Florida Senate - 2009 SB 2604
By Senator Gardiner
9-00391A-09 20092604__
1 A bill to be entitled
2 An act relating to residential properties; amending s.
3 718.112, F.S.; requiring each newly elected director
4 to certify to the secretary of the association that he
5 or she has read the association's declarations of
6 covenants and restrictions, articles of incorporation,
7 bylaws, and current written policies and will work to
8 uphold such documents and policies to the best of his
9 or her ability; providing that a failure to timely
10 file the statement automatically disqualifies the
11 director from service on the association's board of
12 directors; requiring the secretary of the association
13 to retain a director's certification for inspection by
14 the members for a specified period of years after a
15 director's election; amending s. 720.303, F.S.;
16 revising provisions relating to homeowners'
17 association board meetings, inspection and copying of
18 records, and reserve accounts of budgets; prohibiting
19 a salary or compensation for certain association
20 personnel; providing exceptions; amending s. 720.305,
21 F.S.; authorizing fines assessed against members which
22 exceed a certain amount to become a lien against a
23 parcel; amending s. 720.306, F.S.; providing
24 requirements for secret ballots; requiring newly
25 elected members of a board of directors to make
26 certain certifications in writing to the association;
27 providing for disqualification for failure to make
28 such certifications; requiring an association to
29 retain certifications for a specified time; amending
30 s. 720.401, F.S.; requiring that the disclosure
31 summary to prospective parcel owners include
32 additional provisions; amending s. 34.01, F.S.;
33 correcting a cross-reference to conform to changes
34 made by the act; amending s. 720.302, F.S.; correcting
35 a cross-reference to conform to changes made by the
36 act; establishing legislative intent; repealing s.
37 720.311, F.S., relating to a procedure for dispute
38 resolution in homeowners' associations; providing that
39 dispute resolution cases pending on the date of repeal
40 will continue under the repealed provisions; creating
41 part IV of ch. 720, F.S., relating to dispute
42 resolution; creating s. 720.501, F.S.; providing a
43 short title; creating s. 720.502, F.S.; providing
44 legislative findings; creating s. 720.503, F.S.;
45 setting applicability of provisions for mediation and
46 arbitration applicable to disputes in homeowners'
47 associations; creating exceptions; providing
48 applicability; tolling applicable statutes of
49 limitations; creating s. 720.504, F.S.; requiring that
50 the notice of dispute be delivered before referral to
51 mediation or arbitration; creating s. 720.505, F.S.;
52 creating a statutory notice form for referral to
53 mediation; requiring delivery by certified mail or
54 personal delivery; setting deadlines; requiring
55 parties to share costs; requiring the selection of a
56 mediator and times to meet; providing penalties for
57 failure to mediate; creating s. 720.506, F.S.;
58 creating an opt-out provision; creating s. 720.507,
59 F.S.; creating a statutory notice form for referral to
60 arbitration; requiring delivery by certified mail or
61 personal delivery; setting deadlines; requiring
62 parties to share costs; requiring the selection of an
63 arbitrator and times to meet; providing penalties for
64 failure to arbitrate; creating s. 720.508, F.S.;
65 providing for rules of procedure; providing for
66 confidentiality; creating s. 720.509, F.S.; setting
67 qualifications for mediators and arbitrators; creating
68 s. 720.510, F.S.; providing for enforcement of
69 mediation agreements and arbitration awards; providing
70 that any three or more condominium associations may
71 form a self-insurance fund for certain purposes under
72 certain conditions; requiring that the contract for
73 participating in the fund disclose certain information
74 and contain certain provisions; requiring that a
75 disclosure be provided to an association before
76 execution of such contract; requiring that such
77 disclosure contain certain information; providing for
78 the charging of contributions for participation in the
79 fund; requiring that the majority of the governing
80 board of the fund be participants in the fund;
81 providing powers of the governing board; authorizing
82 the fund to enter into certain contracts; requiring
83 that the fund use a general lines agent meeting
84 certain criteria when soliciting participation in the
85 fund; prohibiting the fund from taking certain actions
86 when selecting such agent; requiring that the fund be
87 independently audited at specified intervals;
88 authorizing the fund to accumulate funds or distribute
89 excess funds to participants on a pro rata basis;
90 providing for a deductible for participants in the
91 fund; exempting such self-insurance funds from certain
92 requirements, regulations, fees, taxes, and
93 assessments; providing effective dates.
94
95 Be It Enacted by the Legislature of the State of Florida:
96
97 Section 1. Paragraph (d) of subsection (2) of section
98 718.112, Florida Statutes, is amended to read:
99 718.112 Bylaws.—
100 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
101 following and, if they do not do so, shall be deemed to include
102 the following:
103 (d) Unit owner meetings.—
104 1. There shall be an annual meeting of the unit owners held
105 at the location provided in the association bylaws and, if the
106 bylaws are silent as to the location, the meeting shall be held
107 within 45 miles of the condominium property. However, such
108 distance requirement does not apply to an association governing
109 a timeshare condominium. Unless the bylaws provide otherwise, a
110 vacancy on the board caused by the expiration of a director's
111 term shall be filled by electing a new board member, and the
112 election shall be by secret ballot; however, if the number of
113 vacancies equals or exceeds the number of candidates, no
114 election is required. The terms of all members of the board
115 shall expire at the annual meeting and such board members may
116 stand for reelection unless otherwise permitted by the bylaws.
117 In the event that the bylaws permit staggered terms of no more
118 than 2 years and upon approval of a majority of the total voting
119 interests, the association board members may serve 2-year
120 staggered terms. If no person is interested in or demonstrates
121 an intention to run for the position of a board member whose
122 term has expired according to the provisions of this
123 subparagraph, such board member whose term has expired shall be
124 automatically reappointed to the board of administration and
125 need not stand for reelection. In a condominium association of
126 more than 10 units, coowners of a unit may not serve as members
127 of the board of directors at the same time. Any unit owner
128 desiring to be a candidate for board membership shall comply
129 with subparagraph 3. A person who has been suspended or removed
130 by the division under this chapter, or who is delinquent in the
131 payment of any fee or assessment as provided in paragraph (n),
132 is not eligible for board membership. A person who has been
133 convicted of any felony in this state or in a United States
134 District or Territorial Court, or who has been convicted of any
135 offense in another jurisdiction that would be considered a
136 felony if committed in this state, is not eligible for board
137 membership unless such felon's civil rights have been restored
138 for a period of no less than 5 years as of the date on which
139 such person seeks election to the board. The validity of an
140 action by the board is not affected if it is later determined
141 that a member of the board is ineligible for board membership
142 due to having been convicted of a felony.
143 2. The bylaws shall provide the method of calling meetings
144 of unit owners, including annual meetings. Written notice, which
145 notice must include an agenda, shall be mailed, hand delivered,
146 or electronically transmitted to each unit owner at least 14
147 days prior to the annual meeting and shall be posted in a
148 conspicuous place on the condominium property at least 14
149 continuous days preceding the annual meeting. Upon notice to the
150 unit owners, the board shall by duly adopted rule designate a
151 specific location on the condominium property or association
152 property upon which all notices of unit owner meetings shall be
153 posted; however, if there is no condominium property or
154 association property upon which notices can be posted, this
155 requirement does not apply. In lieu of or in addition to the
156 physical posting of notice of any meeting of the unit owners on
157 the condominium property, the association may, by reasonable
158 rule, adopt a procedure for conspicuously posting and repeatedly
159 broadcasting the notice and the agenda on a closed-circuit cable
160 television system serving the condominium association. However,
161 if broadcast notice is used in lieu of a notice posted
162 physically on the condominium property, the notice and agenda
163 must be broadcast at least four times every broadcast hour of
164 each day that a posted notice is otherwise required under this
165 section. When broadcast notice is provided, the notice and
166 agenda must be broadcast in a manner and for a sufficient
167 continuous length of time so as to allow an average reader to
168 observe the notice and read and comprehend the entire content of
169 the notice and the agenda. Unless a unit owner waives in writing
170 the right to receive notice of the annual meeting, such notice
171 shall be hand delivered, mailed, or electronically transmitted
172 to each unit owner. Notice for meetings and notice for all other
173 purposes shall be mailed to each unit owner at the address last
174 furnished to the association by the unit owner, or hand
175 delivered to each unit owner. However, if a unit is owned by
176 more than one person, the association shall provide notice, for
177 meetings and all other purposes, to that one address which the
178 developer initially identifies for that purpose and thereafter
179 as one or more of the owners of the unit shall so advise the
180 association in writing, or if no address is given or the owners
181 of the unit do not agree, to the address provided on the deed of
182 record. An officer of the association, or the manager or other
183 person providing notice of the association meeting, shall
184 provide an affidavit or United States Postal Service certificate
185 of mailing, to be included in the official records of the
186 association affirming that the notice was mailed or hand
187 delivered, in accordance with this provision.
188 3. The members of the board shall be elected by written
189 ballot or voting machine. Proxies shall in no event be used in
190 electing the board, either in general elections or elections to
191 fill vacancies caused by recall, resignation, or otherwise,
192 unless otherwise provided in this chapter. Not less than 60 days
193 before a scheduled election, the association shall mail,
194 deliver, or electronically transmit, whether by separate
195 association mailing or included in another association mailing,
196 delivery, or transmission, including regularly published
197 newsletters, to each unit owner entitled to a vote, a first
198 notice of the date of the election along with a certification
199 form provided by the division attesting that he or she has read
200 and understands, to the best of his or her ability, the
201 governing documents of the association and the provisions of
202 this chapter and any applicable rules. Any unit owner or other
203 eligible person desiring to be a candidate for the board must
204 give written notice to the association not less than 40 days
205 before a scheduled election. Together with the written notice
206 and agenda as set forth in subparagraph 2., the association
207 shall mail, deliver, or electronically transmit a second notice
208 of the election to all unit owners entitled to vote therein,
209 together with a ballot which shall list all candidates. Upon
210 request of a candidate, the association shall include an
211 information sheet, no larger than 8 1/2 inches by 11 inches,
212 which must be furnished by the candidate not less than 35 days
213 before the election, along with the signed certification form
214 provided for in this subparagraph, to be included with the
215 mailing, delivery, or transmission of the ballot, with the costs
216 of mailing, delivery, or electronic transmission and copying to
217 be borne by the association. The association is not liable for
218 the contents of the information sheets prepared by the
219 candidates. In order to reduce costs, the association may print
220 or duplicate the information sheets on both sides of the paper.
221 The division shall by rule establish voting procedures
222 consistent with the provisions contained herein, including rules
223 establishing procedures for giving notice by electronic
224 transmission and rules providing for the secrecy of ballots.
225 Elections shall be decided by a plurality of those ballots cast.
226 There shall be no quorum requirement; however, at least 20
227 percent of the eligible voters must cast a ballot in order to
228 have a valid election of members of the board. No unit owner
229 shall permit any other person to vote his or her ballot, and any
230 such ballots improperly cast shall be deemed invalid, provided
231 any unit owner who violates this provision may be fined by the
232 association in accordance with s. 718.303. A unit owner who
233 needs assistance in casting the ballot for the reasons stated in
234 s. 101.051 may obtain assistance in casting the ballot. The
235 regular election shall occur on the date of the annual meeting.
236 The provisions of this subparagraph shall not apply to timeshare
237 condominium associations. Notwithstanding the provisions of this
238 subparagraph, an election is not required unless more candidates
239 file notices of intent to run or are nominated than board
240 vacancies exist.
241 4. Any approval by unit owners called for by this chapter
242 or the applicable declaration or bylaws, including, but not
243 limited to, the approval requirement in s. 718.111(8), shall be
244 made at a duly noticed meeting of unit owners and shall be
245 subject to all requirements of this chapter or the applicable
246 condominium documents relating to unit owner decisionmaking,
247 except that unit owners may take action by written agreement,
248 without meetings, on matters for which action by written
249 agreement without meetings is expressly allowed by the
250 applicable bylaws or declaration or any statute that provides
251 for such action.
252 5. Unit owners may waive notice of specific meetings if
253 allowed by the applicable bylaws or declaration or any statute.
254 If authorized by the bylaws, notice of meetings of the board of
255 administration, unit owner meetings, except unit owner meetings
256 called to recall board members under paragraph (j), and
257 committee meetings may be given by electronic transmission to
258 unit owners who consent to receive notice by electronic
259 transmission.
260 6. Unit owners shall have the right to participate in
261 meetings of unit owners with reference to all designated agenda
262 items. However, the association may adopt reasonable rules
263 governing the frequency, duration, and manner of unit owner
264 participation.
265 7. Any unit owner may tape record or videotape a meeting of
266 the unit owners subject to reasonable rules adopted by the
267 division.
268 8. Unless otherwise provided in the bylaws, any vacancy
269 occurring on the board before the expiration of a term may be
270 filled by the affirmative vote of the majority of the remaining
271 directors, even if the remaining directors constitute less than
272 a quorum, or by the sole remaining director. In the alternative,
273 a board may hold an election to fill the vacancy, in which case
274 the election procedures must conform to the requirements of
275 subparagraph 3. unless the association governs 10 units or less
276 and has opted out of the statutory election process, in which
277 case the bylaws of the association control. Unless otherwise
278 provided in the bylaws, a board member appointed or elected
279 under this section shall fill the vacancy for the unexpired term
280 of the seat being filled. Filling vacancies created by recall is
281 governed by paragraph (j) and rules adopted by the division.
282 9. Within 30 days after being elected to the board of
283 directors, a new director shall certify in writing to the
284 secretary of the association that he or she has read the
285 association's declarations of covenants and restrictions,
286 articles of incorporation, bylaws, and current written policies,
287 that he or she will work to uphold such documents and policies
288 to the best of his or her ability, and that he or she will
289 faithfully discharge his or her fiduciary responsibility to the
290 association's members. Failure to timely file the statement
291 automatically disqualifies the director from service on the
292 association's board of directors. The secretary shall cause the
293 association to retain a director's certification for inspection
294 by the members for 5 years after a director's election. Failure
295 to have such certification on file does not affect the validity
296 of any appropriate action.
297
298 Notwithstanding subparagraphs (b)2. and (d)3., an association of
299 10 or fewer units may, by the affirmative vote of a majority of
300 the total voting interests, provide for different voting and
301 election procedures in its bylaws, which vote may be by a proxy
302 specifically delineating the different voting and election
303 procedures. The different voting and election procedures may
304 provide for elections to be conducted by limited or general
305 proxy.
306 Section 2. Paragraph (b) of subsection (2), paragraphs (a)
307 and (c) of subsection (5), paragraphs (b), (c), (d), (f), and
308 (g) of subsection (6) of section 720.303, Florida Statutes, are
309 amended, and subsection (12) is added to that section, to read:
310 720.303 Association powers and duties; meetings of board;
311 official records; budgets; financial reporting; association
312 funds; recalls.—
313 (2) BOARD MEETINGS.—
314 (b) Members have the right to attend all meetings of the
315 board and to speak on any matter placed on the agenda by
316 petition of the voting interests for at least 3 minutes. The
317 association may adopt written reasonable rules expanding the
318 right of members to speak and governing the frequency, duration,
319 and other manner of member statements, which rules must be
320 consistent with this paragraph and may include a sign-up sheet
321 for members wishing to speak. Notwithstanding any other law, the
322 requirement that board meetings and committee meetings be open
323 to the members is inapplicable to meetings between the board or
324 a committee to discuss proposed or pending litigation with and
325 the association's attorney, or with respect to meetings of the
326 board held for the purpose of discussing personnel matters are
327 not required to be open to the members.
328 (5) INSPECTION AND COPYING OF RECORDS.—The official records
329 shall be maintained within the state and must be open to
330 inspection and available for photocopying by members or their
331 authorized agents at reasonable times and places within 10
332 business days after receipt of a written request for access.
333 This subsection may be complied with by having a copy of the
334 official records available for inspection or copying in the
335 community. If the association has a photocopy machine available
336 where the records are maintained, it must provide parcel owners
337 with copies on request during the inspection if the entire
338 request is limited to no more than 25 pages.
339 (a) The failure of an association to provide access to the
340 records within 10 business days after receipt of a written
341 request submitted by certified mail, return receipt requested,
342 creates a rebuttable presumption that the association willfully
343 failed to comply with this subsection.
344 (c) The association may adopt reasonable written rules
345 governing the frequency, time, location, notice, records to be
346 inspected, and manner of inspections, but may not require impose
347 a requirement that a parcel owner to demonstrate any proper
348 purpose for the inspection, state any reason for the inspection,
349 or limit a parcel owner's right to inspect records to less than
350 one 8-hour business day per month. The association may impose
351 fees to cover the costs of providing copies of the official
352 records, including, without limitation, the costs of copying.
353 The association may charge up to 50 cents per page for copies
354 made on the association's photocopier. If the association does
355 not have a photocopy machine available where the records are
356 kept, or if the records requested to be copied exceed 25 pages
357 in length, the association may have copies made by an outside
358 vendor or association management company personnel and may
359 charge the actual cost of copying, including any reasonable
360 costs involving personnel fees and charges at an hourly rate for
361 employee time to cover administrative costs to the association.
362 The association shall maintain an adequate number of copies of
363 the recorded governing documents, to ensure their availability
364 to members and prospective members. Notwithstanding the
365 provisions of this paragraph, the following records are shall
366 not be accessible to members or parcel owners:
367 1. Any record protected by the lawyer-client privilege as
368 described in s. 90.502 and any record protected by the work
369 product privilege, including, but not limited to, any record
370 prepared by an association attorney or prepared at the
371 attorney's express direction which reflects a mental impression,
372 conclusion, litigation strategy, or legal theory of the attorney
373 or the association and which was prepared exclusively for civil
374 or criminal litigation or for adversarial administrative
375 proceedings or which was prepared in anticipation of imminent
376 civil or criminal litigation or imminent adversarial
377 administrative proceedings until the conclusion of the
378 litigation or adversarial administrative proceedings.
379 2. Information obtained by an association in connection
380 with the approval of the lease, sale, or other transfer of a
381 parcel.
382 3. Disciplinary, health, insurance, and personnel records,
383 including payroll records, of the association's employees.
384 4. Medical records of parcel owners or community residents.
385 (6) BUDGETS.—
386 (b) In addition to annual operating expenses, the budget
387 may include reserve accounts for capital expenditures and
388 deferred maintenance for which the association is responsible.
389 If reserve accounts are not established pursuant to paragraph
390 (d), funding of such reserves shall be limited to the extent
391 that the governing documents do not limit increases in
392 assessments, including reserves. If the budget of the
393 association includes reserve accounts established pursuant to
394 paragraph (d), such reserves shall be determined, maintained,
395 and waived in the manner provided in this subsection. Once an
396 association provides for reserve accounts pursuant to paragraph
397 (d) in the budget, the association shall thereafter determine,
398 maintain, and waive reserves in compliance with this subsection.
399 The provisions of this section do not preclude the termination
400 of a reserve account established pursuant to this paragraph upon
401 approval of a majority of the voting interests of the
402 association. Upon such approval, the terminating reserve account
403 shall be removed from the budget.
404 (c)1. If the budget of the association does not provide for
405 reserve accounts pursuant to paragraph (d) governed by this
406 subsection and the association is responsible for the repair and
407 maintenance of capital improvements that may result in a special
408 assessment if reserves are not provided, each financial report
409 for the preceding fiscal year required by subsection (7) shall
410 contain the following statement in conspicuous type: THE BUDGET
411 OF THE ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR
412 CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN
413 SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE
414 ACCOUNTS PURSUANT TO THE PROVISIONS OF SECTION 720.303(6),
415 FLORIDA STATUTES, UPON OBTAINING THE APPROVAL OF NOT LESS THAN A
416 MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION BY
417 VOTE OF THE MEMBERS AT A MEETING OR BY WRITTEN CONSENT.
418 2. If the budget of the association does provide for
419 funding accounts for deferred expenditures, including, but not
420 limited to, funds for capital expenditures and deferred
421 maintenance, but such accounts are not created or established
422 pursuant to paragraph (d), each financial report for the
423 preceding fiscal year required under subsection (7) must also
424 contain the following statement in conspicuous type: THE BUDGET
425 OF THE ASSOCIATION DOES PROVIDE FOR LIMITED VOLUNTARY DEFERRED
426 EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND
427 DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN
428 OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO
429 PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO SECTION 720.303(6),
430 FLORIDA STATUTES, THESE FUNDS ARE NOT SUBJECT TO THE
431 RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN THAT STATUTE, NOR
432 ARE RESERVES CALCULATED IN ACCORDANCE WITH THAT STATUTE.
433 (d) An association shall be deemed to have provided for
434 reserve accounts if when reserve accounts have been initially
435 established by the developer or if when the membership of the
436 association affirmatively elects to provide for reserves. If
437 reserve accounts are not initially provided for by the
438 developer, the membership of the association may elect to do so
439 upon the affirmative approval of not less than a majority of the
440 total voting interests of the association. Such approval may be
441 obtained attained by vote of the members at a duly called
442 meeting of the membership or by the upon a written consent of
443 executed by not less than a majority of the total voting
444 interests in the community. The approval action of the
445 membership shall state that reserve accounts shall be provided
446 for in the budget and shall designate the components for which
447 the reserve accounts are to be established. Upon approval by the
448 membership, the board of directors shall include provide for the
449 required reserve accounts for inclusion in the budget in the
450 next fiscal year following the approval and in each year
451 thereafter. Once established as provided in this subsection, the
452 reserve accounts shall be funded or maintained or shall have
453 their funding waived in the manner provided in paragraph (f).
454 (f) After one or more Once a reserve account or reserve
455 accounts are established, the membership of the association,
456 upon a majority vote at a meeting at which a quorum is present,
457 may provide for no reserves or less reserves than required by
458 this section. If a meeting of the unit owners has been called to
459 determine whether to waive or reduce the funding of reserves and
460 no such result is achieved or a quorum is not present, the
461 reserves as included in the budget shall go into effect. After
462 the turnover, the developer may vote its voting interest to
463 waive or reduce the funding of reserves. Any vote taken pursuant
464 to this subsection to waive or reduce reserves is shall be
465 applicable only to one budget year.
466 (g) Funding formulas for reserves authorized by this
467 section shall be based on either a separate analysis of each of
468 the required assets or a pooled analysis of two or more of the
469 required assets.
470 1. If the association maintains separate reserve accounts
471 for each of the required assets, the amount of the contribution
472 to each reserve account is shall be the sum of the following two
473 calculations:
474 a. The total amount necessary, if any, to bring a negative
475 component balance to zero.
476 b. The total estimated deferred maintenance expense or
477 estimated replacement cost of the reserve component less the
478 estimated balance of the reserve component as of the beginning
479 of the period for which the budget will be in effect. The
480 remainder, if greater than zero, shall be divided by the
481 estimated remaining useful life of the component.
482
483 The formula may be adjusted each year for changes in estimates
484 and deferred maintenance performed during the year and may
485 include factors such as inflation and earnings on invested
486 funds.
487 2. If the association maintains a pooled account of two or
488 more of the required reserve assets, the amount of the
489 contribution to the pooled reserve account as disclosed on the
490 proposed budget may shall not be less than that required to
491 ensure that the balance on hand at the beginning of the period
492 for which the budget will go into effect plus the projected
493 annual cash inflows over the remaining estimated useful life of
494 all of the assets that make up the reserve pool are equal to or
495 greater than the projected annual cash outflows over the
496 remaining estimated useful lives of all of the assets that make
497 up the reserve pool, based on the current reserve analysis. The
498 projected annual cash inflows may include estimated earnings
499 from investment of principal and accounts receivable minus the
500 allowance for doubtful accounts. The reserve funding formula may
501 shall not include any type of balloon payments.
502 (12) COMPENSATION PROHIBITED.—A director, officer, or
503 committee member of the association may not receive directly or
504 indirectly any salary or compensation from the association for
505 the performance of duties as a director, officer, or committee
506 member and may not in any other way benefit financially from
507 service to the association. This subsection does not preclude:
508 (a) Participation by such person in a financial benefit
509 accruing to all or a significant number of members as a result
510 of actions lawfully taken by the board or a committee of which
511 he or she is a member, including, but not limited to, routine
512 maintenance, repair, or replacement of community assets.
513 (b) Reimbursement for out-of-pocket expenses incurred by
514 such person on behalf of the association, subject to approval in
515 accordance with procedures established by the association's
516 governing documents or, in the absence of such procedures, in
517 accordance with an approval process established by the board.
518 (c) Any recovery of insurance proceeds derived from a
519 policy of insurance maintained by the association for the
520 benefit of its members.
521 (d) Any fee or compensation authorized in the governing
522 documents.
523 (e) Any fee or compensation authorized in advance by a vote
524 of a majority of the voting interests voting in person or by
525 proxy at a meeting of the members.
526 Section 3. Subsection (2) of section 720.305, Florida
527 Statutes, is amended to read:
528 720.305 Obligations of members; remedies at law or in
529 equity; levy of fines and suspension of use rights.—
530 (2) If the governing documents so provide, an association
531 may suspend, for a reasonable period of time, the rights of a
532 member or a member's tenants, guests, or invitees, or both, to
533 use common areas and facilities and may levy reasonable fines of
534 up to, not to exceed $100 per violation, against any member or
535 any tenant, guest, or invitee. A fine may be levied on the basis
536 of each day of a continuing violation, with a single notice and
537 opportunity for hearing, except that no such fine may shall
538 exceed $1,000 in the aggregate unless otherwise provided in the
539 governing documents. A fine of less than $1,000 may shall not
540 become a lien against a parcel. In any action to recover a fine,
541 the prevailing party is entitled to collect its reasonable
542 attorney's fees and costs from the nonprevailing party as
543 determined by the court.
544 (a) A fine or suspension may not be imposed without notice
545 of at least 14 days' notice days to the person sought to be
546 fined or suspended and an opportunity for a hearing before a
547 committee of at least three members appointed by the board who
548 are not officers, directors, or employees of the association, or
549 the spouse, parent, child, brother, or sister of an officer,
550 director, or employee. If the committee, by majority vote, does
551 not approve a proposed fine or suspension, it may not be
552 imposed.
553 (b) The requirements of this subsection do not apply to the
554 imposition of suspensions or fines upon any member because of
555 the failure of the member to pay assessments or other charges
556 when due if such action is authorized by the governing
557 documents.
558 (c) Suspension of common-area-use rights do shall not
559 impair the right of an owner or tenant of a parcel to have
560 vehicular and pedestrian ingress to and egress from the parcel,
561 including, but not limited to, the right to park.
562 Section 4. Subsections (8) and (9) of section 720.306,
563 Florida Statutes, are amended to read:
564 720.306 Meetings of members; voting and election
565 procedures; amendments.—
566 (8) PROXY VOTING.—The members have the right, unless
567 otherwise provided in this subsection or in the governing
568 documents, to vote in person or by proxy.
569 (a) To be valid, a proxy must be dated, must state the
570 date, time, and place of the meeting for which it was given, and
571 must be signed by the authorized person who executed the proxy.
572 A proxy is effective only for the specific meeting for which it
573 was originally given, as the meeting may lawfully be adjourned
574 and reconvened from time to time, and automatically expires 90
575 days after the date of the meeting for which it was originally
576 given. A proxy is revocable at any time at the pleasure of the
577 person who executes it. If the proxy form expressly so provides,
578 any proxy holder may appoint, in writing, a substitute to act in
579 his or her place.
580 (b) If the governing documents permit voting by secret
581 ballot by members who are not in attendance at a meeting of the
582 members for the election of directors, such ballots shall be
583 placed in an inner envelope with no identifying markings and
584 mailed or delivered to the association in an outer envelope
585 bearing identifying information reflecting the name of the
586 member, the lot or parcel for which the vote is being cast, and
587 the signature of the lot or parcel owner casting that ballot.
588 After the eligibility of the member to vote and confirmation
589 that no other ballot has been submitted for that lot or parcel,
590 the inner envelope shall be removed from the outer envelope
591 bearing the identification information, placed with the ballots
592 which were personally cast, and opened when the ballots are
593 counted. If more than one ballot is submitted for a lot or
594 parcel, the ballots for that lot or parcel shall be
595 disqualified. Any vote by ballot received after the closing of
596 the balloting may not be considered.
597 (9) ELECTIONS; BOARD MEMBER CERTIFICATION.—
598 (a) Elections of directors must be conducted in accordance
599 with the procedures set forth in the governing documents of the
600 association. All members of the association are shall be
601 eligible to serve on the board of directors, and a member may
602 nominate himself or herself as a candidate for the board at a
603 meeting where the election is to be held or, if the election
604 process allows voting by absentee ballot, in advance of the
605 balloting. Except as otherwise provided in the governing
606 documents, boards of directors must be elected by a plurality of
607 the votes cast by eligible voters. Any election dispute between
608 a member and an association must be submitted to mandatory
609 binding arbitration with the division. Such proceedings shall be
610 conducted in the manner provided by s. 718.1255 and the
611 procedural rules adopted by the division.
612 (b) Within 30 days after being elected to the board of
613 directors, a new director shall certify in writing to the
614 secretary of the association that he or she has read the
615 association's declarations of covenants and restrictions,
616 articles of incorporation, bylaws, and current written policies
617 and that he or she will work to uphold each to the best of his
618 or her ability and will faithfully discharge his or her
619 fiduciary responsibility to the association's members. Failure
620 to timely file such statement shall automatically disqualify the
621 director from service on the association's board of directors.
622 The secretary shall cause the association to retain a director's
623 certification for inspection by the members for 5 years after a
624 director's election. Failure to have such certification on file
625 does not affect the validity of any appropriate action.
626 Section 5. Paragraph (a) of subsection (1) of section
627 720.401, Florida Statutes, is amended to read:
628 720.401 Prospective purchasers subject to association
629 membership requirement; disclosure required; covenants;
630 assessments; contract cancellation.—
631 (1)(a) A prospective parcel owner in a community must be
632 presented a disclosure summary before executing the contract for
633 sale. The disclosure summary must be in a form substantially
634 similar to the following form:
635
636 DISCLOSURE SUMMARY
637 FOR
638 (NAME OF COMMUNITY)
639
640 1. AS A PURCHASER OF PROPERTY IN THIS COMMUNITY, YOU WILL
641 BE OBLIGATED TO BE A MEMBER OF A HOMEOWNERS' ASSOCIATION.
642 2. THERE HAVE BEEN OR WILL BE RECORDED RESTRICTIVE
643 COVENANTS GOVERNING THE USE AND OCCUPANCY OF PROPERTIES IN THIS
644 COMMUNITY.
645 3. YOU WILL BE OBLIGATED TO PAY ASSESSMENTS TO THE
646 ASSOCIATION. ASSESSMENTS MAY BE SUBJECT TO PERIODIC CHANGE. IF
647 APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____. YOU WILL
648 ALSO BE OBLIGATED TO PAY ANY SPECIAL ASSESSMENTS IMPOSED BY THE
649 ASSOCIATION. SUCH SPECIAL ASSESSMENTS MAY BE SUBJECT TO CHANGE.
650 IF APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.
651 4. YOU MAY BE OBLIGATED TO PAY SPECIAL ASSESSMENTS TO THE
652 RESPECTIVE MUNICIPALITY, COUNTY, OR SPECIAL DISTRICT. ALL
653 ASSESSMENTS ARE SUBJECT TO PERIODIC CHANGE.
654 5. YOUR FAILURE TO PAY SPECIAL ASSESSMENTS OR ASSESSMENTS
655 LEVIED BY A MANDATORY HOMEOWNERS' ASSOCIATION MAY COULD RESULT
656 IN A LIEN ON YOUR PROPERTY.
657 6. THERE MAY BE AN OBLIGATION TO PAY RENT OR LAND USE FEES
658 FOR RECREATIONAL OR OTHER COMMONLY USED FACILITIES AS AN
659 OBLIGATION OF MEMBERSHIP IN THE HOMEOWNERS' ASSOCIATION. IF
660 APPLICABLE, THE CURRENT AMOUNT IS $_____ PER _____.
661 7. IF THE ASSOCIATION IS STILL UNDER THE CONTROL OF THE
662 DEVELOPER, THE DEVELOPER MAY HAVE THE RIGHT TO AMEND THE
663 RESTRICTIVE COVENANTS WITHOUT THE APPROVAL OF THE ASSOCIATION
664 MEMBERSHIP OR THE APPROVAL OF THE PARCEL OWNERS.
665 8. THE STATEMENTS CONTAINED IN THIS DISCLOSURE FORM ARE
666 ONLY SUMMARY IN NATURE, AND, AS A PROSPECTIVE PURCHASER, YOU
667 SHOULD REFER TO THE COVENANTS AND THE ASSOCIATION GOVERNING
668 DOCUMENTS BEFORE PURCHASING PROPERTY.
669 9. THESE DOCUMENTS ARE EITHER MATTERS OF PUBLIC RECORD AND
670 CAN BE OBTAINED FROM THE RECORD OFFICE IN THE COUNTY WHERE THE
671 PROPERTY IS LOCATED, OR, IF ARE NOT RECORDED, AND CAN BE
672 OBTAINED FROM THE DEVELOPER.
673 10. THERE MAY BE AN OBLIGATION TO PAY ASSESSMENTS (TAXES OR
674 FEES) TO A RESIDENTIAL COMMUNITY DEVELOPMENT DISTRICT FOR THE
675 PURPOSE OF RETIRING BOND OBLIGATIONS USED TO CONSTRUCT
676 INFRASTRUCTURE OR OTHER IMPROVEMENTS.
677 11. YOU ARE JOINTLY AND SEVERALLY LIABLE WITH THE PREVIOUS
678 OWNER OF YOUR PROPERTY FOR ALL UNPAID ASSESSMENTS THAT CAME DUE
679 UP TO THE TIME OF TRANSFER OF TITLE.
680
681 DATE: PURCHASER:
682 PURCHASER:
683
684 The disclosure must be supplied by the developer, or by the
685 parcel owner if the sale is by an owner that is not the
686 developer. Any contract or agreement for sale shall refer to and
687 incorporate the disclosure summary and shall include, in
688 prominent language, a statement that the potential buyer should
689 not execute the contract or agreement until he or she has they
690 have received and read the disclosure summary required by this
691 section.
692 Section 6. Effective July 1, 2010, subsection (1) of
693 section 34.01, Florida Statutes, is amended to read:
694 34.01 Jurisdiction of county court.—
695 (1) County courts shall have original jurisdiction:
696 (a) In all misdemeanor cases not cognizable by the circuit
697 courts;
698 (b) Of all violations of municipal and county ordinances;
699 (c) Of all actions at law in which the matter in
700 controversy does not exceed the sum of $15,000, exclusive of
701 interest, costs, and attorney's fees, except those within the
702 exclusive jurisdiction of the circuit courts; and
703 (d) Of disputes occurring in the homeowners' associations
704 as described in part IV of chapter 720 s. 720.311(2)(a), which
705 shall be concurrent with jurisdiction of the circuit courts.
706 Section 7. Effective July 1, 2010, subsection (2) of
707 section 720.302, Florida Statutes, is amended to read:
708 720.302 Purposes, scope, and application.—
709 (2) The Legislature recognizes that it is not in the best
710 interest of homeowners' associations or the individual
711 association members thereof to create or impose a bureau or
712 other agency of state government to regulate the affairs of
713 homeowners' associations. However, in accordance with part IV of
714 this chapter s. 720.311, the Legislature finds that homeowners'
715 associations and their individual members will benefit from an
716 expedited alternative process for resolution of election and
717 recall disputes and presuit mediation of other disputes
718 involving covenant enforcement in homeowner's associations and
719 deed-restricted communities using the procedures provided in
720 part IV of and authorizes the department to hear, administer,
721 and determine these disputes as more fully set forth in this
722 chapter. Further, the Legislature recognizes that certain
723 contract rights have been created for the benefit of homeowners'
724 associations and members thereof as well as deed-restricted
725 communities before the effective date of this act and that part
726 IV of this chapter is ss. 720.301-720.407 are not intended to
727 impair such contract rights, including, but not limited to, the
728 rights of the developer to complete the community as initially
729 contemplated.
730 Section 8. Effective July 1, 2010, section 720.311, Florida
731 Statutes, is repealed.
732 Section 9. Effective July 1, 2010, part IV of chapter 720,
733 Florida Statutes, to be entitled “Dispute Resolution,”
734 consisting of sections 720.501, 720.502, 720.503, 720.504,
735 720.505, 720.506, 720.507, 720.508, 720.509, and 720.510, is
736 created to read:
737 720.501 Short title.—This part may be cited as the “Home
738 Court Advantage Dispute Resolution Act.”
739 720.502 Legislative findings.—The Legislature finds that
740 alternative dispute resolution has made progress in reducing
741 court dockets and trials and in offering a more efficient, cost
742 effective option to litigation.
743 720.503 Applicability of this part.—
744 (1) Unless otherwise provided in this part, before a
745 dispute described in this part between a homeowners' association
746 and a parcel owner or owners, or a dispute between parcel owners
747 within the same homeowners' association, may be filed in court,
748 the dispute is subject to presuit mediation pursuant to s.
749 720.505 or presuit arbitration pursuant to s. 720.507, at the
750 option of the aggrieved party who initiates the first formal
751 action of alternative dispute resolution under this part. The
752 parties may mutually agree to participate in both presuit
753 mediation and presuit arbitration prior to suit being filed by
754 either party.
755 (2) Unless otherwise provided in this part, the mediation
756 and arbitration provisions of this part are limited to disputes
757 between an association and a parcel owner or owners or between
758 parcel owners regarding the use of or changes to the parcel or
759 the common areas under the governing documents and other
760 disputes involving violations of the recorded declaration of
761 covenants or other governing documents, disputes arising
762 concerning enforcement of the governing documents or any
763 amendments thereto, and disputes involving access to the
764 official records of the association. A dispute concerning title
765 to any parcel or common area, interpretation or enforcement of
766 any warranty, the levy of a fee or assessment, the collection of
767 an assessment levied against a party, the eviction or other
768 removal of a tenant from a parcel, alleged breaches of fiduciary
769 duty by one or more directors, or any action to collect mortgage
770 indebtedness or to foreclose on a mortgage shall not be subject
771 to the provisions of this part.
772 (3) All disputes arising after the effective date of this
773 part involving the election of the board of directors for an
774 association or the recall of any member of the board or officer
775 of the association shall not be eligible for presuit mediation
776 under s. 720.505, but shall be subject to the provisions
777 concerning presuit arbitration under s. 720.507.
778 (4) In any dispute subject to presuit mediation or presuit
779 arbitration under this part for which emergency relief is
780 required, a motion for temporary injunctive relief may be filed
781 with the court without first complying with the presuit
782 mediation or presuit arbitration requirements of this part.
783 After any issues regarding emergency or temporary relief are
784 resolved, the court may refer the parties to a mediation program
785 administered by the courts or require mediation or arbitration
786 under this part.
787 (5) The mailing of a statutory notice of presuit mediation
788 or presuit arbitration as provided in this part shall toll the
789 applicable statute of limitations during the pendency of the
790 mediation or arbitration and for a period of 30 days following
791 the conclusion of either proceeding. The 30-day period shall
792 start upon the filing of the mediator's notice of impasse or the
793 arbitrator's written arbitration award. If the parties mutually
794 agree to participate in both presuit mediation and presuit
795 arbitration under this part, the tolling of the applicable
796 statute of limitations for each such alternative dispute
797 resolution proceeding shall be consecutive.
798 720.504 Notice of dispute.—Prior to giving the statutory
799 notice to proceed under presuit medication or presuit
800 arbitration under this part, the aggrieved association or parcel
801 owner shall first provide written notice of the dispute to the
802 responding party in the manner provided by this section.
803 (1) The notice of dispute shall be delivered to the
804 responding party by certified mail, return receipt requested, or
805 the notice of dispute may be hand delivered, and the person
806 making delivery shall file with their notice of mediation either
807 the proof of receipt of mailing or an affidavit stating the date
808 and time of the delivery of the notice of dispute. If the notice
809 is delivered by certified mail, return receipt requested, and
810 the responding party fails or refuses to accept delivery, notice
811 shall be considered properly delivered for purposes of this
812 section on the date of the first attempted delivery.
813 (2) The notice of dispute shall state with specificity the
814 nature of the dispute, including the date, time, and location of
815 each event that is the subject of the dispute and the action
816 requested to resolve the dispute. The notice shall also include
817 the text of any provision in the governing documents, including
818 the rules and regulations, of the association which form the
819 basis of the dispute.
820 (3) Unless the parties otherwise agree in writing to a
821 longer time period, the party receiving the notice of dispute
822 shall have 10 days following the date of receipt of notice to
823 resolve the dispute. If the alleged dispute has not been
824 resolved within the 10-day period, the aggrieved party may
825 proceed under this part at any time thereafter within the
826 applicable statute of limitations.
827 (4) A copy of the notice and the text of the provision in
828 the governing documents, or the rules and regulations, of the
829 association which are the basis of the dispute, along with proof
830 of service of the notice of dispute and a copy of any written
831 responses received from the responding party, shall be included
832 as an exhibit to any demand for mediation or arbitration under
833 this part.
834 720.505 Presuit mediation.—
835 (1) Disputes between an association and a parcel owner or
836 owners and between parcel owners must be submitted to presuit
837 mediation before the dispute may be filed in court; or, at the
838 election of the party initiating the presuit procedures, such
839 dispute may be submitted to presuit arbitration pursuant to s.
840 720.507 before the dispute may be filed in court. An aggrieved
841 party who elects to use the presuit mediation procedure under
842 this section shall serve on the responding party a written
843 notice of presuit mediation in substantially the following form:
844
845 STATUTORY NOTICE OF PRESUIT MEDIATION
846
847 THE ALLEGED AGGRIEVED PARTY, ____________________,
848 HEREBY DEMANDS THAT ____________________, AS THE
849 RESPONDING PARTY, ENGAGE IN MANDATORY PRESUIT
850 MEDIATION IN CONNECTION WITH THE FOLLOWING DISPUTE(S)
851 WITH YOU, WHICH BY STATUTE ARE OF A TYPE THAT ARE
852 SUBJECT TO PRESUIT MEDIATION:
853
854 ATTACHED IS A COPY OF THE PRIOR NOTICE OF VIOLATION
855 WHICH DETAILS THE SPECIFIC NATURE OF THE DISPUTE(S) TO
856 BE MEDIATED AND THE AUTHORITY SUPPORTING A FINDING OF
857 A VIOLATION AS TO EACH DISPUTE, INCLUDING, BUT NOT
858 LIMITED TO, THE APPLICABLE PROVISIONS OF THE GOVERNING
859 DOCUMENTS OF THE ASSOCIATION BELIEVED TO APPLY TO THE
860 DISPUTE BETWEEN THE PARTIES, AND A COPY OF THE NOTICE
861 YOU RECEIVED OR REFUSED AND COPIES OF ANY WRITTEN
862 RESPONSE(S) RECEIVED FROM YOU ABOUT THIS DISPUTE.
863
864 PURSUANT TO PART IV OF CHAPTER 720, FLORIDA STATUTES,
865 THIS DEMAND TO RESOLVE THE DISPUTE THROUGH PRESUIT
866 MEDIATION IS REQUIRED BEFORE A LAWSUIT CAN BE FILED
867 CONCERNING THE DISPUTE. PURSUANT TO FLORIDA STATUTES,
868 THE PARTIES ARE REQUIRED TO ENGAGE IN PRESUIT
869 MEDIATION WITH A NEUTRAL THIRD-PARTY MEDIATOR IN ORDER
870 TO ATTEMPT TO RESOLVE THIS DISPUTE WITHOUT COURT
871 ACTION, AND THE AGGRIEVED PARTY DEMANDS THAT YOU
872 PARTICIPATE IN THIS PROCESS. UNLESS YOU RESPOND TO
873 THIS NOTICE BY FILING WITH THE AGGRIEVED PARTY A
874 NOTICE OF OPTING OUT AND DEMAND FOR ARBITRATION UNDER
875 S. 720.506, FLORIDA STATUTES, YOUR FAILURE TO
876 PARTICIPATE IN THE MEDIATION PROCESS MAY RESULT IN A
877 LAWSUIT BEING FILED IN COURT AGAINST YOU WITHOUT
878 FURTHER NOTICE.
879
880 THE PROCESS OF MEDIATION INVOLVES A SUPERVISED
881 NEGOTIATION PROCESS IN WHICH A TRAINED, NEUTRAL THIRD
882 PARTY MEDIATOR MEETS WITH BOTH PARTIES AND ASSISTS
883 THEM IN EXPLORING POSSIBLE OPPORTUNITIES FOR RESOLVING
884 PART OR ALL OF THE DISPUTE. BY AGREEING TO PARTICIPATE
885 IN PRESUIT MEDIATION, YOU ARE NOT BOUND IN ANY WAY TO
886 CHANGE YOUR POSITION. FURTHERMORE, THE MEDIATOR HAS NO
887 AUTHORITY TO MAKE ANY DECISIONS IN THIS MATTER OR TO
888 DETERMINE WHO IS RIGHT OR WRONG AND MERELY ACTS AS A
889 FACILITATOR TO ENSURE THAT EACH PARTY UNDERSTANDS THE
890 POSITION OF THE OTHER PARTY AND THAT ALL OPTIONS FOR
891 REASONABLE SETTLEMENT ARE FULLY EXPLORED.
892
893 IF AN AGREEMENT IS REACHED, IT SHALL BE REDUCED TO
894 WRITING AND BECOME A BINDING AND ENFORCEABLE CONTRACT
895 BETWEEN THE PARTIES. A RESOLUTION OF ONE OR MORE
896 DISPUTES IN THIS FASHION AVOIDS THE NEED TO LITIGATE
897 THESE ISSUES IN COURT. THE FAILURE TO REACH AN
898 AGREEMENT, OR THE FAILURE OF A PARTY TO PARTICIPATE IN
899 THE PROCESS, RESULTS IN THE MEDIATOR DECLARING AN
900 IMPASSE IN THE MEDIATION, AFTER WHICH THE AGGRIEVED
901 PARTY MAY PROCEED TO FILE A LAWSUIT ON ALL
902 OUTSTANDING, UNSETTLED DISPUTES. IF YOU HAVE FAILED OR
903 REFUSED TO PARTICIPATE IN THE ENTIRE MEDIATION
904 PROCESS, YOU WILL NOT BE ENTITLED TO RECOVER
905 ATTORNEY'S FEES IF YOU PREVAIL IN A SUBSEQUENT COURT
906 PROCEEDING INVOLVING THE SAME DISPUTE.
907
908 THE AGGRIEVED PARTY HAS SELECTED FROM A LIST OF
909 ELIGIBLE, QUALIFIED MEDIATORS AT LEAST FIVE CERTIFIED
910 MEDIATORS WHO THE AGGRIEVED PARTY BELIEVES TO BE
911 NEUTRAL AND QUALIFIED TO MEDIATE THE DISPUTE. YOU HAVE
912 THE RIGHT TO SELECT ANY ONE OF THESE MEDIATORS. THE
913 FACT THAT ONE PARTY MAY BE FAMILIAR WITH ONE OR MORE
914 OF THE LISTED MEDIATORS DOES NOT MEAN THAT THE
915 MEDIATOR CANNOT ACT AS A NEUTRAL AND IMPARTIAL
916 FACILITATOR. THE NAMES OF THE MEDIATORS THAT THE
917 AGGRIEVED PARTY HEREBY SUBMITS TO YOU FROM WHOM YOU
918 MAY CHOOSE ONE, AND THEIR CURRENT ADDRESSES, TELEPHONE
919 NUMBERS, AND HOURLY RATES ARE AS FOLLOWS:
920
921 (LIST THE NAMES, ADDRESSES, TELEPHONE NUMBERS, AND
922 HOURLY RATES OF THE MEDIATORS. OTHER PERTINENT
923 INFORMATION ABOUT THE BACKGROUND OF THE MEDIATORS MAY
924 BE INCLUDED AS AN ATTACHMENT.)
925
926 YOU MAY CONTACT THE OFFICES OF THESE MEDIATORS TO
927 CONFIRM THAT EACH OF THE ABOVE-LISTED MEDIATORS WILL
928 BE NEUTRAL AND WILL NOT SHOW ANY FAVORITISM TOWARD
929 EITHER PARTY. UNLESS OTHERWISE AGREED TO BY THE
930 PARTIES, PART IV OF CHAPTER 720, FLORIDA STATUTES,
931 REQUIRES THAT THE PARTIES SHARE THE COSTS OF PRESUIT
932 MEDIATION EQUALLY, INCLUDING THE FEE CHARGED BY THE
933 MEDIATOR. AN AVERAGE MEDIATION MAY REQUIRE 3 TO 4
934 HOURS OF THE MEDIATOR'S TIME, INCLUDING SOME
935 PREPARATION TIME, AND THE PARTIES WOULD NEED TO
936 EQUALLY SHARE THE MEDIATOR'S FEES AS WELL AS BE
937 RESPONSIBLE FOR ALL OF THEIR OWN ATTORNEY'S FEES IF
938 THEY CHOOSE TO EMPLOY AN ATTORNEY IN CONNECTION WITH
939 THE MEDIATION. HOWEVER, USE OF AN ATTORNEY IS NOT
940 REQUIRED AND IS AT THE OPTION OF EACH PARTY. THE
941 MEDIATORS MAY REQUIRE THE ADVANCE PAYMENT OF SOME OR
942 ALL OF THE ANTICIPATED FEES. THE AGGRIEVED PARTY
943 HEREBY AGREES TO PAY OR PREPAY ONE-HALF OF THE
944 SELECTED MEDIATOR'S ESTIMATED FEES AND TO FORWARD THIS
945 AMOUNT OR SUCH OTHER REASONABLE ADVANCE DEPOSITS AS
946 THE MEDIATOR REQUIRES FOR THIS PURPOSE UPON THE
947 SELECTION OF THE MEDIATOR. ANY FUNDS DEPOSITED WILL BE
948 RETURNED TO YOU IF THESE FUNDS ARE IN EXCESS OF YOUR
949 SHARE OF THE MEDIATOR FEES INCURRED.
950
951 TO BEGIN YOUR PARTICIPATION IN PRESUIT MEDIATION TO
952 TRY TO RESOLVE THE DISPUTE WITH YOU AND AVOID FURTHER
953 LEGAL ACTION, PLEASE SIGN BELOW AND CLEARLY INDICATE
954 WHICH MEDIATOR IS ACCEPTABLE TO YOU FROM THE FIVE
955 MEDIATORS LISTED BY THE AGGRIEVED PARTY ABOVE.
956
957 YOU MUST RESPOND IN WRITING TO THIS STATUTORY NOTICE
958 OF PRESUIT MEDIATION WITHIN 20 DAYS. IN YOUR RESPONSE
959 YOU MUST PROVIDE A LISTING OF AT LEAST THREE DATES AND
960 TIMES IN WHICH YOU ARE AVAILABLE TO PARTICIPATE IN THE
961 MEDIATION THAT ARE WITHIN 90 DAYS AFTER THE POSTMARKED
962 DATE OF THE MAILING OF THIS NOTICE OF PRESUIT
963 MEDIATION OR WITHIN 90 DAYS AFTER THE DATE YOU WERE
964 SERVED WITH A COPY OF THIS NOTICE. THE AGGRIEVED PARTY
965 WILL THEN ASK THE MEDIATOR TO SCHEDULE A MUTUALLY
966 CONVENIENT TIME AND PLACE FOR THE MEDIATION CONFERENCE
967 TO BE HELD. IF YOU DO NOT PROVIDE A LIST OF AVAILABLE
968 DATES AND TIMES, THE MEDIATOR IS AUTHORIZED TO
969 SCHEDULE A MEDIATION CONFERENCE WITHOUT TAKING YOUR
970 SCHEDULE AND CONVENIENCE INTO CONSIDERATION. IN NO
971 EVENT SHALL THE MEDIATION CONFERENCE BE LATER THAN 90
972 DAYS AFTER THE NOTICE OF PRESUIT MEDIATION WAS FIRST
973 SERVED UNLESS ALL PARTIES MUTUALLY AGREE OTHERWISE. IN
974 THE EVENT THAT YOU FAIL TO RESPOND WITHIN 20 DAYS
975 AFTER THE DATE OF THIS NOTICE, FAIL TO PROVIDE THE
976 MEDIATOR WITH DATES AND TIMES IN WHICH YOU ARE
977 AVAILABLE FOR THE MEDIATION CONFERENCE, FAIL TO AGREE
978 TO AT LEAST ONE OF THE MEDIATORS THAT THE AGGRIEVED
979 PARTY HAS LISTED, FAIL TO PAY OR PREPAY TO THE
980 MEDIATOR ONE-HALF OF THE COSTS INVOLVED, OR FAIL TO
981 APPEAR AND PARTICIPATE AT THE SCHEDULED MEDIATION, THE
982 AGGRIEVED PARTY WILL BE AUTHORIZED TO PROCEED WITH THE
983 FILING OF A LAWSUIT AGAINST YOU WITHOUT FURTHER
984 NOTICE. IN ANY SUBSEQUENT COURT ACTION, THE AGGRIEVED
985 PARTY MAY SEEK AN AWARD OF REASONABLE ATTORNEY'S FEES
986 AND COSTS INCURRED IN ATTEMPTING TO OBTAIN MEDIATION.
987
988 PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION. BY
989 LAW, YOUR RESPONSE MUST BE MAILED BY CERTIFIED, FIRST
990 CLASS MAIL, RETURN RECEIPT REQUESTED, TO THE AGGRIEVED
991 PARTY LISTED ABOVE AT THE ADDRESS SHOWN ON THIS NOTICE
992 AND POSTMARKED NO MORE THAN 20 DAYS AFTER THE DATE OF
993 THE POSTMARKED DATE FOR THIS NOTICE OR WITHIN 20 DAYS
994 AFTER THE DATE UPON WHICH YOU WERE SERVED WITH A COPY
995 OF THIS NOTICE.
996
997 ________________________
998 SIGNATURE OF AGGRIEVED PARTY
999
1000 ______________________
1001 PRINTED NAME OF AGGRIEVED PARTY
1002
1003 RESPONDING PARTY: YOUR SIGNATURE BELOW INDICATES YOUR
1004 ACCEPTANCE OF THE AGREEMENT TO MEDIATE.
1005
1006 AGREEMENT TO MEDIATE
1007
1008 THE UNDERSIGNED HEREBY AGREES TO PARTICIPATE IN
1009 PRESUIT MEDIATION AND AGREES TO ATTEND A MEDIATION
1010 CONDUCTED BY THE FOLLOWING MEDIATOR(S) LISTED BELOW AS
1011 ACCEPTABLE TO MEDIATE THIS DISPUTE:
1012
1013 (LIST ONE ACCEPTABLE MEDIATOR FROM THOSE LISTED BY THE
1014 AGGRIEVED PARTY.)
1015
1016 THE UNDERSIGNED HEREBY REPRESENTS THAT HE OR SHE CAN
1017 ATTEND AND PARTICIPATE IN THE PRESUIT MEDIATION AT THE
1018 FOLLOWING DATES AND TIMES:
1019
1020 (LIST AT LEAST THREE AVAILABLE DATES AND TIMES WITHIN
1021 THE 90-DAY TIME LIMIT DESCRIBED ABOVE.)
1022
1023 I/WE FURTHER AGREE TO PAY OR PREPAY ONE-HALF OF THE
1024 MEDIATOR'S FEES AND TO FORWARD SUCH ADVANCE DEPOSITS
1025 AS THE MEDIATOR MAY REQUIRE FOR THIS PURPOSE.
1026
1027 ______________________________
1028 SIGNATURE OF RESPONDING PARTY #1
1029 ______________________________
1030 TELEPHONE CONTACT INFORMATION
1031
1032 ______________________________
1033 SIGNATURE AND TELEPHONE CONTACT INFORMATION OF
1034 RESPONDING PARTY #2, IF APPLICABLE. IF THE PROPERTY IS
1035 OWNED BY MORE THAN ONE PERSON, ALL OWNERS MUST SIGN,
1036 OR A PERSON MAY SIGN WHO IS ACTING UNDER AUTHORITY OF
1037 A VALID POWER OF ATTORNEY GRANTED BY AN OWNER.
1038
1039 (2)(a) Service of the notice of presuit mediation shall be
1040 effected either by personal service, as provided in chapter 48,
1041 or by certified mail, return receipt requested, in a letter in
1042 substantial conformity with the form provided in subsection (1),
1043 with an additional copy being sent by regular first-class mail,
1044 to the address of the responding party as it last appears on the
1045 books and records of the association or, if not available, then
1046 as it last appears in the official records of the county
1047 property appraiser where the parcel in dispute is located. The
1048 responding party has either 20 days after the postmarked date of
1049 the mailing of the statutory notice or 20 days after the date
1050 the responding party is served with a copy of the notice to
1051 serve a written response to the aggrieved party. The response
1052 shall be served by certified mail, return receipt requested,
1053 with an additional copy being sent by regular first-class mail,
1054 to the address shown on the statutory notice. The date of the
1055 postmark on the envelope for the response shall constitute the
1056 date that the response is served. Once the parties have agreed
1057 on a mediator, the mediator may schedule or reschedule the
1058 mediation for a date and time mutually convenient to the parties
1059 within 90 days after the date of service of the statutory
1060 notice. After such 90-day period, the mediator may reschedule
1061 the mediation only upon the mutual written agreement of all the
1062 parties.
1063 (b) The parties shall share the costs of presuit mediation
1064 equally, including the fee charged by the mediator, if any,
1065 unless the parties agree otherwise, and the mediator may require
1066 advance payment of his or her reasonable fees and costs. Each
1067 party shall be responsible for that party's own attorney's fees
1068 if a party chooses to be represented by an attorney at the
1069 mediation.
1070 (c) The party responding to the aggrieved party may provide
1071 a notice of opting out under s. 720.506 and demand arbitration
1072 or may sign the agreement to mediate included in the notice of
1073 presuit mediation. A responding party signing the agreement to
1074 mediate must clearly indicate the name of the mediator who is
1075 acceptable from the five names provided by the aggrieved party
1076 and must provide a list of dates and times in which the
1077 responding party is available to participate in the mediation
1078 within 90 days after the date the responding party was served,
1079 either by process server or by certified mail, with the
1080 statutory notice of presuit mediation.
1081 (d) The mediator who has been selected and agreed to
1082 mediate must schedule the mediation conference at a mutually
1083 convenient time and place within that 90-day period; but, if the
1084 responding party does not provide a list of available dates and
1085 times, the mediator is authorized to schedule a mediation
1086 conference without taking the responding party's schedule and
1087 convenience into consideration. Within 10 days after the
1088 designation of the mediator, the mediator shall coordinate with
1089 the parties and notify the parties in writing of the date, time,
1090 and place of the mediation conference.
1091 (e) The mediation conference must be held on the scheduled
1092 date and may be rescheduled if a rescheduled date is approved by
1093 the mediator. However, in no event shall the mediation be held
1094 later than 90 days after the notice of presuit mediation was
1095 first served, unless all parties mutually agree in writing
1096 otherwise. If the presuit mediation is not completed within the
1097 required time limits, the mediator shall declare an impasse
1098 unless the mediation date is extended by mutual written
1099 agreement by all parties and approved by the mediator.
1100 (f) If the responding party fails to respond within 30 days
1101 after the date of service of the statutory notice of presuit
1102 mediation, fails to agree to at least one of the mediators
1103 listed by the aggrieved party in the notice, fails to pay or
1104 prepay to the mediator one-half of the costs of the mediator, or
1105 fails to appear and participate at the scheduled mediation, the
1106 aggrieved party shall be authorized to proceed with the filing
1107 of a lawsuit without further notice.
1108 (g)1. The failure of any party to respond to the statutory
1109 notice of presuit mediation within 20 days, the failure to agree
1110 upon a mediator, the failure to provide a listing of dates and
1111 times in which the responding party is available to participate
1112 in the mediation within 90 days after the date the responding
1113 party was served with the statutory notice of presuit mediation,
1114 the failure to make payment of fees and costs within the time
1115 established by the mediator, or the failure to appear for a
1116 scheduled mediation session without the approval of the
1117 mediator, shall in each instance constitute a failure or refusal
1118 to participate in the mediation process and shall operate as an
1119 impasse in the presuit mediation by such party, entitling the
1120 other party to file a lawsuit in court and to seek an award of
1121 the costs and attorney's fees associated with the mediation.
1122 2. Persons who fail or refuse to participate in the entire
1123 mediation process may not recover attorney's fees and costs in
1124 subsequent litigation relating to the same dispute between the
1125 same parties. If any presuit mediation session cannot be
1126 scheduled and conducted within 90 days after the offer to
1127 participate in mediation was filed, through no fault of either
1128 party, then an impasse shall be deemed to have occurred unless
1129 the parties mutually agree in writing to extend this deadline.
1130 In the event of such impasse, each party shall be responsible
1131 for its own costs and attorney's fees and one-half of any
1132 mediator fees and filing fees, and either party may file a
1133 lawsuit in court regarding the dispute.
1134 720.506 Opt-out of presuit mediation.—A party served with a
1135 notice of presuit mediation under s. 720.505 may opt out of
1136 presuit mediation and demand that the dispute proceed under
1137 nonbinding arbitration as follows:
1138 (1) In lieu of a response to the notice of presuit
1139 mediation as required under s. 720.505, the responding party may
1140 serve upon the aggrieved party, in the same manner as the
1141 response to a notice for presuit mediation under s. 720.505, a
1142 notice of opting out of mediation and demand that the dispute
1143 instead proceed to presuit arbitration under s. 720.507.
1144 (2) The aggrieved party shall be relieved from having to
1145 satisfy the requirements of s. 720.504 as a condition precedent
1146 to filing the demand for presuit arbitration.
1147 (3) Except as otherwise provided in this part, the choice
1148 of which presuit alternative dispute resolution procedure is
1149 used shall be at the election of the aggrieved party who first
1150 initiated such proceeding after complying with the provisions of
1151 s. 720.504.
1152 720.507 Presuit arbitration.—
1153 (1) Disputes between an association and a parcel owner or
1154 owners and disputes between parcel owners are subject to a
1155 demand for presuit arbitration pursuant to this section before
1156 the dispute may be filed in court. A party who elects to use the
1157 presuit arbitration procedure under this part shall serve on the
1158 responding party a written notice of presuit arbitration in
1159 substantially the following form:
1160
1161 STATUTORY NOTICE OF PRESUIT ARBITRATION
1162
1163 THE ALLEGED AGGRIEVED PARTY, ____________________,
1164 HEREBY DEMANDS THAT ____________________, AS THE
1165 RESPONDING PARTY, ENGAGE IN MANDATORY PRESUIT
1166 ARBITRATION IN CONNECTION WITH THE FOLLOWING
1167 DISPUTE(S) WITH YOU, WHICH BY STATUTE ARE OF A TYPE
1168 THAT ARE SUBJECT TO PRESUIT ARBITRATION:
1169
1170 (LIST SPECIFIC NATURE OF THE DISPUTE OR DISPUTES TO BE
1171 ARBITRATED AND THE AUTHORITY SUPPORTING A FINDING OF A
1172 VIOLATION AS TO EACH DISPUTE, INCLUDING, BUT NOT
1173 LIMITED TO, ALL APPLICABLE PROVISIONS OF THE GOVERNING
1174 DOCUMENTS BELIEVED TO APPLY TO THE DISPUTE BETWEEN THE
1175 PARTIES.)
1176
1177 PURSUANT TO PART IV OF CHAPTER 720, FLORIDA STATUTES,
1178 THIS DEMAND TO RESOLVE THE DISPUTE THROUGH PRESUIT
1179 ARBITRATION IS REQUIRED BEFORE A LAWSUIT CAN BE FILED
1180 CONCERNING THE DISPUTE. PURSUANT TO FLORIDA STATUTES,
1181 THE PARTIES ARE REQUIRED TO ENGAGE IN PRESUIT
1182 ARBITRATION WITH A NEUTRAL THIRD-PARTY ARBITRATOR IN
1183 ORDER TO ATTEMPT TO RESOLVE THIS DISPUTE WITHOUT COURT
1184 ACTION, AND THE AGGRIEVED PARTY DEMANDS THAT YOU
1185 PARTICIPATE IN THIS PROCESS. IF YOU FAIL TO
1186 PARTICIPATE IN THE ARBITRATION PROCESS, A LAWSUIT MAY
1187 BE BROUGHT AGAINST YOU IN COURT WITHOUT FURTHER
1188 WARNING.
1189
1190 THE PROCESS OF ARBITRATION INVOLVES A NEUTRAL THIRD
1191 PERSON WHO CONSIDERS THE LAW AND FACTS PRESENTED BY
1192 THE PARTIES AND RENDERS A WRITTEN DECISION CALLED AN
1193 “ARBITRATION AWARD.” PURSUANT TO S. 720.507, FLORIDA
1194 STATUTES, THE ARBITRATION AWARD SHALL BE FINAL UNLESS
1195 A LAWSUIT IS FILED IN A COURT OF COMPETENT
1196 JURISDICTION FOR THE JUDICIAL CIRCUIT IN WHICH THE
1197 PARCEL(S) GOVERNED BY THE HOMEOWNERS' ASSOCIATION
1198 IS/ARE LOCATED WITHIN 30 DAYS AFTER THE DATE OF THE
1199 ARBITRATION AWARD.
1200
1201 IF A SETTLEMENT AGREEMENT IS REACHED BEFORE THE
1202 ARBITRATION AWARD, IT SHALL BE REDUCED TO WRITING AND
1203 BECOME A BINDING AND ENFORCEABLE CONTRACT OF THE
1204 PARTIES. A RESOLUTION OF ONE OR MORE DISPUTES IN THIS
1205 FASHION AVOIDS THE NEED TO ARBITRATE THESE ISSUES OR
1206 TO LITIGATE THESE ISSUES IN COURT AND SHALL BE THE
1207 SAME AS A SETTLEMENT AGREEMENT REACHED BETWEEN THE
1208 PARTIES UNDER S. 720.505, FLORIDA STATUTES. THE
1209 FAILURE OF A PARTY TO PARTICIPATE IN THE ARBITRATION
1210 PROCESS MAY RESULT IN THE ARBITRATOR ISSUING AN
1211 ARBITRATION AWARD BY DEFAULT IN THE ARBITRATION. IF
1212 YOU HAVE FAILED OR REFUSED TO PARTICIPATE IN THE
1213 ENTIRE ARBITRATION PROCESS, YOU WILL NOT BE ENTITLED
1214 TO RECOVER ATTORNEY'S FEES, EVEN IF YOU PREVAIL IN A
1215 SUBSEQUENT COURT PROCEEDING INVOLVING THE SAME DISPUTE
1216 BETWEEN THE SAME PARTIES.
1217
1218 THE AGGRIEVED PARTY HAS SELECTED AT LEAST FIVE
1219 ARBITRATORS WHO THE AGGRIEVED PARTY BELIEVES TO BE
1220 NEUTRAL AND QUALIFIED TO ARBITRATE THE DISPUTE. YOU
1221 HAVE THE RIGHT TO SELECT ANY ONE OF THE ARBITRATORS.
1222 THE FACT THAT ONE PARTY MAY BE FAMILIAR WITH ONE OR
1223 MORE OF THE LISTED ARBITRATORS DOES NOT MEAN THAT THE
1224 ARBITRATOR CANNOT ACT AS A NEUTRAL AND IMPARTIAL
1225 ARBITRATOR. ANY ARBITRATOR WHO CANNOT ACT IN THIS
1226 CAPACITY IS REQUIRED ETHICALLY TO DECLINE TO ACCEPT
1227 ENGAGEMENT. THE NAMES OF THE FIVE ARBITRATORS THAT THE
1228 AGGRIEVED PARTY HAS CHOSEN FROM WHICH YOU MAY SELECT
1229 ONE, AND THEIR CURRENT ADDRESSES, TELEPHONE NUMBERS,
1230 AND HOURLY RATES, ARE AS FOLLOWS:
1231
1232 (LIST THE NAMES, ADDRESSES, TELEPHONE NUMBERS, AND
1233 HOURLY RATES OF AT LEAST FIVE ARBITRATORS.
1234
1235 YOU MAY CONTACT THE OFFICES OF THESE ARBITRATORS TO
1236 CONFIRM THAT THE LISTED ARBITRATORS WILL BE NEUTRAL
1237 AND WILL NOT SHOW ANY FAVORITISM TOWARD EITHER PARTY.
1238
1239 UNLESS OTHERWISE AGREED TO BY THE PARTIES, PART IV OF
1240 CHAPTER 720, FLORIDA STATUTES, REQUIRES THAT THE
1241 PARTIES SHARE THE COSTS OF PRESUIT ARBITRATION
1242 EQUALLY, INCLUDING THE FEE CHARGED BY THE ARBITRATOR.
1243 THE PARTIES SHALL BE RESPONSIBLE FOR THEIR OWN
1244 ATTORNEY'S FEES IF THEY CHOOSE TO EMPLOY AN ATTORNEY
1245 IN CONNECTION WITH THE ARBITRATION. HOWEVER, USE OF AN
1246 ATTORNEY TO REPRESENT YOU FOR THE ARBITRATION IS NOT
1247 REQUIRED. THE ARBITRATOR SELECTED MAY REQUIRE THE
1248 ADVANCE PAYMENT OF SOME OR ALL OF THE ANTICIPATED
1249 FEES. THE AGGRIEVED PARTY HEREBY AGREES TO PAY OR
1250 PREPAY ONE-HALF OF THE SELECTED ARBITRATOR'S ESTIMATED
1251 FEES AND TO FORWARD THIS AMOUNT OR SUCH OTHER
1252 REASONABLE ADVANCE DEPOSITS AS THE ARBITRATOR WHO IS
1253 SELECTED REQUIRES FOR THIS PURPOSE. ANY FUNDS
1254 DEPOSITED WILL BE RETURNED TO YOU IF THESE FUNDS ARE
1255 IN EXCESS OF YOUR SHARE OF THE FEES INCURRED.
1256
1257 PLEASE SIGN THE AGREEMENT TO ARBITRATE BELOW AND
1258 CLEARLY INDICATE THE NAME OF THE ARBITRATOR WHO IS
1259 ACCEPTABLE TO YOU FROM THE NAMES LISTED BY THE
1260 AGGRIEVED PARTY.
1261
1262 YOU MUST RESPOND IN WRITING TO THIS STATUTORY NOTICE
1263 WITHIN 20 DAYS AFTER THE DATE THAT THE NOTICE OF
1264 PRESUIT ARBITRATION WAS EITHER PERSONALLY SERVED ON
1265 YOU OR 20 DAYS AFTER THE POSTMARKED DATE THAT THIS
1266 NOTICE OF PRESUIT ARBITRATION WAS SENT TO YOU BY
1267 CERTIFIED MAIL. YOU MUST ALSO PROVIDE A LIST OF AT
1268 LEAST THREE DATES AND TIMES IN WHICH YOU ARE AVAILABLE
1269 TO PARTICIPATE IN THE ARBITRATION THAT ARE WITHIN 90
1270 DAYS AFTER THE DATE YOU WERE PERSONALLY SERVED OR
1271 WITHIN 90 DAYS AFTER THE POSTMARKED DATE OF THE
1272 CERTIFIED MAILING OF THIS STATUTORY NOTICE OF PRESUIT
1273 ARBITRATION. A COPY OF THIS NOTICE AND YOUR RESPONSE
1274 WILL BE PROVIDED BY THE AGGRIEVED PARTY TO THE
1275 ARBITRATOR SELECTED, AND THE ARBITRATOR WILL SCHEDULE
1276 A MUTUALLY CONVENIENT TIME AND PLACE FOR THE
1277 ARBITRATION CONFERENCE TO BE HELD. IF YOU DO NOT
1278 PROVIDE A LIST OF AVAILABLE DATES AND TIMES, THE
1279 ARBITRATOR IS AUTHORIZED TO SCHEDULE AN ARBITRATION
1280 CONFERENCE WITHOUT TAKING YOUR SCHEDULE AND
1281 CONVENIENCE INTO CONSIDERATION. THE ARBITRATION
1282 CONFERENCE MUST BE HELD ON THE SCHEDULED DATE, OR ANY
1283 RESCHEDULED DATE APPROVED BY THE ARBITRATOR. IN NO
1284 EVENT SHALL THE ARBITRATION CONFERENCE BE LATER THAN
1285 90 DAYS AFTER NOTICE OF THE PRESUIT ARBITRATION WAS
1286 FIRST SERVED, UNLESS ALL PARTIES MUTUALLY AGREE IN
1287 WRITING OTHERWISE. IF THE ARBITRATION IS NOT COMPLETED
1288 WITHIN THE REQUIRED TIME LIMITS, THE ARBITRATOR SHALL
1289 ISSUE AN ARBITRATION AWARD, UNLESS THE HEARING IS
1290 EXTENDED BY MUTUAL WRITTEN AGREEMENT OF THE PARTIES
1291 AND APPROVED BY THE ARBITRATOR. IN THE EVENT THAT YOU
1292 FAIL TO RESPOND WITHIN 20 DAYS AFTER THE DATE YOU WERE
1293 SERVED WITH A COPY OF THIS NOTICE, FAIL TO PROVIDE THE
1294 ARBITRATOR WITH DATES AND TIMES IN WHICH YOU ARE
1295 AVAILABLE FOR THE ARBITRATION CONFERENCE, FAIL TO
1296 AGREE EITHER TO ONE OF THE ARBITRATORS THAT THE
1297 AGGRIEVED PARTY HAS NAMED, FAIL TO PAY OR PREPAY TO
1298 THE ARBITRATOR ONE-HALF OF THE COSTS INVOLVED AS
1299 REQUIRED, OR FAIL TO APPEAR AND PARTICIPATE AT THE
1300 SCHEDULED ARBITRATION CONFERENCE, THE AGGRIEVED PARTY
1301 MAY REQUEST THE ARBITRATOR TO ISSUE AN ARBITRATION
1302 AWARD. IN THE SUBSEQUENT COURT ACTION, THE AGGRIEVED
1303 PARTY SHALL BE ENTITLED TO RECOVER AN AWARD OF
1304 REASONABLE ATTORNEY'S FEES AND COSTS, INCLUDING ANY
1305 FEES PAID TO THE ARBITRATOR, INCURRED IN OBTAINING AN
1306 ARBITRATION AWARD PURSUANT TO S. 720.507, FLORIDA
1307 STATUTES.
1308
1309 PLEASE GIVE THIS MATTER YOUR IMMEDIATE ATTENTION. BY
1310 LAW, YOUR RESPONSE MUST BE POSTMARKED AND MAILED BY
1311 CERTIFIED, FIRST-CLASS MAIL, RETURN RECEIPT REQUESTED,
1312 TO THE ADDRESS SHOWN ON THIS NOTICE OF PRESUIT
1313 ARBITRATION.
1314
1315 _________________________
1316 Signature of aggrieved party
1317
1318 ______________________
1319 PRINTED NAME OF AGGRIEVED PARTY
1320
1321 RESPONDING PARTY: YOUR SIGNATURE BELOW INDICATES YOUR
1322 ACCEPTANCE OF THE AGREEMENT TO ARBITRATE.
1323
1324 AGREEMENT TO ARBITRATE
1325
1326 THE UNDERSIGNED HEREBY AGREES TO PARTICIPATE IN
1327 PRESUIT ARBITRATION AND AGREES TO ATTEND AN
1328 ARBITRATION CONDUCTED BY THE FOLLOWING ARBITRATOR
1329 LISTED BELOW AS SOMEONE WHO WOULD BE ACCEPTABLE TO
1330 ARBITRATE THIS DISPUTE:
1331
1332 (IN YOUR RESPONSE, SELECT THE NAME OF ONE ARBITRATOR
1333 THAT IS ACCEPTABLE TO YOU FROM THOSE ARBITRATORS
1334 LISTED BY THE AGGRIEVED PARTY.)
1335
1336 THE UNDERSIGNED HEREBY REPRESENTS THAT HE OR SHE IS
1337 AVAILABLE AND ABLE TO ATTEND AND PARTICIPATE IN THE
1338 PRESUIT ARBITRATION CONFERENCE AT THE FOLLOWING DATES
1339 AND TIMES:
1340
1341 (LIST ALL AVAILABLE DATES AND TIMES, OF WHICH THERE
1342 MUST BE AT LEAST THREE, WITHIN 90 DAYS AFTER THE DATE
1343 ON WHICH YOU WERE SERVED, EITHER BY PROCESS SERVER OR
1344 BY CERTIFIED MAIL, WITH THE NOTICE OF PRESUIT
1345 ARBITRATION.)
1346
1347 I/WE FURTHER AGREE TO PAY OR PREPAY ONE-HALF OF THE
1348 ARBITRATOR'S FEES AND TO FORWARD SUCH ADVANCE DEPOSITS
1349 AS THE ARBITRATOR MAY REQUIRE FOR THIS PURPOSE.
1350
1351 ______________________________
1352 SIGNATURE OF RESPONDING PARTY #1
1353 ______________________________
1354 TELEPHONE CONTACT INFORMATION
1355
1356 ______________________________
1357 SIGNATURE AND TELEPHONE CONTACT INFORMATION OF
1358 RESPONDING PARTY #2, IF APPLICABLE. IF THE PROPERTY IS
1359 OWNED BY MORE THAN ONE PERSON, ALL OWNERS MUST SIGN,
1360 OR A PERSON MAY SIGN WHO IS ACTING UNDER AUTHORITY OF
1361 A VALID POWER OF ATTORNEY GRANTED BY AN OWNER.
1362
1363 (2)(a) Service of the statutory notice of presuit
1364 arbitration shall be effected either by personal service, as
1365 provided in chapter 48, or by certified mail, return receipt
1366 requested, in a letter in substantial conformity with the form
1367 provided in subsection (1), with an additional copy being sent
1368 by regular first-class mail, to the address of the responding
1369 party as it last appears on the books and records of the
1370 association, or if not available, the last address as it appears
1371 on the official records of the county property appraiser for the
1372 county in which the property is situated that is subject to the
1373 association documents. The responding party has 20 days after
1374 the postmarked date of the certified mailing of the statutory
1375 notice of presuit arbitration or 20 days after the date the
1376 responding party is personally served with the statutory notice
1377 of presuit arbitration to serve a written response to the
1378 aggrieved party. The response shall be served by certified mail,
1379 return receipt requested, with an additional copy being sent by
1380 regular first-class mail, to the address shown on the statutory
1381 notice of presuit arbitration. The postmarked date on the
1382 envelope of the response shall constitute the date the response
1383 was served.
1384 (b) The parties shall share the costs of presuit
1385 arbitration equally, including the fee charged by the
1386 arbitrator, if any, unless the parties agree otherwise, and the
1387 arbitrator may require advance payment of his or her reasonable
1388 fees and costs. Each party shall be responsible for all of their
1389 own attorney's fees if a party chooses to be represented by an
1390 attorney for the arbitration proceedings.
1391 (c)1. The party responding to the aggrieved party must sign
1392 the agreement to arbitrate included in the notice of presuit
1393 arbitration and clearly indicate the name of the arbitrator who
1394 is acceptable of those arbitrators listed by the aggrieved
1395 party. The responding party must provide a list of at least
1396 three dates and times in which the responding party is available
1397 to participate in the arbitration conference within 90 days
1398 after the date the responding party was served with the
1399 statutory notice of presuit arbitration.
1400 2. The arbitrator must schedule the arbitration conference
1401 at a mutually convenient time and place, but if the responding
1402 party does not provide a list of available dates and times, the
1403 arbitrator is authorized to schedule an arbitration conference
1404 without taking the responding party's schedule and convenience
1405 into consideration. Within 10 days after the designation of the
1406 arbitrator, the arbitrator shall notify the parties in writing
1407 of the date, time, and place of the arbitration conference.
1408 3. The arbitration conference must be held on the scheduled
1409 date and may be rescheduled if approved by the arbitrator.
1410 However, in no event shall the arbitration hearing be later than
1411 90 days after the notice of presuit arbitration was first
1412 served, unless all parties mutually agree in writing otherwise.
1413 If the arbitration hearing is not completed within the required
1414 time limits, the arbitrator may issue an arbitration award
1415 unless the time for the hearing is extended as provided herein.
1416 If the responding party fails to respond within 20 days after
1417 the date of statutory notice of presuit arbitration, fails to
1418 agree to at least one of the arbitrators that have been listed
1419 by the aggrieved party in the presuit notice of arbitration,
1420 fails to pay or prepay to the arbitrator one-half of the costs
1421 involved, or fails to appear and participate at the scheduled
1422 arbitration, the aggrieved party is authorized to proceed with a
1423 request that the arbitrator issue an arbitration award.
1424 (d)1. The failure of any party to respond to the statutory
1425 notice of presuit arbitration within 20 days, the failure to
1426 either select one of the five arbitrators listed by the
1427 aggrieved party, the failure to provide a listing of dates and
1428 times in which the responding party is available to participate
1429 in the arbitration conference within 90 days after the date of
1430 the responding party being served with the statutory notice of
1431 presuit arbitration, the failure to make payment of fees and
1432 costs as required within the time established by the arbitrator,
1433 or the failure to appear for an arbitration conference without
1434 the approval of the arbitrator, shall entitle the other party to
1435 request the arbitrator to enter an arbitration award, including
1436 an award of the reasonable costs and attorney's fees associated
1437 with the arbitration.
1438 2. Persons who fail or refuse to participate in the entire
1439 arbitration process may not recover attorney's fees and costs in
1440 any subsequent litigation proceeding relating to the same
1441 dispute involving the same parties.
1442 (3)(a) In an arbitration proceeding, the arbitrator may not
1443 consider any unsuccessful mediation of the dispute.
1444 (b) An arbitrator in a proceeding initiated pursuant to the
1445 provisions of this part may shorten the time for discovery or
1446 otherwise limit discovery in a manner consistent with the policy
1447 goals of this part to reduce the time and expense of litigating
1448 homeowners' association disputes initiated pursuant to this
1449 chapter and promoting an expeditious alternative dispute
1450 resolution procedure for parties to such actions.
1451 (4) At the request of any party to the arbitration, the
1452 arbitrator may issue subpoenas for the attendance of witnesses
1453 and the production of books, records, documents, and other
1454 evidence, and any party on whose behalf a subpoena is issued may
1455 apply to the court for orders compelling such attendance and
1456 production. Subpoenas shall be served and are enforceable in the
1457 manner provided by the Florida Rules of Civil Procedure.
1458 Discovery may, at the discretion of the arbitrator, be permitted
1459 in the manner provided by the Florida Rules of Civil Procedure.
1460 (5) The final arbitration award shall be sent to the
1461 parties in writing no later than 30 days after the date of the
1462 arbitration hearing, absent extraordinary circumstances
1463 necessitating a later filing the reasons for which shall be
1464 stated in the final award if filed more than 30 days after the
1465 date of the final session of the arbitration conference. An
1466 agreed arbitration award is final in those disputes in which the
1467 parties have mutually agreed to be bound. An arbitration award
1468 decided by the arbitrator is final unless a lawsuit seeking a
1469 trial de novo is filed in a court of competent jurisdiction
1470 within 30 days after the date of the arbitration award. The
1471 right to file for a trial de novo entitles the parties to file a
1472 complaint in the appropriate trial court for a judicial
1473 resolution of the dispute. The prevailing party in an
1474 arbitration proceeding shall be awarded the costs of the
1475 arbitration and reasonable attorney's fees in an amount
1476 determined by the arbitrator.
1477 (6) The party filing a motion for a trial de novo shall be
1478 assessed the other party's arbitration costs, court costs, and
1479 other reasonable costs, including attorney's fees, investigation
1480 expenses, and expenses for expert or other testimony or evidence
1481 incurred after the arbitration hearing, if the judgment upon the
1482 trial de novo is not more favorable than the final arbitration
1483 award.
1484 720.508 Rules of procedure.—
1485 (1) Presuit mediation and presuit arbitration proceedings
1486 under this part must be conducted in accordance with the
1487 applicable Florida Rules of Civil Procedure and rules governing
1488 mediations and arbitrations under chapter 44, except that this
1489 part shall be controlling to the extent of any conflict with
1490 other applicable rules or statutes. The arbitrator may shorten
1491 any applicable time period and otherwise limit the scope of
1492 discovery on request of the parties or within the discretion of
1493 the arbitrator exercised consistent with the purpose and
1494 objective of reducing the expense and expeditiously concluding
1495 proceedings under this part.
1496 (2) Presuit mediation proceedings under s. 720.505 are
1497 privileged and confidential to the same extent as court-ordered
1498 mediation under chapter 44. An arbitrator or judge may not
1499 consider any information or evidence arising from the presuit
1500 mediation proceeding except in a proceeding to impose sanctions
1501 for failure to attend a presuit mediation session or to enforce
1502 a mediated settlement agreement.
1503 (3) Persons who are not parties to the dispute may not
1504 attend the presuit mediation conference without consent of all
1505 parties, with the exception of counsel for the parties and a
1506 corporate representative designated by the association. Presuit
1507 mediations under this part are not a board meeting for purposes
1508 of notice and participation set forth in this chapter.
1509 (4) Attendance at a mediation conference by the board of
1510 directors shall not require notice or participation by nonboard
1511 members as otherwise required by this chapter for meetings of
1512 the board.
1513 (5) Settlement agreements resulting from a mediation or
1514 arbitration proceeding do not have precedential value in
1515 proceedings involving parties other than those participating in
1516 the mediation or arbitration.
1517 (6) Arbitration awards by an arbitrator shall have
1518 precedential value in other proceedings involving the same
1519 association or with respect to the same parcel owner.
1520 720.509 Mediators and arbitrators; qualifications and
1521 registration.—A person is authorized to conduct mediation or
1522 arbitration under this part if he or she has been certified as a
1523 circuit court civil mediator under the requirements adopted
1524 pursuant to s. 44.106, is a member in good standing with The
1525 Florida Bar, and otherwise meets all other requirements imposed
1526 by chapter 44.
1527 720.510 Enforcement of mediation agreement or arbitration
1528 award.—
1529 (1) A mediation settlement may be enforced through the
1530 county or circuit court, as applicable, and any costs and
1531 attorney's fees incurred in the enforcement of a settlement
1532 agreement reached at mediation shall be awarded to the
1533 prevailing party in any enforcement action.
1534 (2) Any party to an arbitration proceeding may enforce an
1535 arbitration award by filing a petition in a court of competent
1536 jurisdiction in which the homeowners' association is located.
1537 The prevailing party in such proceeding shall be awarded
1538 reasonable attorney's fees and costs incurred in such
1539 proceeding.
1540 (3) If a complaint is filed seeking a trial de novo, the
1541 arbitration award shall be stayed and a petition to enforce the
1542 award may not be granted. Such award, however, shall be
1543 admissible in the court proceeding seeking a trial de novo.
1544 Section 10. (1) Notwithstanding any other provisions of
1545 law, any three or more condominium associations may form a self
1546 insurance fund for the purposes of pooling and spreading the
1547 liabilities of its participant associations arising from the
1548 deductible provisions of the commercial lines residential
1549 property insurance policies of the participants applicable to
1550 hurricane losses, if:
1551 (a) Such fund is a not-for-profit corporation pursuant to
1552 chapter 617, Florida Statutes.
1553 (b) The fund is implemented through contracts among the
1554 participating associations, or through contracts between the
1555 participating associations and another legal entity established
1556 for and limited to establishing and implementing the program.
1557 (c) The liability of the fund for claims is limited to
1558 funds available for the payment of claims.
1559 (d) The contract provided to a participating association
1560 clearly discloses the obligations of the participants in the
1561 fund and the obligations of the fund, including the limited
1562 liability of the fund as defined in paragraph (c). The contract
1563 must specify a reasonable date for the payment of claims which
1564 provides the fund with adequate time to verify and account for
1565 all claims for a given year so that claims payments can be
1566 properly calculated after consideration of the funds available.
1567 Before execution of the contract, the association or its
1568 representative must be provided a separate disclosure form
1569 specifying the limited liability of the fund and all
1570 administrative fees and estimated expenses, and provide examples
1571 of the manner in which available funds will be allocated among
1572 claimants if claims exceed the funds available for the payment
1573 thereof. Such disclosure must be signed by a representative of
1574 the participating association before or at the time of execution
1575 of the contract.
1576 (e) The contributions charged for participating in the fund
1577 are established by the fund and calculated as a percentage of
1578 the participant's hurricane deductible dollar amount. The fund
1579 may determine the method and timing of payment of contributions.
1580 (f) All members of the governing board of the fund are
1581 participating associations in the fund, and the governing body
1582 has all powers necessary to establish and administer the fund as
1583 authorized by the participants in the fund. All decisions of the
1584 fund shall be based upon a vote of the majority of the board.
1585 The board may contract with individual professionals to
1586 administer the fund.
1587 (g) The fund uses and contracts with knowledgeable persons
1588 or business entities to administer and service the fund,
1589 including marketing, policy, contract administration, claims
1590 administration, accounting services, and legal services.
1591 (h) The fund uses a properly licensed general lines
1592 insurance agent who is a Florida resident for solicitation of
1593 participation in the fund and does not prevent, impede, or
1594 restrict any applicant or participant in the fund from
1595 maintaining or selecting an agent of choice. The fund may not
1596 favor one or more agents over another agent. The organizational
1597 documents, the contract, and notices of disclosure must be filed
1598 with the Office of Insurance Regulation not less than 45 days
1599 prior to solicitation by the fund.
1600 (i) The fund is audited by an independent auditor no less
1601 frequently than every 2 years.
1602 (2) The fund may accumulate funds or periodically
1603 distribute excess funds to its participants on a pro rata basis,
1604 reflecting loss experience of individual participants and
1605 proportionate contributions paid by participants.
1606 (3) Participants in the fund must have a deductible no
1607 greater than as provided in s. 627.701(8), Florida Statutes.
1608 Self-insurance funds or pools established pursuant to this
1609 section are not subject to licensure requirements or regulation
1610 pursuant to the Florida Insurance Code, except for part IX of
1611 chapter 626, Florida Statutes, which may be enforced by the
1612 Office of Insurance Regulation or the Department of Financial
1613 Services, as applicable, and are not subject to any fees, taxes,
1614 or assessments related to the writing or transaction of
1615 insurance in this state.
1616 Section 11. Except as otherwise expressly provided in this
1617 act, this act shall take effect July 1, 2009.