| 1 | A bill to be entitled |
| 2 | An act relating to community associations; amending s. |
| 3 | 20.165, F.S.; providing powers for employees of the |
| 4 | Division of Florida Condominiums, Timeshares, and Mobile |
| 5 | Homes; requiring each employee serving as a law |
| 6 | enforcement officer for the division to meet the |
| 7 | qualifications of a law enforcement officer set forth in |
| 8 | ch. 943, F.S., for employment or appointment; requiring |
| 9 | each such employee to be certified as a law enforcement |
| 10 | officer by the Department of Law Enforcement; providing |
| 11 | the law enforcement officer with certain powers, |
| 12 | authority, jurisdiction, and responsibilities; amending s. |
| 13 | 468.436, F.S.; revising a ground for disciplinary action |
| 14 | relating to misconduct or negligence; requiring the |
| 15 | Department of Business and Professional Regulation to |
| 16 | enter an order permanently revoking certain community |
| 17 | association manager licenses; creating s. 627.714, F.S.; |
| 18 | requiring coverage under a condominium unit owner's |
| 19 | residential property policy to include a minimum amount of |
| 20 | loss assessment coverage; providing coverage requirements; |
| 21 | requiring the policy to state that such coverage is excess |
| 22 | coverage; amending s. 718.111, F.S.; requiring that |
| 23 | association access to a unit must be by two persons, one |
| 24 | of whom must be a board member or manager or employee of |
| 25 | the association; providing an exception for emergencies; |
| 26 | requiring coverage for certain personal property to be the |
| 27 | responsibility of the condominium unit owner; revising |
| 28 | board meeting notice requirements; requiring insurance |
| 29 | policies issued or renewed on or after a specified date to |
| 30 | conform to specified loss assessment coverage |
| 31 | requirements; revising and deleting provisions relating to |
| 32 | hazard or casualty insurance coverage requirements, to |
| 33 | conform; deleting a provision requiring the condominium |
| 34 | association to be an additional named insured and loss |
| 35 | payee on all casualty insurance policies issued to unit |
| 36 | owners in the condominium operated by the association; |
| 37 | providing requirements for the selection of condominium |
| 38 | association board meeting times and locations; providing |
| 39 | restrictions on the times set for certain meetings; |
| 40 | prohibiting certain expenditures and contributions by a |
| 41 | condominium association; providing liability; amending s. |
| 42 | 718.112, F.S.; revising notice requirements for board of |
| 43 | administration meetings; revising location requirements |
| 44 | for the annual meeting of unit owners; revising terms of |
| 45 | board members; revising requirements for the reappointment |
| 46 | of certain board members; revising election notice |
| 47 | requirements; providing requirements for the amendment of |
| 48 | association bylaws; providing for the removal of certain |
| 49 | directors and officers; providing qualifications for |
| 50 | service on the board of directors; providing requirements |
| 51 | for the borrowing of funds or committing to a line of |
| 52 | credit by the board; amending s. 718.113, F.S.; |
| 53 | authorizing the association to install code-compliant |
| 54 | impact glass as hurricane protection in certain areas; |
| 55 | amending s. 718.116, F.S.; revising provisions limiting |
| 56 | the liability of a first mortgagee and its successors and |
| 57 | assignees acquiring title to a unit by foreclosure or by |
| 58 | deed in lieu of foreclosure for certain unpaid |
| 59 | assessments; deleting an exemption from liability for |
| 60 | certain persons acquiring title to a condominium as a |
| 61 | result of the foreclosure of the mortgage or by deed in |
| 62 | lieu of the foreclosure of the mortgage; providing |
| 63 | procedures for a mortgagee filing a foreclosure case on a |
| 64 | mortgage secured by a condominium unit; requiring |
| 65 | mortgagees filing for foreclosure to make certain payments |
| 66 | to the association; amending s. 718.1255, F.S.; requiring |
| 67 | expedited resolution of election and recall arbitrations; |
| 68 | establishing a fee; providing notice and hearing |
| 69 | requirements; requiring the board to produce all original |
| 70 | ballots and election materials at arbitration; providing |
| 71 | for removal of board members who fail to appear with such |
| 72 | ballots and election materials; requiring an immediate |
| 73 | oral ruling and a conforming written opinion; providing |
| 74 | for enforcement; prohibiting certain expenses upon receipt |
| 75 | of a notice of arbitration; amending s. 718.1265, F.S.; |
| 76 | providing conditions under which the association may use |
| 77 | certain emergency powers; amending s. 718.501, F.S.; |
| 78 | revising condominium matters over which the division has |
| 79 | jurisdiction; revising and providing powers of the |
| 80 | division; requiring the division to create a specified |
| 81 | booklet for association directors; amending s. 718.5012, |
| 82 | F.S.; authorizing the Office of the Condominium Ombudsman |
| 83 | to assist in the resolution of certain disputes; amending |
| 84 | s. 718.50151, F.S.; redesignating the Community |
| 85 | Association Living Study Council as the Community |
| 86 | Association Study Council; revising council membership; |
| 87 | amending s. 719.103, F.S.; revising definitions; changing |
| 88 | references from unit owner to shareholder in statutes |
| 89 | relating to cooperatives; amending s. 719.104, F.S.; |
| 90 | requiring that association access to a unit must be by two |
| 91 | persons, one of whom must be a board member or manager or |
| 92 | employee of the association; providing an exception for |
| 93 | emergencies; providing civil penalties for violations of |
| 94 | accounting records requirements; exempting certain |
| 95 | personal information from unit owner records requests; |
| 96 | providing immunity from liability for certain information |
| 97 | provided by associations to prospective purchasers or |
| 98 | lienholders under certain circumstances; providing |
| 99 | legislative intent; requiring that property insurance be |
| 100 | based upon the replacement cost of the property to be |
| 101 | insured as determined by an independent insurance |
| 102 | appraisal or update of a prior appraisal; requiring that |
| 103 | the full insurable value be determined at specified |
| 104 | intervals; providing means by which an association may |
| 105 | provide adequate property insurance coverage; authorizing |
| 106 | an association to consider certain information when |
| 107 | determining coverage amounts; providing for coverage by |
| 108 | developer-controlled associations; providing that policies |
| 109 | may include deductibles as determined by the association's |
| 110 | board of directors; providing requirements and guidelines |
| 111 | for the establishment of such deductibles; requiring that |
| 112 | the amounts of deductibles be set at a meeting of the |
| 113 | board; providing requirements for such meeting; requiring |
| 114 | that an association controlled by shareholders operating |
| 115 | as a residential cooperative use its best efforts to |
| 116 | obtain and maintain adequate insurance to protect the |
| 117 | association and property under its supervision or control; |
| 118 | authorizing an association to obtain and maintain |
| 119 | liability insurance for directors and officers, insurance |
| 120 | for the benefit of association employees, and flood |
| 121 | insurance for common elements, association property, and |
| 122 | units; requiring that every property insurance policy |
| 123 | issued or renewed on or after a specified date for the |
| 124 | purpose of protecting the cooperative provide certain |
| 125 | coverage; requiring that such policies contain certain |
| 126 | provisions; providing responsibilities of the shareholder |
| 127 | and association with regard to reconstruction work and |
| 128 | associated costs after a casualty loss; requiring the |
| 129 | association to maintain certain insurance or fidelity |
| 130 | bonding for persons who control or disburse funds of the |
| 131 | association; providing requirements with respect to |
| 132 | financial statements and reports; providing that the |
| 133 | operation of the cooperative shall be by the association; |
| 134 | providing that shareholders shall be members of the |
| 135 | association; providing legislative intent; providing that |
| 136 | a director of the association who abstains from voting on |
| 137 | any action taken on any corporate matter shall be presumed |
| 138 | to have taken no position with regard to the action; |
| 139 | providing duties of officers, directors, and agents of a |
| 140 | cooperative association and liability for monetary damages |
| 141 | under certain circumstances; providing that the |
| 142 | association may contract, sue, or be sued with respect to |
| 143 | the exercise or nonexercise of its powers; providing |
| 144 | requirements for the borrowing of funds or committing to a |
| 145 | line of credit by the board; providing powers of the |
| 146 | association with respect to title to property and purchase |
| 147 | of units; providing requirements for the selection of |
| 148 | cooperative association board of directors meeting times |
| 149 | and locations; providing restrictions on the times set for |
| 150 | certain meetings; prohibiting certain expenditures and |
| 151 | contributions by the cooperative association; providing |
| 152 | liability; amending s. 719.106, F.S.; requiring certain |
| 153 | items to be placed on the agenda of board meetings; |
| 154 | revising notice requirements for board meetings; providing |
| 155 | requirements for shareholder meetings; providing terms of |
| 156 | office and election requirements for the board of |
| 157 | directors; providing criteria for the amendment of the |
| 158 | bylaws; providing eligibility to vote on certain questions |
| 159 | involving reserve funds; requiring proxy questions |
| 160 | relating to reserves to contain a specified statement; |
| 161 | requiring the bylaws to contain certain provisions; |
| 162 | requiring that directors and officers who are delinquent |
| 163 | in certain payments owed in excess of certain periods of |
| 164 | time be deemed to have abandoned their offices; requiring |
| 165 | that directors and officers charged with certain offenses |
| 166 | involving an association's funds or property be suspended |
| 167 | from office pending resolution of the charge; providing |
| 168 | for the reinstatement of such directors and officers under |
| 169 | certain circumstances; providing qualifications for |
| 170 | directors; providing requirements for the borrowing of |
| 171 | funds or committing to a line of credit by the board; |
| 172 | repealing s. 719.1064, F.S., relating to the failure to |
| 173 | fill vacancies on board of administration and the |
| 174 | appointment of a receiver upon petition of a shareholder; |
| 175 | amending s. 719.107, F.S.; providing the expense of |
| 176 | installation, replacement, operation, repair, and |
| 177 | maintenance of hurricane shutters or other hurricane |
| 178 | protection shall constitute either a common expense or |
| 179 | shall be charged individually to the shareholders under |
| 180 | certain conditions; amending s. 719.108, F.S.; limiting |
| 181 | the liability of a first mortgagee and its successor and |
| 182 | assignees acquiring title to a unit by foreclosure or by |
| 183 | deed in lieu of foreclosure for certain unpaid |
| 184 | assessments; requiring mortgagees filing for foreclosure |
| 185 | to make certain payments to the association; providing a |
| 186 | statement of clarification and applicability; providing a |
| 187 | definition; providing grounds for disapproval of the |
| 188 | proposed lease of a unit by an association; providing lien |
| 189 | requirements; providing for the extension of certain |
| 190 | liens; providing lien notice and filing requirements; |
| 191 | providing foreclosure requirements; providing the |
| 192 | association with the power to purchase a cooperative unit |
| 193 | at a foreclosure sale; requiring the association to |
| 194 | provide a certificate of assessment under certain |
| 195 | conditions; providing for the establishment of fees for |
| 196 | the preparation of such certificates; providing for the |
| 197 | refund of certain fees; authorizing the association to |
| 198 | demand payment of future assessments under certain |
| 199 | circumstances; creating s. 719.113, F.S.; providing that |
| 200 | maintenance of common areas is the responsibility of the |
| 201 | association; providing that the cooperative documents may |
| 202 | include reference that the association provide certain |
| 203 | maintenance for the condominium; providing that there |
| 204 | shall be no material alteration or substantial additions |
| 205 | to the common areas or to real property which is |
| 206 | association property; providing for protection of the |
| 207 | common areas; allowing shareholders to display a United |
| 208 | States flag as well as other specified flags on designated |
| 209 | days and patriotic holidays; requiring the board to adopt |
| 210 | hurricane shutter specifications; authorizing the board to |
| 211 | install certain hurricane protection; prohibiting the |
| 212 | board from installing certain hurricane shutters or other |
| 213 | hurricane protection under certain circumstances; |
| 214 | providing for the maintenance, repair, and replacement of |
| 215 | hurricane shutters or other hurricane protection; |
| 216 | authorizing the board to operate hurricane shutters |
| 217 | without shareholder permission under certain |
| 218 | circumstances; prohibiting the board from refusing to |
| 219 | approve the installation or replacement of hurricane |
| 220 | shutters under certain conditions; requiring that the |
| 221 | board inspect certain buildings and issue a report under |
| 222 | certain conditions; providing an exception; prohibiting |
| 223 | the board from refusing a request for reasonable |
| 224 | accommodation for the attachment to a unit of religious |
| 225 | objects meeting certain size specifications; authorizing |
| 226 | the board to install solar collectors, clotheslines, or |
| 227 | other energy-efficient devices upon or within common areas |
| 228 | or association property; creating s. 719.117, F.S.; |
| 229 | providing legislative findings; providing provisions |
| 230 | relating to the termination of the cooperative form of |
| 231 | ownership of a property due to economic waste or |
| 232 | impossibility or optional termination; providing grounds |
| 233 | for termination; providing an exemption; providing that |
| 234 | the approval of a plan of termination by certain mortgage |
| 235 | lienholders is not required under certain conditions; |
| 236 | providing powers and duties of the board relating to the |
| 237 | plan of termination; providing requirements following |
| 238 | natural disasters; providing reporting requirements; |
| 239 | providing requirements for a plan of termination; |
| 240 | providing for the allocation of proceeds from the sale of |
| 241 | cooperative property; providing powers and duties of a |
| 242 | termination trustee; providing notice requirements; |
| 243 | providing a procedure for contesting a plan of |
| 244 | termination; providing for recovery of attorney's fees and |
| 245 | costs; providing rules for the distribution of property |
| 246 | and sale proceeds; providing for the association's status |
| 247 | following termination; allowing the creation of another |
| 248 | cooperative by the trustee; creating s. 719.1224, F.S.; |
| 249 | prohibiting strategic lawsuits against public |
| 250 | participation; providing legislative findings and intent; |
| 251 | prohibiting a governmental entity, business organization, |
| 252 | or individual from filing certain lawsuits made upon |
| 253 | specified bases against a shareholder; providing rights of |
| 254 | a shareholder who has been served with such a lawsuit; |
| 255 | providing procedures for the resolution of certain claims; |
| 256 | providing for the award of damages and attorney's fees; |
| 257 | prohibiting associations from expending association funds |
| 258 | in prosecuting such a suit against a shareholder; amending |
| 259 | s. 719.1255, F.S.; requiring the division to provide |
| 260 | alternative dispute resolution for certain matters; |
| 261 | creating s. 719.1265, F.S.; authorizing an association to |
| 262 | exercise certain powers in instances involving damage |
| 263 | caused by an event for which a state of emergency has been |
| 264 | declared; limiting the applicability of such powers; |
| 265 | amending s. 719.301, F.S.; providing circumstances under |
| 266 | which shareholders other than a developer may elect not |
| 267 | less than a majority of the members of the board; |
| 268 | requiring a turnover inspection report; requiring that the |
| 269 | report contain certain information; creating s. 719.3025, |
| 270 | F.S.; requiring written contracts for the operation, |
| 271 | maintenance, or management of a cooperative association or |
| 272 | cooperative property; providing contract requirements; |
| 273 | authorizing the association to procure outside services |
| 274 | under certain circumstances; providing that services or |
| 275 | obligations not stated on the face of the contract shall |
| 276 | be unenforceable; providing applicability; amending s. |
| 277 | 719.3026, F.S.; revising a provision authorizing certain |
| 278 | associations to opt out of provisions relating to |
| 279 | contracts for products and services; removing provisions |
| 280 | exempting contracts executed before a specified date from |
| 281 | certain competitive bid requirements; providing |
| 282 | requirements for any contract or transaction between an |
| 283 | association and one or more of its directors or a |
| 284 | specified other entity in which one or more of its |
| 285 | directors are directors or officers or have a financial |
| 286 | interest; amending s. 719.303, F.S.; providing that |
| 287 | hearings regarding noncompliance with a declaration be |
| 288 | held before certain persons; amending s. 719.501, F.S.; |
| 289 | providing authority and responsibilities of the division; |
| 290 | providing for enforcement actions brought by the division |
| 291 | in its own name; providing for the imposition of penalties |
| 292 | by the division; requiring that the division issue a |
| 293 | subpoena requiring production of certain requested records |
| 294 | under certain circumstances; providing for the issuance of |
| 295 | notice of a declaratory statement with respect to |
| 296 | documents governing a cooperative; deleting requirement |
| 297 | that the division adopt certain accounting principles; |
| 298 | requiring that the division provide training and |
| 299 | educational programs for association board members and |
| 300 | shareholders; authorizing the division to include certain |
| 301 | training components, review or approve training and |
| 302 | educational programs offered by providers, and maintain a |
| 303 | list of approved programs and providers; requiring the |
| 304 | division to develop a program to certify both volunteer |
| 305 | and paid mediators; providing responsibilities of the |
| 306 | division with regard to such mediators; requiring that |
| 307 | certain individuals cooperate with the division in any |
| 308 | investigation conducted by the division; requiring the |
| 309 | division to cooperate with similar agencies in other |
| 310 | jurisdictions to establish certain procedures, standards, |
| 311 | and forms; specifying what constitutes completeness of |
| 312 | notice to developer; authorizing the division to issue a |
| 313 | notice to show cause; requiring an association to pay any |
| 314 | penalty due to the division before having standing to |
| 315 | maintain or defend any action in the courts of this state; |
| 316 | creating s. 719.5011, F.S.; requiring the Office of the |
| 317 | Condominium Ombudsman to assist cooperative associations |
| 318 | and cooperative shareholders; amending s. 719.503, F.S.; |
| 319 | providing shareholder disclosure requirements for the sale |
| 320 | of interest in a cooperative association; amending s. |
| 321 | 720.303, F.S.; prohibiting certain expenditures and |
| 322 | contributions by the board of a homeowners' association; |
| 323 | providing liability; providing requirements for the |
| 324 | borrowing of funds or committing to a line of credit by |
| 325 | the board; providing requirements relating to transfer |
| 326 | fees; amending s. 720.304, F.S.; revising requirements |
| 327 | with respect to the display of flags; creating s. |
| 328 | 720.3065, F.S.; providing requirements for the selection |
| 329 | of homeowners' association board of administration meeting |
| 330 | times and locations; providing restrictions on the times |
| 331 | set for certain meetings; amending s. 720.3085, F.S.; |
| 332 | revising provisions relating to the effectiveness and |
| 333 | priority of homeowners' association liens; revising |
| 334 | provisions limiting the liability of a first mortgagee and |
| 335 | its successors and assignees acquiring title to a unit by |
| 336 | foreclosure or by deed in lieu of foreclosure for certain |
| 337 | unpaid assessments; requiring mortgagees filing for |
| 338 | foreclosure to make certain payments to the association; |
| 339 | creating s. 720.314, F.S.; providing for parcel owners to |
| 340 | file informational complaints regarding homeowners' |
| 341 | associations and their officers and directors with the |
| 342 | Office of Program Policy Analysis and Government |
| 343 | Accountability; providing for an informational complaint |
| 344 | form and the format of such form; amending s. 721.16, |
| 345 | F.S.; conforming a cross-reference; requiring a study by |
| 346 | the Office of Program Policy Analysis and Government |
| 347 | Accountability for specified purposes; requiring a report |
| 348 | to the Legislature by a specified date; providing an |
| 349 | appropriation; providing an effective date. |
| 350 |
|
| 351 | Be It Enacted by the Legislature of the State of Florida: |
| 352 |
|
| 353 | Section 1. Subsection (10) is added to section 20.165, |
| 354 | Florida Statutes, to read: |
| 355 | 20.165 Department of Business and Professional |
| 356 | Regulation.--There is created a Department of Business and |
| 357 | Professional Regulation. |
| 358 | (10)(a) All employees authorized by the Division of |
| 359 | Florida Condominiums, Timeshares, and Mobile Homes shall have |
| 360 | access to and shall have the right to examine and inspect the |
| 361 | premises, books, and records of any condominium, cooperative, |
| 362 | timeshare, or mobile home park regulated by the division. Such |
| 363 | employees shall also have access to and shall have the right to |
| 364 | examine and inspect the books and records of any community |
| 365 | association manager or firm employed by any condominium, |
| 366 | cooperative, timeshare, or mobile home park regulated by the |
| 367 | division. The authorized employees shall require of each |
| 368 | licensee strict compliance with the laws of this state relating |
| 369 | to the transaction of such business or operation. |
| 370 | (b) Each employee serving as a law enforcement officer for |
| 371 | the division must meet the qualifications for employment or |
| 372 | appointment as a law enforcement officer set forth under s. |
| 373 | 943.13 and must be certified as a law enforcement officer by the |
| 374 | Department of Law Enforcement under chapter 943. Upon |
| 375 | certification, each law enforcement officer is subject to and |
| 376 | has the same authority as provided for law enforcement officers |
| 377 | generally in chapter 901 and has statewide jurisdiction. Each |
| 378 | officer also has arrest authority as provided for state law |
| 379 | enforcement officers in s. 901.15. Each officer possesses the |
| 380 | full law enforcement powers granted to other peace officers of |
| 381 | this state, including the authority to make arrests, carry |
| 382 | firearms, serve court process, and seize contraband and the |
| 383 | proceeds of illegal activities. |
| 384 | (c) The primary responsibility of each officer appointed |
| 385 | under this subsection is to investigate, enforce, and prosecute, |
| 386 | throughout the state, violations and violators of part VIII of |
| 387 | chapter 468, chapters 718, 719, 721, and 723, and the rules |
| 388 | adopted thereunder, as well as other state laws that the |
| 389 | division or all state law enforcement officers are specifically |
| 390 | authorized to enforce. The secondary responsibility of each |
| 391 | officer appointed under this subsection is to enforce all other |
| 392 | state laws, provided that the enforcement is incidental to |
| 393 | exercising the officer's primary responsibility, and the officer |
| 394 | exercises the powers of a deputy sheriff, only after |
| 395 | consultation or coordination with the appropriate local |
| 396 | sheriff's office or municipal police department or when the |
| 397 | division participates in the Florida Mutual Aid Plan during a |
| 398 | declared state emergency. |
| 399 | Section 2. Paragraph (b) of subsection (2) of section |
| 400 | 468.436, Florida Statutes, is amended, and subsection (6) is |
| 401 | added to that section, to read: |
| 402 | 468.436 Disciplinary proceedings.-- |
| 403 | (2) The following acts constitute grounds for which the |
| 404 | disciplinary actions in subsection (4) may be taken: |
| 405 | (b)1. Violation of any provision of this part. |
| 406 | 2. Violation of any lawful order or rule rendered or |
| 407 | adopted by the department or the council. |
| 408 | 3. Being convicted of or pleading nolo contendere to a |
| 409 | felony in any court in the United States. |
| 410 | 4. Obtaining a license or certification or any other |
| 411 | order, ruling, or authorization by means of fraud, |
| 412 | misrepresentation, or concealment of material facts. |
| 413 | 5. Committing acts of gross misconduct or gross negligence |
| 414 | in connection with the profession. |
| 415 | 6. Contracting, on behalf of an association, with any |
| 416 | entity in which the licensee has a financial interest that is |
| 417 | not disclosed. |
| 418 | (6) Upon the fifth or later finding that a community |
| 419 | association manager is guilty of any of the grounds set forth in |
| 420 | subsection (2), or upon the third or later finding that a |
| 421 | community association manager is guilty of a specific ground for |
| 422 | which the disciplinary actions set forth in subsection (2) may |
| 423 | be taken, the department's discretion under subsection (4) shall |
| 424 | not apply and the division shall enter an order permanently |
| 425 | revoking the license. |
| 426 | Section 3. Section 627.714, Florida Statutes, is created |
| 427 | to read: |
| 428 | 627.714 Residential condominium unit owner coverage; loss |
| 429 | assessment coverage required; excess coverage provision |
| 430 | required.--For policies issued or renewed on or after July 1, |
| 431 | 2009, coverage under a condominium unit owner's residential |
| 432 | property policy shall include property loss assessment coverage |
| 433 | of at least $2,000 for all assessments made as a result of the |
| 434 | same direct loss to the property, regardless of the number of |
| 435 | assessments, owned by all members of the association |
| 436 | collectively when such loss is of the type of loss covered by |
| 437 | the unit owner's residential property insurance policy, to which |
| 438 | a deductible of no more than $250 per direct property loss shall |
| 439 | apply. If a deductible was or will be applied to other property |
| 440 | loss sustained by the unit owner resulting from the same direct |
| 441 | loss to the property, no deductible shall apply to the loss |
| 442 | assessment coverage. Every unit owner's residential property |
| 443 | policy must contain a provision stating that the coverage |
| 444 | afforded by such policy is excess coverage over the amount |
| 445 | recoverable under any other policy covering the same property. |
| 446 | Section 4. Subsections (5) and (11) and paragraph (b) of |
| 447 | subsection (12) of section 718.111, Florida Statutes, are |
| 448 | amended, and subsections (15) and (16) are added to that |
| 449 | section, to read: |
| 450 | 718.111 The association.-- |
| 451 | (5) RIGHT OF ACCESS TO UNITS.--The association has the |
| 452 | irrevocable right of access to each unit during reasonable |
| 453 | hours, when necessary for the maintenance, repair, or |
| 454 | replacement of any common elements or of any portion of a unit |
| 455 | to be maintained by the association pursuant to the declaration |
| 456 | or as necessary to prevent damage to the common elements or to a |
| 457 | unit or units. Except in cases of emergency, the association |
| 458 | must give the unit owner advance written notice of not less than |
| 459 | 24 hours of its intent to access the unit and such access must |
| 460 | be by two persons, one of whom must be a member of the board of |
| 461 | administration or a manager or employee of the association and |
| 462 | one of whom must be an authorized representative of the |
| 463 | association. The identity of the authorized representative |
| 464 | seeking access to the unit shall be provided to the unit owner |
| 465 | prior to entering the unit. |
| 466 | (11) INSURANCE.--In order to protect the safety, health, |
| 467 | and welfare of the people of the State of Florida and to ensure |
| 468 | consistency in the provision of insurance coverage to |
| 469 | condominiums and their unit owners, this subsection applies to |
| 470 | every residential condominium in the state, regardless of the |
| 471 | date of its declaration of condominium. It is the intent of the |
| 472 | Legislature to encourage lower or stable insurance premiums for |
| 473 | associations described in this subsection. |
| 474 | (a) Adequate property hazard insurance, regardless of any |
| 475 | requirement in the declaration of condominium for coverage by |
| 476 | the association for full insurable value, replacement cost, or |
| 477 | similar coverage, shall be based upon the replacement cost of |
| 478 | the property to be insured as determined by an independent |
| 479 | insurance appraisal or update of a prior appraisal. The full |
| 480 | insurable value shall be determined at least once every 36 |
| 481 | months. |
| 482 | 1. An association or group of associations may provide |
| 483 | adequate property hazard insurance through a self-insurance fund |
| 484 | that complies with the requirements of ss. 624.460-624.488. |
| 485 | 2. The association may also provide adequate property |
| 486 | hazard insurance coverage for a group of no fewer than three |
| 487 | communities created and operating under this chapter, chapter |
| 488 | 719, chapter 720, or chapter 721 by obtaining and maintaining |
| 489 | for such communities property insurance coverage sufficient to |
| 490 | cover an amount equal to the probable maximum loss for the |
| 491 | communities for a 250-year windstorm event. Such probable |
| 492 | maximum loss must be determined through the use of a competent |
| 493 | model that has been accepted by the Florida Commission on |
| 494 | Hurricane Loss Projection Methodology. No policy or program |
| 495 | providing such coverage shall be issued or renewed after July 1, |
| 496 | 2008, unless it has been reviewed and approved by the Office of |
| 497 | Insurance Regulation. The review and approval shall include |
| 498 | approval of the policy and related forms pursuant to ss. 627.410 |
| 499 | and 627.411, approval of the rates pursuant to s. 627.062, a |
| 500 | determination that the loss model approved by the commission was |
| 501 | accurately and appropriately applied to the insured structures |
| 502 | to determine the 250-year probable maximum loss, and a |
| 503 | determination that complete and accurate disclosure of all |
| 504 | material provisions is provided to condominium unit owners prior |
| 505 | to execution of the agreement by a condominium association. |
| 506 | 3. When determining the adequate amount of property hazard |
| 507 | insurance coverage, the association may consider deductibles as |
| 508 | determined by this subsection. |
| 509 | (b) If an association is a developer-controlled |
| 510 | association, the association shall exercise its best efforts to |
| 511 | obtain and maintain property insurance as described in paragraph |
| 512 | (a). Failure to obtain and maintain adequate property hazard |
| 513 | insurance during any period of developer control constitutes a |
| 514 | breach of fiduciary responsibility by the developer-appointed |
| 515 | members of the board of directors of the association, unless the |
| 516 | members can show that despite such failure, they have made their |
| 517 | best efforts to maintain the required coverage. |
| 518 | (c) Policies may include deductibles as determined by the |
| 519 | board. |
| 520 | 1. The deductibles shall be consistent with industry |
| 521 | standards and prevailing practice for communities of similar |
| 522 | size and age, and having similar construction and facilities in |
| 523 | the locale where the condominium property is situated. |
| 524 | 2. The deductibles may be based upon available funds, |
| 525 | including reserve accounts, or predetermined assessment |
| 526 | authority at the time the property insurance is obtained. |
| 527 | 3. The board shall establish the amount of deductibles |
| 528 | based upon the level of available funds and predetermined |
| 529 | assessment authority at a meeting of the board. Such meeting |
| 530 | shall be open to all unit owners in the manner set forth in s. |
| 531 | 718.112(2)(e). The notice of such meeting must state the |
| 532 | proposed deductible and the available funds and the assessment |
| 533 | authority relied upon by the board and estimate any potential |
| 534 | assessment amount against each unit, if any. The meeting |
| 535 | described in this paragraph may be held in conjunction with a |
| 536 | meeting to consider the proposed budget or an amendment thereto. |
| 537 | (d) An association controlled by unit owners operating as |
| 538 | a residential condominium shall use its best efforts to obtain |
| 539 | and maintain adequate property insurance to protect the |
| 540 | association, the association property, the common elements, and |
| 541 | the condominium property that is required to be insured by the |
| 542 | association pursuant to this subsection. |
| 543 | (e) The declaration of condominium as originally recorded, |
| 544 | or as amended pursuant to procedures provided therein, may |
| 545 | provide that condominium property consisting of freestanding |
| 546 | buildings comprised of no more than one building in or on such |
| 547 | unit need not be insured by the association if the declaration |
| 548 | requires the unit owner to obtain adequate property insurance |
| 549 | for the condominium property. An association may also obtain and |
| 550 | maintain liability insurance for directors and officers, |
| 551 | insurance for the benefit of association employees, and flood |
| 552 | insurance for common elements, association property, and units. |
| 553 | (f) Every property hazard insurance policy issued or |
| 554 | renewed on or after July January 1, 2009, for the purpose of |
| 555 | protecting the condominium shall provide primary coverage for: |
| 556 | 1. All portions of the condominium property as originally |
| 557 | installed or replacement of like kind and quality, in accordance |
| 558 | with the original plans and specifications. |
| 559 | 2. All alterations or additions made to the condominium |
| 560 | property or association property pursuant to s. 718.113(2). |
| 561 | 3. The coverage shall exclude all personal property within |
| 562 | the unit or limited common elements, and floor, wall, and |
| 563 | ceiling coverings, electrical fixtures, appliances, water |
| 564 | heaters, water filters, built-in cabinets and countertops, air- |
| 565 | conditioning and heating equipment that serves a single unit, |
| 566 | and window treatments, including curtains, drapes, blinds, |
| 567 | hardware, and similar window treatment components, or |
| 568 | replacements of any of the foregoing, that are located within |
| 569 | the boundaries of the unit and serve only such unit. Such |
| 570 | property and any insurance therefor shall be the responsibility |
| 571 | of the unit owner. |
| 572 | (g) A condominium unit owner's policy issued after July 1, |
| 573 | 2009, shall conform to the requirements of s. 627.714. Every |
| 574 | hazard insurance policy issued or renewed on or after January 1, |
| 575 | 2009, to an individual unit owner must contain a provision |
| 576 | stating that the coverage afforded by such policy is excess |
| 577 | coverage over the amount recoverable under any other policy |
| 578 | covering the same property. Such policies must include special |
| 579 | assessment coverage of no less than $2,000 per occurrence. An |
| 580 | insurance policy issued to an individual unit owner providing |
| 581 | such coverage does not provide rights of subrogation against the |
| 582 | condominium association operating the condominium in which such |
| 583 | individual's unit is located. |
| 584 | 1. All improvements or additions to the condominium |
| 585 | property that benefit fewer than all unit owners shall be |
| 586 | insured by the unit owner or owners having the use thereof, or |
| 587 | may be insured by the association at the cost and expense of the |
| 588 | unit owners having the use thereof. |
| 589 | 2. The association shall require each owner to provide |
| 590 | evidence of a currently effective policy of hazard and liability |
| 591 | insurance upon request, but not more than once per year. Upon |
| 592 | the failure of an owner to provide a certificate of insurance |
| 593 | issued by an insurer approved to write such insurance in this |
| 594 | state within 30 days after the date on which a written request |
| 595 | is delivered, the association may purchase a policy of insurance |
| 596 | on behalf of an owner. The cost of such a policy, together with |
| 597 | reconstruction costs undertaken by the association but which are |
| 598 | the responsibility of the unit owner, may be collected in the |
| 599 | manner provided for the collection of assessments in s. 718.116. |
| 600 | 1.3. All reconstruction work after a casualty loss shall |
| 601 | be undertaken by the association except as otherwise authorized |
| 602 | in this section. A unit owner may undertake reconstruction work |
| 603 | on portions of the unit with the prior written consent of the |
| 604 | board of administration. However, such work may be conditioned |
| 605 | upon the approval of the repair methods, the qualifications of |
| 606 | the proposed contractor, or the contract that is used for that |
| 607 | purpose. A unit owner shall obtain all required governmental |
| 608 | permits and approvals prior to commencing reconstruction. |
| 609 | 2.4. Unit owners are responsible for the cost of |
| 610 | reconstruction of any portions of the condominium property for |
| 611 | which the association does not unit owner is required to carry |
| 612 | property casualty insurance, and any such reconstruction work |
| 613 | undertaken by the association shall be chargeable to the unit |
| 614 | owner and enforceable as an assessment pursuant to s. 718.116. |
| 615 | The association must be an additional named insured and loss |
| 616 | payee on all casualty insurance policies issued to unit owners |
| 617 | in the condominium operated by the association. |
| 618 | 3.5. A multicondominium association may elect, by a |
| 619 | majority vote of the collective members of the condominiums |
| 620 | operated by the association, to operate such condominiums as a |
| 621 | single condominium for purposes of insurance matters, including, |
| 622 | but not limited to, the purchase of the property hazard |
| 623 | insurance required by this section and the apportionment of |
| 624 | deductibles and damages in excess of coverage. The election to |
| 625 | aggregate the treatment of insurance premiums, deductibles, and |
| 626 | excess damages constitutes an amendment to the declaration of |
| 627 | all condominiums operated by the association, and the costs of |
| 628 | insurance shall be stated in the association budget. The |
| 629 | amendments shall be recorded as required by s. 718.110. |
| 630 | (h) The association shall maintain insurance or fidelity |
| 631 | bonding of all persons who control or disburse funds of the |
| 632 | association. The insurance policy or fidelity bond must cover |
| 633 | the maximum funds that will be in the custody of the association |
| 634 | or its management agent at any one time. As used in this |
| 635 | paragraph, the term "persons who control or disburse funds of |
| 636 | the association" includes, but is not limited to, those |
| 637 | individuals authorized to sign checks on behalf of the |
| 638 | association, and the president, secretary, and treasurer of the |
| 639 | association. The association shall bear the cost of any such |
| 640 | bonding. |
| 641 | (i) The association may amend the declaration of |
| 642 | condominium without regard to any requirement for approval by |
| 643 | mortgagees of amendments affecting insurance requirements for |
| 644 | the purpose of conforming the declaration of condominium to the |
| 645 | coverage requirements of this subsection. |
| 646 | (j) Any portion of the condominium property required to be |
| 647 | insured by the association against property casualty loss |
| 648 | pursuant to paragraph (f) which is damaged by casualty shall be |
| 649 | reconstructed, repaired, or replaced as necessary by the |
| 650 | association as a common expense. All property hazard insurance |
| 651 | deductibles, uninsured losses, and other damages in excess of |
| 652 | property hazard insurance coverage under the property hazard |
| 653 | insurance policies maintained by the association are a common |
| 654 | expense of the condominium, except that: |
| 655 | 1. A unit owner is responsible for the costs of repair or |
| 656 | replacement of any portion of the condominium property not paid |
| 657 | by insurance proceeds, if such damage is caused by intentional |
| 658 | conduct, negligence, or failure to comply with the terms of the |
| 659 | declaration or the rules of the association by a unit owner, the |
| 660 | members of his or her family, unit occupants, tenants, guests, |
| 661 | or invitees, without compromise of the subrogation rights of any |
| 662 | insurer as set forth in paragraph (g). |
| 663 | 2. The provisions of subparagraph 1. regarding the |
| 664 | financial responsibility of a unit owner for the costs of |
| 665 | repairing or replacing other portions of the condominium |
| 666 | property also apply to the costs of repair or replacement of |
| 667 | personal property of other unit owners or the association, as |
| 668 | well as other property, whether real or personal, which the unit |
| 669 | owners are required to insure under paragraph (g). |
| 670 | 3. To the extent the cost of repair or reconstruction for |
| 671 | which the unit owner is responsible under this paragraph is |
| 672 | reimbursed to the association by insurance proceeds, and, to the |
| 673 | extent the association has collected the cost of such repair or |
| 674 | reconstruction from the unit owner, the association shall |
| 675 | reimburse the unit owner without the waiver of any rights of |
| 676 | subrogation. |
| 677 | 4. The association is not obligated to pay for repair or |
| 678 | reconstruction or repairs of property casualty losses as a |
| 679 | common expense if the property casualty losses were known or |
| 680 | should have been known to a unit owner and were not reported to |
| 681 | the association until after the insurance claim of the |
| 682 | association for that property casualty was settled or resolved |
| 683 | with finality, or denied on the basis that it was untimely |
| 684 | filed. |
| 685 | (k) An association may, upon the approval of a majority of |
| 686 | the total voting interests in the association, opt out of the |
| 687 | provisions of paragraph (j) for the allocation of repair or |
| 688 | reconstruction expenses and allocate repair or reconstruction |
| 689 | expenses in the manner provided in the declaration as originally |
| 690 | recorded or as amended. Such vote may be approved by the voting |
| 691 | interests of the association without regard to any mortgagee |
| 692 | consent requirements. |
| 693 | (l) In a multicondominium association that has not |
| 694 | consolidated its financial operations under subsection (6), any |
| 695 | condominium operated by the association may opt out of the |
| 696 | provisions of paragraph (j) with the approval of a majority of |
| 697 | the total voting interests in that condominium. Such vote may be |
| 698 | approved by the voting interests without regard to any mortgagee |
| 699 | consent requirements. |
| 700 | (m) Any association or condominium voting to opt out of |
| 701 | the guidelines for repair or reconstruction expenses as |
| 702 | described in paragraph (j) must record a notice setting forth |
| 703 | the date of the opt-out vote and the page of the official |
| 704 | records book on which the declaration is recorded. The decision |
| 705 | to opt out is effective upon the date of recording of the notice |
| 706 | in the public records by the association. An association that |
| 707 | has voted to opt out of paragraph (j) may reverse that decision |
| 708 | by the same vote required in paragraphs (k) and (l), and notice |
| 709 | thereof shall be recorded in the official records. |
| 710 | (n) The association is not obligated to pay for any |
| 711 | reconstruction or repair expenses due to property casualty loss |
| 712 | to any improvements installed by a current or former owner of |
| 713 | the unit or by the developer if the improvement benefits only |
| 714 | the unit for which it was installed and is not part of the |
| 715 | standard improvements installed by the developer on all units as |
| 716 | part of original construction, whether or not such improvement |
| 717 | is located within the unit. This paragraph does not relieve any |
| 718 | party of its obligations regarding recovery due under any |
| 719 | insurance implemented specifically for any such improvements. |
| 720 | (o) The provisions of this subsection shall not apply to |
| 721 | timeshare condominium associations. Insurance for timeshare |
| 722 | condominium associations shall be maintained pursuant to s. |
| 723 | 721.165. |
| 724 | (12) OFFICIAL RECORDS.-- |
| 725 | (b) The official records of the association shall be |
| 726 | maintained within the state for at least 7 years. The records of |
| 727 | the association shall be made available to a unit owner within |
| 728 | 45 miles of the condominium property or within the county in |
| 729 | which the condominium property is located within 5 working days |
| 730 | after receipt of written request by the board or its designee. |
| 731 | However, such distance requirement does not apply to an |
| 732 | association governing a timeshare condominium. This paragraph |
| 733 | may be complied with by having a copy of the official records of |
| 734 | the association available for inspection or copying on the |
| 735 | condominium property or association property., or The |
| 736 | association may offer the option of making the records of the |
| 737 | association available to a unit owner either electronically via |
| 738 | the Internet or by allowing the records to be viewed in |
| 739 | electronic format on a computer screen and printed upon request. |
| 740 | (15) MEETINGS.--Regular meetings of the board of |
| 741 | administration shall be held at such time and place as provided |
| 742 | in the bylaws until the first regular meeting of the board held |
| 743 | on or after October 1, 2009. Thereafter, the location and time |
| 744 | for regular meetings of the board shall be determined by a |
| 745 | majority vote of the unit owners at the next regular meeting |
| 746 | held on or after October 1, 2009. Once the time and place for |
| 747 | regular meetings of the board have been selected, neither may be |
| 748 | changed unless approved by a majority vote of the unit owners. |
| 749 | Regular meetings of the board of administration held on weekdays |
| 750 | shall be held no earlier than 6 p.m. local time. |
| 751 | (16) LIMIT ON EXPENDITURES.--It shall be unlawful for an |
| 752 | association to make any expenditure of association funds or to |
| 753 | make any in-kind contribution of association assets that does |
| 754 | not relate to the purposes for which the association is |
| 755 | organized. |
| 756 | (a) The association shall not make any contribution to a |
| 757 | campaign or committee of continuous existence governed by |
| 758 | chapter 105 or chapter 106. |
| 759 | (b) The association shall not make any contribution to a |
| 760 | charitable organization if the association does not receive a |
| 761 | direct benefit from the organization. |
| 762 | (c) The association shall not make any expenditure in |
| 763 | order to retain a person or firm for the purposes of lobbying. |
| 764 | (d) Directors of the association shall be jointly and |
| 765 | severally liable to reimburse the association for any |
| 766 | contribution, expenditure, or in-kind contribution made in |
| 767 | violation of this subsection. |
| 768 | Section 5. Paragraphs (c), (d), (h), and (o) of subsection |
| 769 | (2) of section 718.112, Florida Statutes, are amended, and |
| 770 | paragraphs (p) and (q) are added to that subsection, to read: |
| 771 | 718.112 Bylaws.-- |
| 772 | (2) REQUIRED PROVISIONS.--The bylaws shall provide for the |
| 773 | following and, if they do not do so, shall be deemed to include |
| 774 | the following: |
| 775 | (c) Board of administration meetings.--Meetings of the |
| 776 | board of administration at which a quorum of the members is |
| 777 | present shall be open to all unit owners. Any unit owner may |
| 778 | tape record or videotape meetings of the board of |
| 779 | administration. The right to attend such meetings includes the |
| 780 | right to speak at such meetings with reference to all designated |
| 781 | agenda items. The division shall adopt reasonable rules |
| 782 | governing the tape recording and videotaping of the meeting. The |
| 783 | association may adopt written reasonable rules governing the |
| 784 | frequency, duration, and manner of unit owner statements. |
| 785 | Adequate notice of all meetings, which notice shall specifically |
| 786 | incorporate an identification of agenda items, shall be posted |
| 787 | conspicuously on the condominium property at least 48 continuous |
| 788 | hours preceding the meeting except in an emergency. If 20 |
| 789 | percent of the voting interests petition the board to address an |
| 790 | item of business, the board shall at its next regular board |
| 791 | meeting or at a special meeting of the board, but not later than |
| 792 | 60 days after the receipt of the petition, place the item on the |
| 793 | agenda. Any item not included on the notice may be taken up on |
| 794 | an emergency basis by at least a majority plus one of the |
| 795 | members of the board. Such emergency action shall be noticed and |
| 796 | ratified at the next regular meeting of the board. However, |
| 797 | written notice of any meeting at which nonemergency special |
| 798 | assessments, or at which amendment to rules regarding unit use, |
| 799 | will be considered shall be mailed, delivered, or electronically |
| 800 | transmitted to the unit owners and posted conspicuously on the |
| 801 | condominium property not less than 14 days prior to the meeting. |
| 802 | Evidence of compliance with this 14-day notice shall be made by |
| 803 | an affidavit executed by the person providing the notice and |
| 804 | filed among the official records of the association. Upon notice |
| 805 | to the unit owners, the board shall by duly adopted rule |
| 806 | designate a specific location on the condominium property or |
| 807 | association property upon which all notices of board meetings |
| 808 | shall be posted. If there is no condominium property or |
| 809 | association property upon which notices can be posted, notices |
| 810 | of board meetings shall be mailed, delivered, or electronically |
| 811 | transmitted at least 14 days before the meeting to the owner of |
| 812 | each unit. In lieu of or in addition to the physical posting of |
| 813 | notice of any meeting of the board of administration on the |
| 814 | condominium property, the association may, by reasonable rule, |
| 815 | adopt a procedure for conspicuously posting and repeatedly |
| 816 | broadcasting the notice and the agenda on a closed-circuit cable |
| 817 | television system serving the condominium association. However, |
| 818 | if broadcast notice is used in lieu of a notice posted |
| 819 | physically on the condominium property, the notice and agenda |
| 820 | must be broadcast at least four times every broadcast hour of |
| 821 | each day that a posted notice is otherwise required under this |
| 822 | section. When broadcast notice is provided, the notice and |
| 823 | agenda must be broadcast in a manner and for a sufficient |
| 824 | continuous length of time so as to allow an average reader to |
| 825 | observe the notice and read and comprehend the entire content of |
| 826 | the notice and the agenda. Notice of any meeting in which |
| 827 | regular or special assessments against unit owners are to be |
| 828 | considered for any reason shall specifically state that |
| 829 | assessments will be considered, and the nature, estimated cost, |
| 830 | and description of the purposes for such assessments, and the |
| 831 | proposed cost and percentage amount for possible cost overruns |
| 832 | as specifically provided for in the proposed contract. Meetings |
| 833 | of a committee to take final action on behalf of the board or |
| 834 | make recommendations to the board regarding the association |
| 835 | budget are subject to the provisions of this paragraph. Meetings |
| 836 | of a committee that does not take final action on behalf of the |
| 837 | board or make recommendations to the board regarding the |
| 838 | association budget are subject to the provisions of this |
| 839 | section, unless those meetings are exempted from this section by |
| 840 | the bylaws of the association. Notwithstanding any other law, |
| 841 | the requirement that board meetings and committee meetings be |
| 842 | open to the unit owners is inapplicable to meetings between the |
| 843 | board or a committee and the association's attorney, with |
| 844 | respect to proposed or pending litigation, when the meeting is |
| 845 | held for the purpose of seeking or rendering legal advice. |
| 846 | (d) Unit owner meetings.-- |
| 847 | 1. There shall be an annual meeting of the unit owners |
| 848 | held at the location provided in the association bylaws and, if |
| 849 | the bylaws are silent as to the location, the meeting shall be |
| 850 | held within 45 miles of the condominium property or, if |
| 851 | facilities are available on the condominium property, the |
| 852 | meeting shall be held at such facilities. However, such distance |
| 853 | requirement does not apply to an association governing a |
| 854 | timeshare condominium. Unless the bylaws provide otherwise, a |
| 855 | vacancy on the board caused by the expiration of a director's |
| 856 | term shall be filled by electing a new board member, and the |
| 857 | election shall be by secret ballot; however, if the number of |
| 858 | vacancies equals or exceeds the number of candidates, no |
| 859 | election is required. The terms of all members of the board |
| 860 | shall expire at the first annual meeting after July 1, 2009, and |
| 861 | at each the annual meeting thereafter and such board members may |
| 862 | stand for reelection unless otherwise permitted by the bylaws. |
| 863 | In the event that the bylaws permit staggered terms of no more |
| 864 | than 2 years and upon approval of a majority of the total voting |
| 865 | interests, the association board members may serve 2-year |
| 866 | staggered terms. If no person is interested in or demonstrates |
| 867 | an intention to run for the position of a board member whose |
| 868 | term has expired according to the provisions of this |
| 869 | subparagraph, such board member whose term has expired shall be |
| 870 | automatically reappointed to the board of administration and |
| 871 | need not stand for reelection. In a condominium association of |
| 872 | more than 10 units, coowners of a unit may not serve as members |
| 873 | of the board of directors at the same time. Any unit owner |
| 874 | desiring to be a candidate for board membership shall comply |
| 875 | with subparagraph 3. A person who has been suspended or removed |
| 876 | by the division under this chapter, or who is delinquent in the |
| 877 | payment of any fee or assessment as provided in paragraph (n), |
| 878 | is not eligible for board membership. A person who has been |
| 879 | convicted of any felony in this state or in a United States |
| 880 | District or Territorial Court, or who has been convicted of any |
| 881 | offense in another jurisdiction that would be considered a |
| 882 | felony if committed in this state, is not eligible for board |
| 883 | membership unless such felon's civil rights have been restored |
| 884 | for a period of no less than 5 years as of the date on which |
| 885 | such person seeks election to the board. The validity of an |
| 886 | action by the board is not affected if it is later determined |
| 887 | that a member of the board is ineligible for board membership |
| 888 | due to having been convicted of a felony. |
| 889 | 2. The bylaws shall provide the method of calling meetings |
| 890 | of unit owners, including annual meetings. Written notice, which |
| 891 | notice must include an agenda, shall be mailed, hand delivered, |
| 892 | or electronically transmitted to each unit owner at least 14 |
| 893 | days prior to the annual meeting and shall be posted in a |
| 894 | conspicuous place on the condominium property at least 14 |
| 895 | continuous days preceding the annual meeting. Upon notice to the |
| 896 | unit owners, the board shall by duly adopted rule designate a |
| 897 | specific location on the condominium property or association |
| 898 | property upon which all notices of unit owner meetings shall be |
| 899 | posted; however, if there is no condominium property or |
| 900 | association property upon which notices can be posted, this |
| 901 | requirement does not apply. In lieu of or in addition to the |
| 902 | physical posting of notice of any meeting of the unit owners on |
| 903 | the condominium property, the association may, by reasonable |
| 904 | rule, adopt a procedure for conspicuously posting and repeatedly |
| 905 | broadcasting the notice and the agenda on a closed-circuit cable |
| 906 | television system serving the condominium association. However, |
| 907 | if broadcast notice is used in lieu of a notice posted |
| 908 | physically on the condominium property, the notice and agenda |
| 909 | must be broadcast at least four times every broadcast hour of |
| 910 | each day that a posted notice is otherwise required under this |
| 911 | section. When broadcast notice is provided, the notice and |
| 912 | agenda must be broadcast in a manner and for a sufficient |
| 913 | continuous length of time so as to allow an average reader to |
| 914 | observe the notice and read and comprehend the entire content of |
| 915 | the notice and the agenda. Unless a unit owner waives in writing |
| 916 | the right to receive notice of the annual meeting, such notice |
| 917 | shall be hand delivered, mailed, or electronically transmitted |
| 918 | to each unit owner. Notice for meetings and notice for all other |
| 919 | purposes shall be mailed to each unit owner at the address last |
| 920 | furnished to the association by the unit owner, or hand |
| 921 | delivered to each unit owner. However, if a unit is owned by |
| 922 | more than one person, the association shall provide notice, for |
| 923 | meetings and all other purposes, to that one address which the |
| 924 | developer initially identifies for that purpose and thereafter |
| 925 | as one or more of the owners of the unit shall so advise the |
| 926 | association in writing, or if no address is given or the owners |
| 927 | of the unit do not agree, to the address provided on the deed of |
| 928 | record. An officer of the association, or the manager or other |
| 929 | person providing notice of the association meeting, shall |
| 930 | provide an affidavit or United States Postal Service certificate |
| 931 | of mailing, to be included in the official records of the |
| 932 | association affirming that the notice was mailed or hand |
| 933 | delivered, in accordance with this provision. |
| 934 | 3. The members of the board shall be elected by written |
| 935 | ballot or voting machine. Proxies shall in no event be used in |
| 936 | electing the board, either in general elections or elections to |
| 937 | fill vacancies caused by recall, resignation, or otherwise, |
| 938 | unless otherwise provided in this chapter. Not less than 60 days |
| 939 | before a scheduled election, the association shall mail, |
| 940 | deliver, or electronically transmit, whether by separate |
| 941 | association mailing or included in another association mailing, |
| 942 | delivery, or transmission, including regularly published |
| 943 | newsletters, to each unit owner entitled to a vote, a first |
| 944 | notice of the date of the election along with a certification |
| 945 | form provided by the division attesting that he or she has read |
| 946 | and understands, to the best of his or her ability, the |
| 947 | governing documents of the association and the provisions of |
| 948 | this chapter and any applicable rules. Any unit owner or other |
| 949 | eligible person desiring to be a candidate for the board must |
| 950 | give written notice to the association not less than 40 days |
| 951 | before a scheduled election. Together with the written notice |
| 952 | and agenda as set forth in subparagraph 2., the association |
| 953 | shall mail, deliver, or electronically transmit a second notice |
| 954 | of the election to all unit owners entitled to vote therein, |
| 955 | together with a ballot which shall list all candidates. Upon |
| 956 | request of a candidate, the association shall include an |
| 957 | information sheet, no larger than 81/2 inches by 11 inches, |
| 958 | which must be furnished by the candidate not less than 35 days |
| 959 | before the election, along with the signed certification form |
| 960 | provided for in this subparagraph, to be included with the |
| 961 | mailing, delivery, or transmission of the ballot, with the costs |
| 962 | of mailing, delivery, or electronic transmission and copying to |
| 963 | be borne by the association. The association is not liable for |
| 964 | the contents of the information sheets prepared by the |
| 965 | candidates. In order to reduce costs, the association may print |
| 966 | or duplicate the information sheets on both sides of the paper. |
| 967 | The division shall by rule establish voting procedures |
| 968 | consistent with the provisions contained herein, including rules |
| 969 | establishing procedures for giving notice by electronic |
| 970 | transmission and rules providing for the secrecy of ballots. |
| 971 | Elections shall be decided by a plurality of those ballots cast. |
| 972 | There shall be no quorum requirement; however, at least 20 |
| 973 | percent of the eligible voters must cast a ballot in order to |
| 974 | have a valid election of members of the board. No unit owner |
| 975 | shall permit any other person to vote his or her ballot, and any |
| 976 | such ballots improperly cast shall be deemed invalid, provided |
| 977 | any unit owner who violates this provision may be fined by the |
| 978 | association in accordance with s. 718.303. A unit owner who |
| 979 | needs assistance in casting the ballot for the reasons stated in |
| 980 | s. 101.051 may obtain assistance in casting the ballot. The |
| 981 | regular election shall occur on the date of the annual meeting. |
| 982 | The provisions of this subparagraph shall not apply to timeshare |
| 983 | condominium associations. Notwithstanding the provisions of this |
| 984 | subparagraph, an election is not required unless more candidates |
| 985 | file notices of intent to run or are nominated than board |
| 986 | vacancies exist. |
| 987 | 4. Any approval by unit owners called for by this chapter |
| 988 | or the applicable declaration or bylaws, including, but not |
| 989 | limited to, the approval requirement in s. 718.111(8), shall be |
| 990 | made at a duly noticed meeting of unit owners and shall be |
| 991 | subject to all requirements of this chapter or the applicable |
| 992 | condominium documents relating to unit owner decisionmaking, |
| 993 | except that unit owners may take action by written agreement, |
| 994 | without meetings, on matters for which action by written |
| 995 | agreement without meetings is expressly allowed by the |
| 996 | applicable bylaws or declaration or any statute that provides |
| 997 | for such action. |
| 998 | 5. Unit owners may waive notice of specific meetings if |
| 999 | allowed by the applicable bylaws or declaration or any statute. |
| 1000 | If authorized by the bylaws, notice of meetings of the board of |
| 1001 | administration, unit owner meetings, except unit owner meetings |
| 1002 | called to recall board members under paragraph (j), and |
| 1003 | committee meetings may be given by electronic transmission to |
| 1004 | unit owners who consent to receive notice by electronic |
| 1005 | transmission. |
| 1006 | 6. Unit owners shall have the right to participate in |
| 1007 | meetings of unit owners with reference to all designated agenda |
| 1008 | items. However, the association may adopt reasonable rules |
| 1009 | governing the frequency, duration, and manner of unit owner |
| 1010 | participation. |
| 1011 | 7. Any unit owner may tape record or videotape a meeting |
| 1012 | of the unit owners subject to reasonable rules adopted by the |
| 1013 | division. |
| 1014 | 8. Unless otherwise provided in the bylaws, any vacancy |
| 1015 | occurring on the board before the expiration of a term may be |
| 1016 | filled by the affirmative vote of the majority of the remaining |
| 1017 | directors, even if the remaining directors constitute less than |
| 1018 | a quorum, or by the sole remaining director. In the alternative, |
| 1019 | a board may hold an election to fill the vacancy, in which case |
| 1020 | the election procedures must conform to the requirements of |
| 1021 | subparagraph 3. unless the association governs 10 units or less |
| 1022 | and has opted out of the statutory election process, in which |
| 1023 | case the bylaws of the association control. Unless otherwise |
| 1024 | provided in the bylaws, a board member appointed or elected |
| 1025 | under this section shall fill the vacancy for the unexpired term |
| 1026 | of the seat being filled. Filling vacancies created by recall is |
| 1027 | governed by paragraph (j) and rules adopted by the division. |
| 1028 | 9. Notwithstanding subparagraphs (b)2. and (d)3., an |
| 1029 | association of 10 or fewer units may, by the affirmative vote of |
| 1030 | a majority of the total voting interests, provide for different |
| 1031 | voting and election procedures in its bylaws, which vote may be |
| 1032 | by a proxy specifically delineating the different voting and |
| 1033 | election procedures. The different voting and election |
| 1034 | procedures may provide for elections to be conducted by limited |
| 1035 | or general proxy. |
| 1036 | (h) Amendment of bylaws.-- |
| 1037 | 1. The method by which the bylaws may be amended |
| 1038 | consistent with the provisions of this chapter shall be stated. |
| 1039 | If the bylaws fail to provide a method of amendment, the bylaws |
| 1040 | may be amended if the amendment is approved by the owners of not |
| 1041 | less than two-thirds of the voting interests. |
| 1042 | 2. No bylaw shall be revised or amended by reference to |
| 1043 | its title or number only. Proposals to amend existing bylaws |
| 1044 | shall contain the full text of the bylaws to be amended; new |
| 1045 | words shall be inserted in the text underlined, and words to be |
| 1046 | deleted shall be lined through with hyphens. However, if the |
| 1047 | proposed change is so extensive that this procedure would |
| 1048 | hinder, rather than assist, the understanding of the proposed |
| 1049 | amendment, it is not necessary to use underlining and hyphens as |
| 1050 | indicators of words added or deleted, but, instead, a notation |
| 1051 | must be inserted immediately preceding the proposed amendment in |
| 1052 | substantially the following language: "Substantial rewording of |
| 1053 | bylaw. See bylaw _____ for present text." |
| 1054 | 3. Nonmaterial errors or omissions in the bylaw process |
| 1055 | will not invalidate an otherwise properly promulgated amendment. |
| 1056 | 4. If the bylaws provide for amendment by the board of |
| 1057 | administration, no bylaw may be amended unless it is heard and |
| 1058 | noticed at two consecutive meetings of the board of |
| 1059 | administration that are at least 1 week apart. |
| 1060 | (o) Director or officer offenses.--A director or officer |
| 1061 | charged by information or indictment with a felony theft or |
| 1062 | embezzlement offense involving the association's funds or |
| 1063 | property shall be removed from office, creating a vacancy in the |
| 1064 | office to be filled according to law. While such director or |
| 1065 | officer has such criminal charge pending in the state or federal |
| 1066 | court system, he or she may not be appointed or elected to a |
| 1067 | position as a director or officer. However, should the charges |
| 1068 | be resolved without a finding of guilt, the director or officer |
| 1069 | shall be reinstated for the remainder of his or her term of |
| 1070 | office, if any. |
| 1071 | (p) Qualification of directors.--In addition to any other |
| 1072 | requirement for office in statute, a person running for or |
| 1073 | seeking appointment to the board must meet the following |
| 1074 | qualifications: |
| 1075 | 1. In a condominium association of 10 or more units, only |
| 1076 | one individual coowner of a unit may serve on the board of |
| 1077 | administration. |
| 1078 | 2. No person may serve as a director of any condominium |
| 1079 | association in the state if restricted from serving by action of |
| 1080 | the division pursuant to s. 718.501(1)(d)6. |
| 1081 | 3. A person who has been convicted of any felony in this |
| 1082 | state or in a United States District or Territorial Court, or |
| 1083 | who has been convicted of any offense in another jurisdiction |
| 1084 | that would be considered a felony if committed in this state, is |
| 1085 | not eligible for board membership unless such felon's civil |
| 1086 | rights have been restored for a period of no less than 5 years |
| 1087 | as of the date on which such person seeks election to the board. |
| 1088 | 4. Within 30 days after being elected or appointed to the |
| 1089 | board of administration, a director shall certify in writing to |
| 1090 | the secretary of the association that he or she has read parts I |
| 1091 | and III of chapter 718 and the association's declaration of |
| 1092 | condominium, articles of incorporation, bylaws, and current |
| 1093 | written policies. The director shall further certify that he or |
| 1094 | she will work to uphold such documents and policies to the best |
| 1095 | of his or her ability, and that he or she will faithfully |
| 1096 | discharge his or her fiduciary responsibility to the |
| 1097 | association's members. If the division finds that a director has |
| 1098 | falsely certified that he or she has read the required statutes |
| 1099 | and documents, the division shall order the director removed |
| 1100 | from the board and shall order the director to reimburse the |
| 1101 | division for the cost of prosecution and hearing. |
| 1102 | 5. After turnover of the association pursuant to s. |
| 1103 | 718.301(2), a director must: |
| 1104 | a. If the unit is owned by an individual or individuals, |
| 1105 | be one of those individuals. |
| 1106 | b. If the unit is owned by a trust, be an individual |
| 1107 | qualified pursuant to s. 617.0802. |
| 1108 | |
| 1109 | These qualifications shall operate on a continuing basis, and |
| 1110 | upon the failure of a director at any time to meet a |
| 1111 | qualification, the director shall be removed from office and |
| 1112 | that office shall be deemed vacant. However, in the case of a |
| 1113 | timeshare condominium association, the bylaws of the association |
| 1114 | shall govern the terms, expiration of terms, and staggered terms |
| 1115 | of board members, and the eligibility of coowners to serve on |
| 1116 | the board of administration shall not be restricted except in |
| 1117 | the manner provided in the bylaws of the timeshare condominium |
| 1118 | association. |
| 1119 | (q) Borrowing.--The borrowing of funds or committing to a |
| 1120 | line of credit by the board of administration shall be |
| 1121 | considered a special assessment, and any meeting of the board of |
| 1122 | administration to discuss such matters shall be noticed as |
| 1123 | provided in paragraph (c). The board shall not have the |
| 1124 | authority to enter into a line of credit or borrow funds for any |
| 1125 | purpose unless the specific use of the funds from the line of |
| 1126 | credit or loan is set forth in the notice of meeting with the |
| 1127 | same specificity as required for a special assessment or unless |
| 1128 | the borrowing or line of credit has received the prior approval |
| 1129 | of not less than two-thirds of the voting interests of the |
| 1130 | association. |
| 1131 | Section 6. Paragraph (a) of subsection (5) of section |
| 1132 | 718.113, Florida Statutes, is amended to read: |
| 1133 | 718.113 Maintenance; limitation upon improvement; display |
| 1134 | of flag; hurricane shutters; display of religious decorations.-- |
| 1135 | (5) Each board of administration shall adopt hurricane |
| 1136 | shutter specifications for each building within each condominium |
| 1137 | operated by the association which shall include color, style, |
| 1138 | and other factors deemed relevant by the board. All |
| 1139 | specifications adopted by the board shall comply with the |
| 1140 | applicable building code. |
| 1141 | (a) The board may, subject to the provisions of s. |
| 1142 | 718.3026, and the approval of a majority of voting interests of |
| 1143 | the condominium, install hurricane shutters or hurricane |
| 1144 | protection that complies with or exceeds the applicable building |
| 1145 | code, or both, except that a vote of the owners is not required |
| 1146 | if the maintenance, repair, and replacement of hurricane |
| 1147 | shutters or other forms of hurricane protection are the |
| 1148 | responsibility of the association pursuant to the declaration of |
| 1149 | condominium. However, where hurricane protection or laminated |
| 1150 | glass or window film architecturally designed to function as |
| 1151 | hurricane protection which complies with or exceeds the current |
| 1152 | applicable building code has been previously installed, the |
| 1153 | board may not install hurricane shutters or other hurricane |
| 1154 | protection. Code-compliant impact glass may be installed by the |
| 1155 | association as hurricane protection if the area in which the |
| 1156 | glass is to be installed is an area that is the responsibility |
| 1157 | of the association. If a unit owner installed code-compliant |
| 1158 | impact glass prior to the association voting to install such |
| 1159 | glass, and such glass and the frame thereof complies with the |
| 1160 | current applicable building codes and is otherwise in good |
| 1161 | repair, the unit owner shall not be required to pay the unit |
| 1162 | owner's pro rata share of the cost of installing code-compliant |
| 1163 | impact glass to the condominium association, notwithstanding s. |
| 1164 | 718.116(9). |
| 1165 | Section 7. Subsection (1) of section 718.116, Florida |
| 1166 | Statutes, is amended to read: |
| 1167 | 718.116 Assessments; liability; lien and priority; |
| 1168 | interest; collection.-- |
| 1169 | (1)(a) A unit owner, regardless of how his or her title |
| 1170 | has been acquired, including by purchase at a foreclosure sale |
| 1171 | or by deed in lieu of foreclosure, is liable for all assessments |
| 1172 | which come due while he or she is the unit owner. Additionally, |
| 1173 | a unit owner is jointly and severally liable with the previous |
| 1174 | owner for all unpaid assessments that came due up to the time of |
| 1175 | transfer of title. This liability is without prejudice to any |
| 1176 | right the owner may have to recover from the previous owner the |
| 1177 | amounts paid by the owner. |
| 1178 | (b) The liability of a first mortgagee or its successor or |
| 1179 | assignees who acquire title to a unit by foreclosure or by deed |
| 1180 | in lieu of foreclosure for the unpaid assessments that became |
| 1181 | due prior to the mortgagee's acquisition of title is limited to |
| 1182 | the lesser of: |
| 1183 | 1. The unit's unpaid common expenses and regular periodic |
| 1184 | assessments which accrued or came due during the 6 months |
| 1185 | immediately preceding the acquisition of title and for which |
| 1186 | payment in full has not been received by the association; or |
| 1187 | 2. One-half of the unit's unpaid common expenses and |
| 1188 | regular periodic assessments which accrued or came due from the |
| 1189 | filing of the foreclosure action through the sale of the unit, |
| 1190 | provided that the mortgagee timely paid in full the payment |
| 1191 | required by paragraph (e) and, at the same time, remitted to the |
| 1192 | association advanced common expenses and regular periodic |
| 1193 | assessments equal to one-half of the total unpaid common |
| 1194 | expenses and regular periodic assessments that came due in that |
| 1195 | time period. Any such advance shall be taxed as a cost in the |
| 1196 | foreclosure action, and the mortgagor shall be personally liable |
| 1197 | to the mortgagee for the value of the payment made to the |
| 1198 | association plus interest at the interest rate provided for in |
| 1199 | the promissory note for advances. One percent of the original |
| 1200 | mortgage debt. The provisions of this paragraph apply only if |
| 1201 | the first mortgagee joined the association as a defendant in the |
| 1202 | foreclosure action. Joinder of the association is not required |
| 1203 | if, on the date the complaint is filed, the association was |
| 1204 | dissolved or did not maintain an office or agent for service of |
| 1205 | process at a location which was known to or reasonably |
| 1206 | discoverable by the mortgagee. |
| 1207 | (c) The person acquiring title shall pay the amount owed |
| 1208 | to the association within 30 days after transfer of title. |
| 1209 | Failure to pay the full amount when due shall entitle the |
| 1210 | association to record a claim of lien against the parcel and |
| 1211 | proceed in the same manner as provided in this section for the |
| 1212 | collection of unpaid assessments. |
| 1213 | (d) With respect to each timeshare unit, each owner of a |
| 1214 | timeshare estate therein is jointly and severally liable for the |
| 1215 | payment of all assessments and other charges levied against or |
| 1216 | with respect to that unit pursuant to the declaration or bylaws, |
| 1217 | except to the extent that the declaration or bylaws may provide |
| 1218 | to the contrary. |
| 1219 | (e) A mortgagee who files a foreclosure case on a mortgage |
| 1220 | secured by a condominium unit shall pay to the association |
| 1221 | within 15 days after the filing of the action all of the |
| 1222 | condominium unit's then unpaid common expenses and regular |
| 1223 | periodic assessments which accrued or came due up to the date of |
| 1224 | the filing of the foreclosure action. The payment shall be taxed |
| 1225 | as a cost in the foreclosure action, and the mortgagor shall be |
| 1226 | personally liable to the mortgagee for the value of the payment |
| 1227 | made to the association plus interest at the interest rate |
| 1228 | provided for in the promissory note for advances. The court |
| 1229 | shall dismiss a foreclosure action on the association's motion |
| 1230 | to dismiss for failure to make such payment and shall award the |
| 1231 | association the costs and reasonable attorney's fees related to |
| 1232 | the motion. Notwithstanding the provisions of paragraph (b), a |
| 1233 | first mortgagee or its successor or assignees who acquire title |
| 1234 | to a condominium unit as a result of the foreclosure of the |
| 1235 | mortgage or by deed in lieu of foreclosure of the mortgage shall |
| 1236 | be exempt from liability for all unpaid assessments attributable |
| 1237 | to the parcel or chargeable to the previous owner which came due |
| 1238 | prior to acquisition of title if the first mortgage was recorded |
| 1239 | prior to April 1, 1992. If, however, the first mortgage was |
| 1240 | recorded on or after April 1, 1992, or on the date the mortgage |
| 1241 | was recorded, the declaration included language incorporating by |
| 1242 | reference future amendments to this chapter, the provisions of |
| 1243 | paragraph (b) shall apply. |
| 1244 | (f) The provisions of this subsection are intended to |
| 1245 | clarify existing law, and shall not be available in any case |
| 1246 | where the unpaid assessments sought to be recovered by the |
| 1247 | association are secured by a lien recorded prior to the |
| 1248 | recording of the mortgage. Notwithstanding the provisions of |
| 1249 | chapter 48, the association shall be a proper party to intervene |
| 1250 | in any foreclosure proceeding to seek equitable relief. |
| 1251 | (g) For purposes of this subsection, the term "successor |
| 1252 | or assignee" as used with respect to a first mortgagee includes |
| 1253 | only a subsequent holder of the first mortgage. |
| 1254 | Section 8. Subsection (5) of section 718.1255, Florida |
| 1255 | Statutes, is amended to read: |
| 1256 | 718.1255 Alternative dispute resolution; voluntary |
| 1257 | mediation; mandatory nonbinding arbitration; legislative |
| 1258 | findings.-- |
| 1259 | (5) DISPUTES INVOLVING ELECTION AND RECALL |
| 1260 | IRREGULARITIES.-- |
| 1261 | (a) Every arbitration petition received by the division |
| 1262 | and required to be filed under this section challenging the |
| 1263 | legality of the election of any director of the board of |
| 1264 | administration, or challenging the failure or refusal of a board |
| 1265 | of administration to conduct a recall election or to recognize |
| 1266 | the results of a recall election, must be handled on an |
| 1267 | expedited basis. |
| 1268 | (b) The provisions of this subsection shall control over |
| 1269 | any conflicting provision of subsection (4). |
| 1270 | (c) An election or recall arbitration hearing shall be |
| 1271 | conducted within 15 days after the filing of the arbitration |
| 1272 | petition. The filing fee for a petition under this subsection is |
| 1273 | $150. Upon receipt of the petition and fee, the division shall |
| 1274 | immediately notify the board of the petition and shall order the |
| 1275 | board and the petitioner to appear at a certain date and time |
| 1276 | for the arbitration hearing. When possible, an arbitration |
| 1277 | hearing shall be conducted in a meeting room within the |
| 1278 | condominium property that is capable of accommodating all |
| 1279 | members desiring to attend. |
| 1280 | (d) The notice of the hearing shall specify that the board |
| 1281 | is to appear with all of the original ballots and other relevant |
| 1282 | election materials. The failure of the board to appear with the |
| 1283 | ballots and other election materials is grounds for removing the |
| 1284 | members of the board from office and ruling in favor of the |
| 1285 | petitioner. |
| 1286 | (e) The arbitrator shall, at the conclusion of the |
| 1287 | hearing, issue an oral ruling that shall go into effect |
| 1288 | immediately regardless of whether a trial de novo is requested. |
| 1289 | The arbitrator shall issue a conforming written opinion within |
| 1290 | 10 days after the hearing. The date of the written opinion shall |
| 1291 | be the date from which the date to file for a trial de novo |
| 1292 | shall be calculated. The prevailing party may seek enforcement |
| 1293 | of the oral ruling in the circuit court. |
| 1294 | (f) Upon receipt of the notice of arbitration under this |
| 1295 | subsection, the director may not make or authorize any |
| 1296 | extraordinary expense except in an emergency. |
| 1297 | (g) The arbitration shall be conducted in the manner |
| 1298 | provided by the division's rules for election and recall |
| 1299 | arbitration disputes. |
| 1300 | Section 9. Subsection (2) of section 718.1265, Florida |
| 1301 | Statutes, is amended to read: |
| 1302 | 718.1265 Association emergency powers.-- |
| 1303 | (2) The special powers authorized under subsection (1) |
| 1304 | shall be limited to that time reasonably necessary to protect |
| 1305 | the health, safety, and welfare of the association and the unit |
| 1306 | owners and the unit owners' family members, tenants, guests, |
| 1307 | agents, or invitees and shall be reasonably necessary to |
| 1308 | mitigate further damage and make emergency repairs. |
| 1309 | Additionally, unless 20 percent or more of the units are made |
| 1310 | uninhabitable by the emergency, the special powers authorized |
| 1311 | under subsection (1) shall only be exercised during the term of |
| 1312 | the Governor's executive order or proclamation declaring the |
| 1313 | state of emergency in the locale in which the condominium is |
| 1314 | located. |
| 1315 | Section 10. Subsection (1) of section 718.501, Florida |
| 1316 | Statutes, is amended, and subsection (3) is added to that |
| 1317 | section, to read: |
| 1318 | 718.501 Authority, responsibility, and duties of Division |
| 1319 | of Florida Condominiums, Timeshares, and Mobile Homes.-- |
| 1320 | (1) The Division of Florida Condominiums, Timeshares, and |
| 1321 | Mobile Homes of the Department of Business and Professional |
| 1322 | Regulation, referred to as the "division" in this part, has the |
| 1323 | power to enforce and ensure compliance with the provisions of |
| 1324 | this chapter and rules relating to the development, |
| 1325 | construction, sale, lease, ownership, operation, and management |
| 1326 | of residential condominium units. In performing its duties, the |
| 1327 | division has complete jurisdiction to investigate complaints and |
| 1328 | enforce compliance with the provisions of this chapter with |
| 1329 | respect to associations that are still under developer control |
| 1330 | and complaints against developers involving improper turnover or |
| 1331 | failure to turnover, pursuant to s. 718.301. However, after |
| 1332 | turnover has occurred, the division shall only have jurisdiction |
| 1333 | to investigate complaints related to financial issues, failure |
| 1334 | to maintain common elements, elections, and unit owner access to |
| 1335 | association records pursuant to s. 718.111(12). |
| 1336 | (a)1. The division may make necessary public or private |
| 1337 | investigations within or outside this state to determine whether |
| 1338 | any person has violated this chapter or any rule or order |
| 1339 | hereunder, to aid in the enforcement of this chapter, or to aid |
| 1340 | in the adoption of rules or forms hereunder. |
| 1341 | 2. The division may submit any official written report, |
| 1342 | worksheet, or other related paper, or a duly certified copy |
| 1343 | thereof, compiled, prepared, drafted, or otherwise made by and |
| 1344 | duly authenticated by a financial examiner or analyst to be |
| 1345 | admitted as competent evidence in any hearing in which the |
| 1346 | financial examiner or analyst is available for cross-examination |
| 1347 | and attests under oath that such documents were prepared as a |
| 1348 | result of an examination or inspection conducted pursuant to |
| 1349 | this chapter. |
| 1350 | (b) The division may require or permit any person to file |
| 1351 | a statement in writing, under oath or otherwise, as the division |
| 1352 | determines, as to the facts and circumstances concerning a |
| 1353 | matter to be investigated. |
| 1354 | (c) For the purpose of any investigation under this |
| 1355 | chapter, the division director or any officer or employee |
| 1356 | designated by the division director may administer oaths or |
| 1357 | affirmations, subpoena witnesses and compel their attendance, |
| 1358 | take evidence, and require the production of any matter which is |
| 1359 | relevant to the investigation, including the existence, |
| 1360 | description, nature, custody, condition, and location of any |
| 1361 | books, documents, or other tangible things and the identity and |
| 1362 | location of persons having knowledge of relevant facts or any |
| 1363 | other matter reasonably calculated to lead to the discovery of |
| 1364 | material evidence. Upon the failure by a person to obey a |
| 1365 | subpoena or to answer questions propounded by the investigating |
| 1366 | officer and upon reasonable notice to all persons affected |
| 1367 | thereby, the division may apply to the circuit court for an |
| 1368 | order compelling compliance. |
| 1369 | (d) Notwithstanding any remedies available to unit owners |
| 1370 | and associations, if the division has reasonable cause to |
| 1371 | believe that a violation of any provision of this chapter or |
| 1372 | related rule has occurred, the division may institute |
| 1373 | enforcement proceedings in its own name against any developer, |
| 1374 | association, officer, or member of the board of administration, |
| 1375 | or its assignees or agents, as follows: |
| 1376 | 1. The division may permit a person whose conduct or |
| 1377 | actions may be under investigation to waive formal proceedings |
| 1378 | and enter into a consent proceeding whereby orders, rules, or |
| 1379 | letters of censure or warning, whether formal or informal, may |
| 1380 | be entered against the person. |
| 1381 | 2. The division may issue an order requiring the |
| 1382 | developer, association, developer-designated officer, or |
| 1383 | developer-designated member of the board of administration, |
| 1384 | developer-designated assignees or agents, community association |
| 1385 | manager, or community association management firm to cease and |
| 1386 | desist from the unlawful practice and take such affirmative |
| 1387 | action as in the judgment of the division will carry out the |
| 1388 | purposes of this chapter. If the division finds that a |
| 1389 | developer, association, officer, or member of the board of |
| 1390 | administration, or its assignees or agents, is violating or is |
| 1391 | about to violate any provision of this chapter, any rule adopted |
| 1392 | or order issued by the division, or any written agreement |
| 1393 | entered into with the division, and presents an immediate danger |
| 1394 | to the public requiring an immediate final order, it may issue |
| 1395 | an emergency cease and desist order reciting with particularity |
| 1396 | the facts underlying such findings. The emergency cease and |
| 1397 | desist order is effective for 90 days. If the division begins |
| 1398 | nonemergency cease and desist proceedings, the emergency cease |
| 1399 | and desist order remains effective until the conclusion of the |
| 1400 | proceedings under ss. 120.569 and 120.57. |
| 1401 | 3. If a developer fails to pay any restitution determined |
| 1402 | by the division to be owed, plus any accrued interest at the |
| 1403 | highest rate permitted by law, within 30 days after expiration |
| 1404 | of any appellate time period of a final order requiring payment |
| 1405 | of restitution or the conclusion of any appeal thereof, |
| 1406 | whichever is later, the division shall bring an action in |
| 1407 | circuit or county court on behalf of any association, class of |
| 1408 | unit owners, lessees, or purchasers for restitution, declaratory |
| 1409 | relief, injunctive relief, or any other available remedy. The |
| 1410 | division may also temporarily revoke its acceptance of the |
| 1411 | filing for the developer to which the restitution relates until |
| 1412 | payment of restitution is made. |
| 1413 | 4. The division may petition the court for the appointment |
| 1414 | of a receiver or conservator. If appointed, the receiver or |
| 1415 | conservator may take action to implement the court order to |
| 1416 | ensure the performance of the order and to remedy any breach |
| 1417 | thereof. In addition to all other means provided by law for the |
| 1418 | enforcement of an injunction or temporary restraining order, the |
| 1419 | circuit court may impound or sequester the property of a party |
| 1420 | defendant, including books, papers, documents, and related |
| 1421 | records, and allow the examination and use of the property by |
| 1422 | the division and a court-appointed receiver or conservator. |
| 1423 | 5. The division may apply to the circuit court for an |
| 1424 | order of restitution whereby the defendant in an action brought |
| 1425 | pursuant to subparagraph 4. shall be ordered to make restitution |
| 1426 | of those sums shown by the division to have been obtained by the |
| 1427 | defendant in violation of this chapter. Such restitution shall, |
| 1428 | at the option of the court, be payable to the conservator or |
| 1429 | receiver appointed pursuant to subparagraph 4. or directly to |
| 1430 | the persons whose funds or assets were obtained in violation of |
| 1431 | this chapter. |
| 1432 | 6. The division may impose a civil penalty against a |
| 1433 | developer or association, or its assignee or agent, for any |
| 1434 | violation of this chapter or a rule adopted under this chapter. |
| 1435 | The division may impose a civil penalty individually against any |
| 1436 | officer or board member who willfully and knowingly violates a |
| 1437 | provision of this chapter, adopted rule, or a final order of the |
| 1438 | division; may order the removal of such individual as an officer |
| 1439 | or from the board of administration or as an officer of the |
| 1440 | association; and may prohibit such individual from serving as an |
| 1441 | officer or on the board of a community association for a period |
| 1442 | of time. The term "willfully and knowingly" means that the |
| 1443 | division informed the officer or board member that his or her |
| 1444 | action or intended action violates this chapter, a rule adopted |
| 1445 | under this chapter, or a final order of the division and that |
| 1446 | the officer or board member refused to comply with the |
| 1447 | requirements of this chapter, a rule adopted under this chapter, |
| 1448 | or a final order of the division. The division, prior to |
| 1449 | initiating formal agency action under chapter 120, shall afford |
| 1450 | the officer or board member an opportunity to voluntarily comply |
| 1451 | with this chapter, a rule adopted under this chapter, or a final |
| 1452 | order of the division. An officer or board member who complies |
| 1453 | within 10 days is not subject to a civil penalty. A penalty may |
| 1454 | be imposed on the basis of each day of continuing violation, but |
| 1455 | in no event shall the penalty for any offense exceed $5,000. By |
| 1456 | January 1, 1998, the division shall adopt, by rule, penalty |
| 1457 | guidelines applicable to possible violations or to categories of |
| 1458 | violations of this chapter or rules adopted by the division. The |
| 1459 | guidelines must specify a meaningful range of civil penalties |
| 1460 | for each such violation of the statute and rules and must be |
| 1461 | based upon the harm caused by the violation, the repetition of |
| 1462 | the violation, and upon such other factors deemed relevant by |
| 1463 | the division. For example, the division may consider whether the |
| 1464 | violations were committed by a developer or owner-controlled |
| 1465 | association, the size of the association, and other factors. The |
| 1466 | guidelines must designate the possible mitigating or aggravating |
| 1467 | circumstances that justify a departure from the range of |
| 1468 | penalties provided by the rules. It is the legislative intent |
| 1469 | that minor violations be distinguished from those which endanger |
| 1470 | the health, safety, or welfare of the condominium residents or |
| 1471 | other persons and that such guidelines provide reasonable and |
| 1472 | meaningful notice to the public of likely penalties that may be |
| 1473 | imposed for proscribed conduct. This subsection does not limit |
| 1474 | the ability of the division to informally dispose of |
| 1475 | administrative actions or complaints by stipulation, agreed |
| 1476 | settlement, or consent order. All amounts collected shall be |
| 1477 | deposited with the Chief Financial Officer to the credit of the |
| 1478 | Division of Florida Condominiums, Timeshares, and Mobile Homes |
| 1479 | Trust Fund. If a developer fails to pay the civil penalty and |
| 1480 | the amount deemed to be owed to the association, the division |
| 1481 | shall issue an order directing that such developer cease and |
| 1482 | desist from further operation until such time as the civil |
| 1483 | penalty is paid or may pursue enforcement of the penalty in a |
| 1484 | court of competent jurisdiction. If an association fails to pay |
| 1485 | the civil penalty, the division shall pursue enforcement in a |
| 1486 | court of competent jurisdiction, and the order imposing the |
| 1487 | civil penalty or the cease and desist order will not become |
| 1488 | effective until 20 days after the date of such order. Any action |
| 1489 | commenced by the division shall be brought in the county in |
| 1490 | which the division has its executive offices or in the county |
| 1491 | where the violation occurred. |
| 1492 | 7. If a unit owner presents the division with proof that |
| 1493 | the unit owner has requested access to official records in |
| 1494 | writing by certified mail, and that after 10 days the unit owner |
| 1495 | again made the same request for access to official records in |
| 1496 | writing by certified mail, and that more than 10 days has |
| 1497 | elapsed since the second request and the association has still |
| 1498 | failed or refused to provide access to official records as |
| 1499 | required by this chapter, the division shall issue a subpoena |
| 1500 | requiring production of the requested records where the records |
| 1501 | are kept pursuant to s. 718.112. |
| 1502 | 8. In addition to subparagraph 6., the division may seek |
| 1503 | the imposition of a civil penalty through the circuit court for |
| 1504 | any violation for which the division may issue a notice to show |
| 1505 | cause under paragraph (r). The civil penalty shall be at least |
| 1506 | $500 but no more than $5,000 for each violation. The court may |
| 1507 | also award to the prevailing party court costs and reasonable |
| 1508 | attorney's fees and, if the division prevails, may also award |
| 1509 | reasonable costs of investigation. |
| 1510 | 9. Notwithstanding subparagraph 6., when the division |
| 1511 | finds that an officer or director has intentionally falsified |
| 1512 | association records with the intent to conceal material facts |
| 1513 | from the division, the board, or unit owners, the division shall |
| 1514 | prohibit the officer or director from acting as an officer or |
| 1515 | director of any condominium, cooperative, or homeowners' |
| 1516 | association for at least 1 year. |
| 1517 | 10. When the division finds that any person has derived an |
| 1518 | improper personal benefit from a condominium association, the |
| 1519 | division shall order the person to pay restitution to the |
| 1520 | association and shall order the person to pay to the division |
| 1521 | the costs of investigation and prosecution. |
| 1522 | (e) The division may prepare and disseminate a prospectus |
| 1523 | and other information to assist prospective owners, purchasers, |
| 1524 | lessees, and developers of residential condominiums in assessing |
| 1525 | the rights, privileges, and duties pertaining thereto. |
| 1526 | (f) The division has authority to adopt rules pursuant to |
| 1527 | ss. 120.536(1) and 120.54 to implement and enforce the |
| 1528 | provisions of this chapter. |
| 1529 | (g) The division shall establish procedures for providing |
| 1530 | notice to an association and the developer during the period |
| 1531 | where the developer controls the association when the division |
| 1532 | is considering the issuance of a declaratory statement with |
| 1533 | respect to the declaration of condominium or any related |
| 1534 | document governing in such condominium community. |
| 1535 | (h) The division shall furnish each association which pays |
| 1536 | the fees required by paragraph (2)(a) a copy of this act, |
| 1537 | subsequent changes to this act on an annual basis, an amended |
| 1538 | version of this act as it becomes available from the Secretary |
| 1539 | of State's office on a biennial basis, and the rules adopted |
| 1540 | thereto on an annual basis. |
| 1541 | (i) The division shall annually provide each association |
| 1542 | with a summary of declaratory statements and formal legal |
| 1543 | opinions relating to the operations of condominiums which were |
| 1544 | rendered by the division during the previous year. |
| 1545 | (j) The division shall provide training and educational |
| 1546 | programs for condominium association board members and unit |
| 1547 | owners. The training may, in the division's discretion, include |
| 1548 | web-based electronic media, and live training and seminars in |
| 1549 | various locations throughout the state. The division shall have |
| 1550 | the authority to review and approve education and training |
| 1551 | programs for board members and unit owners offered by providers |
| 1552 | and shall maintain a current list of approved programs and |
| 1553 | providers and shall make such list available to board members |
| 1554 | and unit owners in a reasonable and cost-effective manner. |
| 1555 | (k) The division shall maintain a toll-free telephone |
| 1556 | number accessible to condominium unit owners. |
| 1557 | (l) The division shall develop a program to certify both |
| 1558 | volunteer and paid mediators to provide mediation of condominium |
| 1559 | disputes. The division shall provide, upon request, a list of |
| 1560 | such mediators to any association, unit owner, or other |
| 1561 | participant in arbitration proceedings under s. 718.1255 |
| 1562 | requesting a copy of the list. The division shall include on the |
| 1563 | list of volunteer mediators only the names of persons who have |
| 1564 | received at least 20 hours of training in mediation techniques |
| 1565 | or who have mediated at least 20 disputes. In order to become |
| 1566 | initially certified by the division, paid mediators must be |
| 1567 | certified by the Supreme Court to mediate court cases in county |
| 1568 | or circuit courts. However, the division may adopt, by rule, |
| 1569 | additional factors for the certification of paid mediators, |
| 1570 | which factors must be related to experience, education, or |
| 1571 | background. Any person initially certified as a paid mediator by |
| 1572 | the division must, in order to continue to be certified, comply |
| 1573 | with the factors or requirements imposed by rules adopted by the |
| 1574 | division. |
| 1575 | (m) When a complaint is made, the division shall conduct |
| 1576 | its inquiry with due regard to the interests of the affected |
| 1577 | parties. Within 30 days after receipt of a complaint, the |
| 1578 | division shall acknowledge the complaint in writing and notify |
| 1579 | the complainant whether the complaint is within the jurisdiction |
| 1580 | of the division and whether additional information is needed by |
| 1581 | the division from the complainant. The division shall conduct |
| 1582 | its investigation and shall, within 90 days after receipt of the |
| 1583 | original complaint or of timely requested additional |
| 1584 | information, take action upon the complaint. However, the |
| 1585 | failure to complete the investigation within 90 days does not |
| 1586 | prevent the division from continuing the investigation, |
| 1587 | accepting or considering evidence obtained or received after 90 |
| 1588 | days, or taking administrative action if reasonable cause exists |
| 1589 | to believe that a violation of this chapter or a rule of the |
| 1590 | division has occurred. If an investigation is not completed |
| 1591 | within the time limits established in this paragraph, the |
| 1592 | division shall, on a monthly basis, notify the complainant in |
| 1593 | writing of the status of the investigation. When reporting its |
| 1594 | action to the complainant, the division shall inform the |
| 1595 | complainant of any right to a hearing pursuant to ss. 120.569 |
| 1596 | and 120.57. |
| 1597 | (n) Condominium association directors, officers, and |
| 1598 | employees; condominium developers; community association |
| 1599 | managers; and community association management firms have an |
| 1600 | ongoing duty to reasonably cooperate with the division in any |
| 1601 | investigation pursuant to this section. The division shall refer |
| 1602 | to local law enforcement authorities any person whom the |
| 1603 | division believes has altered, destroyed, concealed, or removed |
| 1604 | any record, document, or thing required to be kept or maintained |
| 1605 | by this chapter with the purpose to impair its verity or |
| 1606 | availability in the department's investigation. |
| 1607 | (o) The division may: |
| 1608 | 1. Contract with agencies in this state or other |
| 1609 | jurisdictions to perform investigative functions; or |
| 1610 | 2. Accept grants-in-aid from any source. |
| 1611 | (p) The division shall cooperate with similar agencies in |
| 1612 | other jurisdictions to establish uniform filing procedures and |
| 1613 | forms, public offering statements, advertising standards, and |
| 1614 | rules and common administrative practices. |
| 1615 | (q) The division shall consider notice to a developer to |
| 1616 | be complete when it is delivered to the developer's address |
| 1617 | currently on file with the division. |
| 1618 | (r) In addition to its enforcement authority, the division |
| 1619 | may issue a notice to show cause, which shall provide for a |
| 1620 | hearing, upon written request, in accordance with chapter 120. |
| 1621 | (s) The division shall submit to the Governor, the |
| 1622 | President of the Senate, the Speaker of the House of |
| 1623 | Representatives, and the chairs of the legislative |
| 1624 | appropriations committees an annual report that includes, but |
| 1625 | need not be limited to, the number of training programs provided |
| 1626 | for condominium association board members and unit owners, the |
| 1627 | number of complaints received by type, the number and percent of |
| 1628 | complaints acknowledged in writing within 30 days and the number |
| 1629 | and percent of investigations acted upon within 90 days in |
| 1630 | accordance with paragraph (m), and the number of investigations |
| 1631 | exceeding the 90-day requirement. The annual report shall also |
| 1632 | include an evaluation of the division's core business processes |
| 1633 | and make recommendations for improvements, including statutory |
| 1634 | changes. The report shall be submitted by September 30 following |
| 1635 | the end of the fiscal year. |
| 1636 | (3) The division shall create a booklet of the laws that a |
| 1637 | director must read as required by s. 718.112(2)(p)4. The booklet |
| 1638 | shall be available for free download from the division's |
| 1639 | website. The division may provide a printed version to directors |
| 1640 | for free or for a cost not to exceed the division's actual cost |
| 1641 | of production and mailing. |
| 1642 | Section 11. Subsection (9) of section 718.5012, Florida |
| 1643 | Statutes, is amended to read: |
| 1644 | 718.5012 Ombudsman; powers and duties.--The ombudsman |
| 1645 | shall have the powers that are necessary to carry out the duties |
| 1646 | of his or her office, including the following specific powers: |
| 1647 | (9) To assist with the resolution of disputes between unit |
| 1648 | owners and the association or between unit owners when the |
| 1649 | dispute is not within the jurisdiction of the division to |
| 1650 | resolve or the division has declined to resolve a dispute. |
| 1651 | Section 12. Subsection (1) of section 718.50151, Florida |
| 1652 | Statutes, is amended to read: |
| 1653 | 718.50151 Community Association Living Study Council; |
| 1654 | membership functions.-- |
| 1655 | (1) There is created the Community Association Living |
| 1656 | Study Council. The council shall consist of seven appointed |
| 1657 | members. Two members shall be appointed by the President of the |
| 1658 | Senate, two members shall be appointed by the Speaker of the |
| 1659 | House of Representatives, and three members shall be appointed |
| 1660 | by the Governor. One member that is appointed by the Governor |
| 1661 | may represent timeshare condominiums. The council shall be |
| 1662 | created as of October 1 every 5 years, commencing July October |
| 1663 | 1, 2009 2008, and shall exist for a 6-month term. The director |
| 1664 | of the division shall appoint an ex officio nonvoting member. |
| 1665 | The Legislature intends that the persons appointed represent a |
| 1666 | cross-section of persons experienced interested in community |
| 1667 | association issues. No member of the council may be a registered |
| 1668 | lobbyist, partner or shareholder in a firm providing lobbying |
| 1669 | services, or principal or employee of a lobbying firm who is |
| 1670 | provided compensation by community associations. The council |
| 1671 | shall be located within the division for administrative |
| 1672 | purposes. Members of the council shall serve without |
| 1673 | compensation but are entitled to receive per diem and travel |
| 1674 | expenses pursuant to s. 112.061 while on official business. The |
| 1675 | initial members of the council shall be those persons formerly |
| 1676 | appointed to the Community Association Living Study Council who |
| 1677 | are otherwise qualified to serve on the Community Association |
| 1678 | Study Council. |
| 1679 | Section 13. Subsections (11) and (26) of section 719.103, |
| 1680 | Florida Statutes, are amended to read: |
| 1681 | 719.103 Definitions.--As used in this chapter: |
| 1682 | (11) "Conspicuous type" means bold type in capital letters |
| 1683 | no smaller than the largest type, exclusive of headings, on the |
| 1684 | page on which it appears and, in all cases, at least 10-point |
| 1685 | type. When conspicuous type is required, it must be separated on |
| 1686 | all sides from other type and print. Conspicuous type may be |
| 1687 | used in a contract for purchase and sale of a unit, a lease of a |
| 1688 | unit for more than 5 years, or a prospectus or offering circular |
| 1689 | only when required by law. |
| 1690 | (26) "Unit owner," or "owner of a unit," or "shareholder" |
| 1691 | means the person holding a share in the cooperative association |
| 1692 | and a lease or other muniment of title or possession of a unit |
| 1693 | that is granted by the association as the owner of the |
| 1694 | cooperative property. |
| 1695 | Section 14. Section 719.104, Florida Statutes, is amended |
| 1696 | to read: |
| 1697 | 719.104 The association Cooperatives; access to units; |
| 1698 | records; financial reports; assessments; purchase of leases.-- |
| 1699 | (1) RIGHT OF ACCESS TO UNITS.--The association has the |
| 1700 | irrevocable right of access to each unit from time to time |
| 1701 | during reasonable hours when necessary for the maintenance, |
| 1702 | repair, or replacement of any structural components of the |
| 1703 | building or of any mechanical, electrical, or plumbing elements |
| 1704 | necessary to prevent damage to the building or to another unit. |
| 1705 | Except in cases of emergency, the association must give the |
| 1706 | shareholder advance written notice of not less than 24 hours of |
| 1707 | its intent to access the unit and such access must be by two |
| 1708 | persons, one of whom must be a member of the board of |
| 1709 | administration or a manager or employee of the association and |
| 1710 | one of whom must be an authorized representative of the |
| 1711 | association. The identity of the authorized representative |
| 1712 | seeking access to the unit shall be provided to the unit owner |
| 1713 | prior to entering the unit. |
| 1714 | (2) OFFICIAL RECORDS.-- |
| 1715 | (a) From the inception of the association, the association |
| 1716 | shall maintain a copy of each of the following, where |
| 1717 | applicable, which shall constitute the official records of the |
| 1718 | association: |
| 1719 | 1. The plans, permits, warranties, and other items |
| 1720 | provided by the developer pursuant to s. 719.301(4). |
| 1721 | 2. A photocopy of the cooperative documents. |
| 1722 | 3. A copy of the current rules of the association. |
| 1723 | 4. A book or books containing the minutes of all meetings |
| 1724 | of the association, of the board of directors, and of the |
| 1725 | shareholders unit owners, which minutes shall be retained for a |
| 1726 | period of not less than 7 years. |
| 1727 | 5. A current roster of all shareholders unit owners and |
| 1728 | their mailing addresses, unit identifications, voting |
| 1729 | certifications, and, if known, telephone numbers. The |
| 1730 | association shall also maintain the electronic mailing addresses |
| 1731 | and the numbers designated by shareholders unit owners for |
| 1732 | receiving notice sent by electronic transmission of those |
| 1733 | shareholders unit owners consenting to receive notice by |
| 1734 | electronic transmission. The electronic mailing addresses and |
| 1735 | numbers provided by shareholders unit owners to receive notice |
| 1736 | by electronic transmission shall be removed from association |
| 1737 | records when consent to receive notice by electronic |
| 1738 | transmission is revoked. However, the association is not liable |
| 1739 | for an erroneous disclosure of the electronic mail address or |
| 1740 | the number for receiving electronic transmission of notices. |
| 1741 | 6. All current insurance policies of the association. |
| 1742 | 7. A current copy of any management agreement, lease, or |
| 1743 | other contract to which the association is a party or under |
| 1744 | which the association or the shareholders unit owners have an |
| 1745 | obligation or responsibility. |
| 1746 | 8. Bills of sale or transfer for all property owned by the |
| 1747 | association. |
| 1748 | 9. Accounting records for the association and separate |
| 1749 | accounting records for each unit it operates, according to good |
| 1750 | accounting practices. Any person who knowingly or intentionally |
| 1751 | defaces or destroys accounting records required to be maintained |
| 1752 | by this chapter, or who knowingly or intentionally fails to |
| 1753 | create or maintain accounting records required to be maintained |
| 1754 | by this chapter, is personally subject to a civil penalty |
| 1755 | pursuant to s. 719.501(1)(d). All accounting records shall be |
| 1756 | maintained for a period of not less than 7 years. The accounting |
| 1757 | records shall include, but not be limited to: |
| 1758 | a. Accurate, itemized, and detailed records of all |
| 1759 | receipts and expenditures. |
| 1760 | b. A current account and a monthly, bimonthly, or |
| 1761 | quarterly statement of the account for each unit designating the |
| 1762 | name of the shareholder unit owner, the due date and amount of |
| 1763 | each assessment, the amount paid upon the account, and the |
| 1764 | balance due. |
| 1765 | c. All audits, reviews, accounting statements, and |
| 1766 | financial reports of the association. |
| 1767 | d. All contracts for work to be performed. Bids for work |
| 1768 | to be performed shall also be considered official records and |
| 1769 | shall be maintained for a period of 1 year. |
| 1770 | 10. Ballots, sign-in sheets, voting proxies, and all other |
| 1771 | papers relating to voting by shareholders unit owners, which |
| 1772 | shall be maintained for a period of 1 year after the date of the |
| 1773 | election, vote, or meeting to which the document relates. |
| 1774 | 11. All rental records where the association is acting as |
| 1775 | agent for the rental of units. |
| 1776 | 12. A copy of the current question and answer sheet as |
| 1777 | described in s. 719.504. |
| 1778 | 13. All other records of the association not specifically |
| 1779 | included in the foregoing which are related to the operation of |
| 1780 | the association. |
| 1781 | (b) The official records of the association shall be |
| 1782 | maintained within the state for at least 7 years. The records of |
| 1783 | the association shall be made available to a shareholder unit |
| 1784 | owner within 5 working days after receipt of written request by |
| 1785 | the board or its designee. This paragraph may be complied with |
| 1786 | by having a copy of the official records available for |
| 1787 | inspection or copying on the cooperative property. |
| 1788 | (c) The official records of the association shall be open |
| 1789 | to inspection by any association member or the authorized |
| 1790 | representative of such member at all reasonable times. Failure |
| 1791 | to permit inspection of the association records as provided |
| 1792 | herein entitles any person prevailing in an enforcement action |
| 1793 | to recover reasonable attorney's fees from the person in control |
| 1794 | of the records who, directly or indirectly, knowingly denies |
| 1795 | access to the records for inspection. The right to inspect the |
| 1796 | records includes the right to make or obtain copies, at the |
| 1797 | reasonable expense, if any, of the association member. The |
| 1798 | association may adopt reasonable rules regarding the frequency, |
| 1799 | time, location, notice, and manner of record inspections and |
| 1800 | copying. The failure of an association to provide the records |
| 1801 | within 10 working days after receipt of a written request |
| 1802 | creates a rebuttable presumption that the association willfully |
| 1803 | failed to comply with this paragraph. A shareholder unit owner |
| 1804 | who is denied access to official records is entitled to the |
| 1805 | actual damages or minimum damages for the association's willful |
| 1806 | failure to comply with this paragraph. The minimum damages shall |
| 1807 | be $50 per calendar day up to 10 days, the calculation to begin |
| 1808 | on the 11th day after receipt of the written request. Any person |
| 1809 | who knowingly or intentionally defaces or destroys records that |
| 1810 | are required by this chapter, or knowingly or intentionally |
| 1811 | fails to create or maintain records that are required by this |
| 1812 | chapter, is personally subject to a civil penalty pursuant to s. |
| 1813 | 719.501(1)(d). The association shall maintain an adequate number |
| 1814 | of copies of the declaration, articles of incorporation, bylaws, |
| 1815 | and rules, and all amendments to each of the foregoing, as well |
| 1816 | as the question and answer sheet provided for in s. 719.504, on |
| 1817 | the cooperative property to ensure their availability to |
| 1818 | shareholders unit owners and prospective purchasers, and may |
| 1819 | charge its actual costs for preparing and furnishing these |
| 1820 | documents to those requesting the same. Notwithstanding the |
| 1821 | provisions of this paragraph, the following records shall not be |
| 1822 | accessible to shareholders unit owners: |
| 1823 | 1. A record that was prepared by an association attorney |
| 1824 | or prepared at the attorney's express direction; that reflects a |
| 1825 | mental impression, conclusion, litigation strategy, or legal |
| 1826 | theory of the attorney or the association; or that was prepared |
| 1827 | exclusively for civil or criminal litigation or for adversarial |
| 1828 | administrative proceedings or in anticipation of imminent civil |
| 1829 | or criminal litigation or imminent adversarial administrative |
| 1830 | proceedings, until the conclusion of the litigation or |
| 1831 | adversarial administrative proceedings. |
| 1832 | 2. Information obtained by an association in connection |
| 1833 | with the approval of the lease, sale, or other transfer of a |
| 1834 | unit. |
| 1835 | 3. Medical records of shareholders unit owners. |
| 1836 | 4. Social security numbers, driver's license numbers, |
| 1837 | credit card numbers, and other personal identifying information |
| 1838 | of any person. |
| 1839 | (d) The association or its authorized agent shall not be |
| 1840 | required to provide a prospective purchaser or lienholder with |
| 1841 | information about the cooperative or association other than the |
| 1842 | information or documents required by this chapter to be made |
| 1843 | available or disclosed. The association or its authorized agent |
| 1844 | shall be entitled to charge a reasonable fee to the prospective |
| 1845 | purchaser, lienholder, or the current shareholder unit owner for |
| 1846 | its time in providing good faith responses to requests for |
| 1847 | information by or on behalf of a prospective purchaser or |
| 1848 | lienholder, other than that required by law, provided that such |
| 1849 | fee shall not exceed $150 plus the reasonable cost of |
| 1850 | photocopying and any attorney's fees incurred by the association |
| 1851 | in connection with the association's response. An association |
| 1852 | and its authorized agent are not liable for providing such |
| 1853 | information in good faith pursuant to a written request if the |
| 1854 | person providing the information includes a written statement in |
| 1855 | substantially the following form: "The responses herein are made |
| 1856 | in good faith and to the best of my ability as to their |
| 1857 | accuracy." |
| 1858 | (3) INSURANCE.--In order to protect the safety, health, |
| 1859 | and welfare of the people of the state and to ensure consistency |
| 1860 | in the provision of insurance coverage to cooperatives and their |
| 1861 | shareholders, this subsection applies to every residential |
| 1862 | cooperative in the state, regardless of the date of its |
| 1863 | cooperative documents. It is the intent of the Legislature to |
| 1864 | encourage lower or stable insurance premiums for associations |
| 1865 | described in this subsection. |
| 1866 | (a) Adequate property insurance, regardless of any |
| 1867 | requirement in the cooperative documents for coverage by the |
| 1868 | association for full insurable value, replacement cost, or |
| 1869 | similar coverage, shall be based upon the replacement cost of |
| 1870 | the property to be insured as determined by an independent |
| 1871 | insurance appraisal or update of a prior appraisal. The full |
| 1872 | insurable value shall be determined at least once every 36 |
| 1873 | months. |
| 1874 | 1. An association or group of associations may provide |
| 1875 | adequate property insurance through a self-insurance fund that |
| 1876 | complies with the requirements of ss. 624.460-624.488. |
| 1877 | 2. The association may also provide adequate property |
| 1878 | insurance coverage for a group of no fewer than three |
| 1879 | communities created and operating under this chapter, chapter |
| 1880 | 718, chapter 720, or chapter 721 by obtaining and maintaining |
| 1881 | for such communities insurance coverage sufficient to cover an |
| 1882 | amount equal to the probable maximum loss for the communities |
| 1883 | for a 250-year windstorm event. Such probable maximum loss must |
| 1884 | be determined through the use of a competent model that has been |
| 1885 | accepted by the Florida Commission on Hurricane Loss Projection |
| 1886 | Methodology. No policy or program providing such coverage shall |
| 1887 | be issued or renewed after July 1, 2009, unless it has been |
| 1888 | reviewed and approved by the Office of Insurance Regulation. The |
| 1889 | review and approval shall include approval of the policy and |
| 1890 | related forms pursuant to ss. 627.410 and 627.411, approval of |
| 1891 | the rates pursuant to s. 627.062, a determination that the loss |
| 1892 | model approved by the commission was accurately and |
| 1893 | appropriately applied to the insured structures to determine the |
| 1894 | 250-year probable maximum loss, and a determination that |
| 1895 | complete and accurate disclosure of all material provisions is |
| 1896 | provided to cooperative shareholders prior to execution of the |
| 1897 | agreement by a cooperative association. |
| 1898 | 3. When determining the adequate amount of property |
| 1899 | insurance coverage, the association may consider deductibles as |
| 1900 | determined by this subsection. |
| 1901 | (b) If an association is a developer-controlled |
| 1902 | association, the association shall exercise its best efforts to |
| 1903 | obtain and maintain insurance as described in paragraph (a). |
| 1904 | Failure to obtain and maintain adequate property insurance |
| 1905 | during any period of developer control constitutes a breach of |
| 1906 | fiduciary responsibility by the developer-appointed members of |
| 1907 | the board of directors of the association, unless the members |
| 1908 | can show that despite such failure they have made their best |
| 1909 | efforts to maintain the required coverage. |
| 1910 | (c) Policies may include deductibles as determined by the |
| 1911 | board. |
| 1912 | 1. The deductibles shall be consistent with industry |
| 1913 | standards and prevailing practice for communities of similar |
| 1914 | size and age, and having similar construction and facilities in |
| 1915 | the locale where the cooperative property is situated. |
| 1916 | 2. The deductibles may be based upon available funds, |
| 1917 | including reserve accounts, or predetermined assessment |
| 1918 | authority at the time the insurance is obtained. |
| 1919 | 3. The board shall establish the amount of deductibles |
| 1920 | based upon the level of available funds and predetermined |
| 1921 | assessment authority at a meeting of the board. Such meeting |
| 1922 | shall be open to all shareholders in the manner set forth in s. |
| 1923 | 719.106(1)(e). The notice of such meeting must state the |
| 1924 | proposed deductible and the available funds and the assessment |
| 1925 | authority relied upon by the board and estimate any potential |
| 1926 | assessment amount against each unit, if any. The meeting |
| 1927 | described in this subparagraph may be held in conjunction with a |
| 1928 | meeting to consider the proposed budget or an amendment thereto. |
| 1929 | (d) An association controlled by shareholders operating as |
| 1930 | a residential cooperative shall use its best efforts to obtain |
| 1931 | and maintain adequate insurance to protect the association, the |
| 1932 | association property, the common elements, and the cooperative |
| 1933 | property that is required to be insured by the association |
| 1934 | pursuant to this subsection. |
| 1935 | (e) An association may also obtain and maintain liability |
| 1936 | insurance for directors and officers, insurance for the benefit |
| 1937 | of association employees, and flood insurance for common |
| 1938 | elements, association property, and units. |
| 1939 | (f) Every property insurance policy issued or renewed on |
| 1940 | or after July 1, 2009, for the purpose of protecting the |
| 1941 | cooperative shall provide primary coverage for: |
| 1942 | 1. All portions of the cooperative property as originally |
| 1943 | installed or replacement of like kind and quality, in accordance |
| 1944 | with the original plans and specifications. |
| 1945 | 2. All alterations or additions made to the cooperative |
| 1946 | property or association property pursuant to s. 719.113(2). |
| 1947 | |
| 1948 | The coverage shall exclude all personal property within the |
| 1949 | unit, and floor, wall, and ceiling coverings, electrical |
| 1950 | fixtures, appliances, water heaters, water filters, built-in |
| 1951 | cabinets and countertops, air-conditioning and heating equipment |
| 1952 | that serves a single unit, and window treatments, including |
| 1953 | curtains, drapes, blinds, hardware, and similar window treatment |
| 1954 | components, or replacements of any of the foregoing. Such |
| 1955 | property and insurance therefore shall be the responsibility of |
| 1956 | the shareholder. |
| 1957 | (g) A cooperative shareholders policy issued after July 1, |
| 1958 | 2009, shall conform to the requirements of s. 627.714. |
| 1959 | 1. All reconstruction work after a casualty loss shall be |
| 1960 | undertaken by the association except as otherwise authorized in |
| 1961 | this section. A shareholder may undertake reconstruction work on |
| 1962 | portions of the unit with the prior written consent of the board |
| 1963 | of directors. However, such work may be conditioned upon the |
| 1964 | approval of the repair methods, the qualifications of the |
| 1965 | proposed contractor, or the contract that is used for that |
| 1966 | purpose. A shareholder shall obtain all required governmental |
| 1967 | permits and approvals prior to commencing reconstruction. |
| 1968 | 2. Shareholders are responsible for the cost of |
| 1969 | reconstruction of any portions of the cooperative property for |
| 1970 | which the association does not carry property insurance, and any |
| 1971 | such reconstruction work undertaken by the association shall be |
| 1972 | chargeable to the shareholder and enforceable as an assessment |
| 1973 | pursuant to s. 719.108. |
| 1974 | (h) The association shall maintain insurance or fidelity |
| 1975 | bonding of all persons who control or disburse funds of the |
| 1976 | association. The insurance policy or fidelity bond must cover |
| 1977 | the maximum funds that will be in the custody of the association |
| 1978 | or its management agent at any one time. As used in this |
| 1979 | paragraph, the term "persons who control or disburse funds of |
| 1980 | the association" includes, but is not limited to, those |
| 1981 | individuals authorized to sign checks on behalf of the |
| 1982 | association, and the president, secretary, and treasurer of the |
| 1983 | association. The association shall bear the cost of any such |
| 1984 | bonding. |
| 1985 | (i) The association may amend the cooperative documents |
| 1986 | without regard to any requirement for approval by mortgagees of |
| 1987 | amendments affecting insurance requirements for the purpose of |
| 1988 | conforming the cooperative documents to the coverage |
| 1989 | requirements of this subsection. |
| 1990 | (j) Any portion of the cooperative property required to be |
| 1991 | insured by the association against casualty loss pursuant to |
| 1992 | paragraph (f) which is damaged by casualty shall be |
| 1993 | reconstructed, repaired, or replaced as necessary by the |
| 1994 | association as a common expense. All property insurance |
| 1995 | deductibles, uninsured losses, and other damages in excess of |
| 1996 | property insurance coverage under the property insurance |
| 1997 | policies maintained by the association are a common expense of |
| 1998 | the cooperative, except that: |
| 1999 | 1. A shareholder is responsible for the costs of repair or |
| 2000 | replacement of any portion of the cooperative property not paid |
| 2001 | by insurance proceeds, if such damage is caused by intentional |
| 2002 | conduct, negligence, or failure to comply with the terms of the |
| 2003 | declaration or the rules of the association by a shareholder, |
| 2004 | the members of his or her family, unit occupants, tenants, |
| 2005 | guests, or invitees. |
| 2006 | 2. The provisions of subparagraph 1. regarding the |
| 2007 | financial responsibility of a shareholder for the costs of |
| 2008 | repairing or replacing other portions of the cooperative |
| 2009 | property also apply to the costs of repair or replacement of |
| 2010 | personal property of other shareholders or the association, as |
| 2011 | well as other property, whether real or personal, which the |
| 2012 | shareholders are required to insure under paragraph (g). |
| 2013 | 3. To the extent the cost of repair or reconstruction for |
| 2014 | which the shareholder is responsible under this paragraph is |
| 2015 | reimbursed to the association by insurance proceeds, and, to the |
| 2016 | extent the association has collected the cost of such repair or |
| 2017 | reconstruction from the shareholder, the association shall |
| 2018 | reimburse the shareholder. |
| 2019 | 4. The association is not obligated to pay for repair or |
| 2020 | reconstruction or repairs of casualty losses as a common expense |
| 2021 | if the casualty losses were known or should have been known to a |
| 2022 | shareholder and were not reported to the association until after |
| 2023 | the insurance claim of the association for that casualty was |
| 2024 | settled or resolved with finality, or denied on the basis that |
| 2025 | it was untimely filed. |
| 2026 | (k) An association may, upon the approval of a majority of |
| 2027 | the total voting interests in the association, opt out of the |
| 2028 | provisions of paragraph (j) for the allocation of repair or |
| 2029 | reconstruction expenses and allocate repair or reconstruction |
| 2030 | expenses in the manner provided in the cooperative documents |
| 2031 | originally recorded or as amended. Such vote may be approved by |
| 2032 | the voting interests of the association without regard to any |
| 2033 | mortgagee consent requirements. |
| 2034 | (l) Any association or cooperative voting to opt out of |
| 2035 | the guidelines for repair or reconstruction expenses as |
| 2036 | described in paragraph (j) must record a notice setting forth |
| 2037 | the date of the opt-out vote and the page of the official |
| 2038 | records book on which the cooperative documents are recorded. |
| 2039 | The decision to opt out is effective upon the date of recording |
| 2040 | of the notice in the public records by the association. An |
| 2041 | association that has voted to opt out of paragraph (j) may |
| 2042 | reverse that decision by the same vote required in paragraph |
| 2043 | (k), and notice thereof shall be recorded in the official |
| 2044 | records. |
| 2045 | (m) The association is not obligated to pay for any |
| 2046 | reconstruction or repair expenses due to casualty loss to any |
| 2047 | improvements installed by a current or former owner of the unit |
| 2048 | or by the developer if the improvement benefits only the unit |
| 2049 | for which it was installed and is not part of the standard |
| 2050 | improvements installed by the developer on all units as part of |
| 2051 | original construction, whether or not such improvement is |
| 2052 | located within the unit. This paragraph does not relieve any |
| 2053 | party of its obligations regarding recovery due under any |
| 2054 | insurance implemented specifically for any such improvements. |
| 2055 | The association shall use its best efforts to obtain and |
| 2056 | maintain adequate insurance to protect the association property. |
| 2057 | The association may also obtain and maintain liability insurance |
| 2058 | for directors and officers, insurance for the benefit of |
| 2059 | association employees, and flood insurance. A copy of each |
| 2060 | policy of insurance in effect shall be made available for |
| 2061 | inspection by unit owners at reasonable times. |
| 2062 | (a) Windstorm insurance coverage for a group of no fewer |
| 2063 | than three communities created and operating under chapter 718, |
| 2064 | this chapter, chapter 720, or chapter 721 may be obtained and |
| 2065 | maintained for the communities if the insurance coverage is |
| 2066 | sufficient to cover an amount equal to the probable maximum loss |
| 2067 | for the communities for a 250-year windstorm event. Such |
| 2068 | probable maximum loss must be determined through the use of a |
| 2069 | competent model that has been accepted by the Florida Commission |
| 2070 | on Hurricane Loss Projection Methodology. Such insurance |
| 2071 | coverage is deemed adequate windstorm insurance for the purposes |
| 2072 | of this section. |
| 2073 | (b) An association or group of associations may self- |
| 2074 | insure against claims against the association, the association |
| 2075 | property, and the cooperative property required to be insured by |
| 2076 | an association, upon compliance with the applicable provisions |
| 2077 | of ss. 624.460-624.488, which shall be considered adequate |
| 2078 | insurance for purposes of this section. |
| 2079 | (4) FINANCIAL REPORTING REPORT.--Within 90 days after the |
| 2080 | end of the fiscal year, or annually on a date provided in the |
| 2081 | bylaws, the association shall prepare and complete, or contract |
| 2082 | for the preparation and completion of, a financial report for |
| 2083 | the preceding fiscal year. Within 21 days after the final |
| 2084 | financial report is completed by the association or received |
| 2085 | from the third party, but not later than 120 days after the end |
| 2086 | of the fiscal year or other date as provided in the bylaws, the |
| 2087 | association shall mail to each shareholder at the address last |
| 2088 | furnished to the association by the shareholder, or hand deliver |
| 2089 | to each shareholder, a copy of the financial report or a notice |
| 2090 | that a copy of the financial report will be mailed or hand |
| 2091 | delivered to the shareholder, without charge, upon receipt of a |
| 2092 | written request from the shareholder. The division shall adopt |
| 2093 | rules setting forth uniform accounting principles and standards |
| 2094 | to be used by all associations. The rules shall include, but not |
| 2095 | be limited to, uniform accounting principles and standards for |
| 2096 | stating the disclosure of at least a summary of the reserves, |
| 2097 | including information as to whether such reserves are being |
| 2098 | funded at a level sufficient to prevent the need for a special |
| 2099 | assessment and, if not, the amount of assessments necessary to |
| 2100 | bring the reserves up to the level necessary to avoid a special |
| 2101 | assessment. The person preparing the financial reports shall be |
| 2102 | entitled to rely on an inspection report prepared for or |
| 2103 | provided to the association to meet the fiscal and fiduciary |
| 2104 | standards of this chapter. In adopting such rules, the division |
| 2105 | shall consider the number of members and annual revenues of an |
| 2106 | association. Financial reports shall be prepared as follows: |
| 2107 | (a) An association that meets the criteria of this |
| 2108 | paragraph shall prepare or cause to be prepared a complete set |
| 2109 | of financial statements in accordance with generally accepted |
| 2110 | accounting principles. The financial statements shall be based |
| 2111 | upon the association's total annual revenues, as follows: |
| 2112 | 1. An association with total annual revenues of $100,000 |
| 2113 | or more, but less than $200,000, shall prepare compiled |
| 2114 | financial statements. |
| 2115 | 2. An association with total annual revenues of at least |
| 2116 | $200,000, but less than $400,000, shall prepare reviewed |
| 2117 | financial statements. |
| 2118 | 3. An association with total annual revenues of $400,000 |
| 2119 | or more shall prepare audited financial statements. |
| 2120 | (b)1. An association with total annual revenues of less |
| 2121 | than $100,000 shall prepare a report of cash receipts and |
| 2122 | expenditures. |
| 2123 | 2. An association which operates less than 50 units, |
| 2124 | regardless of the association's annual revenues, shall prepare a |
| 2125 | report of cash receipts and expenditures in lieu of financial |
| 2126 | statements required by paragraph (a). |
| 2127 | 3. A report of cash receipts and disbursements must |
| 2128 | disclose the amount of receipts by accounts and receipt |
| 2129 | classifications and the amount of expenses by accounts and |
| 2130 | expense classifications, including, but not limited to, the |
| 2131 | following, as applicable: costs for security, professional and |
| 2132 | management fees and expenses, taxes, costs for recreation |
| 2133 | facilities, expenses for refuse collection and utility services, |
| 2134 | expenses for lawn care, costs for building maintenance and |
| 2135 | repair, insurance costs, administration and salary expenses, and |
| 2136 | reserves accumulated and expended for capital expenditures, |
| 2137 | deferred maintenance, and any other category for which the |
| 2138 | association maintains reserves. |
| 2139 | (c) An association may prepare or cause to be prepared, |
| 2140 | without a meeting of or approval by the shareholders: |
| 2141 | 1. Compiled, reviewed, or audited financial statements, if |
| 2142 | the association is required to prepare a report of cash receipts |
| 2143 | and expenditures; |
| 2144 | 2. Reviewed or audited financial statements, if the |
| 2145 | association is required to prepare compiled financial |
| 2146 | statements; or |
| 2147 | 3. Audited financial statements, if the association is |
| 2148 | required to prepare reviewed financial statements. |
| 2149 | (d) If approved by a majority of the voting interests |
| 2150 | present at a properly called meeting of the association, an |
| 2151 | association may prepare or cause to be prepared: |
| 2152 | 1. A report of cash receipts and expenditures in lieu of a |
| 2153 | compiled, reviewed, or audited financial statement; |
| 2154 | 2. A report of cash receipts and expenditures or a |
| 2155 | compiled financial statement in lieu of a reviewed or audited |
| 2156 | financial statement; or |
| 2157 | 3. A report of cash receipts and expenditures, a compiled |
| 2158 | financial statement, or a reviewed financial statement in lieu |
| 2159 | of an audited financial statement. |
| 2160 | |
| 2161 | Such meeting and approval must occur prior to the end of the |
| 2162 | fiscal year and is effective only for the fiscal year in which |
| 2163 | the vote is taken, except that the approval also may be |
| 2164 | effective for the following fiscal year. With respect to an |
| 2165 | association to which the developer has not turned over control |
| 2166 | of the association, all shareholders, including the developer, |
| 2167 | may vote on issues related to the preparation of financial |
| 2168 | reports for the first 2 fiscal years of the association's |
| 2169 | operation, beginning with the fiscal year in which the |
| 2170 | declaration is recorded. Thereafter, all shareholders except the |
| 2171 | developer may vote on such issues until control is turned over |
| 2172 | to the association by the developer. Any audit or review |
| 2173 | prepared under this section shall be paid for by the developer |
| 2174 | if done prior to turnover of control of the association. An |
| 2175 | association may not waive the financial reporting requirements |
| 2176 | of this subsection for more than 3 consecutive years. |
| 2177 | (a) Within 60 days following the end of the fiscal or |
| 2178 | calendar year or annually on such date as is otherwise provided |
| 2179 | in the bylaws of the association, the board of administration of |
| 2180 | the association shall mail or furnish by personal delivery to |
| 2181 | each unit owner a complete financial report of actual receipts |
| 2182 | and expenditures for the previous 12 months, or a complete set |
| 2183 | of financial statements for the preceding fiscal year prepared |
| 2184 | in accordance with generally accepted accounting procedures. The |
| 2185 | report shall show the amounts of receipts by accounts and |
| 2186 | receipt classifications and shall show the amounts of expenses |
| 2187 | by accounts and expense classifications including, if |
| 2188 | applicable, but not limited to, the following: |
| 2189 | 1. Costs for security; |
| 2190 | 2. Professional and management fees and expenses; |
| 2191 | 3. Taxes; |
| 2192 | 4. Costs for recreation facilities; |
| 2193 | 5. Expenses for refuse collection and utility services; |
| 2194 | 6. Expenses for lawn care; |
| 2195 | 7. Costs for building maintenance and repair; |
| 2196 | 8. Insurance costs; |
| 2197 | 9. Administrative and salary expenses; and |
| 2198 | 10. Reserves for capital expenditures, deferred |
| 2199 | maintenance, and any other category for which the association |
| 2200 | maintains a reserve account or accounts. |
| 2201 | (b) The division shall adopt rules that may require that |
| 2202 | the association deliver to the unit owners, in lieu of the |
| 2203 | financial report required by this section, a complete set of |
| 2204 | financial statements for the preceding fiscal year. The |
| 2205 | financial statements shall be delivered within 90 days following |
| 2206 | the end of the previous fiscal year or annually on such other |
| 2207 | date as provided in the bylaws. The rules of the division may |
| 2208 | require that the financial statements be compiled, reviewed, or |
| 2209 | audited, and the rules shall take into consideration the |
| 2210 | criteria set forth in s. 719.501(1)(j). The requirement to have |
| 2211 | the financial statements compiled, reviewed, or audited does not |
| 2212 | apply to associations if a majority of the voting interests of |
| 2213 | the association present at a duly called meeting of the |
| 2214 | association have determined for a fiscal year to waive this |
| 2215 | requirement. In an association in which turnover of control by |
| 2216 | the developer has not occurred, the developer may vote to waive |
| 2217 | the audit requirement for the first 2 years of the operation of |
| 2218 | the association, after which time waiver of an applicable audit |
| 2219 | requirement shall be by a majority of voting interests other |
| 2220 | than the developer. The meeting shall be held prior to the end |
| 2221 | of the fiscal year, and the waiver shall be effective for only |
| 2222 | one fiscal year. This subsection does not apply to a cooperative |
| 2223 | that consists of 50 or fewer units. |
| 2224 | (5) ASSESSMENTS.--The association has the power to make |
| 2225 | and collect assessments and to lease, maintain, repair, and |
| 2226 | replace the common areas. However, the association may not |
| 2227 | charge a use fee against a shareholder the unit owner for the |
| 2228 | use of common areas unless otherwise provided for in the |
| 2229 | cooperative documents or by a majority vote of the association |
| 2230 | or unless the charges relate to expenses incurred by a |
| 2231 | shareholder an owner having exclusive use of common areas. |
| 2232 | (6) PURCHASE OF LEASES.--The association has the power to |
| 2233 | purchase any land or recreation lease upon the approval of such |
| 2234 | voting interest as is required by the cooperative documents. If |
| 2235 | the cooperative documents make no provision for acquisition of |
| 2236 | the land or recreational lease, the vote required is that |
| 2237 | required to amend the cooperative documents to permit the |
| 2238 | acquisition. |
| 2239 | (7) COMMINGLING.--All funds shall be maintained separately |
| 2240 | in the association's name. Reserve and operating funds of the |
| 2241 | association shall not be commingled unless combined for |
| 2242 | investment purposes. This subsection is not meant to prohibit |
| 2243 | prudent investment of association funds even if combined with |
| 2244 | operating or other reserve funds of the same association, but |
| 2245 | such funds must be accounted for separately, and the combined |
| 2246 | account balance may not, at any time, be less than the amount |
| 2247 | identified as reserve funds in the combined account. No manager |
| 2248 | or business entity required to be licensed or registered under |
| 2249 | s. 468.432, or an agent, employee, officer, or director of a |
| 2250 | cooperative association may commingle any association funds with |
| 2251 | his or her own funds or with the funds of any other cooperative |
| 2252 | association or community association as defined in s. 468.431. |
| 2253 | (8) CORPORATE ENTITY.-- |
| 2254 | (a) The operation of the cooperative shall be by the |
| 2255 | association, which must be a Florida corporation not for profit. |
| 2256 | The shareholders shall be members of the association. The |
| 2257 | officers and directors of the association have a fiduciary |
| 2258 | relationship to the shareholders unit owners. It is the intent |
| 2259 | of the Legislature that nothing in this paragraph shall be |
| 2260 | construed as providing for or removing a requirement of a |
| 2261 | fiduciary relationship between any manager employed by the |
| 2262 | association and the shareholders. An officer, director, or |
| 2263 | manager may not solicit, offer to accept, or accept any thing or |
| 2264 | service of value for which consideration has not been provided |
| 2265 | for his or her own benefit or that of his or her immediate |
| 2266 | family, from any person providing or proposing to provide goods |
| 2267 | or services to the association. Any such officer, director, or |
| 2268 | manager who knowingly solicits, offers to accept, or accepts any |
| 2269 | thing or service of value is subject to a civil penalty pursuant |
| 2270 | to s. 719.501(1)(d). However, this paragraph does not prohibit |
| 2271 | an officer, director, or manager from accepting services or |
| 2272 | items received in connection with trade fairs or education |
| 2273 | programs. |
| 2274 | (b) A director of the association who is present at a |
| 2275 | meeting of its board at which action on any corporate matter is |
| 2276 | taken is presumed to have assented to the action taken unless |
| 2277 | the director votes against such action or abstains from voting |
| 2278 | in respect thereto because of an asserted conflict of interest. |
| 2279 | A director of the association who abstains from voting on any |
| 2280 | action taken on any corporate matter shall be presumed to have |
| 2281 | taken no position with regard to the action. Directors may not |
| 2282 | vote by proxy or by secret ballot at board meetings, except that |
| 2283 | officers may be elected by secret ballot. A vote or abstention |
| 2284 | for each member present shall be recorded in the minutes. |
| 2285 | (c) A shareholder unit owner does not have any authority |
| 2286 | to act for the association by reason of being a shareholder unit |
| 2287 | owner. |
| 2288 | (d) As required by s. 617.0830, an officer, director, or |
| 2289 | agent shall discharge his or her duties in good faith, with the |
| 2290 | care an ordinarily prudent person in a like position would |
| 2291 | exercise under similar circumstances, and in a manner he or she |
| 2292 | reasonably believes to be in the interests of the association. |
| 2293 | An officer, director, or agent shall be liable for monetary |
| 2294 | damages as provided in s. 617.0834 if such officer, director, or |
| 2295 | agent breached or failed to perform his or her duties and the |
| 2296 | breach of, or failure to perform, his or her duties constitutes |
| 2297 | a violation of criminal law as provided in s. 617.0834; |
| 2298 | constitutes a transaction from which the officer or director |
| 2299 | derived an improper personal benefit, either directly or |
| 2300 | indirectly; or constitutes recklessness or an act or omission |
| 2301 | that was in bad faith, with malicious purpose, or in a manner |
| 2302 | exhibiting wanton and willful disregard of human rights, safety, |
| 2303 | or property. |
| 2304 | (9) EASEMENTS.--Unless prohibited by the cooperative |
| 2305 | documents, the board of administration has the authority, |
| 2306 | without the joinder of any shareholder unit owner, to grant, |
| 2307 | modify, or move any easement, if the easement constitutes part |
| 2308 | of or crosses the common areas or association property. This |
| 2309 | subsection does not authorize the board of administration to |
| 2310 | modify, move, or vacate any easement created in whole or in part |
| 2311 | for the use or benefit of anyone other than the shareholders |
| 2312 | unit owners, or crossing the property of anyone other than the |
| 2313 | shareholders unit owners, without the consent or approval of |
| 2314 | those other persons having the use or benefit of the easement, |
| 2315 | as required by law or by the instrument creating the easement. |
| 2316 | (10) POWERS AND DUTIES.--The powers and duties of the |
| 2317 | association include those set forth in this section and, except |
| 2318 | as expressly limited or restricted in this chapter, those set |
| 2319 | forth in the articles of incorporation and bylaws and chapters |
| 2320 | 607 and 617, as applicable. |
| 2321 | (11) NOTIFICATION OF DIVISION.--When the board of |
| 2322 | directors intends to dissolve or merge the cooperative |
| 2323 | association, the board shall so notify the division before |
| 2324 | taking any action to dissolve or merge the cooperative |
| 2325 | association. |
| 2326 | (12) POWER TO MANAGE COOPERATIVE PROPERTY AND TO CONTRACT, |
| 2327 | SUE, BE SUED, AND BORROW MONEY.-- |
| 2328 | (a) The association may contract, sue, or be sued with |
| 2329 | respect to the exercise or nonexercise of its powers. For these |
| 2330 | purposes, the powers of the association include, but are not |
| 2331 | limited to, the maintenance, management, and operation of the |
| 2332 | cooperative property. |
| 2333 | (b) After control of the association is obtained by |
| 2334 | shareholders other than the developer, the association may |
| 2335 | institute, maintain, settle, or appeal actions or hearings in |
| 2336 | its name on behalf of all shareholders concerning matters of |
| 2337 | common interest to most or all shareholders, including, but not |
| 2338 | limited to, the common areas; the roof and structural components |
| 2339 | of a building or other improvements; mechanical, electrical, and |
| 2340 | plumbing elements serving an improvement or a building; |
| 2341 | representations of the developer pertaining to any existing or |
| 2342 | proposed commonly used facilities; and protesting ad valorem |
| 2343 | taxes on commonly used facilities and units; and the association |
| 2344 | may defend actions in eminent domain or bring inverse |
| 2345 | condemnation actions. |
| 2346 | (c) If the association has the authority to maintain a |
| 2347 | class action, the association may be joined in an action as |
| 2348 | representative of that class with reference to litigation and |
| 2349 | disputes involving the matters for which the association could |
| 2350 | bring a class action. Nothing herein limits any statutory or |
| 2351 | common-law right of any individual shareholder or class of |
| 2352 | shareholders to bring any action without participation by the |
| 2353 | association which may otherwise be available. |
| 2354 | (d) The borrowing of funds or committing to a line of |
| 2355 | credit by the board of administration shall be considered a |
| 2356 | special assessment, and any meeting of the board of |
| 2357 | administration to discuss such matters shall be noticed in the |
| 2358 | same manner as provided in s. 719.106(1)(c). The board shall not |
| 2359 | have the authority to enter in a line of credit or borrow funds |
| 2360 | for any purpose unless the specific use of the funds from the |
| 2361 | line of credit or loan is set forth in the notice of meeting |
| 2362 | with the same specificity as required for a special assessment |
| 2363 | or unless the borrowing or line of credit has received the prior |
| 2364 | approval of not less than two-thirds of the voting interests of |
| 2365 | the association. |
| 2366 | (13) TITLE TO PROPERTY.-- |
| 2367 | (a) The association has the power to acquire title to |
| 2368 | property or otherwise hold, convey, lease, and mortgage |
| 2369 | association property for the use and benefit of its |
| 2370 | shareholders. The power to acquire personal property shall be |
| 2371 | exercised by the board of directors. Except as otherwise |
| 2372 | provided in subsections (6) and (14), no association may |
| 2373 | acquire, convey, lease, or mortgage association real property |
| 2374 | except in the manner provided in the cooperative documents, and |
| 2375 | if the cooperative documents do not specify the procedure, then |
| 2376 | approval of 75 percent of the total voting interests shall be |
| 2377 | required. |
| 2378 | (b) Subject to the provisions of s. 719.106(1)(m), the |
| 2379 | association, through its board, has the limited power to convey |
| 2380 | a portion of the common areas to a condemning authority for the |
| 2381 | purposes of providing utility easements, right-of-way expansion, |
| 2382 | or other public purposes, whether negotiated or as a result of |
| 2383 | eminent domain proceedings. |
| 2384 | (14) PURCHASE OF UNITS.--The association has the power, |
| 2385 | unless prohibited by the cooperative documents, to purchase |
| 2386 | units in the cooperative and to acquire and hold, lease, |
| 2387 | mortgage, and convey the units. There shall be no limitation on |
| 2388 | the association's right to purchase a unit at a foreclosure sale |
| 2389 | resulting from the association's foreclosure of its lien for |
| 2390 | unpaid assessments, or to take title by deed in lieu of |
| 2391 | foreclosure. |
| 2392 | (15) MEETINGS.--Regular meetings of the board of directors |
| 2393 | shall be held at such time and place as provided in the bylaws |
| 2394 | until the first regular meeting of the board held on or after |
| 2395 | October 1, 2009. Thereafter, the location and time for regular |
| 2396 | meetings of the board shall be determined by a majority vote of |
| 2397 | the shareholders at the next regular meeting held on or after |
| 2398 | October 1, 2009. Once the time and place for regular meetings of |
| 2399 | the board have been selected, neither may be changed unless |
| 2400 | approved by a majority vote of the shareholders. Regular |
| 2401 | meetings of the board of directors held on weekdays shall be |
| 2402 | held no earlier than 6 p.m. local time. |
| 2403 | (16) LIMIT ON EXPENDITURES.--It shall be unlawful for an |
| 2404 | association to make any expenditure of association funds or to |
| 2405 | make any in-kind contribution of association assets that does |
| 2406 | not relate to the purposes for which the association is |
| 2407 | organized. |
| 2408 | (a) The association shall not make any contribution to a |
| 2409 | campaign or committee of continuous existence governed by |
| 2410 | chapter 105 or chapter 106. |
| 2411 | (b) The association shall not make any contribution to a |
| 2412 | charitable organization if the association does not receive a |
| 2413 | direct benefit from the organization. |
| 2414 | (c) The association shall not make any expenditure in |
| 2415 | order to retain a person or firm for the purposes of lobbying. |
| 2416 | (d) Members of the board shall be jointly and severally |
| 2417 | liable to reimburse the association for any contribution, |
| 2418 | expenditure, or in-kind contribution made in violation of this |
| 2419 | subsection. |
| 2420 | Section 15. Section 719.106, Florida Statutes, is amended |
| 2421 | to read: |
| 2422 | 719.106 Bylaws; cooperative ownership.-- |
| 2423 | (1) MANDATORY PROVISIONS.--The bylaws or other cooperative |
| 2424 | documents shall provide for the following, and if they do not, |
| 2425 | they shall be deemed to include the following: |
| 2426 | (a) Administration.-- |
| 2427 | 1. The form of administration of the association shall be |
| 2428 | described, indicating the titles of the officers and board of |
| 2429 | administration and specifying the powers, duties, manner of |
| 2430 | selection and removal, and compensation, if any, of officers and |
| 2431 | board members. In the absence of such a provision, the board of |
| 2432 | administration shall be composed of five members, except in the |
| 2433 | case of cooperatives having five or fewer units, in which case |
| 2434 | in not-for-profit corporations, the board shall consist of not |
| 2435 | fewer than three members. In the absence of provisions to the |
| 2436 | contrary, the board of administration shall have a president, a |
| 2437 | secretary, and a treasurer, who shall perform the duties of |
| 2438 | those offices customarily performed by officers of corporations. |
| 2439 | Unless prohibited in the bylaws, the board of administration may |
| 2440 | appoint other officers and grant them those duties it deems |
| 2441 | appropriate. Unless otherwise provided in the bylaws, the |
| 2442 | officers shall serve without compensation and at the pleasure of |
| 2443 | the board. Unless otherwise provided in the bylaws, the members |
| 2444 | of the board shall serve without compensation. |
| 2445 | 2. When a shareholder unit owner files a written inquiry |
| 2446 | by certified mail with the board of administration, the board |
| 2447 | shall respond in writing to the shareholder unit owner within 30 |
| 2448 | days of receipt of the inquiry. The board's response shall |
| 2449 | either give a substantive response to the inquirer, notify the |
| 2450 | inquirer that a legal opinion has been requested, or notify the |
| 2451 | inquirer that advice has been requested from the division. If |
| 2452 | the board requests advice from the division, the board shall, |
| 2453 | within 10 days of its receipt of the advice, provide in writing |
| 2454 | a substantive response to the inquirer. If a legal opinion is |
| 2455 | requested, the board shall, within 60 days after the receipt of |
| 2456 | the inquiry, provide in writing a substantive response to the |
| 2457 | inquirer. The failure to provide a substantive response to the |
| 2458 | inquirer as provided herein precludes the board from recovering |
| 2459 | attorney's fees and costs in any subsequent litigation, |
| 2460 | administrative proceeding, or arbitration arising out of the |
| 2461 | inquiry. The association may, through its board of |
| 2462 | administration, adopt reasonable rules and regulations regarding |
| 2463 | the frequency and manner of responding to the shareholders' unit |
| 2464 | owners' inquiries, one of which may be that the association is |
| 2465 | obligated to respond to only one written inquiry per unit in any |
| 2466 | given 30-day period. In such case, any additional inquiry or |
| 2467 | inquiries must be responded to in the subsequent 30-day period, |
| 2468 | or periods, as applicable. |
| 2469 | (b) Quorum; voting requirements; proxies.-- |
| 2470 | 1. Unless otherwise provided in the bylaws, the percentage |
| 2471 | of voting interests required to constitute a quorum at a meeting |
| 2472 | of the members shall be a majority of voting interests, and |
| 2473 | decisions shall be made by owners of a majority of the voting |
| 2474 | interests. Unless otherwise provided in this chapter, or in the |
| 2475 | articles of incorporation, bylaws, or other cooperative |
| 2476 | documents, and except as provided in subparagraph (d)1., |
| 2477 | decisions shall be made by owners of a majority of the voting |
| 2478 | interests represented at a meeting at which a quorum is present. |
| 2479 | 2. Except as specifically otherwise provided herein, after |
| 2480 | January 1, 1992, shareholders unit owners may not vote by |
| 2481 | general proxy, but may vote by limited proxies substantially |
| 2482 | conforming to a limited proxy form adopted by the division. |
| 2483 | Limited proxies and general proxies may be used to establish a |
| 2484 | quorum. Limited proxies shall be used for votes taken to waive |
| 2485 | or reduce reserves in accordance with subparagraph (j)2., for |
| 2486 | votes taken to waive the financial reporting requirements of s. |
| 2487 | 719.104(4)(b), for votes taken to amend the articles of |
| 2488 | incorporation or bylaws pursuant to this section, and for any |
| 2489 | other matter for which this chapter requires or permits a vote |
| 2490 | of the shareholders unit owners. Except as provided in paragraph |
| 2491 | (d), after January 1, 1992, no proxy, limited or general, shall |
| 2492 | be used in the election of board members. General proxies may be |
| 2493 | used for other matters for which limited proxies are not |
| 2494 | required, and may also be used in voting for nonsubstantive |
| 2495 | changes to items for which a limited proxy is required and |
| 2496 | given. Notwithstanding the provisions of this section, |
| 2497 | shareholders unit owners may vote in person at shareholder unit |
| 2498 | owner meetings. Nothing contained herein shall limit the use of |
| 2499 | general proxies or require the use of limited proxies or require |
| 2500 | the use of limited proxies for any agenda item or election at |
| 2501 | any meeting of a timeshare cooperative. |
| 2502 | 3. Any proxy given shall be effective only for the |
| 2503 | specific meeting for which originally given and any lawfully |
| 2504 | adjourned meetings thereof. In no event shall any proxy be valid |
| 2505 | for a period longer than 90 days after the date of the first |
| 2506 | meeting for which it was given. Every proxy shall be revocable |
| 2507 | at any time at the pleasure of the shareholder unit owner |
| 2508 | executing it. |
| 2509 | 4. A member of the board of administration or a committee |
| 2510 | may submit in writing his or her agreement or disagreement with |
| 2511 | any action taken at a meeting that the member did not attend. |
| 2512 | This agreement or disagreement may not be used as a vote for or |
| 2513 | against the action taken and may not be used for the purposes of |
| 2514 | creating a quorum. |
| 2515 | 5. When some or all of the board or committee members meet |
| 2516 | by telephone conference, those board or committee members |
| 2517 | attending by telephone conference may be counted toward |
| 2518 | obtaining a quorum and may vote by telephone. A telephone |
| 2519 | speaker shall be utilized so that the conversation of those |
| 2520 | board or committee members attending by telephone may be heard |
| 2521 | by the board or committee members attending in person, as well |
| 2522 | as by shareholders unit owners present at a meeting. |
| 2523 | (c) Board of administration meetings.--Meetings of the |
| 2524 | board of administration at which a quorum of the members is |
| 2525 | present shall be open to all shareholders unit owners. Any |
| 2526 | shareholder unit owner may tape record or videotape meetings of |
| 2527 | the board of administration. The right to attend such meetings |
| 2528 | includes the right to speak at such meetings with reference to |
| 2529 | all designated agenda items. The division shall adopt reasonable |
| 2530 | rules governing the tape recording and videotaping of the |
| 2531 | meeting. The association may adopt reasonable written rules |
| 2532 | governing the frequency, duration, and manner of shareholder |
| 2533 | unit owner statements. Adequate notice of all meetings shall be |
| 2534 | posted in a conspicuous place upon the cooperative property at |
| 2535 | least 48 continuous hours preceding the meeting, except in an |
| 2536 | emergency. If 20 percent of the voting interests petition the |
| 2537 | board to address an item of business, the board shall at its |
| 2538 | next regular board meeting or at a special meeting of the board, |
| 2539 | but not later than 60 days after the receipt of the petition, |
| 2540 | place the item on the agenda. Any item not included on the |
| 2541 | notice may be taken up on an emergency basis by at least a |
| 2542 | majority plus one of the members of the board. Such emergency |
| 2543 | action shall be noticed and ratified at the next regular meeting |
| 2544 | of the board. However, written notice of any meeting at which |
| 2545 | nonemergency special assessments, or at which amendment to rules |
| 2546 | regarding unit use, will be considered shall be mailed, |
| 2547 | delivered, or electronically transmitted to the shareholders |
| 2548 | unit owners and posted conspicuously on the cooperative property |
| 2549 | not less than 14 days prior to the meeting. Evidence of |
| 2550 | compliance with this 14-day notice shall be made by an affidavit |
| 2551 | executed by the person providing the notice and filed among the |
| 2552 | official records of the association. Upon notice to the |
| 2553 | shareholders unit owners, the board shall by duly adopted rule |
| 2554 | designate a specific location on the cooperative property upon |
| 2555 | which all notices of board meetings shall be posted. In lieu of |
| 2556 | or in addition to the physical posting of notice of any meeting |
| 2557 | of the board of administration on the cooperative property, the |
| 2558 | association may, by reasonable rule, adopt a procedure for |
| 2559 | conspicuously posting and repeatedly broadcasting the notice and |
| 2560 | the agenda on a closed-circuit cable television system serving |
| 2561 | the cooperative association. However, if broadcast notice is |
| 2562 | used in lieu of a notice posted physically on the cooperative |
| 2563 | property, the notice and agenda must be broadcast at least four |
| 2564 | times every broadcast hour of each day that a posted notice is |
| 2565 | otherwise required under this section. When broadcast notice is |
| 2566 | provided, the notice and agenda must be broadcast in a manner |
| 2567 | and for a sufficient continuous length of time so as to allow an |
| 2568 | average reader to observe the notice and read and comprehend the |
| 2569 | entire content of the notice and the agenda. Notice of any |
| 2570 | meeting in which regular or special assessments against |
| 2571 | shareholders unit owners are to be considered for any reason |
| 2572 | shall specifically state contain a statement that assessments |
| 2573 | will be considered, and the nature and description of any such |
| 2574 | assessments, and the proposed cost and percentage amount for |
| 2575 | possible cost overruns as specifically provided for in the |
| 2576 | proposed contract. Meetings of a committee to take final action |
| 2577 | on behalf of the board or to make recommendations to the board |
| 2578 | regarding the association budget are subject to the provisions |
| 2579 | of this paragraph. Meetings of a committee that does not take |
| 2580 | final action on behalf of the board or make recommendations to |
| 2581 | the board regarding the association budget are subject to the |
| 2582 | provisions of this section, unless those meetings are exempted |
| 2583 | from this section by the bylaws of the association. |
| 2584 | Notwithstanding any other law to the contrary, the requirement |
| 2585 | that board meetings and committee meetings be open to the |
| 2586 | shareholders unit owners is inapplicable to meetings between the |
| 2587 | board or a committee and the association's attorney, with |
| 2588 | respect to proposed or pending litigation, when the meeting is |
| 2589 | held for the purpose of seeking or rendering legal advice. |
| 2590 | (d) Shareholder meetings.--There shall be an annual |
| 2591 | meeting of the shareholders held at the location provided in the |
| 2592 | association bylaws and, if the bylaws are silent as to the |
| 2593 | location, the meeting shall be held within 45 miles of the |
| 2594 | cooperative property. However, such distance requirement does |
| 2595 | not apply to an association governing a timeshare cooperative. |
| 2596 | All members of the board of administration shall be elected at |
| 2597 | the first annual meeting after July 1, 2009, and annually |
| 2598 | thereafter, except that if unless the bylaws provide for |
| 2599 | staggered election terms of no more than 2 years, the |
| 2600 | association board members may serve 2-year staggered terms. If |
| 2601 | no person is interested in or demonstrates an intention to run |
| 2602 | for the position of a board member whose term has expired, such |
| 2603 | board member whose term has expired shall be automatically |
| 2604 | reappointed to the board of administration and need not stand |
| 2605 | for reelection or for their election at another meeting. Any |
| 2606 | shareholder unit owner desiring to be a candidate for board |
| 2607 | membership shall comply with subparagraph 1. The bylaws shall |
| 2608 | provide the method for calling meetings, including annual |
| 2609 | meetings. Written notice, which notice shall incorporate an |
| 2610 | identification of agenda items, shall be given to each |
| 2611 | shareholder unit owner at least 14 days prior to the annual |
| 2612 | meeting and shall be posted in a conspicuous place on the |
| 2613 | cooperative property at least 14 continuous days preceding the |
| 2614 | annual meeting. Upon notice to the shareholders unit owners, the |
| 2615 | board shall by duly adopted rule designate a specific location |
| 2616 | on the cooperative property upon which all notice of shareholder |
| 2617 | unit owner meetings shall be posted. In lieu of or in addition |
| 2618 | to the physical posting of notice of any meeting of the |
| 2619 | shareholders on the cooperative property, the association may, |
| 2620 | by reasonable rule, adopt a procedure for conspicuously posting |
| 2621 | and repeatedly broadcasting the notice and the agenda on a |
| 2622 | closed-circuit cable television system serving the cooperative |
| 2623 | association. However, if broadcast notice is used in lieu of a |
| 2624 | notice posted physically on the cooperative property, the notice |
| 2625 | and agenda must be broadcast at least four times every broadcast |
| 2626 | hour of each day that a posted notice is otherwise required |
| 2627 | under this section. When broadcast notice is provided, the |
| 2628 | notice and agenda must be broadcast in a manner and for a |
| 2629 | sufficient continuous length of time so as to allow an average |
| 2630 | reader to observe the notice and read and comprehend the entire |
| 2631 | content of the notice and the agenda. Unless a shareholder unit |
| 2632 | owner waives in writing the right to receive notice of the |
| 2633 | annual meeting, the notice of the annual meeting shall be sent |
| 2634 | by mail, hand delivered, or electronically transmitted to each |
| 2635 | shareholder unit owner. An officer of the association shall |
| 2636 | provide an affidavit or United States Postal Service certificate |
| 2637 | of mailing, to be included in the official records of the |
| 2638 | association, affirming that notices of the association meeting |
| 2639 | were mailed, hand delivered, or electronically transmitted, in |
| 2640 | accordance with this provision, to each shareholder unit owner |
| 2641 | at the address last furnished to the association. |
| 2642 | 1. After January 1, 1992, the board of administration |
| 2643 | shall be elected by written ballot or voting machine. Proxies |
| 2644 | shall in no event be used in electing the board of |
| 2645 | administration, either in general elections or elections to fill |
| 2646 | vacancies caused by recall, resignation, or otherwise unless |
| 2647 | otherwise provided in this chapter. Not less than 60 days before |
| 2648 | a scheduled election, the association shall mail, deliver, or |
| 2649 | transmit, whether by separate association mailing, delivery, or |
| 2650 | electronic transmission or included in another association |
| 2651 | mailing, delivery, or electronic transmission, including |
| 2652 | regularly published newsletters, to each shareholder unit owner |
| 2653 | entitled to vote, a first notice of the date of the election. |
| 2654 | Any shareholder unit owner or other eligible person desiring to |
| 2655 | be a candidate for the board of administration shall give |
| 2656 | written notice to the association not less than 40 days before a |
| 2657 | scheduled election. Together with the written notice and agenda |
| 2658 | as set forth in this section, the association shall mail, |
| 2659 | deliver, or electronically transmit a second notice of election |
| 2660 | to all shareholders unit owners entitled to vote therein, |
| 2661 | together with a ballot which shall list all candidates. Upon |
| 2662 | request of a candidate, the association shall include an |
| 2663 | information sheet, no larger than 81/2 inches by 11 inches, |
| 2664 | which must be furnished by the candidate not less than 35 days |
| 2665 | prior to the election, to be included with the mailing, |
| 2666 | delivery, or electronic transmission of the ballot, with the |
| 2667 | costs of mailing, delivery, or transmission and copying to be |
| 2668 | borne by the association. The association has no liability for |
| 2669 | the contents of the information sheets provided by the |
| 2670 | candidates. In order to reduce costs, the association may print |
| 2671 | or duplicate the information sheets on both sides of the paper. |
| 2672 | The division shall by rule establish voting procedures |
| 2673 | consistent with the provisions contained herein, including rules |
| 2674 | establishing procedures for giving notice by electronic |
| 2675 | transmission and rules providing for the secrecy of ballots. |
| 2676 | Elections shall be decided by a plurality of those ballots cast. |
| 2677 | There shall be no quorum requirement. However, at least 20 |
| 2678 | percent of the eligible voters must cast a ballot in order to |
| 2679 | have a valid election of members of the board of administration. |
| 2680 | No shareholder unit owner shall permit any other person to vote |
| 2681 | his or her ballot, and any such ballots improperly cast shall be |
| 2682 | deemed invalid. A shareholder unit owner who needs assistance in |
| 2683 | casting the ballot for the reasons stated in s. 101.051 may |
| 2684 | obtain assistance in casting the ballot. Any shareholder unit |
| 2685 | owner violating this provision may be fined by the association |
| 2686 | in accordance with s. 719.303. The regular election shall occur |
| 2687 | on the date of the annual meeting. The provisions of this |
| 2688 | subparagraph shall not apply to timeshare cooperatives. |
| 2689 | Notwithstanding the provisions of this subparagraph, an election |
| 2690 | and balloting are not required unless more candidates file a |
| 2691 | notice of intent to run or are nominated than vacancies exist on |
| 2692 | the board. |
| 2693 | 2. Any approval by shareholders unit owners called for by |
| 2694 | this chapter, or the applicable cooperative documents, shall be |
| 2695 | made at a duly noticed meeting of shareholders unit owners and |
| 2696 | shall be subject to all requirements of this chapter or the |
| 2697 | applicable cooperative documents relating to shareholder unit |
| 2698 | owner decisionmaking, except that shareholders unit owners may |
| 2699 | take action by written agreement, without meetings, on matters |
| 2700 | for which action by written agreement without meetings is |
| 2701 | expressly allowed by the applicable cooperative documents or any |
| 2702 | Florida statute which provides for the shareholder unit owner |
| 2703 | action. |
| 2704 | 3. Shareholders Unit owners may waive notice of specific |
| 2705 | meetings if allowed by the applicable cooperative documents or |
| 2706 | any Florida statute. If authorized by the bylaws, notice of |
| 2707 | meetings of the board of administration, shareholder meetings, |
| 2708 | except shareholder meetings called to recall board members under |
| 2709 | paragraph (f), and committee meetings may be given by electronic |
| 2710 | transmission to shareholders unit owners who consent to receive |
| 2711 | notice by electronic transmission. |
| 2712 | 4. Shareholders Unit owners shall have the right to |
| 2713 | participate in meetings of shareholders unit owners with |
| 2714 | reference to all designated agenda items. However, the |
| 2715 | association may adopt reasonable rules governing the frequency, |
| 2716 | duration, and manner of shareholder unit owner participation. |
| 2717 | 5. Any shareholder unit owner may tape record or videotape |
| 2718 | meetings of the shareholders unit owners subject to reasonable |
| 2719 | rules adopted by the division. |
| 2720 |
|
| 2721 | Notwithstanding subparagraphs (b)2. and (d)1., an association of |
| 2722 | 10 units or less may, by the affirmative vote of a majority of |
| 2723 | the total voting interests, provide for a different voting and |
| 2724 | election procedure in its bylaws, which vote may be by a proxy |
| 2725 | specifically delineating the different voting and election |
| 2726 | procedures. The different voting and election procedures may |
| 2727 | provide for elections to be conducted by limited or general |
| 2728 | proxy. |
| 2729 | (e) Budget procedures.-- |
| 2730 | 1. The board of administration shall mail, hand deliver, |
| 2731 | or electronically transmit to each shareholder unit owner at the |
| 2732 | address last furnished to the association, a meeting notice and |
| 2733 | copies of the proposed annual budget of common expenses to the |
| 2734 | shareholders unit owners not less than 14 days prior to the |
| 2735 | meeting at which the budget will be considered. Evidence of |
| 2736 | compliance with this 14-day notice must be made by an affidavit |
| 2737 | executed by an officer of the association or the manager or |
| 2738 | other person providing notice of the meeting and filed among the |
| 2739 | official records of the association. The meeting must be open to |
| 2740 | the shareholders unit owners. |
| 2741 | 2. If an adopted budget requires assessment against the |
| 2742 | shareholders unit owners in any fiscal or calendar year which |
| 2743 | exceeds 115 percent of the assessments for the preceding year, |
| 2744 | the board upon written application of 10 percent of the voting |
| 2745 | interests to the board, shall call a special meeting of the |
| 2746 | shareholders unit owners within 30 days, upon not less than 10 |
| 2747 | days' written notice to each shareholder unit owner. At the |
| 2748 | special meeting, shareholders unit owners shall consider and |
| 2749 | enact a budget. Unless the bylaws require a larger vote, the |
| 2750 | adoption of the budget requires a vote of not less than a |
| 2751 | majority of all the voting interests. |
| 2752 | 3. The board of administration may, in any event, propose |
| 2753 | a budget to the shareholders unit owners at a meeting of members |
| 2754 | or by writing, and if the budget or proposed budget is approved |
| 2755 | by the shareholders unit owners at the meeting or by a majority |
| 2756 | of all voting interests in writing, the budget is adopted. If a |
| 2757 | meeting of the shareholders unit owners has been called and a |
| 2758 | quorum is not attained or a substitute budget is not adopted by |
| 2759 | the shareholders unit owners, the budget adopted by the board of |
| 2760 | directors goes into effect as scheduled. |
| 2761 | 4. In determining whether assessments exceed 115 percent |
| 2762 | of similar assessments for prior years, any authorized |
| 2763 | provisions for reasonable reserves for repair or replacement of |
| 2764 | cooperative property, anticipated expenses by the association |
| 2765 | which are not anticipated to be incurred on a regular or annual |
| 2766 | basis, or assessments for betterments to the cooperative |
| 2767 | property must be excluded from computation. However, as long as |
| 2768 | the developer is in control of the board of administration, the |
| 2769 | board may not impose an assessment for any year greater than 115 |
| 2770 | percent of the prior fiscal or calendar year's assessment |
| 2771 | without approval of a majority of all voting interests. |
| 2772 | (f) Recall of board members.--Subject to the provisions of |
| 2773 | s. 719.301, any member of the board of administration may be |
| 2774 | recalled and removed from office with or without cause by the |
| 2775 | vote or agreement in writing by a majority of all the voting |
| 2776 | interests. A special meeting of the voting interests to recall |
| 2777 | any member of the board of administration may be called by 10 |
| 2778 | percent of the shareholders unit owners giving notice of the |
| 2779 | meeting as required for a meeting of shareholders unit owners, |
| 2780 | and the notice shall state the purpose of the meeting. |
| 2781 | Electronic transmission may not be used as a method of giving |
| 2782 | notice of a meeting called in whole or in part for this purpose. |
| 2783 | 1. If the recall is approved by a majority of all voting |
| 2784 | interests by a vote at a meeting, the recall shall be effective |
| 2785 | as provided herein. The board shall duly notice and hold a board |
| 2786 | meeting within 5 full business days of the adjournment of the |
| 2787 | shareholder unit owner meeting to recall one or more board |
| 2788 | members. At the meeting, the board shall either certify the |
| 2789 | recall, in which case such member or members shall be recalled |
| 2790 | effective immediately and shall turn over to the board within 5 |
| 2791 | full business days any and all records and property of the |
| 2792 | association in their possession, or shall proceed as set forth |
| 2793 | in subparagraph 3. |
| 2794 | 2. If the proposed recall is by an agreement in writing by |
| 2795 | a majority of all voting interests, the agreement in writing or |
| 2796 | a copy thereof shall be served on the association by certified |
| 2797 | mail or by personal service in the manner authorized by chapter |
| 2798 | 48 and the Florida Rules of Civil Procedure. The board of |
| 2799 | administration shall duly notice and hold a meeting of the board |
| 2800 | within 5 full business days after receipt of the agreement in |
| 2801 | writing. At the meeting, the board shall either certify the |
| 2802 | written agreement to recall members of the board, in which case |
| 2803 | such members shall be recalled effective immediately and shall |
| 2804 | turn over to the board, within 5 full business days, any and all |
| 2805 | records and property of the association in their possession, or |
| 2806 | proceed as described in subparagraph 3. |
| 2807 | 3. If the board determines not to certify the written |
| 2808 | agreement to recall members of the board, or does not certify |
| 2809 | the recall by a vote at a meeting, the board shall, within 5 |
| 2810 | full business days after the board meeting, file with the |
| 2811 | division a petition for binding arbitration pursuant to the |
| 2812 | procedures of s. 719.1255. For purposes of this paragraph, the |
| 2813 | shareholders unit owners who voted at the meeting or who |
| 2814 | executed the agreement in writing shall constitute one party |
| 2815 | under the petition for arbitration. If the arbitrator certifies |
| 2816 | the recall as to any member of the board, the recall shall be |
| 2817 | effective upon mailing of the final order of arbitration to the |
| 2818 | association. If the association fails to comply with the order |
| 2819 | of the arbitrator, the division may take action pursuant to s. |
| 2820 | 719.501. Any member so recalled shall deliver to the board any |
| 2821 | and all records and property of the association in the member's |
| 2822 | possession within 5 full business days of the effective date of |
| 2823 | the recall. |
| 2824 | 4. If the board fails to duly notice and hold a board |
| 2825 | meeting within 5 full business days of service of an agreement |
| 2826 | in writing or within 5 full business days of the adjournment of |
| 2827 | the shareholder unit owner recall meeting, the recall shall be |
| 2828 | deemed effective and the board members so recalled shall |
| 2829 | immediately turn over to the board any and all records and |
| 2830 | property of the association. |
| 2831 | 5. If a vacancy occurs on the board as a result of a |
| 2832 | recall or removal and less than a majority of the board members |
| 2833 | are removed, the vacancy may be filled by the affirmative vote |
| 2834 | of a majority of the remaining directors, notwithstanding any |
| 2835 | provision to the contrary contained in this chapter. If |
| 2836 | vacancies occur on the board as a result of a recall and a |
| 2837 | majority or more of the board members are removed, the vacancies |
| 2838 | shall be filled in accordance with procedural rules to be |
| 2839 | adopted by the division, which rules need not be consistent with |
| 2840 | this chapter. The rules must provide procedures governing the |
| 2841 | conduct of the recall election as well as the operation of the |
| 2842 | association during the period after a recall but prior to the |
| 2843 | recall election. |
| 2844 | (g) Common expenses.--The manner of collecting from the |
| 2845 | shareholders unit owners their shares of the common expenses |
| 2846 | shall be stated. Assessments shall be made against shareholders |
| 2847 | unit owners not less frequently than quarterly, in an amount no |
| 2848 | less than is required to provide funds in advance for payment of |
| 2849 | all of the anticipated current operating expense and for all of |
| 2850 | the unpaid operating expense previously incurred. Nothing in |
| 2851 | this paragraph shall preclude the right of an association to |
| 2852 | accelerate assessments of a shareholder an owner delinquent in |
| 2853 | payment of common expenses in actions taken pursuant to s. |
| 2854 | 719.104(5)(4). |
| 2855 | (h) Amendment of bylaws.-- |
| 2856 | 1. The method by which the bylaws may be amended |
| 2857 | consistent with the provisions of this chapter shall be stated. |
| 2858 | If the bylaws fail to provide a method of amendment, the bylaws |
| 2859 | may be amended if the amendment is approved by shareholders |
| 2860 | owners of not less than two-thirds of the voting interests. |
| 2861 | 2. No bylaw shall be revised or amended by reference to |
| 2862 | its title or number only. Proposals to amend existing bylaws |
| 2863 | shall contain the full text of the bylaws to be amended; new |
| 2864 | words shall be inserted in the text underlined, and words to be |
| 2865 | deleted shall be lined through with hyphens. However, if the |
| 2866 | proposed change is so extensive that this procedure would |
| 2867 | hinder, rather than assist, the understanding of the proposed |
| 2868 | amendment, it is not necessary to use underlining and hyphens as |
| 2869 | indicators of words added or deleted, but, instead, a notation |
| 2870 | must be inserted immediately preceding the proposed amendment in |
| 2871 | substantially the following language: "Substantial rewording of |
| 2872 | bylaw. See bylaw _____ for present text." |
| 2873 | 3. Nonmaterial errors or omissions in the bylaw process |
| 2874 | shall not invalidate an otherwise properly promulgated |
| 2875 | amendment. |
| 2876 | 4. If the bylaws provide for amendment by the board of |
| 2877 | directors, no bylaw may be amended unless it is heard and |
| 2878 | noticed at two consecutive meetings of the board of directors |
| 2879 | that are at least 1 week apart. |
| 2880 | (i) Transfer fees.--No charge may be made by the |
| 2881 | association or any body thereof in connection with the sale, |
| 2882 | mortgage, lease, sublease, or other transfer of a unit unless |
| 2883 | the association is required to approve such transfer and a fee |
| 2884 | for such approval is provided for in the cooperative documents. |
| 2885 | Any such fee may be preset, but in no event shall it exceed $100 |
| 2886 | per applicant other than husband/wife or parent/dependent child, |
| 2887 | which are considered one applicant. However, if the lease or |
| 2888 | sublease is a renewal of a lease or sublease with the same |
| 2889 | lessee or sublessee, no charge shall be made. Nothing in this |
| 2890 | paragraph shall be construed to prohibit an association from |
| 2891 | requiring as a condition to permitting the letting or renting of |
| 2892 | a unit, when the association has such authority in the |
| 2893 | documents, the depositing into an escrow account maintained by |
| 2894 | the association a security deposit in an amount not to exceed |
| 2895 | the equivalent of 1 month's rent. The security deposit shall |
| 2896 | protect against damages to the common areas or cooperative |
| 2897 | property. Within 15 days after a tenant vacates the premises, |
| 2898 | the association shall refund the full security deposit or give |
| 2899 | written notice to the tenant of any claim made against the |
| 2900 | security. Disputes under this paragraph shall be handled in the |
| 2901 | same fashion as disputes concerning security deposits under s. |
| 2902 | 83.49. |
| 2903 | (j) Annual budget.-- |
| 2904 | 1. The proposed annual budget of estimated revenues and |
| 2905 | common expenses shall be detailed and shall show the amounts |
| 2906 | budgeted by accounts and expense classifications, including, if |
| 2907 | applicable, but not limited to, those expenses listed in s. |
| 2908 | 719.504(20). |
| 2909 | 2. In addition to annual operating expenses, the budget |
| 2910 | shall include reserve accounts for capital expenditures and |
| 2911 | deferred maintenance. These accounts shall include, but not be |
| 2912 | limited to, roof replacement, building painting, and pavement |
| 2913 | resurfacing, regardless of the amount of deferred maintenance |
| 2914 | expense or replacement cost, and for any other items for which |
| 2915 | the deferred maintenance expense or replacement cost exceeds |
| 2916 | $10,000. The amount to be reserved shall be computed by means of |
| 2917 | a formula which is based upon estimated remaining useful life |
| 2918 | and estimated replacement cost or deferred maintenance expense |
| 2919 | of each reserve item. The association may adjust replacement |
| 2920 | reserve assessments annually to take into account any changes in |
| 2921 | estimates or extension of the useful life of a reserve item |
| 2922 | caused by deferred maintenance. This paragraph shall not apply |
| 2923 | to any budget in which the members of an association have, at a |
| 2924 | duly called meeting of the association, determined for a fiscal |
| 2925 | year to provide no reserves or reserves less adequate than |
| 2926 | required by this subsection. However, prior to turnover of |
| 2927 | control of an association by a developer to shareholders unit |
| 2928 | owners other than a developer pursuant to s. 719.301, the |
| 2929 | developer may vote to waive the reserves or reduce the funding |
| 2930 | of reserves for the first 2 years of the operation of the |
| 2931 | association after which time reserves may only be waived or |
| 2932 | reduced upon the vote of a majority of all nondeveloper voting |
| 2933 | interests voting in person or by limited proxy at a duly called |
| 2934 | meeting of the association. If a meeting of the shareholders |
| 2935 | unit owners has been called to determine to provide no reserves, |
| 2936 | or reserves less adequate than required, and such result is not |
| 2937 | attained or a quorum is not attained, the reserves as included |
| 2938 | in the budget shall go into effect. |
| 2939 | 3. Reserve funds and any interest accruing thereon shall |
| 2940 | remain in the reserve account or accounts, and shall be used |
| 2941 | only for authorized reserve expenditures unless their use for |
| 2942 | other purposes is approved in advance by a vote of the majority |
| 2943 | of the voting interests, voting in person or by limited proxy at |
| 2944 | a duly called meeting of the association. Prior to turnover of |
| 2945 | control of an association by a developer to shareholders unit |
| 2946 | owners other than the developer under s. 719.301, the developer |
| 2947 | may not vote to use reserves for purposes other than that for |
| 2948 | which they were intended without the approval of a majority of |
| 2949 | all nondeveloper voting interests, voting in person or by |
| 2950 | limited proxy at a duly called meeting of the association. |
| 2951 | 4. The only voting interests which are eligible to vote on |
| 2952 | questions that involve waiving or reducing the funding of |
| 2953 | reserves, or using existing reserve funds for purposes other |
| 2954 | than purposes for which the reserves were intended, are the |
| 2955 | voting interests of the units subject to assessment to fund the |
| 2956 | reserves in question. Proxy questions relating to waiving or |
| 2957 | reducing the funding of reserves or using existing reserve funds |
| 2958 | for purposes other than purposes for which the reserves were |
| 2959 | intended shall contain the following statement in capitalized, |
| 2960 | bold letters in a font size larger than any other used on the |
| 2961 | face of the proxy ballot: WAIVING OF RESERVES, IN WHOLE OR IN |
| 2962 | PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY |
| 2963 | RESULT IN SHAREHOLDER LIABILITY FOR PAYMENT OF UNANTICIPATED |
| 2964 | SPECIAL ASSESSMENTS REGARDING THOSE ITEMS. |
| 2965 | (k) Insurance or fidelity bonds.--The association shall |
| 2966 | obtain and maintain adequate insurance or fidelity bonding of |
| 2967 | all persons who control or disburse funds of the association. |
| 2968 | The insurance policy or fidelity bond must cover the maximum |
| 2969 | funds that will be in the custody of the association or its |
| 2970 | management agent at any one time. As used in this paragraph, the |
| 2971 | term "persons who control or disburse funds of the association" |
| 2972 | includes, but is not limited to, those individuals authorized to |
| 2973 | sign checks, and the president, secretary, and treasurer of the |
| 2974 | association. The association shall bear the cost of bonding and |
| 2975 | insurance. |
| 2976 | (l) Arbitration.--There shall be a provision for mandatory |
| 2977 | nonbinding arbitration of internal disputes arising from the |
| 2978 | operation of the cooperative in accordance with s. 719.1255. |
| 2979 | (m) Common areas; limited power to convey.-- |
| 2980 | 1. The bylaws shall include a provision granting the |
| 2981 | association a limited power to convey a portion of the common |
| 2982 | areas to a condemning authority for the purpose of providing |
| 2983 | utility easements, right-of-way expansion, or other public |
| 2984 | purposes, whether negotiated or as a result of eminent domain |
| 2985 | proceedings. |
| 2986 | 2. In any case in which the bylaws are silent as to the |
| 2987 | association's power to convey common areas as described in |
| 2988 | subparagraph 1., the bylaws shall be deemed to include the |
| 2989 | provision described in subparagraph 1. |
| 2990 | (n) Director or officer delinquencies.--A director or |
| 2991 | officer more than 90 days delinquent in the payment of regular |
| 2992 | assessments shall be deemed to have abandoned the office, |
| 2993 | creating a vacancy in the office to be filled according to law. |
| 2994 | (o) Director or officer offenses.--A director or officer |
| 2995 | charged by information or indictment with a felony theft or |
| 2996 | embezzlement offense involving the association's funds or |
| 2997 | property shall be removed from office, creating a vacancy in the |
| 2998 | office to be filled according to law. While such director or |
| 2999 | officer has such criminal charge pending in the state or federal |
| 3000 | court system, he or she may not be appointed or elected to a |
| 3001 | position as a director or officer. However, should the charges |
| 3002 | be resolved without a finding of guilt, the director or officer |
| 3003 | shall be reinstated for the remainder of his or her term of |
| 3004 | office, if any. |
| 3005 | (p) Qualifications of directors.-- In addition to any |
| 3006 | other requirement for office in statute, a person running for or |
| 3007 | seeking appointment to the board must meet the following |
| 3008 | qualifications: |
| 3009 | 1. In a cooperative association of 10 or more units, only |
| 3010 | one individual coowner of a unit may serve on the board of |
| 3011 | administration. |
| 3012 | 2. No person may serve as a director of any cooperative |
| 3013 | association in the state if restricted from serving by action of |
| 3014 | the division pursuant to s. 719.501. |
| 3015 | 3. A person who has been convicted of any felony in this |
| 3016 | state or in a United States District or Territorial Court, or |
| 3017 | who has been convicted of any offense in another jurisdiction |
| 3018 | that would be considered a felony if committed in this state, is |
| 3019 | not eligible for board membership unless such felon's civil |
| 3020 | rights have been restored for a period of no less than 5 years |
| 3021 | as of the date on which such person seeks election to the board. |
| 3022 | 4. Within 30 days after being elected or appointed to the |
| 3023 | board of directors, a director shall certify in writing to the |
| 3024 | secretary of the association that he or she has read parts I and |
| 3025 | III of chapter 719 and the association's cooperative documents, |
| 3026 | bylaws, and current written policies. The director shall further |
| 3027 | certify that he or she will work to uphold such documents and |
| 3028 | policies to the best of his or her ability, and that he or she |
| 3029 | will faithfully discharge his or her fiduciary responsibility to |
| 3030 | the association's members. If the division finds that a director |
| 3031 | has falsely certified that he or she has read the required |
| 3032 | statutes and documents, the division shall order the director |
| 3033 | removed the board and shall order the director to reimburse the |
| 3034 | division for the cost of prosecution and hearing. |
| 3035 | 5. After turnover of the association pursuant to s. |
| 3036 | 718.301(4), a director must: |
| 3037 | a. If the unit is owned by an individual or individuals, |
| 3038 | be one of those individuals. |
| 3039 | b. If the unit is owned by a trust, be an individual |
| 3040 | qualified pursuant to s. 617.0802. |
| 3041 | |
| 3042 | These qualifications shall operate on a continuing basis, and |
| 3043 | upon the failure of a director at any time to meet a |
| 3044 | qualification, the director shall be removed from office and |
| 3045 | that office shall be deemed vacant. |
| 3046 | (q) Borrowing.--The borrowing of funds or committing to a |
| 3047 | line of credit by the board of administration shall be |
| 3048 | considered a special assessment, and any meeting of the board of |
| 3049 | administration to discuss such matters shall be noticed as |
| 3050 | provided in paragraph (c). The board shall not have the |
| 3051 | authority to enter into a line of credit or borrow funds for any |
| 3052 | purpose unless the specific use of the funds from the line of |
| 3053 | credit or loan is set forth in the notice of meeting with the |
| 3054 | same specificity as required for a special assessment or unless |
| 3055 | the borrowing or line of credit has received the prior approval |
| 3056 | of not less than two-thirds of the voting interests of the |
| 3057 | association. |
| 3058 | (2) OPTIONAL PROVISIONS.--The bylaws may provide for the |
| 3059 | following: |
| 3060 | (a) Administrative rules.--A method of adopting and of |
| 3061 | amending administrative rules and regulations governing the |
| 3062 | details of the operation and use of the common areas. |
| 3063 | (b) Use and maintenance restrictions.--Restrictions on, |
| 3064 | and requirements for, the use, maintenance, and appearance of |
| 3065 | the units and the use of the common areas, not inconsistent with |
| 3066 | the cooperative documents, designed to prevent unreasonable |
| 3067 | interference with the use of the units and common areas. |
| 3068 | (c) Notice of meetings.--Provisions for giving notice by |
| 3069 | electronic transmissions in a manner authorized by law of |
| 3070 | meetings of the board of directors and committees and of annual |
| 3071 | and special meetings of the members. |
| 3072 | (d) Other matters.--Other provisions not inconsistent with |
| 3073 | this chapter or with the cooperative documents as may be |
| 3074 | desired. |
| 3075 | Section 16. Section 719.1064, Florida Statutes, is |
| 3076 | repealed. |
| 3077 | Section 17. Paragraphs (b) and (c) of subsection (1) and |
| 3078 | subsection (2) of section 719.107, Florida Statutes, are |
| 3079 | amended, and subsection (3) is added to that section, to read: |
| 3080 | 719.107 Common expenses; assessment.-- |
| 3081 | (1) |
| 3082 | (b) If so provided in the bylaws, the cost of a master |
| 3083 | antenna television system or duly franchised cable television |
| 3084 | service obtained pursuant to a bulk contract shall be deemed a |
| 3085 | common expense, and if not obtained pursuant to a bulk contract, |
| 3086 | such cost shall be considered common expense if it is designated |
| 3087 | as such in a written contract between the board of |
| 3088 | administration and the company providing the master television |
| 3089 | antenna system or the cable television service. The contract |
| 3090 | shall be for a term of not less than 2 years. |
| 3091 | 1. Any contract made by the board after April 2, 1992, for |
| 3092 | a community antenna system or duly franchised cable television |
| 3093 | service may be canceled by a majority of the voting interests |
| 3094 | present at the next regular or special meeting of the |
| 3095 | association. Any member may make a motion to cancel the |
| 3096 | contract, but if no motion is made or if such motion fails to |
| 3097 | obtain the required majority at the next regular or special |
| 3098 | meeting, whichever is sooner, following the making of the |
| 3099 | contract, then such contract shall be deemed ratified for the |
| 3100 | term therein expressed. |
| 3101 | 2. Any such contract shall provide, and shall be deemed to |
| 3102 | provide if not expressly set forth, that any hearing impaired or |
| 3103 | legally blind shareholder unit owner who does not occupy the |
| 3104 | unit with a nonhearing impaired or sighted person may |
| 3105 | discontinue the service without incurring disconnect fees, |
| 3106 | penalties, or subsequent service charges, and as to such units, |
| 3107 | the shareholders owners shall not be required to pay any common |
| 3108 | expenses charge related to such service. If less than all |
| 3109 | members of an association share the expenses of cable |
| 3110 | television, the expense shall be shared equally by all |
| 3111 | participating shareholders unit owners. The association may use |
| 3112 | the provisions of s. 719.108 to enforce payment of the shares of |
| 3113 | such costs by the shareholders unit owners receiving cable |
| 3114 | television. |
| 3115 | (c) If any unpaid share of common expenses or assessments |
| 3116 | is extinguished by foreclosure of a superior lien or by a deed |
| 3117 | in lieu of foreclosure thereof, the unpaid share of common |
| 3118 | expenses or assessments are common expenses collectible from all |
| 3119 | the shareholders unit owners in the cooperative in which the |
| 3120 | unit is located. |
| 3121 | (2) Funds for the payment of common expenses shall be |
| 3122 | collected by assessments against shareholders unit owners in the |
| 3123 | proportions or percentages of sharing common expenses provided |
| 3124 | in the cooperative documents. |
| 3125 | (3) The expense of installation, replacement, operation, |
| 3126 | repair, and maintenance of hurricane shutters or other hurricane |
| 3127 | protection by the board pursuant to s. 719.113(5) shall |
| 3128 | constitute a common expense as defined in this section and shall |
| 3129 | be collected as provided in this section if the association is |
| 3130 | responsible for the maintenance, repair, and replacement of the |
| 3131 | hurricane shutters or other hurricane protection pursuant to the |
| 3132 | cooperative documents. However, if the maintenance, repair, and |
| 3133 | replacement of the hurricane shutters or other hurricane |
| 3134 | protection is the responsibility of the shareholders pursuant to |
| 3135 | the cooperative documents, the cost of the installation of the |
| 3136 | hurricane shutters or other hurricane protection shall not be a |
| 3137 | common expense, but shall be charged individually to the |
| 3138 | shareholders based on the cost of installation of the hurricane |
| 3139 | shutters or other hurricane protection appurtenant to the unit. |
| 3140 | Notwithstanding the provisions of s. 719.108(8), and regardless |
| 3141 | of whether or not the cooperative documents requires the |
| 3142 | association or shareholders maintain, repair, or replace |
| 3143 | hurricane shutters or other hurricane protection, a shareholder |
| 3144 | who has previously installed hurricane shutters in accordance |
| 3145 | with s. 719.113(5), other hurricane protection, or laminated |
| 3146 | glass architecturally designed to function as hurricane |
| 3147 | protection, which hurricane shutters or other hurricane |
| 3148 | protection or laminated glass comply with the current applicable |
| 3149 | building code, shall receive a credit equal to the pro rata |
| 3150 | portion of the assessed installation cost assigned to each unit. |
| 3151 | However, such shareholder shall remain responsible for the pro |
| 3152 | rata share of expenses for hurricane shutters or other hurricane |
| 3153 | protection installed on common areas by the board pursuant to s. |
| 3154 | 719.113(5), and shall remain responsible for a pro rata share of |
| 3155 | the expense of the replacement, operation, repair, and |
| 3156 | maintenance of such shutters or other hurricane protection. |
| 3157 | Section 18. Section 719.108, Florida Statutes, is amended |
| 3158 | to read: |
| 3159 | 719.108 Rents and assessments; liability; lien and |
| 3160 | priority; interest; collection; cooperative ownership.-- |
| 3161 | (1)(a) A shareholder unit owner, regardless of how title |
| 3162 | is acquired, including, without limitation, a purchaser at a |
| 3163 | judicial sale or by deed in lieu of foreclosure, shall be liable |
| 3164 | for all rents and assessments coming due while the shareholder |
| 3165 | unit owner is in exclusive possession of a unit. In a voluntary |
| 3166 | transfer, The shareholder unit owner in exclusive possession |
| 3167 | shall be jointly and severally liable with the previous |
| 3168 | shareholder unit owner for all unpaid rents and assessments |
| 3169 | against the previous shareholder unit owner for his or her share |
| 3170 | of the common expenses up to the time of the transfer, without |
| 3171 | prejudice to the rights of the shareholder unit owner in |
| 3172 | exclusive possession to recover from a the previous shareholder |
| 3173 | unit owner the amounts paid by the shareholder unit owner in |
| 3174 | exclusive possession therefor. |
| 3175 | (b) The liability of a first mortgagee or its successor or |
| 3176 | assignees who acquire title to a unit by foreclosure or by deed |
| 3177 | in lieu of foreclosure for the unpaid assessments that became |
| 3178 | due prior to the mortgagee's acquisition of title is limited to |
| 3179 | the lesser of: |
| 3180 | 1. The unit's unpaid common expenses and regular periodic |
| 3181 | assessments which accrued or came due during the 6 months |
| 3182 | immediately preceding the acquisition of title and for which |
| 3183 | payment in full has not been received by the association; or |
| 3184 | 2. One-half of the unit's unpaid common expenses and |
| 3185 | regular periodic assessments which accrued or came due from the |
| 3186 | filing of the foreclosure action through the sale of the unit, |
| 3187 | provided that the mortgagee timely paid in full the payment |
| 3188 | required by paragraph (d) and, at the same time, remitted to the |
| 3189 | association advanced common expenses and regular periodic |
| 3190 | assessments equal to one-half of the total unpaid common |
| 3191 | expenses and regular periodic assessments that came due in that |
| 3192 | time period. Any such advance shall be taxed as a cost in the |
| 3193 | foreclosure action, and the mortgagor shall be personally liable |
| 3194 | to the mortgagee for the value of the payment made to the |
| 3195 | association plus interest at the interest rate provided for in |
| 3196 | the promissory note for advances. |
| 3197 | (c) The person acquiring title shall pay the amount owed |
| 3198 | to the association within 30 days after transfer of title. |
| 3199 | Failure to pay the full amount when due shall entitle the |
| 3200 | association to record a claim of lien against the parcel and |
| 3201 | proceed in the same manner as provided in this section for the |
| 3202 | collection of unpaid assessments. |
| 3203 | (d) A mortgagee who files a foreclosure case on a mortgage |
| 3204 | secured by a condominium unit shall pay to the association |
| 3205 | within 15 days after the filing of the action all of the |
| 3206 | condominium unit's then unpaid common expenses and regular |
| 3207 | periodic assessments which accrued or came due up to the date of |
| 3208 | the filing of the foreclosure action. The payment shall be taxed |
| 3209 | as a cost in the foreclosure action, and the mortgagor shall be |
| 3210 | personally liable to the mortgagee for the value of the payment |
| 3211 | made to the association plus interest at the interest rate |
| 3212 | provided for in the promissory note for advances. The court |
| 3213 | shall dismiss a foreclosure action on the association's motion |
| 3214 | to dismiss for failure to make such payment and shall award the |
| 3215 | association the costs and reasonable attorney's fees related to |
| 3216 | the motion. |
| 3217 | (e) The provisions of this subsection are intended to |
| 3218 | clarify existing law and shall not be available in any case |
| 3219 | where the unpaid assessments sought to be recovered by the |
| 3220 | association are secured by a lien recorded prior to the |
| 3221 | recording of the mortgage. Notwithstanding the provisions of |
| 3222 | chapter 48, the association shall be a proper party to intervene |
| 3223 | in any foreclosure proceeding to seek equitable relief. For |
| 3224 | purposes of this subsection, the term "successor or assignee" as |
| 3225 | used with respect to a first mortgagee includes only a |
| 3226 | subsequent holder of the first mortgage. |
| 3227 | (2) The liability for rents and assessments may not be |
| 3228 | avoided by waiver of the use or enjoyment of any common areas or |
| 3229 | by abandonment of the unit for which the rents and assessments |
| 3230 | are made. |
| 3231 | (3) Rents and assessments, and installments on them, not |
| 3232 | paid when due bear interest at the rate provided in the |
| 3233 | cooperative documents from the date due until paid. This rate |
| 3234 | may not exceed the rate allowed by law, and, if no rate is |
| 3235 | provided in the cooperative documents, then interest shall |
| 3236 | accrue at 18 percent per annum. Also, if the cooperative |
| 3237 | documents or bylaws so provide, the association may charge an |
| 3238 | administrative late fee in addition to such interest, in an |
| 3239 | amount not to exceed the greater of $25 or 5 percent of each |
| 3240 | installment of the assessment for each delinquent installment |
| 3241 | that the payment is late. Any payment received by an association |
| 3242 | shall be applied first to any interest accrued by the |
| 3243 | association, then to any administrative late fee, then to any |
| 3244 | costs and reasonable attorney's fees incurred in collection, and |
| 3245 | then to the delinquent assessment. The foregoing shall be |
| 3246 | applicable notwithstanding any restrictive endorsement, |
| 3247 | designation, or instruction placed on or accompanying a payment. |
| 3248 | A late fee is not subject to chapter 687 or s. 719.303(3). |
| 3249 | (4) If the association is authorized by the cooperative |
| 3250 | documents or bylaws to approve or disapprove a proposed lease of |
| 3251 | a unit, the grounds for disapproval may include, but are not |
| 3252 | limited to, a shareholder being delinquent in the payment of an |
| 3253 | assessment at the time approval is sought. |
| 3254 | (5)(a)(4) The association has shall have a lien on each |
| 3255 | cooperative parcel to secure the payment of for any unpaid rents |
| 3256 | and assessments, plus interest, against the shareholder who owns |
| 3257 | unit owner of the cooperative parcel. If authorized by the |
| 3258 | cooperative documents, said lien shall also secure reasonable |
| 3259 | attorney's fees incurred by the association incident to the |
| 3260 | collection of the rents and assessments or enforcement of such |
| 3261 | lien. The lien is effective from and shall relate back to and |
| 3262 | after the recording of the cooperative documents a claim of lien |
| 3263 | in the public records in the county in which the cooperative |
| 3264 | parcel is located which states the description of the |
| 3265 | cooperative parcel, the name of the unit owner, the amount due, |
| 3266 | and the due dates. |
| 3267 | (b) To be valid, a claim of lien must state the |
| 3268 | description of the cooperative parcel, the name of the record |
| 3269 | owner, the name and address of the association, the amount due, |
| 3270 | and the due dates. The claim of lien must be executed and |
| 3271 | acknowledged by an officer or authorized agent of the |
| 3272 | association. The lien shall expire if a claim of lien is not |
| 3273 | filed within 1 year after the date the assessment was due, and |
| 3274 | no such lien shall continue for a longer period than 1 year |
| 3275 | after the claim of lien has been recorded unless, within that |
| 3276 | time, an action to enforce the lien is commenced in a court of |
| 3277 | competent jurisdiction. The 1-year period shall automatically be |
| 3278 | extended for any length of time during which the association is |
| 3279 | prevented from filing a foreclosure action by an automatic stay |
| 3280 | resulting from a bankruptcy petition filed by the shareholder or |
| 3281 | any other person claiming an interest in the parcel. The claim |
| 3282 | of lien shall secure all unpaid assessments which are due and |
| 3283 | which may accrue subsequent to the recording of the claim of |
| 3284 | lien and prior to the entry of a certificate of title, as well |
| 3285 | as interest and all reasonable costs and attorney's fees |
| 3286 | incurred by the association incident to the collection process. |
| 3287 | Upon payment in full, the person making the payment is entitled |
| 3288 | to a satisfaction of the lien. No lien may be filed by the |
| 3289 | association against a cooperative parcel until 30 days after the |
| 3290 | date on which a notice of intent to file a lien has been served |
| 3291 | on the unit owner of the cooperative parcel by certified mail or |
| 3292 | by personal service in the manner authorized by chapter 48 and |
| 3293 | the Florida Rules of Civil Procedure. |
| 3294 | (c) By recording a notice in substantially the following |
| 3295 | form, a shareholder or the shareholder's agent or attorney may |
| 3296 | require the association to enforce a recorded claim of lien |
| 3297 | against his or her cooperative parcel: |
| 3298 | |
| 3299 | NOTICE OF CONTEST OF LIEN |
| 3300 |
|
| 3301 | TO: (Name and address of association) You are notified |
| 3302 | that the undersigned contests the claim of lien filed by you on |
| 3303 | _____, (year) , and recorded in Official Records Book _____ |
| 3304 | at Page _____, of the public records of _____ County, Florida, |
| 3305 | and that the time within which you may file suit to enforce your |
| 3306 | lien is limited to 90 days after the date of service of this |
| 3307 | notice. Executed this _____ day of _____, (year) . |
| 3308 | |
| 3309 | Signed: (Shareholder or Attorney) |
| 3310 | |
| 3311 | After notice of contest of lien has been recorded, the clerk of |
| 3312 | the circuit court shall mail a copy of the recorded notice to |
| 3313 | the association by certified mail, return receipt requested, at |
| 3314 | the address shown in the claim of lien or most recent amendment |
| 3315 | to the claim of lien and shall certify to the service on the |
| 3316 | face of the notice. Service is complete upon mailing. After |
| 3317 | service, the association has 90 days in which to file an action |
| 3318 | to enforce the lien; and, if the action is not filed within the |
| 3319 | 90-day period, the lien is void. However, the 90-day period |
| 3320 | shall be extended for any length of time that the association is |
| 3321 | prevented from filing its action because of an automatic stay |
| 3322 | resulting from the filing of a bankruptcy petition by the |
| 3323 | shareholder or by any other person claiming an interest in the |
| 3324 | parcel. |
| 3325 | (6)(a)(5) Liens for rents and assessments may be |
| 3326 | foreclosed by suit brought in the name of the association, in |
| 3327 | like manner as a foreclosure of a mortgage on real property. In |
| 3328 | any foreclosure, the shareholder unit owner shall pay a |
| 3329 | reasonable rental for the cooperative parcel, if so provided in |
| 3330 | the cooperative documents, and the plaintiff in the foreclosure |
| 3331 | is entitled to the appointment of a receiver to collect the |
| 3332 | rent. The association has the power, unless prohibited by the |
| 3333 | cooperative documents, to bid on the cooperative parcel at the |
| 3334 | foreclosure sale and to acquire and hold, lease, mortgage, or |
| 3335 | convey it. Suit to recover a money judgment for unpaid rents and |
| 3336 | assessments may be maintained without waiving the lien securing |
| 3337 | them. |
| 3338 | (b) No foreclosure judgment may be entered until at least |
| 3339 | 30 days after the association gives written notice to the |
| 3340 | shareholder of its intention to foreclose its lien to collect |
| 3341 | the unpaid rents and assessments. If this notice is not given at |
| 3342 | least 30 days before the foreclosure action is filed, and if the |
| 3343 | unpaid rents and assessments, including those coming due after |
| 3344 | the claim of lien is recorded, are paid before the entry of a |
| 3345 | final judgment of foreclosure, the association shall not recover |
| 3346 | attorney's fees or costs. The notice must be given by delivery |
| 3347 | of a copy of it to the shareholder or by certified or registered |
| 3348 | mail, return receipt requested, addressed to the shareholder at |
| 3349 | his or her last known address; and, upon such mailing, the |
| 3350 | notice shall be deemed to have been given, and the court shall |
| 3351 | proceed with the foreclosure action and may award attorney's |
| 3352 | fees and costs as permitted by law. The notice requirements of |
| 3353 | this paragraph are satisfied if the shareholder records a notice |
| 3354 | of contest of lien as provided in subsection (5). The notice |
| 3355 | requirements of this paragraph do not apply if an action to |
| 3356 | foreclose a mortgage on the cooperative unit is pending before |
| 3357 | any court; if the rights of the association would be affected by |
| 3358 | such foreclosure; and if actual, constructive, or substitute |
| 3359 | service of process has been made on the shareholder. |
| 3360 | (c) If the shareholder remains in possession of the unit |
| 3361 | after a foreclosure judgment has been entered, the court, in its |
| 3362 | discretion, may require the shareholder to pay a reasonable |
| 3363 | rental for the unit. If the unit is rented or leased during the |
| 3364 | pendency of the foreclosure action, the association is entitled |
| 3365 | to the appointment of a receiver to collect the rent. The |
| 3366 | expenses of the receiver shall be paid by the party which does |
| 3367 | not prevail in the foreclosure action. |
| 3368 | (d) The association has the power to purchase the |
| 3369 | cooperative unit at the foreclosure sale and to hold, lease, |
| 3370 | mortgage, or convey it. |
| 3371 | (7) Within 15 days after receiving a written request |
| 3372 | therefor from a shareholder or his or her designee, or a unit |
| 3373 | mortgagee or his or her designee, the association shall provide |
| 3374 | a certificate signed by an officer or agent of the association |
| 3375 | stating all assessments and other moneys owed to the association |
| 3376 | by the shareholder with respect to the cooperative parcel. |
| 3377 | (a) Any person other than the shareholder who relies upon |
| 3378 | such certificate shall be protected thereby. |
| 3379 | (b) A summary proceeding pursuant to s. 51.011 may be |
| 3380 | brought to compel compliance with this subsection, and in any |
| 3381 | such action the prevailing party is entitled to recover |
| 3382 | reasonable attorney's fees. |
| 3383 | (c) Notwithstanding any limitation on transfer fees |
| 3384 | contained in s. 719.106(1)(i), the association or its authorized |
| 3385 | agent may charge a reasonable fee for the preparation of the |
| 3386 | certificate. The amount of the fee must be included on the |
| 3387 | certificate. |
| 3388 | (d) The authority to charge a fee for the certificate |
| 3389 | shall be established by a written resolution adopted by the |
| 3390 | board or provided by a written management, bookkeeping, or |
| 3391 | maintenance contract and is payable upon the preparation of the |
| 3392 | certificate. If the certificate is requested in conjunction with |
| 3393 | the sale or mortgage of a unit but the closing does not occur |
| 3394 | and no later than 30 days after the closing date for which the |
| 3395 | certificate was sought the preparer receives a written request, |
| 3396 | accompanied by reasonable documentation, that the sale did not |
| 3397 | occur from a payor that is not the shareholder, the fee shall be |
| 3398 | refunded to that payor within 30 days after receipt of the |
| 3399 | request. The refund is the obligation of the shareholder, and |
| 3400 | the association may collect the refund from that shareholder in |
| 3401 | the same manner as an assessment as provided in this section. |
| 3402 | (6) Within 15 days after request by a unit owner or |
| 3403 | mortgagee, the association shall provide a certificate stating |
| 3404 | all assessments and other moneys owed to the association by the |
| 3405 | unit owner with respect to the cooperative parcel. Any person |
| 3406 | other than the unit owner who relies upon such certificate shall |
| 3407 | be protected thereby. Notwithstanding any limitation on transfer |
| 3408 | fees contained in s. 719.106(1)(i), the association or its |
| 3409 | authorized agent may charge a reasonable fee for the preparation |
| 3410 | of the certificate. |
| 3411 | (7) The remedies provided in this section do not exclude |
| 3412 | other remedies provided by the cooperative documents and |
| 3413 | permitted by law. |
| 3414 | (8)(a) No shareholder unit owner may be excused from the |
| 3415 | payment of his or her share of the rents or assessments of a |
| 3416 | cooperative unless all shareholders unit owners are likewise |
| 3417 | proportionately excused from payment, except as provided in |
| 3418 | subsection (6) and in the following cases: |
| 3419 | 1. If the cooperative documents so provide, a developer or |
| 3420 | other person owning cooperative units offered for sale may be |
| 3421 | excused from the payment of the share of the common expenses, |
| 3422 | assessments, and rents related to those units for a stated |
| 3423 | period of time. The period must terminate no later than the |
| 3424 | first day of the fourth calendar month following the month in |
| 3425 | which the right of exclusive possession is first granted to a |
| 3426 | shareholder unit owner. However, the developer must pay the |
| 3427 | portion of common expenses incurred during that period which |
| 3428 | exceed the amount assessed against other shareholders unit |
| 3429 | owners. |
| 3430 | 2. A developer, or other person with an ownership interest |
| 3431 | in cooperative units or having an obligation to pay common |
| 3432 | expenses, may be excused from the payment of his or her share of |
| 3433 | the common expenses which would have been assessed against those |
| 3434 | units during the period of time that he or she shall have |
| 3435 | guaranteed to each purchaser in the purchase contract or in the |
| 3436 | cooperative documents, or by agreement between the developer and |
| 3437 | a majority of the shareholders unit owners other than the |
| 3438 | developer, that the assessment for common expenses of the |
| 3439 | cooperative imposed upon the shareholders unit owners would not |
| 3440 | increase over a stated dollar amount and shall have obligated |
| 3441 | himself or herself to pay any amount of common expenses incurred |
| 3442 | during that period and not produced by the assessments at the |
| 3443 | guaranteed level receivable from other shareholders unit owners. |
| 3444 | (b) If the purchase contract, cooperative documents, or |
| 3445 | agreement between the developer and a majority of shareholders |
| 3446 | unit owners other than the developer provides for the developer |
| 3447 | or another person to be excused from the payment of assessments |
| 3448 | pursuant to paragraph (a), no funds receivable from shareholders |
| 3449 | unit owners payable to the association or collected by the |
| 3450 | developer on behalf of the association, other than regular |
| 3451 | periodic assessments for common expenses as provided in the |
| 3452 | cooperative documents and disclosed in the estimated operating |
| 3453 | budget pursuant to s. 719.503(1)(b)6. or s. 719.504(20)(b), may |
| 3454 | be used for payment of common expenses prior to the expiration |
| 3455 | of the period during which the developer or other person is so |
| 3456 | excused. This restriction applies to funds including, but not |
| 3457 | limited to, capital contributions or startup funds collected |
| 3458 | from shareholders unit purchasers at closing. |
| 3459 | (9) The specific purposes of any special assessment, |
| 3460 | including any contingent special assessment levied in |
| 3461 | conjunction with the purchase of an insurance policy authorized |
| 3462 | by s. 719.104(3), approved in accordance with the cooperative |
| 3463 | documents shall be set forth in a written notice of such |
| 3464 | assessment sent or delivered to each shareholder unit owner. The |
| 3465 | funds collected pursuant to a special assessment shall be used |
| 3466 | only for the specific purpose or purposes set forth in such |
| 3467 | notice or returned to the shareholders unit owners. However, |
| 3468 | upon completion of such specific purposes, any excess funds |
| 3469 | shall be considered common surplus and may, at the discretion of |
| 3470 | the board, either be returned to the shareholders unit owners or |
| 3471 | applied as a credit toward future assessments. |
| 3472 | (10) During the pendency of any foreclosure action of a |
| 3473 | cooperative unit, if the unit is occupied by a tenant and the |
| 3474 | shareholder is delinquent in the payment of regular assessments, |
| 3475 | the association may demand that the tenant pay to the |
| 3476 | association the future regular assessments related to the |
| 3477 | cooperative unit. The demand shall be continuing in nature, and |
| 3478 | upon demand the tenant shall continue to pay the regular |
| 3479 | assessments to the association until the association releases |
| 3480 | the tenant or the tenant discontinues tenancy in the unit. The |
| 3481 | association shall mail written notice to the shareholder of the |
| 3482 | association's demand that the tenant pay regular assessments to |
| 3483 | the association. The tenant shall not be liable for increases in |
| 3484 | the amount of the regular assessment due unless the tenant was |
| 3485 | reasonably notified of the increase prior to the day that the |
| 3486 | rent is due. The tenant shall be given a credit against rents |
| 3487 | due to the shareholder in the amount of assessments paid to the |
| 3488 | association. The association shall, upon request, provide the |
| 3489 | tenant with written receipts for payments made. The association |
| 3490 | may issue notices under s. 83.56 and may sue for eviction under |
| 3491 | ss. 83.59-83.625 as if the association were a landlord under |
| 3492 | part II of chapter 83 should the tenant fail to pay an |
| 3493 | assessment. However, the association shall not otherwise be |
| 3494 | considered a landlord under chapter 83 and shall specifically |
| 3495 | not have any duty under s. 83.51. The tenant shall not, by |
| 3496 | virtue of payment of assessments, have any of the rights of a |
| 3497 | shareholder to vote in any election or to examine the books and |
| 3498 | records of the association. A court may supersede the effect of |
| 3499 | this subsection by appointing a receiver. |
| 3500 | Section 19. Section 719.113, Florida Statutes, is created |
| 3501 | to read: |
| 3502 | 719.113 Maintenance; limitation upon improvement; display |
| 3503 | of flag; hurricane shutters; display of religious decorations.-- |
| 3504 | (1) Maintenance of the common areas is the responsibility |
| 3505 | of the association. The cooperative documents may provide that |
| 3506 | certain limited common areas shall be maintained by those |
| 3507 | entitled to use the limited common areas or that the association |
| 3508 | shall provide the maintenance, either as a common expense or |
| 3509 | with the cost shared only by those entitled to use the limited |
| 3510 | common areas. If the maintenance is to be provided by the |
| 3511 | association at the expense of only those entitled to use the |
| 3512 | limited common areas, the cooperative documents shall describe |
| 3513 | in detail the method of apportioning such costs among those |
| 3514 | entitled to use the limited common areas. The association may |
| 3515 | use the provisions of s. 719.108 to enforce payment of the |
| 3516 | shares of such costs by the shareholders entitled to use the |
| 3517 | limited common areas. |
| 3518 | (2) Except as otherwise provided in this section, there |
| 3519 | shall be no material alteration or substantial additions to the |
| 3520 | common areas, except in a manner provided in the cooperative |
| 3521 | documents as originally recorded or as amended under the |
| 3522 | procedures provided therein. If the cooperative documents as |
| 3523 | originally recorded or as amended under the procedures provided |
| 3524 | therein do not specify the procedure for approval of material |
| 3525 | alterations or substantial additions, 75 percent of the total |
| 3526 | voting interests of the association must approve the alterations |
| 3527 | or additions. This subsection is intended to clarify existing |
| 3528 | law and applies to associations existing on July 1, 2009. |
| 3529 | (3) A shareholder shall not do anything within his or her |
| 3530 | unit or on the common areas which would adversely affect the |
| 3531 | safety or soundness of the common areas or any portion of the |
| 3532 | association property or cooperative property which is to be |
| 3533 | maintained by the association. |
| 3534 | (4) Any shareholder may display within the boundaries of |
| 3535 | the shareholder's unit one portable, removable United States |
| 3536 | flag in a respectful way and, on Armed Forces Day, Memorial Day, |
| 3537 | Flag Day, Independence Day, and Veterans' Day, may display in a |
| 3538 | respectful way portable, removable official flags, not larger |
| 3539 | than 4 1/2 feet by 6 feet, that represent the United States |
| 3540 | Army, Navy, Air Force, Marine Corps, or Coast Guard, regardless |
| 3541 | of any declaration rules or requirements dealing with flags or |
| 3542 | decorations. |
| 3543 | (5) Each board of directors shall adopt hurricane shutter |
| 3544 | specifications for each building within each cooperative which |
| 3545 | shall include color, style, and other factors deemed relevant by |
| 3546 | the board. All specifications adopted by the board shall comply |
| 3547 | with the applicable building code. |
| 3548 | (a) The board may, subject to the provisions of s. |
| 3549 | 719.3026 and the approval of a majority of voting interests of |
| 3550 | the condominium, install hurricane shutters or hurricane |
| 3551 | protection that complies with or exceeds the applicable building |
| 3552 | code, or both, except that a vote of the shareholders is not |
| 3553 | required if the maintenance, repair, and replacement of |
| 3554 | hurricane shutters or other forms of hurricane protection are |
| 3555 | the responsibility of the association pursuant to the |
| 3556 | declaration of condominium. However, when hurricane protection |
| 3557 | or laminated glass or window film architecturally designed to |
| 3558 | function as hurricane protection which complies with or exceeds |
| 3559 | the current applicable building code has been previously |
| 3560 | installed, the board may not install hurricane shutters or other |
| 3561 | hurricane protection. Code-compliant impact glass may be |
| 3562 | installed by the association as hurricane protection if the area |
| 3563 | in which the glass is to be installed is an area that is the |
| 3564 | responsibility of the association. Notwithstanding s. |
| 3565 | 719.107(3), if a shareholder installed code-compliant impact |
| 3566 | glass prior to the association voting to install such glass, and |
| 3567 | such glass and the frame thereof complies with the current |
| 3568 | applicable building codes and is otherwise in good repair, the |
| 3569 | shareholder shall not be required to pay the shareholders' pro |
| 3570 | rata share of the cost of installing code-compliant impact glass |
| 3571 | in the cooperative association. |
| 3572 | (b) The association shall be responsible for the |
| 3573 | maintenance, repair, and replacement of the hurricane shutters |
| 3574 | or other hurricane protection authorized by this subsection if |
| 3575 | such hurricane shutters or other hurricane protection is the |
| 3576 | responsibility of the association pursuant to the declaration of |
| 3577 | condominium. If the hurricane shutters or other hurricane |
| 3578 | protection authorized by this subsection are the responsibility |
| 3579 | of the shareholders pursuant to the cooperative documents, the |
| 3580 | responsibility for the maintenance, repair, and replacement of |
| 3581 | such items shall be the responsibility of the shareholder. |
| 3582 | (c) The board may operate hurricane shutters installed |
| 3583 | pursuant to this subsection without permission of the |
| 3584 | shareholders only when such operation is necessary to preserve |
| 3585 | and protect the cooperative property and association property. |
| 3586 | The installation, replacement, operation, repair, and |
| 3587 | maintenance of such shutters in accordance with the procedures |
| 3588 | set forth herein shall not be deemed a material alteration to |
| 3589 | the common elements or association property within the meaning |
| 3590 | of this section. |
| 3591 | (d) Notwithstanding any provision to the contrary in the |
| 3592 | cooperative documents, if approval is required by the documents, |
| 3593 | a board shall not refuse to approve the installation or |
| 3594 | replacement of hurricane shutters by a shareholder conforming to |
| 3595 | the specifications adopted by the board. |
| 3596 | (6) As to any cooperative building greater than three |
| 3597 | stories in height, at least every 5 years, and within 5 years if |
| 3598 | not available for inspection on July 1, 2009, the board shall |
| 3599 | have the cooperative building inspected to provide a report |
| 3600 | under seal of an architect or engineer authorized to practice in |
| 3601 | this state attesting to required maintenance, useful life, and |
| 3602 | replacement costs of the common areas. However, if approved by a |
| 3603 | majority of the voting interests present at a properly called |
| 3604 | meeting of the association, an association may waive this |
| 3605 | requirement. Such meeting and approval must occur prior to the |
| 3606 | end of the 5-year period and is effective only for that 5-year |
| 3607 | period. |
| 3608 | (7) An association may not refuse the request of a |
| 3609 | shareholder for a reasonable accommodation for the attachment on |
| 3610 | the mantel or frame of the door of the shareholder of a |
| 3611 | religious object not to exceed 3 inches wide, 6 inches high, and |
| 3612 | 1.5 inches deep. |
| 3613 | (8) Notwithstanding the provisions of this section or the |
| 3614 | governing documents of a cooperative association, the board of |
| 3615 | directors may, without any requirement for approval of the |
| 3616 | shareholders, install upon or within the common areas or |
| 3617 | association property solar collectors, clotheslines, or other |
| 3618 | energy-efficient devices based on renewable resources for the |
| 3619 | benefit of the shareholders. |
| 3620 | Section 20. Section 719.117, Florida Statutes, is created |
| 3621 | to read: |
| 3622 | 719.117 Termination of cooperative.-- |
| 3623 | (1) LEGISLATIVE FINDINGS.--The Legislature finds that |
| 3624 | cooperatives are created as authorized by statute. In |
| 3625 | circumstances that may create economic waste, areas of |
| 3626 | disrepair, or obsolescence of a cooperative property for its |
| 3627 | intended use and thereby lower property tax values, the |
| 3628 | Legislature further finds that it is the public policy of this |
| 3629 | state to provide by statute a method to preserve the value of |
| 3630 | the property interests and the rights of alienation thereof that |
| 3631 | shareholders have in the cooperative property before and after |
| 3632 | termination. The Legislature further finds that it is contrary |
| 3633 | to the public policy of this state to require the continued |
| 3634 | operation of a cooperative when to do so constitutes economic |
| 3635 | waste or when the ability to do so is made impossible by law or |
| 3636 | regulation. This section applies to all cooperatives in this |
| 3637 | state in existence on or after July 1, 2009. |
| 3638 | (2) TERMINATION BECAUSE OF ECONOMIC WASTE OR |
| 3639 | IMPOSSIBILITY.-- |
| 3640 | (a) Notwithstanding any provision to the contrary in the |
| 3641 | cooperative documents, the cooperative form of ownership of a |
| 3642 | property may be terminated by a plan of termination approved by |
| 3643 | the lesser of the lowest percentage of voting interests |
| 3644 | necessary to amend the articles of incorporation when: |
| 3645 | 1. The total estimated cost of repairs necessary to |
| 3646 | restore the improvements to their former condition or bring them |
| 3647 | into compliance with applicable laws or regulations exceeds the |
| 3648 | combined fair market value of all units in the cooperative after |
| 3649 | completion of the repairs; or |
| 3650 | 2. It becomes impossible to operate or reconstruct a |
| 3651 | cooperative in its prior physical configuration because of land |
| 3652 | use laws or regulations. |
| 3653 | (b) Notwithstanding paragraph (a), a cooperative in which |
| 3654 | 75 percent or more of the units are timeshare units may be |
| 3655 | terminated only pursuant to a plan of termination approved by 80 |
| 3656 | percent of the total voting interests of the association and the |
| 3657 | holders of 80 percent of the original principal amount of |
| 3658 | outstanding recorded mortgage liens of timeshare estates in the |
| 3659 | cooperative, unless the declaration provides for a lower voting |
| 3660 | percentage. |
| 3661 | (3) OPTIONAL TERMINATION.--Except as provided in |
| 3662 | subsection (2) or unless the declaration provides for a lower |
| 3663 | percentage, the cooperative form of ownership of the property |
| 3664 | may be terminated pursuant to a plan of termination approved by |
| 3665 | at least 80 percent of the total voting interests of the |
| 3666 | cooperative if not more than 10 percent of the total voting |
| 3667 | interests of the cooperative have rejected the plan of |
| 3668 | termination by negative vote or by providing written objections |
| 3669 | thereto. This subsection does not apply to cooperatives in which |
| 3670 | 75 percent or more of the units are timeshare units. |
| 3671 | (4) EXEMPTION.--A plan of termination is not an amendment |
| 3672 | subject to s. 719.1055(1). |
| 3673 | (5) MORTGAGE LIENHOLDERS.--Notwithstanding any provision |
| 3674 | to the contrary in the declaration or this chapter, approval of |
| 3675 | a plan of termination by the holder of a recorded mortgage lien |
| 3676 | affecting a cooperative parcel in which fewer than 75 percent of |
| 3677 | the units are timeshare units is not required unless the plan of |
| 3678 | termination will result in less than the full satisfaction of |
| 3679 | the mortgage lien affecting the cooperative parcel. If such |
| 3680 | approval is required and not given, a holder of a recorded |
| 3681 | mortgage lien who objects to the plan of termination may contest |
| 3682 | the plan as provided in subsection (16). At the time of sale, |
| 3683 | the lien shall be transferred to the proportionate share of the |
| 3684 | proceeds assigned to the cooperative parcel in the plan of |
| 3685 | termination or as subsequently modified by the court. |
| 3686 | (6) POWERS IN CONNECTION WITH TERMINATION.--The approval |
| 3687 | of the plan of termination does not terminate the association. |
| 3688 | The association shall continue in existence following approval |
| 3689 | of the plan of termination with all powers and duties it had |
| 3690 | before approval of the plan. Notwithstanding any provision to |
| 3691 | the contrary in the declaration or bylaws, after approval of the |
| 3692 | plan the board shall: |
| 3693 | (a) Employ directors, agents, attorneys, and other |
| 3694 | professionals to liquidate or conclude its affairs. |
| 3695 | (b) Conduct the affairs of the association as necessary |
| 3696 | for the liquidation or termination. |
| 3697 | (c) Carry out contracts and collect, pay, and settle debts |
| 3698 | and claims for and against the association. |
| 3699 | (d) Defend suits brought against the association. |
| 3700 | (e) Sue in the name of the association for all sums due or |
| 3701 | owed to the association or to recover any of its property. |
| 3702 | (f) Perform any act necessary to maintain, repair, or |
| 3703 | demolish unsafe or uninhabitable improvements or other |
| 3704 | cooperative property in compliance with applicable codes. |
| 3705 | (g) Sell at public or private sale or exchange, convey, or |
| 3706 | otherwise dispose of assets of the association for an amount |
| 3707 | deemed to be in the best interests of the association, and |
| 3708 | execute bills of sale and deeds of conveyance in the name of the |
| 3709 | association. |
| 3710 | (h) Collect and receive rents, profits, accounts |
| 3711 | receivable, income, maintenance fees, special assessments, or |
| 3712 | insurance proceeds for the association. |
| 3713 | (i) Contract and do anything in the name of the |
| 3714 | association which is proper or convenient to terminate the |
| 3715 | affairs of the association. |
| 3716 | (7) NATURAL DISASTERS.-- |
| 3717 | (a) If, after a natural disaster, the identity of the |
| 3718 | directors or their right to hold office is in doubt, if they are |
| 3719 | deceased or unable to act, if they fail or refuse to act, or if |
| 3720 | they cannot be located, any interested person may petition the |
| 3721 | circuit court to determine the identity of the directors or, if |
| 3722 | found to be in the best interests of the shareholders, to |
| 3723 | appoint a receiver to conclude the affairs of the association |
| 3724 | after a hearing following notice to such persons as the court |
| 3725 | directs. Lienholders shall be given notice of the petition and |
| 3726 | have the right to propose persons for the consideration by the |
| 3727 | court as receiver. If a receiver is appointed, the court shall |
| 3728 | direct the receiver to provide to all shareholders written |
| 3729 | notice of his or her appointment as receiver. Such notice shall |
| 3730 | be mailed or delivered within 10 days after the appointment. |
| 3731 | Notice by mail to a shareholder shall be sent to the address |
| 3732 | used by the county property appraiser for notice to the |
| 3733 | shareholder. |
| 3734 | (b) The receiver shall have all powers given to the board |
| 3735 | pursuant to the declaration, bylaws, and subsection (6), and any |
| 3736 | other powers that are necessary to conclude the affairs of the |
| 3737 | association and are set forth in the order of appointment. The |
| 3738 | appointment of the receiver is subject to the bonding |
| 3739 | requirements of such order. The order shall also provide for the |
| 3740 | payment of a reasonable fee to the receiver from the sources |
| 3741 | identified in the order, which may include rents, profits, |
| 3742 | incomes, maintenance fees, or special assessments collected from |
| 3743 | the cooperative property. |
| 3744 | (8) REPORTS AND REPLACEMENT OF RECEIVER.-- |
| 3745 | (a) The association, receiver, or termination trustee |
| 3746 | shall prepare reports each quarter following the approval of the |
| 3747 | plan of termination setting forth the status and progress of the |
| 3748 | termination, the costs and fees incurred, the date the |
| 3749 | termination is expected to be completed, and the current |
| 3750 | financial condition of the association, receivership, or |
| 3751 | trusteeship and provide copies of the report by regular mail to |
| 3752 | the shareholders and lienors at the mailing address provided to |
| 3753 | the association by the shareholders and the lienors. |
| 3754 | (b) The shareholders of an association in termination may |
| 3755 | recall or remove members of the board of administration with or |
| 3756 | without cause at any time as provided in s. 718.106(1)(f). |
| 3757 | (c) The lienors of an association in termination |
| 3758 | representing at least 50 percent of the outstanding amount of |
| 3759 | liens may petition the court for the appointment of a |
| 3760 | termination trustee, which shall be granted upon good cause |
| 3761 | shown. |
| 3762 | (9) PLAN OF TERMINATION.--The plan of termination must be |
| 3763 | a written document executed in the same manner as a deed by |
| 3764 | shareholders having the requisite percentage of voting interests |
| 3765 | to approve the plan and by the termination trustee. A copy of |
| 3766 | the proposed plan of termination shall be given to all |
| 3767 | shareholders, in the same manner as provided for notice of an |
| 3768 | annual meeting, at least 14 days prior to the meeting at which |
| 3769 | the plan of termination is to be voted upon or prior to or |
| 3770 | simultaneously with the distribution of the solicitation seeking |
| 3771 | execution of the plan of termination or written consent to or |
| 3772 | joinder in the plan. A shareholder may document assent to the |
| 3773 | plan by executing the plan or by consent to or joinder in the |
| 3774 | plan in the manner of a deed. A plan of termination and the |
| 3775 | consents or joinders of shareholders and, if required, consents |
| 3776 | or joinders of mortgagees must be recorded in the public records |
| 3777 | of each county in which any portion of the cooperative is |
| 3778 | located. The plan is effective only upon recordation or at a |
| 3779 | later date specified in the plan. |
| 3780 | (10) PLAN OF TERMINATION; REQUIRED PROVISIONS.--The plan |
| 3781 | of termination must specify: |
| 3782 | (a) The name, address, and powers of the termination |
| 3783 | trustee. |
| 3784 | (b) A date after which the plan of termination is void if |
| 3785 | it has not been recorded. |
| 3786 | (c) The interests of the respective shareholders in the |
| 3787 | association property, common surplus, and other assets of the |
| 3788 | association, which shall be the same as the respective interests |
| 3789 | of the shareholders in the common areas immediately before the |
| 3790 | termination, unless otherwise provided in the declaration. |
| 3791 | (d) The interests of the respective shareholders in any |
| 3792 | proceeds from the sale of the cooperative property. The plan of |
| 3793 | termination may apportion those proceeds pursuant to any method |
| 3794 | prescribed in subsection (12). If, pursuant to the plan of |
| 3795 | termination, cooperative property or real property owned by the |
| 3796 | association is to be sold following termination, the plan must |
| 3797 | provide for the sale and may establish any minimum sale terms. |
| 3798 | (e) Any interests of the respective shareholders in |
| 3799 | insurance proceeds or condemnation proceeds that are not used |
| 3800 | for repair or reconstruction at the time of termination. Unless |
| 3801 | the declaration expressly addresses the distribution of |
| 3802 | insurance proceeds or condemnation proceeds, the plan of |
| 3803 | termination may apportion those proceeds pursuant to any method |
| 3804 | prescribed in subsection (12). |
| 3805 | (11) PLAN OF TERMINATION; OPTIONAL PROVISIONS; CONDITIONAL |
| 3806 | TERMINATION.-- |
| 3807 | (a) The plan of termination may provide that each |
| 3808 | shareholder retains the exclusive right of possession to the |
| 3809 | portion of the real estate that formerly constituted the unit, |
| 3810 | in which case the plan must specify the conditions of |
| 3811 | possession. |
| 3812 | (b) In a conditional termination, the plan must specify |
| 3813 | the conditions for termination. A conditional plan does not vest |
| 3814 | title in the termination trustee until the plan and a |
| 3815 | certificate executed by the association with the formalities of |
| 3816 | a deed, confirming that the conditions in the conditional plan |
| 3817 | have been satisfied or waived by the requisite percentage of the |
| 3818 | voting interests, have been recorded. |
| 3819 | (12) ALLOCATION OF PROCEEDS OF SALE OF COOPERATIVE |
| 3820 | PROPERTY.-- |
| 3821 | (a) Unless the declaration expressly provides for the |
| 3822 | allocation of the proceeds of sale of cooperative property, the |
| 3823 | plan of termination must first apportion the proceeds between |
| 3824 | the aggregate value of all units and the value of the common |
| 3825 | areas, based on their respective fair market values immediately |
| 3826 | before the termination, as determined by one or more independent |
| 3827 | appraisers selected by the association or termination trustee. |
| 3828 | (b) The portion of proceeds allocated to the units shall |
| 3829 | be further apportioned among the individual units. The |
| 3830 | apportionment is deemed fair and reasonable if it is so |
| 3831 | determined by the shareholders, who may approve the plan of |
| 3832 | termination by any of the following methods: |
| 3833 | 1. The respective values of the units based on the fair |
| 3834 | market values of the units immediately before the termination, |
| 3835 | as determined by one or more independent appraisers selected by |
| 3836 | the association or termination trustee; |
| 3837 | 2. The respective values of the units based on the most |
| 3838 | recent market value of the units before the termination, as |
| 3839 | provided in the county property appraiser's records; or |
| 3840 | 3. The respective interests of the units in the common |
| 3841 | elements specified in the cooperative documents immediately |
| 3842 | before the termination. |
| 3843 | (c) The methods of apportionment in paragraph (b) do not |
| 3844 | prohibit any other method of apportioning the proceeds of sale |
| 3845 | allocated to the units agreed upon in the plan of termination. |
| 3846 | The portion of the proceeds allocated to the common elements |
| 3847 | shall be apportioned among the units based upon their respective |
| 3848 | interests in the common areas as provided in the declaration. |
| 3849 | (d) Liens that encumber a unit shall be transferred to the |
| 3850 | proceeds of sale of the cooperative property and the proceeds of |
| 3851 | sale or other distribution of association property, common |
| 3852 | surplus, or other association assets attributable to such unit |
| 3853 | in their same priority. The proceeds of any sale of cooperative |
| 3854 | property pursuant to a plan of termination may not be deemed to |
| 3855 | be common surplus or association property. |
| 3856 | (13) TERMINATION TRUSTEE.--The association shall serve as |
| 3857 | termination trustee unless another person is appointed in the |
| 3858 | plan of termination. If the association is unable, unwilling, or |
| 3859 | fails to act as trustee, any shareholder may petition the court |
| 3860 | to appoint a trustee. Upon the date of the recording or at a |
| 3861 | later date specified in the plan, title to the cooperative |
| 3862 | property vests in the trustee. Unless prohibited by the plan, |
| 3863 | the termination trustee shall be vested with the powers given to |
| 3864 | the board pursuant to the cooperative documents, bylaws, and |
| 3865 | subsection (6). If the association is not the termination |
| 3866 | trustee, the trustee's powers shall be coextensive with those of |
| 3867 | the association to the extent not prohibited in the plan of |
| 3868 | termination or the order of appointment. If the association is |
| 3869 | not the termination trustee, the association shall transfer any |
| 3870 | association property to the trustee. If the association is |
| 3871 | dissolved, the trustee shall also have such other powers |
| 3872 | necessary to conclude the affairs of the association. |
| 3873 | (14) TITLE VESTED IN TERMINATION TRUSTEE.--If termination |
| 3874 | is pursuant to a plan of termination under subsection (2) or |
| 3875 | subsection (3), the shareholders' rights and title as tenants in |
| 3876 | common in undivided interests in the cooperative property vest |
| 3877 | in the termination trustee when the plan is recorded or at a |
| 3878 | later date specified in the plan. The shareholders thereafter |
| 3879 | become the beneficiaries of the proceeds realized from the plan |
| 3880 | of termination. The termination trustee may deal with the |
| 3881 | cooperative property or any interest therein if the plan confers |
| 3882 | on the trustee the authority to protect, conserve, manage, sell, |
| 3883 | or dispose of the cooperative property. The trustee, on behalf |
| 3884 | of the shareholders, may contract for the sale of real property, |
| 3885 | but the contract is not binding on the shareholders until the |
| 3886 | plan is approved pursuant to subsection (2) or subsection (3). |
| 3887 | (15) NOTICE.-- |
| 3888 | (a) Within 30 days after a plan of termination has been |
| 3889 | recorded, the termination trustee shall deliver by certified |
| 3890 | mail, return receipt requested, notice to all shareholders, |
| 3891 | lienors of the cooperative property, and lienors of all units at |
| 3892 | their last known addresses that a plan of termination has been |
| 3893 | recorded. The notice must include the book and page number of |
| 3894 | the public records in which the plan was recorded, notice that a |
| 3895 | copy of the plan shall be furnished upon written request, and |
| 3896 | notice that the shareholder or lienor has the right to contest |
| 3897 | the fairness of the plan. |
| 3898 | (b) The trustee, within 90 days after the effective date |
| 3899 | of the plan, shall provide to the division a certified copy of |
| 3900 | the recorded plan, the date the plan was recorded, and the |
| 3901 | county, book, and page number of the public records in which the |
| 3902 | plan is recorded. |
| 3903 | (16) RIGHT TO CONTEST.--A shareholder or lienor may |
| 3904 | contest a plan of termination by initiating a summary procedure |
| 3905 | pursuant to s. 51.011 within 90 days after the date the plan is |
| 3906 | recorded. A shareholder or lienor who does not contest the plan |
| 3907 | within the 90-day period is barred from asserting or prosecuting |
| 3908 | a claim against the association, the termination trustee, any |
| 3909 | shareholder, or any successor in interest to the cooperative |
| 3910 | property. In an action contesting a plan of termination, the |
| 3911 | person contesting the plan has the burden of pleading and |
| 3912 | proving that the apportionment of the proceeds from the sale |
| 3913 | among the shareholders was not fair and reasonable. The |
| 3914 | apportionment of sale proceeds is presumed fair and reasonable |
| 3915 | if it was determined pursuant to the methods prescribed in |
| 3916 | subsection (12). The court shall determine the rights and |
| 3917 | interests of the parties and order the plan of termination to be |
| 3918 | implemented if it is fair and reasonable. If the court |
| 3919 | determines that the plan of termination is not fair and |
| 3920 | reasonable, the court may void the plan or may modify the plan |
| 3921 | to apportion the proceeds in a fair and reasonable manner |
| 3922 | pursuant to this section based upon the proceedings and order |
| 3923 | the modified plan of termination to be implemented. In such |
| 3924 | action, the prevailing party shall recover reasonable attorney's |
| 3925 | fees and costs. |
| 3926 | (17) DISTRIBUTION.-- |
| 3927 | (a) Following termination of the cooperative, the |
| 3928 | cooperative property, association property, common surplus, and |
| 3929 | other assets of the association shall be held by the termination |
| 3930 | trustee, as trustee for shareholders and holders of liens on the |
| 3931 | units, in their order of priority. |
| 3932 | (b) Not less than 30 days before the first distribution, |
| 3933 | the termination trustee shall deliver by certified mail, return |
| 3934 | receipt requested, a notice of the estimated distribution to all |
| 3935 | shareholders, lienors of the cooperative property, and lienors |
| 3936 | of each unit at their last known addresses stating a good faith |
| 3937 | estimate of the amount of the distributions to each class and |
| 3938 | the procedures and deadline for notifying the termination |
| 3939 | trustee of any objections to the amount. The deadline must be at |
| 3940 | least 15 days after the date the notice was mailed. The notice |
| 3941 | may be sent with or after the notice required by subsection |
| 3942 | (15). If a shareholder or lienor files a timely objection with |
| 3943 | the termination trustee, the trustee need not distribute the |
| 3944 | funds and property allocated to the respective shareholder or |
| 3945 | lienor until the trustee has had a reasonable time to determine |
| 3946 | the validity of the adverse claim. In the alternative, the |
| 3947 | trustee may interplead the shareholder, lienor, and any other |
| 3948 | person claiming an interest in the unit and deposit the funds |
| 3949 | allocated to the unit in the court registry, at which time the |
| 3950 | cooperative property, association property, common surplus, and |
| 3951 | other assets of the association are free of all claims and liens |
| 3952 | of the parties to the suit. In an interpleader action, the |
| 3953 | trustee and prevailing party may recover reasonable attorney's |
| 3954 | fees and costs. |
| 3955 | (c) The proceeds from any sale of cooperative property or |
| 3956 | association property and any remaining cooperative property or |
| 3957 | association property, common surplus, and other assets shall be |
| 3958 | distributed in the following priority: |
| 3959 | 1. To pay the reasonable termination trustee's fees and |
| 3960 | costs and accounting fees and costs. |
| 3961 | 2. To lienholders of liens recorded prior to the recording |
| 3962 | of the cooperative documents. |
| 3963 | 3. To purchase-money lienholders on units to the extent |
| 3964 | necessary to satisfy their liens; however, the distribution may |
| 3965 | not exceed a shareholder's share of the proceeds. |
| 3966 | 4. To creditors of the association, as their interests |
| 3967 | appear. |
| 3968 | 5. To shareholders, the proceeds of any sale of |
| 3969 | cooperative property subject to satisfaction of liens on each |
| 3970 | unit in their order of priority, in shares specified in the plan |
| 3971 | of termination, unless objected to by a shareholder or lienor as |
| 3972 | provided in paragraph (b). |
| 3973 | 6. To shareholders, the remaining cooperative property, |
| 3974 | subject to satisfaction of liens on each unit in their order of |
| 3975 | priority, in shares specified in the plan of termination, unless |
| 3976 | objected to by a shareholder or a lienor as provided in |
| 3977 | paragraph (b). |
| 3978 | 7. To shareholders, the proceeds of any sale of |
| 3979 | association property, the remaining association property, common |
| 3980 | surplus, and other assets of the association, subject to |
| 3981 | satisfaction of liens on each unit in their order of priority, |
| 3982 | in shares specified in the plan of termination, unless objected |
| 3983 | to by a shareholder or a lienor as provided in paragraph (b). |
| 3984 | (d) After determining that all known debts and liabilities |
| 3985 | of an association in the process of termination have been paid |
| 3986 | or adequately provided for, the termination trustee shall |
| 3987 | distribute the remaining assets pursuant to the plan of |
| 3988 | termination. If the termination is by court proceeding or |
| 3989 | subject to court supervision, the distribution may not be made |
| 3990 | until any period for the presentation of claims ordered by the |
| 3991 | court has elapsed. |
| 3992 | (e) Assets held by an association upon a valid condition |
| 3993 | requiring return, transfer, or conveyance, which condition has |
| 3994 | occurred or will occur, shall be returned, transferred, or |
| 3995 | conveyed in accordance with the condition. The remaining |
| 3996 | association assets shall be distributed pursuant to paragraph |
| 3997 | (c). |
| 3998 | (f) Distribution may be made in money, property, or |
| 3999 | securities and in installments or as a lump sum, if it can be |
| 4000 | done fairly and ratably and in conformity with the plan of |
| 4001 | termination. Distribution shall be made as soon as is reasonably |
| 4002 | consistent with the beneficial liquidation of the assets. |
| 4003 | (18) ASSOCIATION STATUS.--The termination of a cooperative |
| 4004 | does not change the corporate status of the association that |
| 4005 | operated the cooperative property. The association continues to |
| 4006 | exist to conclude its affairs, prosecute and defend actions by |
| 4007 | or against it, collect and discharge obligations, dispose of and |
| 4008 | convey its property, and collect and divide its assets, but not |
| 4009 | to act except as necessary to conclude its affairs. |
| 4010 | (19) CREATION OF ANOTHER COOPERATIVE.--The termination of |
| 4011 | a cooperative does not bar the creation by the termination |
| 4012 | trustee of another cooperative affecting any portion of the same |
| 4013 | property. |
| 4014 | Section 21. Section 719.1224, Florida Statutes, is created |
| 4015 | to read: |
| 4016 | 719.1224 Prohibition against SLAPP suits.-- |
| 4017 | (1) It is the intent of the Legislature to protect the |
| 4018 | right of cooperative shareholders to exercise their rights to |
| 4019 | instruct their representatives and petition for redress of |
| 4020 | grievances before the various governmental entities of this |
| 4021 | state as protected by the First Amendment to the United States |
| 4022 | Constitution and s. 5, Art. I of the State Constitution. The |
| 4023 | Legislature recognizes that strategic lawsuits against public |
| 4024 | participation, or "SLAPP suits," as they are typically referred |
| 4025 | to, have occurred when association members are sued by |
| 4026 | individuals, business entities, or governmental entities arising |
| 4027 | out of a cooperative shareholder's appearance and presentation |
| 4028 | before a governmental entity on matters related to the |
| 4029 | cooperative association. However, it is the public policy of |
| 4030 | this state that governmental entities, business organizations, |
| 4031 | and individuals not engage in SLAPP suits because such actions |
| 4032 | are inconsistent with the right of cooperative shareholders to |
| 4033 | participate in the state's institutions of government. |
| 4034 | Therefore, the Legislature finds and declares that prohibiting |
| 4035 | such lawsuits by governmental entities, business entities, and |
| 4036 | individuals against cooperative shareholders who address matters |
| 4037 | concerning their cooperative association will preserve this |
| 4038 | fundamental state policy, preserve the constitutional rights of |
| 4039 | cooperative shareholders, and ensure the continuation of |
| 4040 | representative government in this state. It is the intent of the |
| 4041 | Legislature that such lawsuits be expeditiously disposed of by |
| 4042 | the courts. As used in this subsection, the term "governmental |
| 4043 | entity" means the state, including the executive, legislative, |
| 4044 | and judicial branches of government; the independent |
| 4045 | establishments of the state, counties, municipalities, |
| 4046 | districts, authorities, boards, or commissions; or any agencies |
| 4047 | of these branches that are subject to chapter 286. |
| 4048 | (2) A governmental entity, business organization, or |
| 4049 | individual in this state may not file or cause to be filed |
| 4050 | through its employees or agents any lawsuit, cause of action, |
| 4051 | claim, cross-claim, or counterclaim against a cooperative |
| 4052 | shareholder without merit and solely because such cooperative |
| 4053 | shareholder has exercised the right to instruct his or her |
| 4054 | representatives or the right to petition for redress of |
| 4055 | grievances before the various governmental entities of this |
| 4056 | state, as protected by the First Amendment to the United States |
| 4057 | Constitution and s. 5, Art. I of the State Constitution. |
| 4058 | (3) A cooperative shareholder sued by a governmental |
| 4059 | entity, business organization, or individual in violation of |
| 4060 | this section has a right to an expeditious resolution of a claim |
| 4061 | that the suit is in violation of this section. A cooperative |
| 4062 | shareholder may petition the court for an order dismissing the |
| 4063 | action or granting final judgment in favor of that cooperative |
| 4064 | shareholder. The petitioner may file a motion for summary |
| 4065 | judgment, together with supplemental affidavits, seeking a |
| 4066 | determination that the governmental entity's, business |
| 4067 | organization's, or individual's lawsuit has been brought in |
| 4068 | violation of this section. The governmental entity, business |
| 4069 | organization, or individual shall thereafter file its response |
| 4070 | and any supplemental affidavits. As soon as practicable, the |
| 4071 | court shall set a hearing on the petitioner's motion, which |
| 4072 | shall be held at the earliest possible time after the filing of |
| 4073 | the governmental entity's, business organization's, or |
| 4074 | individual's response. The court may award the cooperative |
| 4075 | shareholder sued by the governmental entity, business |
| 4076 | organization, or individual actual damages arising from the |
| 4077 | governmental entity's, individual's, or business organization's |
| 4078 | violation of this section. A court may treble the damages |
| 4079 | awarded to a prevailing cooperative shareholder and shall state |
| 4080 | the basis for the treble damages award in its judgment. The |
| 4081 | court shall award the prevailing party reasonable attorney's |
| 4082 | fees and costs incurred in connection with a claim that an |
| 4083 | action was filed in violation of this section. |
| 4084 | (4) Cooperative associations may not expend association |
| 4085 | funds in prosecuting a SLAPP suit against a cooperative |
| 4086 | shareholder. |
| 4087 | Section 22. Section 719.1255, Florida Statutes, is amended |
| 4088 | to read: |
| 4089 | 719.1255 Alternative resolution of disputes.--The Division |
| 4090 | of Florida Condominiums, Timeshares, and Mobile Homes of the |
| 4091 | Department of Business and Professional Regulation shall provide |
| 4092 | for alternative dispute resolution of matters related to |
| 4093 | cooperative associations and shareholders in a manner like that |
| 4094 | provided to condominium associations and unit owners in |
| 4095 | accordance with s. 718.1255. |
| 4096 | Section 23. Section 719.1265, Florida Statutes, is created |
| 4097 | to read: |
| 4098 | 719.1265 Association emergency powers.-- |
| 4099 | (1) To the extent allowed by law and unless specifically |
| 4100 | prohibited by the cooperative documents or the bylaws of an |
| 4101 | association, and consistent with the provisions of s. 617.0830, |
| 4102 | the board of directors, in response to damage caused by an event |
| 4103 | for which a state of emergency is declared pursuant to s. 252.36 |
| 4104 | in the locale in which the cooperative is located, may, but is |
| 4105 | not required to, exercise the following powers: |
| 4106 | (a) Conduct board meetings and shareholder meetings with |
| 4107 | notice given as is practicable. Such notice may be given in any |
| 4108 | practicable manner, including publication, radio, United States |
| 4109 | mail, the Internet, public service announcements, and |
| 4110 | conspicuous posting on the cooperative property or any other |
| 4111 | means the board deems reasonable under the circumstances. Notice |
| 4112 | of board decisions may be communicated as provided in this |
| 4113 | paragraph. |
| 4114 | (b) Cancel and reschedule any association meeting. |
| 4115 | (c) Name as assistant officers persons who are not |
| 4116 | directors, which assistant officers shall have the same |
| 4117 | authority as the executive officers to whom they are assistants |
| 4118 | for during the state of emergency to accommodate the incapacity |
| 4119 | or unavailability of any officer of the association. |
| 4120 | (d) Relocate the association's principal office or |
| 4121 | designate alternative principal offices. |
| 4122 | (e) Enter into agreements with local counties and |
| 4123 | municipalities to assist counties and municipalities with debris |
| 4124 | removal. |
| 4125 | (f) Implement a disaster plan before or immediately |
| 4126 | following the event for which a state of emergency is declared |
| 4127 | which may include, but is not limited to, shutting down or off |
| 4128 | elevators; electricity; water, sewer, or security systems; or |
| 4129 | air conditioners. |
| 4130 | (g) Based upon advice of emergency management officials or |
| 4131 | upon the advice of licensed professionals retained by the board, |
| 4132 | determine any portion of the cooperative property unavailable |
| 4133 | for entry or occupancy by shareholders, family members, tenants, |
| 4134 | guests, agents, or invitees to protect the health, safety, or |
| 4135 | welfare of such persons. |
| 4136 | (h) Require the evacuation of the cooperative property in |
| 4137 | the event of a mandatory evacuation order in the locale in which |
| 4138 | the cooperative is located. Should any shareholder or other |
| 4139 | occupant of a cooperative fail or refuse to evacuate the |
| 4140 | cooperative property when the board has required evacuation, the |
| 4141 | association shall be immune from liability or injury to persons |
| 4142 | or property arising from such failure or refusal. |
| 4143 | (i) Based upon advice of emergency management officials or |
| 4144 | upon the advice of licensed professionals retained by the board, |
| 4145 | determine whether the cooperative property can be safely |
| 4146 | inhabited or occupied. However, such determination is not |
| 4147 | conclusive as to any determination of habitability pursuant to |
| 4148 | the declaration. |
| 4149 | (j) Mitigate further damage, including taking action to |
| 4150 | contract for the removal of debris and to prevent or mitigate |
| 4151 | the spread of fungus, including, but not limited to, mold or |
| 4152 | mildew, by removing and disposing of wet drywall, insulation, |
| 4153 | carpet, cabinetry, or other fixtures on or within the |
| 4154 | cooperative property, even if the shareholder is obligated by |
| 4155 | the cooperative documents or law to insure or replace those |
| 4156 | fixtures and to remove personal property from a unit. |
| 4157 | (k) Contract, on behalf of any shareholder or |
| 4158 | shareholders, for items or services for which the shareholder or |
| 4159 | shareholders are otherwise individually responsible, but which |
| 4160 | are necessary to prevent further damage to the cooperative |
| 4161 | property. In such event, the shareholder or shareholders on |
| 4162 | whose behalf the board has contracted are responsible for |
| 4163 | reimbursing the association for the actual costs of the items or |
| 4164 | services, and the association may use its lien authority |
| 4165 | provided by s. 719.108 to enforce collection of the charges. |
| 4166 | Without limitation, such items or services may include the |
| 4167 | drying of units, the boarding of broken windows or doors, and |
| 4168 | the replacement of damaged air conditioners or air handlers to |
| 4169 | provide climate control in the units or other portions of the |
| 4170 | property. |
| 4171 | (l) Regardless of any provision to the contrary and even |
| 4172 | if such authority does not specifically appear in the |
| 4173 | cooperative documents or bylaws of the association, levy special |
| 4174 | assessments without a vote of the shareholders. |
| 4175 | (m) Without shareholders' approval, borrow money and |
| 4176 | pledge association assets as collateral to fund emergency |
| 4177 | repairs and carry out the duties of the association when |
| 4178 | operating funds are insufficient. This paragraph does not limit |
| 4179 | the general authority of the association to borrow money, |
| 4180 | subject to such restrictions as are contained in the cooperative |
| 4181 | documents or bylaws of the association. |
| 4182 | (2) The special powers authorized under subsection (1) |
| 4183 | shall be limited to the time reasonably necessary to protect the |
| 4184 | health, safety, and welfare of the association and the |
| 4185 | shareholders and the shareholders' family members, tenants, |
| 4186 | guests, agents, or invitees and the time reasonably necessary to |
| 4187 | mitigate further damage and make emergency repairs. |
| 4188 | Additionally, unless 20 percent or more of the units are made |
| 4189 | uninhabitable by the emergency, the special powers authorized |
| 4190 | under subsection (1) shall only be exercised during the term of |
| 4191 | the Governor's executive order or proclamation declaring the |
| 4192 | state of emergency in the locale in which the condominium is |
| 4193 | located. |
| 4194 | Section 24. Subsections (1) and (4) of section 719.301, |
| 4195 | Florida Statutes, are amended to read: |
| 4196 | 719.301 Transfer of association control.-- |
| 4197 | (1) When shareholders unit owners other than the developer |
| 4198 | own 15 percent or more of the units in a cooperative that will |
| 4199 | be operated ultimately by an association, the shareholders unit |
| 4200 | owners other than the developer shall be entitled to elect not |
| 4201 | less than one-third of the members of the board of |
| 4202 | administration of the association. Shareholders Unit owners |
| 4203 | other than the developer are entitled to elect not less than a |
| 4204 | majority of the members of the board of administration of an |
| 4205 | association: |
| 4206 | (a) Three years after 50 percent of the units that will be |
| 4207 | operated ultimately by the association have been conveyed to |
| 4208 | purchasers; |
| 4209 | (b) Three months after 90 percent of the units that will |
| 4210 | be operated ultimately by the association have been conveyed to |
| 4211 | purchasers; |
| 4212 | (c) When all the units that will be operated ultimately by |
| 4213 | the association have been completed, some have been conveyed to |
| 4214 | purchasers, and none of the others are being offered for sale by |
| 4215 | the developer in the ordinary course of business; |
| 4216 | (d) When some of the units have been conveyed to |
| 4217 | purchasers and none of the others are being constructed or |
| 4218 | offered for sale by the developer in the ordinary course of |
| 4219 | business; or |
| 4220 | (e) When the developer files a petition seeking protection |
| 4221 | in bankruptcy; |
| 4222 | (f) When a receiver for the developer is appointed by a |
| 4223 | circuit court and is not discharged within 30 days after such |
| 4224 | appointment; or |
| 4225 | (g)(e) Seven years after creation of the cooperative |
| 4226 | association, |
| 4227 |
|
| 4228 | whichever occurs first. The developer is entitled to elect at |
| 4229 | least one member of the board of administration of an |
| 4230 | association as long as the developer holds for sale in the |
| 4231 | ordinary course of business at least 5 percent in cooperatives |
| 4232 | with fewer than 500 units and 2 percent in cooperatives with 500 |
| 4233 | or more units in a cooperative operated by the association. |
| 4234 | After the developer relinquishes control of the association, the |
| 4235 | developer may exercise the right to vote any developer-owned |
| 4236 | units in the same manner as any other shareholder unit owner |
| 4237 | except for purposes of reacquiring control of the association or |
| 4238 | selecting the majority of the members of the board. |
| 4239 | (4) When shareholders unit owners other than the developer |
| 4240 | elect a majority of the members of the board of administration |
| 4241 | of an association, the developer shall relinquish control of the |
| 4242 | association, and the shareholders unit owners shall accept |
| 4243 | control. Simultaneously, or for the purpose of paragraph (c) not |
| 4244 | more than 90 days thereafter, the developer shall deliver to the |
| 4245 | association, at the developer's expense, all property of the |
| 4246 | shareholders unit owners and of the association held or |
| 4247 | controlled by the developer, including, but not limited to, the |
| 4248 | following items, if applicable, as to each cooperative operated |
| 4249 | by the association: |
| 4250 | (a)1. The original or a photocopy of the recorded |
| 4251 | cooperative documents and all amendments thereto. If a photocopy |
| 4252 | is provided, it shall be certified by affidavit of the |
| 4253 | developer, or an officer or agent of the developer, as being a |
| 4254 | complete copy of the actual recorded cooperative documents. |
| 4255 | 2. A certified copy of the association's articles of |
| 4256 | incorporation, or if it is not incorporated, then copies of the |
| 4257 | documents creating the association. |
| 4258 | 3. A copy of the bylaws. |
| 4259 | 4. The minute books, including all minutes, and other |
| 4260 | books and records of the association, if any. |
| 4261 | 5. Any house rules and regulations which have been |
| 4262 | promulgated. |
| 4263 | (b) Resignations of officers and members of the board of |
| 4264 | administration who are required to resign because the developer |
| 4265 | is required to relinquish control of the association. |
| 4266 | (c) The financial records, including financial statements |
| 4267 | of the association, and source documents since the incorporation |
| 4268 | of the association through the date of turnover. The records |
| 4269 | shall be audited for the period of the incorporation of the |
| 4270 | association or for the period covered by the last audit, if an |
| 4271 | audit has been performed for each fiscal year since |
| 4272 | incorporation, by an independent certified public accountant. |
| 4273 | All financial statements shall be prepared in accordance with |
| 4274 | generally accepted accounting standards and shall be audited in |
| 4275 | accordance with generally accepted auditing standards as |
| 4276 | prescribed by the Board of Accountancy. The accountant |
| 4277 | performing the review shall examine to the extent necessary |
| 4278 | supporting documents and records, including the cash |
| 4279 | disbursements and related paid invoices to determine if |
| 4280 | expenditures were for association purposes and the billings, |
| 4281 | cash receipts, and related records to determine that the |
| 4282 | developer was charged and paid the proper amounts of |
| 4283 | assessments. |
| 4284 | (d) Association funds or control thereof. |
| 4285 | (e) All tangible personal property that is property of the |
| 4286 | association, represented by the developer to be part of the |
| 4287 | common areas or ostensibly part of the common areas, and an |
| 4288 | inventory of that property. |
| 4289 | (f) A copy of the plans and specifications utilized in the |
| 4290 | construction or remodeling of improvements and the supplying of |
| 4291 | equipment to the cooperative and in the construction and |
| 4292 | installation of all mechanical components serving the |
| 4293 | improvements and the site, with a certificate in affidavit form |
| 4294 | of the developer, the developer's agent, or an architect or |
| 4295 | engineer authorized to practice in this state that such plans |
| 4296 | and specifications represent, to the best of their knowledge and |
| 4297 | belief, the actual plans and specifications utilized in the |
| 4298 | construction and improvement of the cooperative property and for |
| 4299 | the construction and installation of the mechanical components |
| 4300 | serving the improvements. If the cooperative property has been |
| 4301 | organized as a cooperative more than 3 years after the |
| 4302 | completion of construction or remodeling of the improvements, |
| 4303 | the requirements of this paragraph shall not apply. |
| 4304 | (g) A list of the names and addresses, of which the |
| 4305 | developer had knowledge at any time in the development of the |
| 4306 | cooperative, of all contractors, subcontractors, and suppliers |
| 4307 | utilized in the construction or remodeling of the improvements |
| 4308 | and in the landscaping. |
| 4309 | (h) Insurance policies. |
| 4310 | (i) Copies of any certificates of occupancy which may have |
| 4311 | been issued for the cooperative property. |
| 4312 | (j) Any other permits issued by governmental bodies |
| 4313 | applicable to the cooperative property in force or issued within |
| 4314 | 1 year prior to the date the shareholders unit owners other than |
| 4315 | the developer take control of the association. |
| 4316 | (k) All written warranties of the contractor, |
| 4317 | subcontractors, suppliers, and manufacturers, if any, that are |
| 4318 | still effective. |
| 4319 | (l) A roster of shareholders unit owners and their |
| 4320 | addresses and telephone numbers, if known, as shown on the |
| 4321 | developer's records. |
| 4322 | (m) Leases of the common areas and other leases to which |
| 4323 | the association is a party. |
| 4324 | (n) Employment contracts or service contracts in which the |
| 4325 | association is one of the contracting parties or service |
| 4326 | contracts in which the association or the shareholders unit |
| 4327 | owners have an obligation or responsibility, directly or |
| 4328 | indirectly, to pay some or all of the fee or charge of the |
| 4329 | person or persons performing the service. |
| 4330 | (o) All other contracts to which the association is a |
| 4331 | party. |
| 4332 | (p) A turnover inspection report included in the official |
| 4333 | records, under seal of an architect or engineer authorized to |
| 4334 | practice in this state, attesting to required maintenance, |
| 4335 | useful life, and replacement costs of the following applicable |
| 4336 | common areas: |
| 4337 | 1. Roof. |
| 4338 | 2. Structure. |
| 4339 | 3. Fireproofing and fire protection systems. |
| 4340 | 4. Elevators. |
| 4341 | 5. Heating and cooling systems. |
| 4342 | 6. Plumbing. |
| 4343 | 7. Electrical systems. |
| 4344 | 8. Swimming pool or spa and equipment. |
| 4345 | 9. Seawalls. |
| 4346 | 10. Pavement and parking areas. |
| 4347 | 11. Drainage systems. |
| 4348 | 12. Painting. |
| 4349 | 13. Irrigation systems. |
| 4350 | Section 25. Section 719.3025, Florida Statutes, is created |
| 4351 | to read: |
| 4352 | 719.3025 Agreements for operation, maintenance, or |
| 4353 | management of cooperatives; specific requirements.-- |
| 4354 | (1) No written contract between a party contracting to |
| 4355 | provide maintenance or management services and an association |
| 4356 | which contract provides for operation, maintenance, or |
| 4357 | management of a cooperative association or property serving the |
| 4358 | shareholders of a cooperative shall be valid or enforceable |
| 4359 | unless the contract: |
| 4360 | (a) Specifies the services, obligations, and |
| 4361 | responsibilities of the party contracting to provide maintenance |
| 4362 | or management services to the shareholders. |
| 4363 | (b) Specifies those costs incurred in the performance of |
| 4364 | those services, obligations, or responsibilities which are to be |
| 4365 | reimbursed by the association to the party contracting to |
| 4366 | provide maintenance or management services. |
| 4367 | (c) Provides an indication of how often each service, |
| 4368 | obligation, or responsibility is to be performed, whether stated |
| 4369 | for each service, obligation, or responsibility or in categories |
| 4370 | thereof. |
| 4371 | (d) Specifies a minimum number of personnel to be employed |
| 4372 | by the party contracting to provide maintenance or management |
| 4373 | services for the purpose of providing service to the |
| 4374 | association. |
| 4375 | (e) Discloses any financial or ownership interest which |
| 4376 | the developer, if the developer is in control of the |
| 4377 | association, holds with regard to the party contracting to |
| 4378 | provide maintenance or management services. |
| 4379 | (f) Discloses any financial or ownership interest a board |
| 4380 | member or any party providing maintenance or management services |
| 4381 | to the association holds with the contracting party. |
| 4382 | (2) In any case in which the party contracting to provide |
| 4383 | maintenance or management services fails to provide such |
| 4384 | services in accordance with the contract, the association is |
| 4385 | authorized to procure such services from some other party and |
| 4386 | shall be entitled to collect any fees or charges paid for |
| 4387 | services performed by another party from the party contracting |
| 4388 | to provide maintenance or management services. |
| 4389 | (3) Any services or obligations not stated on the face of |
| 4390 | the contract shall be unenforceable. |
| 4391 | (4) Notwithstanding the fact that certain vendors contract |
| 4392 | with associations to maintain equipment or property which is |
| 4393 | made available to serve shareholders, it is the intent of the |
| 4394 | Legislature that this section applies to contracts for |
| 4395 | maintenance or management services for which the association |
| 4396 | pays compensation. This section does not apply to contracts for |
| 4397 | services or property made available for the convenience of |
| 4398 | shareholders by lessees or licensees of the association, such as |
| 4399 | coin-operated laundry, food, soft drink, or telephone vendors; |
| 4400 | cable television operators; retail store operators; businesses; |
| 4401 | restaurants; or similar vendors. |
| 4402 | Section 26. Section 719.3026, Florida Statutes, is amended |
| 4403 | to read: |
| 4404 | 719.3026 Contracts for products and services; in writing; |
| 4405 | bids; exceptions.--Associations with 10 or fewer less than 100 |
| 4406 | units may opt out of the provisions of this section if two- |
| 4407 | thirds of the shareholders unit owners vote to do so, which opt- |
| 4408 | out may be accomplished by a proxy specifically setting forth |
| 4409 | the exception from this section. |
| 4410 | (1) All contracts as further described herein or any |
| 4411 | contract that is not to be fully performed within 1 year after |
| 4412 | the making thereof, for the purchase, lease, or renting of |
| 4413 | materials or equipment to be used by the association in |
| 4414 | accomplishing its purposes under this chapter, and all contracts |
| 4415 | for the provision of services, shall be in writing. If a |
| 4416 | contract for the purchase, lease, or renting of materials or |
| 4417 | equipment, or for the provision of services, requires payment by |
| 4418 | the association in an amount which in the aggregate exceeds 5 |
| 4419 | percent of the association's budget, including reserves, the |
| 4420 | association shall obtain competitive bids for the materials, |
| 4421 | equipment, or services. Nothing contained herein shall be |
| 4422 | construed to require the association to accept the lowest bid. |
| 4423 | (2)(a)1. Notwithstanding the foregoing, contracts with |
| 4424 | employees of the association, and contracts for attorney, |
| 4425 | accountant, architect, community association manager, timeshare |
| 4426 | management firm, engineering, and landscape architect services |
| 4427 | shall not be subject to the provisions of this section. |
| 4428 | 2. A contract executed before January 1, 1992, and any |
| 4429 | renewal thereof, is not subject to the competitive bid |
| 4430 | requirements of this section. If a contract was awarded under |
| 4431 | the competitive bid procedures of this section, any renewal of |
| 4432 | that contract is not subject to such competitive bid |
| 4433 | requirements if the contract contains a provision that allows |
| 4434 | the board to cancel the contract on 30 days' notice. Materials, |
| 4435 | equipment, or services provided to a cooperative pursuant to a |
| 4436 | local government franchise agreement by a franchise holder are |
| 4437 | not subject to the competitive bid requirement. A contract with |
| 4438 | a manager, if made by a competitive bid, may be made for up to 3 |
| 4439 | years. A condominium whose declaration or bylaws provides for |
| 4440 | competitive bidding for services may operate under the |
| 4441 | provisions of that declaration or bylaws in lieu of this section |
| 4442 | if those provisions are not less stringent than the requirements |
| 4443 | of this section. |
| 4444 | (b) This section does not limit the ability of an |
| 4445 | association to obtain needed products and services in an |
| 4446 | emergency. |
| 4447 | (c) This section does not apply if the business entity |
| 4448 | with which the association desires to enter into a contract is |
| 4449 | the only source of supply within the county serving the |
| 4450 | association. |
| 4451 | (d) Nothing contained in this subsection shall excuse a |
| 4452 | party contracting to provide maintenance or management services |
| 4453 | from compliance with s. 719.3025. |
| 4454 | (3) As to any contract or other transaction between an |
| 4455 | association and one or more of its directors or any other |
| 4456 | corporation, firm, association, or entity in which one or more |
| 4457 | of its directors are directors or officers or are financially |
| 4458 | interested: |
| 4459 | (a) The association shall comply with the requirements of |
| 4460 | s. 617.0832. |
| 4461 | (b) The disclosures required by s. 617.0832 shall be |
| 4462 | entered into the written minutes of the meeting. |
| 4463 | (c) Approval of the contract or other transaction shall |
| 4464 | require an affirmative vote of two-thirds of the directors |
| 4465 | present. |
| 4466 | (d) At the next regular or special meeting of the |
| 4467 | shareholders, the existence of the contract or other transaction |
| 4468 | shall be disclosed to the shareholders. Upon motion of any |
| 4469 | shareholder, the contract or transaction shall be brought up for |
| 4470 | a vote and may be canceled by a majority vote of the |
| 4471 | shareholders present. Should the shareholders cancel the |
| 4472 | contract, the association shall only be liable for the |
| 4473 | reasonable value of goods and services provided up to the time |
| 4474 | of cancellation and shall not be liable for any termination fee, |
| 4475 | liquidated damages, or other form of penalty for such |
| 4476 | cancellation. |
| 4477 | Section 27. Section 719.303, Florida Statutes, is amended |
| 4478 | to read: |
| 4479 | 719.303 Obligations of shareholders owners.-- |
| 4480 | (1) Each shareholder unit owner, each tenant and other |
| 4481 | invitee, and each association shall be governed by, and shall |
| 4482 | comply with the provisions of, this chapter, the cooperative |
| 4483 | documents, the documents creating the association, and the |
| 4484 | association bylaws, and the provisions thereof shall be deemed |
| 4485 | expressly incorporated into any lease of a unit. Actions for |
| 4486 | damages or for injunctive relief, or both, for failure to comply |
| 4487 | with these provisions may be brought by the association or by a |
| 4488 | shareholder unit owner against: |
| 4489 | (a) The association. |
| 4490 | (b) A shareholder unit owner. |
| 4491 | (c) Directors designated by the developer, for actions |
| 4492 | taken by them prior to the time control of the association is |
| 4493 | assumed by shareholders unit owners other than the developer. |
| 4494 | (d) Any director who willfully and knowingly fails to |
| 4495 | comply with these provisions. |
| 4496 | (e) Any tenant leasing a unit, and any other invitee |
| 4497 | occupying a unit. |
| 4498 |
|
| 4499 | The prevailing party in any such action or in any action in |
| 4500 | which the purchaser claims a right of voidability based upon |
| 4501 | contractual provisions as required in s. 719.503(1)(a) is |
| 4502 | entitled to recover reasonable attorney's fees. A shareholder |
| 4503 | unit owner prevailing in an action between the association and |
| 4504 | the shareholder unit owner under this section, in addition to |
| 4505 | recovering his or her reasonable attorney's fees, may recover |
| 4506 | additional amounts as determined by the court to be necessary to |
| 4507 | reimburse the shareholder unit owner for his or her share of |
| 4508 | assessments levied by the association to fund its expenses of |
| 4509 | the litigation. This relief does not exclude other remedies |
| 4510 | provided by law. Actions arising under this subsection shall not |
| 4511 | be deemed to be actions for specific performance. |
| 4512 | (2) A provision of this chapter may not be waived if the |
| 4513 | waiver would adversely affect the rights of a shareholder unit |
| 4514 | owner or the purpose of the provision, except that shareholders |
| 4515 | unit owners or members of a board of administration may waive |
| 4516 | notice of specific meetings in writing if provided by the |
| 4517 | bylaws. Any instrument given in writing by the shareholder unit |
| 4518 | owner or purchaser to an escrow agent may be relied upon by an |
| 4519 | escrow agent, whether or not such instruction and the payment of |
| 4520 | funds thereunder might constitute a waiver of any provision of |
| 4521 | this chapter. |
| 4522 | (3) If the cooperative documents so provide, the |
| 4523 | association may levy reasonable fines against a shareholder unit |
| 4524 | owner for failure of the shareholder unit owner or his or her |
| 4525 | licensee or invitee or the unit's occupant to comply with any |
| 4526 | provision of the cooperative documents or reasonable rules of |
| 4527 | the association. No fine shall become a lien against a unit. No |
| 4528 | fine shall exceed $100 per violation. However, a fine may be |
| 4529 | levied on the basis of each day of a continuing violation, with |
| 4530 | a single notice and opportunity for hearing, provided that no |
| 4531 | such fine shall in the aggregate exceed $1,000. No fine may be |
| 4532 | levied except after giving reasonable notice and opportunity for |
| 4533 | a hearing to the shareholder unit owner and, if applicable, his |
| 4534 | or her licensee or invitee. The hearing shall be held before a |
| 4535 | committee of other shareholders who are neither board members |
| 4536 | nor persons residing in a board member's household unit owners. |
| 4537 | If the committee does not agree with the fine, it shall not be |
| 4538 | levied. This subsection does not apply to unoccupied units. |
| 4539 | Section 28. Section 719.501, Florida Statutes, is amended |
| 4540 | to read: |
| 4541 | 719.501 Authority, responsibilities, Powers and duties of |
| 4542 | Division of Florida Condominiums, Timeshares, and Mobile |
| 4543 | Homes.-- |
| 4544 | (1) The Division of Florida Condominiums, Timeshares, and |
| 4545 | Mobile Homes of the Department of Business and Professional |
| 4546 | Regulation, referred to as the "division" in this part, in |
| 4547 | addition to other powers and duties prescribed by chapter 718, |
| 4548 | has the power to enforce and ensure compliance with this chapter |
| 4549 | and adopted rules relating to the development, construction, |
| 4550 | sale, lease, ownership, operation, and management of residential |
| 4551 | cooperative units. In performing its duties, the division has |
| 4552 | complete jurisdiction to investigate complaints and enforce |
| 4553 | compliance with the provisions of this chapter. shall have the |
| 4554 | following powers and duties: |
| 4555 | (a) The division may make necessary public or private |
| 4556 | investigations within or outside this state to determine whether |
| 4557 | any person has violated this chapter or any rule or order |
| 4558 | hereunder, to aid in the enforcement of this chapter, or to aid |
| 4559 | in the adoption of rules or forms hereunder. |
| 4560 | (b) The division may require or permit any person to file |
| 4561 | a statement in writing, under oath or otherwise, as the division |
| 4562 | determines, as to the facts and circumstances concerning a |
| 4563 | matter to be investigated. |
| 4564 | (c) For the purpose of any investigation under this |
| 4565 | chapter, the division director or any officer or employee |
| 4566 | designated by the division director may administer oaths or |
| 4567 | affirmations, subpoena witnesses and compel their attendance, |
| 4568 | take evidence, and require the production of any matter which is |
| 4569 | relevant to the investigation, including the existence, |
| 4570 | description, nature, custody, condition, and location of any |
| 4571 | books, documents, or other tangible things and the identity and |
| 4572 | location of persons having knowledge of relevant facts or any |
| 4573 | other matter reasonably calculated to lead to the discovery of |
| 4574 | material evidence. Upon failure by a person to obey a subpoena |
| 4575 | or to answer questions propounded by the investigating officer |
| 4576 | and upon reasonable notice to all persons affected thereby, the |
| 4577 | division may apply to the circuit court for an order compelling |
| 4578 | compliance. |
| 4579 | (d) Notwithstanding any remedies available to shareholders |
| 4580 | unit owners and associations, if the division has reasonable |
| 4581 | cause to believe that a violation of any provision of this |
| 4582 | chapter or related rule has occurred, the division may institute |
| 4583 | enforcement proceedings in its own name against a developer, |
| 4584 | association, officer, or member of the board, or its assignees |
| 4585 | or agents, as follows: |
| 4586 | 1. The division may permit a person whose conduct or |
| 4587 | actions may be under investigation to waive formal proceedings |
| 4588 | and enter into a consent proceeding whereby orders, rules, or |
| 4589 | letters of censure or warning, whether formal or informal, may |
| 4590 | be entered against the person. |
| 4591 | 2. The division may issue an order requiring the |
| 4592 | developer, association, officer, or member of the board, or its |
| 4593 | assignees or agents, or any community association manager or |
| 4594 | community association management firm to cease and desist from |
| 4595 | the unlawful practice and take such affirmative action as in the |
| 4596 | judgment of the division will carry out the purposes of this |
| 4597 | chapter. If the division finds that a developer, association, |
| 4598 | officer, or member of the board of directors, or its assignees |
| 4599 | or agents, or any community association manager or community |
| 4600 | association management firm is violating or is about to violate |
| 4601 | any provision of this chapter, any rule adopted or order issued |
| 4602 | by the division, or any written agreement entered into with the |
| 4603 | division, and presents an immediate danger to the public |
| 4604 | requiring an immediate final order, it may issue an emergency |
| 4605 | cease and desist order reciting with particularity the facts |
| 4606 | underlying such findings. The emergency cease and desist order |
| 4607 | is effective for 90 days. If the division begins nonemergency |
| 4608 | cease and desist proceedings, the emergency cease and desist |
| 4609 | order remains effective until the conclusion of the proceedings |
| 4610 | under ss. 120.569 and 120.57. Such affirmative action may |
| 4611 | include, but is not limited to, an order requiring a developer |
| 4612 | to pay moneys determined to be owed to a condominium |
| 4613 | association. |
| 4614 | 3. If a developer fails to pay any restitution determined |
| 4615 | by the division to be owed, plus any accrued interest at the |
| 4616 | highest rate permitted by law, within 30 days after expiration |
| 4617 | of any appellate time period of a final order requiring payment |
| 4618 | of restitution or the conclusion of any appeal thereof, |
| 4619 | whichever is later, the division shall bring an action in |
| 4620 | circuit or county court on behalf of any association, class of |
| 4621 | shareholders, lessees, or purchasers for restitution, |
| 4622 | declaratory relief, injunctive relief, or any other available |
| 4623 | remedy. The division may also temporarily revoke its acceptance |
| 4624 | of the filing for the developer to which the restitution relates |
| 4625 | until payment of restitution is made. The division may bring an |
| 4626 | action in circuit court on behalf of a class of unit owners, |
| 4627 | lessees, or purchasers for declaratory relief, injunctive |
| 4628 | relief, or restitution. |
| 4629 | 4. The division may petition the court for the appointment |
| 4630 | of a receiver or conservator. If appointed, the receiver or |
| 4631 | conservator may take action to implement the court order to |
| 4632 | ensure the performance of the order and to remedy any breach |
| 4633 | thereof. In addition to all other means provided by law for the |
| 4634 | enforcement of an injunction or temporary restraining order, the |
| 4635 | circuit court may impound or sequester the property of a party |
| 4636 | defendant, including books, papers, documents, and related |
| 4637 | records, and allow the examination and use of the property by |
| 4638 | the division and a court-appointed receiver or conservator. |
| 4639 | 5. The division may apply to the circuit court for an |
| 4640 | order of restitution in which the defendant in an action brought |
| 4641 | pursuant to subparagraph 4. shall be ordered to make restitution |
| 4642 | of those sums shown by the division to have been obtained by the |
| 4643 | defendant in violation of this chapter. Such restitution shall, |
| 4644 | at the option of the court, be payable to the conservator or |
| 4645 | receiver appointed pursuant to subparagraph 4. or directly to |
| 4646 | the persons whose funds or assets were obtained in violation of |
| 4647 | this chapter. |
| 4648 | 6.4. The division may impose a civil penalty against a |
| 4649 | developer or association, or its assignees or agents, for any |
| 4650 | violation of this chapter or related rule adopted under this |
| 4651 | chapter. The division may impose a civil penalty individually |
| 4652 | against any officer or board member who willfully and knowingly |
| 4653 | violates a provision of this chapter, a rule adopted pursuant to |
| 4654 | this chapter, or a final order of the division; may order the |
| 4655 | removal of such individual as an officer or from the board of |
| 4656 | directors or as an officer of the association; and may prohibit |
| 4657 | such individual from serving as an officer or on the board of a |
| 4658 | community association for a stated period of time. The term |
| 4659 | "willfully and knowingly" means that the division informed the |
| 4660 | officer or board member that his or her action or intended |
| 4661 | action violates this chapter, a rule adopted under this chapter, |
| 4662 | or a final order of the division, and that the officer or board |
| 4663 | member refused to comply with the requirements of this chapter, |
| 4664 | a rule adopted under this chapter, or a final order of the |
| 4665 | division. The division, prior to initiating formal agency action |
| 4666 | under chapter 120, shall afford the officer or board member an |
| 4667 | opportunity to voluntarily comply with this chapter, a rule |
| 4668 | adopted under this chapter, or a final order of the division. An |
| 4669 | officer or board member who complies within 10 days is not |
| 4670 | subject to a civil penalty. A penalty may be imposed on the |
| 4671 | basis of each day of continuing violation, but in no event shall |
| 4672 | the penalty for any offense exceed $5,000. By January 1, 1998, |
| 4673 | the division shall adopt, by rule, penalty guidelines applicable |
| 4674 | to possible violations or to categories of violations of this |
| 4675 | chapter or rules adopted by the division. The guidelines must |
| 4676 | specify a meaningful range of civil penalties for each such |
| 4677 | violation of the statute and rules and must be based upon the |
| 4678 | harm caused by the violation, the repetition of the violation, |
| 4679 | and upon such other factors deemed relevant by the division. For |
| 4680 | example, the division may consider whether the violations were |
| 4681 | committed by a developer or shareholder-controlled owner- |
| 4682 | controlled association, the size of the association, and other |
| 4683 | factors. The guidelines must designate the possible mitigating |
| 4684 | or aggravating circumstances that justify a departure from the |
| 4685 | range of penalties provided by the rules. It is the legislative |
| 4686 | intent that minor violations be distinguished from those which |
| 4687 | endanger the health, safety, or welfare of the cooperative |
| 4688 | residents or other persons and that such guidelines provide |
| 4689 | reasonable and meaningful notice to the public of likely |
| 4690 | penalties that may be imposed for proscribed conduct. This |
| 4691 | subsection does not limit the ability of the division to |
| 4692 | informally dispose of administrative actions or complaints by |
| 4693 | stipulation, agreed settlement, or consent order. All amounts |
| 4694 | collected shall be deposited with the Chief Financial Officer to |
| 4695 | the credit of the Division of Florida Condominiums, Timeshares, |
| 4696 | and Mobile Homes Trust Fund. If a developer fails to pay the |
| 4697 | civil penalty and the amount deemed to be owed to the |
| 4698 | association, the division shall thereupon issue an order |
| 4699 | directing that such developer cease and desist from further |
| 4700 | operation until such time as the civil penalty is paid or may |
| 4701 | pursue enforcement of the penalty in a court of competent |
| 4702 | jurisdiction. If an association fails to pay the civil penalty, |
| 4703 | the division shall thereupon pursue enforcement in a court of |
| 4704 | competent jurisdiction, and the order imposing the civil penalty |
| 4705 | or the cease and desist order shall not become effective until |
| 4706 | 20 days after the date of such order. Any action commenced by |
| 4707 | the division shall be brought in the county in which the |
| 4708 | division has its executive offices or in the county where the |
| 4709 | violation occurred. |
| 4710 | 7. If a shareholder presents the division with proof that |
| 4711 | the shareholder has requested access to official records in |
| 4712 | writing by certified mail, and that after 10 days the |
| 4713 | shareholder again made the same request for access to official |
| 4714 | records in writing by certified mail, and that more than 10 days |
| 4715 | has elapsed since the second request and the association has |
| 4716 | still failed or refused to provide access to official records as |
| 4717 | required by this chapter, the division shall issue a subpoena |
| 4718 | requiring production of the requested records where the records |
| 4719 | are kept pursuant to s. 719.104. |
| 4720 | 8. In addition to subparagraph 6., the division may seek |
| 4721 | the imposition of a civil penalty through the circuit court for |
| 4722 | any violation for which the division may issue a notice to show |
| 4723 | cause under paragraph (r). The civil penalty shall be at least |
| 4724 | $500 but no more than $5,000 for each violation. The court may |
| 4725 | also award to the prevailing party court costs and reasonable |
| 4726 | attorney's fees and, if the division prevails, may also award |
| 4727 | reasonable costs of investigation. |
| 4728 | 9. When the division finds that any person has derived an |
| 4729 | improper personal benefit from a cooperative association, the |
| 4730 | division shall order the person to pay restitution to the |
| 4731 | association and shall order the person to pay to the division |
| 4732 | the costs of investigation and prosecution. |
| 4733 | (e) The division may prepare and disseminate a prospectus |
| 4734 | and other information to assist prospective shareholders owners, |
| 4735 | purchasers, lessees, and developers of residential cooperatives |
| 4736 | in assessing the rights, privileges, and duties pertaining |
| 4737 | thereto. |
| 4738 | (f) The division has authority to adopt rules pursuant to |
| 4739 | ss. 120.536(1) and 120.54 to implement and enforce the |
| 4740 | provisions of this chapter. |
| 4741 | (g) The division shall establish procedures for providing |
| 4742 | notice to an association and the developer during the period |
| 4743 | when the developer controls the association when the division is |
| 4744 | considering the issuance of a declaratory statement with respect |
| 4745 | to the cooperative documents governing such cooperative |
| 4746 | community. |
| 4747 | (h) The division shall furnish each association which pays |
| 4748 | the fees required by paragraph (2)(a) a copy of this chapter |
| 4749 | act, subsequent changes to this act on an annual basis, as an |
| 4750 | amended version of this act as it becomes available from the |
| 4751 | Secretary of State's office on a biennial basis, and the rules |
| 4752 | adopted thereto on an annual basis. |
| 4753 | (i) The division shall annually provide each association |
| 4754 | with a summary of declaratory statements and formal legal |
| 4755 | opinions relating to the operations of cooperatives which were |
| 4756 | rendered by the division during the previous year. |
| 4757 | (j) The division shall adopt uniform accounting |
| 4758 | principles, policies, and standards to be used by all |
| 4759 | associations in the preparation and presentation of all |
| 4760 | financial statements required by this chapter. The principles, |
| 4761 | policies, and standards shall take into consideration the size |
| 4762 | of the association and the total revenue collected by the |
| 4763 | association. |
| 4764 | (j)(k) The division shall provide training and educational |
| 4765 | programs for cooperative association board members and |
| 4766 | shareholders unit owners. The training may, in the division's |
| 4767 | discretion, include web-based electronic media and live training |
| 4768 | and seminars in various locations throughout the state. The |
| 4769 | division shall have the authority to review and approve |
| 4770 | educational and training programs for board members and |
| 4771 | shareholders offered by providers and shall maintain a current |
| 4772 | list of approved programs and providers and shall make such list |
| 4773 | available to board members and shareholders in a reasonable and |
| 4774 | cost-effective manner. |
| 4775 | (k)(l) The division shall maintain a toll-free telephone |
| 4776 | number accessible to cooperative shareholders unit owners. |
| 4777 | (l) The division shall develop a program to certify both |
| 4778 | volunteer and paid mediators to provide mediation of cooperative |
| 4779 | disputes. The division shall provide, upon request, a list of |
| 4780 | such mediators to any association, shareholder, or other |
| 4781 | participant in arbitration proceedings under s. 719.1255 |
| 4782 | requesting a copy of the list. The division shall include on the |
| 4783 | list of volunteer mediators only the names of persons who have |
| 4784 | received at least 20 hours of training in mediation techniques |
| 4785 | or who have mediated at least 20 disputes. In order to become |
| 4786 | initially certified by the division, paid mediators must be |
| 4787 | certified by the Supreme Court to mediate court cases in county |
| 4788 | or circuit courts. However, the division may adopt, by rule, |
| 4789 | additional factors for the certification of paid mediators, |
| 4790 | which factors must be related to experience, education, or |
| 4791 | background. Any person initially certified as a paid mediator by |
| 4792 | the division must, in order to continue to be certified, comply |
| 4793 | with the factors or requirements imposed by rules adopted by the |
| 4794 | division. |
| 4795 | (m) When a complaint is made to the division, the division |
| 4796 | shall conduct its inquiry with reasonable dispatch and with due |
| 4797 | regard to the interests of the affected parties. Within 30 days |
| 4798 | after receipt of a complaint, the division shall acknowledge the |
| 4799 | complaint in writing and notify the complainant whether the |
| 4800 | complaint is within the jurisdiction of the division and whether |
| 4801 | additional information is needed by the division from the |
| 4802 | complainant. The division shall conduct its investigation and |
| 4803 | shall, within 90 days after receipt of the original complaint or |
| 4804 | timely requested additional information, take action upon the |
| 4805 | complaint. However, the failure to complete the investigation |
| 4806 | within 90 days does not prevent the division from continuing the |
| 4807 | investigation, accepting or considering evidence obtained or |
| 4808 | received after 90 days, or taking administrative action if |
| 4809 | reasonable cause exists to believe that a violation of this |
| 4810 | chapter or a rule of the division has occurred. If an |
| 4811 | investigation is not completed within the time limits |
| 4812 | established in this paragraph, the division shall, on a monthly |
| 4813 | basis, notify the complainant in writing of the status of the |
| 4814 | investigation. When reporting its action to the complainant, the |
| 4815 | division shall inform the complainant of any right to a hearing |
| 4816 | pursuant to ss. 120.569 and 120.57. |
| 4817 | (n) Cooperative association directors, officers, and |
| 4818 | employees; cooperative developers; community association |
| 4819 | managers; and community association management firms have an |
| 4820 | ongoing duty to reasonably cooperate with the division in any |
| 4821 | investigation pursuant to this section. The division shall refer |
| 4822 | to local law enforcement authorities any person whom the |
| 4823 | division believes has altered, destroyed, concealed, or removed |
| 4824 | any record, document, or thing required to be kept or maintained |
| 4825 | by this chapter with the purpose to impair its verity or |
| 4826 | availability in the department's investigation. |
| 4827 | (o) The division may: |
| 4828 | 1. Contract with agencies in this state or other |
| 4829 | jurisdictions to perform investigative functions; or |
| 4830 | 2. Accept grants-in-aid from any source. |
| 4831 | (p) The division shall cooperate with similar agencies in |
| 4832 | other jurisdictions to establish uniform filing procedures and |
| 4833 | forms, public offering statements, advertising standards, and |
| 4834 | rules and common administrative practices. |
| 4835 | (q) The division shall consider notice to a developer to |
| 4836 | be complete when it is delivered to the developer's address |
| 4837 | currently on file with the division. |
| 4838 | (r) In addition to its enforcement authority, the division |
| 4839 | may issue a notice to show cause, which shall provide for a |
| 4840 | hearing, upon written request, in accordance with chapter 120. |
| 4841 | (s) In the reports required by s. 718.501(1)(s), the |
| 4842 | division shall also report the same information for cooperative |
| 4843 | associations. The division may combine figures and issues into |
| 4844 | one report covering both condominiums and cooperatives. The |
| 4845 | division shall develop a program to certify both volunteer and |
| 4846 | paid mediators to provide mediation of cooperative disputes. The |
| 4847 | division shall provide, upon request, a list of such mediators |
| 4848 | to any association, unit owner, or other participant in |
| 4849 | arbitration proceedings under s. 718.1255 requesting a copy of |
| 4850 | the list. The division shall include on the list of voluntary |
| 4851 | mediators only persons who have received at least 20 hours of |
| 4852 | training in mediation techniques or have mediated at least 20 |
| 4853 | disputes. In order to become initially certified by the |
| 4854 | division, paid mediators must be certified by the Supreme Court |
| 4855 | to mediate court cases in county or circuit courts. However, the |
| 4856 | division may adopt, by rule, additional factors for the |
| 4857 | certification of paid mediators, which factors must be related |
| 4858 | to experience, education, or background. Any person initially |
| 4859 | certified as a paid mediator by the division must, in order to |
| 4860 | continue to be certified, comply with the factors or |
| 4861 | requirements imposed by rules adopted by the division. |
| 4862 | (2)(a) Each cooperative association shall pay to the |
| 4863 | division, on or before January 1 of each year, an annual fee in |
| 4864 | the amount of $4 for each residential unit in cooperatives |
| 4865 | operated by the association. If the fee is not paid by March 1, |
| 4866 | then the association shall be assessed a penalty of 10 percent |
| 4867 | of the amount due, and the association shall not have the |
| 4868 | standing to maintain or defend any action in the courts of this |
| 4869 | state until the amount due, plus any penalty, is paid. |
| 4870 | (b) All fees shall be deposited in the Division of Florida |
| 4871 | Condominiums, Timeshares, and Mobile Homes Trust Fund as |
| 4872 | provided by law. |
| 4873 | Section 29. Section 719.5011, Florida Statutes, is created |
| 4874 | to read: |
| 4875 | 719.5011 Ombudsman.--The Office of the Condominium |
| 4876 | Ombudsman, created in s. 718.5011, shall assist cooperative |
| 4877 | associations and cooperative shareholders and have the powers |
| 4878 | and duties related to cooperative associations and cooperative |
| 4879 | shareholders as if such associations and shareholders were |
| 4880 | condominium associations and condominium shareholders. |
| 4881 | Section 30. Paragraph (b) of subsection (1) and paragraph |
| 4882 | (a) of subsection (2) of section 719.503, Florida Statutes, are |
| 4883 | amended to read: |
| 4884 | 719.503 Disclosure prior to sale.-- |
| 4885 | (1) DEVELOPER DISCLOSURE.-- |
| 4886 | (b) Copies of documents to be furnished to prospective |
| 4887 | buyer or lessee.--Until such time as the developer has furnished |
| 4888 | the documents listed below to a person who has entered into a |
| 4889 | contract to purchase a unit or lease it for more than 5 years, |
| 4890 | the contract may be voided by that person, entitling the person |
| 4891 | to a refund of any deposit together with interest thereon as |
| 4892 | provided in s. 719.202. The contract may be terminated by |
| 4893 | written notice from the proposed buyer or lessee delivered to |
| 4894 | the developer within 15 days after the buyer or lessee receives |
| 4895 | all of the documents required by this section. The developer |
| 4896 | shall not close for 15 days following the execution of the |
| 4897 | agreement and delivery of the documents to the buyer as |
| 4898 | evidenced by a receipt for documents signed by the buyer unless |
| 4899 | the buyer is informed in the 15-day voidability period and |
| 4900 | agrees to close prior to the expiration of the 15 days. The |
| 4901 | developer shall retain in his or her records a separate signed |
| 4902 | agreement as proof of the buyer's agreement to close prior to |
| 4903 | the expiration of said voidability period. Said proof shall be |
| 4904 | retained for a period of 5 years after the date of the closing |
| 4905 | transaction. The documents to be delivered to the prospective |
| 4906 | buyer are the prospectus or disclosure statement with all |
| 4907 | exhibits, if the development is subject to the provisions of s. |
| 4908 | 719.504, or, if not, then copies of the following which are |
| 4909 | applicable: |
| 4910 | 1. The question and answer sheet described in s. 719.504, |
| 4911 | and cooperative documents, or the proposed cooperative documents |
| 4912 | if the documents have not been recorded, which shall include the |
| 4913 | certificate of a surveyor approximately representing the |
| 4914 | locations required by s. 719.104. |
| 4915 | 2. The documents creating the association. |
| 4916 | 3. The bylaws. |
| 4917 | 4. The ground lease or other underlying lease of the |
| 4918 | cooperative. |
| 4919 | 5. The management contract, maintenance contract, and |
| 4920 | other contracts for management of the association and operation |
| 4921 | of the cooperative and facilities used by the shareholders unit |
| 4922 | owners having a service term in excess of 1 year, and any |
| 4923 | management contracts that are renewable. |
| 4924 | 6. The estimated operating budget for the cooperative and |
| 4925 | a schedule of expenses for each type of unit, including fees |
| 4926 | assessed to a shareholder who has exclusive use of limited |
| 4927 | common areas, where such costs are shared only by those entitled |
| 4928 | to use such limited common areas. |
| 4929 | 7. The lease of recreational and other facilities that |
| 4930 | will be used only by shareholders unit owners of the subject |
| 4931 | cooperative. |
| 4932 | 8. The lease of recreational and other common areas that |
| 4933 | will be used by shareholders unit owners in common with |
| 4934 | shareholders unit owners of other cooperatives. |
| 4935 | 9. The form of unit lease if the offer is of a leasehold. |
| 4936 | 10. Any declaration of servitude of properties serving the |
| 4937 | cooperative but not owned by shareholders unit owners or leased |
| 4938 | to them or the association. |
| 4939 | 11. If the development is to be built in phases or if the |
| 4940 | association is to manage more than one cooperative, a |
| 4941 | description of the plan of phase development or the arrangements |
| 4942 | for the association to manage two or more cooperatives. |
| 4943 | 12. If the cooperative is a conversion of existing |
| 4944 | improvements, the statements and disclosure required by s. |
| 4945 | 719.616. |
| 4946 | 13. The form of agreement for sale or lease of units. |
| 4947 | 14. A copy of the floor plan of the unit and the plot plan |
| 4948 | showing the location of the residential buildings and the |
| 4949 | recreation and other common areas. |
| 4950 | 15. A copy of all covenants and restrictions which will |
| 4951 | affect the use of the property and which are not contained in |
| 4952 | the foregoing. |
| 4953 | 16. If the developer is required by state or local |
| 4954 | authorities to obtain acceptance or approval of any dock or |
| 4955 | marina facilities intended to serve the cooperative, a copy of |
| 4956 | any such acceptance or approval acquired by the time of filing |
| 4957 | with the division pursuant to s. 719.502(1) or a statement that |
| 4958 | such acceptance or approval has not been acquired or received. |
| 4959 | 17. Evidence demonstrating that the developer has an |
| 4960 | ownership, leasehold, or contractual interest in the land upon |
| 4961 | which the cooperative is to be developed. |
| 4962 | (2) NONDEVELOPER DISCLOSURE.-- |
| 4963 | (a) Each shareholder unit owner who is not a developer as |
| 4964 | defined by this chapter must comply with the provisions of this |
| 4965 | subsection prior to the sale of his or her interest in the |
| 4966 | association. Each prospective purchaser who has entered into a |
| 4967 | contract for the purchase of an interest in a cooperative is |
| 4968 | entitled, at the seller's expense, to a current copy of the |
| 4969 | articles of incorporation of the association, the bylaws, and |
| 4970 | rules of the association, as well as a copy of the question and |
| 4971 | answer sheet as provided in s. 719.504. On and after July 1, |
| 4972 | 2009, the prospective purchaser shall also be entitled to |
| 4973 | receive from the seller a copy of a governance form. Such form |
| 4974 | shall be provided by the division summarizing governance of |
| 4975 | cooperative associations. In addition to such other information |
| 4976 | as the division considers helpful to a prospective purchaser in |
| 4977 | understanding association governance, the governance form shall |
| 4978 | address the following subjects: |
| 4979 | 1. The role of the board in conducting the day-to-day |
| 4980 | affairs of the association on behalf of, and in the best |
| 4981 | interests of, the shareholders. |
| 4982 | 2. The board's responsibility to provide advance notice of |
| 4983 | board and shareholder meetings. |
| 4984 | 3. The rights of shareholders to attend and speak at board |
| 4985 | and shareholder meetings. |
| 4986 | 4. The responsibility of the board and shareholders with |
| 4987 | respect to maintenance of the cooperative property. |
| 4988 | 5. The responsibility of the board and shareholders to |
| 4989 | abide by the cooperative documents, this chapter, rules adopted |
| 4990 | by the division, and reasonable rules adopted by the board. |
| 4991 | 6. Shareholders' rights to inspect and copy association |
| 4992 | records and the limitations on such rights. |
| 4993 | 7. Remedies available to shareholders with respect to |
| 4994 | actions by the board which may be abusive or beyond the board's |
| 4995 | power and authority. |
| 4996 | 8. The right of the board to hire a property management |
| 4997 | firm, subject to its own primary responsibility for such |
| 4998 | management. |
| 4999 | 9. The responsibility of shareholders with regard to |
| 5000 | payment of regular or special assessments necessary for the |
| 5001 | operation of the property and the potential consequences of |
| 5002 | failure to pay such assessments. |
| 5003 | 10. The voting rights of shareholders. |
| 5004 | 11. Rights and obligations of the board in enforcement of |
| 5005 | rules in the cooperative documents and rules adopted by the |
| 5006 | board. |
| 5007 | |
| 5008 | The governance form shall also include the following statement |
| 5009 | in conspicuous type: "This publication is intended as an |
| 5010 | informal educational overview of cooperative governance. In the |
| 5011 | event of a conflict, the provisions of chapter 719, Florida |
| 5012 | Statutes, rules adopted by the Division of Florida Condominiums, |
| 5013 | Timeshares, and Mobile Homes of the Department of Business and |
| 5014 | Professional Regulation, the provisions of the cooperative |
| 5015 | documents, and reasonable rules adopted by the cooperative |
| 5016 | association's board of directors prevail over the contents of |
| 5017 | this publication." |
| 5018 | Section 31. Subsections (12), (13), and (14) are added to |
| 5019 | section 720.303, Florida Statutes, to read: |
| 5020 | 720.303 Association powers and duties; meetings of board; |
| 5021 | official records; budgets; financial reporting; association |
| 5022 | funds; recalls.-- |
| 5023 | (12) LIMIT ON EXPENDITURES.--It shall be unlawful for the |
| 5024 | board to make any expenditure of association funds or to make |
| 5025 | any in-kind contribution of association assets that does not |
| 5026 | relate to the purposes for which the association is organized. |
| 5027 | (a) The board shall not make any contribution to a |
| 5028 | campaign or committee of continuous existence governed by |
| 5029 | chapter 105 or chapter 106. |
| 5030 | (b) The board shall not make any contribution to a |
| 5031 | charitable organization if the association does not receive a |
| 5032 | direct benefit from the organization. |
| 5033 | (c) The board shall not make any expenditure in order to |
| 5034 | retain a person or firm for the purposes of lobbying. |
| 5035 | (d) Members of the board shall be jointly and severally |
| 5036 | liable to reimburse the association for any contribution, |
| 5037 | expenditure, or in-kind contribution made in violation of this |
| 5038 | subsection. |
| 5039 | (13) BORROWING.--The borrowing of funds or committing to a |
| 5040 | line of credit by the board of administration shall be |
| 5041 | considered a special assessment, and any meeting of the board of |
| 5042 | administration to discuss such matters shall be noticed as |
| 5043 | provided in paragraph (2)(c). The board shall not have the |
| 5044 | authority to enter into a line of credit or borrow funds for any |
| 5045 | purpose unless the specific use of the funds from the line of |
| 5046 | credit or loan is set forth in the notice of meeting with the |
| 5047 | same specificity as required for a special assessment or unless |
| 5048 | the borrowing or line of credit has received the prior approval |
| 5049 | of not less than two-thirds of the voting interests of the |
| 5050 | association. |
| 5051 | (14) TRANSFER FEES.--No charge may be made by the |
| 5052 | association or any body thereof in connection with the sale, |
| 5053 | mortgage, lease, sublease, or other transfer of a parcel. |
| 5054 | Nothing in this subsection shall be construed to prohibit an |
| 5055 | association from requiring as a condition to permitting the |
| 5056 | letting or renting of a parcel, when the association has such |
| 5057 | authority in the documents, the depositing into an escrow |
| 5058 | account maintained by the association a security deposit in an |
| 5059 | amount not to exceed the equivalent of 1 month's rent. The |
| 5060 | security deposit shall protect against damages to the common |
| 5061 | areas or association property. Within 15 days after a tenant |
| 5062 | vacates the premises, the association shall refund the full |
| 5063 | security deposit or give written notice to the tenant of any |
| 5064 | claim made against the security. Disputes under this subsection |
| 5065 | shall be handled in the same fashion as disputes concerning |
| 5066 | security deposits under s. 83.49. |
| 5067 | Section 32. Paragraph (a) of subsection (2) of section |
| 5068 | 720.304, Florida Statutes, is amended to read: |
| 5069 | 720.304 Right of owners to peaceably assemble; display of |
| 5070 | flag; SLAPP suits prohibited.-- |
| 5071 | (2)(a) Any homeowner may display within the boundaries of |
| 5072 | the homeowner's parcel one portable, removable United States |
| 5073 | flag or official flag of the State of Florida in a respectful |
| 5074 | manner, and one portable, removable official flag, in a |
| 5075 | respectful way and, on Armed Forces Day, Memorial Day, Flag Day, |
| 5076 | Independence Day, and Veterans' Day, may display in a respectful |
| 5077 | way portable, removable official flags manner, not larger than 4 |
| 5078 | 1/2 feet by 6 feet, that represent which represents the United |
| 5079 | States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a |
| 5080 | POW-MIA flag, regardless of any declaration covenants, |
| 5081 | restrictions, bylaws, rules, or requirements dealing with flags |
| 5082 | or decorations of the association. |
| 5083 | Section 33. Section 720.3065, Florida Statutes, is created |
| 5084 | to read: |
| 5085 | 720.3065 Meetings.--Regular meetings of the board of |
| 5086 | administration shall be held at such time and place as provided |
| 5087 | in the bylaws until the first regular meeting held on or after |
| 5088 | October 1, 2009. Thereafter, the location and time for regular |
| 5089 | board meetings shall be determined by a majority vote of the |
| 5090 | parcel owners at the next regular meeting held on or after |
| 5091 | October 1, 2009. Once the time and place for regular board |
| 5092 | meetings have been selected, neither may be changed unless |
| 5093 | approved by a majority vote of the parcel owners. Regular |
| 5094 | meetings of the board of administration held on weekdays shall |
| 5095 | be held no earlier than 6 p.m. local time. |
| 5096 | Section 34. Subsections (1) and (2) of section 720.3085, |
| 5097 | Florida Statutes, are amended to read: |
| 5098 | 720.3085 Payment for assessments; lien claims.-- |
| 5099 | (1) When authorized by the governing documents, the |
| 5100 | association has a lien on each parcel to secure the payment of |
| 5101 | assessments and other amounts provided for by this section. |
| 5102 | Except as otherwise set forth in this section, the lien is |
| 5103 | effective from and shall relate back to the date on which the |
| 5104 | original declaration of the community was recorded. However, as |
| 5105 | to first mortgages of record, the lien is effective from and |
| 5106 | after recording of a claim of lien in the public records of the |
| 5107 | county in which the parcel is located. This subsection does not |
| 5108 | bestow upon any lien, mortgage, or certified judgment of record |
| 5109 | on July 1, 2008, including the lien for unpaid assessments |
| 5110 | created in this section, a priority that, by law, the lien, |
| 5111 | mortgage, or judgment did not have before July 1, 2008. |
| 5112 | (a) To be valid, a claim of lien must state the |
| 5113 | description of the parcel, the name of the record owner, the |
| 5114 | name and address of the association, the assessment amount due, |
| 5115 | and the due date. The claim of lien shall secure all unpaid |
| 5116 | assessments that are due and that may accrue subsequent to the |
| 5117 | recording of the claim of lien and before entry of a certificate |
| 5118 | of title, as well as interest, late charges, and reasonable |
| 5119 | costs and attorney's fees incurred by the association incident |
| 5120 | to the collection process. The person making the payment is |
| 5121 | entitled to a satisfaction of the lien upon payment in full. |
| 5122 | (b) By recording a notice in substantially the following |
| 5123 | form, a parcel owner or the parcel owner's agent or attorney may |
| 5124 | require the association to enforce a recorded claim of lien |
| 5125 | against his or her parcel: |
| 5126 |
|
| 5127 | NOTICE OF CONTEST OF LIEN |
| 5128 |
|
| 5129 | TO: (Name and address of association) |
| 5130 |
|
| 5131 | You are notified that the undersigned contests the claim of lien |
| 5132 | filed by you on _____, (year) , and recorded in Official |
| 5133 | Records Book _____ at page _____, of the public records of _____ |
| 5134 | County, Florida, and that the time within which you may file |
| 5135 | suit to enforce your lien is limited to 90 days following the |
| 5136 | date of service of this notice. Executed this _____ day of |
| 5137 | _____, (year) . |
| 5138 |
|
| 5139 | Signed: (Owner or Attorney) |
| 5140 |
|
| 5141 | After the notice of a contest of lien has been recorded, the |
| 5142 | clerk of the circuit court shall mail a copy of the recorded |
| 5143 | notice to the association by certified mail, return receipt |
| 5144 | requested, at the address shown in the claim of lien or the most |
| 5145 | recent amendment to it and shall certify to the service on the |
| 5146 | face of the notice. Service is complete upon mailing. After |
| 5147 | service, the association has 90 days in which to file an action |
| 5148 | to enforce the lien and, if the action is not filed within the |
| 5149 | 90-day period, the lien is void. However, the 90-day period |
| 5150 | shall be extended for any length of time that the association is |
| 5151 | prevented from filing its action because of an automatic stay |
| 5152 | resulting from the filing of a bankruptcy petition by the parcel |
| 5153 | owner or by any other person claiming an interest in the parcel. |
| 5154 | (c) The association may bring an action in its name to |
| 5155 | foreclose a lien for assessments in the same manner in which a |
| 5156 | mortgage of real property is foreclosed and may also bring an |
| 5157 | action to recover a money judgment for the unpaid assessments |
| 5158 | without waiving any claim of lien. The association is entitled |
| 5159 | to recover its reasonable attorney's fees incurred in an action |
| 5160 | to foreclose a lien or an action to recover a money judgment for |
| 5161 | unpaid assessments. |
| 5162 | (d) If the parcel owner remains in possession of the |
| 5163 | parcel after a foreclosure judgment has been entered, the court |
| 5164 | may require the parcel owner to pay a reasonable rent for the |
| 5165 | parcel. If the parcel is rented or leased during the pendency of |
| 5166 | the foreclosure action, the association is entitled to the |
| 5167 | appointment of a receiver to collect the rent. The expenses of |
| 5168 | the receiver must be paid by the party who does not prevail in |
| 5169 | the foreclosure action. |
| 5170 | (e) The association may purchase the parcel at the |
| 5171 | foreclosure sale and hold, lease, mortgage, or convey the |
| 5172 | parcel. |
| 5173 | (2)(a) A parcel owner, regardless of how his or her title |
| 5174 | to property has been acquired, including by purchase at a |
| 5175 | foreclosure sale or by deed in lieu of foreclosure, is liable |
| 5176 | for all assessments that come due while he or she is the parcel |
| 5177 | owner. The parcel owner's liability for assessments may not be |
| 5178 | avoided by waiver or suspension of the use or enjoyment of any |
| 5179 | common area or by abandonment of the parcel upon which the |
| 5180 | assessments are made. |
| 5181 | (b) A parcel owner is jointly and severally liable with |
| 5182 | the previous parcel owner for all unpaid assessments that came |
| 5183 | due up to the time of transfer of title. This liability is |
| 5184 | without prejudice to any right the present parcel owner may have |
| 5185 | to recover any amounts paid by the present owner from the |
| 5186 | previous owner. |
| 5187 | (c) Notwithstanding anything to the contrary contained in |
| 5188 | this section, the liability of a first mortgagee, or its |
| 5189 | successor or assignee as a subsequent holder of the first |
| 5190 | mortgage who acquires title to a parcel by foreclosure or by |
| 5191 | deed in lieu of foreclosure for the unpaid assessments that |
| 5192 | became due before the mortgagee's acquisition of title, shall be |
| 5193 | the lesser of: |
| 5194 | 1. The parcel's unpaid common expenses and regular |
| 5195 | periodic or special assessments that accrued or came due during |
| 5196 | the 24 12 months immediately preceding the acquisition of title |
| 5197 | and for which payment in full has not been received by the |
| 5198 | association; or |
| 5199 | 2. One-half of the parcel owner's unpaid common expenses |
| 5200 | and regular periodic assessments which accrued or came due from |
| 5201 | the filing of the foreclosure action through the sale of the |
| 5202 | unit, provided that the mortgagee timely paid in full the |
| 5203 | payment required by paragraph (d) and, at the same time, |
| 5204 | remitted to the association advanced common expenses and regular |
| 5205 | periodic assessments equal to one-half of the total unpaid |
| 5206 | common expenses and regular periodic assessments that came due |
| 5207 | in that time period. Any such advance shall be taxed as a cost |
| 5208 | in the foreclosure action, and the mortgagor shall be personally |
| 5209 | liable to the mortgagee for the value of the payment made to the |
| 5210 | association plus interest at the interest rate provided for in |
| 5211 | the promissory note for advances. One percent of the original |
| 5212 | mortgage debt. |
| 5213 | |
| 5214 | The limitations on first mortgagee liability provided by this |
| 5215 | paragraph apply only if the first mortgagee filed suit against |
| 5216 | the parcel owner and initially joined the association as a |
| 5217 | defendant in the mortgagee foreclosure action. Joinder of the |
| 5218 | association is not required if, on the date the complaint is |
| 5219 | filed, the association was dissolved or did not maintain an |
| 5220 | office or agent for service of process at a location that was |
| 5221 | known to or reasonably discoverable by the mortgagee. |
| 5222 | (d) A mortgagee who files a foreclosure case on a mortgage |
| 5223 | secured by a parcel in a homeowners' association shall pay to |
| 5224 | the association within 15 days after the filing of the action |
| 5225 | all of the parcel's then unpaid common expenses and regular |
| 5226 | periodic assessments which accrued or came due up to the date of |
| 5227 | the filing of the foreclosure action. The payment shall be taxed |
| 5228 | as a cost in the foreclosure action, and the mortgagor shall be |
| 5229 | personally liable to the mortgagee for the value of the payment |
| 5230 | made to the association plus interest at the interest rate |
| 5231 | provided for in the promissory note for advances. The court |
| 5232 | shall dismiss a foreclosure action on the association's motion |
| 5233 | to dismiss for failure to make such payment and shall award the |
| 5234 | association the costs and reasonable attorney's fees related to |
| 5235 | the motion. |
| 5236 | Section 35. Section 720.314, Florida Statutes, is created |
| 5237 | to read: |
| 5238 | 720.314 Parcel owner informational complaint.-- |
| 5239 | (1) Any parcel owner may file an informational complaint |
| 5240 | to report alleged failures by the homeowners' association or |
| 5241 | officers or directors of the association to comply with the |
| 5242 | provisions of this chapter. The informational complaint shall be |
| 5243 | in writing and signed by the complainant, and the accuracy of |
| 5244 | the facts alleged shall be sworn to before a notary public. |
| 5245 | Properly filed informational complaints shall be used for |
| 5246 | analysis and recommendations to the Legislature for changes to |
| 5247 | this chapter. |
| 5248 | (2) The informational complaint shall be in the format |
| 5249 | provided in subsection (3) and shall be filed with the Office of |
| 5250 | Program Policy Analysis and Government Accountability. If the |
| 5251 | form does not comply with the requirements provided in |
| 5252 | subsection (3), it shall be returned to the complainant as not |
| 5253 | in compliance with the requirements of this section and shall |
| 5254 | not be considered by the Office of Program Policy Analysis and |
| 5255 | Government Accountability for any purpose. |
| 5256 | (3) The informational complaint shall be in substantially |
| 5257 | the following form: |
| 5258 |
|
| 5259 | PARCEL OWNER COMPLAINT |
| 5260 |
|
| 5261 | NAME OF COMPLAINANT: |
| 5262 | ADDRESS OF COMPLAINANT: |
| 5263 | NAME OF ASSOCIATION: |
| 5264 | ADDRESS OF ASSOCIATION: |
| 5265 | STATUTE NOT COMPLIED WITH: |
| 5266 | NAME OF OFFICER: |
| 5267 | NAME OF DIRECTOR: |
| 5268 | FACTS SUPPORTING VIOLATION (50 words or less): |
| 5269 | ________ |
| 5270 | Signature of Complainant |
| 5271 |
|
| 5272 | SWORN TO AND SUBSCRIBED TO THIS _____ DAY OF ______, 20__ |
| 5273 | ________ |
| 5274 | Notary Public |
| 5275 | Section 36. Subsection (3) of section 721.16, Florida |
| 5276 | Statutes, is amended to read: |
| 5277 | 721.16 Liens for overdue assessments; liens for labor |
| 5278 | performed on, or materials furnished to, a timeshare unit.-- |
| 5279 | (3) The lien is effective from the date of recording a |
| 5280 | claim of lien in the public records of the county or counties in |
| 5281 | which the accommodations and facilities constituting the |
| 5282 | timeshare plan are located. The claim of lien shall state the |
| 5283 | name of the timeshare plan and identify the timeshare interest |
| 5284 | for which the lien is effective, state the name of the |
| 5285 | purchaser, state the assessment amount due, and state the due |
| 5286 | dates. Notwithstanding any provision of s. 718.116(5)(a) or s. |
| 5287 | 719.108(5)(4) to the contrary, the lien is effective until |
| 5288 | satisfied or until 5 years have expired after the date the claim |
| 5289 | of lien is recorded unless, within that time, an action to |
| 5290 | enforce the lien is commenced pursuant to subsection (2). A |
| 5291 | claim of lien for assessments may include only assessments which |
| 5292 | are due when the claim is recorded. A claim of lien shall be |
| 5293 | signed and acknowledged by an officer or agent of the managing |
| 5294 | entity. Upon full payment, the person making the payment is |
| 5295 | entitled to receive a satisfaction of the lien. |
| 5296 | Section 37. The Office of Program Policy Analysis and |
| 5297 | Government Accountability shall conduct a study to evaluate |
| 5298 | whether the state should regulate homeowners' associations in a |
| 5299 | manner similar to the regulation of condominiums and |
| 5300 | cooperatives. The study's scope shall include, but need not be |
| 5301 | limited to, estimating the number of homeowners' associations |
| 5302 | and the number of homes that are members of a homeowners' |
| 5303 | association. The office shall submit its report to the President |
| 5304 | of the Senate and the Speaker of the House of Representatives by |
| 5305 | January 1, 2010. |
| 5306 | Section 38. The sums of $21,619 in nonrecurring funds and |
| 5307 | $300,963 in recurring funds are appropriated from the Division |
| 5308 | of Florida Condominiums, Timeshares, and Mobile Homes Trust Fund |
| 5309 | to the Division of Florida Condominiums, Timeshares, and Mobile |
| 5310 | Homes for five full-time equivalent positions to carry out the |
| 5311 | purposes of section 1 of this act. |
| 5312 | Section 39. This act shall take effect July 1, 2009. |