Florida Senate - 2013                                    SB 1618
       By Senator Sachs
       34-01290A-13                                          20131618__
    1                        A bill to be entitled                      
    2         An act relating to condominium associations; amending
    3         s. 399.02, F.S.; removing a specific date by which
    4         updates to the safety code for certain existing
    5         elevators and escalators may not be enforced in
    6         condominiums or multifamily residential buildings;
    7         amending s. 718.111, F.S.; authorizing an agent,
    8         employee, or representative of a condominium
    9         association to enter into a condominium unit that has
   10         been abandoned or unoccupied under certain conditions;
   11         providing for the presumption of abandonment in
   12         certain circumstances; providing for the collection of
   13         expenses; providing for the publication of a directory
   14         of unit owners if approved by the board; amending s.
   15         718.116, F.S.; relieving an association that has taken
   16         title to a unit by foreclosure from certain liability;
   17         adding to the expenses costs incurred in protecting
   18         the collateral of the mortgage for which the unit
   19         owner becomes liable; providing the types of costs
   20         that may be included in the expenses; providing an
   21         exception for expenses to protect the collateral of
   22         the mortgage from the exemption from liability for all
   23         unpaid assessments attributable to a unit for a first
   24         mortgagee or its successor or assignee who acquires
   25         title to the unit as a result of a foreclosure
   26         proceeding; authorizing an association to have a lien
   27         against rents generated by lease or rent of a unit
   28         under certain conditions; providing that each lease or
   29         rental agreement is subject to the lien right of the
   30         association, which includes an obligation of the
   31         tenant or lessee to make direct payment of rents to
   32         the association until certain obligations of the unit
   33         owner are paid in full; requiring the association to
   34         also provide notice to any person acting as a rental
   35         agent of its right to demand rental payments under
   36         certain conditions; requiring the association to apply
   37         excess rent as a credit against future assessments due
   38         from the unit; revising provisions that allow an
   39         association to bring summary proceedings to sequester
   40         or collect rental income; revising provisions that
   41         allow an association to sue for eviction; authorizing
   42         recovery of reasonable attorney fees and costs by the
   43         prevailing party in an action for eviction; providing
   44         that the unit owner and the tenant are jointly and
   45         severally liable for attorney fees and costs of the
   46         association if the association prevails in an action
   47         to recover rent after proper demand; providing an
   48         effective date.
   50  Be It Enacted by the Legislature of the State of Florida:
   52         Section 1. Subsection (9) of section 399.02, Florida
   53  Statutes, is amended to read:
   54         399.02 General requirements.—
   55         (9) Updates to the Safety Code for Existing Elevators and
   56  Escalators, ASME A17.1 and A17.3, which require Phase II
   57  Firefighters’ Service on elevators may not be enforced until
   58  July 1, 2015, or until the elevator is replaced or requires
   59  major modification, whichever occurs first, on elevators in
   60  condominiums or multifamily residential buildings, including
   61  those that are part of a continuing care facility licensed under
   62  chapter 651, or similar retirement community with apartments,
   63  having a certificate of occupancy by the local building
   64  authority that was issued before July 1, 2008. This exception
   65  does not prevent an elevator owner from requesting a variance
   66  from the applicable codes before or after July 1, 2015. This
   67  subsection does not prohibit the division from granting
   68  variances pursuant to s. 120.542 and subsection (8). The
   69  division shall adopt rules to administer this subsection.
   70         Section 2. Subsection (5) and paragraph (c) of subsection
   71  (12) of section 718.111, Florida Statutes, are amended to read:
   72         718.111 The association.—
   73         (5) RIGHT OF ACCESS TO UNITS.—
   74         (a) The association has the irrevocable right of access to
   75  each unit during reasonable hours, when necessary for the
   76  maintenance, repair, or replacement of any common elements or of
   77  any portion of a unit to be maintained by the association
   78  pursuant to the declaration or as necessary to prevent damage to
   79  the common elements or to a unit or units.
   80         (b) An agent, employee, or representative of the
   81  association may enter an abandoned unit to inspect the unit and
   82  adjoining common elements; make repairs to the unit or to the
   83  common elements serving the unit, as needed; remediate the unit
   84  if mold or deterioration is present; turn on the power for the
   85  unit; and otherwise maintain, preserve, and protect the unit and
   86  adjoining common elements. A unit is presumed to be abandoned if
   87  the unit is the subject of a foreclosure action and a person has
   88  not resided in the unit for at least 28 continuous days without
   89  notice to the association or if a person has not resided in the
   90  unit for 60 consecutive days without notice to the association
   91  and the association is unable to contact the owner or determine
   92  the location of the owner upon reasonable inquiry. Before an
   93  agent, employee, or representative of the association may enter
   94  the unit, the association must post a notice of intent to enter
   95  on the door to the unit at least 48 hours before the initial
   96  entry into the unit and must mail a copy of the notice to the
   97  owner at the address contained in the official records of the
   98  association. If the unit is not in foreclosure, the association
   99  may collect from the unit owner the expenses incurred pursuant
  100  to this paragraph using a lien for common expenses as provided
  101  in s. 718.116. If the unit is in foreclosure, the association
  102  may collect from the purchaser taking title from the first
  103  mortgagee, who is responsible for the expenses incurred pursuant
  104  to this paragraph, using a lien pursuant to s. 718.116.
  105         (12) OFFICIAL RECORDS.—
  106         (c) The official records of the association are open to
  107  inspection by any association member or the authorized
  108  representative of such member at all reasonable times. The right
  109  to inspect the records includes the right to make or obtain
  110  copies, at the reasonable expense, if any, of the member. The
  111  association may adopt reasonable rules regarding the frequency,
  112  time, location, notice, and manner of record inspections and
  113  copying. The failure of an association to provide the records
  114  within 10 working days after receipt of a written request
  115  creates a rebuttable presumption that the association willfully
  116  failed to comply with this paragraph. A unit owner who is denied
  117  access to official records is entitled to the actual damages or
  118  minimum damages for the association’s willful failure to comply.
  119  Minimum damages are $50 per calendar day for up to 10 days,
  120  beginning on the 11th working day after receipt of the written
  121  request. The failure to permit inspection entitles any person
  122  prevailing in an enforcement action to recover reasonable
  123  attorney’s fees from the person in control of the records who,
  124  directly or indirectly, knowingly denied access to the records.
  125  Any person who knowingly or intentionally defaces or destroys
  126  accounting records that are required by this chapter to be
  127  maintained during the period for which such records are required
  128  to be maintained, or who knowingly or intentionally fails to
  129  create or maintain accounting records that are required to be
  130  created or maintained, with the intent of causing harm to the
  131  association or one or more of its members, is personally subject
  132  to a civil penalty pursuant to s. 718.501(1)(d). The association
  133  shall maintain an adequate number of copies of the declaration,
  134  articles of incorporation, bylaws, and rules, and all amendments
  135  to each of the foregoing, as well as the question and answer
  136  sheet as described in s. 718.504 and year-end financial
  137  information required under this section, on the condominium
  138  property to ensure their availability to unit owners and
  139  prospective purchasers, and may charge its actual costs for
  140  preparing and furnishing these documents to those requesting the
  141  documents. Notwithstanding this paragraph, the following records
  142  are not accessible to unit owners:
  143         1. Any record protected by the lawyer-client privilege as
  144  described in s. 90.502 and any record protected by the work
  145  product privilege, including a record prepared by an association
  146  attorney or prepared at the attorney’s express direction, which
  147  reflects a mental impression, conclusion, litigation strategy,
  148  or legal theory of the attorney or the association, and which
  149  was prepared exclusively for civil or criminal litigation or for
  150  adversarial administrative proceedings, or which was prepared in
  151  anticipation of such litigation or proceedings until the
  152  conclusion of the litigation or proceedings.
  153         2. Information obtained by an association in connection
  154  with the approval of the lease, sale, or other transfer of a
  155  unit.
  156         3. Personnel records of association or management company
  157  employees, including, but not limited to, disciplinary, payroll,
  158  health, and insurance records. For purposes of this
  159  subparagraph, the term “personnel records” does not include
  160  written employment agreements with an association employee or
  161  management company, or budgetary or financial records that
  162  indicate the compensation paid to an association employee.
  163         4. Medical records of unit owners.
  164         5. Social security numbers, driver’s license numbers,
  165  credit card numbers, e-mail addresses, telephone numbers,
  166  facsimile numbers, emergency contact information, addresses of a
  167  unit owner other than as provided to fulfill the association’s
  168  notice requirements, and other personal identifying information
  169  of any person, excluding the person’s name, unit designation,
  170  mailing address, property address, and any address, e-mail
  171  address, or facsimile number provided to the association to
  172  fulfill the association’s notice requirements. However, an owner
  173  may consent in writing to the disclosure of protected
  174  information described in this subparagraph.
  175         a. An association may publish a directory that includes the
  176  name, address, telephone number, and unit number for unit
  177  owners. Unit owners may be included in the directory if the
  178  inclusion of the information is authorized by the board of
  179  administration. Upon approval by the board, each unit owner
  180  shall be notified in writing of the board’s action. The unit
  181  owner has 30 days to file a written objection only to the
  182  inclusion of his or her telephone number. The directory may not
  183  be published until after the 30-day objection period has
  184  expired. The telephone number of a unit owner who objects may
  185  not be included in the directory.
  186         b. The association is not liable for the inadvertent
  187  disclosure of information that is protected under this
  188  subparagraph if the information is included in an official
  189  record of the association and is voluntarily provided by an
  190  owner and not requested by the association.
  191         6.  Electronic security measures that are used by the
  192  association to safeguard data, including passwords.
  193         7. The software and operating system used by the
  194  association which allow the manipulation of data, even if the
  195  owner owns a copy of the same software used by the association.
  196  The data is part of the official records of the association.
  197         Section 3. Paragraphs (a), (b), and (e) of subsection (1)
  198  and subsection (11) of section 718.116, Florida Statutes, are
  199  amended to read:
  200         718.116 Assessments; liability; lien and priority;
  201  interest; collection.—
  202         (1)(a) A unit owner, regardless of how his or her title has
  203  been acquired, including by purchase at a foreclosure sale or by
  204  deed in lieu of foreclosure, is liable for all assessments which
  205  come due while he or she is the unit owner. Additionally, a unit
  206  owner is jointly and severally liable with the previous owner
  207  for all unpaid assessments that came due up to the time of
  208  transfer of title. This liability is without prejudice to any
  209  right the owner may have to recover from the previous owner the
  210  amounts paid by the owner. The liability of a unit owner in
  211  paragraph (b) does not apply to an association that has taken
  212  title to a unit by foreclosure if the association is exempt from
  213  liability for sums which came due before or during such
  214  ownership.
  215         (b)1. The liability of a first mortgagee or its successor
  216  or assignees who acquire title to a unit by foreclosure or by
  217  deed in lieu of foreclosure for the unpaid assessments that
  218  became due before the mortgagee’s acquisition of title is
  219  limited to the lesser of:
  220         a. the unit’s unpaid common expenses and regular periodic
  221  assessments which accrued or came due during the 12 months
  222  immediately preceding the acquisition of title and for which
  223  payment in full has not been received by the association and
  224  expenses incurred in protecting the collateral of the mortgage.
  225  Expenses incurred in protecting the collateral of the mortgage
  226  are those that directly and significantly benefit the unit
  227  encumbered by the mortgage and include, but are not limited to,
  228  that unit’s proportionate share of assessments for: insurance;
  229  maintenance, repair, replacement, and protection of structural
  230  components of the unit or common elements; installation,
  231  operation, maintenance, repair, replacement, and protection of
  232  hurricane protection for the unit or common elements; and
  233  maintenance, repair, replacement, or protection of the unit or
  234  its contents when necessary to prevent damage to the common
  235  elements or to another unit.; or
  236         b. One percent of the original mortgage debt. The
  237  provisions of this paragraph apply only if the first mortgagee
  238  joined the association as a defendant in the foreclosure action.
  239  Joinder of the association is not required if, on the date the
  240  complaint is filed, the association was dissolved or did not
  241  maintain an office or agent for service of process at a location
  242  which was known to or reasonably discoverable by the mortgagee.
  243         2. An association, or its successor or assignee, which that
  244  acquires title to a unit through the foreclosure of its lien for
  245  assessments is not liable for any unpaid assessments, late fees,
  246  interest, or reasonable attorney attorney’s fees and costs that
  247  came due before the association’s acquisition of title in favor
  248  of any other association, as defined in s. 718.103(2) or s.
  249  720.301(9), which holds a superior lien interest on the unit.
  250  This subparagraph is intended to clarify existing law.
  251         3. The liability of a unit owner does not apply to an
  252  association that has taken title to a unit by foreclosure if the
  253  association is exempt from liability for sums which came due
  254  before or during such ownership.
  255         (e) Notwithstanding the provisions of paragraph (b), with
  256  the exception of expenses to protect the collateral of the
  257  mortgage pursuant to subparagraph (b)1., a first mortgagee or
  258  its successor or assignees who acquire title to a condominium
  259  unit as a result of the foreclosure of the mortgage or by deed
  260  in lieu of foreclosure of the mortgage are shall be exempt from
  261  liability for all unpaid assessments attributable to the parcel
  262  or chargeable to the previous owner which came due prior to
  263  acquisition of title if the first mortgage was recorded before
  264  prior to April 1, 1992. If, however, the first mortgage was
  265  recorded on or after April 1, 1992, or on the date the mortgage
  266  was recorded, the declaration included language incorporating by
  267  reference future amendments to this chapter, the provisions of
  268  paragraph (b) shall apply.
  269         (11)(a) An association is deemed to have a lien on all
  270  rents generated by the lease or rental of units in a condominium
  271  operated by the association. The lien is retroactive to July 1,
  272  2011, as to each tenancy created or renewed after that date. The
  273  lien is superior to the rights of the unit owner and to the
  274  holder of any lien on a condominium parcel created after July 1,
  275  2011, including, but not limited to, the holder of a first
  276  mortgage of record. The lien secures all indebtedness to the
  277  association for assessments, interest, late fees, fines,
  278  charges, and any other monetary obligation permitted by this
  279  chapter or other applicable law to be levied by the association,
  280  including the reasonable costs of maintaining or repairing a
  281  unit following foreclosure of the association’s lien or the
  282  abandonment of the unit by the unit owner. An association may
  283  receive all rents that are due as a result of the rental or
  284  lease of the unit until the issuance of a certificate of title
  285  to the holder of the first mortgage or the recording of a deed
  286  in lieu of foreclosure in favor of the holder of the first
  287  mortgage.
  288         (b)Each lease or rental agreement is subject to the lien
  289  rights of the association and is deemed to include, and such
  290  approval is conditioned upon, an obligation of the tenant or
  291  lessee to make direct payment to the association of the full
  292  amount of rent reserved under the lease or rental agreement or
  293  the actual practice of the parties, if different, until the
  294  association has been paid in full or until the tenant
  295  discontinues occupancy of the unit, whichever occurs first. If
  296  no terms are stated in a written document that is signed by the
  297  parties, it is presumed that rent is due and payable on the
  298  first day of each month in advance, except that if the term is
  299  for less than one calendar month, it is presumed that the rent
  300  reserved is payable in advance of occupancy.
  301         (c) If the unit is occupied by a tenant and the unit owner
  302  is delinquent in paying a any monetary obligation due to the
  303  association, the association may make a written demand that the
  304  tenant pay to the association the subsequent rental payments and
  305  continue to make such payments until all monetary obligations of
  306  the unit owner related to the unit have been paid in full to the
  307  association. The tenant shall must pay the monetary obligations
  308  to the association until the association releases the tenant or
  309  the tenant discontinues tenancy in the unit.
  310         1. The association shall must provide the tenant a notice,
  311  and, if known, any person acting as a rental agent a copy of the
  312  notice, by hand delivery or United States mail, in substantially
  313  the following form:
  315         Pursuant to section 718.116(11), Florida
  316         Statutes, the association demands that you pay your
  317         rent directly to the condominium association and
  318         continue doing so until the association notifies you
  319         otherwise.
  320         Payment due the condominium association may be in
  321         the same form as you paid your landlord and must be
  322         sent by United States mail or hand delivery to
  323         ...(full address)..., payable to ...(name)....
  324         Your obligation to pay your rent to the
  325         association begins immediately, unless you have
  326         already paid rent to your landlord for the current
  327         period before receiving this notice. In that case, you
  328         must provide the association written proof of your
  329         payment within 14 days after receiving this notice and
  330         your obligation to pay rent to the association would
  331         then begin with the next rental period.
  332         Pursuant to section 718.116(11), Florida
  333         Statutes, your payment of rent to the association
  334         gives you complete immunity from any claim for the
  335         rent by your landlord for all amounts timely paid to
  336         the association.
  338         2. The association shall must mail written notice to the
  339  unit owner of the association’s demand that the tenant make
  340  payments to the association.
  341         3. The association shall, upon request, shall provide the
  342  tenant with written receipts for payments made.
  343         4. A tenant is immune from any claim by the landlord or
  344  unit owner related to the rent timely paid to the association
  345  after the association has made written demand.
  346         (d)(b) If the tenant paid rent to the landlord or unit
  347  owner for a given rental period before receiving the demand from
  348  the association and provides written evidence to the association
  349  of having paid the rent within 14 days after receiving the
  350  demand, the tenant shall begin making rental payments to the
  351  association for the following rental period and shall continue
  352  making rental payments to the association to be credited against
  353  the monetary obligations of the unit owner until the association
  354  releases the tenant or the tenant discontinues tenancy in the
  355  unit. After all other financial obligations have been satisfied,
  356  the association shall apply the excess rent received by it as a
  357  credit against future assessments due from the unit.
  358         (e)(c) The liability of the tenant may not exceed the
  359  amount due from the tenant to the tenant’s landlord. The
  360  tenant’s landlord shall provide the tenant a credit against
  361  rents due to the landlord in the amount of moneys paid to the
  362  association.
  363         (f)(d) The association may bring summary proceedings under
  364  chapter 51 to adjudicate the right of the association to
  365  sequester or to collect rental income. With prior leave of a
  366  court having jurisdiction of the cause, the association may also
  367  issue notice under s. 83.56 and sue for eviction under ss.
  368  83.59-83.625 as if the association were a landlord under part II
  369  of chapter 83 if the tenant fails to pay a required payment to
  370  the association after a copy of the written demand has been
  371  provided made to the tenant or if the unit is rented or leased
  372  without prior association approval if approval is required or
  373  permitted under this section or under the governing documents.
  374  If the association sues for eviction under ss. 83.59-83.625,
  375  separate notice under s. 83.56 is not required. However, the
  376  association is not otherwise considered a landlord under chapter
  377  83 and specifically has no obligations under s. 83.51. In an
  378  action for eviction, the prevailing party may recover its
  379  reasonable attorney fees and costs. In any action arising under
  380  this paragraph in which the tenant is found to have failed to
  381  pay rent to the association after proper demand, the unit owner
  382  and the tenant have joint and several liability for the
  383  reasonable attorney fees and costs of the association.
  384         (g)(e) The tenant does not, by virtue of payment of
  385  monetary obligations to the association, have any of the rights
  386  of a unit owner to vote in an any election or to examine the
  387  books and records of the association.
  388         (h)(f) A court may supersede the effect of this subsection
  389  by appointing a receiver.
  390         Section 4. This act shall take effect July 1, 2013.