Florida Senate - 2015 SB 748
By Senator Ring
29-00500C-15 2015748__
1 A bill to be entitled
2 An act relating to residential properties; amending s.
3 617.0721, F.S.; providing that any copy, facsimile, or
4 other reliable reproduction of the original proxy may
5 be substituted and used in lieu of, and for the same
6 purposes as, the original proxy if the reproduction is
7 a complete reproduction of the entire proxy; amending
8 s. 718.111, F.S.; providing that certain written
9 records of the association related to the operation of
10 the association constitute official records that must
11 be maintained by the association; providing that the
12 vote necessary to charge use fees for the use of the
13 common elements or association property may be
14 approved by a majority of the voting interests
15 present, in person or by proxy, at a meeting of the
16 association if a quorum has been established; amending
17 s. 718.112, F.S.; prohibiting a unit owner from
18 posting specified recordings of a meeting in certain
19 circumstances; clarifying that association property
20 can be used to post notices; amending ss. 718.116,
21 719.108, and 720.3085, F.S.; providing that the
22 association may recover from the unit owner or parcel
23 owner a reasonable charge imposed by a management or
24 bookkeeping company, or collection agent, incurred in
25 connection with a delinquent assessment; providing
26 that such charges must be liquidated, noncontingent,
27 and based upon actual time expended; providing that
28 fees for collection are not recoverable in a certain
29 circumstance; specifying the hierarchy for the
30 application of payments received for collection
31 services contracted by the association; amending s.
32 719.104, F.S.; providing that certain written records
33 of the association related to the operation of the
34 association constitute official records that must be
35 maintained by the association; amending ss. 719.106
36 and 720.306, F.S.; prohibiting a unit owner or parcel
37 owner from posting specified recordings of a meeting
38 in certain circumstances; creating s. 720.3015, F.S.;
39 providing a short title; providing an effective date.
40
41 Be It Enacted by the Legislature of the State of Florida:
42
43 Section 1. Subsection (2) of section 617.0721, Florida
44 Statutes, is amended to read:
45 617.0721 Voting by members.—
46 (2) A member who is entitled to vote may vote in person or,
47 unless the articles of incorporation or the bylaws otherwise
48 provide, may vote by proxy executed in writing by the member or
49 by his or her duly authorized attorney in fact. Notwithstanding
50 any provision to the contrary in the articles of incorporation
51 or bylaws, any copy, facsimile, or other reliable reproduction
52 of the original proxy may be substituted for or used in lieu of
53 the original proxy for any purpose for which the original proxy
54 could be used if the copy, facsimile, or other reproduction is a
55 complete reproduction of the entire proxy. An appointment of a
56 proxy is not valid after 11 months following the date of its
57 execution unless otherwise provided in the proxy.
58 (a) If directors or officers are to be elected by members,
59 the bylaws may provide that such elections may be conducted by
60 mail.
61 (b) A corporation may reject a vote, consent, waiver, or
62 proxy appointment if the secretary or other officer or agent
63 authorized to tabulate votes, acting in good faith, has a
64 reasonable basis for doubting the validity of the signature on
65 it or the signatory’s authority to sign for the member.
66 Section 2. Subsection (4) and paragraph (a) of subsection
67 (12) of section 718.111, Florida Statutes, are amended to read:
68 718.111 The association.—
69 (4) ASSESSMENTS; MANAGEMENT OF COMMON ELEMENTS.—The
70 association has the power to make and collect assessments and to
71 lease, maintain, repair, and replace the common elements or the
72 association property; however, the association may not charge a
73 use fee against a unit owner for the use of common elements or
74 association property unless otherwise provided for in the
75 declaration of condominium or by a majority of the voting
76 interests present, in person or by proxy, at a meeting of the
77 association if a quorum has been established vote of the
78 association or unless the charges relate to expenses incurred by
79 an owner having exclusive use of the common elements or
80 association property.
81 (12) OFFICIAL RECORDS.—
82 (a) From the inception of the association, the association
83 shall maintain each of the following items, if applicable, which
84 constitutes the official records of the association:
85 1. A copy of the plans, permits, warranties, and other
86 items provided by the developer pursuant to s. 718.301(4).
87 2. A photocopy of the recorded declaration of condominium
88 of each condominium operated by the association and each
89 amendment to each declaration.
90 3. A photocopy of the recorded bylaws of the association
91 and each amendment to the bylaws.
92 4. A certified copy of the articles of incorporation of the
93 association, or other documents creating the association, and
94 each amendment thereto.
95 5. A copy of the current rules of the association.
96 6. A book or books that contain the minutes of all meetings
97 of the association, the board of administration, and the unit
98 owners, which minutes must be retained for at least 7 years.
99 7. A current roster of all unit owners and their mailing
100 addresses, unit identifications, voting certifications, and, if
101 known, telephone numbers. The association shall also maintain
102 the electronic mailing addresses and facsimile numbers of unit
103 owners consenting to receive notice by electronic transmission.
104 The electronic mailing addresses and facsimile numbers are not
105 accessible to unit owners if consent to receive notice by
106 electronic transmission is not provided in accordance with
107 subparagraph (c)5. However, the association is not liable for an
108 inadvertent disclosure of the electronic mail address or
109 facsimile number for receiving electronic transmission of
110 notices.
111 8. All current insurance policies of the association and
112 condominiums operated by the association.
113 9. A current copy of any management agreement, lease, or
114 other contract to which the association is a party or under
115 which the association or the unit owners have an obligation or
116 responsibility.
117 10. Bills of sale or transfer for all property owned by the
118 association.
119 11. Accounting records for the association and separate
120 accounting records for each condominium that the association
121 operates. All accounting records must be maintained for at least
122 7 years. Any person who knowingly or intentionally defaces or
123 destroys such records, or who knowingly or intentionally fails
124 to create or maintain such records, with the intent of causing
125 harm to the association or one or more of its members, is
126 personally subject to a civil penalty pursuant to s.
127 718.501(1)(d). The accounting records must include, but are not
128 limited to:
129 a. Accurate, itemized, and detailed records of all receipts
130 and expenditures.
131 b. A current account and a monthly, bimonthly, or quarterly
132 statement of the account for each unit designating the name of
133 the unit owner, the due date and amount of each assessment, the
134 amount paid on the account, and the balance due.
135 c. All audits, reviews, accounting statements, and
136 financial reports of the association or condominium.
137 d. All contracts for work to be performed. Bids for work to
138 be performed are also considered official records and must be
139 maintained by the association.
140 12. Ballots, sign-in sheets, voting proxies, and all other
141 papers relating to voting by unit owners, which must be
142 maintained for 1 year from the date of the election, vote, or
143 meeting to which the document relates, notwithstanding paragraph
144 (b).
145 13. All rental records if the association is acting as
146 agent for the rental of condominium units.
147 14. A copy of the current question and answer sheet as
148 described in s. 718.504.
149 15. All other written records of the association not
150 specifically included in the foregoing which are related to the
151 operation of the association.
152 16. A copy of the inspection report as described in s.
153 718.301(4)(p).
154 Section 3. Paragraphs (c) and (d) of subsection (2) of
155 section 718.112, Florida Statutes, are amended to read:
156 718.112 Bylaws.—
157 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
158 following and, if they do not do so, shall be deemed to include
159 the following:
160 (c) Board of administration meetings.—Meetings of the board
161 of administration at which a quorum of the members is present
162 are open to all unit owners. Members of the board of
163 administration may use e-mail as a means of communication but
164 may not cast a vote on an association matter via e-mail. A unit
165 owner may tape record or videotape the meetings; however, a unit
166 owner may not post such recordings on any website or other media
167 that can be readily viewed by persons who are not members of the
168 association. The right to attend such meetings includes the
169 right to speak at such meetings with reference to all designated
170 agenda items. The division shall adopt reasonable rules
171 governing the tape recording and videotaping of the meeting. The
172 association may adopt written reasonable rules governing the
173 frequency, duration, and manner of unit owner statements.
174 1. Adequate notice of all board meetings, which must
175 specifically identify all agenda items, must be posted
176 conspicuously on the condominium property or association
177 property at least 48 continuous hours before the meeting except
178 in an emergency. If 20 percent of the voting interests petition
179 the board to address an item of business, the board, within 60
180 days after receipt of the petition, shall place the item on the
181 agenda at its next regular board meeting or at a special meeting
182 called for that purpose. An item not included on the notice may
183 be taken up on an emergency basis by a vote of at least a
184 majority plus one of the board members. Such emergency action
185 must be noticed and ratified at the next regular board meeting.
186 However, written notice of a meeting at which a nonemergency
187 special assessment or an amendment to rules regarding unit use
188 will be considered must be mailed, delivered, or electronically
189 transmitted to the unit owners and posted conspicuously on the
190 condominium property or association property at least 14 days
191 before the meeting. Evidence of compliance with this 14-day
192 notice requirement must be made by an affidavit executed by the
193 person providing the notice and filed with the official records
194 of the association. Upon notice to the unit owners, the board
195 shall, by duly adopted rule, designate a specific location on
196 the condominium or association property where all notices of
197 board meetings must be posted. If there is no condominium
198 property or association property where notices can be posted,
199 notices shall be mailed, delivered, or electronically
200 transmitted to each unit owner at least 14 days before the
201 meeting. In lieu of or in addition to the physical posting of
202 the notice on the condominium property or association property,
203 the association may, by reasonable rule, adopt a procedure for
204 conspicuously posting and repeatedly broadcasting the notice and
205 the agenda on a closed-circuit cable television system serving
206 the condominium association. However, if broadcast notice is
207 used in lieu of a notice physically posted on condominium
208 property or association property, the notice and agenda must be
209 broadcast at least four times every broadcast hour of each day
210 that a posted notice is otherwise required under this section.
211 If broadcast notice is provided, the notice and agenda must be
212 broadcast in a manner and for a sufficient continuous length of
213 time so as to allow an average reader to observe the notice and
214 read and comprehend the entire content of the notice and the
215 agenda. Notice of any meeting in which regular or special
216 assessments against unit owners are to be considered must
217 specifically state that assessments will be considered and
218 provide the nature, estimated cost, and description of the
219 purposes for such assessments.
220 2. Meetings of a committee to take final action on behalf
221 of the board or make recommendations to the board regarding the
222 association budget are subject to this paragraph. Meetings of a
223 committee that does not take final action on behalf of the board
224 or make recommendations to the board regarding the association
225 budget are subject to this section, unless those meetings are
226 exempted from this section by the bylaws of the association.
227 3. Notwithstanding any other law, the requirement that
228 board meetings and committee meetings be open to the unit owners
229 does not apply to:
230 a. Meetings between the board or a committee and the
231 association’s attorney, with respect to proposed or pending
232 litigation, if the meeting is held for the purpose of seeking or
233 rendering legal advice; or
234 b. Board meetings held for the purpose of discussing
235 personnel matters.
236 (d) Unit owner meetings.—
237 1. An annual meeting of the unit owners shall be held at
238 the location provided in the association bylaws and, if the
239 bylaws are silent as to the location, the meeting shall be held
240 within 45 miles of the condominium property. However, such
241 distance requirement does not apply to an association governing
242 a timeshare condominium.
243 2. Unless the bylaws provide otherwise, a vacancy on the
244 board caused by the expiration of a director’s term shall be
245 filled by electing a new board member, and the election must be
246 by secret ballot. An election is not required if the number of
247 vacancies equals or exceeds the number of candidates. For
248 purposes of this paragraph, the term “candidate” means an
249 eligible person who has timely submitted the written notice, as
250 described in sub-subparagraph 4.a., of his or her intention to
251 become a candidate. Except in a timeshare or nonresidential
252 condominium, or if the staggered term of a board member does not
253 expire until a later annual meeting, or if all members’ terms
254 would otherwise expire but there are no candidates, the terms of
255 all board members expire at the annual meeting, and such members
256 may stand for reelection unless prohibited by the bylaws. If the
257 bylaws or articles of incorporation permit terms of no more than
258 2 years, the association board members may serve 2-year terms.
259 If the number of board members whose terms expire at the annual
260 meeting equals or exceeds the number of candidates, the
261 candidates become members of the board effective upon the
262 adjournment of the annual meeting. Unless the bylaws provide
263 otherwise, any remaining vacancies shall be filled by the
264 affirmative vote of the majority of the directors making up the
265 newly constituted board even if the directors constitute less
266 than a quorum or there is only one director. In a residential
267 condominium association of more than 10 units or in a
268 residential condominium association that does not include
269 timeshare units or timeshare interests, coowners of a unit may
270 not serve as members of the board of directors at the same time
271 unless they own more than one unit or unless there are not
272 enough eligible candidates to fill the vacancies on the board at
273 the time of the vacancy. A unit owner in a residential
274 condominium desiring to be a candidate for board membership must
275 comply with sub-subparagraph 4.a. and must be eligible to be a
276 candidate to serve on the board of directors at the time of the
277 deadline for submitting a notice of intent to run in order to
278 have his or her name listed as a proper candidate on the ballot
279 or to serve on the board. A person who has been suspended or
280 removed by the division under this chapter, or who is delinquent
281 in the payment of any monetary obligation due to the
282 association, is not eligible to be a candidate for board
283 membership and may not be listed on the ballot. A person who has
284 been convicted of any felony in this state or in a United States
285 District or Territorial Court, or who has been convicted of any
286 offense in another jurisdiction which would be considered a
287 felony if committed in this state, is not eligible for board
288 membership unless such felon’s civil rights have been restored
289 for at least 5 years as of the date such person seeks election
290 to the board. The validity of an action by the board is not
291 affected if it is later determined that a board member is
292 ineligible for board membership due to having been convicted of
293 a felony. This subparagraph does not limit the term of a member
294 of the board of a nonresidential condominium.
295 3. The bylaws must provide the method of calling meetings
296 of unit owners, including annual meetings. Written notice must
297 include an agenda, must be mailed, hand delivered, or
298 electronically transmitted to each unit owner at least 14 days
299 before the annual meeting, and must be posted in a conspicuous
300 place on the condominium property or association property at
301 least 14 continuous days before the annual meeting. Upon notice
302 to the unit owners, the board shall, by duly adopted rule,
303 designate a specific location on the condominium property or
304 association property where all notices of unit owner meetings
305 shall be posted. This requirement does not apply if there is no
306 condominium property or association property for posting
307 notices. In lieu of, or in addition to, the physical posting of
308 meeting notices, the association may, by reasonable rule, adopt
309 a procedure for conspicuously posting and repeatedly
310 broadcasting the notice and the agenda on a closed-circuit cable
311 television system serving the condominium association. However,
312 if broadcast notice is used in lieu of a notice posted
313 physically on the condominium property or association property,
314 the notice and agenda must be broadcast at least four times
315 every broadcast hour of each day that a posted notice is
316 otherwise required under this section. If broadcast notice is
317 provided, the notice and agenda must be broadcast in a manner
318 and for a sufficient continuous length of time so as to allow an
319 average reader to observe the notice and read and comprehend the
320 entire content of the notice and the agenda. Unless a unit owner
321 waives in writing the right to receive notice of the annual
322 meeting, such notice must be hand delivered, mailed, or
323 electronically transmitted to each unit owner. Notice for
324 meetings and notice for all other purposes must be mailed to
325 each unit owner at the address last furnished to the association
326 by the unit owner, or hand delivered to each unit owner.
327 However, if a unit is owned by more than one person, the
328 association must provide notice to the address that the
329 developer identifies for that purpose and thereafter as one or
330 more of the owners of the unit advise the association in
331 writing, or if no address is given or the owners of the unit do
332 not agree, to the address provided on the deed of record. An
333 officer of the association, or the manager or other person
334 providing notice of the association meeting, must provide an
335 affidavit or United States Postal Service certificate of
336 mailing, to be included in the official records of the
337 association affirming that the notice was mailed or hand
338 delivered in accordance with this provision.
339 4. The members of the board of a residential condominium
340 shall be elected by written ballot or voting machine. Proxies
341 may not be used in electing the board in general elections or
342 elections to fill vacancies caused by recall, resignation, or
343 otherwise, unless otherwise provided in this chapter. This
344 subparagraph does not apply to an association governing a
345 timeshare condominium.
346 a. At least 60 days before a scheduled election, the
347 association shall mail, deliver, or electronically transmit, by
348 separate association mailing or included in another association
349 mailing, delivery, or transmission, including regularly
350 published newsletters, to each unit owner entitled to a vote, a
351 first notice of the date of the election. A unit owner or other
352 eligible person desiring to be a candidate for the board must
353 give written notice of his or her intent to be a candidate to
354 the association at least 40 days before a scheduled election.
355 Together with the written notice and agenda as set forth in
356 subparagraph 3., the association shall mail, deliver, or
357 electronically transmit a second notice of the election to all
358 unit owners entitled to vote, together with a ballot that lists
359 all candidates. Upon request of a candidate, an information
360 sheet, no larger than 8 1/2 inches by 11 inches, which must be
361 furnished by the candidate at least 35 days before the election,
362 must be included with the mailing, delivery, or transmission of
363 the ballot, with the costs of mailing, delivery, or electronic
364 transmission and copying to be borne by the association. The
365 association is not liable for the contents of the information
366 sheets prepared by the candidates. In order to reduce costs, the
367 association may print or duplicate the information sheets on
368 both sides of the paper. The division shall by rule establish
369 voting procedures consistent with this sub-subparagraph,
370 including rules establishing procedures for giving notice by
371 electronic transmission and rules providing for the secrecy of
372 ballots. Elections shall be decided by a plurality of ballots
373 cast. There is no quorum requirement; however, at least 20
374 percent of the eligible voters must cast a ballot in order to
375 have a valid election. A unit owner may not permit any other
376 person to vote his or her ballot, and any ballots improperly
377 cast are invalid. A unit owner who violates this provision may
378 be fined by the association in accordance with s. 718.303. A
379 unit owner who needs assistance in casting the ballot for the
380 reasons stated in s. 101.051 may obtain such assistance. The
381 regular election must occur on the date of the annual meeting.
382 Notwithstanding this sub-subparagraph, an election is not
383 required unless more candidates file notices of intent to run or
384 are nominated than board vacancies exist.
385 b. Within 90 days after being elected or appointed to the
386 board of an association of a residential condominium, each newly
387 elected or appointed director shall certify in writing to the
388 secretary of the association that he or she has read the
389 association’s declaration of condominium, articles of
390 incorporation, bylaws, and current written policies; that he or
391 she will work to uphold such documents and policies to the best
392 of his or her ability; and that he or she will faithfully
393 discharge his or her fiduciary responsibility to the
394 association’s members. In lieu of this written certification,
395 within 90 days after being elected or appointed to the board,
396 the newly elected or appointed director may submit a certificate
397 of having satisfactorily completed the educational curriculum
398 administered by a division-approved condominium education
399 provider within 1 year before or 90 days after the date of
400 election or appointment. The written certification or
401 educational certificate is valid and does not have to be
402 resubmitted as long as the director serves on the board without
403 interruption. A director of an association of a residential
404 condominium who fails to timely file the written certification
405 or educational certificate is suspended from service on the
406 board until he or she complies with this sub-subparagraph. The
407 board may temporarily fill the vacancy during the period of
408 suspension. The secretary shall cause the association to retain
409 a director’s written certification or educational certificate
410 for inspection by the members for 5 years after a director’s
411 election or the duration of the director’s uninterrupted tenure,
412 whichever is longer. Failure to have such written certification
413 or educational certificate on file does not affect the validity
414 of any board action.
415 c. Any challenge to the election process must be commenced
416 within 60 days after the election results are announced.
417 5. Any approval by unit owners called for by this chapter
418 or the applicable declaration or bylaws, including, but not
419 limited to, the approval requirement in s. 718.111(8), must be
420 made at a duly noticed meeting of unit owners and is subject to
421 all requirements of this chapter or the applicable condominium
422 documents relating to unit owner decisionmaking, except that
423 unit owners may take action by written agreement, without
424 meetings, on matters for which action by written agreement
425 without meetings is expressly allowed by the applicable bylaws
426 or declaration or any law that provides for such action.
427 6. Unit owners may waive notice of specific meetings if
428 allowed by the applicable bylaws or declaration or any law. If
429 authorized by the bylaws, notice of meetings of the board of
430 administration, unit owner meetings, except unit owner meetings
431 called to recall board members under paragraph (j), and
432 committee meetings may be given by electronic transmission to
433 unit owners who consent to receive notice by electronic
434 transmission.
435 7. Unit owners have the right to participate in meetings of
436 unit owners with reference to all designated agenda items.
437 However, the association may adopt reasonable rules governing
438 the frequency, duration, and manner of unit owner participation.
439 8. A unit owner may tape record or videotape a meeting of
440 the unit owners subject to reasonable rules adopted by the
441 division; however, a unit owner may not post such recordings on
442 any website or other media that can be readily viewed by persons
443 who are not members of the association.
444 9. Unless otherwise provided in the bylaws, any vacancy
445 occurring on the board before the expiration of a term may be
446 filled by the affirmative vote of the majority of the remaining
447 directors, even if the remaining directors constitute less than
448 a quorum, or by the sole remaining director. In the alternative,
449 a board may hold an election to fill the vacancy, in which case
450 the election procedures must conform to sub-subparagraph 4.a.
451 unless the association governs 10 units or fewer and has opted
452 out of the statutory election process, in which case the bylaws
453 of the association control. Unless otherwise provided in the
454 bylaws, a board member appointed or elected under this section
455 shall fill the vacancy for the unexpired term of the seat being
456 filled. Filling vacancies created by recall is governed by
457 paragraph (j) and rules adopted by the division.
458 10. This chapter does not limit the use of general or
459 limited proxies, require the use of general or limited proxies,
460 or require the use of a written ballot or voting machine for any
461 agenda item or election at any meeting of a timeshare
462 condominium association or nonresidential condominium
463 association.
464
465 Notwithstanding subparagraph (b)2. and sub-subparagraph 4.a., an
466 association of 10 or fewer units may, by affirmative vote of a
467 majority of the total voting interests, provide for different
468 voting and election procedures in its bylaws, which may be by a
469 proxy specifically delineating the different voting and election
470 procedures. The different voting and election procedures may
471 provide for elections to be conducted by limited or general
472 proxy.
473 Section 4. Subsection (3) and paragraph (b) of subsection
474 (5) of section 718.116, Florida Statutes, are amended to read:
475 718.116 Assessments; liability; lien and priority;
476 interest; collection.—
477 (3) Assessments and installments on assessments which are
478 not paid when due bear interest at the rate provided in the
479 declaration, from the due date until paid. The rate may not
480 exceed the rate allowed by law, and, if no rate is provided in
481 the declaration, interest accrues at the rate of 18 percent per
482 year. If provided by the declaration or bylaws, the association
483 may, in addition to such interest, charge an administrative late
484 fee of up to the greater of $25 or 5 percent of each delinquent
485 installment for which the payment is late. The association may
486 also recover from the unit owner any reasonable charges imposed
487 upon the association under a written contract with its
488 management or bookkeeping company, or collection agent, incurred
489 in connection with collecting a delinquent assessment. Such
490 charges must be in a liquidated and noncontingent amount and
491 must be based on the actual time expended performing necessary
492 services that are not duplicative. Fees for collection are not
493 recoverable after referral of the matter to an association’s
494 legal counsel. Any payment received by an association must be
495 applied first to any interest accrued by the association, then
496 to any administrative late fee, then to any costs and reasonable
497 attorney attorney’s fees incurred in collection, then to any
498 reasonable costs for collection services contracted by the
499 association, and then to the delinquent assessment. The
500 foregoing is applicable notwithstanding any restrictive
501 endorsement, designation, or instruction placed on or
502 accompanying a payment. A late fee is not subject to chapter 687
503 or s. 718.303(4).
504 (5)
505 (b) To be valid, a claim of lien must state the description
506 of the condominium parcel, the name of the record owner, the
507 name and address of the association, the amount due, and the due
508 dates. It must be executed and acknowledged by an officer or
509 authorized agent of the association. The lien is not effective 1
510 year after the claim of lien was recorded unless, within that
511 time, an action to enforce the lien is commenced. The 1-year
512 period is automatically extended for any length of time during
513 which the association is prevented from filing a foreclosure
514 action by an automatic stay resulting from a bankruptcy petition
515 filed by the parcel owner or any other person claiming an
516 interest in the parcel. The claim of lien secures all unpaid
517 assessments that are due and that may accrue after the claim of
518 lien is recorded and through the entry of a final judgment, as
519 well as interest, authorized administrative late fees, and all
520 reasonable costs and attorney attorney’s fees incurred by the
521 association incident to the collection process, including, but
522 not limited to, any reasonable costs for collection services
523 contracted by the association. Upon payment in full, the person
524 making the payment is entitled to a satisfaction of the lien.
525 Section 5. Paragraph (a) of subsection (2) of section
526 719.104, Florida Statutes, is amended to read:
527 719.104 Cooperatives; access to units; records; financial
528 reports; assessments; purchase of leases.—
529 (2) OFFICIAL RECORDS.—
530 (a) From the inception of the association, the association
531 shall maintain a copy of each of the following, where
532 applicable, which shall constitute the official records of the
533 association:
534 1. The plans, permits, warranties, and other items provided
535 by the developer pursuant to s. 719.301(4).
536 2. A photocopy of the cooperative documents.
537 3. A copy of the current rules of the association.
538 4. A book or books containing the minutes of all meetings
539 of the association, of the board of directors, and of the unit
540 owners, which minutes shall be retained for a period of not less
541 than 7 years.
542 5. A current roster of all unit owners and their mailing
543 addresses, unit identifications, voting certifications, and, if
544 known, telephone numbers. The association shall also maintain
545 the electronic mailing addresses and the numbers designated by
546 unit owners for receiving notice sent by electronic transmission
547 of those unit owners consenting to receive notice by electronic
548 transmission. The electronic mailing addresses and numbers
549 provided by unit owners to receive notice by electronic
550 transmission shall be removed from association records when
551 consent to receive notice by electronic transmission is revoked.
552 However, the association is not liable for an erroneous
553 disclosure of the electronic mail address or the number for
554 receiving electronic transmission of notices.
555 6. All current insurance policies of the association.
556 7. A current copy of any management agreement, lease, or
557 other contract to which the association is a party or under
558 which the association or the unit owners have an obligation or
559 responsibility.
560 8. Bills of sale or transfer for all property owned by the
561 association.
562 9. Accounting records for the association and separate
563 accounting records for each unit it operates, according to good
564 accounting practices. All accounting records shall be maintained
565 for a period of not less than 7 years. The accounting records
566 shall include, but not be limited to:
567 a. Accurate, itemized, and detailed records of all receipts
568 and expenditures.
569 b. A current account and a monthly, bimonthly, or quarterly
570 statement of the account for each unit designating the name of
571 the unit owner, the due date and amount of each assessment, the
572 amount paid upon the account, and the balance due.
573 c. All audits, reviews, accounting statements, and
574 financial reports of the association.
575 d. All contracts for work to be performed. Bids for work to
576 be performed shall also be considered official records and shall
577 be maintained for a period of 1 year.
578 10. Ballots, sign-in sheets, voting proxies, and all other
579 papers relating to voting by unit owners, which shall be
580 maintained for a period of 1 year after the date of the
581 election, vote, or meeting to which the document relates.
582 11. All rental records where the association is acting as
583 agent for the rental of units.
584 12. A copy of the current question and answer sheet as
585 described in s. 719.504.
586 13. All other written records of the association not
587 specifically included in the foregoing which are related to the
588 operation of the association.
589 Section 6. Paragraphs (c) and (d) of subsection (1) of
590 section 719.106, Florida Statutes, are amended to read:
591 719.106 Bylaws; cooperative ownership.—
592 (1) MANDATORY PROVISIONS.—The bylaws or other cooperative
593 documents shall provide for the following, and if they do not,
594 they shall be deemed to include the following:
595 (c) Board of administration meetings.—Meetings of the board
596 of administration at which a quorum of the members is present
597 shall be open to all unit owners. Any unit owner may tape record
598 or videotape meetings of the board of administration; however, a
599 unit owner may not post such recordings on any website or other
600 media that can be readily viewed by persons who are not members
601 of the association. The right to attend such meetings includes
602 the right to speak at such meetings with reference to all
603 designated agenda items. The division shall adopt reasonable
604 rules governing the tape recording and videotaping of the
605 meeting. The association may adopt reasonable written rules
606 governing the frequency, duration, and manner of unit owner
607 statements. Adequate notice of all meetings shall be posted in a
608 conspicuous place upon the cooperative property at least 48
609 continuous hours preceding the meeting, except in an emergency.
610 Any item not included on the notice may be taken up on an
611 emergency basis by at least a majority plus one of the members
612 of the board. Such emergency action shall be noticed and
613 ratified at the next regular meeting of the board. However,
614 written notice of any meeting at which nonemergency special
615 assessments, or at which amendment to rules regarding unit use,
616 will be considered shall be mailed, delivered, or electronically
617 transmitted to the unit owners and posted conspicuously on the
618 cooperative property not less than 14 days before the meeting.
619 Evidence of compliance with this 14-day notice shall be made by
620 an affidavit executed by the person providing the notice and
621 filed among the official records of the association. Upon notice
622 to the unit owners, the board shall by duly adopted rule
623 designate a specific location on the cooperative property upon
624 which all notices of board meetings shall be posted. In lieu of
625 or in addition to the physical posting of notice of any meeting
626 of the board of administration on the cooperative property, the
627 association may, by reasonable rule, adopt a procedure for
628 conspicuously posting and repeatedly broadcasting the notice and
629 the agenda on a closed-circuit cable television system serving
630 the cooperative association. However, if broadcast notice is
631 used in lieu of a notice posted physically on the cooperative
632 property, the notice and agenda must be broadcast at least four
633 times every broadcast hour of each day that a posted notice is
634 otherwise required under this section. When broadcast notice is
635 provided, the notice and agenda must be broadcast in a manner
636 and for a sufficient continuous length of time so as to allow an
637 average reader to observe the notice and read and comprehend the
638 entire content of the notice and the agenda. Notice of any
639 meeting in which regular assessments against unit owners are to
640 be considered for any reason shall specifically contain a
641 statement that assessments will be considered and the nature of
642 any such assessments. Meetings of a committee to take final
643 action on behalf of the board or to make recommendations to the
644 board regarding the association budget are subject to the
645 provisions of this paragraph. Meetings of a committee that does
646 not take final action on behalf of the board or make
647 recommendations to the board regarding the association budget
648 are subject to the provisions of this section, unless those
649 meetings are exempted from this section by the bylaws of the
650 association. Notwithstanding any other law to the contrary, the
651 requirement that board meetings and committee meetings be open
652 to the unit owners does not apply to board or committee meetings
653 held for the purpose of discussing personnel matters or meetings
654 between the board or a committee and the association’s attorney,
655 with respect to proposed or pending litigation, if the meeting
656 is held for the purpose of seeking or rendering legal advice.
657 (d) Shareholder meetings.—There shall be an annual meeting
658 of the shareholders. All members of the board of administration
659 shall be elected at the annual meeting unless the bylaws provide
660 for staggered election terms or for their election at another
661 meeting. Any unit owner desiring to be a candidate for board
662 membership must comply with subparagraph 1. The bylaws must
663 provide the method for calling meetings, including annual
664 meetings. Written notice, which must incorporate an
665 identification of agenda items, shall be given to each unit
666 owner at least 14 days before the annual meeting and posted in a
667 conspicuous place on the cooperative property at least 14
668 continuous days preceding the annual meeting. Upon notice to the
669 unit owners, the board must by duly adopted rule designate a
670 specific location on the cooperative property upon which all
671 notice of unit owner meetings are posted. In lieu of or in
672 addition to the physical posting of the meeting notice, the
673 association may, by reasonable rule, adopt a procedure for
674 conspicuously posting and repeatedly broadcasting the notice and
675 the agenda on a closed-circuit cable television system serving
676 the cooperative association. However, if broadcast notice is
677 used in lieu of a posted notice, the notice and agenda must be
678 broadcast at least four times every broadcast hour of each day
679 that a posted notice is otherwise required under this section.
680 If broadcast notice is provided, the notice and agenda must be
681 broadcast in a manner and for a sufficient continuous length of
682 time to allow an average reader to observe the notice and read
683 and comprehend the entire content of the notice and the agenda.
684 Unless a unit owner waives in writing the right to receive
685 notice of the annual meeting, the notice of the annual meeting
686 must be sent by mail, hand delivered, or electronically
687 transmitted to each unit owner. An officer of the association
688 must provide an affidavit or United States Postal Service
689 certificate of mailing, to be included in the official records
690 of the association, affirming that notices of the association
691 meeting were mailed, hand delivered, or electronically
692 transmitted, in accordance with this provision, to each unit
693 owner at the address last furnished to the association.
694 1. The board of administration shall be elected by written
695 ballot or voting machine. A proxy may not be used in electing
696 the board of administration in general elections or elections to
697 fill vacancies caused by recall, resignation, or otherwise
698 unless otherwise provided in this chapter.
699 a. At least 60 days before a scheduled election, the
700 association shall mail, deliver, or transmit, whether by
701 separate association mailing, delivery, or electronic
702 transmission or included in another association mailing,
703 delivery, or electronic transmission, including regularly
704 published newsletters, to each unit owner entitled to vote, a
705 first notice of the date of the election. Any unit owner or
706 other eligible person desiring to be a candidate for the board
707 of administration must give written notice to the association at
708 least 40 days before a scheduled election. Together with the
709 written notice and agenda as set forth in this section, the
710 association shall mail, deliver, or electronically transmit a
711 second notice of election to all unit owners entitled to vote,
712 together with a ballot that lists all candidates. Upon request
713 of a candidate, the association shall include an information
714 sheet, no larger than 8 1/2 inches by 11 inches, which must be
715 furnished by the candidate at least 35 days before the election,
716 to be included with the mailing, delivery, or electronic
717 transmission of the ballot, with the costs of mailing, delivery,
718 or transmission and copying to be borne by the association. The
719 association is not liable for the contents of the information
720 sheets provided by the candidates. In order to reduce costs, the
721 association may print or duplicate the information sheets on
722 both sides of the paper. The division shall by rule establish
723 voting procedures consistent with this subparagraph, including
724 rules establishing procedures for giving notice by electronic
725 transmission and rules providing for the secrecy of ballots.
726 Elections shall be decided by a plurality of those ballots cast.
727 There is no quorum requirement. However, at least 20 percent of
728 the eligible voters must cast a ballot in order to have a valid
729 election. A unit owner may not permit any other person to vote
730 his or her ballot, and any such ballots improperly cast are
731 invalid. A unit owner who needs assistance in casting the ballot
732 for the reasons stated in s. 101.051 may obtain assistance in
733 casting the ballot. Any unit owner violating this provision may
734 be fined by the association in accordance with s. 719.303. The
735 regular election must occur on the date of the annual meeting.
736 This subparagraph does not apply to timeshare cooperatives.
737 Notwithstanding this subparagraph, an election and balloting are
738 not required unless more candidates file a notice of intent to
739 run or are nominated than vacancies exist on the board. Any
740 challenge to the election process must be commenced within 60
741 days after the election results are announced.
742 b. Within 90 days after being elected or appointed to the
743 board, each new director shall certify in writing to the
744 secretary of the association that he or she has read the
745 association’s bylaws, articles of incorporation, proprietary
746 lease, and current written policies; that he or she will work to
747 uphold such documents and policies to the best of his or her
748 ability; and that he or she will faithfully discharge his or her
749 fiduciary responsibility to the association’s members. Within 90
750 days after being elected or appointed to the board, in lieu of
751 this written certification, the newly elected or appointed
752 director may submit a certificate of having satisfactorily
753 completed the educational curriculum administered by an
754 education provider as approved by the division pursuant to the
755 requirements established in chapter 718 within 1 year before or
756 90 days after the date of election or appointment. The
757 educational certificate is valid and does not have to be
758 resubmitted as long as the director serves on the board without
759 interruption. A director who fails to timely file the written
760 certification or educational certificate is suspended from
761 service on the board until he or she complies with this sub
762 subparagraph. The board may temporarily fill the vacancy during
763 the period of suspension. The secretary of the association shall
764 cause the association to retain a director’s written
765 certification or educational certificate for inspection by the
766 members for 5 years after a director’s election or the duration
767 of the director’s uninterrupted tenure, whichever is longer.
768 Failure to have such written certification or educational
769 certificate on file does not affect the validity of any board
770 action.
771 2. Any approval by unit owners called for by this chapter,
772 or the applicable cooperative documents, must be made at a duly
773 noticed meeting of unit owners and is subject to this chapter or
774 the applicable cooperative documents relating to unit owner
775 decisionmaking, except that unit owners may take action by
776 written agreement, without meetings, on matters for which action
777 by written agreement without meetings is expressly allowed by
778 the applicable cooperative documents or law which provides for
779 the unit owner action.
780 3. Unit owners may waive notice of specific meetings if
781 allowed by the applicable cooperative documents or law. If
782 authorized by the bylaws, notice of meetings of the board of
783 administration, shareholder meetings, except shareholder
784 meetings called to recall board members under paragraph (f), and
785 committee meetings may be given by electronic transmission to
786 unit owners who consent to receive notice by electronic
787 transmission.
788 4. Unit owners have the right to participate in meetings of
789 unit owners with reference to all designated agenda items.
790 However, the association may adopt reasonable rules governing
791 the frequency, duration, and manner of unit owner participation.
792 5. Any unit owner may tape record or videotape meetings of
793 the unit owners subject to reasonable rules adopted by the
794 division; however, a unit owner may not post such recordings on
795 any website or other media that can be readily viewed by persons
796 who are not members of the association.
797 6. Unless otherwise provided in the bylaws, a vacancy
798 occurring on the board before the expiration of a term may be
799 filled by the affirmative vote of the majority of the remaining
800 directors, even if the remaining directors constitute less than
801 a quorum, or by the sole remaining director. In the alternative,
802 a board may hold an election to fill the vacancy, in which case
803 the election procedures must conform to the requirements of
804 subparagraph 1. unless the association has opted out of the
805 statutory election process, in which case the bylaws of the
806 association control. Unless otherwise provided in the bylaws, a
807 board member appointed or elected under this subparagraph shall
808 fill the vacancy for the unexpired term of the seat being
809 filled. Filling vacancies created by recall is governed by
810 paragraph (f) and rules adopted by the division.
811
812 Notwithstanding subparagraphs (b)2. and (d)1., an association
813 may, by the affirmative vote of a majority of the total voting
814 interests, provide for a different voting and election procedure
815 in its bylaws, which vote may be by a proxy specifically
816 delineating the different voting and election procedures. The
817 different voting and election procedures may provide for
818 elections to be conducted by limited or general proxy.
819 Section 7. Subsections (3) and (4) of section 719.108,
820 Florida Statutes, are amended to read:
821 719.108 Rents and assessments; liability; lien and
822 priority; interest; collection; cooperative ownership.—
823 (3) Rents and assessments, and installments on them, not
824 paid when due bear interest at the rate provided in the
825 cooperative documents from the date due until paid. This rate
826 may not exceed the rate allowed by law and, if a rate is not
827 provided in the cooperative documents, accrues at 18 percent per
828 annum. If the cooperative documents or bylaws so provide, the
829 association may charge an administrative late fee in addition to
830 such interest, not to exceed the greater of $25 or 5 percent of
831 each installment of the assessment for each delinquent
832 installment that the payment is late. The association may also
833 recover from the unit owner any reasonable charges imposed upon
834 the association under a written contract with its management or
835 bookkeeping company, or collection agent, incurred in connection
836 with collecting a delinquent assessment. Such charges must be in
837 a liquidated and noncontingent amount and must be based on the
838 actual time expended performing necessary services that are not
839 duplicative. Fees for collection are not recoverable after
840 referral of the matter to an association’s legal counsel. Any
841 payment received by an association must be applied first to any
842 interest accrued by the association, then to any administrative
843 late fee, then to any costs and reasonable attorney fees
844 incurred in collection, then to any reasonable costs for
845 collection services contracted by the association, and then to
846 the delinquent assessment. The foregoing applies notwithstanding
847 any restrictive endorsement, designation, or instruction placed
848 on or accompanying a payment. A late fee is not subject to
849 chapter 687 or s. 719.303(4).
850 (4) The association has a lien on each cooperative parcel
851 for any unpaid rents and assessments, plus interest, any
852 reasonable costs for collection services contracted by the
853 association, and any authorized administrative late fees. If
854 authorized by the cooperative documents, the lien also secures
855 reasonable attorney fees incurred by the association incident to
856 the collection of the rents and assessments or enforcement of
857 such lien. The lien is effective from and after recording a
858 claim of lien in the public records in the county in which the
859 cooperative parcel is located which states the description of
860 the cooperative parcel, the name of the unit owner, the amount
861 due, and the due dates. Except as otherwise provided in this
862 chapter, a lien may not be filed by the association against a
863 cooperative parcel until 30 days after the date on which a
864 notice of intent to file a lien has been delivered to the owner.
865 (a) The notice must be sent to the unit owner at the
866 address of the unit by first-class United States mail, and the
867 notice must be in substantially the following form:
868
869 NOTICE OF INTENT
870 TO RECORD A CLAIM OF LIEN
871
872 RE: Unit ...(unit number)... of ...(name of
873 cooperative)...
874
875 The following amounts are currently due on your
876 account to ...(name of association)..., and must be
877 paid within 30 days after your receipt of this letter.
878 This letter shall serve as the association’s notice of
879 intent to record a Claim of Lien against your property
880 no sooner than 30 days after your receipt of this
881 letter, unless you pay in full the amounts set forth
882 below:
883
884 Maintenance due ...(dates)... $.....
885 Late fee, if applicable $.....
886 Interest through ...(dates)...* $.....
887 Certified mail charges $.....
888 Other costs $.....
889 TOTAL OUTSTANDING $.....
890
891 *Interest accrues at the rate of .... percent per
892 annum.
893 1. If the most recent address of the unit owner on the
894 records of the association is the address of the unit, the
895 notice must be sent by certified mail, return receipt requested,
896 to the unit owner at the address of the unit.
897 2. If the most recent address of the unit owner on the
898 records of the association is in the United States, but is not
899 the address of the unit, the notice must be sent by certified
900 mail, return receipt requested, to the unit owner at his or her
901 most recent address.
902 3. If the most recent address of the unit owner on the
903 records of the association is not in the United States, the
904 notice must be sent by first-class United States mail to the
905 unit owner at his or her most recent address.
906 (b) A notice that is sent pursuant to this subsection is
907 deemed delivered upon mailing. A claim of lien must be executed
908 and acknowledged by an officer or authorized agent of the
909 association. The lien is not effective 1 year after the claim of
910 lien was recorded unless, within that time, an action to enforce
911 the lien is commenced. The 1-year period is automatically
912 extended for any length of time during which the association is
913 prevented from filing a foreclosure action by an automatic stay
914 resulting from a bankruptcy petition filed by the parcel owner
915 or any other person claiming an interest in the parcel. The
916 claim of lien secures all unpaid rents and assessments that are
917 due and that may accrue after the claim of lien is recorded and
918 through the entry of a final judgment, as well as interest and
919 all reasonable costs and attorney fees incurred by the
920 association incident to the collection process. Upon payment in
921 full, the person making the payment is entitled to a
922 satisfaction of the lien.
923 (c) By recording a notice in substantially the following
924 form, a unit owner or the unit owner’s agent or attorney may
925 require the association to enforce a recorded claim of lien
926 against his or her cooperative parcel:
927
928 NOTICE OF CONTEST OF LIEN
929
930 TO: ...(Name and address of association)...:
931
932 You are notified that the undersigned contests the
933 claim of lien filed by you on ...., ...(year)..., and
934 recorded in Official Records Book .... at Page ....,
935 of the public records of .... County, Florida, and
936 that the time within which you may file suit to
937 enforce your lien is limited to 90 days from the date
938 of service of this notice. Executed this .... day of
939 ...., ...(year)....
940 Signed: ...(Owner or Attorney)...
941
942 After notice of contest of lien has been recorded, the clerk of
943 the circuit court shall mail a copy of the recorded notice to
944 the association by certified mail, return receipt requested, at
945 the address shown in the claim of lien or most recent amendment
946 to it and shall certify to the service on the face of the
947 notice. Service is complete upon mailing. After service, the
948 association has 90 days in which to file an action to enforce
949 the lien. If the action is not filed within the 90-day period,
950 the lien is void. However, the 90-day period shall be extended
951 for any length of time during which the association is prevented
952 from filing its action because of an automatic stay resulting
953 from the filing of a bankruptcy petition by the unit owner or by
954 any other person claiming an interest in the parcel.
955 (d) A release of lien must be in substantially the
956 following form:
957
958 RELEASE OF LIEN
959
960 The undersigned lienor, in consideration of the final payment in
961 the amount of $...., hereby waives and releases its lien and
962 right to claim a lien for unpaid assessments through ....,
963 ...(year)..., recorded in the Official Records Book .... at Page
964 ...., of the public records of .... County, Florida, for the
965 following described real property:
966
967 THAT COOPERATIVE PARCEL WHICH INCLUDES UNIT NO. ....
968 OF ...(NAME OF COOPERATIVE)..., A COOPERATIVE AS SET
969 FORTH IN THE COOPERATIVE DOCUMENTS AND THE EXHIBITS
970 ANNEXED THERETO AND FORMING A PART THEREOF, RECORDED
971 IN OFFICIAL RECORDS BOOK ...., PAGE ...., OF THE
972 PUBLIC RECORDS OF .... COUNTY, FLORIDA.
973
974 ...(Signature of Authorized Agent)... ...(Signature of
975 Witness)...
976 ...(Print Name)... ...(Print Name)...
977
978 ...(Signature of Witness)...
979 ...(Print Name)...
980
981 Sworn to (or affirmed) and subscribed before me this .... day of
982 ...., ...(year)..., by ...(name of person making statement)....
983 ...(Signature of Notary Public)...
984 ...(Print, type, or stamp commissioned name of Notary Public)...
985 Personally Known .... OR Produced .... as identification.
986 Section 8. Section 720.3015, Florida Statutes, is created
987 to read:
988 720.3015 Short title.—This chapter shall be known and may
989 be cited as the “Homeowners’ Association Act.”
990 Section 9. Subsection (10) of section 720.306, Florida
991 Statutes, is amended to read:
992 720.306 Meetings of members; voting and election
993 procedures; amendments.—
994 (10) RECORDING.—Any parcel owner may tape record or
995 videotape meetings of the board of directors and meetings of the
996 members; however, a parcel owner may not post such recordings on
997 any website or other media that can be readily viewed by persons
998 who are not members of the association. The board of directors
999 of the association may adopt reasonable rules governing the
1000 taping of meetings of the board and the membership.
1001 Section 10. Paragraph (a) of subsection (1) and subsection
1002 (3) of section 720.3085, Florida Statutes, are amended to read:
1003 720.3085 Payment for assessments; lien claims.—
1004 (1) When authorized by the governing documents, the
1005 association has a lien on each parcel to secure the payment of
1006 assessments and other amounts provided for by this section.
1007 Except as otherwise set forth in this section, the lien is
1008 effective from and shall relate back to the date on which the
1009 original declaration of the community was recorded. However, as
1010 to first mortgages of record, the lien is effective from and
1011 after recording of a claim of lien in the public records of the
1012 county in which the parcel is located. This subsection does not
1013 bestow upon any lien, mortgage, or certified judgment of record
1014 on July 1, 2008, including the lien for unpaid assessments
1015 created in this section, a priority that, by law, the lien,
1016 mortgage, or judgment did not have before July 1, 2008.
1017 (a) To be valid, a claim of lien must state the description
1018 of the parcel, the name of the record owner, the name and
1019 address of the association, the assessment amount due, and the
1020 due date. The claim of lien secures all unpaid assessments that
1021 are due and that may accrue subsequent to the recording of the
1022 claim of lien and before entry of a certificate of title, as
1023 well as interest, late charges, and reasonable collection costs
1024 and attorney fees incurred by the association incident to the
1025 collection process. The person making payment is entitled to a
1026 satisfaction of the lien upon payment in full.
1027 (3) Assessments and installments on assessments that are
1028 not paid when due bear interest from the due date until paid at
1029 the rate provided in the declaration of covenants or the bylaws
1030 of the association, which rate may not exceed the rate allowed
1031 by law. If no rate is provided in the declaration or bylaws,
1032 interest accrues at the rate of 18 percent per year.
1033 (a) If the declaration or bylaws so provide, the
1034 association may also charge an administrative late fee not to
1035 exceed the greater of $25 or 5 percent of the amount of each
1036 installment that is paid past the due date. The association may
1037 also recover from the parcel owner any reasonable charges
1038 imposed upon the association under a written contract with its
1039 management or bookkeeping company, or collection agent, incurred
1040 in connection with collecting a delinquent assessment. Such
1041 charges must be in a liquidated and noncontingent amount and
1042 must be based on the actual time expended performing necessary
1043 services that are not duplicative. Fees for collection are not
1044 recoverable after referral of the matter to an association’s
1045 legal counsel.
1046 (b) Any payment received by an association and accepted
1047 shall be applied first to any interest accrued, then to any
1048 administrative late fee, then to any costs and reasonable
1049 attorney fees incurred in collection, then to any reasonable
1050 costs for collection services contracted for by the association,
1051 and then to the delinquent assessment. This paragraph applies
1052 notwithstanding any restrictive endorsement, designation, or
1053 instruction placed on or accompanying a payment. A late fee is
1054 not subject to the provisions of chapter 687 and is not a fine.
1055 Section 11. This act shall take effect July 1, 2015.