliance |
154 | with rules relating to swimming pool lifeguard standards. |
155 | Section 3. Subsection (9) of section 515.25, Florida |
156 | Statutes, is amended to read: |
157 | 515.25 Definitions.--As used in this chapter, the term: |
158 | (9) "Public swimming pool" means a swimming pool, as |
159 | defined in s. 514.011(6)(2), which is operated, with or without |
160 | charge, for the use of the general public; however, the term |
161 | does not include a swimming pool located on the grounds of a |
162 | private residence. |
163 | Section 4. Subsection (11), paragraphs (b) and (c) of |
164 | subsection (12), and subsection (13) of section 718.111, Florida |
165 | Statutes, are amended to read: |
166 | 718.111 The association.-- |
167 | (11) INSURANCE.--In order to protect the safety, health, |
168 | and welfare of the people of the State of Florida and to ensure |
169 | consistency in the provision of insurance coverage to |
170 | condominiums and their unit owners, this subsection shall be |
171 | paragraphs (a), (b), and (c) are deemed to apply to every |
172 | residential condominium in the state, regardless of the date of |
173 | its declaration of condominium. It is the intent of the |
174 | Legislature to encourage lower or stable insurance premiums for |
175 | associations described in this section. |
176 | (a) Adequate hazard insurance, regardless of any |
177 | requirement in the declaration of condominium for coverage by |
178 | the association for "full insurable value," "replacement cost," |
179 | or the like, shall be based upon the replacement cost of the |
180 | property to be insured as determined by an independent insurance |
181 | appraisal or update of a prior appraisal. The full insurable |
182 | value shall be determined not less frequently than every 36 |
183 | months. |
184 | 1. An association or group of associations may provide |
185 | adequate hazard insurance through a self-insurance fund that |
186 | complies with the requirements of ss. 624.460-624.488. |
187 | 2. The association may also provide adequate hazard |
188 | insurance coverage, individually, or for a group of no fewer |
189 | than three communities created and operating under this chapter, |
190 | chapter 719, chapter 720, or chapter 721, by obtaining and |
191 | maintaining for the communities insurance coverage sufficient to |
192 | cover an amount equal to the probable maximum loss for the |
193 | communities for a 250-year windstorm event provided that such |
194 | probable maximum loss must be determined through the use of a |
195 | competent model that has been accepted by the Florida Commission |
196 | on Hurricane Loss Projection Methodology. |
197 | 3. In determining the adequate hazard insurance coverage, |
198 | the association may consider deductibles as determined by this |
199 | subsection. |
200 | (b) If the association is developer controlled, the |
201 | association shall exercise best efforts to obtain and maintain |
202 | such insurance. Failure to obtain and maintain adequate hazard |
203 | insurance during any period of developer control shall |
204 | constitute a breach of fiduciary responsibility by the |
205 | developer-appointed members of the board of directors of the |
206 | association, unless such members can show that despite such |
207 | failure, they have made their best efforts. |
208 | (c) Policies may include deductibles as determined by the |
209 | board. |
210 | 1. The deductibles shall be consistent with industry |
211 | standards and prevailing practices for communities of like size |
212 | and age, having similar construction and facilities in the |
213 | locale where the condominium property is situated. |
214 | 2. The deductibles may be based upon available funds, |
215 | including reserve accounts or predetermined assessment authority |
216 | at the time that the insurance is obtained. |
217 | 3. The board shall establish the level of deductibles |
218 | based upon the level of available funds and predetermined |
219 | assessment authority at a meeting of the board which shall be |
220 | open to all unit owners in the manner set forth in s. |
221 | 718.112(2)(e). The notice of such meeting shall state the |
222 | proposed deductible and the available funds and the assessment |
223 | authority relied upon by the board and shall estimate any |
224 | potential assessment amount against each unit, if any. The |
225 | meeting described in this subparagraph may be held in |
226 | conjunction with a meeting to consider the proposed budget or an |
227 | amendment thereto. |
228 | (d) A unit-owner-controlled association operating a |
229 | residential condominium shall use its best efforts to obtain and |
230 | maintain adequate insurance to protect the association, the |
231 | association property, the common elements, and the condominium |
232 | property required to be insured by the association pursuant to |
233 | this subsection. |
234 | (e) The declaration of condominium as originally recorded, |
235 | or amended pursuant to procedures provided therein, may require |
236 | that condominium property consisting of freestanding buildings |
237 | where there is no more than one building in or on such unit need |
238 | not be insured by the association if the declaration requires |
239 | the unit owner to obtain adequate insurance for the condominium |
240 | property. An association may also obtain and maintain liability |
241 | insurance for directors and officers, insurance for the benefit |
242 | of association employees, and flood insurance for common |
243 | elements, association property, and units. |
244 | (f) Every hazard insurance policy issued or renewed on or |
245 | after January 1, 2009, to protect the condominium shall provide |
246 | primary coverage for: |
247 | 1. All portions of the condominium property as originally |
248 | installed or replacement of like kind and quality, in accordance |
249 | with the original plans and specifications. |
250 | 2. All alterations or additions made to the condominium |
251 | property or association property pursuant to s. 718.113(2). |
252 | 3. The coverage shall exclude all personal property within |
253 | the unit or limited common elements, floor, wall, and ceiling |
254 | coverings, electrical fixtures, appliances, water heaters, water |
255 | filters, built-in cabinets and countertops, and window |
256 | treatments, including curtains, drapes, blinds, hardware, and |
257 | similar window treatment components or replacements of any of |
258 | the foregoing. |
259 | |
260 | This paragraph is intended to establish the property or casualty |
261 | insuring responsibilities of the association and those of the |
262 | individual unit owner and do not serve to broaden or extend the |
263 | perils of coverage afforded by any insurance contract provided |
264 | to the individual unit owner. |
265 | (g) Every hazard insurance policy issued or renewed on or |
266 | after January 1, 2009, to an individual unit owner shall provide |
267 | that the coverage afforded by such policy is excess over the |
268 | amount recoverable under any other policy covering the same |
269 | property and shall include special assessment coverage of not |
270 | less than $2,000 per occurrence. Each insurance policy issued to |
271 | an individual unit owner providing such coverage shall be |
272 | without rights of subrogation against the condominium |
273 | association that operates the condominium in which such unit |
274 | owner's unit is located. |
275 | 1. All improvements or additions to the condominium |
276 | property that benefit less than all unit owners shall be insured |
277 | by the unit owner or owners having the use thereof, or may be |
278 | insured by the association at the cost and expense of the unit |
279 | owners having the use thereof. |
280 | 2. The association shall require each owner to provide |
281 | evidence of a currently effective policy of hazard and liability |
282 | insurance upon request, but not more frequently than annually. |
283 | Upon the failure of an owner to provide a certificate of |
284 | insurance issued by an insurer approved to write such insurance |
285 | in the state within 30 days of a written request, the |
286 | association shall be entitled but shall not be obligated to |
287 | purchase a policy of insurance on behalf of an owner, and the |
288 | cost thereof, together with reconstruction costs undertaken by |
289 | the association, which are the responsibility of the unit owner |
290 | may be collected in the manner provided for collection of |
291 | assessments in s. 718.116. |
292 | 3. All reconstruction work after a casualty loss shall be |
293 | undertaken by the association except as otherwise permitted |
294 | herein. A unit owner may undertake reconstruction work on |
295 | portions of the unit with the prior written consent of the board |
296 | of administration, which may be conditioned upon the approval of |
297 | the repair methods, the qualifications of the proposed |
298 | contractor, and the contract that is used for that purpose. A |
299 | unit owner shall obtain all required governmental permits and |
300 | approvals prior to commencing reconstruction. |
301 | 4. Unit owners shall be responsible for the cost of |
302 | reconstruction of any portions of the condominium property for |
303 | which the unit owner is required to carry casualty insurance, |
304 | and any such reconstruction work undertaken by the association |
305 | shall be chargeable to the unit and enforceable as an assessment |
306 | pursuant to s. 718.116. The association is hereby designated as |
307 | an additional named insured and loss payee on all casualty |
308 | insurance policies issued to unit owners in the condominium |
309 | operated by the association. |
310 | 5. A multicondominium association may elect, by a majority |
311 | vote of the collective members of the condominiums operated by |
312 | the association, to operate such condominiums as a single |
313 | condominium for purposes of insurance matters, including, but |
314 | not limited to, the purchase of the hazard insurance required by |
315 | this section and the apportionment of deductibles and damages in |
316 | excess of coverage. The election to aggregate the treatment of |
317 | insurance premiums, deductibles, and excess damages shall be |
318 | treated as an amendment to the declaration of all condominiums |
319 | operated by the association, and the costs of insurance shall be |
320 | stated in the association budget. The amendments shall be |
321 | recorded as required by s. 718.110. |
322 | (h) The association shall obtain and maintain adequate |
323 | insurance or fidelity bonding of all persons who control or |
324 | disburse funds of the association. The insurance policy or |
325 | fidelity bond must cover the maximum funds that will be in the |
326 | custody of the association or its management agent at any one |
327 | time. As used in this paragraph, the term "persons who control |
328 | or disburse funds of the association" includes, but is not |
329 | limited to, those individuals authorized to sign checks and the |
330 | president, secretary, and treasurer of the association. The |
331 | association shall bear the cost of bonding. |
332 | (i) The association has the authority to amend the |
333 | declaration of condominium, without regard to any requirement |
334 | for mortgagee approval of amendments affecting insurance |
335 | requirements, to conform the declaration of condominium to the |
336 | coverage requirements of this subsection. |
337 | (j) Any portion of the condominium property that the |
338 | association is required to insure against casualty loss pursuant |
339 | to paragraph (f) that is damaged by casualty shall be |
340 | reconstructed, repaired, or replaced, as necessary, by the |
341 | association as a common expense. All hazard insurance |
342 | deductibles, uninsured losses, and other damages in excess of |
343 | hazard insurance coverage under the hazard insurance policies |
344 | maintained by the association shall be a common expense of the |
345 | condominium, however: |
346 | 1. A unit owner shall be responsible for the costs of |
347 | repair or replacement of any portion of the condominium property |
348 | not paid for by insurance proceeds, when such damage is caused |
349 | by intentional conduct, negligence, or failure to comply with |
350 | the terms of the declaration or the rules of the association by |
351 | a unit owner, the members of his or her family, unit occupants, |
352 | tenants, guests, or invitees, and without compromise of the |
353 | subrogation rights of any insurer as set forth in paragraph (g). |
354 | 2. The provisions of subparagraph 1. regarding the |
355 | financial responsibility of a unit owner for the costs of |
356 | repairing or replacing other portions of the condominium |
357 | property also applies to the costs of repair or replacement of |
358 | personal property of other unit owners or the association, as |
359 | well as other property, whether real or personal, that the unit |
360 | owners are required to insure under paragraph (g). |
361 | 3. To the extent the cost of repair or reconstruction for |
362 | which the unit owner is responsible under this paragraph is |
363 | reimbursed to the association by insurance proceeds, and, to the |
364 | extent the association has collected the cost of such repair or |
365 | reconstruction from the unit owner, the association shall |
366 | reimburse the unit owner without the waiver of any rights of |
367 | subrogation. |
368 | 4. The association shall not be obligated to pay for |
369 | repair or reconstruction or repairs of casualty losses as a |
370 | common expense where the casualty losses were known or should |
371 | have been known to a unit owner and were not reported to the |
372 | association until after the insurance claim of the association |
373 | for that casualty has been settled and resolved with finality or |
374 | is considered untimely filed by the insurer and denied on that |
375 | basis. |
376 | (k) An association may, upon the approval of a majority of |
377 | the total voting interests in the association, opt out of the |
378 | provisions in paragraph (j) for the allocation of repair or |
379 | reconstruction expenses and allocate repair or reconstruction |
380 | expenses in the manner provided in the declaration as originally |
381 | recorded or as amended. Such vote may be approved by the voting |
382 | interests of the association without regard to any mortgagee |
383 | consent requirements. |
384 | (l) In a multicondominium association that has not |
385 | consolidated its financial operations under subsection (6), any |
386 | condominium operated by the association may opt out of the |
387 | provisions of paragraph (j) with the approval of a majority of |
388 | the total voting interests in that condominium. Such vote may be |
389 | approved by the voting interests without regard to any mortgagee |
390 | consent requirements. |
391 | (m) Any association or condominium voting to opt out of |
392 | the guidelines for repair or reconstruction expenses in |
393 | paragraph (j) must record a notice setting forth the date of the |
394 | opt out vote and the official records book and page at which the |
395 | declaration is recorded. The opt out shall be effective upon the |
396 | date of recording of the notice in the public records by the |
397 | association. An association that has voted to opt out of |
398 | paragraph (j) may reverse that decision by the same vote |
399 | required under paragraphs (k) and (l), and notice thereof shall |
400 | be recorded in the official records. |
401 | (n) The association shall not be obligated to pay for any |
402 | reconstruction or repair expenses due to casualty loss to any |
403 | improvements installed by a current or former owner of the unit |
404 | or by the developer where the improvement benefits only the unit |
405 | for which it was installed and is not part of the standard |
406 | improvements installed by the developer on all units as part of |
407 | original construction, whether or not such improvement is |
408 | located within the unit, except to the extent of any insurance |
409 | recovery specifically for any such improvements. Therefore, the |
410 | Legislature requires a report to be prepared by the Office of |
411 | Insurance Regulation of the Department of Financial Services for |
412 | publication 18 months from the effective date of this act, |
413 | evaluating premium increases or decreases for associations, unit |
414 | owner premium increases or decreases, recommended changes to |
415 | better define common areas, or any other information the Office |
416 | of Insurance Regulation deems appropriate. |
417 | (a) A unit-owner controlled association operating a |
418 | residential condominium shall use its best efforts to obtain and |
419 | maintain adequate insurance to protect the association, the |
420 | association property, the common elements, and the condominium |
421 | property required to be insured by the association pursuant to |
422 | paragraph (b). If the association is developer controlled, the |
423 | association shall exercise due diligence to obtain and maintain |
424 | such insurance. Failure to obtain and maintain adequate |
425 | insurance during any period of developer control shall |
426 | constitute a breach of fiduciary responsibility by the |
427 | developer-appointed members of the board of directors of the |
428 | association, unless said members can show that despite such |
429 | failure, they have exercised due diligence. The declaration of |
430 | condominium as originally recorded, or amended pursuant to |
431 | procedures provided therein, may require that condominium |
432 | property consisting of freestanding buildings where there is no |
433 | more than one building in or on such unit need not be insured by |
434 | the association if the declaration requires the unit owner to |
435 | obtain adequate insurance for the condominium property. An |
436 | association may also obtain and maintain liability insurance for |
437 | directors and officers, insurance for the benefit of association |
438 | employees, and flood insurance for common elements, association |
439 | property, and units. Adequate insurance, regardless of any |
440 | requirement in the declaration of condominium for coverage by |
441 | the association for "full insurable value," "replacement cost," |
442 | or the like, may include reasonable deductibles as determined by |
443 | the board based upon available funds or predetermined assessment |
444 | authority at the time that the insurance is obtained. |
445 | 1. Windstorm insurance coverage for a group of no fewer |
446 | than three communities created and operating under this chapter, |
447 | chapter 719, chapter 720, or chapter 721 may be obtained and |
448 | maintained for the communities if the insurance coverage is |
449 | sufficient to cover an amount equal to the probable maximum loss |
450 | for the communities for a 250-year windstorm event. Such |
451 | probable maximum loss must be determined through the use of a |
452 | competent model that has been accepted by the Florida Commission |
453 | on Hurricane Loss Projection Methodology. Such insurance |
454 | coverage is deemed adequate windstorm insurance for the purposes |
455 | of this section. |
456 | 2. An association or group of associations may self-insure |
457 | against claims against the association, the association |
458 | property, and the condominium property required to be insured by |
459 | an association, upon compliance with the applicable provisions |
460 | of ss. 624.460-624.488, which shall be considered adequate |
461 | insurance for the purposes of this section. A copy of each |
462 | policy of insurance in effect shall be made available for |
463 | inspection by unit owners at reasonable times. |
464 | (b) Every hazard insurance policy issued or renewed on or |
465 | after January 1, 2004, to protect the condominium shall provide |
466 | primary coverage for: |
467 | 1. All portions of the condominium property located |
468 | outside the units; |
469 | 2. The condominium property located inside the units as |
470 | such property was initially installed, or replacements thereof |
471 | of like kind and quality and in accordance with the original |
472 | plans and specifications or, if the original plans and |
473 | specifications are not available, as they existed at the time |
474 | the unit was initially conveyed; and |
475 | 3. All portions of the condominium property for which the |
476 | declaration of condominium requires coverage by the association. |
477 | |
478 | Anything to the contrary notwithstanding, the terms "condominium |
479 | property," "building," "improvements," "insurable improvements," |
480 | "common elements," "association property," or any other term |
481 | found in the declaration of condominium which defines the scope |
482 | of property or casualty insurance that a condominium association |
483 | must obtain shall exclude all floor, wall, and ceiling |
484 | coverings, electrical fixtures, appliances, air conditioner or |
485 | heating equipment, water heaters, water filters, built-in |
486 | cabinets and countertops, and window treatments, including |
487 | curtains, drapes, blinds, hardware, and similar window treatment |
488 | components, or replacements of any of the foregoing which are |
489 | located within the boundaries of a unit and serve only one unit |
490 | and all air conditioning compressors that service only an |
491 | individual unit, whether or not located within the unit |
492 | boundaries. The foregoing is intended to establish the property |
493 | or casualty insuring responsibilities of the association and |
494 | those of the individual unit owner and do not serve to broaden |
495 | or extend the perils of coverage afforded by any insurance |
496 | contract provided to the individual unit owner. Beginning |
497 | January 1, 2004, the association shall have the authority to |
498 | amend the declaration of condominium, without regard to any |
499 | requirement for mortgagee approval of amendments affecting |
500 | insurance requirements, to conform the declaration of |
501 | condominium to the coverage requirements of this section. |
502 | (c) Every hazard insurance policy issued or renewed on or |
503 | after January 1, 2004, to an individual unit owner shall provide |
504 | that the coverage afforded by such policy is excess over the |
505 | amount recoverable under any other policy covering the same |
506 | property. Each insurance policy issued to an individual unit |
507 | owner providing such coverage shall be without rights of |
508 | subrogation against the condominium association that operates |
509 | the condominium in which such unit owner's unit is located. All |
510 | real or personal property located within the boundaries of the |
511 | unit owner's unit which is excluded from the coverage to be |
512 | provided by the association as set forth in paragraph (b) shall |
513 | be insured by the individual unit owner. |
514 | (d) The association shall obtain and maintain adequate |
515 | insurance or fidelity bonding of all persons who control or |
516 | disburse funds of the association. The insurance policy or |
517 | fidelity bond must cover the maximum funds that will be in the |
518 | custody of the association or its management agent at any one |
519 | time. As used in this paragraph, the term "persons who control |
520 | or disburse funds of the association" includes, but is not |
521 | limited to, those individuals authorized to sign checks and the |
522 | president, secretary, and treasurer of the association. The |
523 | association shall bear the cost of bonding. |
524 | (12) OFFICIAL RECORDS.-- |
525 | (b)1. The official records of the association shall be |
526 | maintained within the state. |
527 | 2. Subject to paragraph (c), a unit owner may request in |
528 | writing that the records of the association identified in the |
529 | request be made available to him or her. The board, or its |
530 | designee, shall acknowledge the request, in writing, within 5 |
531 | days of receipt of the request. The acknowledgement will include |
532 | the date, time, and place at which the records will be made |
533 | available. That date shall not be more than 10 working days |
534 | after receipt of the request. |
535 | 3. For purposes of this paragraph, "available" means |
536 | having the originals or a copy of the official records of the |
537 | association available for inspection or copying at a location |
538 | within 30 miles driving distance from the condominium property. |
539 | The records of the association shall be made available to a unit |
540 | owner within 5 working days after receipt of written request by |
541 | the board or its designee. This paragraph may be complied with |
542 | by having a copy of the official records of the association |
543 | available for inspection or copying on the condominium property |
544 | or association property. |
545 | (c) The official records of the association are open to |
546 | inspection by any association member or the authorized |
547 | representative of such member at all reasonable times. The right |
548 | to inspect the records includes the right to make or obtain |
549 | copies, at the reasonable expense, if any, of the association |
550 | member. The association may adopt reasonable rules regarding the |
551 | frequency, time, location, notice, and manner of record |
552 | inspections and copying. The failure of an association to |
553 | provide the records within 10 working days after receipt of a |
554 | written request shall create a rebuttable presumption that the |
555 | association willfully failed to comply with this paragraph. A |
556 | unit owner who is denied access to official records is entitled |
557 | to the actual damages or minimum damages for the association's |
558 | willful failure to comply with this paragraph. The minimum |
559 | damages shall be $50 per calendar day up to 10 days, the |
560 | calculation to begin on the 11th working day after receipt of |
561 | the written request. The failure to permit inspection of the |
562 | association records as provided herein entitles any person |
563 | prevailing in an enforcement action to recover reasonable |
564 | attorney's fees from the person in control of the records who, |
565 | directly or indirectly, knowingly denied access to the records |
566 | for inspection. The association shall maintain an adequate |
567 | number of copies of the declaration, articles of incorporation, |
568 | bylaws, and rules, and all amendments to each of the foregoing, |
569 | as well as the question and answer sheet provided for in s. |
570 | 718.504 and year-end financial information required in this |
571 | section on the condominium property to ensure their availability |
572 | to unit owners and prospective purchasers, and may charge its |
573 | actual costs for preparing and furnishing these documents to |
574 | those requesting the same. Notwithstanding the provisions of |
575 | this paragraph, the following records shall not be accessible to |
576 | unit owners: |
577 | 1. Any record protected by the lawyer-client privilege as |
578 | described in s. 90.502; and any record protected by the work- |
579 | product privilege, including any record prepared by an |
580 | association attorney or prepared at the attorney's express |
581 | direction; which reflects a mental impression, conclusion, |
582 | litigation strategy, or legal theory of the attorney or the |
583 | association, and which was prepared exclusively for civil or |
584 | criminal litigation or for adversarial administrative |
585 | proceedings, or which was prepared in anticipation of imminent |
586 | civil or criminal litigation or imminent adversarial |
587 | administrative proceedings until the conclusion of the |
588 | litigation or adversarial administrative proceedings. |
589 | 2. Information obtained by an association in connection |
590 | with the approval of the lease, sale, or other transfer of a |
591 | unit. |
592 | 3. Medical records of unit owners. |
593 | 4. The dates of birth, social security numbers, drivers' |
594 | license numbers, financial account numbers, and credit account |
595 | numbers of unit owners and any persons residing in the units. |
596 | (13) FINANCIAL REPORTING.--Within 90 days after the end of |
597 | the fiscal year, or annually on a date provided in the bylaws, |
598 | the association shall prepare and complete, or contract for the |
599 | preparation and completion of, a financial report for the |
600 | preceding fiscal year. Within 21 days after the final financial |
601 | report is completed by the association or received from the |
602 | third party, but not later than 120 days after the end of the |
603 | fiscal year or other date as provided in the bylaws, the |
604 | association shall mail to each unit owner at the address last |
605 | furnished to the association by the unit owner, or hand deliver |
606 | to each unit owner, a copy of the financial report or a notice |
607 | that a copy of the financial report will be mailed or hand |
608 | delivered to the unit owner, without charge, upon receipt of a |
609 | written request from the unit owner. The division shall adopt |
610 | rules setting forth uniform accounting principles and standards |
611 | to be used by all associations and shall adopt rules addressing |
612 | financial reporting requirements for multicondominium |
613 | associations. In adopting such rules, the division shall |
614 | consider the number of members and annual revenues of an |
615 | association. Financial reports shall be prepared as follows: |
616 | (a) An association that meets the criteria of this |
617 | paragraph shall prepare or cause to be prepared a complete set |
618 | of financial statements in accordance with generally accepted |
619 | accounting principles. The financial statements shall be based |
620 | upon the association's total annual revenues, as follows: |
621 | 1. An association with total annual revenues of $150,000 |
622 | $100,000 or more, but less than $300,000 $200,000, shall prepare |
623 | compiled financial statements. |
624 | 2. An association with total annual revenues of at least |
625 | $300,000 $200,000, but less than $600,000 $400,000, shall |
626 | prepare reviewed financial statements. |
627 | 3. An association with total annual revenues of $600,000 |
628 | $400,000 or more shall prepare audited financial statements. |
629 | (b)1. An association with total annual revenues of less |
630 | than $150,000 $100,000 shall prepare a report of cash receipts |
631 | and expenditures. |
632 | 2. An association which operates less than 50 units, |
633 | regardless of the association's annual revenues, shall prepare a |
634 | report of cash receipts and expenditures in lieu of financial |
635 | statements required by paragraph (a). |
636 | 3. A report of cash receipts and disbursements must |
637 | disclose the amount of receipts by accounts and receipt |
638 | classifications and the amount of expenses by accounts and |
639 | expense classifications, including, but not limited to, the |
640 | following, as applicable: costs for security, professional and |
641 | management fees and expenses, taxes, costs for recreation |
642 | facilities, expenses for refuse collection and utility services, |
643 | expenses for lawn care, costs for building maintenance and |
644 | repair, insurance costs, administration and salary expenses, and |
645 | reserves accumulated and expended for capital expenditures, |
646 | deferred maintenance, and any other category for which the |
647 | association maintains reserves. |
648 | (c) An association may prepare or cause to be prepared, |
649 | without a meeting of or approval by the unit owners: |
650 | 1. Compiled, reviewed, or audited financial statements, if |
651 | the association is required to prepare a report of cash receipts |
652 | and expenditures; |
653 | 2. Reviewed or audited financial statements, if the |
654 | association is required to prepare compiled financial |
655 | statements; or |
656 | 3. Audited financial statements if the association is |
657 | required to prepare reviewed financial statements. |
658 | (d) If approved by a majority of the voting interests |
659 | present at a properly called meeting of the association, an |
660 | association may prepare or cause to be prepared: |
661 | 1. A report of cash receipts and expenditures in lieu of a |
662 | compiled, reviewed, or audited financial statement; |
663 | 2. A report of cash receipts and expenditures or a |
664 | compiled financial statement in lieu of a reviewed or audited |
665 | financial statement; or |
666 | 3. A report of cash receipts and expenditures, a compiled |
667 | financial statement, or a reviewed financial statement in lieu |
668 | of an audited financial statement. |
669 |
|
670 | Such meeting and approval must occur prior to the end of the |
671 | fiscal year and is effective only for the fiscal year in which |
672 | the vote is taken. This paragraph shall not apply to fiscal year |
673 | financial statements of an association subject to paragraph (a) |
674 | if financial statements at a level lower than required by |
675 | paragraph (a) were prepared for each of the prior 3 consecutive |
676 | fiscal years. With respect to an association to which the |
677 | developer has not turned over control of the association, all |
678 | unit owners, including the developer, may vote on issues related |
679 | to the preparation of financial reports for the first 2 fiscal |
680 | years of the association's operation, beginning with the fiscal |
681 | year in which the declaration is recorded. Thereafter, all unit |
682 | owners except the developer may vote on such issues until |
683 | control is turned over to the association by the developer. |
684 | Section 5. Paragraphs (c), (d), and (f) of subsection (2) |
685 | of section 718.112, Florida Statutes, are amended to read: |
686 | 718.112 Bylaws.-- |
687 | (2) REQUIRED PROVISIONS.--The bylaws shall provide for the |
688 | following and, if they do not do so, shall be deemed to include |
689 | the following: |
690 | (c) Board of administration meetings.-- |
691 | 1. Meetings of the board of administration at which a |
692 | quorum of the members is present shall be open to all unit |
693 | owners. Meetings shall be conducted using generally accepted |
694 | parliamentary rules of order. Any unit owner may tape record or |
695 | videotape meetings of the board of administration. The right to |
696 | attend such meetings includes the right to speak at such |
697 | meetings with reference to all designated agenda items. The |
698 | division shall adopt reasonable rules governing the tape |
699 | recording and videotaping of the meeting. The association may |
700 | adopt written reasonable rules governing the frequency, |
701 | duration, and manner of unit owner statements. Adequate notice |
702 | of all meetings, which notice shall specifically incorporate an |
703 | identification of agenda items, shall be posted conspicuously on |
704 | the condominium property at least 48 continuous hours preceding |
705 | the meeting except in an emergency. Any item not included on the |
706 | notice may be taken up on an emergency basis by at least a |
707 | majority plus one of the members of the board. Such emergency |
708 | action shall be noticed and ratified at the next regular meeting |
709 | of the board. However, written notice of any meeting at which |
710 | nonemergency special assessments, or at which amendment to rules |
711 | regarding unit use, will be considered shall be mailed, |
712 | delivered, or electronically transmitted to the unit owners and |
713 | posted conspicuously on the condominium property not less than |
714 | 14 days prior to the meeting. Evidence of compliance with this |
715 | 14-day notice shall be made by an affidavit executed by the |
716 | person providing the notice and filed among the official records |
717 | of the association. Upon notice to the unit owners, the board |
718 | shall by duly adopted rule designate a specific location on the |
719 | condominium property or association property upon which all |
720 | notices of board meetings shall be posted. If there is no |
721 | condominium property or association property upon which notices |
722 | can be posted, notices of board meetings shall be mailed, |
723 | delivered, or electronically transmitted at least 14 days before |
724 | the meeting to the owner of each unit. In lieu of or in addition |
725 | to the physical posting of notice of any meeting of the board of |
726 | administration on the condominium property, the association may, |
727 | by reasonable rule, adopt a procedure for conspicuously posting |
728 | and repeatedly broadcasting the notice and the agenda on a |
729 | closed-circuit cable television system serving the condominium |
730 | association. However, if broadcast notice is used in lieu of a |
731 | notice posted physically on the condominium property, the notice |
732 | and agenda must be broadcast at least four times every broadcast |
733 | hour of each day that a posted notice is otherwise required |
734 | under this section. When broadcast notice is provided, the |
735 | notice and agenda must be broadcast in a manner and for a |
736 | sufficient continuous length of time so as to allow an average |
737 | reader to observe the notice and read and comprehend the entire |
738 | content of the notice and the agenda. Notice of any meeting in |
739 | which regular assessments against unit owners are to be |
740 | considered for any reason shall specifically contain a statement |
741 | that assessments will be considered and the nature of any such |
742 | assessments. Meetings of a committee to take final action on |
743 | behalf of the board or make recommendations to the board |
744 | regarding the association budget are subject to the provisions |
745 | of this paragraph. Meetings of a committee that does not take |
746 | final action on behalf of the board or make recommendations to |
747 | the board regarding the association budget are subject to the |
748 | provisions of this section, unless those meetings are exempted |
749 | from this section by the bylaws of the association. |
750 | Notwithstanding any other law, the requirement that board |
751 | meetings and committee meetings be open to the unit owners is |
752 | inapplicable to meetings between the board or a committee and |
753 | the association's attorney, with respect to proposed or pending |
754 | litigation, when the meeting is held for the purpose of seeking |
755 | or rendering legal advice. |
756 | 2. If 20 percent of the total voting interests petition |
757 | the board to address an item of business, the board shall at its |
758 | next regular board meeting or at a special meeting of the board, |
759 | but not later than 60 days after the receipt of the petition, |
760 | take the petitioned item up on an agenda. The board shall give |
761 | all members notice of the meeting at which the petitioned item |
762 | shall be addressed in accordance with subparagraph 1. Each |
763 | member shall have the right to speak for at least 3 minutes on |
764 | each matter placed on the agenda by petition, provided that the |
765 | member signs the sign-up sheet, if one is provided, or submits a |
766 | written request to speak prior to the meeting. Other than |
767 | addressing the petitioned item at the meeting, the board is not |
768 | obligated to take any other action requested by the petition. |
769 | (d) Unit owner meetings.-- |
770 | 1. There shall be an annual meeting of the unit owners. |
771 | All meetings of the unit owners, including the annual meeting, |
772 | shall be held at the place and time provided in the |
773 | association's bylaws or, if the bylaws are silent, at a time and |
774 | place specified by the board that is within the state and within |
775 | 20 miles of the condominium property. Unless the bylaws provide |
776 | otherwise, a vacancy on the board caused by the expiration of a |
777 | director's term shall be filled by electing a new board member, |
778 | and the election shall be by secret ballot; however, if the |
779 | number of vacancies equals or exceeds the number of candidates, |
780 | no election is required. If there is no provision in the bylaws |
781 | for terms of the members of the board, the terms of all members |
782 | of the board shall expire upon the election of their successors |
783 | at the annual meeting. Any unit owner desiring to be a candidate |
784 | for board membership shall comply with subparagraph 3. A person |
785 | who has been convicted of any felony by any court of record in |
786 | the United States and who has not had his or her right to vote |
787 | restored pursuant to law in the jurisdiction of his or her |
788 | residence is not eligible for board membership. The validity of |
789 | an action by the board is not affected if it is later determined |
790 | that a member of the board is ineligible for board membership |
791 | due to having been convicted of a felony. |
792 | 2. The bylaws shall provide the method of calling meetings |
793 | of unit owners, including annual meetings. Written notice, which |
794 | notice must include an agenda, shall be mailed, hand delivered, |
795 | or electronically transmitted to each unit owner at least 14 |
796 | days prior to the annual meeting and shall be posted in a |
797 | conspicuous place on the condominium property at least 14 |
798 | continuous days preceding the annual meeting. Upon notice to the |
799 | unit owners, the board shall by duly adopted rule designate a |
800 | specific location on the condominium property or association |
801 | property upon which all notices of unit owner meetings shall be |
802 | posted; however, if there is no condominium property or |
803 | association property upon which notices can be posted, this |
804 | requirement does not apply. In lieu of or in addition to the |
805 | physical posting of notice of any meeting of the unit owners on |
806 | the condominium property, the association may, by reasonable |
807 | rule, adopt a procedure for conspicuously posting and repeatedly |
808 | broadcasting the notice and the agenda on a closed-circuit cable |
809 | television system serving the condominium association. However, |
810 | if broadcast notice is used in lieu of a notice posted |
811 | physically on the condominium property, the notice and agenda |
812 | must be broadcast at least four times every broadcast hour of |
813 | each day that a posted notice is otherwise required under this |
814 | section. When broadcast notice is provided, the notice and |
815 | agenda must be broadcast in a manner and for a sufficient |
816 | continuous length of time so as to allow an average reader to |
817 | observe the notice and read and comprehend the entire content of |
818 | the notice and the agenda. Unless a unit owner waives in writing |
819 | the right to receive notice of the annual meeting, such notice |
820 | shall be hand delivered, mailed, or electronically transmitted |
821 | to each unit owner. Notice for meetings and notice for all other |
822 | purposes shall be mailed to each unit owner at the address last |
823 | furnished to the association by the unit owner, or hand |
824 | delivered to each unit owner. However, if a unit is owned by |
825 | more than one person, the association shall provide notice, for |
826 | meetings and all other purposes, to that one address which the |
827 | developer initially identifies for that purpose and thereafter |
828 | as one or more of the owners of the unit shall so advise the |
829 | association in writing, or if no address is given or the owners |
830 | of the unit do not agree, to the address provided on the deed of |
831 | record. An officer of the association, or the manager or other |
832 | person providing notice of the association meeting, shall |
833 | provide an affidavit or United States Postal Service certificate |
834 | of mailing, to be included in the official records of the |
835 | association affirming that the notice was mailed or hand |
836 | delivered, in accordance with this provision. |
837 | 3. The members of the board shall be elected by written |
838 | ballot or voting machine. Proxies shall in no event be used in |
839 | electing the board, either in general elections or elections to |
840 | fill vacancies caused by recall, resignation, or otherwise, |
841 | unless otherwise provided in this chapter. Not less than 60 days |
842 | before a scheduled election, the association shall mail, |
843 | deliver, or electronically transmit, whether by separate |
844 | association mailing or included in another association mailing, |
845 | delivery, or transmission, including regularly published |
846 | newsletters, to each unit owner entitled to a vote, a first |
847 | notice of the date of the election. Any unit owner or other |
848 | eligible person desiring to be a candidate for the board must |
849 | give written notice to the association not less than 40 days |
850 | before a scheduled election. Together with the written notice |
851 | and agenda as set forth in subparagraph 2., the association |
852 | shall mail, deliver, or electronically transmit a second notice |
853 | of the election to all unit owners entitled to vote therein, |
854 | together with a ballot which shall list all candidates. Upon |
855 | request of a candidate, the association shall include an |
856 | information sheet, no larger than 81/2 inches by 11 inches, |
857 | which must be furnished by the candidate not less than 35 days |
858 | before the election, to be included with the mailing, delivery, |
859 | or transmission of the ballot, with the costs of mailing, |
860 | delivery, or electronic transmission and copying to be borne by |
861 | the association. The association is not liable for the contents |
862 | of the information sheets prepared by the candidates. In order |
863 | to reduce costs, the association may print or duplicate the |
864 | information sheets on both sides of the paper. The division |
865 | shall by rule establish voting procedures consistent with the |
866 | provisions contained herein, including rules establishing |
867 | procedures for giving notice by electronic transmission and |
868 | rules providing for the secrecy of ballots. Elections shall be |
869 | decided by a plurality of those ballots cast. There shall be no |
870 | quorum requirement; however, at least 20 percent of the eligible |
871 | voters must cast a ballot in order to have a valid election of |
872 | members of the board. No unit owner shall permit any other |
873 | person to vote his or her ballot, and any such ballots |
874 | improperly cast shall be deemed invalid, provided any unit owner |
875 | who violates this provision may be fined by the association in |
876 | accordance with s. 718.303. A unit owner who needs assistance in |
877 | casting the ballot for the reasons stated in s. 101.051 may |
878 | obtain assistance in casting the ballot. The regular election |
879 | shall occur on the date of the annual meeting. The provisions of |
880 | this subparagraph shall not apply to timeshare condominium |
881 | associations. Notwithstanding the provisions of this |
882 | subparagraph, an election is not required unless more candidates |
883 | file notices of intent to run or are nominated than board |
884 | vacancies exist. |
885 | 4. Any approval by unit owners called for by this chapter |
886 | or the applicable declaration or bylaws, including, but not |
887 | limited to, the approval requirement in s. 718.111(8), shall be |
888 | made at a duly noticed meeting of unit owners and shall be |
889 | subject to all requirements of this chapter or the applicable |
890 | condominium documents relating to unit owner decisionmaking, |
891 | except that unit owners may take action by written agreement, |
892 | without meetings, on matters for which action by written |
893 | agreement without meetings is expressly allowed by the |
894 | applicable bylaws or declaration or any statute that provides |
895 | for such action. |
896 | 5. Unit owners may waive notice of specific meetings if |
897 | allowed by the applicable bylaws or declaration or any statute. |
898 | If authorized by the bylaws, notice of meetings of the board of |
899 | administration, unit owner meetings, except unit owner meetings |
900 | called to recall board members under paragraph (j), and |
901 | committee meetings may be given by electronic transmission to |
902 | unit owners who consent to receive notice by electronic |
903 | transmission. |
904 | 6. Unit owners shall have the right to participate in |
905 | meetings of unit owners with reference to all designated agenda |
906 | items. However, the association may adopt reasonable rules |
907 | governing the frequency, duration, and manner of unit owner |
908 | participation. |
909 | 7. Any unit owner may tape record or videotape a meeting |
910 | of the unit owners subject to reasonable rules adopted by the |
911 | division. |
912 | 8. Unless otherwise provided in the bylaws, any vacancy |
913 | occurring on the board before the expiration of a term may be |
914 | filled by the affirmative vote of the majority of the remaining |
915 | directors, even if the remaining directors constitute less than |
916 | a quorum, or by the sole remaining director. In the alternative, |
917 | a board may hold an election to fill the vacancy, in which case |
918 | the election procedures must conform to the requirements of |
919 | subparagraph 3. unless the association has opted out of the |
920 | statutory election process, in which case the bylaws of the |
921 | association control. Unless otherwise provided in the bylaws, a |
922 | board member appointed or elected under this section shall fill |
923 | the vacancy for the unexpired term of the seat being filled. |
924 | Filling vacancies created by recall is governed by paragraph (j) |
925 | and rules adopted by the division. |
926 |
|
927 | Notwithstanding subparagraphs (b)2. and (d)3., an association |
928 | may, by the affirmative vote of a majority of the total voting |
929 | interests, provide for different voting and election procedures |
930 | in its bylaws, which vote may be by a proxy specifically |
931 | delineating the different voting and election procedures. The |
932 | different voting and election procedures may provide for |
933 | elections to be conducted by limited or general proxy. |
934 | (f) Annual budget.-- |
935 | 1. The proposed annual budget of common expenses shall be |
936 | detailed and shall show the amounts budgeted by accounts and |
937 | expense classifications, including, if applicable, but not |
938 | limited to, those expenses listed in s. 718.504(21). A |
939 | multicondominium association shall adopt a separate budget of |
940 | common expenses for each condominium the association operates |
941 | and shall adopt a separate budget of common expenses for the |
942 | association. In addition, if the association maintains limited |
943 | common elements with the cost to be shared only by those |
944 | entitled to use the limited common elements as provided for in |
945 | s. 718.113(1), the budget or a schedule attached thereto shall |
946 | show amounts budgeted therefor. If, after turnover of control of |
947 | the association to the unit owners, any of the expenses listed |
948 | in s. 718.504(21) are not applicable, they need not be listed. |
949 | 2. In addition to annual operating expenses, the budget |
950 | shall include reserve accounts for those items of capital |
951 | expenditures and deferred maintenance that occur less frequently |
952 | than annually. These accounts shall include, but are not limited |
953 | to, roof replacement, building painting, and pavement |
954 | resurfacing, regardless of the amount of deferred maintenance |
955 | expense or replacement cost, and for any other item for which |
956 | the deferred maintenance expense or replacement cost exceeds the |
957 | greater of $10,000 or $300 multiplied by the number of units. |
958 | The amount to be reserved shall be computed by means of a |
959 | formula which is based upon estimated remaining useful life and |
960 | estimated replacement cost or deferred maintenance expense of |
961 | each reserve item. The association may adjust replacement |
962 | reserve assessments annually to take into account any changes in |
963 | estimates or extension of the useful life of a reserve item |
964 | caused by deferred maintenance. This subsection does not apply |
965 | to an adopted budget in which the members of an association have |
966 | determined, by a majority vote at a duly called meeting of the |
967 | association, to provide no reserves or less reserves than |
968 | required by this subsection. However, prior to turnover of |
969 | control of an association by a developer to unit owners other |
970 | than a developer pursuant to s. 718.301, the developer may vote |
971 | to waive the reserves or reduce the funding of reserves for the |
972 | first 2 fiscal years of the association's operation, beginning |
973 | with the fiscal year in which the initial declaration is |
974 | recorded, after which time reserves may be waived or reduced |
975 | only upon the vote of a majority of all nondeveloper voting |
976 | interests voting in person or by limited proxy at a duly called |
977 | meeting of the association. If a meeting of the unit owners has |
978 | been called to determine whether to waive or reduce the funding |
979 | of reserves, and no such result is achieved or a quorum is not |
980 | attained, the reserves as included in the budget shall go into |
981 | effect. After the turnover, the developer may vote its voting |
982 | interest to waive or reduce the funding of reserves. |
983 | 3. Reserve funds and any interest accruing thereon shall |
984 | remain in the reserve account or accounts, and shall be used |
985 | only for authorized reserve expenditures unless their use for |
986 | other purposes is approved in advance by a majority vote at a |
987 | duly called meeting of the association. Prior to turnover of |
988 | control of an association by a developer to unit owners other |
989 | than the developer pursuant to s. 718.301, the developer- |
990 | controlled association shall not vote to use reserves for |
991 | purposes other than that for which they were intended without |
992 | the approval of a majority of all nondeveloper voting interests, |
993 | voting in person or by limited proxy at a duly called meeting of |
994 | the association. |
995 | 4. The only voting interests which are eligible to vote on |
996 | questions that involve waiving or reducing the funding of |
997 | reserves, or using existing reserve funds for purposes other |
998 | than purposes for which the reserves were intended, are the |
999 | voting interests of the units subject to assessment to fund the |
1000 | reserves in question. |
1001 | Section 6. Paragraph (a) of subsection (1) of section |
1002 | 718.115, Florida Statutes, is amended to read: |
1003 | 718.115 Common expenses and common surplus.-- |
1004 | (1)(a) Common expenses include the expenses of the |
1005 | operation, maintenance, repair, replacement, or protection of |
1006 | the common elements and association property, costs of carrying |
1007 | out the powers and duties of the association, and any other |
1008 | expense, whether or not included in the foregoing, designated as |
1009 | common expense by this chapter, the declaration, the documents |
1010 | creating the association, or the bylaws. Common expenses also |
1011 | include reasonable transportation services, insurance for |
1012 | directors and officers, road maintenance and operation expenses, |
1013 | in-house communications, and security services, which are |
1014 | reasonably related to the general benefit of the unit owners |
1015 | even if such expenses do not attach to the common elements or |
1016 | property of the condominium. However, such common expenses must |
1017 | either have been services or items provided on or after the date |
1018 | control of the association is transferred from the developer to |
1019 | the unit owners or must be services or items provided for in the |
1020 | condominium documents or bylaws. The expenses of items or |
1021 | services required by federal, state, or local government to be |
1022 | installed, maintained, or supplied to the condominium property |
1023 | by the association, including, but not limited to, fire safety |
1024 | equipment, or water and sewer service where a master meter |
1025 | serves the condominium, shall be common expenses whether or not |
1026 | these items or services are specifically identified as common |
1027 | expenses in the declaration, articles, or bylaws of the |
1028 | association. |
1029 | Section 7. Paragraph (c) of subsection (5) of section |
1030 | 718.116, Florida Statutes, is redesignated as paragraph (d), a |
1031 | new paragraph (c) is added to that subsection, and subsection |
1032 | (10) of that section is amended, to read: |
1033 | 718.116 Assessments; liability; lien and priority; |
1034 | interest; collection.-- |
1035 | (5) |
1036 | (c) Any claim of lien filed on or after January 1, 2009, |
1037 | shall not be valid unless it includes a statement from the |
1038 | executing officer or authorized agent attesting that on a stated |
1039 | date, which shall be no later than 30 days prior to the date of |
1040 | filing, the record owner was given written notice of the amount |
1041 | due and of the association's intention to file a claim of lien |
1042 | if the amount due has not been fully paid within 30 days |
1043 | following the date of mailing or delivery of the notice. The |
1044 | statement shall also attest that the notice described was given |
1045 | by personal delivery to the unit owner or by mailing a copy |
1046 | thereof by certified or registered mail, return receipt, |
1047 | addressed to the unit owner at his or her last known address. |
1048 | (d)(c) By recording a notice in substantially the |
1049 | following form, a unit owner or the unit owner's agent or |
1050 | attorney may require the association to enforce a recorded claim |
1051 | of lien against his or her condominium parcel: |
1052 |
|
1053 | NOTICE OF CONTEST OF LIEN |
1054 |
|
1055 | TO: (Name and address of association) You are notified |
1056 | that the undersigned contests the claim of lien filed by you on |
1057 | _____, (year) , and recorded in Official Records Book _____ |
1058 | at Page _____, of the public records of _____ County, Florida, |
1059 | and that the time within which you may file suit to enforce your |
1060 | lien is limited to 90 days from the date of service of this |
1061 | notice. Executed this _____ day of _____, (year) . |
1062 |
|
1063 | Signed: (Owner or Attorney) |
1064 |
|
1065 | After notice of contest of lien has been recorded, the clerk of |
1066 | the circuit court shall mail a copy of the recorded notice to |
1067 | the association by certified mail, return receipt requested, at |
1068 | the address shown in the claim of lien or most recent amendment |
1069 | to it and shall certify to the service on the face of the |
1070 | notice. Service is complete upon mailing. After service, the |
1071 | association has 90 days in which to file an action to enforce |
1072 | the lien; and, if the action is not filed within the 90-day |
1073 | period, the lien is void. However, the 90-day period shall be |
1074 | extended for any length of time that the association is |
1075 | prevented from filing its action because of an automatic stay |
1076 | resulting from the filing of a bankruptcy petition by the unit |
1077 | owner or by any other person claiming an interest in the parcel. |
1078 | (10) The specific purpose or purposes of any special |
1079 | assessment, including any contingent special assessment levied |
1080 | in conjunction with the purchase of an insurance policy |
1081 | authorized by s. 718.111(11), approved in accordance with the |
1082 | condominium documents shall be set forth in a written notice of |
1083 | such assessment sent or delivered to each unit owner. Unit |
1084 | owners shall be afforded no less than 60 days' advance notice to |
1085 | pay estimated nonemergency special assessments. The funds |
1086 | collected pursuant to a special assessment shall be used only |
1087 | for the specific purpose or purposes set forth in such notice. |
1088 | However, upon completion of such specific purpose or purposes, |
1089 | any excess funds will be considered common surplus, and may, at |
1090 | the discretion of the board, either be returned to the unit |
1091 | owners or applied as a credit toward future assessments. |
1092 | Section 8. Section 718.1265, Florida Statutes, is created |
1093 | to read: |
1094 | 718.1265 Association emergency powers.-- |
1095 | (1) To the extent allowed by law and unless specifically |
1096 | prohibited by the declaration, articles, or bylaws of an |
1097 | association, and consistent with the provisions of s. 617.0830, |
1098 | the board of administration, in response to damage caused by an |
1099 | event for which a state of emergency is declared pursuant to s. |
1100 | 252.36 in the locale in which the condominium is located, may, |
1101 | but is not required to, exercise the following powers: |
1102 | (a) Conduct board meetings and membership meetings with |
1103 | notice given as is practicable. Such notice may be given in any |
1104 | practicable manner, including publication, radio, United States |
1105 | mail, the Internet, public service announcements, and |
1106 | conspicuous posting on the condominium property or any other |
1107 | means the board deems reasonable under the circumstances. Notice |
1108 | of board decisions may be communicated as provided in this |
1109 | paragraph. |
1110 | (b) Cancel and reschedule any association meeting. |
1111 | (c) Name as assistant officers persons who are not |
1112 | directors, which assistant officers shall have the same |
1113 | authority as the executive officers to whom they are assistants |
1114 | during the state of emergency to accommodate the incapacity or |
1115 | unavailability of any officer of the association. |
1116 | (d) Relocate the association's principal office or |
1117 | designate alternative principal offices. |
1118 | (e) Enter into agreements with local counties and |
1119 | municipalities to assist counties and municipalities with debris |
1120 | removal. |
1121 | (f) Implement a disaster plan before or immediately |
1122 | following the event for which a state of emergency is declared |
1123 | that may include, but is not limited to, shutting down or off |
1124 | elevators; electricity; water, sewer, or security systems; or |
1125 | air conditioners. |
1126 | (g) Declare any portion of the condominium property |
1127 | unavailable for entry or occupancy by unit owners, family |
1128 | members, tenants, guests, agents, or invitees to protect the |
1129 | health, safety, or welfare of such persons. |
1130 | (h) Require the evacuation of the condominium property in |
1131 | the event of a mandatory evacuation order in the locale in which |
1132 | the condominium is located. Should any unit owner or other |
1133 | occupant of a condominium fail or refuse to evacuate the |
1134 | condominium property where the board has required evacuation, |
1135 | the association shall be immune from liability for injury to |
1136 | persons or property arising from such failure or refusal. |
1137 | (i) Determine whether the condominium property can be |
1138 | safely inhabited or occupied. However, such determination is not |
1139 | conclusive as to any determination of habitability pursuant to |
1140 | the declaration made by county or municipal officials in the |
1141 | locale in which the condominium is located. |
1142 | (j) Mitigate further damage, including taking action to |
1143 | contract for the removal of debris, making roofing or other |
1144 | repairs to prevent intrusion by the elements, and shoring walls; |
1145 | and prevent or mitigate the spread of fungus, including, but not |
1146 | limited to, mold or mildew, by removing and disposing of wet |
1147 | drywall, insulation, carpet, cabinetry, or other fixtures, on or |
1148 | within the condominium property, even if the unit owner is |
1149 | obligated by the declaration or law to insure or replace those |
1150 | fixtures and to remove personal property from a unit. |
1151 | (k) Contract, on behalf of any unit owner or owners, for |
1152 | items or services for which the owner or owners are otherwise |
1153 | individually responsible for, but which are necessary to prevent |
1154 | further damage to the condominium property. In such event, the |
1155 | unit owner or owners on whose behalf the board has contracted |
1156 | are responsible for reimbursing the association for the actual |
1157 | costs of the items or services, and the association may use its |
1158 | lien authority provided by s. 718.116 to enforce collection of |
1159 | the charges. Without limitation, such items or services may |
1160 | include the drying of units, the boarding of broken windows or |
1161 | doors, and the replacement of damaged air conditioners or air |
1162 | handlers to provide climate control in the units or other |
1163 | portions of the property. |
1164 | (l) Levy special assessments without a vote of the owners, |
1165 | regardless of any provision to the contrary in the declaration, |
1166 | articles, or bylaws of an association and regardless of the fact |
1167 | that such authority does not specifically appear in such |
1168 | documents. |
1169 | (m) Use reserve funds and borrow money and pledge |
1170 | association assets as collateral to fund emergency repairs and |
1171 | carry out the duties of the association when operating funds are |
1172 | insufficient, without unit owner approval. This paragraph does |
1173 | not limit the general authority of the association to borrow |
1174 | money, subject to such restrictions as are contained in the |
1175 | declaration, articles, or bylaws. |
1176 | (2) The special powers authorized under subsection (1) |
1177 | shall be limited to that time reasonably necessary to protect |
1178 | the health, safety, and welfare of the association, the unit |
1179 | owners, their family members, tenants, guests, agents, or |
1180 | invitees and shall be reasonably necessary to mitigate further |
1181 | damage and make emergency repairs. |
1182 | Section 9. Paragraphs (d) and (e) of subsection (1) of |
1183 | section 718.3025, Florida Statutes, are amended, and subsection |
1184 | (5) is added to that section, to read: |
1185 | 718.3025 Agreements for operation, maintenance, or |
1186 | management of condominiums; specific requirements.-- |
1187 | (1) No written contract between a party contracting to |
1188 | provide maintenance or management services and an association |
1189 | which contract provides for operation, maintenance, or |
1190 | management of a condominium association or property serving the |
1191 | unit owners of a condominium shall be valid or enforceable |
1192 | unless the contract: |
1193 | (d) Specifies a minimum number of personnel to be employed |
1194 | by the party contracting to provide maintenance or management |
1195 | services for the purpose of providing service to the |
1196 | association. |
1197 | (e) Discloses any financial or ownership interest which |
1198 | the developer, if the developer is in control of the |
1199 | association, holds with regard to the party contracting to |
1200 | provide maintenance or management services. |
1201 | (5) No clause in a contract subject to this section |
1202 | executed on or after January 1, 2009, shall be enforceable to |
1203 | the extent that it provides for the automatic renewal or the |
1204 | automatic extension of the contract. |
1205 | Section 10. Section 718.3026, Florida Statutes, is amended |
1206 | to read: |
1207 | 718.3026 Contracts for products and services; in writing; |
1208 | bids; exceptions.--Associations with less than 100 units may opt |
1209 | out of the provisions of this section if two-thirds of the unit |
1210 | owners vote to do so, which opt-out may be accomplished by a |
1211 | proxy specifically setting forth the exception from this |
1212 | section. Such an opt out expires 3 years following the date of |
1213 | the opt-out vote. |
1214 | (1) All contracts as further described herein or any |
1215 | contract that is not to be fully performed within 1 year after |
1216 | the making thereof, for the purchase, lease, or renting of |
1217 | materials or equipment to be used by the association in |
1218 | accomplishing its purposes under this chapter, and all contracts |
1219 | for the provision of services, shall be in writing. If a |
1220 | contract for the purchase, lease, or renting of materials or |
1221 | equipment, or for the provision of services, requires payment by |
1222 | the association on behalf of any condominium operated by the |
1223 | association in the aggregate that exceeds 5 percent of the total |
1224 | annual budget of the association, including reserves, the |
1225 | association shall obtain competitive bids for the materials, |
1226 | equipment, or services. Nothing contained herein shall be |
1227 | construed to require the association to accept the lowest bid. |
1228 | (2)(a)1. Notwithstanding the foregoing, contracts with |
1229 | employees of the association, and contracts for attorney, |
1230 | accountant, architect, community association manager, timeshare |
1231 | management firm, engineering, and landscape architect services |
1232 | are not subject to the provisions of this section. |
1233 | 2. A contract executed before January 1, 1992, and any |
1234 | renewal thereof, is not subject to the competitive bid |
1235 | requirements of this section. If a contract was awarded under |
1236 | the competitive bid procedures of this section, any renewal of |
1237 | that contract is not subject to such competitive bid |
1238 | requirements if the contract contains a provision that allows |
1239 | the board to cancel the contract on 30 days' notice. Materials, |
1240 | equipment, or services provided to a condominium under a local |
1241 | government franchise agreement by a franchise holder are not |
1242 | subject to the competitive bid requirements of this section. A |
1243 | contract with a manager, if made by a competitive bid, may be |
1244 | made for up to 3 years. A condominium whose declaration or |
1245 | bylaws provides for competitive bidding for services may operate |
1246 | under the provisions of that declaration or bylaws in lieu of |
1247 | this section if those provisions are not less stringent than the |
1248 | requirements of this section. |
1249 | (b) Nothing contained herein is intended to limit the |
1250 | ability of an association to obtain needed products and services |
1251 | in an emergency. |
1252 | (c) This section shall not apply if the business entity |
1253 | with which the association desires to enter into a contract is |
1254 | the only source of supply within the county serving the |
1255 | association. |
1256 | (d) Nothing contained herein shall excuse a party |
1257 | contracting to provide maintenance or management services from |
1258 | compliance with s. 718.3025. |
1259 | Section 11. Subsection (3) of section 718.303, Florida |
1260 | Statutes, is amended to read: |
1261 | 718.303 Obligations of owners; waiver; levy of fine |
1262 | against unit by association.-- |
1263 | (3) If the declaration or bylaws so provide, the |
1264 | association may levy reasonable fines against a unit for the |
1265 | failure of the owner of the unit, or its occupant, licensee, or |
1266 | invitee, to comply with any provision of the declaration, the |
1267 | association bylaws, or reasonable rules of the association. No |
1268 | fine will become a lien against a unit. No fine may exceed $100 |
1269 | per violation. However, a fine may be levied on the basis of |
1270 | each day of a continuing violation, with a single notice and |
1271 | opportunity for hearing, provided that no such fine shall in the |
1272 | aggregate exceed $1,000. No fine may be levied except after |
1273 | giving reasonable notice and opportunity for a hearing to the |
1274 | unit owner and, if applicable, its licensee or invitee. The |
1275 | hearing must be held before a committee of other unit owners who |
1276 | are neither board members nor persons residing in a board |
1277 | member's household. If the committee does not agree with the |
1278 | fine, the fine may not be levied. The provisions of this |
1279 | subsection do not apply to unoccupied units. |
1280 | Section 12. Subsection (4) of section 718.5012, Florida |
1281 | Statutes, is amended to read: |
1282 | 718.5012 Ombudsman; powers and duties.--The ombudsman |
1283 | shall have the powers that are necessary to carry out the duties |
1284 | of his or her office, including the following specific powers: |
1285 | (4) To act as liaison between the division, unit owners, |
1286 | boards of directors, board members, community association |
1287 | managers, and other affected parties. The ombudsman shall |
1288 | develop policies and procedures to assist unit owners, boards of |
1289 | directors, board members, community association managers, and |
1290 | other affected parties to understand their rights and |
1291 | responsibilities as set forth in this chapter and the |
1292 | condominium documents governing their respective association. |
1293 | The ombudsman shall coordinate and assist in the preparation and |
1294 | adoption of educational and reference material, and shall |
1295 | endeavor to coordinate with private or volunteer providers of |
1296 | these services, so that the availability of these resources is |
1297 | made known to the largest possible audience. |
1298 | Section 13. Paragraph (a) of subsection (2) of section |
1299 | 718.503, Florida Statutes, is amended to read: |
1300 | 718.503 Developer disclosure prior to sale; nondeveloper |
1301 | unit owner disclosure prior to sale; voidability.-- |
1302 | (2) NONDEVELOPER DISCLOSURE.-- |
1303 | (a) Each unit owner who is not a developer as defined by |
1304 | this chapter shall comply with the provisions of this subsection |
1305 | prior to the sale of his or her unit. Each prospective purchaser |
1306 | who has entered into a contract for the purchase of a |
1307 | condominium unit is entitled, at the seller's expense, to a |
1308 | current copy of the declaration of condominium, articles of |
1309 | incorporation of the association, bylaws and rules of the |
1310 | association, financial information required by s. 718.111, and |
1311 | the document entitled "Frequently Asked Questions and Answers" |
1312 | required by s. 718.504. On and after January 1, 2009, the |
1313 | prospective purchaser shall also be entitled to receive from the |
1314 | seller a copy of a governance form. Such form shall be provided |
1315 | by the division summarizing governance of condominium |
1316 | associations. In addition to such other information as the |
1317 | division considers helpful to a prospective purchaser in |
1318 | understanding association governance, the governance form shall |
1319 | address the following subjects: |
1320 | 1. The role of the board in conducting the day-to-day |
1321 | affairs of the association on behalf of, and in the best |
1322 | interests of, the owners. |
1323 | 2. The board's responsibility to provide advance notice of |
1324 | board and membership meetings. |
1325 | 3. The rights of owners to attend and speak at board and |
1326 | membership meetings. |
1327 | 4. The responsibility of the board and of owners with |
1328 | respect to maintenance of the condominium property. |
1329 | 5. The responsibility of the board and owners to abide by |
1330 | the condominium documents, this chapter, rules promulgated by |
1331 | the division, and reasonable rules promulgated by the board. |
1332 | 6. Owners' rights to inspect and copy association records |
1333 | and the limitations on such rights. |
1334 | 7. Remedies available to owners with respect to actions by |
1335 | the board which may be abusive or beyond the board's power and |
1336 | authority. |
1337 | 8. The right of the board to hire a property management |
1338 | firm, subject to its own primary responsibility for such |
1339 | management. |
1340 | 9. The responsibility of owners with regard to payment of |
1341 | regular or special assessments necessary for the operation of |
1342 | the property and the potential consequences of failure to pay |
1343 | such assessments. |
1344 | 10. The voting rights of owners. |
1345 | 11. Rights and obligations of the board in enforcement of |
1346 | rules in the condominium documents and rules adopted by the |
1347 | board. |
1348 | |
1349 | The governance form shall also include the following statement |
1350 | in conspicuous type: "This publication is intended as an |
1351 | informal educational overview of condominium governance. In the |
1352 | event of a conflict the provisions of chapter 718, Florida |
1353 | Statutes; rules promulgated by the Division of Florida Land |
1354 | Sales, Condominiums, and Mobile Homes of the Department of |
1355 | Business and Professional Regulation; the provisions of the |
1356 | condominium documents; and reasonable rules promulgated by the |
1357 | condominium association's board of administration prevail over |
1358 | the contents of this publication." |
1359 | Section 14. Paragraphs (b) and (c) of subsection (2), |
1360 | paragraphs (a) and (c) of subsection (5), paragraphs (b), (c), |
1361 | (d), (f), and (g) of subsection (6), and paragraphs (a), (b), |
1362 | and (c) of subsection (7) of section 720.303, Florida Statutes, |
1363 | are amended, and subsection (12) is added to that section, to |
1364 | read: |
1365 | 720.303 Association powers and duties; meetings of board; |
1366 | official records; budgets; financial reporting; association |
1367 | funds; recalls.-- |
1368 | (2) BOARD MEETINGS.-- |
1369 | (b) Members have the right to attend all meetings of the |
1370 | board and to speak on any matter placed on the agenda by |
1371 | petition of the voting interests for at least 3 minutes on any |
1372 | matter placed on the agenda. Members may also address the |
1373 | meeting on nonagenda issues following the completion of the |
1374 | regular agenda during a new business heading. The association |
1375 | may adopt written reasonable rules expanding the right of |
1376 | members to speak and governing the frequency, duration, and |
1377 | other manner of member statements, which rules must be |
1378 | consistent with this paragraph and may include a sign-up sheet |
1379 | for members wishing to speak. Notwithstanding any other law, the |
1380 | requirement that board meetings and committee meetings be open |
1381 | to the members is inapplicable to meetings between the board or |
1382 | a committee to discuss proposed or pending litigation with and |
1383 | the association's attorney, with respect to meetings of the |
1384 | board held for the purpose of discussing personnel matters. |
1385 | (c) The bylaws shall provide for giving notice to parcel |
1386 | owners and members of all board meetings and, if they do not do |
1387 | so, shall be deemed to provide the following: |
1388 | 1. Notices of all regular board meetings must be posted in |
1389 | a conspicuous place in the community at least 48 hours in |
1390 | advance of a meeting, except in an emergency. Notice of special |
1391 | board meetings may be made with less than 48 hours' notice in |
1392 | cases of sudden, unforeseen happenings that require action to |
1393 | protect lives or property of the association's members. In the |
1394 | alternative, if notice is not posted in a conspicuous place in |
1395 | the community, notice of each board meeting must be mailed or |
1396 | delivered to each member at least 7 days before the meeting, |
1397 | except in an emergency. Notwithstanding this general notice |
1398 | requirement, for communities with more than 100 members, the |
1399 | bylaws may provide for a reasonable alternative to posting or |
1400 | mailing of notice for each board meeting, including publication |
1401 | of notice, provision of a schedule of board meetings, or the |
1402 | conspicuous posting and repeated broadcasting of the notice on a |
1403 | closed-circuit cable television system serving the homeowners' |
1404 | association. However, if broadcast notice is used in lieu of a |
1405 | notice posted physically in the community, the notice must be |
1406 | broadcast at least four times every broadcast hour of each day |
1407 | that a posted notice is otherwise required. When broadcast |
1408 | notice is provided, the notice and agenda must be broadcast in a |
1409 | manner and for a sufficient continuous length of time so as to |
1410 | allow an average reader to observe the notice and read and |
1411 | comprehend the entire content of the notice and the agenda. The |
1412 | bylaws or amended bylaws may provide for giving notice by |
1413 | electronic transmission in a manner authorized by law for |
1414 | meetings of the board of directors, committee meetings requiring |
1415 | notice under this section, and annual and special meetings of |
1416 | the members; however, a member must consent in writing to |
1417 | receiving notice by electronic transmission. |
1418 | 2. An assessment may not be levied at a board meeting |
1419 | unless the notice of the meeting includes a statement that |
1420 | assessments will be considered and the nature of the |
1421 | assessments. Written notice of any meeting at which special |
1422 | assessments will be considered or at which amendments to rules |
1423 | regarding parcel use will be considered must be mailed, |
1424 | delivered, or electronically transmitted to the members and |
1425 | parcel owners and posted conspicuously on the property or |
1426 | broadcast on closed-circuit cable television not less than 14 |
1427 | days before the meeting, except in cases of sudden, unforeseen |
1428 | happenings that require action to protect lives or property of |
1429 | the association's members. |
1430 | 3. Directors may not vote by proxy or by secret ballot at |
1431 | board meetings, except that secret ballots may be used in the |
1432 | election of officers. This subsection also applies to the |
1433 | meetings of any committee or other similar body, when a final |
1434 | decision will be made regarding the expenditure of association |
1435 | funds, and to any body vested with the power to approve or |
1436 | disapprove architectural decisions with respect to a specific |
1437 | parcel of residential property owned by a member of the |
1438 | community. |
1439 | (5) INSPECTION AND COPYING OF RECORDS.--The official |
1440 | records shall be maintained within the state and must be open to |
1441 | inspection and available for photocopying by members or their |
1442 | authorized agents at reasonable times and places within 10 |
1443 | business days after receipt of a written request for access. |
1444 | This subsection may be complied with by having a copy of the |
1445 | official records available for inspection or copying in the |
1446 | community. If the association has a photocopy machine available |
1447 | where the records are maintained, it must provide parcel owners |
1448 | with copies on request during the inspection if the entire |
1449 | request is limited to no more than 25 pages. |
1450 | (a) The failure of an association to provide access to the |
1451 | records within 10 business days after receipt of a written |
1452 | request submitted by certified mail, return receipt requested, |
1453 | creates a rebuttable presumption that the association willfully |
1454 | failed to comply with this subsection. |
1455 | (c) The association may adopt reasonable written rules |
1456 | governing the frequency, time, location, notice, records to be |
1457 | inspected, and manner of inspections, but may not impose a |
1458 | requirement that a parcel owner demonstrate any proper purpose |
1459 | for the inspection, state any reason for the inspection, or |
1460 | limit a parcel owner's right to inspect records to less than one |
1461 | 8-hour business day per month. The association may impose fees |
1462 | to cover the costs of providing copies of the official records, |
1463 | including, without limitation, the costs of copying. The |
1464 | association may charge up to 50 cents per page for copies made |
1465 | on the association's photocopier. If the association does not |
1466 | have a photocopy machine available where the records are kept, |
1467 | or if the records requested to be copied exceed 25 pages in |
1468 | length, the association may have copies made by an outside |
1469 | vendor or association management company personnel and may |
1470 | charge the actual cost of copying, including any reasonable |
1471 | costs involving personnel fees and charges at an hourly rate for |
1472 | employee time to cover administrative costs to the association. |
1473 | The association shall maintain an adequate number of copies of |
1474 | the recorded governing documents, to ensure their availability |
1475 | to members and prospective members. Notwithstanding the |
1476 | provisions of this paragraph, the following records shall not be |
1477 | accessible to members or parcel owners: |
1478 | 1. Any record protected by the lawyer-client privilege as |
1479 | described in s. 90.502 and any record protected by the work- |
1480 | product privilege, including, but not limited to, any record |
1481 | prepared by an association attorney or prepared at the |
1482 | attorney's express direction which reflects a mental impression, |
1483 | conclusion, litigation strategy, or legal theory of the attorney |
1484 | or the association and was prepared exclusively for civil or |
1485 | criminal litigation or for adversarial administrative |
1486 | proceedings or which was prepared in anticipation of imminent |
1487 | civil or criminal litigation or imminent adversarial |
1488 | administrative proceedings until the conclusion of the |
1489 | litigation or adversarial administrative proceedings. |
1490 | 2. Information obtained by an association in connection |
1491 | with the approval of the lease, sale, or other transfer of a |
1492 | parcel. |
1493 | 3. Disciplinary, health, insurance, and personnel records |
1494 | of the association's employees. |
1495 | 4. Medical records of parcel owners or community |
1496 | residents. |
1497 | (6) BUDGETS.-- |
1498 | (b) In addition to annual operating expenses, the budget |
1499 | may include reserve accounts for capital expenditures and |
1500 | deferred maintenance for which the association is responsible. |
1501 | To the extent that such reserve accounts are not created or |
1502 | established pursuant to paragraph (d), funding of such reserves |
1503 | shall be limited to the extent that the governing documents do |
1504 | not limit increases in assessments, including reserves. If the |
1505 | budget of the association includes reserve accounts created or |
1506 | established pursuant to paragraph (d), such reserves shall be |
1507 | determined, maintained, and waived in the manner provided in |
1508 | this subsection. Once an association provides for reserve |
1509 | accounts created or established pursuant to paragraph (d) in the |
1510 | budget, the association shall thereafter determine, maintain, |
1511 | and waive reserves in compliance with this subsection. Nothing |
1512 | in this section precludes termination of a reserve account |
1513 | established pursuant to this paragraph upon approval of a |
1514 | majority of the voting interests of the association. Upon such |
1515 | approval, the terminating reserve account shall be removed from |
1516 | the budget. |
1517 | (c)1. If the budget of the association does not provide |
1518 | for reserve accounts created or established pursuant to |
1519 | paragraph (d) governed by this subsection and the association is |
1520 | responsible for the repair and maintenance of capital |
1521 | improvements that may result in a special assessment if reserves |
1522 | are not provided, each financial report for the preceding fiscal |
1523 | year required by subsection (7) shall contain the following |
1524 | statement in conspicuous type: THE BUDGET OF THE ASSOCIATION |
1525 | DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES |
1526 | AND DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS. |
1527 | OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE |
1528 | PROVISIONS OF SECTION 720.303(6), FLORIDA STATUTES, UPON THE |
1529 | APPROVAL OF NOT LESS THAN A MAJORITY OF THE TOTAL VOTING |
1530 | INTERESTS OF THE ASSOCIATION ATTAINED BY VOTE OF THE MEMBERS AT |
1531 | A MEETING OR BY WRITTEN CONSENT EXECUTED BY A MAJORITY OF THE |
1532 | VOTING INTERESTS. |
1533 | 2. If the budget of the association does provide for |
1534 | funding of accounts for deferred expenditures, including, but |
1535 | not limited to, funds for capital expenditures and deferred |
1536 | maintenance, but such accounts are not created or established |
1537 | pursuant to paragraph (d), each financial report for the |
1538 | preceding fiscal year required by subsection (7) shall also |
1539 | contain the following statement in conspicuous type: THE BUDGET |
1540 | OF THE ASSOCIATION DOES PROVIDE FOR LIMITED VOLUNTARY DEFERRED |
1541 | EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND |
1542 | DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN |
1543 | OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO |
1544 | PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO THE PROVISIONS OF |
1545 | SECTION 720.303(6), FLORIDA STATUTES, THESE FUNDS ARE NOT |
1546 | SUBJECT TO THE RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN |
1547 | THAT STATUTE, NOR ARE RESERVES CALCULATED IN ACCORDANCE WITH |
1548 | THAT STATUTE. |
1549 | (d) An association shall be deemed to have provided for |
1550 | reserve accounts when reserve accounts have been initially |
1551 | established by the developer or when the membership of the |
1552 | association affirmatively elects to provide for reserves. If |
1553 | reserve accounts are not initially provided for by the |
1554 | developer, the membership of the association may elect to do so |
1555 | upon the affirmative approval of not less than a majority of the |
1556 | total voting interests of the association. Such approval may be |
1557 | attained by vote of the members at a duly called meeting of the |
1558 | membership or upon a written consent executed by not less than a |
1559 | majority of the total voting interests in the community. The |
1560 | approval action of the membership shall state that reserve |
1561 | accounts shall be provided for in the budget and shall designate |
1562 | the components for which the reserve accounts are to be |
1563 | established. Upon approval by the membership, the board of |
1564 | directors shall provide for the required reserve accounts for |
1565 | inclusion in the budget in the next fiscal year following the |
1566 | approval and in each year thereafter. Once established as |
1567 | provided in this subsection, the reserve accounts shall be |
1568 | funded or maintained or shall have their funding waived in the |
1569 | manner provided in paragraph (f). |
1570 | (f) After one or more Once a reserve account or reserve |
1571 | accounts are established, the membership of the association, |
1572 | upon a majority vote at a meeting at which a quorum is present, |
1573 | may provide for no reserves or less reserves than required by |
1574 | this section. If a meeting of the unit owners has been called to |
1575 | determine whether to waive or reduce the funding of reserves and |
1576 | no such result is achieved or a quorum is not present, the |
1577 | reserves as included in the budget shall go into effect. After |
1578 | the turnover, the developer may vote its voting interest to |
1579 | waive or reduce the funding of reserves. Any vote taken pursuant |
1580 | to this subsection to waive or reduce reserves shall be |
1581 | applicable only to one budget year. |
1582 | (g) Funding formulas for reserves authorized by this |
1583 | section shall be based on either a separate analysis of each of |
1584 | the required assets or a pooled analysis of two or more of the |
1585 | required assets. |
1586 | 1. If the association maintains separate reserve accounts |
1587 | for each of the required assets, the amount of the contribution |
1588 | to each reserve account shall be the sum of the following two |
1589 | calculations: |
1590 | a. The total amount necessary, if any, to bring a negative |
1591 | component balance to zero. |
1592 | b. The total estimated deferred maintenance expense or |
1593 | estimated replacement cost of the reserve component less the |
1594 | estimated balance of the reserve component as of the beginning |
1595 | of the period for which the budget will be in effect. The |
1596 | remainder, if greater than zero, shall be divided by the |
1597 | estimated remaining useful life of the component. |
1598 |
|
1599 | The formula may be adjusted each year for changes in estimates |
1600 | and deferred maintenance performed during the year and may |
1601 | include factors such as inflation and earnings on invested |
1602 | funds. |
1603 | 2. If the association maintains a pooled account of two or |
1604 | more of the required reserve assets, the amount of the |
1605 | contribution to the pooled reserve account as disclosed on the |
1606 | proposed budget shall not be less than that required to ensure |
1607 | that the balance on hand at the beginning of the period for |
1608 | which the budget will go into effect plus the projected annual |
1609 | cash inflows over the remaining estimated useful life of all of |
1610 | the assets that make up the reserve pool are equal to or greater |
1611 | than the projected annual cash outflows over the remaining |
1612 | estimated useful lives of all of the assets that make up the |
1613 | reserve pool, based on the current reserve analysis. The |
1614 | projected annual cash inflows may include estimated earnings |
1615 | from investment of principal and accounts receivable minus the |
1616 | allowance for doubtful accounts. The reserve funding formula |
1617 | shall not include any type of balloon payments. |
1618 | (7) FINANCIAL REPORTING.--Within 90 days after the end of |
1619 | the fiscal year, or annually on the date provided in the bylaws, |
1620 | the association shall prepare and complete, or contract with a |
1621 | third party for the preparation and completion of, a financial |
1622 | report for the preceding fiscal year. Within 21 days after the |
1623 | final financial report is completed by the association or |
1624 | received from the third party, but not later than 120 days after |
1625 | the end of the fiscal year or other date as provided in the |
1626 | bylaws, the association shall, within the time limits set forth |
1627 | in subsection (5), provide each member with a copy of the annual |
1628 | financial report or a written notice that a copy of the |
1629 | financial report is available upon request at no charge to the |
1630 | member. Financial reports shall be prepared as follows: |
1631 | (a) An association that meets the criteria of this |
1632 | paragraph shall prepare or cause to be prepared a complete set |
1633 | of financial statements in accordance with generally accepted |
1634 | accounting principles as adopted by the Board of Accountancy. |
1635 | The financial statements shall be based upon the association's |
1636 | total annual revenues, as follows: |
1637 | 1. An association with total annual revenues of $150,000 |
1638 | $100,000 or more, but less than $300,000 $200,000, shall prepare |
1639 | compiled financial statements. |
1640 | 2. An association with total annual revenues of at least |
1641 | $300,000 $200,000, but less than $600,000 $400,000, shall |
1642 | prepare reviewed financial statements. |
1643 | 3. An association with total annual revenues of $600,000 |
1644 | $400,000 or more shall prepare audited financial statements. |
1645 | (b)1. An association with total annual revenues of less |
1646 | than $150,000 $100,000 shall prepare a report of cash receipts |
1647 | and expenditures. |
1648 | 2. An association in a community of fewer than 50 parcels, |
1649 | regardless of the association's annual revenues, may prepare a |
1650 | report of cash receipts and expenditures in lieu of financial |
1651 | statements required by paragraph (a) unless the governing |
1652 | documents provide otherwise. |
1653 | 3. A report of cash receipts and disbursement must |
1654 | disclose the amount of receipts by accounts and receipt |
1655 | classifications and the amount of expenses by accounts and |
1656 | expense classifications, including, but not limited to, the |
1657 | following, as applicable: costs for security, professional, and |
1658 | management fees and expenses; taxes; costs for recreation |
1659 | facilities; expenses for refuse collection and utility services; |
1660 | expenses for lawn care; costs for building maintenance and |
1661 | repair; insurance costs; administration and salary expenses; and |
1662 | reserves if maintained by the association. |
1663 | (c) If 20 percent of the parcel owners petition the board |
1664 | for a level of financial reporting higher than that required by |
1665 | this section, the association shall duly notice and hold a |
1666 | meeting of members within 30 days of receipt of the petition for |
1667 | the purpose of voting on raising the level of reporting for that |
1668 | fiscal year. Upon approval of a majority of the total voting |
1669 | interests of the parcel owners, the association shall prepare or |
1670 | cause to be prepared, shall amend the budget or adopt a special |
1671 | assessment to pay for the financial report regardless of any |
1672 | provision to the contrary in the governing documents, and shall |
1673 | provide within 120 90 days of the meeting or the end of the |
1674 | fiscal year, whichever occurs later: |
1675 | 1. Compiled, reviewed, or audited financial statements, if |
1676 | the association is otherwise required to prepare a report of |
1677 | cash receipts and expenditures; |
1678 | 2. Reviewed or audited financial statements, if the |
1679 | association is otherwise required to prepare compiled financial |
1680 | statements; or |
1681 | 3. Audited financial statements if the association is |
1682 | otherwise required to prepare reviewed financial statements. |
1683 | (12) COMPENSATION PROHIBITED.--A director, officer, or |
1684 | committee member of the association may not receive directly or |
1685 | indirectly any salary or compensation from the association for |
1686 | performance of duties as a director, officer, or committee |
1687 | member and such person may not in any other way benefit |
1688 | financially from service to the association. This subsection |
1689 | shall not be construed to preclude: |
1690 | (a) Participation by such person in a financial benefit |
1691 | accruing to all or a significant number of members as a result |
1692 | of actions lawfully taken by the board or a committee of which |
1693 | he or she is a member, including, but not limited to, routine |
1694 | maintenance, repair, or replacement of community assets; |
1695 | (b) Reimbursement for out-of-pocket expenses incurred by |
1696 | such person on behalf of the association, subject to approval of |
1697 | such reimbursement in accordance with procedures established by |
1698 | the association's governing documents or, in the absence of such |
1699 | procedures, in accordance with an approval process established |
1700 | by the board; or |
1701 | (c) Any recovery of insurance proceeds derived from a |
1702 | policy of insurance maintained by the association for the |
1703 | benefit of its members. |
1704 | Section 15. Subsections (1), (2), and (3) of section |
1705 | 720.305, Florida Statutes, are amended to read: |
1706 | 720.305 Obligations of members; remedies at law or in |
1707 | equity; levy of fines and suspension of use rights; failure to |
1708 | fill sufficient number of vacancies on board of directors to |
1709 | constitute a quorum; appointment of receiver upon petition of |
1710 | any member.-- |
1711 | (1) Each member and the member's tenants, guests, and |
1712 | invitees, and each association, are governed by, and must comply |
1713 | with, this chapter, the governing documents of the community, |
1714 | and the rules of the association. Actions at law or in equity, |
1715 | or both, to redress alleged failure or refusal to comply with |
1716 | these provisions may be brought by the association or by any |
1717 | member against: |
1718 | (a) The association; |
1719 | (b) A member; |
1720 | (c) Any director or officer of an association who |
1721 | willfully and knowingly fails to comply with these provisions; |
1722 | and |
1723 | (d) Any tenants, guests, or invitees occupying a parcel or |
1724 | using the common areas. |
1725 |
|
1726 | The prevailing party in any such litigation is entitled to |
1727 | recover reasonable attorney's fees and costs. A member |
1728 | prevailing in an action between the association and the member |
1729 | under this section, in addition to recovering his or her |
1730 | reasonable attorney's fees, may recover additional amounts as |
1731 | determined by the court to be necessary to reimburse the member |
1732 | for his or her share of assessments levied by the association to |
1733 | fund its expenses of the litigation. The prevailing party in any |
1734 | such litigation is entitled to recover reasonable attorney's |
1735 | fees and costs, including reasonable postjudgment attorney's |
1736 | fees and costs, provided the court retains jurisdiction to |
1737 | enforce the judgment. This relief does not exclude other |
1738 | remedies provided by law. This section does not deprive any |
1739 | person of any other available right or remedy. |
1740 | (2) If the governing documents so provide, an association |
1741 | may suspend, for a reasonable period of time, the rights of a |
1742 | member or a member's tenants, guests, or invitees, or both, to |
1743 | use common areas and facilities and may levy reasonable fines, |
1744 | not to exceed $100 per violation, against any member or any |
1745 | tenant, guest, or invitee. A fine may be levied on the basis of |
1746 | each day of a continuing violation, with a single notice and |
1747 | opportunity for hearing, except that no such fine shall exceed |
1748 | $1,000 in the aggregate unless otherwise provided in the |
1749 | governing documents. A fine of less than $1,000 shall not become |
1750 | a lien against a parcel. In any action to recover a fine, the |
1751 | prevailing party is entitled to collect its reasonable |
1752 | attorney's fees and costs from the nonprevailing party as |
1753 | determined by the court. |
1754 | (a) A fine or suspension may not be imposed without notice |
1755 | of at least 14 days to the person sought to be fined or |
1756 | suspended and an opportunity for a hearing before a committee of |
1757 | at least three members appointed by the board who are not |
1758 | officers, directors, or employees of the association, or the |
1759 | spouse, parent, child, brother, or sister of an officer, |
1760 | director, or employee. If the committee, by majority vote, does |
1761 | not approve a proposed fine or suspension, it may not be |
1762 | imposed. |
1763 | (b) The requirements of this subsection do not apply to |
1764 | the imposition of suspensions or fines upon any member because |
1765 | of the failure of the member to pay assessments or other charges |
1766 | when due if such action is authorized by the governing |
1767 | documents. |
1768 | (c) Suspension of common-area-use rights shall not impair |
1769 | the right of an owner or tenant of a parcel to have vehicular |
1770 | and pedestrian ingress to and egress from the parcel, including, |
1771 | but not limited to, the right to park. |
1772 | (3) Unless If the governing documents so provide |
1773 | otherwise, an association may suspend the voting rights of a |
1774 | member for the nonpayment of regular annual assessments that are |
1775 | delinquent in excess of 90 days. |
1776 | Section 16. Subsections (3), (5), (8), and (9) of section |
1777 | 720.306, Florida Statutes, are amended to read: |
1778 | 720.306 Meetings of members; voting and election |
1779 | procedures; amendments.-- |
1780 | (3) SPECIAL MEETINGS.--Special meetings must be held when |
1781 | called by the board of directors or, unless a different |
1782 | percentage is stated in the governing documents, by at least 10 |
1783 | percent of the total voting interests of the association or when |
1784 | sudden, unforeseen happenings occur that require action to |
1785 | protect lives or property of the association's members. Business |
1786 | conducted at a special meeting is limited to the purposes |
1787 | described in the notice of the meeting. |
1788 | (5) NOTICE OF MEETINGS.--The bylaws shall provide for |
1789 | giving notice to members of all member meetings, and if they do |
1790 | not do so shall be deemed to provide the following: The |
1791 | association shall give all parcel owners and members actual |
1792 | notice of all membership meetings, which shall be mailed, |
1793 | delivered, or electronically transmitted to the members not less |
1794 | than 14 days prior to the meeting. Evidence of compliance with |
1795 | this 14-day notice shall be made by an affidavit executed by the |
1796 | person providing the notice and filed upon execution among the |
1797 | official records of the association. Notice of a special meeting |
1798 | shall be made at least 48 hours in advance or less than that in |
1799 | case of any sudden, unforeseen happening that requires action to |
1800 | protect lives or property of the association's members. In |
1801 | addition to mailing, delivering, or electronically transmitting |
1802 | the notice of any meeting, the association may, by reasonable |
1803 | rule, adopt a procedure for conspicuously posting and repeatedly |
1804 | broadcasting the notice and the agenda on a closed-circuit cable |
1805 | television system serving the association. When broadcast notice |
1806 | is provided, the notice and agenda must be broadcast in a manner |
1807 | and for a sufficient continuous length of time so as to allow an |
1808 | average reader to observe the notice and read and comprehend the |
1809 | entire content of the notice and the agenda. |
1810 | (8) PROXY VOTING.--The members have the right, unless |
1811 | otherwise provided in this subsection or in the governing |
1812 | documents, to vote in person or by proxy. |
1813 | (a) To be valid, a proxy must be dated, must state the |
1814 | date, time, and place of the meeting for which it was given, and |
1815 | must be signed by the authorized person who executed the proxy. |
1816 | A proxy is effective only for the specific meeting for which it |
1817 | was originally given, as the meeting may lawfully be adjourned |
1818 | and reconvened from time to time, and automatically expires 90 |
1819 | days after the date of the meeting for which it was originally |
1820 | given. A proxy is revocable at any time at the pleasure of the |
1821 | person who executes it. If the proxy form expressly so provides, |
1822 | any proxy holder may appoint, in writing, a substitute to act in |
1823 | his or her place. |
1824 | (b) If the governing documents require a secret ballot, |
1825 | the absentee ballot must be enclosed in a blank envelope that |
1826 | shall be placed inside another envelope bearing the required |
1827 | information and signature. After the owner's eligibility to vote |
1828 | has been verified and before the ballots are counted, the blank |
1829 | envelope shall be removed from the envelope bearing the |
1830 | information and signature and added to the ballots of the |
1831 | members voting in person or by proxy. Absentee ballots must be |
1832 | mailed or hand delivered to the place specified in the notice of |
1833 | the meeting at which the election will be held, not later than |
1834 | the date specified in such notice. |
1835 | (9) ELECTIONS; BOARD MEMBER CERTIFICATION.-- |
1836 | (a) Elections of directors must be conducted in accordance |
1837 | with the procedures set forth in the governing documents of the |
1838 | association. All members of the association shall be eligible to |
1839 | serve on the board of directors, and a member may nominate |
1840 | himself or herself as a candidate for the board at a meeting |
1841 | where the election is to be held or, in the case of an election |
1842 | process that allows voting by absentee ballot, in advance of the |
1843 | balloting. Except as otherwise provided in the governing |
1844 | documents, boards of directors must be elected by a plurality of |
1845 | the votes cast by eligible voters. Any election dispute between |
1846 | a member and an association must be submitted to mandatory |
1847 | binding arbitration with the division. Such proceedings shall be |
1848 | conducted in the manner provided by s. 718.1255 and the |
1849 | procedural rules adopted by the division. |
1850 | (b) Within 30 days after being elected to the board of |
1851 | directors, a new director shall certify in writing to the |
1852 | secretary of the association that he or she has read the |
1853 | association's declarations of covenants and restrictions, |
1854 | articles of incorporation, bylaws, and current written policies |
1855 | and that he or she will work to uphold each to the best of his |
1856 | or her ability and will faithfully discharge his or her |
1857 | fiduciary responsibility to the association's members. Failure |
1858 | to timely file such statement shall automatically disqualify the |
1859 | director from service on the association's board of directors. |
1860 | The secretary shall cause the association to retain a director's |
1861 | certification for inspection by the membership of the |
1862 | association for a period of 5 years after a director's election. |
1863 | Failure to have such certification on file shall not affect the |
1864 | validity of any appropriate action. |
1865 | (c) Any director who has unexcused absences from three |
1866 | consecutive board meetings shall be deemed to have submitted his |
1867 | or her resignation from the board. |
1868 | Section 17. Subsection (5) is added to section 720.307, |
1869 | Florida Statutes, to read: |
1870 | 720.307 Transition of association control in a |
1871 | community.--With respect to homeowners' associations: |
1872 | (5) Except where precluded by the association's governing |
1873 | documents, the board of directors of the association may levy |
1874 | assessments on an unimproved parcel in the same amounts as |
1875 | assessments on improved parcels if that parcel is not improved |
1876 | within 5 years after the date the parcel was sold by the |
1877 | developer. |
1878 | Section 18. Paragraph (d) is added to subsection (1) of |
1879 | section 720.3075, Florida Statutes, to read: |
1880 | 720.3075 Prohibited clauses in association documents.-- |
1881 | (1) It is declared that the public policy of this state |
1882 | prohibits the inclusion or enforcement of certain types of |
1883 | clauses in homeowners' association documents, including |
1884 | declaration of covenants, articles of incorporation, bylaws, or |
1885 | any other document of the association which binds members of the |
1886 | association, which either have the effect of or provide that: |
1887 | (d) The builder or developers are not liable for defects |
1888 | in the construction of common areas or parcels and improvements |
1889 | on common areas, or that the developer or builders do not |
1890 | warranty that the common areas and parcels, and any improvements |
1891 | constructed on common areas, are free from defects for any |
1892 | period less than 10 years after completion of such areas, |
1893 | parcels, or improvements. |
1894 |
|
1895 | Such clauses are declared null and void as against the public |
1896 | policy of this state. |
1897 | Section 19. Paragraph (a) of subsection (4) of section |
1898 | 720.308, Florida Statutes, is amended to read: |
1899 | 720.308 Assessments and charges.-- |
1900 | (4) CASH FUNDING REQUIREMENTS DURING GUARANTEE.--The cash |
1901 | payments required from the guarantor during the guarantee period |
1902 | shall be determined as follows: |
1903 | (a) If at any time during the guarantee period the funds |
1904 | collected from member assessments at the guaranteed level and |
1905 | other revenues collected by the association are not sufficient |
1906 | to provide payment, on a timely basis, of all accounts payable |
1907 | of the association assessments, including the full funding of |
1908 | the reserves unless properly waived, the guarantor shall advance |
1909 | sufficient cash to the association at the time such payments are |
1910 | due. |
1911 | Section 20. Paragraph (b) of subsection (4) and paragraph |
1912 | (c) of subsection (6) of section 720.3085, Florida Statutes, are |
1913 | amended to read: |
1914 | 720.3085 Payment for assessments; lien claims.-- |
1915 | (4) A homeowners' association may not file a claim of lien |
1916 | against a parcel for unpaid assessments unless a written notice |
1917 | or demand for past due assessments as well as any other amounts |
1918 | owed to the association pursuant to its governing documents has |
1919 | been made by the association. The written notice or demand must: |
1920 | (b) Be sent by registered or certified mail, return |
1921 | receipt requested, and by first-class United States mail to the |
1922 | parcel owner at his or her last address as reflected in the |
1923 | records of the association, if the address is within the United |
1924 | States, and by first-class United States mail to the parcel |
1925 | owner subject to the demand at the address of the parcel if the |
1926 | owner's address as reflected in the records of the association |
1927 | is not the parcel address. If the address reflected in the |
1928 | records is outside the United States, then sending the notice to |
1929 | that address and to the parcel address by first-class United |
1930 | States mail is sufficient. |
1931 | (6) If after service of a summons on a complaint to |
1932 | foreclose a lien the parcel is not the subject of a mortgage |
1933 | foreclosure or a notice of tax certificate sale, or the parcel |
1934 | owner is not a debtor in bankruptcy proceedings, the parcel |
1935 | owner may serve and file with the court a qualifying offer at |
1936 | any time before the entry of a foreclosure judgment. For |
1937 | purposes of this subsection, the term "qualifying offer" means a |
1938 | written offer to pay all amounts secured by the lien of the |
1939 | association plus interest accruing during the pendency of the |
1940 | offer at the rate of interest provided in this section. The |
1941 | parcel owner may make only one qualifying offer during the |
1942 | pendency of a foreclosure action. |
1943 | (c) The qualifying offer of the parcel owner must be in |
1944 | writing;, be signed by the owner of the parcel and the spouse of |
1945 | the owner if the spouse holds a homestead interest in the |
1946 | parcel;, be acknowledged by a notary public;, state the total |
1947 | amount due the association, including attorney's fees and costs |
1948 | incurred by the association in the foreclosure action that are |
1949 | required to be paid by the parcel owner; state that the total |
1950 | amount due the association is secured by the lien of the |
1951 | association;, state that the association is entitled to |
1952 | foreclose the lien and obtain a foreclosure judgment for the |
1953 | total amount due if the parcel owner breaches the qualifying |
1954 | offer;, state that the parcel owner will not endanger the |
1955 | priority of the lien of the association or the amounts secured |
1956 | by the lien;, and state the actual date or dates the association |
1957 | will receive the total amount due from the parcel owner. If the |
1958 | parcel owner makes a qualifying offer under this subsection, the |
1959 | association may not add the cost of any legal fees incurred by |
1960 | the association within the period of the stay other than costs |
1961 | acquired in defense of a mortgage foreclosure action concerning |
1962 | the parcel, a bankruptcy proceeding in which the parcel owner is |
1963 | a debtor, or in response to filings by a party other than the |
1964 | association in the lien foreclosure action of the association. |
1965 | Section 21. Paragraph (a) of subsection (1) of section |
1966 | 720.401, Florida Statutes, is amended to read: |
1967 | 720.401 Prospective purchasers subject to association |
1968 | membership requirement; disclosure required; covenants; |
1969 | assessments; contract cancellation.-- |
1970 | (1)(a) A prospective parcel owner in a community must be |
1971 | presented a disclosure summary before executing the contract for |
1972 | sale. The disclosure summary must be in a form substantially |
1973 | similar to the following form: |
1974 |
|
1975 | DISCLOSURE SUMMARY |
1976 | FOR |
1977 | (NAME OF COMMUNITY) |
1978 |
|
1979 | 1. AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL |
1980 | BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION. |
1981 | 2. THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE |
1982 | COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS |
1983 | COMMUNITY. |
1984 | 3. YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE |
1985 | ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC CHANGE. IF |
1986 | APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. YOU WILL |
1987 | ALSO BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE |
1988 | ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE. |
1989 | IF APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. |
1990 | 4. YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE |
1991 | RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL |
1992 | ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE. |
1993 | 5. YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS |
1994 | LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION COULD RESULT IN A |
1995 | LIEN ON YOUR PROPERTY. |
1996 | 6. THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES |
1997 | FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN |
1998 | OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS' ASSOCIATION. IF |
1999 | APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. |
2000 | 7. IF THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE |
2001 | DEVELOPER, THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE |
2002 | RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE ASSOCIATION |
2003 | MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS. |
2004 | 8. THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE |
2005 | ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU |
2006 | SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING |
2007 | DOCUMENTS BEFORE PURCHASING PROPERTY. |
2008 | 9. THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND |
2009 | CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE |
2010 | PROPERTY IS LOCATED, OR ARE NOT RECORDED AND CAN BE OBTAINED |
2011 | FROM THE DEVELOPER. |
2012 | 10. THERE MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES |
2013 | AND/OR FEES) TO A RESIDENTIAL COMMUNITY DEVELOPMENT DISTRICT FOR |
2014 | THE PURPOSE OF RETIRING BOND OBLIGATIONS USED TO CONSTRUCT |
2015 | INFRASTRUCTURE AND/OR OTHER IMPROVEMENTS. |
2016 | 11. YOU ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS |
2017 | OWNER OF YOUR PROPERTY FOR ALL UNPAID ASSESSMENTS THAT CAME DUE |
2018 | UP TO THE TIME OF TRANSFER OF TITLE. |
2019 |
|
2020 | DATE: PURCHASER: |
2021 | PURCHASER: |
2022 | The disclosure must be supplied by the developer, or by the |
2023 | parcel owner if the sale is by an owner that is not the |
2024 | developer. Any contract or agreement for sale shall refer to and |
2025 | incorporate the disclosure summary and shall include, in |
2026 | prominent language, a statement that the potential buyer should |
2027 | not execute the contract or agreement until they have received |
2028 | and read the disclosure summary required by this section. |
2029 | Section 22. This act shall take effect July 1, 2008. |