Florida Senate - 2015 CS for CS for CS for SB 748
By the Committees on Fiscal Policy; Judiciary; and Regulated
Industries; and Senator Ring
594-04427-15 2015748c3
1 A bill to be entitled
2 An act relating to residential properties; amending s.
3 617.0721, F.S.; authorizing the use of a copy,
4 facsimile transmission, or other reliable reproduction
5 of an original proxy vote for certain purposes;
6 amending s. 718.111, F.S.; revising liability of unit
7 owners under certain conditions; revising what
8 constitutes official records of an association;
9 amending s. 718.112, F.S.; revising provisions
10 relating to the voting process for providing reserves;
11 amending s. 718.116, F.S.; revising applicability;
12 revising effect of a claim of lien; creating s.
13 718.128, F.S.; authorizing condominium associations to
14 conduct votes of the membership by online voting under
15 certain conditions; providing requirements for online
16 voting; providing that a member voting electronically
17 is counted toward the determination of a quorum;
18 providing applicability; amending s. 718.303, F.S.;
19 providing that a fine may be levied by the board under
20 certain conditions; revising requirements for levying
21 a fine or suspension; amending s. 718.707, F.S.;
22 extending the time period for classification as bulk
23 assignee or bulk buyer; amending s. 719.104, F.S.;
24 revising what constitutes the official records of an
25 association; amending s. 719.108, F.S.; revising
26 applicability; revising effect of a claim of lien;
27 creating s. 719.129, F.S.; authorizing cooperative
28 associations to conduct votes of the membership by
29 online voting under certain conditions; providing
30 requirements for online voting; providing that a
31 member voting electronically is counted toward the
32 determination of a quorum; providing applicability;
33 amending s. 719.303, F.S.; providing that a fine may
34 be levied by the board under certain conditions;
35 revising requirements for levying a fine or
36 suspension; amending s. 720.301, F.S.; revising the
37 definition of the term “governing documents”; creating
38 s. 720.3015, F.S.; providing a short title; amending
39 s. 720.305, F.S.; revising requirements for levying a
40 fine or suspension; revising application of certain
41 provisions; amending s. 720.306, F.S.; revising
42 requirements for the adoption of amendments to the
43 governing documents; revising requirements for the
44 election of directors; defining the term “any fee,
45 fine, or other monetary obligation”; creating s.
46 720.317, F.S.; authorizing homeowners’ associations to
47 conduct votes of the membership by online voting under
48 certain conditions; providing requirements for online
49 voting; providing that a member voting electronically
50 is counted toward the determination of a quorum;
51 providing applicability; providing an effective date.
52
53 Be It Enacted by the Legislature of the State of Florida:
54
55 Section 1. Subsection (2) of section 617.0721, Florida
56 Statutes, is amended to read:
57 617.0721 Voting by members.—
58 (2) A member who is entitled to vote may vote in person or,
59 unless the articles of incorporation or the bylaws otherwise
60 provide, may vote by proxy executed in writing by the member or
61 by his or her duly authorized attorney in fact. Notwithstanding
62 any provision to the contrary in the articles of incorporation
63 or bylaws, any copy, facsimile transmission, or other reliable
64 reproduction of the original proxy may be substituted or used in
65 lieu of the original proxy for any purpose for which the
66 original proxy could be used if the copy, facsimile
67 transmission, or other reproduction is a complete reproduction
68 of the entire proxy. An appointment of a proxy is not valid
69 after 11 months following the date of its execution unless
70 otherwise provided in the proxy.
71 (a) If directors or officers are to be elected by members,
72 the bylaws may provide that such elections may be conducted by
73 mail.
74 (b) A corporation may reject a vote, consent, waiver, or
75 proxy appointment if the secretary or other officer or agent
76 authorized to tabulate votes, acting in good faith, has a
77 reasonable basis for doubting the validity of the signature on
78 it or the signatory’s authority to sign for the member.
79 Section 2. Paragraph (j) of subsection (11) and paragraph
80 (a) of subsection (12) of section 718.111, Florida Statutes, are
81 amended to read:
82 718.111 The association.—
83 (11) INSURANCE.—In order to protect the safety, health, and
84 welfare of the people of the State of Florida and to ensure
85 consistency in the provision of insurance coverage to
86 condominiums and their unit owners, this subsection applies to
87 every residential condominium in the state, regardless of the
88 date of its declaration of condominium. It is the intent of the
89 Legislature to encourage lower or stable insurance premiums for
90 associations described in this subsection.
91 (j) Any portion of the condominium property that must be
92 insured by the association against property loss pursuant to
93 paragraph (f) which is damaged by an insurable event shall be
94 reconstructed, repaired, or replaced as necessary by the
95 association as a common expense. In the absence of an insurable
96 event, the association or the unit owners shall be responsible
97 for the reconstruction, repair, or replacement, as determined by
98 the maintenance provisions of the declaration or bylaws. All
99 property insurance deductibles, uninsured losses, and other
100 damages in excess of property insurance coverage under the
101 property insurance policies maintained by the association are a
102 common expense of the condominium, except that:
103 1. A unit owner is responsible for the costs of repair or
104 replacement of any portion of the condominium property not paid
105 by insurance proceeds if such damage is caused by intentional
106 conduct, negligence, or failure to comply with the terms of the
107 declaration or the rules of the association by a unit owner, the
108 members of his or her family, unit occupants, tenants, guests,
109 or invitees, without compromise of the subrogation rights of the
110 insurer.
111 2. The provisions of subparagraph 1. regarding the
112 financial responsibility of a unit owner for the costs of
113 repairing or replacing other portions of the condominium
114 property also apply to the costs of repair or replacement of
115 personal property of other unit owners or the association, as
116 well as other property, whether real or personal, which the unit
117 owners are required to insure.
118 3. To the extent the cost of repair or reconstruction for
119 which the unit owner is responsible under this paragraph is
120 reimbursed to the association by insurance proceeds, and the
121 association has collected the cost of such repair or
122 reconstruction from the unit owner, the association shall
123 reimburse the unit owner without the waiver of any rights of
124 subrogation.
125 4. The association is not obligated to pay for
126 reconstruction or repairs of property losses as a common expense
127 if the property losses were known or should have been known to a
128 unit owner and were not reported to the association until after
129 the insurance claim of the association for that property was
130 settled or resolved with finality, or denied because it was
131 untimely filed.
132 (12) OFFICIAL RECORDS.—
133 (a) From the inception of the association, the association
134 shall maintain each of the following items, if applicable, which
135 constitutes the official records of the association:
136 1. A copy of the plans, permits, warranties, and other
137 items provided by the developer pursuant to s. 718.301(4).
138 2. A photocopy of the recorded declaration of condominium
139 of each condominium operated by the association and each
140 amendment to each declaration.
141 3. A photocopy of the recorded bylaws of the association
142 and each amendment to the bylaws.
143 4. A certified copy of the articles of incorporation of the
144 association, or other documents creating the association, and
145 each amendment thereto.
146 5. A copy of the current rules of the association.
147 6. A book or books that contain the minutes of all meetings
148 of the association, the board of administration, and the unit
149 owners, which minutes must be retained for at least 7 years.
150 7. A current roster of all unit owners and their mailing
151 addresses, unit identifications, voting certifications, and, if
152 known, telephone numbers. The association shall also maintain
153 the electronic mailing addresses and facsimile numbers of unit
154 owners consenting to receive notice by electronic transmission.
155 The electronic mailing addresses and facsimile numbers are not
156 accessible to unit owners if consent to receive notice by
157 electronic transmission is not provided in accordance with
158 subparagraph (c)5. However, the association is not liable for an
159 inadvertent disclosure of the electronic mail address or
160 facsimile number for receiving electronic transmission of
161 notices.
162 8. All current insurance policies of the association and
163 condominiums operated by the association.
164 9. A current copy of any management agreement, lease, or
165 other contract to which the association is a party or under
166 which the association or the unit owners have an obligation or
167 responsibility.
168 10. Bills of sale or transfer for all property owned by the
169 association.
170 11. Accounting records for the association and separate
171 accounting records for each condominium that the association
172 operates. All accounting records must be maintained for at least
173 7 years. Any person who knowingly or intentionally defaces or
174 destroys such records, or who knowingly or intentionally fails
175 to create or maintain such records, with the intent of causing
176 harm to the association or one or more of its members, is
177 personally subject to a civil penalty pursuant to s.
178 718.501(1)(d). The accounting records must include, but are not
179 limited to:
180 a. Accurate, itemized, and detailed records of all receipts
181 and expenditures.
182 b. A current account and a monthly, bimonthly, or quarterly
183 statement of the account for each unit designating the name of
184 the unit owner, the due date and amount of each assessment, the
185 amount paid on the account, and the balance due.
186 c. All audits, reviews, accounting statements, and
187 financial reports of the association or condominium.
188 d. All contracts for work to be performed. Bids for work to
189 be performed are also considered official records and must be
190 maintained by the association.
191 12. Ballots, sign-in sheets, voting proxies, and all other
192 papers relating to voting by unit owners, which must be
193 maintained for 1 year from the date of the election, vote, or
194 meeting to which the document relates, notwithstanding paragraph
195 (b).
196 13. All rental records if the association is acting as
197 agent for the rental of condominium units.
198 14. A copy of the current question and answer sheet as
199 described in s. 718.504.
200 15. All other written records of the association not
201 specifically included in the foregoing which are related to the
202 operation of the association.
203 16. A copy of the inspection report as described in s.
204 718.301(4)(p).
205 Section 3. Paragraph (f) of subsection (2) of section
206 718.112, Florida Statutes, is amended to read:
207 718.112 Bylaws.—
208 (2) REQUIRED PROVISIONS.—The bylaws shall provide for the
209 following and, if they do not do so, shall be deemed to include
210 the following:
211 (f) Annual budget.—
212 1. The proposed annual budget of estimated revenues and
213 expenses must be detailed and must show the amounts budgeted by
214 accounts and expense classifications, including, at a minimum,
215 any if applicable, but not limited to, those expenses listed in
216 s. 718.504(21). A multicondominium association shall adopt a
217 separate budget of common expenses for each condominium the
218 association operates and shall adopt a separate budget of common
219 expenses for the association. In addition, if the association
220 maintains limited common elements with the cost to be shared
221 only by those entitled to use the limited common elements as
222 provided for in s. 718.113(1), the budget or a schedule attached
223 to it must show the amount budgeted for this maintenance. If,
224 after turnover of control of the association to the unit owners,
225 any of the expenses listed in s. 718.504(21) are not applicable,
226 they need not be listed.
227 2.a. In addition to annual operating expenses, the budget
228 must include reserve accounts for capital expenditures and
229 deferred maintenance. These accounts must include, but are not
230 limited to, roof replacement, building painting, and pavement
231 resurfacing, regardless of the amount of deferred maintenance
232 expense or replacement cost, and for any other item that has a
233 deferred maintenance expense or replacement cost that exceeds
234 $10,000. The amount to be reserved must be computed using a
235 formula based upon estimated remaining useful life and estimated
236 replacement cost or deferred maintenance expense of each reserve
237 item. The association may adjust replacement reserve assessments
238 annually to take into account any changes in estimates or
239 extension of the useful life of a reserve item caused by
240 deferred maintenance. This subsection does not apply to an
241 adopted budget in which the members of an association have
242 determined, by a majority vote at a duly called meeting of the
243 association, to provide no reserves or less reserves than
244 required by this subsection.
245 b. Before However, prior to turnover of control of an
246 association by a developer to unit owners other than a developer
247 pursuant to s. 718.301, the developer may vote the voting
248 interests allocated to its units to waive the reserves or reduce
249 the funding of reserves through the period expiring at the end
250 of the second fiscal year after the fiscal year in which the
251 certificate of a surveyor and mapper is recorded pursuant to s.
252 718.104(4)(e) or an instrument that transfers title to a unit in
253 the condominium which is not accompanied by a recorded
254 assignment of developer rights in favor of the grantee of such
255 unit is recorded, whichever occurs first, after which time
256 reserves may be waived or reduced only upon the vote of a
257 majority of all nondeveloper voting interests voting in person
258 or by limited proxy at a duly called meeting of the association.
259 If a meeting of the unit owners has been called to determine
260 whether to waive or reduce the funding of reserves, and no such
261 result is achieved or a quorum is not attained, the reserves
262 included in the budget shall go into effect. After the turnover,
263 the developer may vote its voting interest to waive or reduce
264 the funding of reserves.
265 3. Reserve funds and any interest accruing thereon shall
266 remain in the reserve account or accounts, and may be used only
267 for authorized reserve expenditures unless their use for other
268 purposes is approved in advance by a majority vote at a duly
269 called meeting of the association. Before Prior to turnover of
270 control of an association by a developer to unit owners other
271 than the developer pursuant to s. 718.301, the developer
272 controlled association may shall not vote to use reserves for
273 purposes other than those that for which they were intended
274 without the approval of a majority of all nondeveloper voting
275 interests, voting in person or by limited proxy at a duly called
276 meeting of the association.
277 4. The only voting interests that are eligible to vote on
278 questions that involve waiving or reducing the funding of
279 reserves, or using existing reserve funds for purposes other
280 than purposes for which the reserves were intended, are the
281 voting interests of the units subject to assessment to fund the
282 reserves in question. Proxy questions relating to waiving or
283 reducing the funding of reserves or using existing reserve funds
284 for purposes other than purposes for which the reserves were
285 intended must shall contain the following statement in
286 capitalized, bold letters in a font size larger than any other
287 used on the face of the proxy ballot: WAIVING OF RESERVES, IN
288 WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING
289 RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF
290 UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.
291 Section 4. Subsection (3) and paragraph (b) of subsection
292 (5) of section 718.116, Florida Statutes, are amended to read:
293 718.116 Assessments; liability; lien and priority;
294 interest; collection.—
295 (3) Assessments and installments on assessments which are
296 not paid when due bear interest at the rate provided in the
297 declaration, from the due date until paid. The rate may not
298 exceed the rate allowed by law, and, if no rate is provided in
299 the declaration, interest accrues at the rate of 18 percent per
300 year. If provided by the declaration or bylaws, the association
301 may, in addition to such interest, charge an administrative late
302 fee of up to the greater of $25 or 5 percent of each delinquent
303 installment for which the payment is late. Any payment received
304 by an association must be applied first to any interest accrued
305 by the association, then to any administrative late fee, then to
306 any costs and reasonable attorney attorney’s fees incurred in
307 collection, and then to the delinquent assessment. The foregoing
308 is applicable notwithstanding s. 673.3111, any purported accord
309 and satisfaction, or any restrictive endorsement, designation,
310 or instruction placed on or accompanying a payment. The
311 preceding sentence is intended to clarify existing law. A late
312 fee is not subject to chapter 687 or s. 718.303(4).
313 (5)
314 (b) To be valid, a claim of lien must state the description
315 of the condominium parcel, the name of the record owner, the
316 name and address of the association, the amount due, and the due
317 dates. It must be executed and acknowledged by an officer or
318 authorized agent of the association. The lien is not effective 1
319 year after the claim of lien was recorded unless, within that
320 time, an action to enforce the lien is commenced. The 1-year
321 period is automatically extended for any length of time during
322 which the association is prevented from filing a foreclosure
323 action by an automatic stay resulting from a bankruptcy petition
324 filed by the parcel owner or any other person claiming an
325 interest in the parcel. The claim of lien secures all unpaid
326 assessments that are due and that may accrue after the claim of
327 lien is recorded and through the entry of a final judgment, as
328 well as interest, administrative late fees, and all reasonable
329 costs and attorney attorney’s fees incurred by the association
330 incident to the collection process. Upon payment in full, the
331 person making the payment is entitled to a satisfaction of the
332 lien.
333 Section 5. Section 718.128, Florida Statutes, is created to
334 read:
335 718.128 Electronic voting.—The association may conduct
336 elections and other unit owner votes through an Internet-based
337 online voting system if a unit owner consents, in writing, to
338 online voting and if the following requirements are met:
339 (1) The association provides each unit owner with:
340 (a) A method to authenticate the unit owner’s identity to
341 the online voting system.
342 (b) For elections of the board, a method to transmit an
343 electronic ballot to the online voting system that ensures the
344 secrecy and integrity of each ballot.
345 (c) A method to confirm, at least 14 days before the voting
346 deadline, that the unit owner’s electronic device can
347 successfully communicate with the online voting system.
348 (2) The association uses an online voting system that can:
349 (a) Authenticate the unit owner’s identity.
350 (b) Authenticate the validity of each electronic vote to
351 ensure that the vote is not altered in transit.
352 (c) Transmit a receipt from the online voting system to
353 each unit owner who casts an electronic vote.
354 (d) Permanently separate any authentication or identifying
355 information from the electronic election ballot, rendering it
356 impossible to tie an election ballot to a specific unit owner.
357 This paragraph only applies to elections of the board of
358 administration.
359 (e) Store and keep electronic votes accessible to election
360 officials for recount, inspection, and review purposes.
361 (3) A unit owner voting electronically pursuant to this
362 section shall be counted as being in attendance at the meeting
363 for purposes of determining a quorum. A substantive vote of the
364 unit owners may not be taken on any issue other than the issues
365 specifically identified in the electronic vote when a quorum is
366 established based on unit owners voting electronically pursuant
367 to this section.
368 (4) This section applies to an association that provides
369 for and authorizes an online voting system pursuant to this
370 section by a board resolution. The board resolution must provide
371 that unit owners receive notice of the opportunity to vote
372 through an online voting system, must establish reasonable
373 procedures and deadlines for unit owners to consent, in writing,
374 to online voting, and must establish reasonable procedures and
375 deadlines for unit owners to opt out of online voting after
376 giving consent. Written notice of a meeting at which the
377 resolution will be considered must be mailed, delivered, or
378 electronically transmitted to the unit owners and posted
379 conspicuously on the condominium property or association
380 property at least 14 days before the meeting. Evidence of
381 compliance with the 14-day notice requirement must be made by an
382 affidavit executed by the person providing the notice and filed
383 with the official records of the association.
384 (5) A unit owner’s consent to online voting is valid until
385 the unit owner opts out of online voting according to the
386 procedures established by the board of administration pursuant
387 to subsection (4).
388 (6) Except for timeshare condominium associations, this
389 section may apply to any matter that requires a vote of the unit
390 owners.
391 Section 6. Subsections (3), (4), and (5) of section
392 718.303, Florida Statutes, are amended, and subsection (7) is
393 added to that section, to read:
394 718.303 Obligations of owners and occupants; remedies.—
395 (3) The association may levy reasonable fines for the
396 failure of the owner of the unit or its occupant, licensee, or
397 invitee to comply with any provision of the declaration, the
398 association bylaws, or reasonable rules of the association. A
399 fine may not become a lien against a unit. A fine may be levied
400 by the board on the basis of each day of a continuing violation,
401 with a single notice and opportunity for hearing before a
402 committee as provided in paragraph (b). However, the fine may
403 not exceed $100 per violation, or $1,000 in the aggregate.
404 (a) An association may suspend, for a reasonable period of
405 time, the right of a unit owner, or a unit owner’s tenant,
406 guest, or invitee, to use the common elements, common
407 facilities, or any other association property for failure to
408 comply with any provision of the declaration, the association
409 bylaws, or reasonable rules of the association. This paragraph
410 does not apply to limited common elements intended to be used
411 only by that unit, common elements needed to access the unit,
412 utility services provided to the unit, parking spaces, or
413 elevators.
414 (b) A fine or suspension levied by the board of
415 administration may not be imposed unless the board association
416 first provides at least 14 days’ written notice and an
417 opportunity for a hearing to the unit owner and, if applicable,
418 its occupant, licensee, or invitee. The hearing must be held
419 before a committee of other unit owners who are neither board
420 members nor persons residing in a board member’s household. The
421 role of the committee is limited to determining whether to
422 confirm or reject the fine or suspension levied by the board. If
423 the committee does not agree, the fine or suspension may not be
424 imposed.
425 (4) If a unit owner is more than 90 days delinquent in
426 paying a fee, fine, or other monetary obligation due to the
427 association, the association may suspend the right of the unit
428 owner or the unit’s occupant, licensee, or invitee to use common
429 elements, common facilities, or any other association property
430 until the fee, fine, or other monetary obligation is paid in
431 full. This subsection does not apply to limited common elements
432 intended to be used only by that unit, common elements needed to
433 access the unit, utility services provided to the unit, parking
434 spaces, or elevators. The notice and hearing requirements under
435 subsection (3) do not apply to suspensions imposed under this
436 subsection.
437 (5) An association may suspend the voting rights of a unit
438 or member due to nonpayment of any fee, fine, or other monetary
439 obligation due to the association which is more than 90 days
440 delinquent. A voting interest or consent right allocated to a
441 unit or member which has been suspended by the association shall
442 be subtracted from may not be counted towards the total number
443 of voting interests in the association, which shall be reduced
444 by the number of suspended voting interests when calculating the
445 total percentage or number of all voting interests available to
446 take or approve any action, and the suspended voting interests
447 may not be considered for any purpose, including, but not
448 limited to, the percentage or number of voting interests
449 necessary to constitute a quorum, the percentage or number of
450 voting interests required to conduct an election, or the
451 percentage or number of voting interests required to approve an
452 action under this chapter or pursuant to the declaration,
453 articles of incorporation, or bylaws. The suspension ends upon
454 full payment of all obligations currently due or overdue the
455 association. The notice and hearing requirements under
456 subsection (3) do not apply to a suspension imposed under this
457 subsection.
458 (7) The suspensions permitted by paragraph (3)(a) and
459 subsections (4) and (5) apply to a member and, when appropriate,
460 the member’s tenants, guests, or invitees, even if the
461 delinquency or failure that resulted in the suspension arose
462 from fewer than all of the multiple units owned by a member.
463 Section 7. Section 718.707, Florida Statutes, is amended to
464 read:
465 718.707 Time limitation for classification as bulk assignee
466 or bulk buyer.—A person acquiring condominium parcels may not be
467 classified as a bulk assignee or bulk buyer unless the
468 condominium parcels were acquired on or after July 1, 2010, but
469 before July 1, 2018 2016. The date of such acquisition shall be
470 determined by the date of recording a deed or other instrument
471 of conveyance for such parcels in the public records of the
472 county in which the condominium is located, or by the date of
473 issuing a certificate of title in a foreclosure proceeding with
474 respect to such condominium parcels.
475 Section 8. Paragraph (a) of subsection (2) of section
476 719.104, Florida Statutes, is amended to read:
477 719.104 Cooperatives; access to units; records; financial
478 reports; assessments; purchase of leases.—
479 (2) OFFICIAL RECORDS.—
480 (a) From the inception of the association, the association
481 shall maintain a copy of each of the following, where
482 applicable, which shall constitute the official records of the
483 association:
484 1. The plans, permits, warranties, and other items provided
485 by the developer pursuant to s. 719.301(4).
486 2. A photocopy of the cooperative documents.
487 3. A copy of the current rules of the association.
488 4. A book or books containing the minutes of all meetings
489 of the association, of the board of directors, and of the unit
490 owners, which minutes shall be retained for a period of not less
491 than 7 years.
492 5. A current roster of all unit owners and their mailing
493 addresses, unit identifications, voting certifications, and, if
494 known, telephone numbers. The association shall also maintain
495 the electronic mailing addresses and the numbers designated by
496 unit owners for receiving notice sent by electronic transmission
497 of those unit owners consenting to receive notice by electronic
498 transmission. The electronic mailing addresses and numbers
499 provided by unit owners to receive notice by electronic
500 transmission shall be removed from association records when
501 consent to receive notice by electronic transmission is revoked.
502 However, the association is not liable for an erroneous
503 disclosure of the electronic mail address or the number for
504 receiving electronic transmission of notices.
505 6. All current insurance policies of the association.
506 7. A current copy of any management agreement, lease, or
507 other contract to which the association is a party or under
508 which the association or the unit owners have an obligation or
509 responsibility.
510 8. Bills of sale or transfer for all property owned by the
511 association.
512 9. Accounting records for the association and separate
513 accounting records for each unit it operates, according to good
514 accounting practices. All accounting records shall be maintained
515 for a period of not less than 7 years. The accounting records
516 shall include, but not be limited to:
517 a. Accurate, itemized, and detailed records of all receipts
518 and expenditures.
519 b. A current account and a monthly, bimonthly, or quarterly
520 statement of the account for each unit designating the name of
521 the unit owner, the due date and amount of each assessment, the
522 amount paid upon the account, and the balance due.
523 c. All audits, reviews, accounting statements, and
524 financial reports of the association.
525 d. All contracts for work to be performed. Bids for work to
526 be performed shall also be considered official records and shall
527 be maintained for a period of 1 year.
528 10. Ballots, sign-in sheets, voting proxies, and all other
529 papers relating to voting by unit owners, which shall be
530 maintained for a period of 1 year after the date of the
531 election, vote, or meeting to which the document relates.
532 11. All rental records where the association is acting as
533 agent for the rental of units.
534 12. A copy of the current question and answer sheet as
535 described in s. 719.504.
536 13. All other written records of the association not
537 specifically included in the foregoing which are related to the
538 operation of the association.
539 Section 9. Subsections (3) and (4) of section 719.108,
540 Florida Statutes, are amended to read:
541 719.108 Rents and assessments; liability; lien and
542 priority; interest; collection; cooperative ownership.—
543 (3) Rents and assessments, and installments on them, not
544 paid when due bear interest at the rate provided in the
545 cooperative documents from the date due until paid. This rate
546 may not exceed the rate allowed by law and, if a rate is not
547 provided in the cooperative documents, accrues at 18 percent per
548 annum. If the cooperative documents or bylaws so provide, the
549 association may charge an administrative late fee in addition to
550 such interest, not to exceed the greater of $25 or 5 percent of
551 each installment of the assessment for each delinquent
552 installment that the payment is late. Any payment received by an
553 association must be applied first to any interest accrued by the
554 association, then to any administrative late fee, then to any
555 costs and reasonable attorney fees incurred in collection, and
556 then to the delinquent assessment. The foregoing applies
557 notwithstanding s. 673.3111, any purported accord and
558 satisfaction, or any restrictive endorsement, designation, or
559 instruction placed on or accompanying a payment. The preceding
560 sentence is intended to clarify existing law. A late fee is not
561 subject to chapter 687 or s. 719.303(4).
562 (4) The association has a lien on each cooperative parcel
563 for any unpaid rents and assessments, plus interest, and any
564 authorized administrative late fees. If authorized by the
565 cooperative documents, the lien also secures reasonable attorney
566 fees incurred by the association incident to the collection of
567 the rents and assessments or enforcement of such lien. The lien
568 is effective from and after recording a claim of lien in the
569 public records in the county in which the cooperative parcel is
570 located which states the description of the cooperative parcel,
571 the name of the unit owner, the amount due, and the due dates.
572 Except as otherwise provided in this chapter, a lien may not be
573 filed by the association against a cooperative parcel until 30
574 days after the date on which a notice of intent to file a lien
575 has been delivered to the owner.
576 (a) The notice must be sent to the unit owner at the
577 address of the unit by first-class United States mail, and the
578 notice must be in substantially the following form:
579
580 NOTICE OF INTENT
581 TO RECORD A CLAIM OF LIEN
582
583 RE: Unit ...(unit number)... of ...(name of
584 cooperative)...
585
586 The following amounts are currently due on your
587 account to ...(name of association)..., and must be
588 paid within 30 days after your receipt of this letter.
589 This letter shall serve as the association’s notice of
590 intent to record a Claim of Lien against your property
591 no sooner than 30 days after your receipt of this
592 letter, unless you pay in full the amounts set forth
593 below:
594
595 Maintenance due ...(dates)... $.....
596 Late fee, if applicable $.....
597 Interest through ...(dates)...* $.....
598 Certified mail charges $.....
599 Other costs $.....
600 TOTAL OUTSTANDING $.....
601
602 *Interest accrues at the rate of .... percent per
603 annum.
604 1. If the most recent address of the unit owner on the
605 records of the association is the address of the unit, the
606 notice must be sent by certified mail, return receipt requested,
607 to the unit owner at the address of the unit.
608 2. If the most recent address of the unit owner on the
609 records of the association is in the United States, but is not
610 the address of the unit, the notice must be sent by certified
611 mail, return receipt requested, to the unit owner at his or her
612 most recent address.
613 3. If the most recent address of the unit owner on the
614 records of the association is not in the United States, the
615 notice must be sent by first-class United States mail to the
616 unit owner at his or her most recent address.
617 (b) A notice that is sent pursuant to this subsection is
618 deemed delivered upon mailing. A claim of lien must be executed
619 and acknowledged by an officer or authorized agent of the
620 association. The lien is not effective 1 year after the claim of
621 lien was recorded unless, within that time, an action to enforce
622 the lien is commenced. The 1-year period is automatically
623 extended for any length of time during which the association is
624 prevented from filing a foreclosure action by an automatic stay
625 resulting from a bankruptcy petition filed by the parcel owner
626 or any other person claiming an interest in the parcel. The
627 claim of lien secures all unpaid rents and assessments that are
628 due and that may accrue after the claim of lien is recorded and
629 through the entry of a final judgment, as well as interest and
630 all reasonable costs and attorney fees incurred by the
631 association incident to the collection process. Upon payment in
632 full, the person making the payment is entitled to a
633 satisfaction of the lien.
634 (c) By recording a notice in substantially the following
635 form, a unit owner or the unit owner’s agent or attorney may
636 require the association to enforce a recorded claim of lien
637 against his or her cooperative parcel:
638
639 NOTICE OF CONTEST OF LIEN
640
641 TO: ...(Name and address of association)...:
642
643 You are notified that the undersigned contests the
644 claim of lien filed by you on ...., ...(year)..., and
645 recorded in Official Records Book .... at Page ....,
646 of the public records of .... County, Florida, and
647 that the time within which you may file suit to
648 enforce your lien is limited to 90 days from the date
649 of service of this notice. Executed this .... day of
650 ...., ...(year)....
651 Signed: ...(Owner or Attorney)...
652
653 After notice of contest of lien has been recorded, the clerk of
654 the circuit court shall mail a copy of the recorded notice to
655 the association by certified mail, return receipt requested, at
656 the address shown in the claim of lien or most recent amendment
657 to it and shall certify to the service on the face of the
658 notice. Service is complete upon mailing. After service, the
659 association has 90 days in which to file an action to enforce
660 the lien. If the action is not filed within the 90-day period,
661 the lien is void. However, the 90-day period shall be extended
662 for any length of time during which the association is prevented
663 from filing its action because of an automatic stay resulting
664 from the filing of a bankruptcy petition by the unit owner or by
665 any other person claiming an interest in the parcel.
666 (d) A release of lien must be in substantially the
667 following form:
668
669 RELEASE OF LIEN
670
671 The undersigned lienor, in consideration of the final payment in
672 the amount of $...., hereby waives and releases its lien and
673 right to claim a lien for unpaid assessments through ....,
674 ...(year)..., recorded in the Official Records Book .... at Page
675 ...., of the public records of .... County, Florida, for the
676 following described real property:
677
678 THAT COOPERATIVE PARCEL WHICH INCLUDES UNIT NO. ....
679 OF ...(NAME OF COOPERATIVE)..., A COOPERATIVE AS SET
680 FORTH IN THE COOPERATIVE DOCUMENTS AND THE EXHIBITS
681 ANNEXED THERETO AND FORMING A PART THEREOF, RECORDED
682 IN OFFICIAL RECORDS BOOK ...., PAGE ...., OF THE
683 PUBLIC RECORDS OF .... COUNTY, FLORIDA.
684
685 ...(Signature of Authorized Agent)... ...(Signature of
686 Witness)...
687 ...(Print Name)... ...(Print Name)...
688
689 ...(Signature of Witness)...
690 ...(Print Name)...
691
692 Sworn to (or affirmed) and subscribed before me this .... day of
693 ...., ...(year)..., by ...(name of person making statement)....
694 ...(Signature of Notary Public)...
695 ...(Print, type, or stamp commissioned name of Notary Public)...
696 Personally Known .... OR Produced .... as identification.
697 Section 10. Section 719.129, Florida Statutes, is created
698 to read:
699 719.129 Electronic voting.—The association may conduct
700 elections and other unit owner votes through an Internet-based
701 online voting system if a unit owner consents, in writing, to
702 online voting and if the following requirements are met:
703 (1) The association provides each unit owner with:
704 (a) A method to authenticate the unit owner’s identity to
705 the online voting system.
706 (b) For elections of the board, a method to transmit an
707 electronic ballot to the online voting system that ensures the
708 secrecy and integrity of each ballot.
709 (c) A method to confirm, at least 14 days before the voting
710 deadline, that the unit owner’s electronic device can
711 successfully communicate with the online voting system.
712 (2) The association uses an online voting system that can:
713 (a) Authenticate the unit owner’s identity.
714 (b) Authenticate the validity of each electronic vote to
715 ensure that the vote is not altered in transit.
716 (c) Transmit a receipt from the online voting system to
717 each unit owner who casts an electronic vote.
718 (d) Permanently separate any authentication or identifying
719 information from the electronic election ballot, rendering it
720 impossible to tie an election ballot to a specific unit owner.
721 This paragraph only applies to elections of the board of
722 administration.
723 (e) Store and keep electronic votes accessible to election
724 officials for recount, inspection, and review purposes.
725 (3) A unit owner voting electronically pursuant to this
726 section shall be counted as being in attendance at the meeting
727 for purposes of determining a quorum. A substantive vote of the
728 unit owners may not be taken on any issue other than the issues
729 specifically identified in the electronic vote when a quorum is
730 established based on unit owners voting electronically pursuant
731 to this section.
732 (4) This section applies to an association that provides
733 for and authorizes an online voting system pursuant to this
734 section by a board resolution. The board resolution must provide
735 that unit owners receive notice of the opportunity to vote
736 through an online voting system, must establish reasonable
737 procedures and deadlines for unit owners to consent, in writing,
738 to online voting, and must establish reasonable procedures and
739 deadlines for unit owners to opt out of online voting after
740 giving consent. Written notice of a meeting at which the
741 resolution will be considered must be mailed, delivered, or
742 electronically transmitted to the unit owners and posted
743 conspicuously on the condominium property or association
744 property at least 14 days before the meeting. Evidence of
745 compliance with the 14-day notice requirement must be made by an
746 affidavit executed by the person providing the notice and filed
747 with the official records of the association.
748 (5) A unit owner’s consent to online voting is valid until
749 the unit owner opts out of online voting pursuant to the
750 procedures established by the board of administration pursuant
751 to subsection (4).
752 (6) Except for timeshare cooperative associations, this
753 section may apply to any matter that requires a vote of the unit
754 owners.
755 Section 11. Subsection (3) of section 719.303, Florida
756 Statutes, is amended to read:
757 719.303 Obligations of owners.—
758 (3) The association may levy reasonable fines for failure
759 of the unit owner or the unit’s occupant, licensee, or invitee
760 to comply with any provision of the cooperative documents or
761 reasonable rules of the association. A fine may not become a
762 lien against a unit. A fine may be levied by the board on the
763 basis of each day of a continuing violation, with a single
764 notice and opportunity for hearing before a committee as
765 provided in paragraph (b). However, the fine may not exceed $100
766 per violation, or $1,000 in the aggregate.
767 (a) An association may suspend, for a reasonable period of
768 time, the right of a unit owner, or a unit owner’s tenant,
769 guest, or invitee, to use the common elements, common
770 facilities, or any other association property for failure to
771 comply with any provision of the cooperative documents or
772 reasonable rules of the association. This paragraph does not
773 apply to limited common elements intended to be used only by
774 that unit, common elements needed to access the unit, utility
775 services provided to the unit, parking spaces, or elevators.
776 (b) A fine or suspension levied by the board of
777 administration may not be imposed unless the board first
778 provides at least 14 days’ written except after giving
779 reasonable notice and an opportunity for a hearing to the unit
780 owner and, if applicable, its occupant, the unit’s licensee, or
781 invitee. The hearing must be held before a committee of other
782 unit owners who are neither board members nor persons residing
783 in a board member’s household. The role of the committee is
784 limited to determining whether to confirm or reject the fine or
785 suspension levied by the board. If the committee does not agree
786 with the fine or suspension, it may not be imposed.
787 Section 12. Subsection (8) of section 720.301, Florida
788 Statutes, is amended to read:
789 720.301 Definitions.—As used in this chapter, the term:
790 (8) “Governing documents” means:
791 (a) The recorded declaration of covenants for a community,
792 and all duly adopted and recorded amendments, supplements, and
793 recorded exhibits thereto; and
794 (b) The articles of incorporation and bylaws of the
795 homeowners’ association, and any duly adopted amendments
796 thereto; and
797 (c) Rules and regulations adopted under the authority of
798 the recorded declaration, articles of incorporation, or bylaws
799 and duly adopted amendments thereto.
800 Section 13. Section 720.3015, Florida Statutes, is created
801 to read:
802 720.3015 Short title.—This chapter may be cited as the
803 “Homeowners’ Association Act.”
804 Section 14. Section 720.305, Florida Statutes, is amended
805 to read:
806 720.305 Obligations of members; remedies at law or in
807 equity; levy of fines and suspension of use rights.—
808 (1) Each member and the member’s tenants, guests, and
809 invitees, and each association, are governed by, and must comply
810 with, this chapter, the governing documents of the community,
811 and the rules of the association. Actions at law or in equity,
812 or both, to redress alleged failure or refusal to comply with
813 these provisions may be brought by the association or by any
814 member against:
815 (a) The association;
816 (b) A member;
817 (c) Any director or officer of an association who willfully
818 and knowingly fails to comply with these provisions; and
819 (d) Any tenants, guests, or invitees occupying a parcel or
820 using the common areas.
821
822 The prevailing party in any such litigation is entitled to
823 recover reasonable attorney attorney’s fees and costs. A member
824 prevailing in an action between the association and the member
825 under this section, in addition to recovering his or her
826 reasonable attorney attorney’s fees, may recover additional
827 amounts as determined by the court to be necessary to reimburse
828 the member for his or her share of assessments levied by the
829 association to fund its expenses of the litigation. This relief
830 does not exclude other remedies provided by law. This section
831 does not deprive any person of any other available right or
832 remedy.
833 (2) The association may levy reasonable fines. A fine may
834 not exceed of up to $100 per violation against any member or any
835 member’s tenant, guest, or invitee for the failure of the owner
836 of the parcel or its occupant, licensee, or invitee to comply
837 with any provision of the declaration, the association bylaws,
838 or reasonable rules of the association unless otherwise provided
839 in the governing documents. A fine may be levied by the board
840 for each day of a continuing violation, with a single notice and
841 opportunity for hearing, except that the fine may not exceed
842 $1,000 in the aggregate unless otherwise provided in the
843 governing documents. A fine of less than $1,000 may not become a
844 lien against a parcel. In any action to recover a fine, the
845 prevailing party is entitled to reasonable attorney fees and
846 costs from the nonprevailing party as determined by the court.
847 (a) An association may suspend, for a reasonable period of
848 time, the right of a member, or a member’s tenant, guest, or
849 invitee, to use common areas and facilities for the failure of
850 the owner of the parcel or its occupant, licensee, or invitee to
851 comply with any provision of the declaration, the association
852 bylaws, or reasonable rules of the association. This paragraph
853 does not apply to that portion of common areas used to provide
854 access or utility services to the parcel. A suspension may not
855 prohibit impair the right of an owner or tenant of a parcel from
856 having to have vehicular and pedestrian ingress to and egress
857 from the parcel, including, but not limited to, the right to
858 park.
859 (b) A fine or suspension may not be imposed by the board of
860 administration without at least 14 days’ notice to the person
861 sought to be fined or suspended and an opportunity for a hearing
862 before a committee of at least three members appointed by the
863 board who are not officers, directors, or employees of the
864 association, or the spouse, parent, child, brother, or sister of
865 an officer, director, or employee. If the committee, by majority
866 vote, does not approve a proposed fine or suspension, it may not
867 be imposed. The role of the committee is limited to determining
868 whether to confirm or reject the fine or suspension levied by
869 the board. If the board of directors association imposes a fine
870 or suspension, the association must provide written notice of
871 such fine or suspension by mail or hand delivery to the parcel
872 owner and, if applicable, to any tenant, licensee, or invitee of
873 the parcel owner.
874 (3) If a member is more than 90 days delinquent in paying
875 any fee, fine, or other a monetary obligation due to the
876 association, the association may suspend the rights of the
877 member, or the member’s tenant, guest, or invitee, to use common
878 areas and facilities until the fee, fine, or other monetary
879 obligation is paid in full. This subsection does not apply to
880 that portion of common areas used to provide access or utility
881 services to the parcel. A suspension may does not prohibit
882 impair the right of an owner or tenant of a parcel from having
883 to have vehicular and pedestrian ingress to and egress from the
884 parcel, including, but not limited to, the right to park. The
885 notice and hearing requirements under subsection (2) do not
886 apply to a suspension imposed under this subsection.
887 (4) An association may suspend the voting rights of a
888 parcel or member for the nonpayment of any fee, fine, or other
889 monetary obligation due to the association that is more than 90
890 days delinquent. A voting interest or consent right allocated to
891 a parcel or member which has been suspended by the association
892 shall be subtracted from may not be counted towards the total
893 number of voting interests in the association, which shall be
894 reduced by the number of suspended voting interests when
895 calculating the total percentage or number of all voting
896 interests available to take or approve any action, and the
897 suspended voting interests may not be considered for any
898 purpose, including, but not limited to, the percentage or number
899 of voting interests necessary to constitute a quorum, the
900 percentage or number of voting interests required to conduct an
901 election, or the percentage or number of voting interests
902 required to approve an action under this chapter or pursuant to
903 the governing documents. The notice and hearing requirements
904 under subsection (2) do not apply to a suspension imposed under
905 this subsection. The suspension ends upon full payment of all
906 obligations currently due or overdue to the association.
907 (5) All suspensions imposed pursuant to subsection (3) or
908 subsection (4) must be approved at a properly noticed board
909 meeting. Upon approval, the association must notify the parcel
910 owner and, if applicable, the parcel’s occupant, licensee, or
911 invitee by mail or hand delivery.
912 (6) The suspensions permitted by paragraph (2)(a) and
913 subsections (3) and (4) apply to a member and, when appropriate,
914 the member’s tenants, guests, or invitees, even if the
915 delinquency or failure that resulted in the suspension arose
916 from less than all of the multiple parcels owned by a member.
917 Section 15. Paragraph (b) of subsection (1) and subsection
918 (9) of section 720.306, Florida Statutes, are amended to read:
919 720.306 Meetings of members; voting and election
920 procedures; amendments.—
921 (1) QUORUM; AMENDMENTS.—
922 (b) Unless otherwise provided in the governing documents or
923 required by law, and other than those matters set forth in
924 paragraph (c), any governing document of an association may be
925 amended by the affirmative vote of two-thirds of the voting
926 interests of the association. Within 30 days after recording an
927 amendment to the governing documents, the association shall
928 provide copies of the amendment to the members. However, if a
929 copy of the proposed amendment is provided to the members before
930 they vote on the amendment and the proposed amendment is not
931 changed before the vote, the association, in lieu of providing a
932 copy of the amendment, may provide notice to the members that
933 the amendment was adopted, identifying the official book and
934 page number or instrument number of the recorded amendment and
935 that a copy of the amendment is available at no charge to the
936 member upon written request to the association. The copies and
937 notice described in this paragraph may be provided
938 electronically to those owners who previously consented to
939 receive notice electronically. The failure to timely provide
940 notice of the recording of the amendment does not affect the
941 validity or enforceability of the amendment.
942 (9) ELECTIONS AND BOARD VACANCIES.—
943 (a) Elections of directors must be conducted in accordance
944 with the procedures set forth in the governing documents of the
945 association. Except as provided in paragraph (b), all members of
946 the association are eligible to serve on the board of directors,
947 and a member may nominate himself or herself as a candidate for
948 the board at a meeting where the election is to be held;
949 provided, however, that if the election process allows
950 candidates to be nominated in advance of the meeting, the
951 association is not required to allow nominations at the meeting.
952 An election is not required unless more candidates are nominated
953 than vacancies exist. Except as otherwise provided in the
954 governing documents, boards of directors must be elected by a
955 plurality of the votes cast by eligible voters. Any challenge to
956 the election process must be commenced within 60 days after the
957 election results are announced.
958 (b) A person who is delinquent in the payment of any fee,
959 fine, or other monetary obligation to the association on the day
960 that he or she could last nominate himself or herself or be
961 nominated for the board may not seek election to the board, and
962 his or her name shall not be listed on the ballot. A person
963 serving as a board member who becomes more than 90 days
964 delinquent in the payment of any fee, fine, or other monetary
965 obligation to the association shall be deemed to have abandoned
966 his or her seat on the board, creating a vacancy on the board to
967 be filled according to law. For purposes of this paragraph, the
968 term “any fee, fine, or other monetary obligation” means any
969 delinquency to the association with respect to any parcel for
970 more than 90 days is not eligible for board membership. A person
971 who has been convicted of any felony in this state or in a
972 United States District or Territorial Court, or has been
973 convicted of any offense in another jurisdiction which would be
974 considered a felony if committed in this state, may not seek
975 election to the board and is not eligible for board membership
976 unless such felon’s civil rights have been restored for at least
977 5 years as of the date on which such person seeks election to
978 the board. The validity of any action by the board is not
979 affected if it is later determined that a person was ineligible
980 to seek election to the board or that a member of the board is
981 ineligible for board membership.
982 (c) Any election dispute between a member and an
983 association must be submitted to mandatory binding arbitration
984 with the division. Such proceedings must be conducted in the
985 manner provided by s. 718.1255 and the procedural rules adopted
986 by the division. Unless otherwise provided in the bylaws, any
987 vacancy occurring on the board before the expiration of a term
988 may be filled by an affirmative vote of the majority of the
989 remaining directors, even if the remaining directors constitute
990 less than a quorum, or by the sole remaining director. In the
991 alternative, a board may hold an election to fill the vacancy,
992 in which case the election procedures must conform to the
993 requirements of the governing documents. Unless otherwise
994 provided in the bylaws, a board member appointed or elected
995 under this section is appointed for the unexpired term of the
996 seat being filled. Filling vacancies created by recall is
997 governed by s. 720.303(10) and rules adopted by the division.
998 Section 16. Section 720.317, Florida Statutes, is created
999 to read:
1000 720.317 Electronic voting.—The association may conduct
1001 elections and other membership votes through an Internet-based
1002 online voting system if a member consents, in writing, to online
1003 voting and if the following requirements are met:
1004 (1) The association provides each member with:
1005 (a) A method to authenticate the member’s identity to the
1006 online voting system.
1007 (b) A method to confirm, at least 14 days before the voting
1008 deadline, that the member’s electronic device can successfully
1009 communicate with the online voting system.
1010 (c) A method that is consistent with the election and
1011 voting procedures in the association’s bylaws.
1012 (2) The association uses an online voting system that can:
1013 (a) Authenticate the member’s identity.
1014 (b) Authenticate the validity of each electronic vote to
1015 ensure that the vote is not altered in transit.
1016 (c) Transmit a receipt from the online voting system to
1017 each member who casts an electronic vote.
1018 (d) Permanently separate any authentication or identifying
1019 information from the electronic election ballot, rendering it
1020 impossible to tie an election ballot to a specific member. This
1021 paragraph only applies if the association’s bylaws provide for
1022 secret ballots for the election of directors.
1023 (e) Store and keep electronic ballots accessible to
1024 election officials for recount, inspection, and review purposes.
1025 (3) A member voting electronically pursuant to this section
1026 shall be counted as being in attendance at the meeting for
1027 purposes of determining a quorum. A substantive vote of the
1028 membership may not be taken on any issue other than the issues
1029 specifically identified in the electronic vote when a quorum is
1030 established based on members voting electronically pursuant to
1031 this section.
1032 (4) This section applies to an association that provides
1033 for and authorizes an online voting system pursuant to this
1034 section by a board resolution. The board resolution must provide
1035 that members receive notice of the opportunity to vote through
1036 an online voting system, must establish reasonable procedures
1037 and deadlines for members to consent, in writing, to online
1038 voting, and must establish reasonable procedures and deadlines
1039 for members to opt out of online voting after giving consent.
1040 Written notice of a meeting at which the board resolution
1041 regarding online voting will be considered must be mailed,
1042 delivered, or electronically transmitted to the unit owners and
1043 posted conspicuously on the condominium property or association
1044 property at least 14 days before the meeting. Evidence of
1045 compliance with the 14-day notice requirement must be made by an
1046 affidavit executed by the person providing the notice and filed
1047 with the official records of the association.
1048 (5) A member’s consent to online voting is valid until the
1049 member opts out of online voting pursuant to the procedures
1050 established by the board of administration pursuant to
1051 subsection (4).
1052 (6) This section may apply to any matter that requires a
1053 vote of the members.
1054 Section 17. This act shall take effect July 1, 2015.