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. |